National Green Tribunal
Devesh Deshmukh vs Madhya Pradesh State Environment ... on 5 October, 2020
Item No. 05 (Bhopal Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Appeal No.05/2020 (CZ)
(I.A. No. 65/2020)
Devesh Deshmukh Appellant(s)
Versus
MPSEIAA & Ors. Respondent(s)
Date of reserved: 05.10.2020
Date of uploading: 08.10.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Appellant(s) : Mr. Shreyas Dharam Adhikari, Advocate
For Respondent(s): Mr. Pinaki Misra, Advocate
Mr. Ayush Anand, Advocate
Ms. Parul Bhadoria, Advocate, SEIAA
Mr. Sanjay Upadhyay, Advocate for-R-5
Mr. Enosh George, Advocate for-R-4
Ms. Eisha Kishan, Advocate
ORDER
1. By filing this appeal, the appellant has challenged the grant of Environmental Clearance (EC) transferred on 11.06.2020 for 13 quarries on the ground that EC has not been granted under the required procedure established by law and with further prayer to restrain respondent no.5 from carrying mining operations of the 13 quarries leases as mentioned in Table of para 4 on the ground that prior to the enforcement of the Sand Rules 2019 the already earmarked leases of mineral sand were being operated by various Gram Panchayats & private contractors and the same is un-disputed but after the above rule was brought into force, all the leases were auctioned by the State Government 1 which included the leases operated by the Panchayats & the local bodies. These leases granted to Panchayats/local bodies were for a period of 5 years and the EC granted to them was also for a period of 5 years i.e. from 2017 to 2022 and further that on bare perusal of the EC granted in favour of respondent no.5 by virtue of power given under clause 11, it is crystal clear that NOC was never taken from the (earlier project proponent to whom prior EC was granted), in fact the NOC has been given by either the Mining Officer or the CEO in the office of the Collector Chattarpur in blatant violation of the condition precedent under the Clause 11 of the EIA Notification.
2. The applicant further submits that with the intent to make illicit gain, the project proponent has not disclosed complete facts before the respondent no.1, as the Clause 11 will not be applicable for the above mentioned 13 quarry leases as they were either surrendered or cancelled before the Sand Rules 2019 were notified (30th August, 2019) or the NIT was even issued and as per the standard condition mentioned in the above EC clearly stipulated that the EC is granted for the lease period and by virtue of the surrender or cancellation of the lease the period of lease also comes to an end and as such the project proponent should have applied for the grant of fresh EC rather the project proponent has taken short cut by concealing the above fact from the authorities and as such the EC transferred by the SEIAA is bad in law.
3. The Madhya Pradesh State Mining Corporation issued NIT for the various Districts of Madhya Pradesh including District Chhindwara and the same was awarded in favour of the respondent no.5 in reference to 58 sand quarries situated in District Chhindwara (M.P). The NIT i.e. notice inviting tender for lifting, selling of mineral sand for the various districts in the State of Madhya Pradesh was issued by the State Government of 2 Madhya Pradesh vide NIT dated 05.10.2019 which included the District Sehore & Bhind (M.P). It is pertinent to point out at this juncture that in the instant NIT Two (2) types of leases of sand were put for auction:
A. Fresh Lease (Demarcated/Identified for the first time) B. Already Operational Lease (Operated by Panchayat/local bodies).
4. Prior to the enforcement of the Sand Rules, 2019, the already earmarked leases of mineral sand were being operated by various Gram Panchayats & private contractors (Type B) and the same is un-disputed but after the above rule was brought in force, all the leases were auctioned by the State Government which included the leases operated by the Panchayats & the local bodies. As these leases granted to Panchayats/Local Bodies were for a period of 5 years, the EC granted to them was also for a period of 5 years i.e. from 2017 to 2022.
5. It is pertinent to mention at this juncture that as per the EIA Notification 2006 Clause 11, the power has been given to the Competent Authority to transfer the EC earlier granted. Clause 11 being relevant is being reproduced below:-
"Clause 11 Transferability of Environmental Clearance (EC):
A prior environmental clearance granted for a specific project or activity to an applicant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferor, or by the transferee with a written "no objection" by the transferor, to, and by the regulatory authority concerned, on the same terms and conditions under which the prior environmental clearance was initially granted, and for the same validity period. No reference to the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned is necessary in such cases."
6. It is argued that as per the standard condition mentioned in the above EC clearly stipulated that the EC is granted for the lease period and by virtue of the surrender or cancellation of the lease, the period of lease 3 also comes to an end and as such the project proponent should have applied for the grant of fresh EC rather the project proponent has taken short cut by concealing the above fact from the authorities and as such the EC transferred by the SEIAA is bad in law.
7. The matter was taken up on 30.06.2020 and the Tribunal directed as follows:-
"
1. By way of filing this appeal, the applicant has challenged the order dated 11.06.2020 passed by respondent no. 1, MP SEIAA and alleged that the order was passed in violation of the EIA Notification regarding transferability of EC.
2. Issue Notice to respondent no. 1,2,3 and 4 to submit their replies within four weeks. The applicant is directed to take steps for service to the respondents within three days by both ways, Dasti as well as registered post and on available email.
3. Respondents are directed to reply on email of NGT at judicial-
[email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
4. Learned Counsel for the applicant, Shri Pinaki Misra has argued that in case of surrender of lease and the mining is allotted to other proponent, then fresh EC is required but SEIAA without application of mind is using and transferring the EC, in violation of terms of Notification. The State PCB is directed to monitor the case and in case of such use and found to be in violation of Notification, remedial action be immediately taken and matter be reported to the Tribunal. The EIA Notification must be complied with.
List this matter on 30th July, 2020."
8. In compliance thereof, the joint committee submitted a report which is as follows:-
"
3. MPPCB is a Board constituted under water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 198I and performed its functions as defined under these Acts. Therefore committee has examined the issue based on the documents/minutes available on MPSEIAA website and EIA Notification, 2006.
5. Following prayer is made by applicant:
4
A. Call for entire records pertaining to EC granted in favour of Respondent no.5 of the 13 Sand quarried leases as mentioned in Table of Para 4.
B. Restrain the Respondent no.5 from carrying Mining Operations of the 13 quarried leases as mentioned in Table of para 4.
C. Quash the order for the grant of Environmental Clearance Transfer dated 11/6/2020 for 13 quarry leases, being erroneous as it has not been granted under the required procedure established by law.
D. To direct, that the responsibility of the erring officials of the respondents should be identified and exemplary cost should be imposed on them.
E. Any other suitable order in favour of the appellant.
6. Following are the l3 sand quarries mentioned by PP in Table of Para 04 of appeal:
S. Name of Sand Earlier Project NOC under
No. Quarry Proponent clause 11 given
by
1. Goreghat Quarry Sarpahch/Sachiv CEO
2. Raihari Borgao M/s. SR Trade Mining Officer
3. Sawanga Sarpanch/Sachiv CEO
4. Rangari Gram Panchayat CEO
5. Kaialwani Narendra Singh Mining Officer
Chauhan
6. Patniya M/s. Ketan Mining Officer
Traders
7. Nartbhayapur Vikas Kumar Mining Officer
Miglani
8. Awariya Gram Panchayat CEO
9. Bakmukasa Vijay Chauhan Mining Officer
10. Rohana M/s. Sainik Food Mining Officer
Pvt. Ltd.
11. Chatni Shri Mukesh Mining Officer
Sharma
12. Suriya Bhuriya Gram Panchayat Mining Officer
13. Jatma Vikas Kumar Mining Officer
Miglani
7. All the above 13 cases of EC transfer were discussed in the 615th SEIAA meeting dated 08/06/2020 and the minutes were downloaded from their website at http://mpseiaa.nic.in/pdfs/Minutes_SEIAA615_08062020.pdf.
8. As per the 615th SEIAA meeting dated 08/06/2020 following documents (For an example in case of a sand query in an area of 06.00 ha, capacity 1,10,000 cum/year at Khasra no. 06 village Rajhari Borgaon, Tehsil- Sausar, Dist- Chhindwara (MP) were considered by SEIAA before transfer of lease for above l3 cases. A. No objection letter of previous project proponent (to whom prior EC was granted) issued by Shri Manish Palewar, District 5 Mining Officer, Dist. Chhindwara for transfer of prior EC on behalf of M/s. S.R. Traders, Shri Atul Goldal, 12 Metro plaza Bittan Market, Bhopal Distt. Bhopal.
B. Notarized affidavit of Shri Shishir Khandar, Samashish Bhavan, 18, Malik Complex, Tenament Hotel, Airport Centre point, Somalwada Wardha Roadm, distt. Nagpur, Maharashtra - 440025, mentioning that no legal action has been initiated against the mine till date and commitment to comply all the standard and specific conditions stipulated in the prior EC issued.
C. Copy of Prior EC issued by SEIAA vides L. No.
4749/SEIAA/16 dated 13/12/16.
D. Copy of Environmental Management plan of Shri Shishir
Khandar, Samashish Bhavan, 18 Malik Complex, Tenament Hotel, Airport Centre Point, Somalwada, Wardha Road, dist. Nagpur, Maharashtra-440025.
E. Copy of Approved Mining plan with Replenishment plan of Shri Shishir Khandar Samashish Bhavan, 18 Malik Complex, Tenament Hotel, Airport Centre Point, Somalwada, Wardha Road, dist. Nagpur, Maharashtra-440025.
F. Lease transfer order issued by Mineral Resource Department to Shri Shishir Khandar Samashish Bhavan, l8 Malik Complex, Tenament Hotel, Airport Centre Point, Somalwada, Wardha Road, dist. Nagpur, Maharashtra-440025 vide letter No. 1893/132/2020/12/1/dated 11/5/2020.
9. As per Annexure A/3 of petition, Government of Madhya Pradesh has e-auctioned the sand leases of various districts under Mines & Minerals (Development & Regulation) Act, 1957 and Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019 from the date of agreement to 30th June, 2022. It is apparent that all the sand mine leases of District Chhindwara which are e- auctioned, by Mineral Resource Department,(MRD) Government of MP to successful bidders. Here, committee has also sought the information of status of leases (freshly allotted or transferred) from Mineral Resource Department, GoMP.
10. From the perusal of 615th SEIAA meeting dated 08/06/2020, it is evident that ECs of 13 cases (as mentioned in column no. 07) were transferred by SEIAA with the same terms and conditions under which the prior environmental clearance was initially granted, for the same production capacity and validity period after PP has submitted an application in form-l, NOC of transferor (Concerned CEO/District Mining Officer), Lease transfer order issued by Mineral Resource Department in favour of PP. An affidavit by the transferee that no legal/credible action is initiated against the mine and commitment to comply all standard and specific conditions stipulated in the prior EC issued, EMP, approved mine plan and replenishment study.
11. Currently the Officer of Collector, Chhindwara issued an order vide letter no. 3126 dated23/06/2020 to all the sand mining operations 6 of the district Chhindwara are restrained during the rainy season from 30/06/2020 to 01/10/2020.
12. The information regarding status of leases (freshly allotted or transferred) was sought from the Principal Secretary, Mining Department, GoMP vide letter dated 22/07/2020 instead, the information is provided by Mining Officer, Karyalaya Collector (Khanij Shakha) District Chhindwara vide letter dated 30/07/2020 regarding status of leases is enclosed.
13. Thus committee after considering the documents/minutes (as mentioned in point number 08) observed that SEIAA has transferred the EC on the same terms and conditions, production capacity and validity period under which the prior environmental clearance was initially granted.
14. Currently, all the sand mining operations are prohibited since 30106/2020 to 01/10/2020 due to rainy season by officer of collector, Chhindwara".
9. The respondent no.1- Madhya Pradesh State Environment Impact Assessment Authority (MP SEIAA) has submitted the reply which is as follows:-
"6. That, answering respondent has followed the requirements of para 11 of the EIA Notification in its true letter and spirit while deciding the applications filed for the transfer of mining leases. While dealing with the cases of the transfer of EC and para 11of the EIA Notification, the most important environmental concern is that, there should be no change in the terms and conditions under which the prior environmental clearance was initially granted, and transferred EC shall also be valid for the same validity period. The same has been ensured by the answering respondent while deciding the applications.
7. That, the applications for the transfer of EC are filed along with the letter from the State mining department regarding the transfer of the mining lease, notarized affidavits of the previous and new project proponent, replenishment plan and revised EMP [Environment Management Plan]. In the present case also, these documents were filed along with the transfer applications of the questioned 13 quarry leases.
8. That, two main contentions have been raised by the appellant in the present appeal. The first contention is that the NOC/written consent has not been issued by the appropriate party and the second contention is that, few of the leases were cancelled/ surrendered and therefore these ECs cannot be transferred.
9. As far as the contention raised by the appellant with respect to the issue of NOC by the CEO of the Janpad area or the mining officer is concerned it is pertinent to note that all mining leases in the State 7 are owned by the State Government. These mining leases are granted to panchayats, private companies or individuals. State Government is legally empowered to give NOC on behalf of their lessee. ECs in 5 out of the 13 mining leases were obtained by the respective Gram Panchayats, and remaining 8 ECs were obtained by private parties.
"Rule 26(2)(b) of the Sand Mining Rules 2019 reads as under:-
"All statutory clearances of sand mines transferred to Panchayats will be transferred in favour of new group contractors. For this the Chief Executive Officer of the Janpad area of the Panchayat is authorized to issue NOC/ consent to the capacity of transferor in the mines transferred under the earlier rules to the Panchayat".
10. Accordingly, in the cases where original EC was granted to the Gram Panchayat/ Sarpanch, the CEOs of the Janpad area are authorized to issue the NOCs, hence, their NOCs are accepted by SEIAA while dealing with the transfer applications.
11. Also that, an office memorandum dated 14.01.2020 was issued by SEIAA stating that, the NOC can be given by the main lessee or the sub lessee considering ownership of State Government.
12. The second contention raised by the appellant is that, these 13 quarry leases cannot be transferred as they were either surrendered or cancelled before the Sand Rules 2019 were notified [30.08.2019] or NIT was issued. It is stated that, the applications for the transfer of EC were decided by the answering respondent relying upon letters issued by the State mining department regarding the transfer of EC to the new project proponent".
10. It is argued that State Government has issued the letter of transfer/allotment of sand mines to the respondent no.5, under prescribed under Sub Rule 2 of Rule 26 and Rule 12 of Sand (Mining, Transportation, Storage and Trading) Rules, 2019.
11. The respondent nos. 4 and 7 has filed the reply which is as follows:-
"
15. That the averments made under the heading "Facts in Brief" in Para No. 9 of the Appeal are completely false and are hence denied. 'The Appellant has failed to interpret the provisions of the Madhya Pradesh (Sand Mining, Transportation, Storage and Trading) Rules 2019 (Herein after stated as "Rules of 2019" for the sake of brevity) and the notification of 14.09.2006 in the correct spirit and intent. The 8 NOC's for four sand mines have been issued by the CEO of the Janpad Panchayat in accordance with the Rules 2019 as described under Para No. 4 of the Appeal under the heading "Facts and Brief". Similarly the NOC for the 09 mines of which the earlier project proponents were private contractors were issued by the Respondent No. 7 in accordance with the Rules 2019 and the EIA Notification 2006. It is essential to state here that the Appellant has wrongly stated the district as "Chhatarpur" and the same must be read as "Chhindwara". These 9 sand quarries were not given on lease but were trade quarries and the contractors surrendered them back to the Respondent No. 4 State of Madhya Pradesh hence the Respondent No. 7, the competent officer has duly issued the required NOC's. This act of the Respondent No. 7 is not in violation of any rules or regulations and is in accordance with the spirit of the Rules of 2019 and EIA Notification 2006.
16. That the averments made in Para No. 10 under the heading "Facts in Brief" are completely false and have been stated in complete ignorance of the Rules of 2019. The Appellant has failed to take cognizance of the second proviso of Rule 5(2) of the Rules of 2019. The 13 quarries mentioned Para No. 4 under the heading "Facts in Brief" were operational and auctioned before the Rules of 2019 were notified. These 13 quarries were not leased out, but were trade quarries. 9 out of these 13 quarries were allotted by open auction. It is completely false and illegal that the clause 11 is not applicable upon the 13 quarries described under Para No. 4 of the Appeal. Under the heading "Facts in Brief" the Appellant has deliberately misled the Hon'ble Tribunal and has deliberately misinterpreted the contents of Annexure-A/4. This is clearly stated in Annexure-A/4 that the contractor has surrendered the quarries. Nowhere the word "lease" has been used in the Annexure-A/4, neither the word "cancellation" is visible in the same. The fact is that, the 13 quarries were trade quarries and were never leased out to the earlier project proponent. The earlier project proponent surrendered the 9 quarries to the Respondent State which has all competence to issue the NOC through the Respondent no.7.
