National Green Tribunal
Pramod vs Directorate Of Geology And Mining on 10 May, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 05 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Appeal No. 15/2021
(I.A. No. 22/2022)
Pramod Appellant
Versus
State of Uttar Pradesh & Ors. Respondent(s)
Date of hearing: 10.05.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Appellant: Mr. Ajit Sharma, Advocate
Respondent(s): Ms. Sunita Bhardwaj, Advocate for MoEF & CC
Mr. Pradeep Misra & Mr. Daleep Dhyani Advocates for UPPCB
Mr. Mukesh Verma, Advocate for the State of UP
Ms. Priyanka Swami, Advocate for SEIAA, UP
Mr. Neeraj Jain, Advocate for M/s Star Mines (PP)
ORDER
1. This Appeal has been preferred against order of grant of Environmental Clearance (EC) by the SEIAA, UP vide order dated 26.03.2021 for proposed Sand/Bajari/Boulder Mining at Gata No.1, (Leased Area - 36.00 Ha) Village Barthakorsi, Tehsil Behat, District Saharanpur, U.P. in favour of M/s Star Mines.
2. Grounds for challenge in the appeal inter-alia include:
grant of EC for area more than the area mentioned in the auctioned notice 1 mining being allowed in-stream and by mechanized methods Cluster certificate dated 12.03.2020 being incorrect, ignoring that mining was already taken place within 500 mtrs. (even though across the river falling in Haryana) EC being granted without requisite replenishment study there being lack of due diligence ignoring that there are five FIRs for illegal mining against the Project Proponent public hearing has taken place 20 kms away from the site It is also stated that the mining commenced without requisite consent from the State PCB and there is also illegal groundwater extraction, in violation of the EC conditions.
3. Vide order dated 09.06.2021, the Tribunal constituted a four-
member joint Committee comprising of CPCB, State PCB, representative of the MoEF&CC and the District Magistrate, Saharanpur to verify facts and give a report to this Tribunal, with a copy of report to the PP for its response, if any. SEIAA, UP and the PP were also required to give their response to the appeal.
4. Accordingly, report of the joint Committee has been filed on 30.03.2022 to the effect that the PP did not have requisite consents till June, 2021 but its operation was continuing. It illegally extracted groundwater. Mining has been done illegally beyond permission. In December, 2021, consent has been granted. Relevant extract from the report are as follows:-
"6. The findings of the committee are as given below, 2 6.1. The State Level Environment Impact Assessment Authority (SEIAA) has issued Environmental clearance (EC) on 26.03.2021 to the M/s Star Mines (Shri Deepak Chaudhari) for proposed Sand/Bajari/Boulder Mining at Gata No. 1 in Village Barthakorsi, Tehsil - Behat of Saharanpur District of Uttar Pradesh State.
6.2. As per the records, 6.2.1. Notice for E-tendering along with E-Auction was issued by the mining department on 01.11.2019. The lease area of the mine in question is one of the areas among the six areas for which the said auction notice was issued.
6.2.2. Letter of Intent (LoI) was issued by the district administration to the project proponent on 30.12.2019. The LoI was issued for 36 hectares mine lease area and for the period of 5 years. 6.2.3. The cluster certificate has been issued by the Mining department on 12.03.2020, wherein it has been noted that no mine is operational or a lease has been issued in 500 m from the periphery of the proposed mine lease area.
6.2.4. The public hearing for the project was conducted at the conference hall of Tehsil Behat on 19.10.2020.
6.3. The lessee had started mining after getting EC from SEIAA and permission from the Mining Department. During the visit, the project proponent's representative stated that sand excavation has been started on 04.04.2021, and mining work has been stopped on 30.06.2021.
6.3.1. The permission for mining has been granted by the mining department on 01.04.2021. 6.3.2. The mine proponent has sold the material till 30.06.2021. And it was informed that the mine was operated for 84 days, during which 3,77,748 m3 Sand/Bajari/Boulder minerals have been excavated.
6.3.3. The weighing bridge has been installed for weighing the amount of excavated material. The data generated through the weighing system is been submitted on the online portal.
6.3.4. As per the information provided by the project proponent, the excavated material has been sold to the stone crushers for further processing. The material has been sold to 44 different parties.
