Jahagir vs State Of Haryana on 27 January, 2023

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National Green Tribunal

Jahagir vs State Of Haryana on 27 January, 2023

1. Grievance in this application is against unscientific and illegal mining by M/s Star Mines, Saharanpur, obstructing the flow of Yamuna River in Village Belgarh, U.P (it is now stated by the parties that the said village falls on the side of Haryana on the bank of Yamuna river). It is stated that fifteen Pokland machines are working day and night causing damage to the environment, including air pollution. Though lease for mining is for the area in Saharanpur District in UP, the lessee is undertaking illegal mining in Village Belgarh in Haryana also.

1 Procedural History

2. Vide order dated 27.10.2021, a factual and action taken report was sought from a joint Committee of Haryana State PCB, UPPCB, SEIAA, UP, SEIAA, Haryana, District Magistrate, Yamuna Nagar and District Magistrate, Saharanpur, U.P. The joint Committee gave its report dated 26.05.2022 inter-alia to the effect that boundary of the State was not clearly demarcated so as to identify the site of illegal mining. Vide order dated 12.08.2022, the report was held to be unsatisfactory and incomplete. The Tribunal directed the Chief Secretaries of Haryana and UP to take remedial action, including action against erring officers in failing to give complete information and also to provide complete information. Notice was also issued notice to the Project Proponent (PP) - M/s Star Mines, Saharanpur.

Stand of the PP, States of UP and Haryana

3. In pursuance of above, response has been filed by the PP as well as UP and Haryana States. The applicant has filed email dated 12.10.2022 reiterating the allegation of illegal mining. We have heard learned Counsel for the appearing parties.

Stand of PP

4. The stand of PP is that it has not done any illegal mining and in any case action has already been taken against it in pursuance of earlier orders. Matter is also pending in appeals against orders of this Tribunal. Thus, present application is not maintainable. In any case, there is no violation for which any further order may be called for.

5. It is submitted that EC dated 26.3.2021 granted to it was held to be illegal for want of replenishment study vide order dated 10.5.2022 in 2 Appeal No. 15/2022, Pramod v. State of UP and direction was issued to recover compensation for illegal mining. The Tribunal passed order on consideration of report of joint Committee dated 30.03.2022 to the effect that no replenishment study had been undertaken, consents under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 had not been taken and NOC for extraction of ground water had not been obtained. Further violations were failure to provide plantations, install of air quality monitoring stations and maintaining roads. The Tribunal accepted the report except with regard to adequacy of assessed compensation which was directed to be enhanced for restoration of environment. Findings of the Tribunal are :-

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7. We have heard learned counsel for the parties. It is clear from the report of the joint Committee (Para 6.5) that the mining operations were conducted without requisite consent. Show cause notice was given to the PP and compensation proposed. It is also seen from para 6.6.9 that claim of the PP is that water requirement was being met from tankers from nearby stone crushers but lending of use of water was violation of Rules. No plantations were visible. The PP has excavated excess mined material beyond the permitted quantity. Mining was taking place within 500 meters and cluster certificate dated 12.03.2020 was incorrect. The ground water extraction has taken place without requisite NOC from CGWA. These findings are not in any manner shown to be erroneous. We accept the report to the extent of the violations found.

8. However, we find the assessment of compensation for illegal extraction of ground water and for operation without requisite consents to be inadequate. The same need to be calculated with reference to the cost of remediation and financial capacity of the PP which has not been done. In this connection, reference is made to the order of the Tribunal dated 26.02.2021 in O.A. No. 360/2015, National Green Tribunal Bar Association v. Virender Singh (State of Gujarat) & Ors.

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9. Accordingly, the State PCB may appropriately enhance the compensation for illegal extraction of ground water and conducting mining without requisite consents within two months, following due process of law.

10. The assessed compensation may be deposited by the PP within two months with the State PCB to be kept in a separate account and utilized for restoration of environment by preparing a restoration plan by joint Committee of CPCB, State PCB and District Magistrate, Saharanpur. Restoration plan may include plantation, air quality monitoring system, restoration of roads. The Committee may also oversee the execution of the restoration plan, involving appropriate agencies."