17. That the averment's made in the Para No. 11 under the heading "Facts in Brief of the Appeal are completely false and illegal and are hence denied completely. Since the quarries under question were never leased out to the earlier project proponent, entire averments made under this para are completely irrelevant. Further the entire averments made under this paragraph are in complete ignorance of clause 9 of the Notification 2006. The other averments made in this para are not concerned with the answering Respondent and hence need no reply.
22. That the averments made under the heading "Grounds of the Case"
in Para No. 1 are completely baseless and have no legal basis. The quarries mentioned in Paras No. 4 of the Appeal under the heading 9 "Facts in Brief" were never given on lease to the earlier project proponents and were trade quarries and were operational before the Rules of 2019 were notified. It is completely false that lease for a limited period of 5 years were granted to the Panchayat/local bodies and hence in this situation the provisions of Notification 2006 are applicable on these sand quarries. The fact is that the EC is valid for the period as specified in the EIA Notification 2006 and has not expired as alleged by the appellant.
25. That the averments made in Para No. 4 under the heading "Grounds of the Case" have been stated ignoring the correct interpretation of the EIA Notification 2006 and second proviso to Rule 5 (2) of the Rules 2019. The Respondent No. 7 vas competent to issue the NOC after the trade quarries were surrendered by the earlier project proponents. The earlier project proponents were not the lease holders and the sand quarries were simply allotted to them by way of open auction by the Respondent No. 4."
12. The Respondent no.5- Shishir Khandar has submitted his reply which is as follows:-
"
15. Para no. 3 of the Appeal is an admitted fact on behalf of the Appellant that he is a sand contractor in the same area of Chhindawara District, MP. The Appellant is an interested party and seeking to achieve his personal gain and satisfy his business rivalry with Respondent No. 5 by filing the present Appeal and is never involved with any cause of conservation of nature and environment as claimed in Para 3. It is submitted that the Appellant is a business rival of the Respondent No. 5 and operates in very small amount of legal mining in the area. The area (Baradevi) for which he has been allotted leases for mining is regularly being reported with the incident of illegal sand mining operations. Apparently he has filed the present Appeal only to make a hindrance to the legal mining contract/lease awarded in favour of the Respondent No. 5 for his personal unlawful gain through the illegal sand mining network working in the area.
20. In Para 8 of the Appeal the Appellant stated that the NOC duly given by the Project Proponent in whose favour the EC was earlier issued is an essential condition of Clause 11 of the EIA Notification. It is submitted that the requirement of the clause 11 has been fulfilled while issuing the impugned Order. Clause 11 is an enabling provision for the State to transfer the Environment Clearance for any approved and subsisting period to any other project proponent. The Word used 'may' and also at the end of the clause the exemption given provides further relaxation is an indication for that. 10
21. Para 9 of the Appeal is not a correct interpretation of the law and also factually denied. The No Objection Certificate has been duly obtained by the Respondent No. 5 from the Gram Panchayats under Clause 11 in whose favour EC was issued earlier while transferring the EC for 5 mines and for the rest 8 mines the NOC was given by the Mining Officer as required and asked by the Respondent No. 1. It is submitted that for all these 13 mines which was not in operation, majority of private mines were surrendered their lease or their lease license has been cancelled.
22. In the absence of Private Party whose lease has been cancelled or surrendered there is no requirement in getting NOC from a private contractor who has already abdicated its duty. The NOC has been duly obtained by the Mining Officer and Concerned Department in this regard as required by the Respondent No. 1. There is no fault of the Respondent No. 5 and he is being harassed on mere technical clause which is not mandatory.
23. In reply to the Para 10 of the Appeal it is being stated that it is nowhere required or provided that once the lease has been cancelled for one party, the Owner, i.e. State cannot grant the lease to another party for the rest of the period of project and for utilization of the duration of EC under the same condition. For the very same purpose Clause 11 of the EIA notification has been inserted to cure the difficulty in case if earlier project proponents surrender his lease or upon cancellation of his lease or in case of abdication of duty to not repeat the same lengthy exercise of EIA. Therefore, the NOC given by Mining Officer and Panchayat Sachivs and Collectors on their behalf is valid and within the requirements of Clause 11 of the Notification.
29. The Respondent No. 5 after successful bidding for the 58 sand mines in the Chindwara District has been awarded with the contract/lease for query from the State in the said 58 mines on 07.03.2020. Thereafter, to give it an effect on 16.03.2020, Respondent No. 5 wrote a letter to the Mining Officer, Chindawara for transferring the sand quarry, which is not in operation but which has the earlier approval or statutory permissions in this regard. On 18.03.2020, Respondent No. 5 approached the Mining Officer for changing the name in the mining plan issued on the name of Gram Panchayat. On 18.03.2020, District Collector passed an Order for transferring the name in the mining plan of 9 mines which is already surrendered/cancelled by the earlier project proponent on the name of Respondent No. 5.
30. On 18.03.2020, District Collector issued a letter to Chief Executive Officer, Janpad Panchayat regarding seven (7) Panchayats, whose name is present on mining plan as contractor in earlier lease to provide NOC to the new contractor and CEO, Janpad Panchayat of respective Panchayat has been authorized to issue such NOC. It is submitted that 5 out of 13 mines were earlier on the name of 11 Panchayats and duly given NOC by the CEO/Panchayat of the respective area.
31. It is submitted that giving effect to the abovesaid Order of the Collector, 5 (Five) Janpad Panchayats out of 13 mines given NOC to the Shishir Khandar/Respondent No.5 as per the requirement under Clause 1 1 of the EIA Notification, 2006.
32. On 11.05.2020, Additional Secretary of Mining Department transferred the rest mines out of the said 13 sand quarry which is not under panchayat in the name of Respondent No. 5 as per the terms of the contract. Additionally the NOC was also given on behalf of the State in transferring the EC to the Respondent No. 5.
34. It is submitted that the NOC is required from the earlier project proponent (transferor) only when the Application for transfer of the EC has been made by the transferor himself on the name of the new project proponent. In case when the request has been made by an Application under Clause 11 by the Transferee (new project proponent), in that case the no objection is not compulsory to obtained from the transferor, as it also goes beyond the reasoning and rationale behind obtaining such NOC, and it may be given by the regulatory authorities concerned, which is actual conservator of the environment and the area. The provision provides two ways to get the NOC for transfer of the EC under clause 11. In the present case the NOC has been duly granted by the regulatory authority concerned as provided in the clause after due inspection and observance of the mining area when Application has been made by the transferee in this regard.
35. In any case NOC has been duly obtained from the 5 Panchayats out of total 13 impugned mines in the process through the CEO of that Panchayat. For the other mines the NOC cannot be obtained from the earlier project proponent and neither compulsory. The regulatory authority has duly awarded with NOC to the transferee in due compliance with Clause 11 in its harmonious construction of the Clause to give effect to the provision in a way to remove the difficulty. It is the State and Regulatory authorities which should have more preference for granting NOC to any new project proponent and specially when the Transferee is applying for transfer of the EC from earlier project proponent to the new one, the EC can only be obtained through the regulatory authorities".
13. By filling the additional affidavit Respondent no. 5 has further submitted that:-
"5. That the Section 16 (h) & (i) of the National Green Tribunal Act, 2010 only provides appellate jurisdiction to this Hon'ble Tribunal in case of Granting or refusal in Granting fresh Environmental Clearance. The 12 transfer of the Environmental Clearance is not within the scope of Section 16 of the Act, as the transfer is merely for the earlier approved EC for the same period under same terms and condition with adoption of already approved same plan of conservation. There is also no extension of activity in the area. Therefore, any order passed under Clause 11 of the EIA Notification, 2006 doesn't attract the Section 16 of the NGT Act, 2010 to file an Appeal before this Hon'ble Tribunal.
6. That the Central Government through the Gazette Notification dated 23.03.2015 made an Amendment to the Clause 11 of the EIA, 2006 Notification, which deals with transfer of EC in case of Coal Blocks where the mining lease has been cancelled or surrendered for the remaining period of the EC. It provides that:
"In the said notification, paragraph 11 shall be renumbered as sub- paragraph (I) thereof, and after sub-paragraph (I) as so renumbered, the following sub-paragraph shall be inserted, namely:--
"(2) Where an allocation of coal block is cancelled in any legal proceeding, or by the Government in accordance with law, the environmental clearance granted in respect of such coal block may be transferred, subject to the same validity period as was initially granted, to any legal person to whom such block is subsequently allocated, and in such case, obtaining of 'no objection" from either the holder of environment clearance or from the regulatory authority concerned shall not be necessary and no reference shall be made to the Expert Appraisal Committee or the State Level Expert Appraisal Committee concerned."
7. That the Central Government by way of the above said amendment exempted the provision for getting NOC from the earlier project proponent in case of cancellation of coal block granted to the earlier project proponent. It is respectfully submitted that a corollary harmonious interpretation may be inferred here as a parallel provision to give effect to the Clause 11 in case of surrendered/cancelled lease of sand mines.
8. That the Central Government through the Gazette Notification dated 30.12.2016 made an Amendment to the Clause 11 of the EIA, 2006 Notification, which deals with transfer of EC in case of iron ore block where the mining lease has been cancelled or surrendered for the remaining period of the EC. It provides that:
In the said notification, after sub-paragraph (2) of paragraph 11, following sub-paragraph shall be inserted, namely:-
"3) Where an allocation of iron ore block pertaining to the State of Karnataka is cancelled in any legal proceeding, or by the Government in accordance with law, the environmental 13 clearance granted in respect of such iron block may be transferred subject to the same validity period it was initially granted, to any legal person to whom such block is subsequently allocated, and in such case, obtaining of "no objection" from either the holder of environmental clearance or from the regulatory authority concerned shall not be necessary and no reference shall be made to the Expert Appraisal Committee or the State Level Expert Appraisal Committee concerned. "
9. That the Central Government by way of the above said amendment also exempted the provision for getting NOC from the earlier project proponent in case of cancellation of Iron Ore Block in Karnataka granted to the earlier project proponent. It is respectfully submitted that a corollary parallel harmonious interpretation may be drawn here as a parallel provision to give effect to the Clause 11 in case of surrendered/cancelled lease sand mines.
10. That further, the Central Government through the Gazette Notification dated 28.03.2020 made an Amendment to the Clause 11 of the EIA, 2006 Notification, which deals with the transfer of EC for mining lease issued under the Mines and Minerals (Development and Regulation) Act, 1957, where the mining lease has been cancelled or surrendered for the remaining period of the EC. It provides that:
In the said notification,-
In paragraph 11, after sub-paragraph (2), the following sub- paragraph shall be inserted, namely:-
"(3) The successful bidder of the mining leases, expiring under the provisions of sub-sections (5) and (6) of section 8A of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957) and selected through auction as per the procedure provided under that Act and the rules made thereunder, shall be deemed to have acquired valid prior environmental clearance vested with the previous lessee for a period of two years, from the date of commencement of new lease and it shall be lawful for the new lessee to continue mining operations as per the same terms and conditions of environmental clearance granted to the previous lessee on the said lease area for a period of two years from the date of commencement of new lease or till the new lessee obtains a fresh environmental clearance with the terms and conditions mentioned therein, whichever is earlier:
Provided that the successful bidder shall apply and obtain prior environmental clearance from the regulatory authority within a period of two years from the date of grant of new lease".14
11. That the Central Government by way of the above said amendment also exempted the provision for getting NOC from the earlier project proponent in certain cases. lt is respectfully submitted that a corollary parallel harmonious interpretation may be drawn here as a parallel provision to give effect to the Clause 11 in case of surrendered/cancelled lease sand mines."
14. The Appellant has raised two contentions, namely:-
(i) The 13 quarries, which are in question in the present appeal, were surrendered or lapsed by the previous contractors and by virtue of the surrender or lapsing, the said quarries ceases to exist and the new contractor is required to obtain fresh EC.
(ii) According to clause 11 of EIA notification 2006 of MoEF, NOC/consent of the earlier PP is mandatory; failing which transfer of EC in favour of the new contractor is per se illegal.
15. The Appellant has argued that there has been violation of Clause 11 of EIA notification 2006 which contemplates that there must be strict compliance of Clause 11 which is condition subsequent, failing which the transfer of EC shall be in vain and by virtue of such illegal transfer of EC ancillary mining operations and storage activities done are also void ab- initio and as per verdict of Hon'ble Apex Court in case of Common Cause Vs. Union of India, the violator is liable for imposition of penalty & equal Compensation for damaging the Environment.
16. The Commissioner Revenue Division, Jabalpur has also initiated a probe against Respondent no. 5 by way of constituting a committee under the headship of Regional Head, Directorate of Geology and Mining, Regional Office Jabalpur, who in its report filed along with the rejoinder has made specific mention and concluded that there is violation of Rule 20 of Sand Rules 2019 and the order passed by Hon'ble NGT Principal Bench, New Delhi in O.A. No 17/2019(CZ), in case of Vikas Ojha Versus Mineral 15 Resources Department and Ors, has also not been complied with, for which, the answering respondents have not taken any penal action in terms of the Common Cause judgment of the Apex Court due to such act of the Respondent no. 5 and that 13 quarries which are in question in present appeal are not leases but these are quarries unlike leases and merely by virtue of presumption of holding status of leases MP SEIAA inadvertently treating these quarries as transferable has erred resulting into illegal transfer in favour of Respondent no 5 and in view of this relevant fact, the circular issued by MP SEIAA on 14.1.2020 is inapplicable in the instant case and is bereft of any merits.
17. The Learned Counsel appearing for the Ministry of Environment, Forest and Climate Change (MoEF&CC) has argued that the respondent- Ministry has formulated the new guidelines i.e. "Enforcement & Monitoring Guidelines for Sand Mining" (EMGSM 2020) supplemental to the existing guidelines i.e. Sustainable Sand Management Guidelines 2016, which focus on the effective monitoring of the sand mining, the identification of sand mineral sources, its dispatch and end-use by consumers and the general public. Further, this document will serve as a guideline for collection of critical information of enforcement of the regulatory provision(s) and also highlights the essential infrastructural requirements necessary for effective monitoring for sustainable sand mining.
18. Learned Counsel appearing for the MoEF&CC has submitted that the Monitoring Guidelines as issued by the Ministry is required to be followed. It is to be noted that enforcement of Monitoring Guidelines for Sand Mining was issued in January, 2020 by the Ministry of Environment and Forest. The relevant paras are quoted below: 16
"a) Parts of the river reach that experience deposition or aggradation shall be identified. The Leaseholder/ Environmental Clearance holder may be allowed to extract the sand and gravel deposit in these locations to manage aggradation problem.
b) The distance between sites for sand and gravel mining shall depend on the replenishment rate of the river. Sediment rating curve for the potential sites shall be developed and checked against the extracted volumes of sand and gravel.
c) Sand and gravel may be extracted across the entire active channel during the dry season.
d) Abandoned stream channels on the terrace and inactive floodplains be preferred rather than active channels and their deltas and flood plains. The stream should not be diverted to form the inactive channel.
e) Layers of sand and gravel which could be removed from the river bed shall depend on the width of the river and replenishment rate of the river.
f) Sand and gravel shall not be allowed to be extracted where erosion may occur, such as at the concave bank.
g) Segments of the braided river system should be used preferably falling within the lateral migration area of the river regime that enhances the feasibility of sediment replenishment.
h) Sand and gravel shall not be extracted up to a distance of 1 kilometre (1 km) from major bridges and highways on both sides, or five times (5x) of the span (x) of a bridge/public civil structure (including water intake points) on up-stream side and ten times (10x) the span of such bridge on down-stream side, subjected to a minimum of 250 meters on the upstream side and 500 meters on the downstream side.
i) The sediment sampling should include the bed material and bed material load before, during and after the extraction period.
Develop a sediment rating curve at the upstream end of the potential reach using the surveyed cross-section. Using the historical or gauged flow rating curve, determine the suitable period of high flow that can replenish the extracted volume. Calculate the extraction volume based on the sediment rating curve and high flow period after determining the allowable mining depth.
j) Sand and gravel could be extracted from the downstream of the sand bar at river bends. Retaining the upstream one to two- thirds of the bar and riparian vegetation is accepted as a method to promote channel stability.
