Dismissed

Ras Mohan Thakur v. State Expert Appraisal Committee (Seac) State of Biharstate Expert Appraisal Committee (Seac) State of Bihar

NGT25 Nov 2024IA No. 85/2024 in Original Application No. 214/2024

Case brief

AI extract

What is this about?

The National Green Tribunal East Zone Bench dismissed the applicant's Original Application as premature and not maintainable. The court held that the State Expert Appraisal Committee (SEAC) report had not yet been considered by the regulatory authority (SEIAA, Bihar), meaning no final grant of Environmental Clearance had occurred at the time of the hearing.

What did the court decide?

Original Application No.214/2024/EZ is dismissed as premature and not maintainable.

Ras Mohan Thakur vs State Expert Appraisal Committee (Seac) State… — Land Acquisition | NGT (2024)

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Court No.1

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Item No.01

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BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA

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(THROUGH PHYSICAL HEARING WITH HYBRID MODE)

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Original Application No.214/2024/EZ (I.A. No.85/2024/EZ)

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In the matter of:

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Ras Mohan Thakur S/o Shri Narendra Mohan Thakur R/o Village Panjwara, District Banka, Bihar – 813110

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…. Applicant(s)

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Versus

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1. State Level Expert Appraisal Committee (SEAC) , Bihar Through its Member Secretary, Vikash Bhawan, Bailey Road, Patna, Bihar – 800014

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2. The State Level Environmental Impact Assessment Authority (SEIAA), Bihar

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Through its Member Secretary, 2^nd Floor, Beltron Bhawan, Shastri Nagar,

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Patna– 800023, Bihar

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3. Directorate of Geology & Mining, Bihar

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Through Additional Chief Secretary-cum-Mines, Commissioner, Vikas Bhawan, Bailey Road, Patna – 800015, Bihar

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4. District Magistrate, Banka

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Banka Road, District - Banka, Bihar – 813102

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5. Union of India

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Through the Secretary, Ministry of Environment, Forests and Climate Change (MoEF&CC), Indira Paryavaran Bhavan, Jorbagh Road, New Delhi – 110003

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6. Sandeep Chandak Through its Proprietor, Having his office at 3B, 22-23, Sukhadia Nagar, Sri Ganganagar, Rajasthan – 335001

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…. Respondent(s)

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Date of hearing: 25.11.2024

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CORAM: HON’BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON’BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER

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For Applicant(s) : Vanshdeep Dalmia, Adv. a/w Ms. Anisha Jain, Adv. (in Virtual Mode)

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ORDER

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Heard Mr. Vanshdeep Dalmia learned Counsel appearing (in Virtual

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Mode) for the Applicant.

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The Applicant has filed the present Original Application seeking the following reliefs:

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“ i . Pass an order quashing Agenda 12 of the Impugned MOM dated 3.08.2024 passed by the Respondent No.1, SEAC, Bihar whereby three Sand Mining Project of Area 67 Ha at Cheer Unit-II (Sand Block 3, 4 & 5) on Cheer River, District Banka, Bihar have been recommended for grant of a Common EC, in absence of a prior Replenishment study in violation of the Judgments passed by this Hon’ble Tribunal in Raj Kumar, Pramod, Junaid Ayubi, Shokeen Ali & Clause 5 of the EMGSM, 2020 Guidelines issued by the Respondent No.5, MOEF”

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It is stated that the District Survey Report (D.S.R.) for District, Banka, Bihar was prepared by the Sub Divisional Committee and approved by the SEAC/SEIAA, Bihar and published in May 2022. The replenishment rate for district: Banka in the District Survey Report (D.S.R.) has been mentioned as under: -

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“From the above replenishment study data, it has been observed that the replenishment quantity of sand is found more than the actual production. In 2018 the replenished quantity is found Approx. 107% of the actual production and in 2019 it was found 117%”.

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It is stated that the District Survey Report contains a list of mining leases/clusters which discloses that no clusters exist in any of the mining leases in district: Banka. Hence, all the three Sand Blocks

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were required to be apprised individually and independent of each other.

