National Green Tribunal
M. Balasubramanian vs The Ministry Of Environment Forests And ... on 20 May, 2021
Bench: K Ramakrishnan, K. Satyagopal
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No.158 of 2015 (SZ)
With
Original Application No.218 of 2015 (SZ)
With
Original Application No.182 of 2016 (SZ) &
M.A. No.300 of 2016 (SZ)
With
Original Application No.261 of 2016 (SZ)
(Through Video Conference)
IN THE MATTER OF
R. Nallakannu,
S/o N.E. Ramasamy,
Srivaikundam- 627 601
...Applicant(s)
Versus
1. The Secretary to Government of India,
Ministry of Environment and Forest,
Paryavaran Bhavan,
CGO Complex, Lodhi Road,
New Delhi- 110003
2. The Secretary to Government,
Department of Environment and Forest,
Government to Tamil Nadu,
Fort St. George,
Chennai- 600 009
3. The Commissioner,
Department of Geology and Mining,
Thiru-Vi-Ka, Industrial Estate,
Guindy, Chennai- 600032
4. The Superintending Engineer,
PWD/WRD, Thambraparani River Basin Circle,
Tirunelveli- 2
5. The District Environmental Engineer,
Tamil Nadu Pollution Control Baord,
C-7 & C-9, Sipcot Industrial Complex,
Meelavittan Road, Thoothukudi- 628 008
6. The Assistant Director,
Department of Geology and Mining,
Office of the District Collector,
Korapallam, Thoothukudi.
7. The District Collector,
Office of District Collector,
Tuticorin
...Respondent(s)
WITH
Tamil Annai Thamirabarani Welfare Trust
Rep by its Managing Trustee,
T. Balasubramanja Adityan
5/24, Main road, Kayamozhi
Thiruchendur Taluk
Thoothukudi District
...Applicant(s)
Versus
1. The Secretary to Government of India,
Ministry of Environment and Forest & Climate change
Paryavaran Bhavan,
CGO Complex, Lodhi Road,
New Delhi- 110003
2. The Secretary,
Department of Environment and Forest,
Government to Tamil Nadu,
Secretariat Fort St. George,
Chennai- 600 009
3. The Secretary Public Works Department
Secretariat, Fort St. George
Chennai- 9
4. The District Collector
Collectorate,
Thoothukudi,
Thoothukudi District
5. The The Superintending Engineer,
Public Works Department,
Thambraparani River Basin Circle,
Tirunelveli
6. The District Environmental Engineer,
Tamil Nadu Pollution Control Baord,
C-7 & C-9, Sipcot Industrial Complex,
Meelavittan Road, Thoothukudi- 628 008
7. The Superindent of Police
District Police Offfice
Thoothukudi
Thoothukudi District.
8. Mr. S. Joel,
S/o D. Samuel,
No. 260-E, V.M. Complex,
Balavinayagar koil Street,
Tuticorin-2
Having office at,
Flat no. 2 Krigh Varuna,
No. 7 31st cross street,
M.G. Road, Besant Nagar,
Chennai- 90
9. R. Nallakannu,
S/o N.E. Ramasamy,
Srivaikundam- 627 601
...Respondent(s)
WITH
M. Balasubramanian
37, Sivan Koil Street
Srivaikuntam
Tuthukudi District
...Applicant(s)
Versus
1. The Ministry of Environment, Forest &
Climate Change,
Rep by its Secretary
Prayavaran Bhavan, Jor Bagh, New Delhi
2. The State of Tamil Nadu
Rep by its Secretary,
Public Works Department
Fort st. George, Chennai
3. V.R. Karuppian
Aranmanaivoyal
Pudhuvayal via, Karaikudi Taluk,
Sivagangai District ...Respondent(s)
WITH
E. Natarajan
S/o S. Esakkidevar
No. 46, Maravar Street, Kurichi Kulam,
Thirunelveli District
...Applicant(s)
Versus
1. Union of India
Rep by its Secretary
The Ministry of Environment, Forest & Climate Change,
Prayavaran Bhavan, Jor Bagh, New Delhi
2. The State of Tamil Nadu
Rep by its Secretary,
Public Works Department
Fort st. George, Chennai
3. District Collector
Collectorate, Thirunelveli District
4. The Archeological Survey of India
Rep by its Superintending Archaeologist
Fort st. George, Chennai 600009.
...Respondent(s)
O.A. No. 158/2015
For Applicant(s): None Appeared
For Respondent(s): Ms.Me. Saraswathi for R1
Dr. V.R. Thirunarayanan for R2 to 4, 6 & 7
Sri. C. Kasirajan through Ms. Ashwini for R5
O.A. No. 218/2015
For Applicant(s): None Appeared
For Respondent(s): Mr. M.R. Gokul Krishnan for R1
Dr.V.R. Thirunarayanan for R 2 to 5 & 7
Sri. C. Kasirajan through Ms. Ashwini for R6
O.A. No.182/2016
For Applicant(s): None Appeared
For Respondent(s): Ms.Me. Saraswathi for R1
Dr.V.R. Thirunarayanan for R2
O.A. No. 261/2016
For Applicant(s): Mr. A. Yogeshwaran
For Respondent(s): Ms.Me. Saraswathi for R1
Dr. V.R. Thirunarayanan for R2 & 3
Judgment Reserved on: 16th April, 2021.
Judgment Pronounced on: 20th May, 2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. K. SATYAGOPAL, EXPERT MEMBER
Whether the Judgement is allowed to be published on the Internet - Yes/No
Whether the Judgement is to be published in the All India NGT Reporter - Yes/No
JUDGMENT
Delivered by Justice K. Ramakrishnan, Judicial Member.
1. O.A 158/2015 was filed by the applicant with following allegations. It is alleged in the application that in the guise of de-silting the Srivaikundam dam, they are engaged in the illegal mining and causing damage to the dam. They also mentioned that because of not doing the de-silting in the scientific manner, serious environmental damage is being caused. Quarrying of sand in the guise of de-silting was prevented by the orders of the Hon'ble High Court of Madras in W.P. No. 1229/2010 as well as orders passed by this Tribunal. At the same time, if de-silting is not properly done, then it will have adverse impact on the ecology as well. So that prompted the applicant to file application seeking the following reliefs:
(i) Direct the respondents 4, 5 and 7 to start de-silting from the sulices of the Dam to the upper catchment area.
(ii) To carry out repair and maintenance work and to keep the18 sluices of the Srivaikundam dam in proper and good condition.
(iii) Appoint a Monitoring Committee combining local representatives also to monitor the process of de-silting work of Srivaikundam Anicut.
(iv) To direct the 2nd respondent to fix Surveillance cameras in the de-
silting area to monitor the process
(v) Direct the respondents 4, 5 and 7 not to permit the quarrying of river and sand from the river Thambraparani beyond the de-silting area
(vi) To direct the respondents to give the de-silt to local public use free of cost and and if any may be sold out through Government out lets on the price fixed by the Government.
(vii) To pass any other suitable orders as this Hon'ble Tribunal deems fit and necessary in the circumstances of the case.
2. O.A. No. 218 of 2015 was filed by the applicant in that case more or less on similar allegations made in the above case mentioned above and sought the following reliefs:
A. To direct the 3rd and 5th respondent to de-silt all the 7 reaches of the Srivaikundam anicut parallel and simultaneously. B. To direct the respondent to ensure the completion of de-silting process before commencement of south west monsoon. C. To direct the 5th respondent to plan optimistic time of the de-silting process and planning the execution of the same as it is. D. To direct the 7th respondent to give police protection for the de- silting process and to ensure the smooth working environment for de-silting process.
3. O.A. No. 182 of 2016 was filed by another applicant against the illegal mining being done in violation of EIA Notification, 2006 in this area and filed the application seeking the following reliefs:
I. The 1st respondent to initiate appropriate action against the 2nd respondent for illegally carrying on mining activity at the Srivaikundam check dam in violation of the EIA Notification, 2006 II. Direct the 2nd respondent to remediate the damage caused to the environment and to the river.
III. Impose penalty on the 2nd respondent for wilful and wanton violation of the Environment (Protection) Act, 1986, Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974.
IV. Issue any other order or orders as may be fit, proper and necessary in the facts and circumstances of the case.
4. O.A. No. 261 of 2016 was filed by another applicant in respect of same issue alleging non-compliance with the EIA Notification, 2006 and alleging illegal mining being done in that area and sought for following reliefs:
A. Respondent 2 to forthwith cease all mining/excavation activity in the Thamarabarani river past the srivaikuntam dam in all the reaches.
B. Respondent 1 to constitute a committee of experts to assess the quantum of sand removed by the 2nd respondent and the damage caused to the river bed and its morphology.
C. Direct the 2nd respondent to restore the area and penalty for the violation of law and destruction of fragile riparian ecosystem. D. Issue any other order or orders as may be fit, proper and necessary in the facts and circumstances of the case.
5. It is seen from the proceedings in these cases that there was a status-quo order passed directing the respondents to maintain the status-quo as on the date till detailed plan with modus operandi was filed by them as per order dated 11.08.2016 in O.A. No. 182/2016.
6. In O.A. No. 182/2016, 1st respondent filed counter-statement explaining the process by which Environment Clearance is being granted for sand mining and how monitoring is being done against illegal mining. They only reiterated the procedure provided for grant of clearance under EIA Notification, 2006. They also produced report regarding the de-silting survey conducted through M/s WAPCOS Ltd wherein it was mentioned that certain amount of sand is available.
7. The applicant in that case has filed an affidavit stating that M/s WAPCOS Ltd has not considered the actual place of mining.
