National Green Tribunal
Udaya Suvarna vs The Deputy Commissioner / Chairman ... on 1 September, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.09:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 252 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF:
Udaya Suvarna,
Karnataka and Anr.
...Applicant(s)
Versus
The Deputy Commissioner /Chairman,
Udupi District Sand Monitoring Committee,
Udupi and Ors.
...Respondent(s)
Date of hearing: 01.09.2020.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): None.
For Respondent(s): M/s. Dharpan for R1, R2, R4.
M/s. Vasanth H.K. for R3, R6.
M/s. M.R. Gokul Krishnan for R7.
M/s. G.M. Syed Nurullah Sheriff for R5.
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ORDER
1. As per order dated 25.02.2020, inspite of the fact that there was no representation for the applicant, this Tribunal had considered the pleadings and also the grievance in this application and its importance and passed the following order:-
"25. Under these circumstances we feel it appropriate to get a detailed report from the Deputy Commissioner & Chairman Udupi District Sand Monitoring Committee, Chairman, Karnataka State Coastal Zone Management Authority and Member Secretary State Level Environment Impact Assessment Authority, Karnataka regarding the manner in which the sandbar removal is being carried out in their State and whether the guidelines issued by Ministry of Environment, Forest and Climate Change (MoEF&CC) in 2016 on Sustainable Sand Mining Management is being implemented in letter and spirit and whether the office memorandum issued by the Ministry of Environment, Forest & Climate Change (MoEF&CC) in this regard is also being strictly followed.
26. The above authorities are directed to submit as to whether any action was taken by them or whether any incidents of illegal mining has been traced out by them and if so what is the nature of action taken by them in this regard, whether any prosecution has been launched, vehicles have been seized and whether any penalty has been imposed etc. They are directed to submit the report before this Tribunal within a period of two weeks. If no such statement is forthcoming then the respective officers are directed to be present in Court to explain the things that are going in their State in this regard."2
and posted the case to 27.03.2020 for consideration of report.
On 27.03.2020, the matter was adjourned to 16.07.2020 and on 16.07.2020, it was again adjourned today by successive notifications.
2. When the matter came up for hearing today through Video Conference, there was no representation for the applicant even today. Sri. Dharpan represented respondents 1, 2 & 4, Sri. G.M. Syed Nurullah Sheriff represented 5th respondent, Sri. M.R. Gokul Krishnan represented 7th respondent and Sri. Vasanth H.K. represented respondents 3 & 6.
3. We have received the unsigned report said to be submitted by the State Environmental Impact Assessment Authority, Karnataka which reads as follows:-
"Report incompliance to the orders of the Hon'ble NGT (South Zone) in O.A. No.252 of 2017 (SZ) dated 25.02.2020 regarding the manner in which the sand bar removal is being carried out in the State of Karnataka from Respondent No.3, State Level Environment Impact Assessment Authority:
The procedure followed in the State of Karnataka while granting permission for removal of sand bar is submitted as follows:
Sand mining is a prohibited activity in the CRZ area as per para 3 (x) of CRZ Notification bearing No. S.O.19 (E), dated 6th January 2011 issued by MoEF&CC. However, the Ministry of Environment, Forest and Climate Change 3 vide Office Memorandum bearing No.11-83/2005-IA.III, dated 24th February 2011, 9th June 2011 and 8th November 2011 permitted removal of sand bards as pr the provisions under para3 (iv) (d) "Measures to prevent sand bars, installation of tidal regulators, laying of storm water drains for structures for prevention of salinity ingress and fresh water recharge based on carried out by any agency to be specified by MoEF". For this purpose the MoEF&CC have specified the following institutions:
(i) Central Water and Power Research Station
(ii) IIT Chennai, IIT Bombay
(iii) Department of Erosion Directorate, Ministry of
Water Resources
(iv) ICMAM
(v) National Centre for Sustainable Coastal
Management
(vi) NIT, Suratkal.
