HARIBHAN v. UNION OF INDIA

3. Main ground for challenge in the appeal is that the Expert Appraisal Committee (EAC) did not determine the question whether the project could be allowed in Taj Trapezium Zone (TTZ) area where adhoc moratorium on expansion and setting up of the new industries is in operation, as per decision of the MoEF&CC dated 08.09.2016. The project will affect Taj Mahal, which is a World Heritage site. Even though the appellant has raised certain other objections which are not necessary to be referred.

4. We may now refer to the stand of the opposite parties. In its response, the MoEF&CC has stated that the proposal was duly considered and appraised by the EAC in accordance with the EIA Notification dated 14.09.2006 including the issue of TTZ and EC has been rightly granted. Response of the TTZ is that it received the proposal about the project from the MoEF&CC on 04.01.2017 which was forwarded to the Rajasthan State PCB and the Mining Department, Rajasthan, who replied that there was no clear order permitting mining activities in TTZ. On that basis MoEF&CC was informed. The stand of Archeological Survey of India is that as per order of the Hon'ble Supreme Court dated 17.11.2004 in W.P. (C) No. 653 of 1994, Waseem Ahmed Saeed v. UOI & Ors., no blasting operations are allowed within 10 KM from the Shrine of Darga Saleem Chisti, Fatehpur Sikri.

5. The Tribunal considered the matter earlier on 10.10.2018. Reference was made to the minutes of the EAC dated January 30-31, 2017, rejecting the proposal as follows:-

"………The Committee deliberated the issues and was of the view that considering the extremely low mineral density (milestone) in the lease area, mineral (milestone) not being rare or/and critically important and the impact on ecology

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and environment during mining activities spread over 964 ha affecting many villages, the environmental impacts far outweigh the incidental revenue benefits and rejected the proposal."

6. Thereafter, the appeal was disposed of on the ground that the Hon'ble Court was seized of the matter in relation to TTZ area in Writ Petition(s) (Civil) No. (s). 13381/1984 and the appellant could seek orders in the said pending matter. Against the order of this Tribunal, Civil Appeal No. 2475 of 2019 was filed by the appellant before the Hon'ble Supreme Court which was allowed with the observation that pendency of the matter before the Hon'ble Supreme Court was no bar to adjudication of this appeal by this Tribunal. The Hon'ble Supreme Court set aside the order dated 10.10.2018 and restored the appeal for fresh disposal by this Tribunal.

7. Apart from the above, we are informed that the Hon'ble Supreme Court disposed of W.P. (C) No. 13381 of 1984, M.C. Mehta v. UOI & Ors. on the subject of activities in the TTZ area vide order dated 16.12.2019 with the following observations:-

"1 to7….xxx…………………………….xxx………………………………xxx 8.. As regards permission for establishing nonpolluting industrial units, it appears to us that only those small, micro and macro level industries which are both nonpolluting and eco-friendly and which have necessary clearances from all statutory authorities as well as concurrence of the Central Empowerment Committee and NEERI, can be setup within the notified industrial area.

9. We, thus, clarify that since the interim order dated 22^nd March 2018 directing maintenance of status quo was passed to ensure timely submission of the Vision Plan by the State of U.P. and the said direction already stands complied with, there shall be no impediment for the authorities to consider pending environmental clearances which are necessary to secure essential amenities within TTZ. Simultaneously, the State and other statutory authorities are free to consider requests for relocating eco-friendly nonpolluting industrial units,

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subject to them meticulously complying with environmental laws and all norms/conditions laid down by this Court (including those in the main judgment of 30^th December 1996). Concurrence with the Central Empowerment Committee and opinion of NEERI shall also be necessary before according such permission.

8. There shall, however, be an embargo on granting clearances to and/or shifting of any heavy industry until a final decision is taken on the vision document. The interlocutory application is accordingly disposed in above terms."

9. In view of the above, the matter was taken up by the Tribunal on 10.02.2020 and the MoEF&CC was directed to take a stand about the EC granted in the TTZ area. However, no such stand has been taken by the MoEF&CC. None appears for the MoEF&CC and the project proponent.