8. The 2nd respondent filed counter in that case contending that on 11.08.2016 the Hon'ble Court directed to conduct scientific survey and the result showing the extent of sediments like sand and depth already removed from the Thamarabarani River at Srivaikuntam and the quantum of sand to be removed shall be submitted before this Tribunal. The Public Works Department entrusted the task of conducting the scientific study to M/s WAPCOS Ltd and intermediate post survey was conducted by M/s WAPCOS Ltd and report was submitted before the Tribunal and the details of the survey reports shows as follows:
Reach As per PWD details As per scientific study Remarks/ / Pre PWD Balance Total Balance Observations Slice Survey/ Quanti Quantit quantit quantity to PWD ty a y to be y a per be Agreem per execute scientifi executed ent qty last d. (As c study w.r.t. Total progre per (w.rt. qty ss PWD pre & report progres post (upto s report survey) 11.8.2 016 cum Cum cum Cum cum 1 2 3 4 5 6 7 Reach 277500 27234 5151 302211 -24711 Reach-I&2 I & II 9 Commencement dt:2.10.15 U/S LS (Reach-I) Ch.0 to Commencement dt:25.8.15 1300 (Reach-II) m Flood: 7.10.15 to 24.1.16 Dt. Of re-commencement:
25.1.16. Dt. Of completion:
4.4.16 Note: Desilted material
for a quantity of 24711 cum
(approx) of Reach I & II was
used for forming of
temporary approach roads
and finally for strengthening
of river banks.
Reach 267000 22105 45942 217837 49163 Reach 3&4
III & 8 Commencement dt.25.8.15
IV U/s (Reach III)
L/s Commencement dt.9.9.15
/Ch. (Reach-IV)
1400 Flood:7.10.15 to 24.1.16
to Dt. Of recommencement:
2300 27.4.16. Progress upto NGT
order dt.11.8.16 Note: From
the recent survey, certain
additional quantity of
sediment (approx 3200 cum)
deposition is noticed in Reach
III& IV. This sediment
deposition may be because of
inflow of sediments during he
floods occurred in Nov-
Dec.2015.
Reach 152000 2264 149736 14024 137976 Reach 5: Commencement
V U/s t.16.9.15. only 7 days
Ls Ch. progress (i.e.16.9.15 to 7.10-
2400 .15) Flood: 7.10.15 to 24.1.16.
to Dt. Of recommencement:
3000 Work has stopped as directed
by NGT order.Note: Desilted
material for quantity of
11700 cum (approx) of Reach
V was used for forming
temporary approach roads
for the purpose of execution
of desilting work in Reach III
& IV and will be removed
nearing final completion.
Reach 132000 0 132000 16453 115547 Not started:
VI U/S Note: From the recent survey,
LS it is noticed that a quantity of
Ch.310 16000 cum (apprx) washed
0m to out from the Reach-VI which
4200 may be because of scouring
action during the flood
occurred in Nov-Dec 2015.
Reach 190500 0 190500 13647 176853 Not started. Note: From the
VII recent survey, it is noticed
U/s Ls that quantity of 13600 um
Ch.420 (approx) washed out from
0 to the Reach-VII which may be
5100 because of scouring action
during the flood occurred I
Nov-Dec 2015.
Reach As per PWD details As per scientific study Remarks/
/ Pre PWD Balance Total Balance
slice Survey/ Quanti Quantity quantity a quantity
PWD ty as to be per to be
Agreem per executed. scientific executed
ent qty last (As per study (w.rt. w.r.t.
progre PWD pre & post Total qty
ss progress survey)
report report
(upto
11.8.2
016
1 2 3 4 5 6 7
I 148000 14799 4 165497.00 17497 Dt. Of commencement:
Ch.0 to 5 2.10.15. Flood: 7.10.15 to
900m 24.1.16. Dt. Of
recommencement:
25.1.16. Dt. Of completion:
4.4.16.
II 129500 12435 5146 136714.00 7214.00 Date of commencement:
Ch.900 4 25.8.15. Flood: 7.10.15 to
to 24.1.16. Dt. Of
1300 recommencement:
m 25.1.16. Dt. Of completion:
4.4.16
III 135000 12909 5905 103980.00 31020.00 Dt. Of commencement:
Ch.130 4 25.8.15. Flood: 710.15 to
0 tp 24.1.16. Dt. Of
1700 recommencement:
m 27.4.16. Progress upto
NGT order dt.11.8.16
IV 132000 91964 40036 113857.00 18143.00 Dt. Of commencement:
Ch.170 9.9.15. Flood: 7.10.15 to
0 to 24.1.16. Date of
2300 recommencement:
m 27.4.16. Progress upto
NGT order dt. 11.8.16.
V 152000 2264 149736 14024.00 137976.0 Dt. Of commencement:
Ch.230 0 16.9.15. Only 7 days
0 to progress (i.e.16.9.15 to
3000 7.10.15). Flood: 7.10.15 to
m 24.1.16. Dt. Of
recommencement: work
has stopped as directed by
NGT order
Ch.300 132000 0 132000 16453.00 115547.0 Not started
0 to 0
4200
m
VII 190500 0 190500 13647.00 176853.0 Not started
Ch.420 0
0 to
5100
m
9. The 2nd respondent also contended that no illegal mining is being done and they are only doing de-silting work which is required for maintenance of the dam.
10. So, as per order dated 18.02.2020 this Tribunal had considered the pleadings and directed the Public Works Department and Water Resources Organization to submit the present status report of the process of de-silting or grant of lease of mining in that area or how the de-silting is being done in this area and what is the quantum of sand available and how much sand has been extracted and whether in the guise of de-silting, sand mining is being done in that area or not. Further, this Tribunal also appointed a Joint Committee comprising of District Collector, Thoothukudi, Senior Officer of MoEF&CC, Regional Office, Chennai and Tamil Nadu Pollution Control Board to inspect the area in question and ascertain as to whether there is any improper de-silting has been done and whether any illegal sand mining has been done in the guise of de-silting and if so who has done the same and what is the loss caused to exchequer on account of same and also assess the environmental damage, if any, caused and submit a report to the Tribunal designating MoEF&CC, Regional Office, Chennai as Nodal agency.
This Tribunal also directed the Public Works Department and Water Resources Organisation to cooperate with the Committee in making the inspection and providing necessary particulars wanted for this purpose by the Committee.
11. Thereafter, the matter has been adjourned from time to time for filing the report either by notification or at the request of the Committee. On 13.01.2021, this Tribunal has posted the case for giving opportunities to the party to file their objection to the Joint Committee report already filed and posted the case to 25.01.2021. Thereafter the matter has been adjourned from time to time either at the request of the applicant or by notification. The matter was posted to today by notification dated 25.03.2021.
12. Heard the Counsel for the applicant in O.A. No. 261 of 2016 Shri Yogeshwaran. Ms. Me. Saraswathi represented 1st respondent in O.A. No. 158/2015, O.A. No. 182/2016 and O.A. No. 261/2016, Mr. MR. GokulKrishnan represented 1st respondent in O.A. No. 218/2015, Dr. V.R. Thirunarayanan represented respondents 2 to 4, 6 and 7 in O.A. No. 158 of 2015, respondents 2 to 5 and 7 in O.A. No.218/2015, 2nd respondent in O.A. No. 182/2016 and respondent 2 and 3 in O.A. No. 261 of 2016 and Mr. C. Kasirajan through Ms. Ashwini represented respondent 5 in O.A. No. 158/2015 and respondent 6 in O.A. No. 218/2015.
13. The Learned Counsel appearing for the applicant in O.A. No. 261/2016 submitted that dredging was exempted from obtaining environment clearance by virtue of amended EIA Notification 2006 dated 15.01.2016 by including the same in IX schedule of exempted categories and the operation of that notification was suspended by the Principal Bench in Executive Application No. 55 of 2018 in O.A. No. 520 of 2016 Vikrant Tongad vs. Union of India by order dated 11.12.2018 and as such even doing dredging without environment clearance is unauthorised and the same cannot be permitted. So, according to the Learned Counsel for the applicant the present Joint Committee report is not helpful as it was obtained after the operation of removal of sand from the disputed area has been restrained by this Tribunal and no operation is being going on after the status quo order passed by this Tribunal. So according to the Learned Counsel the entire work done by the contractors has to be treated as unauthorised and illegal for want of environment clearance and they must be held responsible for environmental compensation.
14. On the other hand, Learned Counsel appearing for the MoEF in all these cases submitted that the Principal Bench has only commented on certain aspects of granting environment clearance in respect of mining areas which for certain categories the authority was given to District Environmental Impact Assessment Authority and for certain categories, for mining leases having extent between 5 to 25 hectares, public consultation and submission of Environmental Impact Assessment Report were dispensed with and to that extent the MoEF was directed to re-visit and all other aspects of notification has not been interfered with. Since the MoEF has not come with any fresh notification as directed by the Principal Bench in O.A. No. 520 of 2016 and connected cases, the applicant in O.A. No. 520 of 2016 filed execution petition and in that, it was brought to the notice of the Principal Bench that Kerala Government had not dispensed with the functioning of the District Environmental Impact Assessment Authority and Environmental Clearance is being granted to certain categories by that Authority. The Principal Bench by impugned order suspended the operation of EIA Notification, 2006 as amended by notification dated 15.01.2016 to the extent mentioned above. So, it cannot be said that entire notification has been suspended as contended by the Counsel for the applicant in O.A. No. 261 of 2016. Further, subsequently, this order was also vacated in view of the subsequent orders passed by Principal Bench in O.A. No. 360 of 2015 and other connected cases (O.A. No. 366 of 2015, O.A. No. 368 of 2015, O.A. No. 173 of 2018, O.A. NO. 874 of 2018, O.A. No. 44 of 2016, O.A. No.517 of 2015, O.A. No. 550 of 2015, O.A. No. 530 of 2016, O.A. No. 272 of 2016, O.A. No. 481 of 2016, O.A. No.540 of 2015, O.A. No. 90 of 2016, Execution Application No. 40 of 2017 in O.A. No. 517 of 2015, O.A. No. 671 of 2017, O.A. No. 726 of 2018, O.A. No. 456 of 2018, O.A. No. 1086 of 2018 and O.A. No. 575 of 2019). As such the defect has been pointed out by the Principal Bench has been rectified and the Principal Bench was satisfied and the Execution application by which the suspension order as claimed by the applicant in O.A. No. 261 of 2016 has been modified so there is no illegality and for dredging/de-silting there in no necessity for any environment clearance but at the same time for river bed mining, environment clearance is required.
15. Learned Counsel appearing for the State of Tamil Nadu and the Pollution Control Board submitted that de-silting of dams are required for the purpose of maintaining ecology and there is no necessity for obtaining environment clearance for that purpose and it cannot be treated as wining the minerals so as to bring within the ambit of mining mandating the environment clearance.
16. The points that arose for consideration are:
(i) Whether dredging requires any prior environment clearance?
(ii) Whether total banning of dredging can be permitted in the dam sites as claimed by the some of the applicants?