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k) The flood discharge capacity of the river could be maintained in areas where there is a significant flood hazard to existing structures or infrastructure. Sand and gravel mining may be allowed to maintain the natural flow capacity based on surveyed cross-section history. Alternatively, off-channel or floodplain extraction is recommended to allow rivers to replenish the quantity taken out during mining.
l) The Piedmont Zone (Bhabhar area) particularly in the Himalayan foothills, where riverbed material is mined, this sandy-gravelly track constitutes excellent conduits and holds the greater potential for groundwater recharge. Mining in such areas should be preferred in locations selected away from the channel bank stretches.
m) Mining depth should be restricted to 3 meters and distance from the bank should be ¼th or river width and should not be less than 7.5 meters.
n) The borrow area should preferably be located on the riverside of the proposed embankment because they get silted in the course of time. For low embankment, less than 6 m in height, borrow area should not be selected within 25 m from the toe/heel of the embankment. In the case of the higher embankment, the distance should not be less than 50 m. In order to obviate the development of flow parallels to the embankment, crossbars of width eight times the depth of borrow pits spaced 50 to 60 meter center-to-center should be left in the borrow pits.
o) Demarcation of mining area with pillars and geo-referencing should be done prior to the start of mining.
p) A buffer distance /un-mined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.
q) A buffer distance /unmined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.
r) River bed sand mining shall be restricted within the central 3/4th width of the river/rivulet or 7.5 meters (inward) from river banks but up to 10% of the width of the river, as the case may be and decided by regulatory authority while granting environmental clearance in consultation with irrigation department. Regulating authority while regulating the zone of river bed mining shall ensure that the objective to minimize the effects of riverbank erosion and consequential channel migration 18 are achieved to the extent possible. In general, the area for removal of minerals shall not exceed 60% of the mine lease area, and any deviation or relaxation in this regard shall be adequately supported by the scientific report.
s) Mining Plan for the mining leases (non-government) on agricultural fields/Patta land shall only be approved if there is a possibility of replenishment of the mineral or when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market."
4.1.1 Preparation of District Survey Report.
"Sustainable Sand Mining Guidelines, 2016" issued by MoEF&CC requires preparation of District Survey Report (DSR), which is an important initial step before grant of mining lease/LoI. The guidelines emphasize detailed procedure to be followed for the purpose of identification of areas of aggradation/ deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited. Calculation of annual rate of replenishment, allowing time for replenishment after mining, identification of ways of scientific and systematic mining; identifying measures for protection of environment and ecology and determining measures for protection of bank erosion, benchmark (BM) with respect to mean Sea Level (MSL) should be made essential in mining channel reaches (MCR) below which no mining shall be allowed.
The NGT in its Judgment dated 08.12.2017 in the matter of Anjani Kumar vs State of Uttar Pradesh & Ors. inter-alia mentioned the following regarding sand mining in the Uttar Pradesh:
"It states that the main object of preparation of District Survey Report is to ensure identification of areas of aggradation/deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining area. Thus, the environmental protection requires a strictly regulated mining in terms of area, quantity as well as most importantly replenishment thereof."
"The data collection and declared for preparation of DSR shall take precedence over other data and would form the foundation for providing mining lease in terms of Appendix-19
x to the Notification dated 15th January 2016 must be prepared by the statutory authority stated therein i.e. DEIAA prior to awarding of permits for carrying on mining activity in any part of the State of UP."
The Hon'ble High Court of Jharkhand at Ranchi in its orders dated the 11th April, 2018 and 19th June, 2018 in W.P. (PIL) No. 1806 of 2015, in the matter of Court on its Own Motion Versus the State of Jharkhand & Others with W.P. (PIL) No. 290 of 2013, in the matter of Hemant Kumar Shilkarwar Versus the State of Jharkhand & Others, has inter-alia directed the preparation of District Survey Report for minor minerals other than Sand and Bajri or delegation of the powers for preparation of format of District Survey Report of minor minerals other than sand and Bajri to the State Government and/or District Environment Impact Assessment Authority and District Expert Appraisal Committee. To comply with the direction of Hon'ble High Court the Ministry has issued S.O. 3611(E) dated 25.07.2018, wherein, the procedure of preparation of DSR is mentioned. But it is felt that still there is other information that needs to be reported in DSR to make it a comprehensive DSR. Therefore, preparation of District Survey Report is a very important step and sustainable sand mining in any part of the country will depends on the quality of District Survey Report. Considering the importance of district survey report, the Ministry of Environment Forest and climate change, after consultation with experts dealing with mining-related matters, formulated the following guidelines for the preparation of comprehensive District Survey Report for sand mining:
a) District Survey Report for sand mining shall be prepared before the auction/e-auction/grant of the mining lease/Letter of Intent (LoI) by Mining department or department dealing the mining activity in respective states.
b) The first step is to develop the inventory of the River Bed Material and Other sand sources in the District. In order to make the inventory of River Bed Material, a detailed survey of the district needs to be carried out, to identify the source of River Bed Material and alternative source of sand (M- Sand). The source will include rivers, de-siltation of reservoir/dams, Patta lands/Khatedari Land, M-sand etc. The revenue department of Kerala already conducted river mapping and sand auditing of around 20 rivers of Kerala which is a good example wherein the profile of rivers was created at regular intervals and aggradation/deposition was identified along with water level. In the same study, benchmarks were also created at a prominent location at 20 regular interval for future surveying. Such study helps the mining departments to identify the source of sand.
Thus, it is proposed that for preparation of district survey report, the auditing of rivers needs to be carried out. There is already a provision under MMDR Act 2015 for National Mineral Exploration Trust (MET) wherein a 2% of royalty amount to be deposited in the trust. This fund is used for mineral exploration in the country. The Sand Auditing is also a sort of identification of mineral and State Government may request Central Govt. for proving funds for river auditing. The Central Govt. (Ministry of Mines) may also explore the possibilities for providing the funds for river auditing. The other option is that State Govt. may conduct such studies by its own fund and the same may be recovered from the leaseholders to whom the mining lease will be allocated.
c) District Survey Report is to be prepared in such a way that it not only identifies the mineral-bearing area but also define the mining and no mining zones considering various environmental and social factors.
d) Identification of the source of Sand & M-Sand. The sources may be from Rivers, Lakes, Ponds, Dams, De- silting locations, Patta land/Khtedari lands. The details in case of Rivers such as [name, length of river, type (Perennial or Non-Perennial ), Villages, Tehsil, District], in case of Lakes, Ponds, Dams, De-silting locations [Name, owned/maintained by (State Govt./PSU), area, Villages, Tehsil, District] in case of Patta land/Khtedari lands [ Owner Name, Sy No, Area, Agricultural/Non-Agricultural, Villages, Tehsil, District], in case of M-Sand Plant [Owner Name, Sy No, Area, Quantity/Annum, Villages, Tehsil, District], needs to be recorded as per format given in Annexure-I.
e) Defining the sources of Sand/M-Sand in the district is the next step for identification of the potential area of deposition/aggradation wherein mining lease could be granted. Detailed survey needs to be carried out for quantification of minerals. The purpose of mining in the river bed is for channelization of rivers so as to avoid the possibility of flooding and to maintain the flow of the rivers. For this, the entire river stretch needs to be surveyed and original ground level (OGL) to be recorded and area of aggradation/deposition needs to be ascertained by comparing the level difference between the outside riverbed OGL and water level. Once the area of aggradation/deposition are identified, then the quantity of 21 River Bed Material available needs to be calculated. The next step is channelization of the river bed and for this central ¾th part of the river, width needs to be identified on a map. Out of the ¾th part area, where there is a deposition/aggradation of the material needs to be identified. The remaining ¼th area needs to be kept as no mining zone for the protection of banks. The specific gravity of the material also needs to be ascertained by analyzing the sample from a NABL accredited lab. Thus, the quantity of material available in metric ton needs to be calculated for mining and no mining zone.
Note: As physical survey with conventional method is time- consuming, use of unmanned aerial vehicle (UAV) may be explored to carry out the survey and finalizing the original ground level and for developing a 3D model of the area.
f) The permanent boundary pillars need to be erected after identification of an area of aggradation and deposition outside the bank of the river at a safe location for future surveying. The distance between boundary pillars on each side of the bank shall not be more than 100 meters.
g) Identifying the mining and no mining zone shall follow with defining the area of sensitivity by ascertaining the distance of the mining area from the protected area, forest, bridges, important structures, habitation etc. and based on the sensitivity the area needs to be defined in sensitive and non-sensitive area.
h) Demand and supply of the Riverbed Material through market survey needs to be carried out. In addition to this future demand for the next 5 years also needs to be considered.
i) It is suggested that as far as possible the sensitive areas should be avoided for mining, unless local safety condition arises. Such deviation shall be temporary & shall not be a permanent feature.
j) The final area selected for the mining should be then divided into mining lease as per the requirement of State Government. It is suggested the mining lease area should be so selected as to cover the entire deposition area. Dividing a large area of deposition/aggradation into smaller mining leases should be avoided as it leads to loss of mineral and indirectly promote illegal mining.
k) Cluster situation shall be examined. A cluster is formed when one mining lease of homogenous mineral is within 500 meters of the other mining lease. In order to reduce the 22 cluster formation mining lease size should be defined in such a way that distance between any two clusters preferably should not be less than 2.5 Km. Mining lease should be defined in such a way that the total area of the mining leases in a cluster should not be more than 10 Ha.
l) The number of a contiguous cluster needs to be ascertained. Contiguous cluster is formed when one cluster is at a distance of 2.5 Km from the other cluster.
m) The mining outside the riverbed on Patta land/Khatedari land be granted when there is possibility of replenishment of material. In case, there is no replenishment then mining lease shall only be granted when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects, mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market. Cluster situation as mentioned in para k above is also applicable for the mining in Patta land/Khatedari land.
n) The State Government should define the transportation route from the mining lease considering the maximum production from the mines as at this stage the size of mining leases, their location, the quantity of mineral that can be mined safely etc. is available with the State Government. It is suggested that the transportation route should be selected in such a way that the movement of trucks/tippers/tractors from the villages having habitation should be avoided. The transportation route so selected should be verified by the State Government for its carrying capacity.
o) Potential site for mining having its impact on the forest, protected area, habitation, bridges etc, shall be avoided. For this, a sub-divisional committee may be formed which after the site visit shall decide its suitability for mining. The list of mining lease after the recommendation of the Committee needs to be defined in the following format given in as Annexure-II. The Sub-Divisional Committee after the site visit shall make a recommendation on the site for its suitability of mining and also records the reason for selecting the mining lease in the Patta land. The details regarding cluster and contiguous cluster needs to be provided as in Annexure-III.
p) Public consultation-The Comments of the various stakeholders may be sought on the list of mining lease to be auctioned. The State Government shall give an 23 advertisement in the local and national newspaper for seeking comments of the general public on the list of mining lease included in the DSR. The DSR should be placed in the public domain for at least one month from the date of publication of the advertisement for obtaining comments of the general public. The comments so received shall be placed before the sub-divisional committee for active consideration. The final list of sand mining areas [leases to be granted on riverbed & Patta land/Khatedari land, desiltation location (ponds/lakes/dams), M-Sand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per Annexure- V. The details regarding cluster and contiguous cluster needs to be provided in Annexure-VI.
5.0 REPLENISHMENT STUDY The need for replenishment study for river bed sand is required in order to nullify the adverse impacts arising due to excessing sand extraction. Mining within or near riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, in-stream roughness of the bed, flow velocity, discharge capacity, sediment transport capacity, turbidity, temperature etc. Alteration or modification of the above attributes may cause an impact on the ecological equilibrium of the riverine regime, disturbance in channel configuration and flow-paths. This may also cause an adverse impact on instream biota and riparian habitats. It is assumed that the riparian habitat disturbance is minimum if the replenishment is equal to excavation for a given stretch. Therefore, to minimize the adverse impact arising out of sand mining in a given river stretch, it is imperative to have a study of replenishment of material during the defined period. 5.1 Generic Structure of Replenishment Study Initially replenishment study requires four surveys. The first survey needs to be carried out in the month of April for recording the level of mining lease before the monsoon. The second survey is at the time of closing of mines for monsoon season. This survey will provide the quantity of the material excavated before the offset of monsoon. The third survey needs to be carried out after the monsoon to know the quantum of material deposited/replenished in the mining lease. The fourth survey at the end of March to know the quantity of material excavated during the financial year. For the subsequent years, there will be a requirement of only three surveys. The results of year-wise surveys help the state government to establish the replenishment rate of the river. Based on the replenishment rate future auction may be planned.
24 The replenishment period may vary on nature of the channel and season of deposition arising due to variation in the flow. Such period and season may vary on the geographical and precipitation characteristic of the region and requires to be defined by the local agencies preferable with the help of the Central Water Commission and Indian Meteorological Department. The excavation will, therefore, be limited to estimated replenishment estimated with consideration of other regulatory provisions.
5.2 Methodology for Replenishment Study The replenishment estimation is based on a theoretical empirical formula with the estimation of bedload transport comprising of analytical models to calculate the replenishment estimation. The iso-pluvial maps of IMD can be used for estimation of rainfall. Catchment yield is computed using different standard empirical formulas relevant to the geographical and channel attributes. eg. Strange's Monsoon runoff curves for runoff coefficient). Peak flood discharge for the study area can be calculated by using Dickens, Jarvis and Rational formula at 25, 50 and 100 years return period. The estimation of bed load transport using Ackers and White Equation or similar can be made. A simulation model is used with basic data generated from the field in the pre-study and post-study period (preferably pre-monsoon and post- monsoon) to estimate the volume of replenished material. The particle size distribution and bulk density of the deposited material are required to be assessed from a NABL recognized laboratory. Considering the bulk density and the volume, the estimation of replenishment in weight will be calculated after considering safeguards and stability of the slopes and riverine regime. Some of the common methods used for field data acquisition for replenishment study 5.2.1. Physical survey of the field by the conventional method i. The conventional survey technical using DGPS and other survey tools are used to define the topography, contours and offsets of the lease area. The survey should clearly depict the important attributes of the stretch of the river and its nearby important civil and other feature of importance. Such information will provide the eligible spatial area for mining. The contour and the elevation benchmarks will provide the baseline data for assessing the pre and post-study period scenario. ii. Physical benchmarks are to be fixed at appropriate intervals (preferable 1 in 30 m) and the Reduced Level (RL) shall be validated from a nearby standard RL. These RL should be engraved on a steel plate (Bench Plate) and shall be fixed and placed at locations which are free from any damages and are 25 available in pre and post-study period. The bench plates shall be available for use during the mining period as reference for all mining activity. Reference pillar may also be used in place of Bench Plates with visible and readable demarcation on the ground as common reference points to control the topographic survey and mining activity.
iii. Baseline data on elevation status for a grid of 10 m x 10 m is preferred to have accuracy in the assessment. It is expected that two consecutive cross-sections in longitudinal and lateral direction should not be more than 10-meter distance apart, however, the regulatory authority may fix these intervals depending on the geographical and site-specific conditions, only and after providing the scientific reason for such deviation. iv. The changes observed in the elevation in per and post scenario at each node should be depicted in graphical forms with an appropriate scale to estimate the area of deposition and erosion. These graphical presentations should depict the active channel regime and the flow bed elevation with other important features required to be considered for estimation of the mining area. The area of deposition and erosion shall be calculated for each cross-section after giving due regard to the stability and safety of active channel banks, and other features of importance. The elevation level shall be in reference to the nearest bench-plates established for the purpose. v. The levels (MSL & RL) of the corner point of each grid should be identifiable and safety barriers (Non-Mining) demarcated as restricted in consensus with Mineral Concession Rules of respective State, and the provision mentioned in this Sustainable Sand Mining Management Guidelines. vi A clear identification is required to be highlighted between grids under mineable and grids under the non-mineable area. These baseline data (pre and post) be subjected to stimulation with the help of data mine software to derive at the replenishment area and corresponding volume and estimated weight.
vii. The database should be structured in a tabulated form clearly depicting the nomenclature of the section lines, latitude and longitude of the starting point, chain-age and respective levels of all the points taken on that section line. viii. Net area shall be derived after the summation of the area of deposition minus area of erosion for each cross-section. The volume will be estimated by multiplying the distance between two cross-sections with the average of net area of these two consecutive cross-sections.
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ix. One sample per 900 square meters (30 m x 30 m) shall be preferred sample density for assessment of bulk density for estimation of deposition rate. Care should be taken that the sample for assessment of bulk density is taken from the deposition zone and not from erosion. However, depending on the site condition, river morphology and geographical condition, sample density may be adjusted. Reason for such deviation shall be appropriately highlighted in the report with supporting scientific data.
5.2.4 Replenishment study shall have the details of List of instruments List of software Establishment of Benchmark by putting No. of pillar points and various Ground Control Points (GCP) at the site. Ground Control Points (GCP) Collection: - Various GCPs were observed by using DGPS for Permanent Benchmarks and for control points.
The summary of the elevation data from each section's profile based on the post-monsoon the survey should have mentioned in the table form.
The detail of post-monsoon survey data in the tabular form shall be The detailed comparison of both pre-monsoon and post- monsoon elevation data shall be attached Cross-sectional depiction of deposition and erosion for each section in pre and post-deposition season shall be given supported by relevant field study data and plan.