10. We have heard the learned counsel for the parties present. Learned counsel for the appellants submits that this Tribunal may consider the written submissions filed on behalf of the appellants which are as follows:-

"2. xxx ………………………..xxx……………………………xxx………

i. The site in question lies inside the Taj Trapezium Zone ('TTZ') where setting up of all new and expansion of existing industries is banned to control air pollution, particularly the present industry which is a 'red category industry':

a) The Environment Clearance dt. 5.03.2018 clearly records that the mining lease lies within the TTZ (pg. no. 64 @66), and also as per the RTI response dated 14.12.2016 the lease area falls within the TTZ (pg. no. 113);

b) The Office Order dt. 7.03.2013 categorizing industries/projects/activities/mines into red/orange and green categories by the Rajasthan State Pollution Control Board has categorizes 'mining and ore beneficiation' as a red category industry (pg. no. 115 @117, serial no. 49). Further, the CPCB document titled 'Final document on Revised Classification of Industrial Sectors under Red, Orange, Green and White Categories' dt. 29.02.2016 categorizes mining and ore beneficiation' as a red category industry as it is "both air and water polluting" (pg. 387 @394, serial no. 35);

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c) Minutes of the Meeting by the TTZ Committee dt. 8.09.2016 which imposed an "ad hoc moratorium on the expansion and setting up of new industries (except white category" to control air pollution by TTZA" (pg. no. 118 @121);

d) The 14th meeting of EAC (non-coal mining) dt. 30 - 31.01.2017 observed that the mining lease area was within the TTZ, and finally rejected the proposal due to the low mineral density and the environmental impact on the ecology outweighs the 'incidental revenue benefits'(pg. no. 124 @126);

e) Thereafter, the 16th meeting of the EAC (non-coal mining) dt. 20- 21.03.2017 re-considered the project and allowed the PP to place more materials on record (pg nos. 161-163); the 17th meeting of EAC (noncoal mining) again deferred the project without considering the issue of the TTZ (pg. nos. 164-166); the 20th meeting of EAC (non-coal mining) again deferred the project without considering the issue of the TTZ (pg. nos. 167-

170). However, in the 21st meeting of EAC (non-coal mining), the Committee recommended the proposal without considering that no such mining can take place in the TTZ area (pg. nos. 171-173).

f) Further, the Hon'ble Supreme Court has passed an order in M.C. Mehta v. Union of India and Ors., W.P. No. 13381 of 1984 (TTZ case) whereby order dated 6.12.2019, the Hon'ble Court has allowed statutory authorities to grant environmental clearances for projects which are 'necessary for providing essential public facilities' and 'small, micro and macro level industries which are both nonpolluting and ecofriendly'. A copy of the order dated 6.12.2019 is annexed here as

Annexure A-1.

ii. There was large scale opposition to the project during the public hearing on 19.08.2016 and issues raised during the hearing including impact on public health, damage to residential structures, agriculture etc. have not been incorporated in the EIA Report (pg. nos. 15-21 of the Appeal);

iii. No public hearing was conducted in the affected area of Agra, Uttar Pradesh, despite the MLA being on the Rajasthan- Uttar Pradesh border (pg. nos. 21-23 of the Appeal);

iv. The EAC has failed to apply its mind to vital issues while recommending the grant of the EC (pg. nos. 23-35 of the Appeal);

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v. The EIA Report is deficient in many aspects and has not conducted the environmental study correctly (pg. nos. 36- 41 of the Appeal);"

11. In view of order of the Hon'ble Supreme Court dated 16.12.2019, only small, micro and macro level industries which are both non- polluting and eco-friendly or which are necessary to secure essential amenities within TTZ can be allowed in TTZ. The project in question is a Red Category project involving blasting within 10 kms of TTZ which is not permissible. Thus, the impugned EC is liable to be set aside. However, in absence of any representation by the MoEF&CC and the project proponent, we direct that the MoEF&CC to pass an appropriate further order in the matter within two months from today and till such a decision is taken, the impugned EC may not be given effect and no mining in terms of the project may be carried out. The appeal stands disposed of accordingly.

Pending M.A.s also stand disposed of in view of order passed in the main matter.

A copy of this order be forwarded to the MoEF&CC by e-mail. Adarsh Kumar Goel, CP

S.K. Singh, JM

Dr. Nagin Nanda, EM

February 03, 2021

Appeal No. 48/2018

A

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