Subsequently, the Ministry of Environment and Forest vide O.M. No.11-83/2005-IA.III (part-III), dated 9th June 2011 issued following guidelines in continuation to the O.M. dated 24th February 2011 for management of the sand bar including its removal.
a) Sand bars which pose danger to navigation of fishing boats and vessels shall be identified by the concerned Department in the State Government.
b) The State Government in consultation with the State agencies such as PWD, Water Resources Department, Fisheries Department, etc. may formulate a proposal for management of the sand bars including its removal.4
c) The proposal shall be examined by any of the six institutions identified in the above Office Memorandum dated 24th February, 2011, namely, (a) Central Water and Power Research Station, Pune; (b) IIT, Chennai, IIT, Bombay; (c) Department of Erosion Directorate, Ministry of Water Resources; (d) Integrated Coastal and Marine Area Management, Chennai; (e) National Centre for Sustainable Coastal Management; and
(f) National Institute of Technology, Surathkal.
d) Based on the suggestions/recommendations received from these institutions the concerned state government agency(s) shall obtain necessary recommendations from the State/Union Territory (Ut) Coastal Zone Management Authority.
e) Based on the recommendations of the State/Ut Coastal Zone Management Authority the Environment Department of the State/Ut shall take final decision on the proposal with valid justification.
f) The decision shall be put on the website of the concerned agency undertaking the project and also on the website of the State/Ut Coastal Zone Management Authority.
Further, the Ministry of Environment and Forest vide O.M. No.11/832005-IA.III (Volume-iii) dated 8th November 2011 stipulated the following conditions for removal of sand bards by traditional coastal communities only by manual method.
(a) The District Collector shall chair a seven member committee consisting of, concerned officials as 5 also at least one representative of each from a scientific or technical Institute, the local communities, like fisher folk and the local civil society.
(b) Based on the recommendations of the above committee, the District Collector may permit such removal of sand in the specified time period in a particular area along with specific quality subject to such conditions, such as registration of local community persons permitted to remove the sand manually.
(c) The Environmental Official at district level shall monitor the removal of sand and submit report to the Collector as may be specified say quantity of sand removed in the period concerned.
(d) The above permit shall be renewed on yearly basis.
(e) The agenda and the minutes of the aforesaid committee, permits issued by Collector and monitoring reports of the removal of sand would be uploaded on the website of the collectorate and also made available hard copy to Zill Parishad etc. as may be directed by the Collector.
(f) The accumulation of sand bar, its removal process etc. shall be studied by the State Government with the help of satellite imageries, GPS, etc. It shall be ensured that the permits are not accorded in such areas which are identified as eco-sensitive zones, fish migratory and breeding grounds. The permits shall be given taking into consideration the local circumstances and ecological settings.6
In the State of Karnataka the District administration have engaged National Institute of Technology, Suratkal for conducting study and examine the proposal regarding removal of identified sand bars which poses danger to navigation of fishing boats and vessels. The said institution have given report after duly examining the location, the size, height and length of the sand bar with due recommendations for removal. The committee headed by the Deputy Commissioner consisting of the representatives of the concerned departments will consider and send recommendation.
Pursuant to the recommendation of the committee, the District Administration submits proposal to the DCZMC headed by the D.C. for consideration of the proposal under the provisions of CRZ Notification, 2011 and send their recommendation to the KSCZMA. The KSCZMA examins the proposals and accord approval for removal of sand bar by the local Committees subject to strict compliance to the condition there on.
The Principal Bench of the Hon'ble NGT vide order dated 5th August 2013 in O.A. No.171/2013 and connected matters restrained carrying out any mining activity or removal of sand from river beds anywhere in the country without obtaining Environmental Clearance from MoEF/SEIAA and license from competent authorities. Accordingly such application, when submitted following due procedure of law were considered by the SEIAA, Karnataka and decided based on merit to grant Environmental Clearance with conditions.