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It is stated that the State of Bihar through the Director, Geology and Mining Department, issued e-tender in 2022 in respect of River Sand Mine measuring 67 hectares in respect of Cheer Unit-II (Sand Blocks 3, 4 and 5) located on Cheer River in district: Banka. Pursuant to the e-tender notice, the Respondent No.4, District Mining Officer, Banka issued a Letter of Intent (LOI) dated 02.12.2022 in favour of Respondent No.6, one Sandip Chandak. It is stated that the Respondent No.6 filed a Common Application (Form-1/1A) dated 10.05.2023 under EIA Notification 2006 and sought Environmental Clearance (EC) in respect of the three Sand Blocks 3, 4 and 5 admeasuring 67 hectares. It is reiterated that the three Sand Blocks 3, 4 and 5 do not constitute part of cluster and for mines that fall under a cluster, a common public hearing and EIA Study is contemplated under the EIA Notification 2006. It is alleged that the application for grant of Environmental Clearance, Terms of Reference (TOR) and the Environmental Clearance (EC) itself are always independent for each Sand Ghat/Blocks even in a cluster and therefore, a Common EIA Study is not permissible and is illegal.

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It is alleged that the SEAC, Bihar screened the application filed by the Respondent No.6 dated 10.05.2023 and granted Terms of Reference (TOR) for the said mines the very next date i.e. 11.05.2023 which is illegal since there ought to have been independent/separate applications under the Environment Impact Assessment Notification 2006 in respect of different Sand Ghats

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and a Common Application for grant of Environmental Clearance in respect of three separate Sand Blocks/Ghats was not maintainable.

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It is also alleged that Common draft EIA Study was submitted in respect of all the three Sand Blocks and a Common public hearing was held on 19.06.2024 which was also therefore vitiated being violative of the EIA Notification 2006. It is alleged that a final Common Environment Impact Assessment (EIA) Study was submitted in respect of the said mine on 01.08.2024 without conducting the replenishment study which was last conducted in 2019 and it was also not disclosed that, that part of the minable area is submerged under water.

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It is alleged that the three Sand Blocks 3, 4 and 5 do not constitute part of a cluster (being not within 500 mtr. of each other) and thus a Common Environment Impact Assessment (EIA) Study is not permissible. It is further alleged that the proposal of the Respondent No.6 for grant of Environmental Clearance (EC) was considered by SEAC, Bihar in its 44^th Minutes of the Meeting dated 03.08.2024 under Agenda No.12 and the proposal for grant of EC was recommended though the appraisal of the project was done in the absence of the Respondent No.6 or any of his representatives to unduly favour the Respondent No.6.

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We find that what the Petitioner is challenging, inter alia, is the advisory recommendation of the State Expert Appraisal Committee (SEAC). So far as no Environmental Clearance has been granted by State Environment Impact Assessment Authority (SEIAA), Odisha. The Report of the SEAC is required to be considered by the State Environment Impact Assessment Authority (SEIAA), Odisha.

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The appraisal of any Project is governed by the provisions of the Ministry of Environment, Forests and Climate Change (MoEF&CC) Notification dated 14.09.2006. Paragraph 5 of the said Notification provides that the same Expert Appraisal Committees (referred to as EACs) at the Central Government and State Expert Appraisal Committee (referred to as SEACs) at the State or the Union Territory level shall screen, scope and appraise projects or activities in Category ‘A’ and Category ‘B’ respectively.

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The process of consideration for new project for grant of Environmental Clearance process comprising of four stages as given in Para 7 are:

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Stage (1) Screening (Only for Category ‘B’ projects and activities)

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Stage (2) Scoping

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Stage (3) Public Consultation

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Stage (4) Appraisal

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Para 6 of the Notification 2006 provides that an application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1 annexed with the Notification and Supplementary Form 1A, if applicable, as given in Appendix II in the Notification.