19. The matter of sand mining and its effects has been discussed in the case of K. Rajasekar vs. The Chief Secretary to Government decided on 16.02.2018 by Hon'ble the Madras High Court the relevant paragraphs are quoted below:
"12. The learned counsel for the writ petitioners in the respective writ petitions contended that the State has been undertaking mining operations without any regard to the environment. The agents engaged by the State for mining and transportation of sand indulged in all kinds of illegal activities and the same resulted in causing considerable damage to the environment. By placing reliance on the report submitted by the Court Commissioners, it was contended that time has 27 come to stop the sand quarrying operations across the River Cauvery and Coleroon in the interest of the ecology. It was further contended that the natural resources, which is the public wealth has been looted by the State in collusion with the intermediaries.
13. The learned Advocate General by placing reliance on the affidavit filed by the Principal Secretary to the Government, Public Works Department and the supporting affidavit filed by the Chief Secretary to the Government submitted that the State would undertake sand mining after satisfying all the legal requirements and without adversely affecting the ecology. According to the learned Advocate General, the State would discharge the obligation undertaken without causing any kind of damage to the environment. The learned Advocate General took us through the proposal indicated in the affidavit filed by the Principal Secretary to the Government to demonstrate that in case the steps suggested by the Government is taken, it would enable the State to undertake mining operations without affecting the environment. The learned Advocate General submitted that there are enough shoals of sand at Mayanur, Sriramasamuthiram/ Sipilaputhur, Chinthalavadi, M.Puthur, Sirugamani, Musiri (West), Panayakurichi and Vittalapuram and made a request to grant permission to the State to undertake sand quarrying operations in those sites subject to the clearance to be obtained from the environmental authorities. The learned Advocate General submitted that sand would be quarried without private participation. It was submitted that on account of the interim order, cost of sand was shooted up and common man is the ultimate sufferer.
24. The adverse effect of sand mining without a proper mine plan was indicated by the Hon'ble Supreme Court in Deepak Kumar and others v. State of Haryana and others [ (2012) 4 SCC 629]
9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both instream biota and the associated riparian habitat. The demand for sand continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack 28 of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand.
25.Quarrying of river sand, it is true, is an important economic activity in the country with river sand forming a crucial raw material for the infrastructural development and for the construction industry but excessive instream sand and gravel mining causes the degradation of rivers. Instream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes the deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material as already mentioned from within or near a streambed has a direct impact on the stream's physical habitat characteristics.
Conditions imposed by the Environment Authority
25. The environmental clearance issued for mining of sand contained the following mandatory conditions:-
i) The Licensee must use minimum number of poclains and it should not be more than two in the project site.
ii) The District Administration should assess the site for Environmental impact at the end of first year to permit the continuation of the operation.
iii) The Annual replenishment report certified by the authorised agency must be submitted to the prescribed authority. In case, the replenishment is low, the mining activity/production levels shall accordingly be decreased/stopped.
iv) There shall be no quarrying of sand in any river bed or adjoining area or any other area which is located within 500 m radial distances from the location of any bridge, water supply system, infiltration well or pumping installation.
v) The ultimate working depth shall be 1 m from the present natural river bed level and the thickness of the sand available shall be more than 3 m in the proposed quarry site.
vi)The sand quarrying shall not be carried out below the ground water table under any circumstances. In case, the ground water table occurs within the permitted depth at 1 meter, quarrying operation shall be stopped immediately.29
vii) The sand mining should not disturb in any way the turbidity, velocity and flow pattern of the river water.
viii) The mining activity shall be monitored by the Taluk level Force once in a month by conducting physical verification.
ix) After closure of the mining, the licensee shall immediately remove all the sheds put up in the quarry and all the equipments used for operation of sand quarry. The roads/pathways shall be levelled to let the river resume its normal course without any artificial obstruction to the extent possible.
x) The mined out pits to be backfilled where warranted and area should be suitably landscaped to prevent environmental degradation.
32. The natural resources are valuable assets of the State. It is the primary duty of the State to conserve the natural resources for our future generation. The citizens must be in a position to enjoy the resources without causing damage to the environment and the ecology. There must be an institutional framework and enforcement mechanism to prevent illegal and excess quarrying.
33. The mining should be undertaken by the State without any adverse impact on the environment. The State alone is responsible for this sorry state of affairs. There is no proper mechanism to check the illegal quarrying and the excess sand mining. The authorities who are given the mandate to operate the sand quarry are not at all concerned with the environment and ecology. They are conducting mining activities in collusion with the mining mafia and looting the natural wealth.
34. The River sand is an essential raw material for construction activity. The cost of construction nowadays depends upon very much on the cost of sand. The State for supply of sand to the people at affordable rate ought to have quarried the River sand judiciously and in compliance with the environmental norms and without causing destruction of Rivers. There is no dispute that depletion of sand in the stream bed would result in deepening of rivers and it would have a cascading effect on the environment. Therefore, a balance has to be struck taking into account the need to preserve the ecology and the need for quarrying River Sand for the economic development of the State.
40. The Hon'ble Supreme Court in M.C.Mehta v. Kamal Nath [1997 (1) Supreme Court Cases 388] made it clear that if 30 there is a law made by the State legislature, the Courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review:
"35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the Courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the constitution."
43. The quarrying operations, even in those quarries where there are shoals of sand, must be undertaken only by abiding the norms and conditions of the environmental clearance. The quarry site shall be closed immediately after removing the available shoals of sand. The area and the depth of the quarry shall be in accordance with the permission granted by the environmental authorities. Such quarrying operations would be subject to the result of the Special Leave Petition pending before the Hon'ble Supreme Court in SLP No.2831 of 2018.
45. The Government must undertake a scientific study with the help of experts to identify the mineral deposits and its exact location. The State must excavate the minerals only from the places identified by the experts and by following the conditions imposed by the environmental authorities. Interlinking roads inside the river must be removed to check the illegal mining and transportation of minerals. The levelling of roads inside the river shall be done on a phased manner and giving priority. The sand mining shall not be undertaken in respect of locations where illegal sand mining has already been carried out.
46. The State must ensure that the sand quarries would adhere to the norms regarding extent and depth. The boundary of the quarry shall be demarcated by following the procedure set-out under Clause 2 (ii) of the conditions imposed by the environmental authority.
50. The Court Commissioners have observed that clearance from the State Environment Impact Assessment Authority (SEIAA) has been routinely obtained for river sand mining 31 without divulging the material factors like existence of Bridge, Water supply system etc. The SEIAA without conducting field inspection and cross checking the details permitted quarrying. There is no mechanism now to ascertain as to whether the conditions imposed by the SEIAA have been complied with by the licensee. This issue must be addressed by the Government and SEIAA. Before granting permission for the sites, where sand is available, the SEIAA must visit the place indicated in the application for sand mining. The boundaries of the site must be shown in the mine plan and excavation must be within the boundaries. The Project Director must fix the pucca permanent pillar boundaries for excavation. The Project Director must ensure that stones are erected at 50 metre intervals along the boundaries with the marking of Shoal height, River Bed Height and depth to be excavated. The State must streamline the entire process right from site selection to operation of quarry and supply of sand in an ecologically friendly and environmentally sustainable manner. The entire quarry sites must have CCTV. There must be IP cameras set up in all the poclains for monitoring the overloading. The State must include environmental experts from reputed Central/State Institutions preferably from Indian Institute of Technology to be part of the District Task Force. It must be the responsibility of the concerned District Collector to oversee, monitor and streamline the functioning of the sand quarrying. The Taluk and District level task force must be sensitized. The officials of the Public Works Department and others involved in the process must be given training periodically in relation to environmental and legal aspects of sand quarrying. The Government must fix liability on officials, who are violating the conditions of the clearance or permitting excess quarrying. The jurisdictional Revenue, Police, Geology and Transport department officials must be taken to task in case of illegal quarrying or transportation of sand without permission. The State Appellate Forum constituted by the order in G.O.Ms.No.27 Industries Department dated 17 February 2015 must be a vibrant body. The Government must set up a centralised control room to monitor sand quarrying operations, one at Chennai and the other at Trichy as undertaken in the affidavit. The Centralised Monitoring through CCTVs must be taken up through live streaming from the control room. There must be a Customer Care Centre to receive complaints and take action on such complaints. The action taken report must be sent to the complainant and it must be available on line."
20. We have two things, sovereignty of the State and the doctrine of public trust. We have to make a balance between the two though the State has 32 every authority to utilize the land but Public Trust Doctrine says that the property of the public should be utilized for the public purposes and not for the private purposes. The water bodies, lake, air and land all these are the public properties and should be made available to all for maintaining the health and environment. This Doctrine of public trust and precautionary measures was discussed in public interest litigation no. 87/2006; Bombay Environmental Action Group Vs. State of Maharashtra 2018 SCC online Bombay 2680.2019(1) Bombay CRI and it was held as follows:-
"Apex Court observed thus:
"2. The Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and saints of India lived in forests. Their preachings contained in vedas, upanishads, smritis, etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora, fauna and every species of life."
" The ancient Roman Empire developed a legal theory known as the "doctrine of the public trust". It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public 33 rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few."
In the case of M.C. Mehta v. Kamal Nath, in paragraph 34 and 35, the Apex Court held thus:
"34. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said 34 resources."
In the case of Fomento Resorts & Hotels Limited v. Minguel Martins 4, In paragraphs 53 to 55 and 65, the Apex Court held thus:
55. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.
55. The public trust doctrine is a tool for exerting long-
established public rights over short-term public rights and private gain. Today every person exercising his or her right to 35 use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.
65. We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems." (emphasis added) 54. Public at large has a right to enjoy and have a benefit of our forests including mangroves forest. The pristine glory of such forests must be protected by the State. The mangroves protect our environment. Therefore, apart from the provisions of various statutes, the doctrine of public trust which is very much applicable in India makes it obligatory duty of the State to protect and preserve mangroves.
PRECAUTIONARY PRINCIPLE
55. In the case of M.C. Mehta (Badhkal and Surajkund Lakes matter) v. Union of India, the Apex Court held thus:
"10. In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held as under:36
"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem."
The "Precautionary Principle" has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes."
21. India is endowed with extraordinarily diverse and distinctive traditional water bodies found in different parts of the country, commonly known as ponds, tanks, lakes, vayalgam, ahars, bawdis, talabs and others. They play an important role in maintaining and restoring the ecological balance. They act as sources of drinking water, recharge groundwater, control floods, support biodiversity, and provide livelihood opportunities to a large number of people. Currently, a major water crisis is being faced by India, where 100 million people are on the frontlines of a nationwide water crisis and many major cities facing an acute water shortage. The situation will worsen as United Nations and Niti Ayog reports say that the demand for water will reach twice the available supply, and 40 per cent of India's population will not have access to clean 37 drinking water by 2030. One of the reasons is our increasing negligence and lack of conservation of waterbodies. Since independence, the government has taken control over the waterbodies and water supply. With a colonial mindset, authorities move further and further away in the quest of water supply, emphasing more on networks, infrastructure and construction of dams. This, over time, has led to the neglect of waterbodies and catchments areas. As a result, we have started valuing land more than water. In the last few decades, waterbodies have been under continuous and unrelenting stress, caused primarily by rapid urbanisation and unplanned growth. Encroachment of waterbodies has been identified as a major cause of flash floods in Mumbai (2005), Uttarakhand (2013), Jammu and Kashmir (2014) and Chennai (2015). Further, waterbodies are being polluted by untreated effluents and sewage that are continuously being dumped into them. Across the country, 86 waterbodies are critically polluted, having a chemical oxygen demand or COD concentration of more than 250 mg/l, which is the discharge standard for a polluting source such as sewage treatment plants and industrial effluent treatment plants. In urban India, the number of waterbodies is declining rapidly. For example, in the 1960s Bangalore had 262 lakes. Now, only 10 hold water.
Similarly, in 2001, 137 lakes were listed in Ahmedabad. However, by 2012, 65 were already destroyed and built upon. Hyderabad is another example. In the last 12 years, it has lost 3,245 hectares of its wetlands. The decline in both the quality and quantity of these waterbodies is to the extent that their potential to render various economic and environmental services has reduced drastically. Although there are sufficient polices and acts for protection and restoration of waterbodies, they remain insufficient and ineffective. 38
22. Realizing the seriousness of the problem confronting waterbodies, the Centre had launched the Repair, Renovation and Restoration of Water Bodies scheme in 2005 with the objectives of comprehensive improvement and restoration of traditional water bodies. These included increasing tank storage capacity, ground water recharge, increased availability of drinking water, improvement of catchment areas of tank commands and others. However, in this regard, not much has been seen on the ground.
23. It is of utmost importance for meeting the rising demand for water augmentation, improving the health of waterbodies as they provide various ecosystem services that are required to manage microclimate, biodiversity and nutrient cycling. Many cities are working towards conservation of waterbodies like the steps initiated in the capital city of Delhi for instance. In turning Delhi into a city of lakes, rejuvenation of 201 waterbodies has been finalised. Of these, the Delhi Jal Board (DJB) plans to revive 155 bodies while the Flood and Irrigation Department will revive 46. DJB claims that the aim is to achieve biological oxygen demand or BOD to 10ppm and total suspended solids to 10mg/l. Also the establishment of the Wetlands Authority by the Delhi government is a welcome step towards notifying and conserving natural waterbodies. In order to achieve the goal of revival of waterbodies, it is important to understand that one solution may not fit all the waterbodies. Depending on the purpose, ecological services, livelihood and socio-cultural practices, the approach will vary from one waterbody to another. However the issues with regard to lack of data and action plans, encroachments, interrupted water flow from the catchment, siltation, violations of laws, solid waste deposit and polluted water, involvement of too many agencies, etc. have to be taken into consideration.
39
24. Action needs to be taken towards:
i. Attaining sustainability. Thus, emphasis on long-term goals, operation and maintenance should be included along with the allocation of budget.
ii. Success of the lakes should be tested on all three fronts namely economic, environmental and social. Many studies point that a deliberate effort has to be made on the social front for which better publicity of the environmental benefits of the project and enhancing environmental awareness, especially among the local community is required.
iii. Encouraging local people to collaborate with other stakeholders to successfully utilise resources and ensure the protection and conservation of waterbodies.
iv. Traditionally, water was seen as a responsibility of citizens and the community collectively took the responsibility of not only building but also of maintaining the water bodies. This needs to be brought back into the system.
v. Thus, an integrated approach taking into account the long-term sustainability, starting from the planning stage where looking at every waterbody along with its catchment, is required.
25. Article 21 of the Constitution of India which provides that no person shall be deprived of his right to life or personal liberty, except according to the procedure established by law, is interpreted by the Indian courts to include in this right to life, the right to clean and decent environment. Right to decent environment, as envisaged under Article 21 of the Constitution of India also gives, by necessary implication, the right 40 against environmental degradation. It is in the form of right to protect the environment, as by protecting environment alone can we provide a decent and clean environment to the citizenry. Right to clean environment is a guaranteed fundamental right. Various courts, particularly the superior courts in India are vested with wide powers, especially in terms of Articles 32 and 226 of the Constitution of India to deal with issues relating to the fundamental rights of the persons. The courts, in fact, can even impose exemplary damages against the polluter. Proper and healthy environment enables people to enjoy a quality life which is the essence of the right guaranteed under Article 21. The State and the citizens are under a fundamental obligation to protect and improve the environment including forests, lakes, rivers, wild life and to have compassion for living creatures. Right to have living atmosphere congenial to human existence is a right to life. The State has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. The power to issue directions and other powers should be exercised by the State to effectuate and further the goals of approved scheme, zonal plans, etc. The hazards to health and environment of not only the persons residing in illegal colonisations but of the entire town as well as the provisions and schemes of the relevant Acts have to be taken into consideration. The most vital necessities, namely air, water and soil having regard to the right to life under Article 21 cannot be permitted to be misused or polluted so as to reduce the quality of life of others. Risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. Life, public health and ecology have priority over unemployment and loss of revenue. It is often said that development and protection of environment are not enemies but are two sides of the same 41 coin. If without degrading the environment or by minimising the adverse effects thereupon by applying stringent safeguards, it is possible to carry on developmental activities applying the principle of sustainable development, in that eventuality, development has to go on because one cannot lose sight of the need for development of industry, irrigation resources, power projects, etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. Courts have exercised the power of imposing exemplary damages against the pollutants in order to protect the environment and to restore the damage done to the environment as well. In fact, even the disturbance in the environment by undesirable sound of various kinds, amounts to noise pollution. It is a shadowy public enemy whose growing public menace has increased in the modern age of industrialisation and technological advancement. Noise has become one of the major pollutants and has serious effects on human health. Consistent judicial opinion in India has recognised the right to live in freedom from noise pollution as a fundamental right also, protected under Article 21 of the Constitution. If anybody increases the volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed under Article 21. Courts have even held that Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed under Article 21 of the Constitution. Thus, the right of an individual to healthy and clean environment including air, water, soil and noise-free environment is of paramount consideration and it is impermissible to cause environmental pollution and particularly in violation of the prescribed standards. Since the different facets of 42 environment are relatable to life and human rights and concern a person's liberty, it is necessary that resources are utilised in a planned manner. Wherever industrialisation has an impact on utilisation of essential resources like air, water and soil and results in irreversible damage to environment, then it may be impermissible to utilise these resources in that fashion. In the recent times, there has been accelerated degradation of the environment, primarily on account of lack of effective enforcement of laws and non-compliance with the statutory norms. Concentrated industrialisation in some pockets has been the other reason for enhanced damage to the environment. It emerges from the desire of the people to operate from the areas where the industry presently exists.