When the O.A. No. 171/2013 was finally disposed off vide order dated 13.01.2015 by the Hon'ble NGT, no specific direction regarding consideration of applications for grant EC for removal of sand bar were issued and 7 management/removal of sand bar do not fall under the purview of mining of minerals as specified either under MMDR Act or under EIA Notification, 2006. Therefore, since then no applications were received seeking Environmental Clearance for removal of sand bar under EIA Notification, 2006."
4. We have also received another report submitted by the Special Director (Technical Cell), Department of Forest, Ecology and Environment which reads as follows:-
"Report incompliance to the orders of the Hon'ble NGT (South Zone) in O.A. No.252 of 2017 (SZ) dated 25.02.2020 regarding the manner in which the sand bar removal is being carried out in the State of Karnataka from Respondent No.3, State Level Environment Impact Assessment Authority:
The procedure followed in the State of Karnataka while granting permission for removal of sand bar is submitted as follows:
Sand mining is a prohibited activity in the CRZ area as per para 3 (x) of CRZ Notification bearing No. S.O.19 (E), dated 6th January 2011 issued by MoEF&CC. However, the Ministry of Environment, Forest and Climate Change vide Office Memorandum bearing No.11-83/2005-IA.III, dated 24th February 2011, 9th June 2011 and 8th November 2011 permitted removal of sand bards as pr the provisions under para3 (iv) (d) "Measures to prevent sand bars, installation of tidal regulators, laying of storm water drains for structures for prevention of salinity ingress and fresh water recharge based on carried out by any agency to be specified by MoEF". For this purpose the MoEF&CC have specified the following institutions:
8
(i) Central Water and Power Research Station
(ii) IIT Chennai, IIT Bombay
(iii) Department of Erosion Directorate, Ministry of
Water Resources
(iv) ICMAM
(v) National Centre for Sustainable Coastal
Management
(vi) NIT, Suratkal.
Subsequently, the Ministry of Environment and Forest vide O.M. No.11-83/2005-IA.III (part-III), dated 9th June 2011 issued following guidelines in continuation to the O.M. dated 24th February 2011 for management of the sand bar including its removal.
a) Sand bars which pose danger to navigation of fishing boats and vessels shall be identified by the concerned Department in the State Government.
b) The State Government in consultation with the State agencies such as PWD, Water Resources Department, Fisheries Department, etc. may formulate a proposal for management of the sand bars including its removal.
c) The proposal shall be examined by any of the six institutions identified in the above Office Memorandum dated 24th February, 2011, namely, (a) Central Water and Power Research Station, Pune; (b) IIT, Chennai, IIT, Bombay; (c) Department of Erosion Directorate, Ministry of Water Resources; (d) Integrated Coastal and Marine Area Management, Chennai; (e) National Centre for Sustainable Coastal Management; and
(f) National Institute of Technology, Surathkal.9
d) Based on the suggestions/recommendations received from these institutions the concerned state government agency(s) shall obtain necessary recommendations from the State/Union Territory (UT) Coastal Zone Management Authority.
e) Based on the recommendations of the State/UT Coastal Zone Management Authority the Environment Department of the State/UT shall take final decision on the proposal with valid justification.
f) The decision shall be put on the website of the concerned agency undertaking the project and also on the website of the State/UT Coastal Zone Management Authority.
Further, the Ministry of Environment and Forest vide O.M. No.11/832005-IA.III (Volume-iii) dated 8th November 2011 stipulated the following conditions for removal of sand bards by traditional coastal communities only by manual method.
a) The District Collector shall chair a seven member committee consisting of, concerned officials as also at least one representative of each from a scientific or technical Institute, the local communities, like fisher folk and the local civil society.
b) Based on the recommendations of the above committee, the District Collector may permit such removal of sand in the specified time period in a particular area along with specific quality subject to such conditions, such as registration of local 10 community persons permitted to remove the sand manually.
c) The Environmental Official at district level shall monitor the removal of sand and submit report to the Collector as may be specified say quantity of sand removed in the period concerned.
d) The above permit shall be renewed on yearly basis.
e) The agenda and the minutes of the aforesaid committee, permits issued by Collector and monitoring reports of the removal of sand would be uploaded on the website of the collectorate and also made available hard copy to Zill Parishad etc. as may be directed by the Collector.
f) The accumulation of sand bar, its removal process etc. shall be studied by the State Government with the help of satellite imageries, GPS, etc. It shall be ensured that the permits are not accorded in such areas which are identified as eco-sensitive zones, fish migratory and breeding grounds. The permits shall be given taking into consideration the local circumstances and ecological settings.