6. Against the above order the PP has filed Civil Appeal No. 5013/2022, M/s Star Mines v. The State of UP & Ors. wherein vide order dated 12.08.2022, the Hon'ble Supreme Court passed following order:-

"Issue notice subject to deposit of the penalty of Rs. 2,00,00,000/- (Rupees two crores only) in the National Green Tribunal, Principal Bench, New Delhi, without prejudice to the rights and contentions of the respective parties.

Subject to deposit of Rs. 2,00,00,000/- as aforesaid, there shall be stay of operation of the impugned order till the next date of hearing."

7. Second matter dealt with by the Tribunal with regard to violations by the PP is by order dated 11.05.2022 in OA No. 249/2021 & 251/2021 Daljeet Singh & Anr. v. UP PCB & Ors. alleged by the applicant and confirmed by the joint Committee which were similar to the violations considered vide order dated 10.5.2022 in Appeal No. 15/2022. The Tribunal disposed of the matter with a direction that further action be taken for not permitting mining without requisite consents and to recover compensation in accordance with judgment of the Hon'ble Supreme Court in Common Cause (2017) 9 SCC 499. Operative part of the order is reproduced below:-

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8. In view of above, the State PCB and the District Magistrate may take further action of not permitting mining without requisite Consents and assessing and recovering compensation as per law. It is made clear that compensation for illegal mining has to be equal to the value of mined material in view of Section 21 (5) of the MMDR Act, 1957 and orders of the Hon'ble Supreme Court in Common Cause vs. Union of India & 4 Ors., (2017) 9 SCC 499. Apart from recovering value of the mined material as compensation, for violation of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, compensation has to be in addition having regard to the cost of restoration of damage and the paying capacity of the project proponent (PP). Compensation be also to be assessed for illegal extraction of ground water. This exercise may be completed by the State PCB within three months. Recovered compensation be utilised for restoration of environment by preparing an action plan to be approved by CPCB."

7. Against the said order the PP has filed Civil Appeal No. 26439/2022, M/s Star Mines v. UPPCB & Ors. wherein following order has been passed on 26.09.2022:-

"Applications for exemption from filing certified copy of the impugned judgment and exemption from filing official translation are allowed. Delay condoned.

Issue notice.

Liberty is granted to serve the standing counsel, in addition. However, we permit the U.P. Pollution Control Board to proceed with the assessment of compensation."

8. Apart from the above, it is stated that identical was raised against three other mining operators - M/s Development Strategies India Pvt. Ltd., M/s Delhi Royalty Company and M/s Mubarikpur Royalty Company at Yamuna Nagar, Haryana which was dealt with by the Tribunal vide Order dated 18.11.2022 in OA No. 151/2021, Anish v. UOI. In respect of violations found therein, compensation on Polluter Pays principle was fixed.

9. The PP has thus submitted that present application raises the issue which has already been dealt with and hence no further order was called for.

5 Stand of State of UP

10. Stand of State of UP in its report dated 12.9.2022 is that since consents have not been taken by the PP, there is no illegal mining on UP side of Yamuna for which mining lease has been granted. Illegal mining is being reportedly done in Haryana. Relevant part of the report is reproduced below:-

"4- Pursuant to directions of Hon'ble Tribunal, District Magistrate Saharanpur conducted enquiry and submitted a fresh report to the Government in this matter and as per this report, the facts of the matter are following:-

1- The lease deed of five year mining was approved for mining of sand, gravel, boulder (in mixed .condition) in Gata No.-1 area-36.00 hectare of M/s Star Mines Village- Bartha Korsi on 01.04.2021.

2- In compliance with the order dated 28.10.2021 of Hon'ble National Green Authority, the mining on the said plot remained unoperational till 10.01.2022.

3- The mining lease was unoperational till 09.01.2022 in compliance with the order dated 28.10.2021 of Hon'ble National Green Tribunal due to non-receipt of water/air consent from the UP Pollution Control Board.

4- After the above date, Mining is being done by the lessee M/s Star Mines, Saharanpur within the limits of approved area of lease in U.P. 5- Executive Engineer, Irrigation Construction Division, Saharanpur has been directed by letter dated 31.08.2022 to make available the inquiry report regarding the change in the flow of Yamuna river within a week.