26. The right to development itself cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. It encompasses much more than economic well- being and includes within its definition the guarantee of fundamental human rights. It includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of people's wellbeing and realisation of their full potential. It is an integral part of human rights. Of course, development is the essence of any pragmatic and progressive society. But essentially, development besides being inter-generational, must be balanced to its ecology and environment. Sustainable development means that the richness of the earth's bio-diversity would be conserved for future generations by greatly slowing or if possible halting extinctions, habitat and ecosystem destruction, and also by not risking significant alterations of the global environment that might-by an increase in sea level or changing rainfall and vegetation patterns or increasing ultraviolet radiation-alter the opportunities available for future 43 generations. Sustainable development has been defined in many ways but the most frequently quoted definition is from the Brundtland Report which states as follows:
"Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:
• The concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and • The idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs."
27. The earlier school of thought was that development and ecology are opposed to each other but with the passage of time and development of law, this concept has undergone tremendous change and is no longer acceptable. Now operates the principle of sustainable development. It takes within its ambit the application of 'principle of proportionality' and the 'precautionary principle'. In other words, one must, while promoting development, not only ensure that no substantial damage is caused to the environment but also take such preventive measures which would ensure that no irretrievable damage to the environment, even in future, is caused. All these principles have to be examined and applied on the touch stone of "reasonable person's test", as afore-stated. Where the principle of proportionality introduces prudent mind's reasonableness in relation to development vis-a-vis environment, there the precautionary principle can be explained to say that it contemplates that an activity which poses danger and threat to the environment is to be prevented since prevention is better than cure.
28. While applying the concept of sustainable development, one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which courts or tribunals have to balance the 44 priorities of development on the one hand and environmental protection on the other. So sustainable development should also mean the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable person's test'. [Refer: Research Foundation for Science and Technology and Natural Resource Policy v. Union of India MANU/SC/7894/2007 : (2007) 9 SCR 906; Narmada Bachao Andolan v. Union of India supra; Chairman Barton: The Status of the Precautionary Principle in Australia (Vol. 22) (1998) (Harv. Envtt. Law Review, p. 509 at p. 549-A) as in A.P. Pollution Control Board v. Prof M.V. Nayudu supra; and M.C. Mehta v. Union of India, supra.] At this stage, we may usefully refer to a very recent judgment of the Supreme Court in the case of G. Sundarrjan v. Union of India & Ors. MANU/SC/0466/2013: (2013) 6 SCC 620 where the Court, while referring to the principles of balance inbuilt in the concept of sustainable development, elaborated the principles as follows:
228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society. But, a pregnant one, the present case really does not fall within the four corners of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is 45 not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is done and there is constant vigil, life of "some" can be in danger.
That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution.
29. Sustainable Development primarily finds its origin from the Rio Declaration, 1992 on Environment and Development. Certain principles were stated for achieving sustainable development. The element of integration of environmental and developmental aspects was spelt out in the following principles of that Declaration:
Principle 3:
The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
Principle 4:
In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.46
30. In fact, in Karnataka Industrial Areas Development Board v. C. Kenchappa & Ors. MANU/SC/8159/2006 : (2006) 6 SCC 383-84, the Apex Court held as follows:
63. The World Conservation Union' and 'the Worldwide Fund for Nature' prepared jointly by UNEP described that 'sustainable development, therefore, depends upon accepting a duty to seek harmony with other people and with nature' according to Caring for the Earth, A Strategy for Sustainable Living. The guiding rules are:
(i) People must share with each other and care for the earth;
(ii) Humanity must take no more from nature than man can replenish; and
(iii) People must adopt lifestyles and development paths that respect and work within nature's limits.
31. The development should be such as can be sustained by ecology.
Sustainable development would be the development which can be maintained indefinitely without having adverse impact on the environment and ecology. Thus, there should not be development at the cost of causing irretrievable or irreversible damage to the ecology or the environment. They must find a common path and objectivity in achieving the goal of sustainable development.
32. Precautionary principle is one of the most important concepts of sustainable development. This principle essentially has the element of prevention as well as prohibition. In order to protect the environment, it may become necessary to take some preventive measures as well as to prohibit certain activities. These decisions should be based on best possible scientific information and analysis of risks. Precautionary measures may still have to be taken where there is uncertainty but potential risk exists. Ecological impact should be given paramount 47 consideration, particularly when the end result would be irreversible. The decision making authority should assess the records and conclude whether it was a case of directing precautionary and preventive measures to be taken or that the information on which it has to reach a determination is inadequate. Informed decision is the essence of a preventive or a prohibitory decision. The principle of direction thereunder involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity which is based on scientific certainty. Environmental protection should not only aim at protecting health, property and economic interest but also the environment for its own sake. It is said that inadequacies of science is the basis that has led to change from an 'assimilating impact principle' to 'precautionary principle'. Availability of scientific data is one of the most essential features of environmental adjudication. The precautionary principle was stated in Article 7 of the Bergen Ministerial Declaration on Sustainable Development in the ECE Region, May, 1990, as incorporated in an article of Professor Ben Boer, which reads as follows:
"Environmental measures must anticipate, prevent and attack the causes of environment degradation. Where there are threats of serious or irreversible damage, lack of scientific certainty should not be used as reason for postponing measures to prevent environmental degradation."
33. The Supreme Court of India, in the case of Vellore Citizens' Welfare Forum v. Union of India (MANU/SC/0686/1996 : AIR 1996 SC 2715) recognised the precautionary principle and explained it as follows:
"11. (i) Environmental measures-by the State Government and the statutory authorities-must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.48
(iii) The 'onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign."
34. On the analysis of the above, one could state the essentials of invocation of precautionary principle as under:
(a) There should be an imminent environmental or ecological threat in regard to carrying out of an activity or development;
(b) Such threat should be supported by reasonable scientific data;
and
(c) Taking precautionary, preventive or prohibitory steps would serve the larger public and environmental interest.
35. With reference to these ingredients, the decision making authority, upon taking an objective approach, could take recourse to and pass directives under the precautionary and preventive principles. These are the tools available to the authorities concerned to adopt a balanced and pragmatic approach to ensure environmental protection while permitting sustainable development.
36. It will not only be expected of but shall be an obligation on the decision making authority to identify sources of pollution as well as their impact on public health or environment. It must be understood that every direction under the precautionary principle is not a punitive action in its content and effect. These are two different legal connotations which operate in their own respective fields. Precaution in contradistinction to punitive action is an anticipated action and is futuristic.
37. 'Precaution' is a measure taken in advance to prevent something dangerous, unpleasant or inconvenient from happening. To put it simply, it is a prudent foresight, while a 'punitive' action is one involving or inflicting punishment. It has an element of something that has already 49 occurred. Environmental pollution was controlled rigidly in the ancient times. It was an affair limited to individuals but the society as a whole accepted as its duty to protect environment. It was to sustain and ensure progress of all. Thus, it was acceded as a positive duty with regard to protecting the environment on the one hand and the fear of punishment on the other. Apart from the motivation, efforts were not only to punish the culprits who damage the trees or other environment but also to balance the ecosystem [T.N. Godavarman Thirumulpad v. Union of India (supra)].
38. Punitive action, which would include punishment in one form or the other, would normally be for the damage or the wrong done to environment and for its restoration thereto. Therefore, there must be a nexus between befalling of an event, or its likelihood thereof, and its pollution source and the injury apprehended or caused. All these ingredients must be supported by reasonable scientific data, especially in the case of precautionary principle.
39. This brings us to discuss the onus of proof in matters relating to environment. We must, at the very threshold of discussion on this topic refer to the judgment of the Supreme Court in A.P. Pollution Control Board v. Prof. M.V. Nayudu supra, where the Hon'ble Court, while discussing the onus in environmental matters, held as under:
"31. The Vellore judgment has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that Courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them.
The precautionary Principle replaces the Assimilative Capacity principle.50
32. A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier the concept was based on the 'assimilative capacity rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the 'precautionary Principle', and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows:
Principle 15: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage; lack of full scientific certainty shall not be used as a reason for proposing cost- effective measures to prevent environmental degradation.
33. In regard to the cause for the emergence of this principle, Chairman Barton, in the article earlier referred to in Vol. 22, Harv. Envtt. L. Rev. (1998) P. 509 at (p. 547) says:
There is nothing to prevent decision makers from assessing the record and concluding there is inadequate information on which to reach a determination. If it is not possible to make a decision with "some" confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through Judicial and legislative means is necessary.51
In other words, inadequacies of science is the real basis that has led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
34. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake.
Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (Justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case". (See First Report of Dr. Sreenivasa Rao Pemmaraju, Special-Rapporteur, International Law Commission dated 3.4.1998 paras 61 to 72).
The Special Burden of Proof in Environmental cases:
35. We shall next elaborate the new concept of burden of proof referred to in the Vellore case AIR 1996 SC 2715. In that case, Kuldip Singh, J. stated as follows:
The 'onus of proof is on the actor or the
developer/industrialist to show that his action is
environmentally benign.
52
36. It is to be noticed that while the inadequacies of science have led to the 'precautionary principle', the said 'precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo (Wynne, Uncertainty and Environmental Learning, 2 Global Envtl. Change 111 (1992) at p. 123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the changes would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less-
polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M. Olson, Shifting the Burden of Proof, 20 Envtl. Law p. 891 at 898 (1990). (Quoted in Vol. 22 (1998) Harv. Env. Law Review p. 509 at 519, 550).
37. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4.1998, para 61).
38. It is also explained that if the environmental risks being run by regulatory inaction are in some way "ascertain but non- negligible", then regulatory action is justified. This will lead to the question as to what is the non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a 'reasonable ecological or medical concern. That is the required standard of proof. The result would be that if insufficient evidence is presented by 53 them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society v. Federated Fanners of New Zealand [1988] 1 NZLR 78. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable persons' test. (See Precautionary Principle in Australia by Chairman Barton) (Vol.
22) (1988) Harv. Env. L. Rev. 509 at 549).
40. The normal rule of evidence is that one who pleads must prove before the Court or the Tribunal i.e. the onus of proving, while claiming relief, is on the person who approaches the Court/Tribunal. However, this rule may not be applicable to this Tribunal stricto sensu.
41. This Tribunal has been established both with original and appellate jurisdiction relating to environmental laws. The NGT Act, 2010 was enacted for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal rights relating to environment. In relation to NGT, the legislature, in its wisdom, has specifically excluded the application of the procedure under the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872 (for short 'the Evidence Act') in terms of Section 19(1) and 19(3) of the NGT Act. On the contrary, Section 19(2) of the NGT Act empowers the Tribunal to have the power to regulate its own procedure. In terms of its Section 19(5), NGT is a judicial Tribunal. Section 20 of the NGT Act further recognizes the application of the principles of sustainable development, precautionary principle and polluter pays principle by the Tribunal while adjudicating upon disputes on environment.
54
42. Once the applicability of specific rules of evidence, as prescribed under the Evidence Act, is excluded, the Tribunal has to state its own procedure, including recording of evidence, but the same essentially has to be in consonance with the principles of natural justice. It will have to be examined on a case to case basis as to when the onus will shift from the applicant to non-applicant. In environmental cases, normally the damage to environment or public health is evident by itself, res ipsa loquitur. The cases of environmental degradation, damage and health hazards are obvious by themselves as a result of some industrial activity or development. In that event and keeping in view the very object of the NGT Act, it will be unacceptable to require the applicant to discharge his primary onus by strict number of events and their details.
43. Once an applicant approaches the Tribunal with a complaint of environmental injury or environmental degradation or health hazards resulting from negligence, or incidental occurrence of emission or discharge of gases or effluents in violation of the prescribed standards, then such an applicant discharges the primary onus by instituting a petition in the prescribed form, supported by an affidavit, which then shifts upon the industrial unit, developer or the person carrying out the activity complained of, to establish by cogent and reliable evidence that it has not caused pollution or health hazards by carrying out its activities; all the expected norms of discharge have been strictly adhered to by that unit; and any harm, if caused, was neither the result of any negligence nor violation of prescribed standards. Upon discharge of such onus, which is certainly much heavier, by the developer/industrial unit, it will then again be for the applicant to establish to the contrary. In other words, heavy onus lies upon the industrial unit or the developer to show 55 by cogent and reliable evidence that it is non-polluting and non- hazardous or is not likely to have caused the accident complained of.
44. The view, we are taking finds strength from the observations stated by the Supreme Court in its judgment in the case of Narmada Bachao Andolan v. Union of India (supra) where the Court, while referring to the case of Vellore Citizens' Welfare Forum supra and the report of the International Law Commission, held as under:
119. It is this decision which was the subject-matter of challenge in this Court. After referring to the different concepts in relation to environmental cases like the 'precautionary principle' and the 'polluter-pays principle', this Court relied upon the earlier decision of this Court in Vellore Citizens' Welfare Forum v. Union of India (MANU/SC/0686/1996 : AIR 1996 SC 2715) and observed that there was a new concept which places the burden of proof on the developer or industrialist who is proposing to alter the status quo and has become part of our environmental law. It was noticed that inadequacies of science had led to the precautionary principle and the said 'precautionary principle' in its turn had led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the status quo. At page 735, this Court, while relying upon a report of the International Law Commission, observed as follows:
The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution is major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.
120. It appears to us that the 'precautionary principle' and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the 56 industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology or environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what imitative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that imitative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.
45. Therefore, the stated principle could be a valid dictum for environmental adjudicatory process.
46. Learned counsel appearing for respondent no. 1 had submitted that the decision was taken for public purposes and the administrative decisions which has been taken by the State Government should not be interfered with unless and until it is proved by cogent evidence and report of any Expert Committee that there is any violation of law and/or damage to the environment and relied on following decision:
"19. In 2011 (1) SCC 640 (Bajaj Hindustan limited vs Sir ShadiLal Enterprises Limited and another), the Hon'ble Apex Court has held as follows:
39. We should not be understood to have meant that the judiciary should never interfere with administrative decisions.However, such interference should be only within narrow limits e.g., when there is clear violation of the statute or a constitutional provision, or there is arbitrariness in the Wednesbury sense. It is the administrators and legislators who are entitled to frame politics and take such administrative decisions as they think necessary in the public interest. The Court should not ordinarily interfere with policy decisions, unless clearly illegal.
24. When there is no violation of the provisions of the statute or of a constitutional provision or in the absence of arbitrariness, the Court should not interfere with the administrative decisions. It is the administrators and legislature, who are entitled to frame policy and entitled to 57 take decisions as they think necessary in the public interest.
25. It is settled position that the Courts should not ordinarily interfere with the policy decisions unless they are clearly illegal or unconstitutional. The Court can invalidate an executive policy only when it is clearly violative of some provisions of the statute or Constitution or is shockingly arbitrary but not otherwise."
47. In the case of Km. Shrilekha Vidyarthi (supra), the Apex Court has held that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness it would be unconstitutional.
48. In the case of Ugar Sugar Works Ltd. v. Delhi Administrative and Ors.
MANU/SC/0189/2001 : (2001) 3 SCC 635, the Apex Court has held as follows:
18. ...It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy....
26. In the aforesaid paragraph the Apex Court has further held that the Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State.
49. In the case of Ms. Aruna Roy and Ors. v. Union of India and Ors. (2002) 7 SCC 368, the Apex Court has held as follows:
96. ...It is ultimately for Parliament to take a decision on the National Education Policy one way or the other. It is not the 58 province of the Court to decide on the good or bad points of an education policy. The Court's limited jurisdiction to intervene in implementation of a policy is only if it is found to be against any statute or the Constitution...
It has further held in paragraph 97 of said Report as follows:
It cannot, however, compel that a particular practice or tradition followed in framing and implementing the policy, must be adhered to. The Court has to keep in mind the above limitations on its jurisdiction and power. It is true that if a policy framed in the field of education or other fields runs counter to the constitutional provisions or the philosophy behind those provisions, this Court must, as part of its constitution duty, interdict such policy".
50. In the case of Delhi Development Authority and Anr. v. Joint Action Committee, Allottee of SFS Flats and Ors. MANU/SC/0202/2008 : (2008) 2 SCC 672, the Apex Court has held as follows:
64. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nittygritties of the policy, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision.
Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.