36.4. The mining department inspected the mine twice during June 2021 to verify the content of the complaint received to the district administration. The mine was found to be operational during the first inspection on 07.06.2021 whereas during the second inspection on 19.06.2021 the mining work was found to be closed. As per these inspection reports, excavation is been done through the machines and the depth of the excavation is around 2.8 m.
6.5. The proponent has carried out mining operations without Consent from UPPCB. They have submitted the online application for seeking Consent from UPPCB on 17.06.2021. Based on it, the UPPCB has issued a show-cause Notice to the mine on 09.09.2021. The environmental Compensation of Rs. 7,70,000/- is also been proposed for the period of 77 days (01.04.2021-17.06.2021) at the rate of Rs. 10,000/- per day in accordance with the methodology developed by the CPCB.
6.6. During the field visit the committee observed the following 6.6.1. The mining operations were closed. 6.6.2. The mine is yet to obtain Consent under Air and Water Acts from UPPCB and NOC from CGWA. 6.6.3. They have installed a weighing bridge near their camp office and also installed CCTV cameras along with one PTZ camera.
6.6.4. A setup for recording the data from the weighing machine and transferring it through the online portal is available near the weighing bridge. 6.6.5. The portion of the Yamuna River in which the mine in question is located forms the boundary between the states of Uttar Pradesh and Haryana. Though the exact point of the state boundary was not accessible, the concerned officer of the district administration (i.e. Lekhpal) informed that the interstate boundary is approx 500 meters away from the mine lease area. 6.6.6. No operational mine was sighted within a 500- meter distance from the said mine lease boundaries.
6.6.7. During the visit only two poles (C&D) were found at the site. The geo-coordinates of these two poles were verified and found to be in order. It was further informed that the remaining pole had been washed out from the site.
46.6.8. A DG set of 25 KVA was available near the camp office for power backup.
6.6.9. It was told that they have not installed any borewell and water requirement is being met by taking water tankers from nearby stone crushers. However, lending the use of water for industrial purposes is a violation of the rules.
6.6.10 Though the representative of the proponent claimed that they have done the plantation but any such plantation was not visible in the area.
6.6.11 As per the condition of EC, four Ambient Air Quality monitoring stations were supposed to be established in the core zone as well as a buffer zone. However, no such air quality station was found at the site.
6.6.12 The roads leading to the mining site have been badly damaged. Stone crushers and the mine in question are the major industrial activities located in this area and heavy vehicular transport is the major cause of damage to public roads.
7. In the EC issued to the mine proponent, they are permitted for the production of 7,56,000 m3/annum and 3360 m3 per day.
7.1. As per the undertaking given by the mine proponent, around 3,77,748 m3 of material have been excavated during the operational period.
7.2. It was also informed that out of 91 days (i.e. during 01.04.2021 - 30.06.2021), the mine production was kept closed for 7 days (during April 01-03, 2021, and June 20-23, 2021). Hence, mine production was carried out only for 84 days.
7.3. The project proponent has also provided daily production details. As per this data the quantity of daily production is varies between 11 m3 to 9194 m3. 7.4. The proponent has excavated excess than the prescribed daily production limit (i.e., 3360 m3) during 62 operational days and excavated around 133062 m3 excess quantity during those days. 7.5. Thus, in total they have excavated around 1,33,062 m3 excess material than the permitted quantity based on the daily limit.
8. The grounds for challenging the EC issued by SEIAA are mentioned in the Hon'ble NGT order is as given below 5 8.1. Grant of EC for area more than the area mentioned in the auction notice 8.1.1. The district mining office has issued notice for auction of 06 mine lease area on 01.11.2019. The mine area in question is listed at Sr No 5 in the tables given in Point No.1.
8.1.2. The mine lease area indicated in the notice is 36 hectares.
8.1.3. The SEIAA has issued TOR & EC to the proponent on 30.06.2020 & 26.03.2021 respectively.
8.1.4. The sanctioned lease area as per EC is also 36 hectares.
8.1.5. The geo-coordinates have been defined both in the auction notice issued by the mining department and EC issued by SEIAA.
8.1.6. All longitude mentioned in EC is attached with the abbreviation 'N', in place of desired abbreviation 'E'. This requires immediate correctness.