(iii) If dredging has to be allowed, what are the precautions to be taken?
(iv) What all directions, if any, to be issued in this case considering the nature of allegations made?
(v) Reliefs and costs. Points:
17. O.A. No. 158 of 2015 was filed by the applicant in person, who claimed to be an environmentalist and filed several applications and writ petitions before this Tribunal as well as before the Hon'ble High Court in respect to serious environmental issues. According to him, on account of not doing the de-silting work in Srivaikundam dam, the storage capacity of the dam has been affected thereby it has decreased the availability of water and also affected the ground water quality and water recharge system in that area which in fact affected the ground water level of these areas. Further, they are also not doing any maintenance work for its sluices in the dam and in the guise of de-slitting from the upper stream site of River Thambraparani, indiscriminate quarrying and sand mining is being operated illegally violating the provisions of Tamil Nadu Mines and Minerals Concessions Rules, 1959, as the Hon'ble High Court of Madras of Madurai Bench has issued a prohibitory order for doing sand mining in river bed of Thambraparani River, certain monitoring mechanism will have to provided to supervise these aspects.
18. O.A. No. 182 of 2016 was filed by another person claiming to be environmentalist alleging that illegal sand mining is being done at Srivaikundam dam in violation of EIA Notification and steps will have to be taken. O.A. No. 218 of 2015 was also filed by some other applicant interested in protecting Thambraparani River for giving direction to the authorities to carry out de-silting work at all seven reaches of Srivaikundam anicut and do the de-silting work in a scientific manner in an environmental friendly basis. O.A. No. 261 was filed by another person claiming to be an environmentalist alleging that in the guise of de-
silting illegal mining is being done in Thambraparani River without complying with the provisions of EIA Notification, 2006 and that will have to be prohibited by an order of injunction.
19. It is seen from the counter statement filed by the official respondents that they have categorically stated that they are only carrying on de-silting as permitted by the Hon'ble High Court and even the mining is being done by the Public Works Departments (PWD) as directed by the District Collector by his orders and no private persons were granted any mining lease for doing sand mining in the river bed areas in the State of Tamil Nadu and PWD is permitted to do the sand mining and they are doing it through their contractors when they have selected by calling for tenders and they are doing the same strictly in accordance with the provisions of EIA Notification, 2006. After the orders passed by the Tribunal ordering status quo, no work is being conducted, there is no illegal mining going on as alleged by the applicants and they are not doing illegal mining in the guise of de-silting as well.
20. The main allegation in all these cases is that they are not doing proper de-silting of dam which affects the ecology and water storing capacity and also in the guise of dredging, mining is being done and there is no monitoring mechanism provided for checking illegal mining in the river bed area. So, there is a mixed up response from the applicants that they is necessity for doing dredging for the purpose of protecting the dam and river and at the same time, in the guise of dredging no illegal mining should be permitted in those areas as it will affect the riverine ecology. It is seen from the documents produced by the applicant in O.A. No. 158 of 2015 that large number of writ petitions were filed challenging the notification issued by the Government of Tamil Nadu banning the mining by private persons and vesting the same with the Public Works Departments and also constituted Joint Committee for that purpose and they also challenged the process by which permissions were granted for those intending to involve in lifting the sand from the river beds by the Government.
21. The Hon'ble High Court by common Judgment in W.P Nos. 1295/2005, 19053/2005, 12934/2005 dated 03.08.2205 dismissed the writ petitions. Subsequently, the Tamil Nadu Mines and Mineral Concessions Rules were amended and Rule 38(a) was incorporated vesting the exclusive right to the State Governments in regard to sand quarrying and that was challenged before the High Court of Madras and that was upheld by the High Court of Madras with certain directions and that was challenged before the Hon'ble Apex Court by State of Tamil Nadu and the Hon'ble Apex Court by its Judgment in State of Tamil Nadu and Ors. Vs. P. Krishnamurthy and Ors. reported in 2006RD/SC-149 dated 24.03.2006 upheld the order of the Hon'ble High Court with certain modifications as follows:
27. We, accordingly, allow these appeals in part. In place of the conditions stipulated by the Division Bench while upholding the validity of Rule 38A, we hold and direct as follows:
(i) That part of Rule 38A which vests the exclusive right to quarry sand, in the State Government, is upheld.
(ii) That part of Rule 38A which purports to terminate quarrying leases/permissions forthwith (from 2.10.2003) is read down in terms of para 26 above.
(iii) The provision in Rule 38A for refund of proportionate lease amount for the unexpired period of lease and unadjusted seigniorage fee, shall remain undisturbed.
(iv) It is made clear the except to the limited relief as a consequence of reading down as per para 26 above, the respondents will not be entitled to any other reliefs which have been granted by the High Court.
(v) Parties to bear their respective costs.
22. Thereafter, numbers of writ petitions have been filed before the Hon'ble High Court of Madras at Madurai Bench as W.P. Nos. 11182, 11562, 11710, 11827, 12072, 12098, 12229 and 12383 of 2010 and the Hon'ble High Court by common Judgment dated 02.12.2020 disposed of the writ petitions as follows:
85. In the result, the Writ Petitions are disposed of with the following directions:-
Directions in respect of Tamiraparani river:
(a) It is directed that there shall be no sand mining/quarrying for five years from today in the entire stretch of Tamiraparani river including the quarry sites at Thirumalaikolunthupuram, Tholappanpanai, Kilpidagai Appankovil, Mukkani and Mangalakurichi.
(b) If the District Collector of Tirunelveli or Tuticorin is of the view that the sand from the Tamiraparani river is absolutely required before the expiry of five years from today for meeting the demands for projects relating to the public utility, then, the respective District Collectors shall identify the place where the sand is available for quarrying, make personal inspection and satisfy the legal formalities, as per the Tamil Nadu Minor and Mineral Concession Rules, 1959. The District Collectors of Tirunelveli and Thoothukudi shall also obtain the views of the respective inspecting team and offer identification of the places for sand quarrying and fixing the requirement, and then make a report to the Monitoring Committee constituted under this order. When such report is submitted by the District Collectors of Tirunelveli and Thootnhhukudi, the Monitoring Committee shall examine the feasibility of allowing such quarrying. The Monitoring Committee shall inspect the area so identified and examine the environmental issues like impact of sand mining (I) physical, (ii) water quality; and (iii) ecological and other relevant aspects and the Monitoring Committee shall also examine the requirement and also the quantity required.
(c) If the Committee opined that the quarrying can be permitted in any particular site, the District Collector may grant permission to the Public Works Department.
If any such permission is granted by either the District Collector, Tirunelveli or Tuticorin for mining/quarrying, as mentioned above, then the Monitoring Committee shall closely monitor the mining/quarrying so as to ensure that there is no illegal mining/quarrying or any violation of the mining norms. If the Committee opines against the proposal for granting permission for quarrying, the District Collector may approach this Court.
(d) Rehabilitation: The sand piled along the quarried pits in the five sand quarry sites - Thirumalaikolunthupuram, Tholappanpannai, Kizhpidagaii Appankovil, Mukkani and Mangalakurichi are directed to be re-dumped or re-filled in the pits. All permanent pathways laid in the above said five sites must be levelled to let the river assume its normal course without any artificial obstruction to the extent possible under prevailing circumstances. These two suggestions of the Commission are to be carried out within two months from the date of this order and report has to be filed before this Court within ten weeks. The Registrar- Judicial, Madurai shall bring to the notice of the Court about the compliance of the report. In case the report is not filed within the time granted, the same shall also be brought to the notice of the Court.
(e) In the entire stretch of Tamiraparani, there has to be a strict vigil over illegal quarrying of sand by private per;sons. In so far as illegal quarrying by private persons, the District Collector of Tirunelveli and Thoothukudi in consultation with the Superintendents of Police, P.W.D., and Department of Geology and Mining, shall constitute a special team to check illegal sand quarrying and strictly implement the provisions of Environmental Protection Act.
86. General directions for sand quarrying operations in all the rivers in the State of Tamil Nadu:-
(a) As pointed out earlier, the District Collectors are the competent authorities to grant permission to the Public Works Department to quarry sand. On proposal made by P.W.D., team of experts comprising of officials from Geology and Mining, revenue officials, Pollution Control Board, Water Board (TWAD), P.W.D. officials and also P.W.D.(W.R.O), inspect the site and submit its preliminary report to the District Collector. Upon consideration of the report of the inspecting team and the proposal made by the P.W.D., the District Collector grants permission for sand quarrying.
(b) In future, while inspecting the area identified for sand quarrying, the inspecting team shall prepare its report focusing on environmental issues like impacts of sand mining - (i) physical; (ii) water quality and (iii) ecological, stability of structures, riparian habitat, flora and fauna. The inspecting team shall prepare a sand budget depending upon the topography, hydrology and hydrologic information and express its views as to the area in which the sand quarry has to be done, amount of sand that could be removed from the area without causing undue erosion or degradation either at the site or at a nearby location, upstream or downstream.
(c) The District Collector shall consider the report of inspecting team and keeping in view the impact on environmental issues, shall grant permission specifying the exact area of sand quarry and the quantity to be carried, manner of quarrying, etc.,
(d) The Public Works Department engage the assistance of Labour Contractors.
The labour contractors either with or without the connivance of Public Works Department and local authority carry out indiscriminate sand quarrying. Scientific quarrying is not employed. What was sought to be prevented by G.O.Ms.No.95 dated 1.10.2003 is now worsened. The quarrying operations will be conducted by the Public Works Department directly. The PWD may however engage the assistance of labour contracts which shall all be given through Public tender as permitted by the Hon'ble Madras High Court vide judgment of Division Bench of this Court dated 03.08.2005 in W.P.No.12934 of 2005 etc.
(e) To have effective monitoring not only over Tamiraparani river, it is appropriate to issue directions for all the rivers for the scientific sand quarrying in accordance with TN MMC Rules and also to constitute a monitoring committee for all the rivers in the State of Tamil Nadu. The quarrying operation itself shall be strictly restricted to areas, which have already been or in future shall be specifically earmarked by the District Collector in consultation with the PWD. All quarrying operation of river sand shall be only done strictly in accordance with Rule 36-A of the TN MMC Rules, 1959 as amended by G.O.Ms.95 Industries Department dated 1.10.2003, which has come into effect from 02.10.2003 and also other instructions issued by the Government and by this Court in these Writ Petitions.