6- As per the report of the Tehsildar Chhachhrauli, Yamuna Nagar, Haryana. It seems that the Illegal mining seems to be taking place in the village Belgarh which is located in the State of Haryana. Village Belgarh and Village Koliwala, which are adjacent to the border of Haryana and Uttar Pradesh, currently have mining leases in operation and many stone crushers have been established in the said area. But no mining work has been done by M/s Star Mines outside its sanctioned area towards Belgarh. Belgarh falls in west direction and village Bartha Korsi falls in east direction.

7- As far as the change in the flow of the river is concerned, no change in the flow of the river has been found during the on-site inspection, as per the individual report submitted by the team members consisting of officers of 6 Uttar Pradesh. It was also informed by the local people that the river has been flowing at this place since many years.

Therefore, in view of the above, illegal mining in the area adjoining the border in the Uttar Pradesh has not been found nor has any fact been found that the district officials of the district Saharanpur are guilty for the same. This Action taken report is submitting after approval of Chief Secretary, Government of Uttar Pradesh."

Stand of State of Haryana

11. Mines and Geology Department, Haryana has filed its reply dated 21.01.2023 to the effect that due to excessive flow of the river, facts could not be verified. Illegal mining was reported at the border of Haryana and U.P. in the middle of river Yamuna. FIR for theft has been lodged. Action has been initiated against the IO for failing to take remedial actions. Relevant part of the report is reproduced below:-

"5. That the Deputy Commissioner, Yamuna Nagar submitted his report dated 07 October 2022 wherein he has stated that fresh inspection of Khasra No. 19//20 and 20//13 was jointly conducted on 30 September 2022 by the Mining Department and the Revenue Department but due to excessive flow of water, the team could not reach the site in question as same was across the river. He has further stated that an FIR No. 163 dated 03 June 2021 was registered under section 379 of IPC and section 21(4) (A) of the Mines and Mineral Development & Regulations Act, 1957 at Police Station, Partap Nagar, Yamuna Nagar.

6. That the Department of Mines and Geology has informed that Khasra No. 19//20 and 20//13 where illegal mining was reported is just at the border of Haryana and U.P. and is in the middle of river Yamuna. On account of illegal mining identified in Khasra No. 19//20 and 201/13 of village Bailgarh, action was taken by registering an FIR No. 163 dated 03 June 2021 under section 379 of IPC and section 21(4) (A) of Mines and Mineral Development & Regulations Act, 1957 at Police Station Partap Nagar, Yamuna Nagar.

The matter in said FIR is under investigation. Copy of FIR No. 163 dated 03 June 2021 is enclosed herewith as Annexure R/1.

The area of these Khasra numbers is adjacent to the contract/leased area of the contractor of Uttar Pradesh State, i.e., M/s Star Minerals. The google image showing distance between illegal mined site in question (Khasra No.19//20 and 7 20//13) and the contract area of M/s Star Minerals is 300 mtr. In the latest report dated 11 October 2022, the Deputy Commissioner, Yamuna Nagar, has reported that as per report dated 10 October 2022 of Superintendent of Police, Yamuna Nagar, an inquiry was conducted by DSP, Bilaspur regarding the said FIR No. 163 dated 03 June 2021. As per report of DSP, Bilaspur's (report No. 1090 dated 07 October 2022) disciplinary action has been recommended against the Investigation Officer of the case namely ASI Sh. Shamsher Singh No. 410, Yamuna Nagar for lapse in conducting due and proper investigation in the matter. Accordingly, a departmental inquiry has been marked to DSP, Radaur against the said ASI, Sh. Shamsher Singh No. 410. In addition, to expedite the investigation, a Special Investigation Team (SIT) comprising of DSP, Bilaspur and SHO, Pratap Nagar has been now constituted by the Supeiintendent of Police, Yamuna Nagar on 10.10.20222 (copy enclosed). The direction has been issued for expeditious investigation and taking the action to its logical & legal end.