In the State of Karnataka the District administration have engaged National Institute of Technology, Suratkal for conducting study and examine the proposal regarding removal of identified sand bars which poses danger to navigation of fishing boats and vessels. The said institution have given report after duly examining the location, the size, height and length of the sand bar with due recommendations for removal. The committee headed by the Deputy Commissioner consisting of the 11 representatives of the concerned departments will consider and send recommendation to DCZMC.
Pursuant to the recommendation of the committee, the District Administration submits proposal to the DCZMC headed by the D.C. for consideration of the proposal under the provisions of CRZ Notification, 2011 and send their recommendation to the KSCZMA. The KSCZMA examines the proposals and accord approval for removal of sand bar by the local Committees subject to strict compliance to the condition there on.
The Principal Bench of the Hon'ble NGT vide order dated 5th August 2013 in O.A. No.171/2013 and connected matters restrained carrying out any mining activity or removal of sand from river beds anywhere in the country without obtaining Environmental Clearance from MoEF/SEIAA and license from competent authorities. Accordingly such application, when submitted following due procedure of law were considered by the SEIAA, Karnataka and decided based on merit to grant E.C. with conditions.
When the O.A. No. 171/2013 was finally disposed off vide order dated 13.01.2015 by the Hon'ble NGT, no specific direction regarding consideration of applications for grant EC for removal of sand bar was not forthcoming. Further management/removal of sand bar does not fall under the purview of mining of minerals as specified either under MMDR Act or under EIA Notification, 2006. Therefore, no application were referred to SEIAA for Environmental Clearance under EIA Notification, 2006.
Now, therefore applications seeking clearance under CRZ Notification, 2011/2019 for the management of removal of sand bar are considered by the KSCZMA and clearance accorded based on merit as per the procedure 12 laid down in the O.M.s dated 24th February 2011, 9th June 2011 and 8th November 2011 issued by MoEF&CC.
Deviation and non-compliance of conditions if any will be dealt in accordance with law. Presently the term of KSCZMA is over and it is under reconstitution. Therefore, this information is furnished from the available records of the Secretariat of the erstwhile KSCZMA."
5. All these reports only mentioned about the mechanism by which the removal of sand bar in the river bed is being managed in the State. Only the 1st respondent who is the Chairman of the Committee constituted by this Tribunal in O.A. No.171/2013 can give details regarding the violation and also the action taken, if the allegations mentioned in the application are true.
6. But, unfortunately no such report has been filed by the said authority as directed by this Tribunal by an earlier order dated 25.02.2020.
7. When this was pointed out Sri. Dharpan, learned counsel representing the State Departments sought some more time to submit the report. Without getting that report, it is not possible for this Tribunal to dispose of the case.
8. So considering the circumstances, we feel it appropriate to grant one more opportunity to the 1st respondent to comply with the direction issued by this Tribunal by order dated 25.02.2020.
139. First respondent is also directed to submit a report to this Tribunal on or before 06.10.2020 by e-filing after complying with the necessary procedure of producing as many number of hardcopies as required as per rules.
10. Learned counsel is also directed to serve a copy of the report to the counsel appearing for the other parties as well within a week so as to enable them to know the contents of the report and enable them to file their objection if any before the next hearing date.
11. The Registry is directed to communicate this order to the concerned authorities by e-mail immediately so as to enable them to comply with the direction.
12. For consideration of report, post on 06.10.2020.
....................................J.M. (Justice K. Ramakrishnan) .................................E.M. (Shri. Saibal Dasgupta) O.A. No.252/2017, 01st September, 2020. Mn.
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