(f) No poclain or other heavy machinery shall be used for sand quarrying. It would be in order of the Government of Tamil Nadu exercises its discretion in bringing the necessary amendment to Rule 36-A Sub-Rule (6) of TN MMC Rules, which permits use of machinery with permission of authorised officer. We hope that the State will put in place the necessary amendment within six months to prevent use of machinery in sand quarrying.
(g) The loading contractors can load sand only on the direction of the PWD authorities and their registration number and name of lorry driver shall be mentioned in the receipt issued by the authorities. No sand lorry shall be despatched without mentioning the destination. Mention of place of destination in the receipts is mandatory. The accounting procedure, receipts for issuance and the quantum of load put up by the lorries should have accuracy and nowhere deviation to procedure/Rule is to be permitted.
(h) Regarding the actual quarrying operations, the same shall be strictly in accordance with the TN MMC Rules and also as per instructions issued by the Secretary, PWD dated 18.03.2005 communicated to all Superintending Engineers and Chief Engineers and the Chief Engineers of Water Resource Organisations of the PWD and other directions issued by the authorities and also by this Court.
87. Constitution of State Level Monitoring Committee for river sand and other sand quarrying:
(a) There shall be a State level monitoring Committee constituted for the purpose of monitoring the adherence of the directions issued in this order and the TN MMC Rules.
(b) State Level monitoring committee for river and other sand quarrying shall be constituted comprising of the following persons:
(i) a Retired Judge of the Madras High Court shall be the Chairman;
(ii) One Member Secretary shall be appointed in the Head Office; and
(iii) One Retired District Judge for each Zone [Chennai Zone; Tirunelveli Zone; Coimbatore Zone; Tiruchi Zone].
(iv) Expert in Water Resources Management; and
(v) Environmentalist shall be the members.
We hope that the State will issue necessary notification constituting the Committee preferably within a period of six months from today. While issuing notification, the Government shall also demarcate the areas for all the four zones and also indicate the names of the rivers in the respective zones.
(c) The Chairman shall be paid remuneration of Rs.50,000/- per month and the members shall be paid Rs.25,000/- per month each. The tenure of the Committee shall be initially for a period of two years. The Committee shall be provided with office space in Chennai, Tirunelveli, Coimbatore and Tiruchi. The Committee is to be provided with a typist and Assistant at Head Office and Zonal Offices by providing necessary infrastructure. Adequate police protection has to be given to the Committee while visiting the sites to ensure effective monitoring.
(d) After granting permission for sand quarrying in any river or tributary in the State of Tamil Nadu, the respective District Collectors shall forward a copy of the preliminary report submitted by the inspecting team and also the copy of the proceedings permitting sand quarrying. The Committee shall monitor that the sand quarrying is done in accordance with the TN MMC Rules and in compliance with the terms and conditions of the permission granted and the directions issued in this order.
(e) The Committee shall monitor whether sand quarrying is done in a scientific and skilful manner. The Committee shall have power to check the transport permits issued. The Committee shall verify the accounting procedure and the quantum of load put up to the lorries.
(f) Any person having grievance about illegal quarrying/excessive quarrying/non- compliance of TN MMC Rules/other directions shall prefer complaint before the Committee and the Committee shall look into the same and shall make enquiry and shall communicate with the District Collector and the Public Works Department to redress the grievance. The Committee shall collect the reports from the Zonal Committee and send a periodical report to this Court once in four months.
(g) Insofar as Vaipar and Palar, pursuant to the orders of the Court, already Committees have been constituted to monitor the sand quarrying. Insofar as Vaipar and Palar, State Level Monitoring Committee shall function in coordination with those Committees already constituted.
(h) Any deviation of procedure/rule is to be brought to the notice of the District Collector for taking appropriate action. In case of inaction of the District Administration, the Committee shall bring it to the notice of the Court by filing appropriate Report.
(i) The Registrar Judicial has to finalise the names of the members of the Committees. The Registrar judicial is directed to submit the list of retired District Judges in the respective areas, panel of names of experts in Water Resource Management, Environmentalists in the respective zones. Registrar- Judicial shall also communicate with the High Court Registry, Universities/Institutions in getting the names of the experts. The Registrar Judicial shall also contact the individuals and obtain the willingness and submit his report giving the names, designations, addresses and contact numbers within a period of two weeks from today to enable this Court to pass further orders in constituting the Committee.
(j) The Registry is directed to list this case on 20.12.2010 for further orders as indicated in (i).
However, there is no order as to costs. Consequently, all the connected miscellaneous petitions are closed.
23. As per order dated 18.02.2020, a Joint Committee was appointed by this Tribunal comprising of (1) District Collector, Thoothukudi, (2) Senior Officer of MoEF&CC, Regional Office, Chennai and (3) Tamil Nadu Pollution Control Board to inspect the area in question and ascertain as to whether there is any improper desilting has been done and whether illegal sand mining has been done in the guise of desilting and if so, who has done the same and what is the loss caused to the exchequer on account of the same and also assess the environmental damage if any and the Committee has filed the report dated 14.12.2020 which reads as follows:
BEFORE THE HONOURABLE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI IN APPLICATION NOS. 158/2015, 218/2015, 182/2016 AND 261/2016 Hon'be NGT (SZ) vide order dated 18.02.2020 in application no. 158 of 2015, 218/2015, 182/2016 and 261/2016 constituted a Joint Committee comprising of 1) District Collector, Thoothukudi, (2) Senior Officer of MoEF&CC, Regional Office, Chennai and (3) Tamil Nadu Pollution Control Board to inspect the area in question and ascertain as to whether there is any improper desilting has been done and whether illegal sand mining has been done in the guise of desilting and if so, who has done the same and what is the loss caused to the exchequer on account of the same and also assess the environmental damage if any, caused and submit a report to the Hon'ble Tribnunal within a period of two months.
In this regard the Joint Committee comprising of sub collector, Tuticorin, Dr. R. Sridhar, Scientist D and Dr. K.G. Prijilal, Research Officer, MoEF, RO, Chennai, The District Environmental Engineer and Assistant Environment Engineer, TNPCB has inspected the site on 08.10.2020 along with the Engineers of PWD/WRD. During the inspection the PWD officials has briefed about the work done in connection with desilting.
The main aim of desilting the Srivaikundam Anicut was as follows:
1. To restore the capcity of Srivaikundam Anicut to 141.26M.C.ft
2. To stabilize the irrigation area of 255.60 acers in Thoothukudi District under both North and South Main Channel.
3. To ensure water supply during scarcity period also.
4. To improve and recharge the ground water potential in 18 villages.
5. To assure the drinking water supply throughout the year.
6. Thus by increase the Ecology, Envionment and Socio Economic status of the area.
It is informed by PWD/WRD that the work was commenced on 25.08.2015 and stopped on 11.08.2016 to maintain the staus quo of work as directed by the Hon'ble NGT in O.A. No. 182 of 2016. During the visit the Committee found that presently there is no physical evidence for substantiating any environmental damages happened due to desilting as alleged. During the site visit it is noted that enough water was there in the dam and channel system and sedimentation is started to reach IV again. The weeds (Water Hyacinth) are again appeared at several patches.
The Joint Committee also verifies that necessary prior permission for desilting was obtained by the project authority as follows:
1. Vide F.No. 4-TNPCB862/2012-BAN/697 dated 09.07.2015 Ministry of Environment Forest and Climate Change issued stage-I clearance for carrying out desilting work in the water spread area under Section 2 of Forest (Conservation), 1980. (Copy of stage-I is at Annexure-I)
2. Vide F.No.4-TNC862/2012-BAN/282 dated 10.06.2015 Ministry of Environment Forest and Climate Change issued stage-II clearance for carrying out desilting work in the water spread area under section 2 of Forest (Conservation), 1980. (Copy of stage-II is at annexure-Ii).
3. Thereafter, vide G.O9MS) No. 95 dated 31.08.2016 Principal Secretary, Environment and Forest Department, Government of Tamil Nadu issued order to the concerned departments for making necessary arrangement to divert the forest land. (Copy of the G.O dated 31.08.2016 is at annexure-III)
4. Regarding desilting in non forest land /PWD (i.e. from slice/reach 2 to
7) Administrative sanction was accorded from the Principal Secretary, Public works department Government of Tamil Nadu vide G.O(MS) No. 146 dated 23.07.2015. Copy of the G.O dated 23.07.2015 is at annexure-IV.
5. Thereafter the District Collector vide order No. G.M.1/453/2015 dated 22.08.2015 has authorised the Executive Engineer, PWD/WRD, Thambaraparani Basin Division, Tirunelvbeli to start desilting work in 6 slices (i.e. from slice/reach 2 to 7). Copy of the G.O dated 22.08.2015 is at annexure-V. The WD officials informed that Reach: I and II were executed and completed by complying the interim direction passed by the Hon'ble National Green Tribunal on 27.10.2015. Therefore, the work in Rech:
III & amp; IV have been taken for execution and completed upto 96% &: 70 % respectively with the consequent directions made by the Tribunal. The work in Rach;V has been progressed upto 1.50% before these cases were filed. Finally in the periods that followed, the Hon'ble Tribunal have passed an order to maintain the status quo of work based on the applications filed vide no. 182/16 and hence the work as stopped as it if from 11.08.2016 onwards. The statement showing the progress of work as on 11.08.2016 is furnished below:
Reach Estimate Sediments Removed sediments Progress in Sand Earth Sand Earth % (in M3) (in M3) (in M3) (in M3) I. 44400.00 103600.00 44397.04 103597.81 completed II. 38850.00 90650.00 38841.75 85511.28 Completed III. 40500.00 94500.00 40500.00 88593.15 96% IV. 39600.00 92400.00 25470.00 66493.68 70% V. 45600.00 106400.00 2264.00 ---- 1.50% VI. 39600.00 92400.00 ---- --- Not started VII. 57150.00 133350.00 ---- ---- Not started Total 305700.00 713300.00 151472.79 344195.92 From the above facts it is clear that there was no improper desilting done and the desilting was done legally only. The Reply furnished by the Project Authority 9PWD/WRD) is at Annexure VI>.