8.1.7. The geo-coordinates mentioned in EC defining mine lease boundary are alike for all points (i.e., Point A-H) with geo-coordinates mentioned in the Mining plan by Directorate of Geology and Mining dated 13.03.20202. However, the geo- coordinates mentioned in EC defining mine lease boundary are matching for five points (i.e., Point A-E) with geo-coordinates mentioned in the auction notice. However, geo-coordinates are not matching for three points (i.e., Point F-G). The above discrepancies are yet to be verified and needs to be corrected in sanctioned EC. 8.1.8. The geo-coordinates mentioned in EC defining mine lease boundary are matching for five points (i.e., Point A-E) with geo-coordinates mentioned in the auction notice. However, geo-coordinates are not matching for three points (i.e., Point F-G). 8.1.9. Thus, the geo-coordinate data mentioned in EC is not fully matching with the data mentioned in the auction notice. And it requires immediate attention for necessary correctness.
8.2. Mining being allowed in-stream and by mechanized methods 8.2.1. Open cast manual/semi-mechanized mining method is defined in the EC issued by SEIAA. 8.2.2. It was told by the proponent and the 6 Mining Inspector that heavy machinery has not been used in the excavation. Only Pokland machines have been used in mining.
8.2.3. The allotted mine area is plotted on the Google Earth software. As per the Google Earth image of November 2020, the allotted ease area (Pole A-H) spread across the stream of the River Yamuna. 8.2.4. Thus, the operation of the mining is semi-
mechanized but the allotted lease area needs to be reviewed with reference to the river course to avoid instream mining.
8.3. Cluster certificate dated 12.03.2020 being incorrect, ignoring that mining was already taken place within 500 mtrs (Even though across the river falling in Haryana) 8.3.1. On the day of the visit, any operational mine was not sighted within a distance of 500 mts from the mine lease boundary.
8.3.2. It was also informed by the Mining Department that within a distance of 500 meters from the said mine lease boundary, neither any mine is operational nor any lease has been allotted in the State of Uttar Pradesh.
8.3.3. As per the details provided by Mining Department, 'Bailgarh South Block/YNR B2' is the nearest mine located in the Haryana state. The coordinates as mentioned in the EC of the mine are used to measure the distance of this mine from the boundary of the mine in question. The distance between two mines is measured to be around 1.4 KM.
8.3.4. Thus, at present no operational mine is located within a distance of 500 m from the mine in question.
8.4. EC being granted without requisite replenishment study 8.4.1. It is informed by the proponent that the replenishment study is in process and yet not completed.
8.4.2. The condition regarding replenishment study has not been mentioned in the EC issued by SEIAA.
8.5. There being lack of due diligence ignoring that there are five FIRs for illegal mining against the Project Proponent 7 8.5.1. As per the information provided by the district administration, no such FIR for illegal mining is filed or pending against the project proponent.
8.6. Public hearing has taken place 20 kms away from the site 8.6.1. The public hearing was conducted on 19.102020 in the Conference Hall of Tehsil Behat. The place of the public hearing held is at a distance of approx. 12 KM from the mining site.
8.6.2. However, the UP Government has issued an office order on 23.04.2018 which is related to the environmental clearance for the river bed mining project. In the said office order, permission has been given to hold a public hearing in the Tehsil office for river bed mines located in remote areas. The said public hearing was conducted using this clause of the office order.
8.7. It is also stated that the mining has been commenced without requisite consent from the State PCB and there is also illegal groundwater extraction in violation of the EC conditions. 8.7.1. The mine was operated without obtaining the CTE and CTO, which is a violation/ non- compliance under EPA Act, 1986. With respect to provisions of Water Act, 1974 and Air Act, 1981 the project proponent is required to obtain CTE and CTO for mining operation and should comply with the conditions of Environmental Clearance. 8.7.2. UPPCB has issued a show cause Notice for the said violation and has also imposed Environmental Compensation of Rs.
7,77,000/-.
8.7.3. The mine was operated without obtaining NOC from CGWA. It was informed that they have not installed any borewell in the area, and they are borrowing the water from the adjacent industries. However, such kind of borrowing water supply for industrial purposes is a violation of the law. However, such kind of borrowing water supply for industrial purposes is a violation under EPA Act, 1986. And both borrower and lender are liable to face legal action.
9. As the mining lease area is less than 50 Hectare, the project falls in the category 'B' as given in the schedule- List of projects 8 or activities prior to EC, in the EIA Notification dated 14.09.2006.