7. That further as per report received from HSPCB vide letter dated 17 January 2023, no complaint had been received in the past regarding illegal mining in respect of Khasra No. 19//20 and 20//13 (where the illegal mining had happened as per the complaint) by M/s Star Minerals. It has also been reported that HSPCB had not granted CTE/CTO to any unit for doing mining in Khasra No. 191/20 and 20//13 situated at Village -- Bailgarh, District - Yamuna Nagar. M/s Star Minerals has been allotted the mining quarry by the Mining Department of Government of Uttar Pradesh. Illegal mining has been confirmed in Para No.3 of the Report of Joint Committee but it is also mentioned that due to the flow of water in the River, the quantum of mining undertaken could not be ascertained. Thus, it is difficult to assess the Environmental Compensation in the absence of quantum of mining.

To summarise, investigation in FIR No. 163 dated 03 June 2021 should have been taken to its logical end but it could not be done. On account of this lapse, a departmental inquiry is being conducted against the Inquiry Officer of the case, i.e., ASI, Sh. Shamsher Singh No. 410. Further, to expedite the investigation in the case, a Special Investigation Team (SIT) of DSP, Bilaspur and SHO, Pratap Nagar has been constituted by the Superintendent of Police, Yamuna Nagar. The direction has been issued for expeditious investigation and taking the action to its logical end."

8 Consideration by the Tribunal and further Directions

12. From the above, it is seen that in the past illegal mining was found by the PP for want of valid EC, requisite consent and non-compliance of EC conditions vide orders dated 10.5.2022 and 11.5.2022 in Appeal No.15/2022 and OA No. 249/2021 respectively for which directions were issued for stopping illegal mining and recovering compensation. Against the said orders, matters are pending in the Hon'ble Supreme Court. We refrain from dealing with the said issues again in view of earlier orders and pendency of appeal in Hon'ble Supreme Court. We are also not revisiting the subject of matter of third matter i.e. OA No. 151/2021 which involved the issue of illegal mining in same area including village Belgarh in Haryana.

13. However, this is not the end of the matter. In none of the above three matters issue involved in the present matter i.e. illegal mining by the PP in area beyond its mining lease has been dealt with.

14. According to report of Haryana, noted earlier, illegal mining is taking place in Khasra No. 19//20 and 20//13, village Belgarh in Haryana, 300 meters from the leased area of the PP for which FIR has been lodged. Extent of illegal mining could not be ascertained due to flow of water at the time of fresh joint inspection on 30.09.2022 by Mining and Revenue Departments.

15. Having regard to the factual information in the report from Haryana that illegal mining is taking place at 300 meters from the area of mining lease of the PP, it is difficult to rule out the role of the PP in such illegal mining. Thus, further enquiry in the matter is inevitable. As per Enforcing & Monitoring Guidelines for Sand Mining issued by MoEF&CC in January, 9 2020, mechanism for monitoring mining near interstate boundary has been given as follows:-

"9.3 Monitoring of Mining near Inter-district or inter-state boundary There are situations where bifurcated river becomes district boundaries or state boundaries in such situation it is difficult to assess the mining potential, or to have close monitoring and enforcement of the regulatory provision. Such challenges have been identified and dealt with in SSMG-2016. However, in the absence of any standardized procedure, the monitoring has not been effectively practiced. This has been highlighted by the High Power Committee constituted by NGT in the matter pertaining to illegal mining.

The districts/state sharing the boundary shall constitute the combined task force for monitoring of mined materials, mining activity and also should actively participate in the preparation of DSR by providing appropriate inputs. In such cases, the draft DSR so prepared shall be put up for public consultation in both the districts through respective district administration website.

The task force shall meet every quarter to reconcile the data collected during the period and identify any gap/ lapses based on the outcome of such meeting. The respective district shall take action/ corrective measures. Effort shall be made for real-time data sharing between both the district.

The task-force shall include essentially the representative of respective districts from the mining department, transport department, regional office of SPCB concerned and a reputed citizen nominated by district administration. The Taskforce shall be headed by officer not less than ADM rank and quarterly outcome shall be submitted to District administration. In addition to the above, there is a need for strict surveillance, particularly at night. The State of Gujarat has already initiated a program called 'Trinetra' for night surveillance by using night-vision drones to control illegal mining incidents. This program is giving satisfactory results. Such type of system may also be developed by each State within a reasonable time.

A typical standard operating procedure for assessing illegal mining by the committee constituted shall, but not limited to, include the steps given in the following table. However, the process of assessing can be modified based on site-specific conditions and any deviation shall be recorded in the report with proper justification.