Conclusion:
The Joint Committee concluded that there was no physical evidence for substantiating any environmental damages happened due to desilting as alleged and the desilting was done legally only. As the result of desilting the capacity of Srivakundam Anicut has been increased and there by increased the ground water potential of surrounding villages, ensured drinking water supply, solved the water scarcity problem to a large extent, and stabilized the irrigation area in under both North and South main Channel. (Photos taken during the inspection is at Annexure-VIII) Dr. R. Sridhar Dr. K.G.Prijilal Scientist 'D' Research Officer MoEF&CC MoEF&CC Sathiaraj. S Senthil Kumar DEE, TNPCB AE, TNPCB Thoothukudi Thoothukudi Simranjeet Singh Kahlon, IAS Sub Collector Thoothukudi
24. This Tribunal also in O.A. No. 72 of 2015 S. Joel vs. The Secretary to Government of India categorically directed that in the guise of dredging or de-silting, no illegal mining can be done in the dam site in question and also cutting of trees from this area was also prohibited and the MoEF&CC and its regional office were directed to take decision possibly by 16th June, 2015 in respect of application filed by the State of Tamil Nadu for permission to do de-silting in forest areas within the time bound manner on or before 10.06.2015 and if no such decision was taken, then directed the State of Tamil Nadu to proceed with de-silting but without cutting any trees and with intimation to the Tribunal by order dated 05.06.2015. In the meantime, the Hon'ble Apex Court in Deepak Kumar Vs. State of Haryana (2012) 4 SCC 629 dated 24.02.2012 held that irrespective of the areas of mining lease for mines and minerals, environment clearance must be made compulsory as earlier mining leases less than 5 hectares do not require any environment clearance and certain directions were also issued on the recommendations made by Central Expert Appraisal Committee appointed by the Government in this regard. It is on that basis the MoEF&CC has amended the Schedule II of EIA Notification, 2006 on several occasions.
25. When the Principal Bench had directed the State Governments not to permit any mining activity without getting environmental clearance even prior to the renewal period, then MoEF&CC had issued a notification dated 15.01.2016 amending EIA Notification, 2006 in respect of mining by making lot of changes, restrictions, modifications and exemptions. The projects were categorized as Category A and B and Category B was further divided into B(1) and B(2) and for certain categories certain exemptions were granted and a new authority was created as District Environmental Impact Assessment Authority vested with the power of granting environment clearance in respect of certain categories.
26. This was challenged before the Principal Bench by number of applicants by filing O.A. Nos. 186 of 2016-Satendra Pandey vs Ministry of Environment, Forest and Climate Change & Anr., 200 of 2016- Rajeev Suri vs Union of India, 580 of 2016-Badal Singh vs. Union of India & Ors., 102 of 2016- Nature Club of Rajasthan vs. Union of India& Ors., 404 of 2016-Naresh Zargar vs. Ministry of Environment & Forests & Anr., 405 of 2016- Rajeev Suri Vs. Union of India & Anr. and 520 of 2016- Vikrant Tongad Vs. Union of India and the Principal Bench by its common Judgment dated 13.09.2018 categorized the grounds of challenge in para-
5 of the order as follows:
5. Further contentions of the applicant in assailing the Notification dated 15.01.2016 are as follows:
a) Form-1M prescribed in the impugned Notification dated 15.01.2016, required to be submitted for mining of minor minerals upto 5 ha under Category B-2 projects provided in Appendix-VII, is generic seeking only basic details pertaining to the lease holder and the mine with perfunctory information on the environmental effect of the project which was in contrast to Form-1 which is required to be filled up for all other categories which is comprehensive seeking detailed information on environmental implications of the project.
b) B-2 projects of 0 - 5 ha under individual and cluster category are exempted from requirements of preparing an Environment Impact Assessment Report (EIA) and Environment Management Plan (EMP) and those greater than 5 ha and less than or equal to 25 ha are exempted from preparing Environment Impact Assessment Report (EIA) both with respect to individual Mine Lease and cluster situation. No such exemption has been provided in para 7 (i) of the EIA Notification, 2006 under Stage (2)
- Scoping which stipulates such requirement, but it has been done away with now at Appendix-XI of Notification dated 15.01.2016.
c) EIA/EMP is an integral and most critical component of Environmental Clearance as it is only through the EIA that the potential impacts and risks of a project can be assessed and mitigation measures formulated and adopted in the EMP. By exempting EIA/EMP, critical environmental aspects like anticipated environmental impacts, mitigation measures and additional studies involving public consultation, risk assessment, social impact assessment and rehabilitation and resettlement action plans, stand exempted. These requirements provided under Appendix-III, defeats the very purpose of the Notification and the Environment (Protection) Act, 1986.
d) The District Level Environment Impact Assessment Authority (DEIAA) and District Level Expert Appraisal Committee (DEAC) comprises mostly of officers/bureaucrats who have no expertise and scientific knowledge to assess environmental implications, and have been conferred with excessive and uncanalized power devoid of any guidelines. Even the power to appoint the Expert Members vested upon the authorities in the DEIAA and DEAC are unguided whereas there is an extensive elaboration with regard to qualifications, skill sets and competencies for the members of SEAC and SEIAA.
27. The discretions given to such categories was left open to the MoEF&CC and issue appropriate guidelines from time to time was challenged before the Principal Bench in Himmat Singh Shekhawat vs. State of Rajasthan and the Principal Bench by its Judgement reported in 2015 ALL (I) NGT Reporter (1) DEL 44 upheld the discretion granted and the power of Ministry as subordinate legislation but however, the office memorandums dated 24th June, 2013 and 24th December, 2013 prohibiting the grant of environment clearance to the mining area less than 5 ha. was quashed as having conflict with the above provision and this was also considered by the Principal Bench in the above decision mentioned above. Thereafter, the Principal Bench considered the question as to whether notification dated 15.01.2016 as discussed earlier to which it satisfied that it was against the spirit of directions issued in the case of Deepak Kumar (Supra) and discussed and disposed of in para 14 to 25 of that Judgement which reads as follows:
14. The procedure for grant of the Environment Clearance by the DEIAA for areas between 0 to 5 ha falling under Category 'B-2' is found prescribed in paragraphs 6, 7(iii)
(a) and 7(iii) (b) of the impugned Notification read with appendices VIII, X and XI. The Schematic Presentation of Requirement of Environment Clearance of Minor Minerals including cluster situation provided in a table to Appendix XI would substantiate indubitably that even for areas between 5 to 25 ha, no EIA and Public Hearing is required and in cluster situation also, the requirement of EIA and Public Hearing have been exempted.
15. Introduction of such procedure, in our view, is clearly not consistent with the directions contained in the case of Deepak Kumar (supra) and the spirit behind such direction. By the provision, mining area upto from 5 ha to 25 ha has been completely exempted from the EIA and Public Consultation. For areas of 5 ha and below, apart from the exemption, it has been made only subject to a separate procedure of preparing a District Survey Report (DSR). These provisions quite apparently are more minecentric rather than striving a balance between mining and environment especially with regard to Form-1M which needs to be made more elaborate incorporating environment related aspects.
16. The Sustainable Sand Mining Management Guidelines, 2016 prepared by the MoEF&CC has also deprecated the procedure as will appear from below which 12 Item Nos. 07 to 14 September 13, 2018 DV & AT is contained in the chapter on "The Issues and Management of Mining in Cluster":-
"It is seen that the categorization of mines into 'B1' and 'B2' category in which Category 'B2' leases are being exempted from the requirement of Environment Impact Assessment, Environment Management Plan, and Public Consultation for grant of EC, in many cases now the mining leases are being given for 25 hectares or less. This defeats the purpose and intent of Hon'ble Supreme Court Judgment which orders environment clearance for all mining leases irrespective of size. The environment clearance without Environment Impact Assessment, Environment Management Plan, and Public Consultation does not serve the purpose of environment clearance which is to ensure environmentally sustainable and socially responsible mining. So if a cluster or individual lease size exceeds 5 hectare, the EIA/ EMP should be completed in the process of grant of prior environment clearance."
17. Thus, even according to the Sustainable Sand Mining Management Policy issued by the MoEF&CC by dispensing with Public Hearing, the judgment of the Hon'ble Supreme Court in the case of Deepak Kumar (supra) will stand defeated.
18. We also find that parameters for consideration while preparing District Mining Plan (DMP) and District Survey Report (DSR) are only for the purpose of ascertaining whether an area is fit for mining which are quite different from the parameters laid down for EIA. The consideration of the view point of the public by keeping DSR in public domain is not a substitute of Public Hearing for consideration of the view point of the public for EIA.
19. With specific reference to mining in cluster, the Report of the Committee of Secretaries, Ministry of Environment, Forest and Climate Change, 2010 recommended as follows: 13 Item Nos. 07 to 14 September 13, 2018 DV & AT "Considering the nature of occurrence of minor mineral, economic condition of the lessee and the likely difficulties to be faced by Regulatory Authorities in monitoring the environmental impacts and implementation of necessary mitigation measures, it may be desirable to adopt cluster approach in case of smaller mine leases being operated presently."
20. This report which is a part of the Sustainable Sand Mining Management Guidelines, 2016 finds reinforcement in the Chapter "The Issues and Management of Mining in Cluster" referred to earlier where it has inter-alia been recommended as under:
"The Hon'ble Supreme Court, NGT, SEAC/EAC and the Project Proponents have raised issue of cluster in mine lease allotment and environment clearance for the same, so following conditions need to be ensured for cluster of mines:
1. To address the concern of adverse impact of minor mineral mining on environment it is proposed that all mining activity including river sand mining (above 5 hectare individual or cluster) will need to prepare Environment Impact Assessment Report and Environment Management Plan before grant of environment clearance. These reports (EIA /EMP) can be prepared by the State or State nominated Agency / the Project Proponent (s).
2. As can be seen from the data provided by the States most of the mining leases for minor minerals are of lease area less than 5 hectare. It is also reported that in hill states getting a stretch in river with area more than 5 hectare is very uncommon. So the size of lease for minor minerals including river sand mining will be determined by the States as per their circumstances.
3. The EIA Notification, 2006 does not provide for cluster EC, it provides for issuance of EC to individual project proponents and the same has also been upheld in the judgment of Hon'ble Supreme Court in Vijay Bansal vs. State of Haryana case. So EC will have to be applied for and issued to the individual project proponent.