9.1. As per the prescribed General Condition, any project or activity specified in Category 'B' will be treated as Category A if located in whole or in part within 10 km from the boundary of inter-State boundaries. 9.2. However, the said condition has been revised vide MoEF&CC Notification dated 14.08.2018. In this amendment the limit of mining lease area for consideration under Category- B project was extended to 100 hectares for non-coal mine lease. And it is also mentioned that the General Conditions shall apply except River bed mining projects on account of the inter- state boundary. 9.3. Considering this amendment in the Act, the said Project falls in the Category-B.
10. Environmental Compensation 10.1. Compensation for Non-compliance 10.1.1. UPPCB has imposed environmental compensation or Rs 7,70,000/- for operating the mines without consent for 77 days (01.04.2021- 17.06.2021) at the rate of Rs. 10,000/- per day.
10.1.2. However, the mine was operated for 84 days, and hence, environmental compensation will be 8,40,000/-
10.2. Penalty for unauthorized water usage 10.2.1 As the project proponent had informed that he is borrowing water from other industry/stone crusher, it is considered that he is accessing to illegal extraction of ground water.
10.2.2 Daily water requirement is mentioned as 18 KL in the EC issued by UPPCB.
10.2.3 In the guideline prepared by CPCB, a minimum penalty of Rs. 1,00,000 kept for mining in case of extraction of groundwater without permission.
10.2.4 Hence, the project proponent is liable to pay Rs. 1,00,000/- for accessing illegal water supply.
10.3. Penalty for extraction of excess quantity materials 9 10.3.1 As explained at Sr No. 7 above, they have extracted 1,33,062 m3 excess quantity than the permitted, based on the daily limit prescribed in the EC issued by SEIAA.
10.3.2 For the calculation of environmental compensation, the risk factor is considered significant considering the impacts related to bed degradation, bank erosion, variation in flow energy, disturbance to flora & fauna, and inter-state boundary location. 10.3.3 The market value is considered as Rs 400/-
per m3 10.3.4 Then the compensation will be = D X (1+RF+DF) = 1,33,062 X 400 X (1+0.3+0.75) = Rs. 10,91,10,840/-
10.4. Total Compensation and penalty will be = 8,40,000 + 1,00,000 + 10,91,10,840 = Rs. 11,00,50,840/-
11. Recommendations: The nominated joint committee visited the site to verify the present scenario and based on the field observations/records made available the following is recommended 11.1. The mining operations should not allow to restarting till, 11.1.1 Obtaining Valid consents (CTE and CTO) under Air Act, 1981 & Water Acts, 1974 from UPPCB.
11.1.2 Obtaining NOC from CGWA for groundwater extraction.
11.1.3 Obtaining Amended EC from SEIAA as per revised geo-coordinates.
11.1.4 Conducting replenishment study and submission of the report 11.2. Clarification can be sought from SEIAA regarding the difference in the geo-coordinates mentioned in the EC and geo-coordinates mentioned in the auction notice. If required, SEIAA can be asked the amend the EC issued by them.
1011.3. SEIAA can be asked to review the EC issued by them in order to ensure that the instream mining could not be allowed.
11.4. The mine proponent and stone crushers located in the area can be asked to construct the village roads in the area under the supervision of the district administration.
11.5. UPPCB can be asked to initiate action against the stone crusher who is lending the water supply to the mine in question. The proponent is liable to pay Rs. 11,00,50,840/- as a compensation and penalty for operating mine without consent from UPPCB, NOC from CGWA and carrying out excess excavation."