65. Broadly, a policy decision is subject to judicial review on the following grounds:
(a) if it is unconstitutional;
(b) if it is dehors the provisions of the Act and the Regulations;
(c) if the delegate has acted beyond its power of delegation;
(d) if the executive policy is contrary to the statutory or a larger policy.59
51. In the case of Villianur Iyarkkai Padukappu Maiyam v. Union of India and Ors. MANU/SC/0811/2009 : (2009) 7 SCC 561, the Apex Court has held as follows:
168. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or malafide, a decision bringing about change cannot per se be interfered with by the court.
169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a Petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review.
In matters relating to economic issues the Government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts.From the aforesaid decisions of the Apex Court, it is clear that a Court can interfere in a policy decision of the Parliament/State Legislatures/Governments if any of the following conditions exist:(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.(II) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.(III) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.(IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.(V) It is dehors the provisions of the Act or Legislations.(VI) If the delegatee has acted beyond its power of delegation."
52. It is argued on behalf of the respondent that in exercise of power of judicial review, the Courts do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on the ground of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed 60 arbitrariness, irrationality, perversity and mala fide, render the policy unconstitutional. Unless a policy decision is demonstrably capricious or arbitrary and not informed by any reason or discriminatory or infringing any Statute or the Constitution, it cannot be a subject of judicial interference. However, if the policy cannot be touched on any of these grounds, the mere fact that it may affect business interests of a party does not justify invalidating the policy. (Vide M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration & Ors., AIR 2001 SC 1447; State of Himachal Pradesh & Anr. Vs. Padam Dev & Ors., (2002) 4 SCC 510; Balco Employees' Union (Regd) Vs. Union of India & Ors., AIR 2002 SC 350; State of Rajasthan & Ors. Vs. Lata Arun AIR 2002 SC 2642; and Federation of Railway Officers Association Vs. Union of India, (2003) 4 SCC 289).
53. In Union of India & Anr. Vs. International Trading Company & Anr. (2003) 5 SCC 437, the Supreme Court pointed out that the Policy of the Government, even in contractual matters, must satisfy the test of reasonableness and every State action must be informed by reason. Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. The Court further held as under:-
"15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, 61 not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labeled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary." (Emphasis added).
54. In Union of India Vs. Dinesh Engineering Corpn. & Anr. (2001) 8 SCC 491, the Supreme Court observed as follows:-
".........Where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record.......... . Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution."
55. In Krishnan Kakkanth Vs. Govt. of Kerala, AIR 1997 SC 128; the Hon'ble Apex Court held that the judicial review of policy decision is permissible in exceptional circumstances only when the Court is of the view that the order suffers from arbitrariness and unreasonableness. The Court observed as under:-
62
"To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial if a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, Court should avoid embarking on uncharted ocean of public policy."
56. The Supreme Court in Kailash Chandra Sharma Vs. State of Rajasthan & Ors., AIR 2002 SC 2877 upheld the Full Bench judgment of the Rajasthan High Court in Deepak Kumar Suthar Vs. State & Ors., 2000 Lab IC 1 wherein the Court had struck down the policy decision of the Government granting bonus marks on the ground of residence in public employment being ultra vires the provisions of Article 14 and 16 of the Constitution. The Supreme Court held that policy decision giving weightage to the candidates in public employment on the ground of residence was impermissible in view of the Constitutional provisions. The policy decision was, therefore, bad and in such a case judicial review was found to be warranted.
57. The Supreme Court in Cholan Roadways Ltd. Vs. G. Thirugnanasambandam, AIR 2005 SC 570, has gone a step further by bringing "errors of facts" within the scope of judicial review. While deciding the said case, reliance was placed upon the judgment in E. Vs. Secretary of State for the Home Department, (2004) 2 Weekly Law Report, 1351, wherein it has been held that a review of the merits of the decision making process is fundamental to the Court's jurisdiction. The power of 63 review may even extend to a decision on a question of fact. The error sought to be corrected must be undeniably a significant factor in the decision making process.
58. In R.K. Garg Vs. Union of India & Ors., AIR 1981 SC 2138, the Supreme Court considered the validity of the provisions of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 and Special Bearer Bonds (Immunities and Exemptions) Act, 1981, which was provided for exemption and immunity from criminal liability of the persons who invest money in purchasing the Special Bearer Bonds from the income never disclosed earlier. The Court made the following observations:-
"It is clear that Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be "arbitrary, artificial or evasive" but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature...........Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. ........The Court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry" that exact wisdom and nice adaption of remedy are not always possible and that "judgment is largely a prophecy based on 64 meagre and uninterpreted experience". Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuse. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.............There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. (Emphasis added).
59. In State of M.P. & Ors. Vs. Nandlal Jaiswal & Ors., (1986) 4 SCC 566, the Hon'ble Supreme Court re-examined the scope of Article 14 of the Constitution while having a judicial review of the executive order of the State relating to trade and business and held as under:-
"But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the court would hesitate to intervene and strike down what the State Government had done, unless it appears to be plainly arbitrary, irrational or mala fide..........in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as 65 legislative judgment in so far as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call 'trial and error method' and, therefore, its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait jacket formula. The court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or 'play' in the "joints" to the executive.........The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide."
60. While deciding the said case, the Apex Court relied upon the admonition given by the Frankfurter, J. in Morey v. Doud, (1957) 354 US 457:-
"In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference, to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events - self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability."
61. A similar view has been reiterated in M. P. Oil Extraction & Anr. Vs. State of M.P. & Ors., (1997) 7 SCC 592.
62. In Sterling Computers Ltd. Vs. M/s. M & N Publications Ltd., AIR 1996 SC 51, the Hon'ble Supreme Court held as under:-
"It is not possible for Courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision 66 as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive........ On the basis of those judgments it cannot be urged that this Court has left to the option of the authorities concerned whether to invite tenders or not according to their own discretion and to award contracts ignoring the procedures which are basic in nature, taking into account factors which are not only irrelevant but detrimental to the public interest."
63. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The principles of governance has to be tested on the touchstone of justice, equity, fair play and if decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the fact of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade; that decision cannot be allowed to operate. (Vide Onkar Lal Bajaj & Ors. Vs. Union of India & Ors., AIR 2003 SC 2562).
64. In State of Karnataka & Anr. Vs. All India Manufacturers Organisation & Ors., AIR 2006 SC 1846, the Hon'ble Supreme Court examined the scope of change of policy with the change of the Government. After considering the scope of judicial review in contractual matters, the Court examined as under what circumstances, the Government should revoke the decision taken by the earlier Government. The Court held that an instrumentality of the State cannot have a case to plead from that of the State and the policy in respect of a particular project adopted by the State Government should not be changed with the change of the Government. The Court further held as under:-
67
"It is trite law that when one of the contracting parties is "State" within the meaning of Article 12 of the Constitution, it does not cease to enjoy the character of "State" and, therefore, it is subjected to all the obligations that "State" has under the Constitution. When the State's acts of omission or commission are tainted with extreme arbitrariness and with mala fides, it is certainly subject to interference by the Constitutional Courts in this country........We make it clear that while the State Government and its instrumentalities are entitled to exercise their contractual rights under the FWA, they must do so fairly, reasonably and without mala fides; in the event that they do not do so, the Court will be entitled to interfere with the same.
Taking an overall view of the matter, it appears that there could hardly be a dispute that the Project is a mega project which is in the larger public interest of the State of Karnataka and merely because there was a change in the Government, there was no necessity for reviewing all decisions taken by the previous Government, which is what appears to have happened. That such an action cannot be taken every time there is a change of Government."
65. While deciding the said case, reliance had been placed by the Court in its earlier judgments in State of U.P. & Anr. Vs. Johri Mal, AIR 2004 SC 3800; and State of Haryana Vs. State of Punjab & Anr., AIR 2002 SC 685. In the former, the Apex Court held that the panel of District Government Counsel should not be changed only on the ground that the panel had been prepared by the earlier Government. In the later case, while dealing with the river water-sharing dispute between two States, the Court observed thus:
".........in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same."
66. It is argued on behalf of the learned counsel appearing for the MoEF&CC that sand mining contributes to construction of buildings infrastructure development, it helps in extracting minerals and provides both economic 68 and social benefits. Even though, the Government has implemented step to stop illegal sand mining and produce an alternative by supplying manufacturing of sand yet there is still illegal mining happening. Sand is an important economic resource and also source of Silica for making sodium silicate, a chemical compound used for manufacture for both common and optical glasses. The economic aspect of sand are not confined to it value as raw-material. Besides its economic importance, sand also constitutes an important biotic component in aquatic eco- system like rivers. Depletion of sand in the stream bed and along coastal areas causes the deepening of rivers and in estuaries and the enlargement of the river mouths causing major habitat disruptions that favoured some species or other and caused overall declines in biological diversity and productivity.
67. Learned counsel appearing for the MoEF&CC has also raised the issue that the control of illegal mining is purely within the domain of the State Government. It is necessary to quote the relevant paragraphs with regard to rule making power of the State which is enshrined in the constitution as follows:
"28. Entry-54 of List I-Union List of the Seventh Schedule of the Constitution of India deals with regulation of mines and mineral development under the control of the Union. Entry-54 of List-I reads as under:
"54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest."
29. Entry-23 of List II-State List of the Seventh Schedule of the Constitution provides as under:
"23. Regulation of mines and mineral development subject to the provisions of List-I with respect to regulation and development under the control of the Union."69
30. The Act, 1957 i.e. the Mines and Minerals (Development and Regulation) Act, 1957 is enacted by the Parliament to provide for the development and regulation of mines and minerals. Section 3(e) of the Act, 1957 defines 'minor minerals'. It reads thus:
"(e) "minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral;"
31. Sub-section (1-A) of Section 4 of the Act, 1957 prohibits transportation and storage of minerals in the following manner:
"4(1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder."
32. Section 15 of the Act, 1957 gives power to the State Government to make rules in respect of minor minerals. Section 15 is extracted below:
"15. Power of State Governments to make rules in respect of minor minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith.
(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions may be made and the fees to be paid therefor;
(b) the time within which, and the form in which, acknowledgement of the receipt of any such applications may be sent;
(c) the matters which may be considered where applications in respect of the same land are received within the same day;
(d) the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concessions may be granted or renewed;
(e) the procedure for obtaining quarry leases, mining leases or other mineral concessions;
(f) the facilities to be afforded by holders of quarry leases, mining leases or other mineral concessions to persons deputed 70 by the Government for the purpose of undertaking research or training in matters relating to mining operations;
(g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable;
(h) the manner in which rights of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining operations;
(i) the manner in which rehabilitation of flora and other vegetation, such as trees, shrubs and the like destroyed by reason of any quarrying or mining operations shall be made in the same area or in any other area selected by the State Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease;
(j) the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred;
(k) the construction, maintenance and use of roads, power transmission lines, tramways, railways, aerial ropeways, pipelines and the making of passage for water for mining purposes on any land comprised in a quarry or mining lease or other mineral concession;
(l) the form of registers to be maintained under this Act;
(m) the reports and statements to be submitted by holders of quarry or mining leases or other mineral concessions and the authority to which such reports and statements shall be submitted;
(n) the period within which and the manner in which and the authority to which applications for revision of any order passed by any authority under these rules may be made, the fees to be paid therefore, and the powers of the revisional authority; and
(o) any other matter which is to be, or may be prescribed.
2) Until rules are made under sub-section (1), any rules made by a State Government regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force.
(3) The holder of a mining lease or any other mineral concession granted under any rule made under sub-section (1) shall pay royalty or dead rent, whichever is more in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate 71 prescribed for the time being in the rules framed by the State Government in respect of minor minerals:
Provided that the State Government shall not enhance the rate of royalty or dead rent in respect of any minor mineral for more than once during any period of three years.
4) Without prejudice to sub-sections (1), (2) and sub-section (3), the State Government may, by notification, make rules for regulating the provisions of this Act for the following, namely--
(a) the manner in which the District Mineral Foundation shall work for the interest and benefit of persons and areas affected by mining under sub-section (2) of Section 9B;
(b) the composition and functions of the District Mineral Foundation under sub-section (3) of Section 9B; and
(c) the amount of payment to be made to the District Mineral Foundation by concession-holders of minor minerals under Section 15A.
"33. Section 23-C of the Act, 1957 gives power to the State Government to make rules for preventing illegal mining, transportation and storage of minerals. Section 23-C reads thus:
"23-C. Power of State Government to make rules for preventing illegal mining, transportation and storage of minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) establishment of check-posts for checking of minerals under transit;
(b) establishment of weigh-bridges to measure the quantity of mineral being transported;
(c) regulation of mineral being transported from the area granted under a prospecting licence or a mining lease or a quarrying licence or a permit, in whatever name the permission to excavate minerals, has been given;
(d) inspection, checking and search of minerals at the place of excavation or storage or during transit;
(e) maintenance of registers and forms for the purposes of these rules;
(f) the period within which and the authority to which applications for revision of any order passed by any authority 72 be preferred under any rule made under this section and the fees to be paid therefor and powers of such authority for disposing of such applications; and
(g) any other matter which is required to be, or may be, prescribed for the purpose of prevention of illegal mining, transportation and storage of minerals.
(3) Notwithstanding anything contained in Section 30, the Central Government shall have no power to revise any order passed by a State Government or any of its authorised officers or any authority under the rules made under sub-sections (1) and (2)."
68. Section 23 C of MMDR, Act 1957 empowered the State Government to make rules for preventing illegal mining, transportation and storage of minerals. But in the recent past, it has been observed that there was large number of illegal mining cases in the Country and in some cases, many of the officers lost their lives while executing their duties for curbing illegal mining incidence. The illegal and uncontrolled illegal mining leads to loss of revenue to the State and degradation of the environment.
69. India is developing at a faster pace and much technological advancement has already been taken place in the surveillance and remote monitoring in the field of mining. Thus, it is prudent to utilize the technological advancement for the effective monitoring of the mining activities particularly sand mining in the country.
70. It is the responsibility of every citizen of India to protect the environment and effective monitoring can only be possible when all the stakeholders viz. Central Government, State Government, Leaseholders/Mine Owners, Distributors, Dealers, Transporters and Consumers (bulk & retail) will contribute towards sustainable mining, and comply with all the statutory provisions. It is felt necessary to identify the minimum requirements across all geographical region to have a uniform protocol for monitoring 73 and enforcement of regulatory provision prescribed for sustainable sand and gravel mining.
71. Guidelines issued in 2020 is supplemental to the existing "Sustainable Sand Mining Management Guideline-2016" (SSMG-2016), and these two guidelines viz. "Enforcement & Monitoring Guidelines for Sand Mining"
(EMGSM-2020) and SSMG-2016 shall be read and implemented in sync with each other. In case, any ambiguity or variation between the provision of both these document arises, the provision made in "Enforcement & Monitoring Guidelines for Sand Mining-2020 "shall prevail.
72. Principal Bench of this Tribunal in its order dated 04.09.2018 in O.A. 173/2018 in the matter of Sudarsan Das vs. State of West Bengal &Ors. Inter-alia observed that "There can be no two views that an effective institutional monitoring mechanism is required not only at the stage when Environmental Clearance is granted but also at subsequent stages". "The guidelines focus on the preparation of District Survey Report and the Management Plan" ... We are of the view that all the safeguards which are suggested in sustainable sand mining guidelines as well as notification dated 15.01.2016 ought to be scrupulously followed."...It is a known fact that in spite of the above-suggested guidelines being in existence, on the ground level, illegal mining is still going on. The existing mechanism has not been successful and effective in remedying the situation." ..." Since there is an utter failure in the current monitoring mechanism followed by the State Boards, SEIAAs and DEIAAs, it is required to be revised for effective monitoring of sand and gravel mining and a dedicated monitoring mechanism be set up."
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73. It is alleged that the State Government by introducing the amendment with retrospective effect in the official Gazette notification published on 07/02/2020 in sub rule (2) of Rule 26 of the Sand Mining Rules 2019 has applied straight jacket self contradictory formula to Chapter VI of statutory permission particularly rule 12 of the Sand Mining Rules 2019 for all the Sand mining blocks which were transferred to Village Panchayats/local bodies, where all statutory clearance of sand mines transferred to Panchayats will be transferred in favour of new group contractor. The District wise new survey of availability of the sand was published and has thereby committed to the contractor to provide the specified quantity of sand from the newly auctioned mining blocks whereas the quantity already excavated by the Village Panchayats/local bodies is not taken into account meaning thereby even if assuming that according to new District wise survey of quantity available at sand mining blocks are considered to be true then also the production capacity would be substantially increased adding the already excavated quantity in the current production capacity which amounts to the expansion of the activity and any expansion of the original production capacity will require fresh environmental clearance after the appraisal and environment impact assessment by the competent authority. For that, by way of introducing the provision of transferring the statutory permissions including existing environmental clearance in sub rule (2) of Rule 26 of the Rules of 2019, the Government of Madhya Pradesh has concealed the factum of substantial increase and expansion of sand production capacity in sand mining blocks which are having greater cumulative impact on the environment which will increase pollution load, just to avoid applying fresh environment clearance for the increased production capacity. The District wise Survey Report is prepared by District Mining 75 Branch of particular District which is not the mandate of law. Further the District Survey Report prepared is put forth in public domain on or about 19/07/2019 knowing fully that during the rainy season there is complete ban upon sand mining, which cannot contain the details of month wise rainfall because as per the Sustainable Sand Mining Management Guidelines 2016 issued by MoEF&CC the rainy season ban for sand mining for the State of Madhya Pradesh is between 15th June to 1st October.