4. A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area.
5. The mining of minor minerals is mostly in clusters. The Environment Impact Assessment or Environment Management 14 Item Nos. 07 to 14 September 13, 2018 DV & AT Plan are required to be prepared for the entire cluster in order to capture all the possible externalities. These reports shall capture carrying capacity of the cluster, transportation and related issues, replenishment and recharge issues, geohydrological study of the cluster area. The Environment Impact Assessment or Environment Management Plan shall be prepared by the State or State nominated Agency or group of project proponents in the Cluster or the project proponent in the cluster.
6. The individual lease holders in cluster can use the same Environment Impact Assessment or Environment Management Plan for application for environmental clearance. The cluster Environment Impact Assessment or Environment Management Plan shall be updated as per need keeping in view any significant change.
7. There shall be one public consultation for entire cluster after which the final Environment Impact Assessment or Environment Management Plan report for the cluster shall be prepared.
8. The details of cluster Environment Impact Assessment or Environment Management Plan shall be reflected in each environmental clearance in that cluster and District Expert Appraisal Committee (DEAC), SEAC, and EAC shall ensure that the mitigative measures emanating from the Environment Impact Assessment or Environment Management Plan study are fully reflected as environmental clearance conditions in the environmental clearance's of individual project proponents in that cluster.
9. .............................................................
10. .............................................................
11. ............................................................."
21. Dispensing with the requirement of Public Hearing which forms a part of the Public Consultation under Stage-III of the Environmental Clearance process under EIA Notification, 2006 for areas measuring 0 to 25 ha for individual mine areas and in cluster situation where public hearing has been provided, has resulted in gross dilution of EIA Notification dated 14th September, 2006. Such dilution would, in our view, result in its misuse by unscrupulous elements and the situation would revert 15 Item Nos. 07 to 14 September 13, 2018 DV & AT back to the lawless state prevailing prior to the decision in the case of Deepak Kumar (supra). Stringent measures are, therefore, necessary if the rampant exploitation of the minor minerals is to be curbed. This apparently was also the view of the Hon'ble Supreme Court in the case of Deepak Kumar (supra).
22. For all these reasons, we direct that the procedure laid down in the impugned Notification be brought in consonance and in accord with the directions passed in the case of Deepak Kumar (supra) by (i) providing for EIA, EMP and therefore, Public Consultation for all areas from 5 to 25 ha falling under Category B-2 at par with Category B-1 by SEAC/ SIEAA as well as for cluster situation wherever it is not provided;
(ii) Form-1M be made more comprehensive for areas of 0 to 5 ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA; (iii) if a cluster or an individual lease size exceeds 5 ha the EIA/EMP be made applicable in the process of grant of prior environmental clearance; (iv) EIA and/or EMP be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof; (v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and timeframe for replenishment after mining closure in an area; (vi) the MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining. 16 Item Nos. 07 to 14 September 13, 2018 DV & AT
23. We have permitted retention of 0-5 ha as a category keeping in view that some States grant isolated single lease of 5 ha and less not falling in cluster situation for which stringent requirements in Form-1M will serve the purpose of providing safeguards for protection of the environment and sustainable mining of minor minerals. This is particularly true in smaller and mountainous States as will also appear from condition no. 2 under "The Issues and Management of Mining in Cluster" referred to earlier in para 20 of this order.
24. It is reiterated that any attempt to split the lease area for the purpose of avoiding the applicable regulatory regime shall be viewed seriously. This in our view will be in the interest of the environment as deliberated in detail in the case of Deepak Kumar (supra) and would also satisfy the Precautionary Principle and the Principle of Sustainable Development contemplated under Section 20 of the National Green Tribunal Act, 2010.
25. The MoEF&CC shall, therefore, take appropriate steps to revise the procedure laid down in the impugned Notification dated 15th January, 2016 in terms of the above directions and observations so that it is conformity with the letter and spirit of the directions passed by the Hon'ble Supreme Court in Deepak Kumar (supra).
28. So, it is clear from this that the question of validity of EIA Notification, 2006 as amended notification dated 15.01.2016 was confined only to the constitution of District Environmental Impact Assessment Authority and the procedure adopted for granting environment clearance dispensing with certain procedure including public consultation and submission of Environment Impact Assessment Report which were found to be against the spirit of decision in Deepak Kumar case (Supra) and then directed the MoEF&CC to examine the same and re-visit all these aspects and come with fresh notification in this regard. The entire notification dated 15.01.2016 was not set aside by the Principal Bench as contended by the Learned Counsel for the applicant in O.A. No. 261 of 2016. The exemption granted in Schedule IX for certain categories were not even discussed by the Principal Bench and that will go to show that the Principal Bench did not want to set aside the notification dated 15.01.2016 in toto but only to the extent of making the categorization of exempting public consultation and submission of Environment Impact Assessment Report for categories and authorising District Environmental Impact Assessment Authority to grant environment clearance in respect of certain categories and wanted revisit of the same by the MoEF&CC.
29. Since, this direction was not carried out by the MoEF&CC, one of the applicant who filed original applications, namely, Vikrant Tongad in O.A. No. 520 of 2016, filed Execution application before the Principal Bench as Execution Application No. 55 of 2018 and by order dated 11.12.2018, the Principal Bench extracted the extent to which EIA Notification, 2006 as amended by notification dated 15.01.2016 was directed to be revisited in para 1 of the order which reads as follows:
1.Grievance in this application is that there is non-compliance of the judgment of this Tribunal dated 13.09.2018 in Original Application No. 186/2016, Satendra Pandey Vs. Ministry of Environment, Forest & Climate Change & Anr. The Hon'ble Supreme Court, vide judgment in Deepak Kumar Vs. State of Haryana & Ors.: (2012) 4 SCC 629, required proper Environmental Clearance before grant of lease of minor minerals, including sand mining. Vide Notification dated 15.01.2016 issued by MoEF&CC, environmental clearance was to be given by the District Environment Impact Assessment Authority (DEIAA) which defeat the direction of the Hon'ble Supreme Court.
30. As District Expert Appraisal Committee comprise of officers having no expertise or scientific knowledge to assess environmental implications and permitting District Impact Assessment Authority to make assessment was also not in consistence with the Sustainable Sand Mining Management Guidelines, 2016, MoEF&CC was directed to revisit the procedure laid down in the notification dated 15.01.2016 but in the meantime it was brought to the notice of Principal Bench regarding letter dated 29.10.2018 issued by State Impact Assessment Authority, Kerala addressed to District Impact Assessment Authorities of various districts in Kerala that notification dated 15.01.2016 having not been stayed, the same be followed and this was deprecated by the Principal Bench in the order mentioned above and the same was directed to be suspended till the fresh notification issued by MoEF&CC as directed herein above. So, that will also go to show that not the entire notification dated 15.01.2016 was suspended but only to the extent of vesting the powers of the DIEA to decide the issue of granting environmental clearance and also regarding the procedure to be followed for grant of environment clearance etc was suspended. Further, subsequently by order dated 17.08.2020, the Principal Bench has disposed of Execution Application No. 55 of 2018 in O.A. No. 520 of 2016 stating that no separate order is necessary in this execution application in view of the order passed on that date in O.A. No. 360 of 2015 National Green Tribunal Vs. Virender Singh (State of Gujarat and other connected matters) by the Principal Bench in O.A. No. 360 of 2015 and other connected cases (O.A. No. 366 of 2015, O.A. No. 368 of 2015, O.A. No. 173 of 2018, O.A. NO. 874 of 2018, O.A. No. 44 of 2016, O.A. No.517 of 2015, O.A. No. 550 of 2015, O.A. No. 530 of 2016, O.A. No. 272 of 2016, O.A. No. 481 of 2016, O.A. No.540 of 2015, O.A. No. 90 of 2016, Execution Application No. 40 of 2017 in O.A. No. 517 of 2015, O.A. No. 671 of 2017, O.A. No. 726 of 2018, O.A. No. 456 of 2018, O.A. No. 1086 of 2018 and O.A. No. 575 of 2019. By order dated 22.06.2021, the Principal Bench has considered the various subsequent development by issuing guidelines by MoEF&CC, namely, Sustainable Sand Mining Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining, 2020 and also further official memorandum issued by MoEF&CC directing the SEIAA to consider the application for issuance of environment clearance instead of DIEA and other mechanism provided, accepted the recommendations given by Committee appointed by Principal Bench and disposed of the matters as follows:
Today's Consideration
23. The extent of challenge posed by illegal sand mining was noted by the Tribunal in the order dated 05.04.2019 in OA 360/2015 as follows:-
"8. Despite this, the menace of illegal sand mining in India continues unabated. As per reports, the sand business in India employs over 35 million people and is valued at well over $126 billion per annum. In the year 2015-2016, there were over 19,000 cases of illegal minor minerals including sand in the country.4 In Uttarakhand, a 115 years old bridge collapsed due to overloaded sand trucks. In Maharashtra, 26,628 cases of illegal sand mining were recorded in the year 2017. The State of Maharashtra has the highest number of cases of non-compliance of Sustainable Sand Mining Management Guidelines, 2016. The State of Kerala suffered hugely in 2004 Tsunami and 2018 floods which several report explain were aggravated by illegal sand extraction.5 The issue of illegal sand mining is also rampant in the states of Goa6, Bihar7, Tamil Nadu8, Uttarakhand9, Telangana10, Jammu and Kashmir11 amidst others."