5. Stand of the SEIAA, UP does not respond to the observations of the joint Committee report.
6. The stand of the PP is that there is no violation as the PP has been granted EC. In its reply, the PP has made following averments in response to the joint Committee report:-
"D. OBJECTIONS TO JOINT COMMITTE E'S REPORT DATED 26. 10.2021;
I. As regards the report submitted in terms of the Hon'ble Tribunal's order dated 09.06.2021, the answering respondent, with immense reverence submits that one of the recommendations (amongst six other) made by committee was imposition of EC of about Rs. 11 Crore, which per-se is without any factual or legal basis, liable to be set-aside forthwith being based upon intrinsically frivolous ground, II. The very basis of recommendation of EC is inherently absurd and the same is impregnate of passing judicial scrutiny, III. The 'Project Proponent', was never afforded an opportunity to explain before this illogical recommendation was made behind its back in stark violation of principles of Natural Justice, IV. A bare reading of the recommendations make it abundantly clear that these have been made with a predisposed mindset just to nonsuit proponent and negate its rights emanating from his having been declared successful in e-auction, V. It is apparent that the recommendation has been made unfairly,
- un justly the same is undefendable and is causing tremendous loss in terms of time and money both, depletion of 11 opportunity since the lease has been granted by the State Government for a limited period and much time has been lost due to 'Covid' restrictions, VI. The Committee was in complete oblivion that the 'Environment Clearance' granted by SEIAA, in no manner puts any fetters over the 'Contractual Rights' or curtails it simply because it is bound by the terms of the Contract between the State Government on one hand and Lease-holder on other (contracting parties) which confers rights in favour of the respondent, after having received valuable consideration, for 7 ,56,000 cubic meter production per annum within 225 working days further 373 Trucks per day 'Depending on market demand'. The above clarifies that per day production is only by way of rough estimation and does not put cap on daily production. Secondly, it is matter of common knowledge that precious working days have been lost in current year due to 'Covid19' restrictions apart from non-operation of mining activity during Monsoon period. The natural corollary of the above is that the production per day has to be increased to meet the targeted production in one year. This explanation is in line with the scientific requirement of mining activity the prime most reason wherefor is prevention of 'Diluvium' (superficial deposits formed by constant flow of water) of river-banks and may lead to disturbance of environmental and ecological balance; whereby large areas of human habitation would become dangerously prone to inundation from river waters, VII. That the per day production is directly correlated to 'market demand'; also stipulated in the EC itself, which inheres that he production may go up or down in accord with the market condition and not adhere to any particular set limit, as erroneously inferred by the committee, VIII. Further, the answering respondent craves leave of the Hon'ble Tribunal to present factual aspects relevant for this purpose, which are;
a) As a matter of regulatory aspects, the R.Q.P ., QCI/NABET consultant, Project Proponent (Lease Holder), SEIAA/SEAC of UP, DGM-UP prepares/ considers conceptual proposals of 250 to 275 days production except monsoon period for RBM leases.
b) The conceptual proposal envisages environmental impacts happening due to annual production. As a matter of generic practice, they also report "Average Production per day" in their plans which basically is a "notional per day average value" of production.
c) The lease holder prepares EIA and conducts public hearing based on the maximum impact on environment for achieving annual production quantity sanctioned as per Letter of Intent (LoI). This EIA document is prepared so that 12 lease holder commits that he has analyzed and regulated maximum environmental impacts on yearly production basis, which he shall never violate.
d) Further, State Mining Department (UPMMCR policy) provides for Stock Licenses as per which, permission to excavate and stock of mineral is expected / permitted prior to monsoon season to ensure availability of minerals uninterruptedly.
e) The stocking of minerals requires substantial volume of excavations which is irrespective of average per day production clause.
f) The 'Behavioral Dispatches' & 'Prevalent Market Condition' compels that per day production is governed by several factors i.e. dependence on 'COVID-19' restrictions, availability of labour, demand of market (local sand/morrum mandi) and huge quantity of stock licenses before monsoon, issued by District Magistrate in exercise to UP Minerals (Prevention of illegal mining, transportation and storage) Rules , 2018.
g) Further, the River Bed Mining (RBM) mines does not operate on day to day basis and their per day production are totally dependent on the demanded quantities by local crushers.
h) Moreover, as state of UP has a policy of mineral stocking / storage before monsoon, it is but natural that leases cannot be stopped for 3 months in order to comply the norms of notional per day production clause. As doing do shall be non-behavioral and create a legal challenge for UP storage policy.
IX. Because it is trite law "Actus Curiae Neminem Gravabit" and the principle has been applied by the Hon'ble Supreme Court with full vigour in letter and spirit impartially to all those who comes before it. The Hon'ble Supreme Court has elucidated the maxim in the case of U.P. SRTC v. Imtiaz Hussain, reported as (2006) 1 sec 380 at page 383, in the following words;
"8. The basis of the provision under Section 152 of the Code is founded on the maxim "actus curiae neminem gravabit' i.e. an act of court shall prejudice no man. The maxim "is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law", said Cresswell, J. in Freeman v. Tranah [12 CB 406 : 138 ER 964] (ER p. 967). An unintentional mistake of the court which may prejudice the cause of any party must 13 and alone could be rectified. In Master Construction Co. (P) Ltd. v. State of Orissa [(1966) 3 SCR 99 : AIR 1966 SC 1047] it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.