Suggestive standard Practice for assessing illegal mining 10 Step 1 The assessment team should collect the information and documents prescribed in the Pre-Requisite section.

Step 2 The assessment team should verify the applicability/validity of statutes under EPA-1986, Air and Water Act, MMDR 1957, State Mines and Mineral Rules, etc. Step 3 Field visit should be conducted for identification of mining lease area (in hectare) and boundary pillar constructed to indicate the same.

Step 4 With the help of GPS instrument, the team should assess the area where any extraction or mining have been carried out on the day of visit and calculate the mined-out area in a hectare.

Step 5 If available, the team may avail the use of latest satellite images for calculating the total mined out area. Step 6 The team should verify the Ground / Surface Level (in meter above MSL) of at least 04 highest points in or around the area where mining has been done. The Ground/surface level will then be computed based on averaging of 04 highest points verified by the team.

Step 7 With the help of Depth Measurement kit or any depth measuring instruments, the depth should be measured for at least 04 points in the mined-out area. For computing, the depth, averaging of the value obtained at 04 points should be done.

Step 8 Verification of compliance conditions of Environmental Clearance and Consent to operate, mining methodology under Mining Plan.

Step 9 Identification of vulnerable impacts observed on the field and non-compliance of conditions of Environmental Clearance and Consent to Operate.

Step 10 Field Survey for identification, monitoring and verification of ecological species based on the information available and documents mentioned in the Pre-requisite section.

Step 11 Preparation of inventory of machinery used/observed on the field. (optional) Step 12 Preparation of inventory of hydraulic structures observed on the field. (optional) Step 13 Water sampling for assessment of water quality including physical and biological parameters. (optional) Step 14 Reconciliation collation of data/information and compilation to maintain violation.

Step 15 Identification of restoration plan and computation of cost of the restoration plan.

"

Finding and Directions

16. There is nothing to show that the above procedure has been followed though there is report of Haryana State that illegal mining on the border is taking place which could not be ascertained due to flow in the river. Thus, the Tribunal has to go into the matter further. To ascertain factual position, we constitute a ten member joint Committee to be headed by an Officer of the rank of Joint Secretary, nominated by Secretary, Ministry of Jal Shakti, GoI, with four nominees each of Haryana and UP Governments - representing Irrigation Departments, Revenue Departments nominated by the District Magistrates Saharanpur and Yamunanagar, Member Secretaries of HSPCB and UPPCB and SEIAAs of two States and one nominee of IIT, Roorkee. District Magistrates Saharanpur and Yamunanagar will also join the Committee. The nodal agency jointly will be District Magistrates of Saharanpur and Yamunanagar and HSPCB and UPPCB respectively. The Committee may meet within two weeks of receipt of this order and undertake visit to the site, get the area demarcated to ascertain the area where mining is allowed and where it is actually taking place and give a report within one month. Demarcation may specify the inter-state Borders. The Committee may also give its opinion whether and to what extent mining in the area is desirable without damage to the environment and if so, subject to what conditions. In this connection, the Committee may also consider Section 32 of the Water (Prevention and Control of Pollution) Act, 1974 and the River Ganga (Rejuvenation, Protection and Management) Authorities Order, 2016. It may also be examined whether drone mapping and CCTV cameras can be helpful tools for monitoring and whether there should be State level Surveillance/monitoring team in view of difficulties faced by local level teams in such matters. The Committee will be at liberty to take assistance 12 from any other Expert/Institution/Department/individual and interact with stakeholders in the area. It will be free to conduct proceedings online or offline except for site visit. Report of the committee may be useful for dealing with issue of illegal mining on inter-state borders of rivers. The report may be furnished by 28.02.2023. Any expenses for proceedings of the Committee will be borne by District Magistrates equally, subject to further orders. If security is sought, the SSP, Saharanpur, may provide.

List for further consideration on 20.03.2023. A copy of this order be forwarded to Secretary, Ministry of Jal Shakti, GoI, Chief Secretaries Haryana and UP Governments, Member Secretaries of HSPCB and UPPCB, SEIAAs of Haryana and UP, IIT, Roorkee and District Magistrates and SSPs, Saharanpur and Yamunanagar by e-mail for compliance.

Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM January 25, 2023 Original Application No. 268/2021 A & SN 13

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