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I. Stage (1) – Screening:

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In case of Category ‘B’ projects or activities entails the scrutiny of an application seeking prior environmental clearance made in Form 1 by the concerned Stage Level Expert Appraisal Committee (SEAC) for determining whether or not the project or activity requires further environmental studies for preparation of an Environmental Impact Assessment (EIA) for its appraisal prior to the grant of

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environmental clearance depending upon the nature and location specificity of the project. The projects requiring an Environmental Impact Assessment Report shall be termed as Category ‘B1’ and the remaining projects shall be treated as Category ‘B2’ and will not require an Environment Impact Assessment Report.

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II. Stage (2) – Scoping:

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(i) “Scoping”: refers to the process by which the Expert Appraisal Committee in the case of Category ‘A’ projects or activities, and State Level Expert Appraisal Committee in the case of Category ‘B1’ projects or activities, including applications for expansion and/or modernization and/or change in product mix of existing projects or activities, determine detailed and comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report.

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(ii) The Terms of Reference (TOR) shall be conveyed to the applicant by the Expert Appraisal Committee or State Level Expert Appraisal Committee as concerned within sixty days of the receipt of Form 1.

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(iii) Applications for prior environmental clearance may be rejected by the regulatory authority concerned on the recommendation of the EAC or SEAC concerned at this stage itself. In case of such rejection, the decision together with reasons for the same shall be communicated to the applicant in writing within sixty days of the receipt of the application.

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III. Stage (3) – Public Consultation:

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(i) “Public Consultation” refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate.

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(ii) The Public Consultation shall ordinarily have two components comprising of:-

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(a) A public hearing at the site or in its close proximitydistrict wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected persons:

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(b) Obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity.

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(iii) Notification 2006 further provides that public hearing be held at, or in close proximity to, the site(s) in all cases to be conducted by the State Pollution Control Board (SPCB) or the Union Territory Pollution Control Committee (UTPCC) concerned in the specified manner and forward the proceedings to the regulatory authority concerned within 45 (forty five) days of a request to the effect from the applicant.

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IV. Stage (4) – Appraisal:

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(i) “Appraisal” has been defined to mean the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like the Final EIA Report, outcome of the public consultations including public hearing proceedings,

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submitted by the applicant to the regulatory authority concerned for grant of environmental clearance. On 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 on stipulated terms and conditions, or rejection of the application for prior environmental clearance, together with reasons for the same.

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Para 8 of the Notification 2006 under the heading “Grant or Rejection of Prior Environmental Clearance (EC)” provides:-

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(i) The regulatory authority shall consider the recommendations of the EAC or SEAC concerned and convey its decision to the applicant within forty five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned or in other words within one hundred and five days of the receipt of final Environment Impact Assessment Report, and where Environment Impact Assessment is not required, within one hundred and five days of the receipt of the complete application with requisite documents, except as provided in para 8(ii).

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Para 8 (ii) provides that:-

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(ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. In cases where it disagrees with the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal

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Committee concerned, the regulatory authority shall request reconsideration by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned within forty five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned stating reasons for the disagreement. The Expert Appraisal Committee or State Level Expert Appraisal concerned shall, in turn, consider the observations of the regulatory authority and furnish its views on the same within a further period of sixty days. The decision of the regulatory authority after considering the views of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall be final and conveyed to the applicant by the regulatory authority concerned within the next thirty days.

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Para 8 (iii) of the Notification 2006 provides that:-

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(iii) In the event that the decision of the regulatory authority is not communicated to the applicant within the period specified in sub-paragraphs (i) or (ii) above, as applicable, the applicant may proceed as if the environmental clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned.

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It is not in dispute that the State Level Environment Impact Assessment Authority is the regulatory authority to consider the Report of the State Level Expert Appraisal Committee.

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The Applicant is assailing the report of State Level Expert Appraisal Committee, Bihar dated 03.08.2024 on the ground that it recommended the project for grant of Environmental Clearance in the absence of the Project Proponent without application of mind.

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In our opinion, the Applicant is not the Project Proponent and therefore he cannot claim that the Project Proponent has any grievance with regard to the opinion of the State Level Expert Appraisal Committee recommending grant of Environmental Clearance.