24. In view of resume of above orders and responses, the issue which survives for consideration is enforcement of the 2016 and 2020 guidelines, read with orders dated 19.2.2020, 14.10.2020, 4.11.2020 and observations herein, by evolving appropriate comprehensive monitoring mechanism, with designated accountable officers, grievance redressal mechanism, envisaging strict action against violators, including assessment and recovery of compensation for the violations, seizure of vehicles and review at higher levels in the State. Compensation
25. In the light of discussion in para 12 above, having regard to the totality of the situation, we accept the report of the CPCB and direct that the scale of compensation calculated with reference to approach II be adopted by all the States/UTs. Though compensation assessment for damage to the environment is a dynamic concept, depending on variables, floor level formula can be worked out to avoid arbitrariness inherent in unguided discretion. The CPCB may issue an appropriate statutory direction for the facility of monitoring and compliance to the Environment Secretaries of all the States/UTs who may forthwith evolve an appropriate mechanism for assessment and recovery of compensation in all Districts of the State. The recovered compensation may be kept in a separate account and utilized for restoration of environment by preparing an appropriate action plan under the directions of the Environment Secretary with the assistance of such individual/ institutions as may be considered necessary. Interaction for Effective enforcement
26. The above discussion shows that the problem has defied solution and unless tackled seriously, damage to the environment will continue. Clear road map is thus required with effective monitoring mechanism. Report of the Oversight Committee for UP and affidavit of the State of MP, the report from Rajasthan and some other States also show that effective 37 mechanism is lacking. For clarity on all issues, periodic interaction of stake holders, particularly the enforcement authorities is required. This will also facilitate engagement of accredited agencies/experts for preparing DSRs/replenishment studies. In the Central Government, the concerned authorities include Mining Ministry, Environment Ministry, Jalshakti Ministry and CPCB. In States, Departments of Mining, Environment, SEIAA, PCB and District Magistrates. Enforcement of Monitoring Mechanism and review by the Chief Secretary at State level and Secretary MoEF&CC at National level
27. We direct all the States/UTs to strictly follow the SSMG-2016 read with EMGSM- 2020 reinforced by mechanism for preparation of DSRs (in terms of directions of this Tribunal dated 14.10.2020 in Pawan Kumar, supra and 04.11.2020 in Rupesh Pethe, supra), Environment Management Plans, replenishment studies, mine closure plans, grant of EC (in terms of direction dated 13.09.2018 in Satendra Pandey, supra), assessment and recovery of compensation (as per discussion in Para 25), seizure and release of vehicles involved in illegal mining (in terms of order dated 19.02.2020 in Mushtakeem, supra), other safeguards against violations, grievance redressal, accountability of the designated officers and periodical review at higher levels. As already noted, EMGSM-2020 contemplates extensive use of digital technology, including remote sensing.
28. We further direct that periodic inspection be conducted by a five-members Committee, headed and coordinated by the SEIAA and comprising CPCB (wherever it has regional office), State PCB and two expert members of SEAC dealing with the subject. Where CPCB regional office is not available, if MoEF&CC regional office is available, its Regional Officer will be included in the Committee. 38 Where neither CPCB nor MoEF&CC regional office exists, Chairman, SEIAA will tie up with the nearest institution of repute such as IIT to nominate an expert for being included in the Committee. Such inspection must be conducted at least thrice for each lease i.e. after expiry of 25% the lease period, then after 50% of the period and finally six months before expiry of the lease period for midway correction and assessment of damage, if any. The reports of such inspections be acted upon and placed on website of the SEIAA. Every lessee, undertaking mining, must have an environment professional to facilitate sustainable mining in terms of the mining plan and environmental norms. This be overseen by the SEIAA. Environment Departments may also develop an appropriate mobile App for receiving and redressing the grievances against the sand mining, including connivance of the authorities and also a mechanism to fix accountability of the concerned officers. Recommendations of the Oversight Committee for the State of UP quoted earlier may be duly taken into account.
The mechanism must provide for review at the level of the Chief Secretary at least once in every quarter, in a meeting with all concerned Departments in the State. The Chief Secretary UP may ensure further action in the light of the report of the Oversight Committee.
Similarly, at National level, such review needs to be conducted atleast once in a year by the Secretary, Environment in coordination with the Secretaries Mining and Jalshakti Ministries the CPCB. Publication of Annual Reports
29. We further direct all the States/UTs to publish their annual reports on the subject and such annual reports may be furnished to 39 MoEF&CC by 30th April every year giving status till 31st March. First such report as on 31.03.2022 may be filed with the MoEF&CC by all he States/UTs on or before 30.04.2022. The report may also be simultaneously posted on the website of the Environment Department of the States/UTs. Based on such reports, MoEF&CC may consider supplementing its Guidelines from time to time. The MoEF&CC may prepare a consolidated report considering the reports from the States/UTs and publish its own report on the subject, preferably by 31st May every year.
Interaction at National Level
30. We direct the Secretary MoEF to convene a meeting in coordination with the CPCB and Mining and Jalshakti Ministries of Central Government and such other experts/individuals at National level and representatives of States within three months for interaction on the subject which may be followed by such meetings being convened by the Chief Secretaries in all States in next three months. Holding of such meetings will provide clarity on enforcement strategies and help protection of environment. All the applications are disposed of. Individual issues may be gone into in accordance with the mechanism to be involved as above.
A copy of this order be forwarded to the MoEF&CC, CPCB, Secretaries, Ministries of Jalshakti and Mining, GoI, Chief Secretaries, Environment Secretaries, SEIAA and State PCBs/PCCs and District Magistrates of all the States/UTs by e-mail for compliance.
31. So, it is clear from this also that the entire notification dated 15.01.2016 was not set aside or suspended as contended by the Learned Counsel for the applicant in O.A. No. 261 of 2016. So, exemption granted under Schedule IX of this notification in respect of dredging and de-silting of dams for the purposes of their maintenance etc was not disturbed by any of these orders and as such there was no necessity for obtaining environmental clearance for de-silting or dredging as contended by the Learned Counsel for the applicant in O.A. No. 261 of 2016.
32. Further, this aspect was considered by this Bench in O.A. No. 47 of 2016 and 117 of 2016 a matter arising out of similar issue in State of Andhra Pradesh and after considering all these aspects in detail including the subsequent orders passed by the Principal Bench in O.A. No. 395 of 2018 in Anumolu Gandhi vs. State of Andhra Pradesh and came to the conclusion as follows:
42. The definition of 'dredge' as per Cambridge Oxford Dictionary is "Verb (1) clean out the bed of a harbour river etc., with a dredge (2) bringing something up from a river or sea bed with a dredge (3) (dredge something up) mention something unwelcome or unpleasant that has been forgotton. Noun - a piece of equipment for bringing up objects or mud from a river or sea bed by scooping or dragging."
43. The definition of 'silt' as per Cambridge Oxford Dictionary is "fine sand, clay or other material carried by running water and deposited as a sediment." So the removal of that sediment deposited in the river bed along the river is known as 'desilting'.
44. If more quantity of silt carried during flow of surplus water is deposited in the river and ultimately if such silt carried, conserved and deposited in dams or barrages or river in large amount, then that will affect the free flow of water in the river and also the storing capacity of the water in reservoirs or dams. So in order to maintain free flow of water for a particular level to allow free navigation which is being done by the fishermen community for the purpose of fishing and also in order to preserve the water storage capacity of the reservoirs and dams and other water bodies, it is necessary to do dredging/desilting to the extent possible in lakes and to maintain the flow of water in the river to the extent of enabling free navigation and for the purpose of maintaining the storage capacity in the reservoirs or dams and other water bodies and it is being done as part of the maintenance of these water bodies and in fact it cannot be said to be an act of mining or illegal mining as defined under the Mines and Mines (Development & Regulation) Act, 1957 and the Rules framed thereunder. So that may be the reason the rule making authorities thought of exempting this from the purview of obtaining Environment Clearance. 51 Further, in order to avoid flood or other disaster during monsoon, periodical dredging or desilting has to be done, as part of maintenance and also part of preventive method of disaster like flood being caused, such things are necessary. If the necessary procedure of obtaining Environment Clearance is insisted for such purpose, then that will affect the very process of disaster management and that may also be one of the reasons for exempting this from the purview of obtaining the Environment Clearance. But at the same time, if it is not properly regulated or monitored, the possibility of the same being misused and in the guise of desilting, illegal mining without obtaining Environment Clearance being carried out cannot be ruled out and this will cause unlawful enrichment to those persons who are involved in such illegal or unauthorized activities and heavy loss to the exchequer.
and disposed of the matter by Judgement dated 14.12.2020 as follows:
51.So under these circumstances, considering the fact that necessary guidelines have been given by the MoEF & CC for maintaining sustainable sand mining and also for enforcing those things in view of the directions issued by this Tribunal and on the basis of the same and also on the basis of the directions issued by the Principal Bench recently in ANUMOLU GANDHI VS. STATE OF A.P (O.A.935/2018 dated 24.8.2020), these applications are disposed of by issuing the following directions:
(i)In the guise of desilting or dredging, no act of sand mining can be carried out in the river beds or reservoirs, lakes or ponds etc. 56
(ii) The State of Andhra Pradesh is directed to conduct regular survey of sediment deposit in the rivers or reservoirs, anaicuts, lakes, ponds etc before undertaking the work of desilting or dredging as part of maintenance of these waterbodies.
(iii) The State of Andhra Pradesh must scrupulously follow the directions issued by the Principal Bench recently in ANUMOLU GANDHI VS. STATE OF A.P (O.A.935/2018 dated 24.8.2020) and also the guidelines provided by the MoEF & C in Sustainable Sand Mining Management Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining issued in January, 2020 while undertaking such process.
(iv) The State of Andhra Pradesh is also directed to have adequate control mechanism and monitoring mechanism of these activities for effective mining/desilting/dredging by providing all necessary infrastructure, including the technical assistance and technology available for this purpose. They must also provide necessary mechanism for monitoring the dredging/desilting and transport of the minerals extracted during dredging/desilting or in the process of sand mining from the point of dredging/desilting/mining and transportation of the same to the destination so as to avoid misuse of both minerals for unauthorised purpose or other purposes than the permission granted including registering the vehicles permitted for this purpose and providing GPS in these vehicles wherever it is possible.
(v) The State of Andhra Pradesh is also directed to instruct the enforcement authorities to take stringent action against the persons who are violating the norms and engaged in illegal sand mining or other exploitation of the mines/minerals than the permitted quantity, including the launching of prosecution and collecting environmental compensation apart 57 from collecting penalty and royalty provided under the respective Mines & Minerals (Development & Regulation) Act, 1957 and Mineral Concession Rules and confiscating or taking action against the vehicles involved in such illegal activities in accordance with law.
(vi) The State of Andhra Pradesh is also directed to have a permanent Expert Appraisal Committee in each District for the purpose of carrying out the work of conducting replenishment study and for preparation of District Survey Report in this regard and directions be issued to them to carry out these things in regular manner well in advance before deciding to entrust the work of desilting or dredging or river sand mining to the concerned machinery.