9. The maxim of equity, namely, actus curiae neminem gravabit - an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey [(1987) 4 SCC 398], Gursharan Singh V. New Delhi Municipal Committee [(1996) 2 sec 459] and Mohd. Gazi v. State of M.P. [(2000) 4 sec 342]. The principles as applicable to Section 152 CPC are clearly applicable to Section 6(6) of the U.P. Act. In the aforesaid background the Labour Court was not justified in modifying the award as was originally made. The High Court also had not considered this aspect and decided the writ petition filed by the present appellant on issues other than this vital issue."
7. That the Petitioner most earnestly believes that this Hon'ble Tribunal would not be loath in correcting an unintentional wrong that has occasioned to the answering respondent, which, if not set right, will ruin them without there being any fault on their part and that the State would not be able to perform and 14 honour its obligation and commitments made to its citizen besides honouring a contract for which it has already received a gigantic consideration.
8. It is most respectfully submitted that no fault can be found with the environment clearance dated 26.03.2021 and that the State is contractually bound to honor its contract granted in accordance and after following established procedure and in so far as the frivolous allegations are concerned, the same are factually wrong as stated above."
7. We have heard learned counsel for the parties. It is clear from the report of the joint Committee (Para 6.5) that the mining operations were conducted without requisite consent. Show cause notice was given to the PP and compensation proposed. It is also seen from para 6.6.9 that claim of the PP is that water requirement was being met from tankers from nearby stone crushers but lending of use of water was violation of Rules.
No plantations were visible. The PP has excavated excess mined material beyond the permitted quantity. Mining was taking place within 500 meters and cluster certificate dated 12.03.2020 was incorrect. The ground water extraction has taken place without requisite NOC from CGWA. These findings are not in any manner shown to be erroneous. We accept the report to the extent of the violations found.
8. However, we find the assessment of compensation for illegal extraction of ground water and for operation without requisite consents to be inadequate. The same need to be calculated with reference to the cost of remediation and financial capacity of the PP which has not been done. In this connection, reference is made to the order of the Tribunal dated 26.02.2021 in O.A. No. 360/2015, National Green Tribunal Bar Association v. Virender Singh (State of Gujarat) & Ors. Relevant part of the order is as follows:-
15"1to9....xxx................................xxx...................................xxx
10. Vide order dated 17.08.2020, the Tribunal considered the CPCB report dated 30.01.2020, in pursuance of earlier orders on scale of compensation to be recovered for violation of norms for mining on polluter pays principle and the matter was deferred for further consideration of such scale and further orders in the light of the EMGSM 2020. On the issue of scale of compensation for violations, the Tribunal held that the same has to be calculated having regard to the polluter pays principle and not mere loss of royalty. This requires taking into account value of the illegally mined material and cost of restoration of the environment. CPCB did the exercise by constituting an expert Committee. The Tribunal considered the report as follows:-
"8. The Committee considered two approaches: (I) Approach 1: Direct Compensation based on the market value of extraction, adjusted for ecological damages.
(II) Approach 2: Computing a Simplified NPV for ecological damages.
9. In the first approach, the criteria adopted is:
Exceedance Factor (EF).
Risk Factor (RF).
Deterrence Factor (DF).
10. Approach 1 is demonstrated by Table 1 as follows:" Table No. 01: Approach 1
Permitted Total Excess Exceedance in Compensation Charge Quantity Extractio Extraction Extraction: (in Rs.) (in MT or n (in MT (in MT or m3) m3) or m3) X Y Z = Y-X Z/ X D * (1+RF + DF) Where D = Z x Market Value-of-
the-material-per-MT-or-m3 DF = 0.3 if Z/X = 0.11 to 0.40 DF = 0.6 if Z/X = 0.41 to 0.70 DF = 1 if Z/X >= 0.71 RF = 0.25, 0.50. 0.75, 1.00 (as per table 2) "
11. Approach 2 is demonstrated by following formula:
"Till such time as data and information for a comprehensive NPV is worked out in a site specific manner to account for all (or atleast the major) ecological damages, a simplified NPV, proxied on the market value of the illegally extracted amount may be computed. In this case the NPV approach would imply that the total benefits from the activity of sand mining (as represented by the market value of the extracted amount) be deducted from the total ecological costs imposed by the activity. In the absence of data on benefits 16 and costs separately, we recommend a modification of the formula as shown below:
Total Benefits(B) = Market Value of illegal extraction : D (refer Table 1) Total Ecological Costs = Market Value Adjusted for risk factor: D ✱RF (refer Table1).