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The Applicant has further stated that no replenishment studies have been conducted in any of the mines i.e. Sand Block 3, 4 and 5 in violations of the Sustainable Sand Mining Management Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining, 2020 (EMGSM) or that the State Level Environment Impact Assessment Authority has failed to appreciate that the EIA Study itself states that no replenishment study has been done. Various other grounds have been taken by the Applicant for assailing the Report of the State Level Expert Appraisal Committee dated 03.08.2024; that the sand blocks in question do not fall in a cluster; common public hearing and EIA Study is contemplated under the EIA 2006; Terms of Reference (TOR) was granted on the very next day of the Application being filed by the Respondent No.6.

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In our opinion, the SEAC Report impugned herein has yet to be considered by the regulatory authority namely SEIAA, Bihar. No order has been passed by SEIAA, Bihar on the SEAC Report till date and therefore, even if a recommendation for grant of Environmental Clearance has been made by the SEAC it would not translate into a grant of Environmental Clearance unless the

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Report of SEAC is accepted by the SEIAA, Bihar. As already noted in the MoEF&CC Notification 2006, the Regulatory Authority namely the SEIAA, Bihar may accept the Report of SEAC or may reject the Report for reasons to be recorded therein or may accept it with conditions. In fact, a perusal of the Report of the SEAC dated 03.08.2024 itself states in Item No.13 that “no change in mining technology or scope of work should be made without prior approval of the SEIAA, Bihar”.

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Item No.14 of the said Report states that “the Ministry/SEIAA may alter/modify the above conditions or stipulate any additional condition(s) in the interest of environment”.

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Item No.17 of the said Report states that “the SEIAA may impose additional conditions in the interest of Environment & Ecology whenever it becomes necessary to do so”.

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We may also note that even though the Applicant is assailing the recommendation of the State Expert Appraisal Committee (SEAC) dated 03.08.2024, he has not alleged that the respondents have already started acting or implementing the recommendations of SEAC. There is no allegation that any mining lease has been executed by the Government to the Respondent No.6 solely on the basis of the recommendation of SEAC, Bihar dated 03.08.2024 without there being a valid Environmental Clearance granted by SEIAA, Bihar.

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At page 19 of the paperbook, the contentions of the Applicant of this Original Application is that, the recommendation of SEAC in Agenda 12 dated 03.08.2024 requires to be quashed and cancelled by the Tribunal in furtherance of the Precautionary Principle and the Doctrine of Sustainable Development statutorily incorporated in

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Section 20 of the NGT Act. In fact it is admitted that the issues stand at a preventive stage and both the Applicant and the Respondents ought to be safeguarded to prevent undue future hardship, illegal mining beyond the replenished rate, and obliterate the need for curative and reparatory measures.

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This clearly shows that the present Original Application has been filed only on presumptions and assumptions that there may be future hardships or illegal mining beyond replenished rate.

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In our opinion, the impugned Report of SEAC dated 03.08.2024 at Agenda 12 has still to be considered by SEIAA, Bihar and therefore any expression of opinion by this Tribunal on merits or demerits of the impugned SEAC Report would frustrate the consideration of the said report by SEIAA, Bihar.

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For reasons aforesaid, we find that the present Original Application is premature and not maintainable and is accordingly dismissed.

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Needless to say that if the Applicant is aggrieved by any order passed by SEIAA, Bihar, he would have a right of appeal before this Tribunal under Section 16 of the NGT Act.

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I.As, if any, stand disposed of accordingly. 30. There shall be no order as to costs.

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B. Amit Sthalekar, JM

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….......................................... Dr. Arun Kumar Verma, EM

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November 25 2024, Original Application No.214/2024/EZ (I.A. No.85/2024/EZ) SKB

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Ras Mohan Thakur v. State Expert Appraisal Committee (Seac) State of Biharstate Expert Appraisal Committee (Seac) State of Bihar

Case brief

What is this about?

What did the court decide?

Ras Mohan Thakur v. State Expert Appraisal Committee (Seac) State of Biharstate Expert Appraisal Committee (Seac) State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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Coram

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