74. Mineral Laws (Amendment) Act 2020, as notified with effect from l0th of January 2020 has enacted a new section 8 (B) which is relating to the provisions for transfer of statutory clearances. After which the MoEF&CC issued a notification dated 27th March, 2020 and amended the Environmental Impact Assessment Notification 2006. The Notification states that it shall be lawful for the new lessee to continue mining operations on the land in which mining operations were being carried out by the previous lessee for a period of 2 years from the date of commencement of the new lease. The MoEF&CC further stated in this notification dated 27th March, 2020 as follows-
"Now therefore in exercise of the powers conferred by Sub Section (1) and Clause (v) of Sub Section (2) and Section 3 of the Environment (Protection) Act 1986 (29 of 1986) read with Sub - Rule (4) of Rule 5 of the Environment (Protection) Rules 1986, the Central Government after having dispensed with the requirement of notice under Clause (a) of Sub Rule (3) of the Rule 5 of the said rules in public interest and in supersession of the Notification No. S.O. 4307 (E) dated 29th November 2019 hereby makes the following further amendments in the EIA Notification 2006 namely -
(i) in paragraph 11 after sub-paragraph (2) the following sub-
paragraph shall be inserted namely -
(3). The successful bidder of the mining leases expiring under the provisions of Sub-Section (5) and (6) of section 8A of the Mines and Minerals Development and Regulation Act 1957 (67 of 1957) and selected through auction as per the procedure provided under that Act and the rules made there under shall be deemed to have acquired valid prior 76 environmental clearance vested with the previous lessee for a period of two years, from the date of commencement of new lease and it shall be lawful for the new lessee to continue mining operations as per the same terms and conditions of environmental clearance granted to the previous lessee on the said lease area for a period of two years from the date of commencement of new lease or till the new lessee obtains a fresh environmental clearance with the terms and conditions mentioned therein, whichever is earlier :
Provided that the successful bidder shall apply and obtain prior environmental clearance from the regulatory authority within a period of two years from the date of grant of new lease;"
75. While dealing the matter of O.A. 10/2020, the Tribunal in para 12 observed as follows:
"12. Policy and planning is within the domain of the state and this tribunal cannot interfere in the policy making power of state or policy of the state unless it violates environmental rules. The respondent has made clear that the sand quantity excavated by the Village panchayat/local bodies was stated in the Sand Portal of the Respondent No. 1 and this information has been shared with the Respondent No. 4. The new contractor can move the excavated and from the quarry on the basis of Transit Pass issued by the Respondent No. 4 through this portal. The portal shall issue transit pass only for the remaining quantity of sand in the total period of 365 days stated in the Consent to Operate order and once this permitted quantity is lifted the portal shall not issue transit pass. The new contractor receives the quarry along with all the statutory permissions / clearances etc. along with the Consent to Operate. Further, notification states that it shall be lawful for the new lease to continue mining operations on the land in which mining operations were being carried out by the previous lessee for a period of 2 years from the date of commencement of the new lease."
76. Similar matter was raised in Original Application No. 24/2020 (CZ) and in Original Application No. 13/2020(CZ) and the matter was heard and decided and it was held that fresh EC is required only when there is expansion of business.
77. Learned counsel appearing for the respondent had submitted that this appeal has been filed under Section 14 as well as Section 16 of National 77 Green Tribunal, Act, 2010 which is not permissible in law and therefore not maintainable as the impugned order passed by Respondent No. 1 pertains to the transfer of EC under EIA 2006 read with Madhya Pradesh Sand Mining Rules, 2019. Section 16(h) and (i) of the National Green Tribunal, Act, provides appellate jurisdiction to this Tribunal in case of granting or refusal in granting fresh EC. The transfer of the EC is not within the scope of Section 16 of the Act as the transfer is mainly for the earlier approved EC for the same period under same terms and conditions with adoption of earlier approved plans. It is further argued that the appeal has been filed seeking multiple reliefs and this Tribunal have no jurisdiction to proceed on for several and multiple reliefs by way of filing one appeal or application.
78. The Appellant has raised an issue regarding the transfer of ECs for sand quarries which were surrendered by the previous contractors. It is submitted that the issue raised by the Appellant is no more res integra and is identical to the issue which has already been settled by this Tribunal vide Order dated 01.06.2020 in O.A. No. 10/2020 (CZ) Green and Green Lawyers vs Director of Geology and Mines MP & Ors., in favour of transferability of EC to new proponent for sand mining quarries after the termination of contract or surrender of lease by earlier proponent, for remaining period of the EC.
79. The Appellant is an interested party and seeks to achieve his personal gain and satisfy business rivalry with Respondent No. 5 and has never been involved in cause of conservation of nature and environment. The area over which the Appellant undertakes sand mining has regularly been reported with instances of illegal mining operations. A newspaper report dated 15.05.2020 reporting illegal sand mining in the Baradevi Panchayat. It is submitted that all the 13 quarries have valid ECs which 78 are valid from 2017-2022. That the ECs for 4 of the 13 trade quarries were issued in favour of the Gram Panchayats and remaining 9 were in favour of private parties in accordance with the MP Sand Mining Rules, 1996.
80. The nature of the 13 quarries could be divided into (a) those belonging to the Panchayats, and (b) those which are under the mining officer, since the lease has been surrendered/cancelled. It is also important to understand that the NOC has been granted not only by the mining officers, but also endorsed by the Additional Secretary, Mining Department. As regards the quarries under the Panchayat, the NOC has again, not only been granted by the CEO, Janpad Panchayat, but also the Additional Secretary, Mining Department. In absence of the previous contractors who were operating 9 sand quarries there is no requirement in law for getting NOC from a private contractor who has abdicated his duty. Moreover, it is pertinent to point out that the previous project proponents were not lease holders and rather were contractors as per the sand mining regime in place at that time. These private contractors had surrendered the sand quarries, which was granted by way of trade quarries. The sand quarries in Madhya Pradesh were earlier regulated by the Madhya Pradesh Minor Mineral Rules, 1996 wherein ordinary sand, bajri appears as Item 1 in Schedule II, and for which the Rules have special provisions for grant of trade quarry by way of auction. The Rules define trade quarry as a quarry for which the right to work is auctioned and the Contractor is defined as a person who holds a trade quarry. As per the Rule 7 and Rule 36 of the Rules of 1996, trade quarries of Mineral sand and bajri shall be allotted only by auction. It is submitted that the provisions of the Rules of 1996 clearly state that the quarries for mineral sand and bajri will be allotted only as a trade quarry and the State shall 79 not lease out the quarries to the bidders. It clearly establishes that the rights over the particular quarries are not transferred. It is nowhere provided that once the contract has been cancelled / suspended the State cannot grant the permit for the rest of the project period. It is submitted that Clause 11 was inserted for this very purpose to remove difficulty in case if earlier project proponent surrenders his lease/trade quarry or upon cancellation of his contract or in case of abdication of duty, among others and it is further argued that the Office Memorandum dated 14.01.2020 issued by the Respondent No. 1, SEIAA stated that the main lessee or the sub lessee can give the NOC considering that the ownership is of the State Government. In pursuance to this in absence of the private contractor the District Mining Officer can provide NOC. The above averment, obviously relates to the State being the primary custodian of such mining quarries.
81. It is to noted that Joint Secretary to the Government of India vide letter dated 03.06.2020 has issued certain directions and stated that National interest requires that all States should strive to get pre-embedded clearances for the mines which are ready for auction to promote ease of doing business in the mining sector and to expedite the auction process as well as operation of mining lease by a successful bidder in auction and in compliance thereof in exercise of the power conferred under Section 20 A of the Mines and Minerals (Development and Regulation) Act, 1957 in the national interest directed the State Government to follow the guidelines for pre-embeded clearances annexed with this order to implement in the letter and spirit.
82. The first legal point as raised by the learned counsel for the respondent no. 5 is that the appeal is barred by the prayer of multiple reliefs and this 80 is not maintainable under provisions as contained under section 14 and 16 of the National Green Tribunal Act.
83. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A petition is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the Appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the Appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide: State of Orissa v. Madan Gopal Rungta MANU/SC/0012/1951MANU/SC/0012/1951: AIR 1952 SC 12; Saghir Ahmad and Anr. v. State of U.P. MANU/SC/0110/ 1954 MANU /SC/0110/ 1954:AIR 1954 SC 728; Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal and Ors. MANU / SC/0063/1962 MANU/SC/0063/1962 : AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh MANU /SC/0690/1996 MANU /SC/0690/1996:AIR 1996 SC 2736; and Tamilnadu Mercantile Bank 81 Shareholders Welfare Association (2) v. S.C. Sekar and Ors. MANU/SC/8375/2008 MANU/SC /8375/2008 : (2009) 2 SCC 784).
84. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York MANU/SC/0017/1974 MANU/SC/0017/1974 : AIR 1974 SC 1719; and State of Rajasthan and Ors. v. Union of India and Ors.
MANU/SC/0370/1977MANU/SC/0370/1977: AIR 1977 SC 1361).
85. In Desh Bandhu Gupta & Co. & Ors Vs. Delhi Stock Exchange Association Ltd., AIR 1979 SC 1049, the Apex Court observed that the principle of contemporenea expositio, i.e. interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the same will not always be decisive of the question of construction. The administrative construction, i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules etc. generally should be clearly wrong before it is over-turned. Such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive. However, it may be disregarded for cogent reasons. In a clear case of error the Court should, without hesitation refuse to follow such construction for the reason that "wrong practice does not make the law." (Vide Municipal Corporation for City of Pune & Anr. Vs. Bharat Forge Co. Ltd. & Ors., AIR 1996 SC 2856). In D. Stephen Joseph Vs. Union of India & Ors., (1997) 4 SCC 753, the 82 Hon'ble Supreme Court has held that "past practice should not be upset provided such practice conforms to the rules" but must be ignored if it is found to be de hors the rules.
86. However, in Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr., AIR 2003 SC 3502, the Apex Court held that "the manner in which a statutory authority had understood the application of a statute would not confer any legal right upon a party unless the same finds favour with the Court of law dealing with the matter".
Therefore, "contemporanea exposito" by the State instrumentality is very useful and relevant for providing guidance to interpretation of expression used in the Rules. The administrative construction placed by the executive officers, responsible for execution of rules should be accepted and does not warrant over-turning unless found not in conformity of the Rules."
"When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another."
87. It is relevant to quote certain provisions of the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rule, 2019 as follows:-
"
3. Restrictions.--
83 The following restrictions shall be applied with regard to mineral sand,-
(1) No vehicle shall cause to be transported the mineral sand from the sanctioned quarry or storage place without prescribed transit pass.
(2) No vehicle shall cause to be transported without substantial entry in Transit Pass (as quantity of mineral, date/time of transport, time to be taken to reach to destination place, etc.).
(3) No person, except the valid contractor, shall be permitted to store mineral sand for commercial purpose or for use in commercial construction, quantity more than the quantity specified in these rules.
(4) The vehicles engaged in sand transportation without GPS or establishing of machine of equivalent technique as prescribed, shall be prohibited after the date of notification by the State Government. (5) Extraction and removal of sand from the following area shall be prohibited as provided in sustainable sand mining guidelines, 2016 issued by Government of India,-
(a) within 200 meters from any bridge;
(b) within 200 meter upstream and downstream areas of any water supply scheme or water resources scheme;
(c) within 100 meter from edge of national highway and Railway line;
(d) within 50 meter from any canal, reservoir or building;
(e) within 50 meter from edge of state highway and 10 meters from edge of other village road;
(f) within fixed distance from any areas which has been built to control the flood;
(g) within 200 meter distance from the place of cultural, religious, historical, and archaeological importance or within the distance as provided in the Act/Rule;
84
(h) such areas which have been declared prohibited by Collector due to environmental or other reasons: Provided that, on receipt of representation, permission to grant for mining within the limit of prohibited area may be considered, after getting NOC/Consent from the concerned administrative department.
(6) There shall be complete ban on mining, loading and storage of sand by machines from the sanctioned quarries in river Narmada. Sand mining, loading and storage from quarries having area up to 5.00 hectare situated on other rivers shall be done by the committee of local labourers and quarries having area more than 5.000 hectare, local labourers shall be given priority for sand mining, loading and storage. The use of machines for sand mining in other rivers may be given depending upon the requirement and approval in mining plan and environmental clearance.
5. (1) Demarcation of sand quarries The Collector, shall identify new sand bearing areas in rivers or on other places of the State. D.G.P.S. survey shall be carried out and its location on revenue map alongwith Latitude and Longitudes shall be marked:
Provided that the sand quarries demarcated and declared prior to the commencement of these rules, may be amended by following the same procedure as required.
(2) Declaration of sand quarries The sand quarry identified as per sub-rule (1) above shall be declared by the Collector, after making such inquiry as he deems fit, on receipt of information/application/proposal. Prior to declaring sand quarry, opinion from the concerned Gram Panchayat/Urban Body shall be obtained and for this purpose a formal order shall be issued:
Provided, if no opinion/advise of the concerned Gram Panchayat/Urban Body is received within a period of 15 days, the Collector, by presuming that there is no objection, shall declare new sand quarries in non-scheduled areas only:85
Provided further that, if any objection is received from concerned Gram Panchayat/Urban Body within stipulated period, the Collector by disposing off the objections on merit shall take appropriate decision regarding declaration of quarry: Provided further that, prior to declaration of sand quarry consent/no objection of Gram Sabha shall be mandatory in scheduled areas: Provided also that, the declaration of such sand bearing areas shall not be necessary separately which are operational or have been auctioned earlier.
(3) Making of group of the sand quarry.-
(a)The Collector shall make the group of sand quarries and send proposal to the Director along with details of area, boundary, revenue map, Khasra-Panchsala, Latitude-Longitude for each quarry included in group.
(b) The group shall be constituted on the basis of geographical location and revenue boundary (Tehsil, District) as for as possible.
(c) While making the group, total area of sand quarries included in the group and approximate available quantity of sand shall be taken into consideration.
(d) The proposal of constituted group sent by the Collector shall be finalised by Director.
12. Statutory Permissions.--
The statutory permissions/formalities for each sand quarry of the group may be obtained/completed, as per rule. All the statutory permissions (e.g. Mining Plan, Environmental Clearance, Water and Air Consent etc.) required for the operation of the sand quarry shall be obtained by the successful tenderer. The successful tenderer may start mining operation only after obtaining the statutory permissions as per rule 14. Excavation without statutory permission or excavation in excess quantity than permitted quantity in statutory permission, in such condition 100% cost of the excavated mineral and amount of compensation towards environmental damage shall be recoverable from the contractor. The statutory permission are as follows:-
(1) Mining Plan-86
(a) The successful tenderer shall submit mining plan for approval to the Collector within a period of one month from the date of issuance of letter of intent. The Mining Plan shall be prepared by the Recognised Qualified Person (R.Q.P.), authorised by the Director.
(b) The mining plan shall consist of the location (latitude-
longitude) of the mines, quantity of mineable sand available in the sand quarry and other issues, as provided for in Madhya Pradesh Minor Mineral Rules 1996.
(c) The Collector shall approve the mining plan on the basis of recommendations of the technically qualified officer (Post Graduate Degree Holder in Geology/Applied Geology) of the department posted in the district and in case if in any district technically qualified officer is not posted, in such case concerned Regional head or Director shall approve the mining plans.
(d) The mining plan shall be prepared only on the basis of actual quantity available/estimated and all the Mining operations shall be carried-out in accordance with the approved mining plan. (2) Environmental Clearance- The successful tenderer after getting approved mining plan, within a maximum period of 15 days, shall submit application before the competent authority to obtain Environmental Clearance in accordance with notification issued by Ministry of Environment, Forest and Climate Changes. (3) Water and Air Consent- The successful tenderer after getting environmental clearance within a maximum period of 7 days, shall submit application before the competent authority for obtaining the consent under the Water (Prevention of pollution and control) Act, 1974 and the Air (Prevention of Pollution and Control) Act 1981.
(4) Permissible Quantity-The mining shall be permitted up to mineable quantity fixed in mining plan, environmental clearance, water and air consent (whichever is less).
