Allowed

M/S Rahul Paharia Mine v. Union of India

NGT9 Aug 2024IA No. 267/2024 in Appeal No. 22/2024

Case brief

AI extract

What is this about?

The appellant appealed against SEIAA Rajasthan's decision to delist a project for re-appraisal because the original Environmental Clearance (EC) was deemed illegal. The Court relied on Jayant Kumar, holding that ECs granted by lower authorities after the Satendra Pandey judgment were not automatically illegal before a specific cutoff date. The Court allowed the appeal, set aside the delisting, and

What did the court decide?

Decision of SEIAA set aside; directed to re-appraise EC within two months; mining permissible only upon approval.

M/S Rahul Paharia Mine vs Union of India — Writ and Judicial Review | NGT (2024)

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI

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APPEAL NO.22/2024 (I.A. NO.278/2024 and I.A. NO.267/2024)

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IN THE MATTER OF:

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1. M/S. RAHUL PAHARIA MINE Silica Sand Minor Mineral Mine, Village-Dantli, Tehsil- Dausa, Rajasthan-303303

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...Appellant

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Verses

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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

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...Respondent(s)

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COUNSELS FOR APPELLANT(S):

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Mr. Sanjay Upadhyay, Senior Advocate with Ms. Mansi Bachani, Mr. J.P. Jhakhar, Mr. Shubham Upadhyay and Mr. Vedant Bijalwan, Advocates

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COUNSELS FOR RESPONDENT(S):

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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)

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CORAM:

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HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE DR. AFROZ AHMAD, EXPERT MEMBER

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RESERVED ON: JULY 12, 2024 PRONOUNCED ON: AUGUST 09, 2024

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JUDGMENT

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BY HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER

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This Appeal under Section 16(i) read with Section 18(1) of National green Tribunal Act, 2010 (hereinafter referred to as ‘NGT Act, 2010’ ) has been filed by M/s. Rahul Paharia Mine, being aggrieved by the decision dated 28.05.2024 of State Level Environment Impact Assessment Authority, Rajasthan (hereinafter referred to as ‘SEIAA Rajasthan’ ) taken in its 5.124^th meeting, held on 27.05.2024, item 17, closing and delisting the re-appraisal proposal of Environmental Clearance (hereinafter referred to as ‘EC’ ) for Silica Sand Mining Project Mining Lease No. 12/2010, Area4.9991 hectares at khasra no. 898, 899, 900, 901 and 902, located near village Dantli, Tehsil and District-Dausa, State of Rajasthan on the ground that EC dated 26.11.2018 issued by District Environment Impact Assessment Authority, Dausa (hereinafter referred to as ‘DEIAA Dausa’ )

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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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Learned Counsel for the appellant contended that the above order amounts to rejection of the application for appraisal of EC by SEIAA Rajasthan, therefore, decision is appealable under Section 16(i) of NGT Act, 2010.

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The facts in brief are that appellant Rahul Paharia was granted mining lease on 18.04.2013 for mining of Silica Sand over a mining lease area of 4.9991 hectares in village Dantli, Tehsil and District-Dausa, State of Rajasthan. SEIAA Rajasthan vide letter dated 19.07.2015 granted EC under Environment Impact Assessment Notification dated 14.09.2006 (hereinafter referred to as ‘EIA 2006’ ) for Silica Sand Mining Project, Mining Lease No. 12/2010, Area-4.9991 hectares, at khasra no. 898, 900, 902, 901 and 899. The production capacity approved by EC dated 19.07.2015 was 1,25,000 Tonnes per Annum.

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Appellant sought to increase production capacity to 307010 Tonnes per Annum and applied for grant of EC under EIA 2006, due to expansion of project, in 2018. In view of amendment vide Notification dated 15.01.2016 in EIA 2006 where the area was less than 5 hectares, the power to grant EC was conferred upon DEIAA, and accordingly, DEIAA Dausa granted EC for expansion of project vide letter dated 26.11.2018.

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Amendment Notification dated 15.01.2016 and two others Notifications dated 20.01.2016 and 01.07.2016 amending EIA 2006 were challenged in OA 186/2016, Satendra Pandey vs. Ministry of Environment, Forest and Climate Change & Another and other

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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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Vide judgment dated 13.09.2018 passed in Satendra Pandey vs. MoEF&CC & Another (supra) , Tribunal found that the procedure prescribed for grant of prior EC to the projects falling in category B2 was not consistent with Supreme Court’s judgment in Deepak Kumar vs. State of Haryana (supra).

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Tribunal ultimately directed MoEF&CC to bring the amendment Notification dated 15.01.2016 in consonance and in accord with the directions of Supreme Court given in Deepak Kumar vs. State of Haryana (supra) .

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Despite the above judgment rendered on 13.09.2018 (supra) , prior EC was granted to appellant vide letter dated 26.11.2018 by DEIAA Dausa for Silica Sand Mining Project Mining Lease No. 12/2010, Area-4.9991 hectares at khasra no. 898, 900, 901 and 902.

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In purported compliance of directions contained in the judgment

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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:

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“2. The Hon’ble NGT vide order dated 13^th 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:-

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“(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;

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(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;

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(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;

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(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,

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(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;

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(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.”

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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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Since EC was granted by DEIAA Dausa on 26.11.2018, in view of the judgment dated 13.09.2018 passed in Satendra Pandey vs. MoEF&CC & Another (supra), SEIAA Rajasthan has held that subsequent EC granted by DEIAA after the judgment in Satendra Pandey vs. MoEF&CC & Another (supra) is illegal and a nullity.

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This issue has recently been considered by Tribunal in OA 142/2022, Jayant Kumar vs. Ministry of Environment, Forest and Climate Change & Ors. and Issue No. III therein was formulated as under:

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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)?”

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The above Issue has been discussed in paras 122 to 144 of the judgment in Jayant Kumar vs. MoEF&CC (supra) which read as under:

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“ ISSUE III:

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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).

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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.

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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.

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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).

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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) .

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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.

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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.

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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.

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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.

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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.

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132. Thus, any further action pursuant to the amendment notification dated 15.01.2016 was stopped by Tribunal vide order dated 11.12.2018.

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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.

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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.

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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.

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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) .

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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.

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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.

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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).

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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.

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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.

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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.

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144. We answer issue III accordingly.”

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In view of the above judgment in Jayant Kumar vs. Ministry of

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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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Appeal is allowed.

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Decision of SEIAA impugned in this Appeal in respect of the appellant is hereby set aside.

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SEIAA Rajasthan is directed to appraise/re-appraise the EC granted to appellant by DEIAA Dausa vide letter dated 26.11.2018 in the light of the directions given in Jayant Kumar vs. Ministry of Environment, Forest and Climate Change (supra) within a period of two months and communicate its decision to the appellant, accordingly, and, thereafter, appellant will be entitled to continue with the mining activities, only, if SEIAA, accords approval of EC in favour of the appellant.

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Pending IAs stand disposed of.

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SUDHIR AGARWAL, JUDICIAL MEMBER

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DR. AFROZ AHMAD, EXPERT MEMBER

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August 09, 2024 Appeal No.22/2024 R

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M/S Rahul Paharia Mine v. Union of India

Case brief

What is this about?

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M/S Rahul Paharia Mine v. Union of India

Case brief

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