For present purposes, it is assumed that the Benefits would accrue only in the first year (in which the extraction of the illegally mined material takes place), while the ecological costs would continue to be felt over a period of time. NPV is to be calculated for a period of 5 years on the net value, Σ (C- B), at a discount rate ranging from 8%-5%, varying in inverse with the risk factor. Thus, where the highest risk factor (say 1) is applicable, the discount rate applicable would be the lowest (say 5% in this case)."
12. Final recommendation is as follows:
"Thus, it is recommended that the annual net present value (NPV) of the amount arrived at after taking the difference between the costs and the benefits through the use of the above approach, maybe calculated for a period of 5 years at a discount rate of 5% for mining which is in a severe ecological damage risk zone. The rationale for levying this NPV is based on expert opinion that reversal and/or restoration of the ecological damages is usually not possible within a short period of time and rarely is it feasible to achieve 100% restoration, even if the sand deposition in the river basin is restored through flooding in subsequent years.
The negative externalities of the mining activity are therefore to be accounted for in this manner. Ideally, the worth of all such damages, including costs of those which can be restored should be charged. However, till data on site- specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorization charged. However, till data on site- specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorisation is unavailable or pending calculation, the following Discount Rates may be considered:
Severity Mild Moderate Significant Severe Risk Level 1 2 3 4 Risk Factor 0.25 0.50 0.75 1.0 Discount 8% 7% 6% 5% "
Rate
11. Annexure-A appended to the report gives the calculation as f follows:
"Compensation Charge (Scenario II - explicit accounting of NPV) Market Value of Illegally Mined Material (D) 5000*400 = 2000000/-17
Annual Value of Foregone Ecological Values D*RF = 2000000/-
Present Value of Foregone Ecological Values (@ 5% discount rate and over 5 years) PV = ∑ = ∑(2000000) + (2000000) + (2000000) + (2000000)+ 2000000) (1+0.05)1 (1+0.05)2 (1+0.05)3 (1+0.05)4 (1+0.05)5 = Rs.
86,58,953/-
Net Present Value (after netting out market value of illegally mined material) -
i.e., Total Compensation to be levied
= NPV=PV-D
= Rs. 66,58,953/-
Compensation Charge in above case:
Approach 1
(no explicit accounting of NPV) Approach 2
(explicit accounting of NPV)
D*(1+RF+DF) @ 5% discount rate and over 5 years
Rs. 46,00,000/- Rs. 66,58,953/- "
12. The Tribunal directed undertaking of scenario analysis, as suggested on behalf of the applicant and to furnish a further report accordingly. Further report dated 12.10.2020 has been filed by the CPCB reiterating its earlier report. We propose to approve approach-2 in the report. Apart from the above, a report dated 15.01.2021 has been filed by the Oversight Committee for the State of UP1 to which reference will be made later.
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17. Again, in Goa Foundation, supra (prs 74-76) it was observed that mining was required to be regulated not only by the Mining department but also by the PCBs under the Water and Air Act and by the MoEF under the EP Act. It is made clear that the environment laws override other laws and any provision to the contrary in the Mines Act will not stay in the way of enforcing the environment norms. In this regard reference may also be made to report of the Ministry of Mines entitled "Sand Mining Framework" which will not stand in the way of modified mechanism in accordance with this order."
9. Accordingly, the State PCB may appropriately enhance the compensation for illegal extraction of ground water and conducting 1 constituted by this Tribunal to oversee compliance of environmental issues, on suggestions of the State Government.
18mining without requisite consents within two months, following due process of law.
10. The assessed compensation may be deposited by the PP within two months with the State PCB to be kept in a separate account and utilized for restoration of environment by preparing a restoration plan by joint Committee of CPCB, State PCB and District Magistrate, Saharanpur.
Restoration plan may include plantation, air quality monitoring system, restoration of roads. The Committee may also oversee the execution of the restoration plan, involving appropriate agencies.
The application is disposed of.
A copy of this order be forwarded to the CPCB, State PCB and District Magistrate, Saharanpur by e-mail for compliance.
In view of order in the main matter, I.A. No. 20/2022 also stands disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM May 10, 2022 Appeal No. 15/2021 (I.A. No. 22/2022) A 19