(5) The annual contract amount shall not be reduced in any case if there is reduction in mineable quantity in approved mining plan, environmental clearance, water and air Consent. (6) All the above statuary permissions shall be obtained within a time limit. The corporation shall supervise for the permissions being taken 87 for each group by the group contractor. In case of any delay, carelessness or lack of interest proceedings for cancellation of letter of intent may be initiated.
14. Commencement of the Mining Operations.--
(1) The successful tenderer, after execution of agreement and registration but prior to commencement of the mining operation, shall inform to the Collector about such intention. After Commencement of the mining operation the objection regarding available quantity of mineral in quarry, approach road and other related issues shall not be acceptable.
(2) On the condition of depositing the contract amount of the group on the prescribed date as mentioned in the agreement, the mining operation of the quarry may be started as and when the statutory permission is received. It shall not be compulsory to obtain statutory permission for all the quarries of the group simultaneously.
26. Provisions for transition period.--
(1)After commencement of these rules, there may be delay in complete execution of these rules, and due to nonoperation of sand quarries, deficiency in supply of sand may result, hence these provisions are being made. Some of the sand quarries which were auctioned previously and are in operation, the period of those quarries is up to March 2022. Besides this, some quarries which have been handed over/allotted to Gram Panchayat under provision of Madhya Pradesh Sand Rules 2018 are also in operation at present, the contractors of the group shall start immediately proceedings of transfer of permissions under environmental rules of such quarries.
(2) Other sand quarries transferred to panchayat in which operations have been started after the completion of formalities, all such quarries may remain date of start of operation be operated by Panchayat/Urban Bodies till 31st March 2020 or by the new group contractor from after execution of agreement, whichever is earlier. (3) From the date of commencement of these rules, the contractors of the auction quarries, may surrender the quarries. Surrender of such sand quarries shall be accepted, giving exemption in condition of agreement and security amount shall be refunded as per eligibility. 88
(4) Such quarries which have been surrendered or the period has been expired, shall be deemed to be included in the group which have been identified at the time of inviting tender. The contractor of the group shall complete all the statutory formalities for operation of such included quarries. In respect of this new quarry included additionally in the group, the amount of royalty as calculated per cubic meter shall be paid on the basis of the highest tender amount received for that group. The period of new quarry included shall be up to the period of expiry of contract.
(5) If during the period of operation of contract, any proposal for new quarry is received to the Collector, the Collector after such enquiry, as deems fit may include quarry in the nearest suitable group. The period of new quarry shall be the period of expiry of contract. The contractor of the group for despatch of sand from such new quarry shall deposit the amount on the basis of the highest tender amount received at the rate of per cubic meter for that group. Maximum of 25% of total permitted quantity for the group contract shall be allowed to be added in case of new quarry.
(6) The group or" quarries of the group remained vacant temporarily under the provisions of this rule or due to other reasons may, in public interest, be operated by the department or by the corporation for ensuring availability of sand."
88. Bare reading of the provisions contained under Section 26 of the Act provides that it is a transition period and since there may be delay in completion of execution of these rules, the provisions of sand quarries has been made by formulating the rules. Learned Counsel for the appellant has raised the question that in absence of lease there cannot be transfer of the EC and in reply thereof learned Counsel for the respondent had submitted that the word used in section 26 is sand quarries and it is stated that due to non-operation of sand quarries, deficiency in supply of sand may result, hence these provisions are being made. The intention of the legislature was to make the balance between the supply and demand of the sand which is essential part of the 89 development of the building constructions. It is further argued that the legislative intent is beneficial and should be interpreted in this way.
89. The learned counsel for the appellant had submitted that the NGT Act, 2010 is a beneficial legislation to protect the environment and to compensate the person who has sustained injuries due to non- maintenance of environment and on the principle of 'Polluter's to Pay', the appellant may be compensated. The beneficial legislation was interpreted in the New India Assurance Co. Ltd. vs. Ramesh Kalita And Others in (1989) ACC 248, the point of discussion in this case was the payment of compensation in the case of accident in motor is in Tribunal and in this reference, the relevant paras are as follows:
"13. Shri P.K. Das, learned Counsel for the claimant respondent has of course cited Oriental Fire and General Insurance Co. v. Smt. Shantabai S. Dhume AIR 1987 Bombay 52. The main consideration in giving Section 92-A retrospective operation appears to have been that the provision constitute a beneficial piece of legislation and the legislative intendment appeared clear. It was observed in Para 5:
The legislative intendment appears thus clear and what was apparently meant is to provide for compensation in all accident cases involving motor vehicles where death or permanent disablement occurred, the question as to whether the accident was due to the fault of the driver of the vehicle, or of the victim, or due to a mechanical failure, or to force majoure, being entirely irrelevant and immaterial. The legislative intendment is manifesly to give some relief to those who have the misfortune of meeting with such accident or to their families. Section 92-A embodies and is, as such, a piece of welfare legislation which requires a liberal interpretation so as its benefits may be extended to all victims of accidents or their families, especially when nowhere in the said provision of law it is postulated that the benefit is given prospectively only and on the contrary it would appear from its wording that the said benefit is to be 90 given in all cases where an accident occurred and as a result thereof, a death or a permanent disablement was occasioned. The Statement of Objects and Reasons of the Amendment Act to some extent corroborates this view for it particularly indicates that the intention of the Legislature was to remove the evil and mischief that people who suffered the accident had to face, being sometimes unable to prove the negligence or rashness of the driver or the owner of the vehicle and, therefore, unable to get the compensation they were entitled to.
15. The learned Counsel for the respondent has cited American Home Products Corporation v. Mac Laboratories where it was observed that construction leading to manifest absurdity, futility, palpable injustice or absurd inconvenience or anomaly should be avoided.
16. B. PrabhakarRao v. State of Andhra Pradesh was also cited where it was held that:
While it is a general rule of law that statutes are not to operate retrospectively, they may so operate by express enactment, by necessary implication from the language implied or where the statute is explanatory or declaratory or where the statute is passed for the purpose of protecting the public against some evil or abuse or where the statute engrafts itself upon existing situations etc etc. But it would be incorrect to call a statute 'retrospective', "because a part of the requisites for its action is drawn from a time antecedent to its passing". Vide R. v. St. Mary White chapel (Inhabitants) (1848) 12 QB 120. We must further remember, quite apart from any question of retrospectively, that, unlike in the United Kingdom here in India we have a written Constitution which confers justiciable fundamental rights and so the very refusal to make an Act retrospective or the non-application of the Act with reference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non- retroactivity or non- application clause, as offending the fundamental right to equality before the law and the equal protection of the laws.91
17. It is significant that by necessary implication from the language or where the statute is passed for the purpose of protecting the public against some evil or abuse or where the statute engrafts itself upon existing situations etc. etc., the retrospective effect to a statute may be considered, to let of operate retrospectively.
18. In GirdhariLal and Sons v. BalbirNath , it was laid down:
The primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to so interpret the statute as to promote and advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the Rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing, the, written word if necessary.
19. It is thus significant that it is enjoined on Courts to so interprete a law, having ascertained the intention so as to promote and advance the object and purpose of the enactment.
20. It is further significant that while doing so the Court may even depart from the rule that plain words should be interpreted according to their plain meaning.
21. In Skandia Insurance Co. Ltd. v. KokilabenChandravadan AIR 1987 SC 1184, the principle was laid down:
These must therefore be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim. To do otherwise would amount to nullifying the benevolent provision by reading it with a non-benevolent eye and with a mind not turned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the 92 legislature has given, the Court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent. In fact it appears that the former view is more plausible apart from the fact that it is more desirable When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the 'exclusion clause' does not cross swords with the 'main purpose' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose.
21. In Craies on Statute Law Seventh Edition at page 396 under the head "Statutes passed to protect the public sometimes held retrospective", it is stated "If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right".
22. Under the head "Statutes virtually retrospective" at the same page it is stated "Sometimes a statute although not intended to be retrospective, will in fact have a retrospective operation. For instance, if two persons enter into a contract, and afterwards a statute is passed, which, as Cockburn C.J. said in Duke of Devonshire v.
Barrow, etc., Co., "engrafts an enactment upon existing contracts"
and thus operate so as to produce a result which is something quite different from the original intention of the contracting parties, such a statute has, in effect, a retrospective operation".
23. It is also a well recognised principle that a statute is not properly called a retrospective statute because a part of the requisite for its action is drawn from a time antecedent to its passing. 93
24. In Maxwell on the Interpretation of Statutes, 11th edition at page
204. Section 4 - 'Retrospective operation', it is said:
Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation.
At page 211, it is stated;
Nor is a statute retrospective in the sense under consideration because a part of the requisite for its action is drawn from a time antecedent to its passing.
28. The statement of objects and reasons of the amending Act noted earlier clearly show that the new provision is manifestly a socially beneficial legislation intended to provide some measure of protective relief by way of quick payment of some compensation to the affected persons, in view of the grave risk which the public is exposed or subjected most of the time, with increasing numbers of fast moving motor vehicles on the road."
90. Where alternative constructions are possible the court must give effect system to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than the one which would put hindrances in its way.
91. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.
Nokes v. Doncaster Amalgamated Collieries Ltd (1940) A.C. 1014 where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system 94 which the statute purports to be regulating, and that alternative is to be rejected which will introduce uncertainty, fiction or confusion into the working of the system. Shannon Realities Ltd v. Ville de St Michel (1924) A.C. 185.
92. It is well settled principle that as the statute is an edict of the Legislature, the conventional way of Interpreting or construing a statute is to seek the intention of legislature. The intention of legislature assimilates two aspects, one aspect carries the concept of 'meaning, i.e., what the word means and another aspect conveys the concept of 'purpose' and 'object' or the 'reason' or 'spirit pervading through the statute. The process of construction, therefore, combines both the literal and purposive approaches. However, necessity of interpretation would arise only where the language of a statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute. If the language is clear and unambiguous, no need of interpretation would arise. In this regard, a Constitution Bench of five Judges of the Supreme Court in R.S. Nayak v. A.R. Antulay, MANU/SC/0102/1984MANU/SC/0102/1984:
1984CriLJ13 has held:
"If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision. The question of Construction arises only in the event of an ambiguity or the pain meaning the words used in the Statute would be self-defeating".
93. In Grasim industries Ltd. V Collector of Customs Bombay MANU/SC/0256/2002MANU/SC/0256/200: 2002(141)ELT593(SC) has followed the same principle and observe.
95
94. Learned counsel appearing for the appellant Shri Pinaki Mishra has argued that while issuing the permission to sand mining, the State Administration or the Authority which was issuing the permit was in confusion whether it is lease or sand mining or sand quarries. In reply thereof, learned Counsel for the respondent had submitted that the word used in Section 26 of the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rule, 2019 says the provision of operation of sand quarries and it cannot be confused by simply use of lease. It is further argued that there is a distinction between the minor minerals and major minerals and different procedures have been issued from time to time for operation of these minerals. It is further argued that the State SEIAA and the Mining Department has not raised any objection with regard to the lease or sand quarries and actually by operation of law, by use of Section 26 of the provisions of the Act. It is the sand quarries and it has been given to the person concerned according to the provisions contained in the Act itself and there is no illegality in the operation or issue of the Authority concerned. It is further argued that in case of the surrender sand quarries, it shall be deemed to be included in the group which has been identified at the time of inviting tender and the contractor of the groups shall complete all the statutory formalities for operation of such including quarries. In respect of this new quarry included additionally in the group, the amount of royalty as calculated per cubic meter shall be paid on the basis of highest tender amount received from the group. The period of new quarry included shall be upto the period of expiry of contract. The quarries which have been permitted by the State Authority are within the ownership of the State and that has been endorsed and permitted by the Secretary or Additional Secretary of the Department. It is further argued that vide Gazette Notification dated 28.03.2020 issued 96 from the Central Government, the Competent Authority added a provision to Clause 11 providing that successful bidder of mining leases which are expiring as per section 8a (5 and 6) of Mines and Minerals (Development and Regulation) Act 1957 shall be deemed to have acquired valid prior EC vested with the previous lessee for a period of two years from the date commencement of new lease and it shall be lawful for a new lessee to continue mining operation as per the same terms and conditions of the Environmental Clearance granted to the previous lessee on the said lease area for a period of two years and on the basis of above notification, it is argued that harmonious interpretation must be drawn from the Gazette Notifications dated 23.03.2015, 30.12.2016 and 28.03.2020 as a parallel provision in case of surrender sand quarries in question. Learned Counsel for the appellant has further argued that the 13 quarries, which are in question in the present appeal were surrendered or lapsed by the previous contractors and by virtue of surrender or lapsing, the said quarries has ceased to exist and the new contractor are required to obtain fresh Environmental Clearance. It is further argued that though there are 88 leases or quarries but the appellant is challenging only 13 sand mining. If we interpret the argument advanced by the learned Counsel for the appellant in light of the transferability of the Environmental Clearance, we see that a prior Environmental Clearance granted for a specific project or activity to an appellant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferee with a written no objection by the transferor to, and by the regulatory authority concerned, on the same terms and conditions under which the prior Environmental Clearance was initially granted and for the same validity period. No reference to the Expert Appraisal Committee or State Level 97 Expert Appraisal Committee concerned a necessary in such cases. The perusal of the above directions issued by the concerned Department, Government of India, it seems that the very purpose and intention of the rules are beneficial in nature and the word 'person' has been used for transfer of the project or activity and it is argued on behalf of the learned counsel for the respondent that in this matter, no objection has been issued by the regulatory authority who is the owner of the property of the sand mining and there is no violation of the conditions or there is no violation of the rules. Accordingly, the first question raised by the appellant has been satisfactorily explained by the Respondent.
95. Second question which has been raised by the learned counsel for the appellant is that the consent of prior Project Proponent is mandatory failing which the transfer of the Environmental Clearance in favour of the new contractor is per se illegal and in reply thereof, it has been submitted that ownership vested in the State and the Competent Authority on behalf of the State has permitted it and there is sufficient compliance of the Notification. In this matter, the Tribunal has also constituted a Joint Committee and in the report of the Joint Committee consisting Senior State Govt. Officials, it has been suggested and reported that there is compliance of the Notification and there is no illegal mining and there is no violation of any rules. Further, Rule 26 (1) Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rule, 2019 clearly stipulates that EC transferred will be done only of those quarries which were in operation during the promulgation of Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rule, 2019 which came into effect on 30.08.2019.
96. It is for the Government and the nation and not for the NGT and to lay down policy how the deposits minerals should be exploited at the cost of 98 ecology and how environmental considerations of the industrial requirements should be otherwise satisfied. It may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilisation that could indeed be a matter for an expert body to examine and on the basis of appropriate advice, Government should take a policy decision and formally implement the same. It is also for the Executive Authority to consider as to whether the operations are being carried out on scientific lines and as to whether the sand quarries are being supplied to individuals as stipulated by the Notification to the extent to which the mining operations are contributing to environmental damage.
97. Air and water are the most indispensable gifts of nature for preservation of life. Abundant sunshine together with adequate rain keeps nature's generating force at work, human habitations all through the ages have thrived on river banks and in close proximity of water source. Forests have natural growth of herbs which provide cure for diseases. The five most important ingredients for existence of life to whom which we indicate as Almighty (Bhagwan) consists of following elements:-
(i) Bha-Bhoomi
(ii) Aa-Agni
(iii) Ga-Gagan
(iv) Va-Vayu
(v) Na-Neer.
It is our duty to protect all these ingredients from being polluted.
98. After hearing the contention of both the parties, we are of the view that Section 26 of the Rules 2019 of the Madhya Pradesh is the provision for transition period and the word 'sand quarries' has been used in this provision and to meet out the deficiency in supply of sand. The essential provision has been made out and after perusal of the documents and 99 after perusal of the order and that too issued in light of transferability of the EC, it was acted upon to meet out the supply and demand of sand mining which is an essential part of the building construction. We see no illegality or irregularity in transferring of the EC especially in the projects where there is no expansion of business. We have already discussed and observed in other cases that fresh EC is required only in the case where there is expansion of business and in these cases, there is no expansion of business. The project and the quantity of the sand mining is regulated by the orders and regulations issued by the Government from time to time.
99. Accordingly, relief prayed is not maintainable. The question as raised by the Learned Counsel for the appellant has been satisfactorily explained by the Learned Counsel for the respondent. We deem it not proper to interfere in the matter and conclude the disposal with the following words of Atharva Veda (5.30.6) where it is said:
"Man's paradise is on earth.
This living world is a beloved place of all.
It has the blessings of nature's, bounties.
Love in lovely spirit."
100. The Pending I.A. (65/2020) is also disposed of.
Justice Sheo Kumar Singh, JM Dr. S.S. Garbyal, EM JG Appeal No.05/2020 (CZ) (I.A. No. 65/2020) 100