(vii) They must also install CCTVs in the places allotted or identified for dredging/desilting/mining so as to monitor the activities scientifically and also curb illegal mining and enabling identifying of the culprits effectively.
(viii) Any interim order passed by this Tribunal is vacated in view of the disposal of the matter with the direction.
52. The Registry is directed to communicate this order to the Chief Secretary, State of Andhra Pradesh and Director of Mines & Geology for strict implementation of the directions issued by this Tribunal.
53. Considering the circumstances, the parties are directed to bear their respective costs.
With the above directions and observations, the applications are disposed of.
33. The same view has been reiterated by this Bench in O.A. No. 259 of 2016 Mr. Sakeer vs. State of Kerala and ors. and disposed of the matter with following directions:
So the application is disposed of as follows:
(i)The applicant is not entitled to get the relief of restraining the third respondent from doing dredging without obtaining Environment Clearance.
(ii) The applicant is not entitled to get the relief of compensation as claimed for the reason mentioned by this Tribunal in the earlier part of the judgment.
(iii) The third respondent has committed violation of CRZ Notification, 1991 and 2011 as they have not obtained necessary clearance from the Coastal Zone Management Authority as required under the said notification and as such the Kerala Coastal Zone Management Authority is directed to take appropriate legal action against those persons who have committed violation in accordance with law, after giving them proper opportunity of hearing and pass appropriate order in accordance with law.
(iv) The third respondent or State of Kerala are directed to appoint a permanent committee of Experts for conducting environment impact study as required under the CRZ Notification 1991 and 2011 and 2019 before undertaking work of dredging and thereafter the same will have to be done under the supervision of the Expert Body so appointed only after getting necessary CRZ clearance from the authorities and also after complying with the guidelines given by the MoEF & CC viz., Sustainable Sand Mining Management Guidelines, 2016 and Enforcement and Monitoring Gudelines for Sand Mining issued in January, 2020 by MoEF & CC as has been observed by this Tribunal in TIRUMALASETTI SRINIVAS VS. GOVERNMENT OF INDIA & ORS (O.A.No.47 of 2017 and O.A.177 of 2017 dt. 14.12.2020).
(v) The parties are directed to bear their respects cost.
(vi) The Registry is directed to communicate this order to the Chief Secretary, State of Kerala, Director of Ports, Port Conservator and Kerala Coastal Zone Management Authority by e-mail immediately for implementation of the directions issued by this Tribunal and the recommendations made by the Joint Committee in Clauses 6 and 7 of the report before undertaking dredging activity.
With the above directions and observations the application is disposed of.
34. So, under these circumstances the submission made by the Learned Counsel for the applicant in O.A. No. 261 of 2016 is without any merit and the same is liable to be rejected. Further, this Tribunal by virtue of above decision categorically held that in the guise of dredging or de-silting of dams or rivers, no illegal mining can be permitted and directions were also issued to the concerned State Departments in those cases to strictly comply with the directions issued by the MoEF&CC in Sustainable Sand Mining Guidelines, 2016 and also Enforcement and Monitoring Guidelines for Sand Mining, 2020 and also the directions issued by the Principal Bench in Anumolu Gandhi vs. State of Andhra Pradesh (Supra). Further, it is clear from the above decisions that de-silting or dredging of dams and rivers are required for the purpose of maintaining the ecology, free flow of water and also to maintain storing capacity of the tanks which will help the water recharge system and raise the ground water levels in those areas. If regular de-silting or dredging is not done, then it will have impact on ecology and also defeat the purpose of construction of dams and checkdams which was intended for the purpose of protecting ground water system applying the principle of conservation, preservation and protection as prevention of wastage of surplus water which is being obtained during rainy seasons. So total banning of de-silting or dredging cannot be possible. Further, in the guise of de-silting, no illegal mining can also be permitted which will have greater impact on natural resources and affect the ecology adversely. So, regular maintenance and regular de-silting/dredging of river beds, dams and lakes etc are required for protecting environment as well.
35. Mother Nature has provided lot of natural resources like minerals and other natural resources for the universal enjoyment including human beings and animals. Other species do not over exploit them to the detriment of nature. It is for the human being to use it in a scientific manner without over exploitation of it to the extent required for the beneficial enjoyment so that it can be available not only for the present generation but also to the benefit of future generation. It is for the State Government to protect environment against over exploitation while utilizing the natural resources gifted by Mother nature, using it for sustainable development and economic development keeping into account the responsibility of maintaining equilibrium of protecting environment by applying principle of Public Trust Doctrine, Precautionary Principle, Sustainable Development and Inter-generation equality as contemplated under Article 48A of Constitution of India. Over- exploitation of natural resources may result in degradation of environment which will affect the right to get clear environment as part of right to life, protection of which is also a constitutional mandate as enshrined under Article 21 of the Constitution of India. This has been reiterated by Hon'ble Apex Court in several decisions, namely, Karnataka Industrial Area Development Board Vs. Sri C. Kenchappa 2006(6) SCC 371, T. N Godhavarman vs. Union of India 2002(10) SCC 606, Intellectual Forum Vs. State of A.P 2006(3) SCC 549, Centre for Public Interest Litigation Vs. Union of India 2012(3) SCC 1, Environment Protection vs. State of Kerala 2013(7) SCC 226, Deepak Kumar vs. Union of India 2012(4) SCC 629 and Samaj Parivartana Samudaya vs. State Of Karnataka 2013(8) SCC 154.
36. So, under such circumstances, we feel that the applications can be disposed of with following directions:
(i) No direction can be given for total banning of dredging or de-silting of dams or river beds as contended by some of the applicants in some of the applications mentioned above.
(ii) No environment clearance is required for desilting of dams, reservoirs, rivers etc.
(iii)In the guise of de-silting or dredging of dam sites or lakes or river, no illegal mining should be permitted.
(iv) The dredging or de-silting can be done strictly in accordance with the guidelines given by the MoEF&CC in Sustainable Sand Mining Guidelines, 2016 and also Enforcement and Monitoring Guidelines for Sand Mining, 2020 and directions in Anumolu Gandhi vs. State of Andhra Pradesh O.A. No. 395 of 2018 (Supra) and also in O.A. 47 of 2016-Tirumalasetti Srinivas Vs. Government of India with O.A. No. 117 of 2016- Devineni Rajasekhar vs. State of Andhra Pradesh & Ors. and O.A. No. 259 of 2016-Mr. Sakeer vs. State of Kerala & Ors.
(v) The State of Tamil Nadu is directed to conduct regular survey of sediment deposit in the rivers or reservoirs, anaicuts, lakes, pond etc before undertaking the work of desilting or dredging as part of maintenance of these water bodies.
(vi) The State of Tamil Nadu is directed to permit riverbed sand mining strictly in accordance with the provisions of EIA Notification, 2006 as amended from time to time and also in compliance with Sustainable Sand Mining Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining, 2020.
(vii) The State of Tamil Nadu is also directed to have adequate control and monitoring mechanism of these activities for effective mining/desilting/dredging by providing all necessary infrastructure, including the technical assistance and technology available for this purpose. They must also provide necessary mechanism for monitoring the dredging/desilting and transport of the minerals extracted during dredging/desilting or in the process of sand mining from the point of dredging/desilting/mining and transportation of the same to the destination so as to avoid misuse of both minerals for unauthorised purpose or other purposes than the permission granted including registering the vehicles permitted for this purpose and providing GPS in these vehicles wherever it is possible.
(viii) The State of Tamil Nadu is also directed to instruct the enforcement authorities to take stringent action against the persons who are violating the norms and engaged in illegal sand mining or other exploitation of the mines/minerals than the permitted quantity, including launching of prosecution and collecting environmental compensation apart from collecting penalty and royalty provided under the respective Mines & Minerals (Development & Regulation) Act, 1957 and Mineral Concession Rules and confiscating or taking action against the vehicles involved in such illegal activities in accordance with law.
(ix) The State of Tamil Nadu is also directed to have a permanent Expert Appraisal Committee in each District under the Chairmanship of District Collector with experts from the Mining Geology Department, PWD, Irrigation Department and if necessary, an outside independent agency for the purpose of carrying out the work of conducting replenishment study and for preparation of District Survey Report in this regard and directions be issued to them to carry out these things in regular manner well in advance before deciding to entrust the work of desilting or dredging or river sand mining to the concerned machinery.
(x) The State Government is also directed to take steps for installing CCTVs in the places allotted or identified for dredging/desilting/mining so as to monitor the activities scientifically and also curb illegal mining and enabling identifying of the culprits effectively.
(xi) The report filed by the Joint Committee dated 14.12.2020 is recorded and accepted.
37. The points are answered accordingly.
38. In the result, the applications are disposed of as follows:
1. No direction can be given for total banning of dredging or de-silting of dams or river beds as contended by some of the applicants in some of the applications mentioned above.
2. No environment clearance is required for desilting of dams, reservoirs, rivers etc.
3. In the guise of de-silting or dredging of dam sites or lakes or river, no illegal mining should be permitted.
4. The dredging or de-silting can be done strictly in accordance with the guidelines given by the MoEF&CC in Sustainable Sand Mining Guidelines, 2016 and also Enforcement and Monitoring Guidelines for Sand Mining, 2020 and directions in Anumolu Gandhi vs. State of Andhra Pradesh O.A. No. 395 of 2018 (Supra) and also in O.A. 47 of 2016-Tirumalasetti Srinivas Vs. Government of India with O.A. No. 117 of 2016- Devineni Rajasekhar vs. State of Andhra Pradesh & Ors. and O.A. No. 259 of 2016-Mr. Sakeer vs. State of Kerala & Ors.
5. The State of Tamil Nadu is directed to conduct regular survey of sediment deposit in the rivers or reservoirs, anaicuts, lakes, pond etc before undertaking the work of desilting or dredging as part of maintenance of these water bodies.
6. The State of Tamil Nadu is directed to permit riverbed sand mining strictly in accordance with the provisions of EIA Notification, 2006 as amended from time to time and also in compliance with Sustainable Sand Mining Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining, 2020.
7. The State of Tamil Nadu is also directed to have adequate control and monitoring mechanism of these activities for effective mining/desilting/dredging by providing all necessary infrastructure, including the technical assistance and technology available for this purpose. They must also provide necessary mechanism for monitoring the dredging/desilting and transport of the minerals extracted during dredging/desilting or in the process of sand mining from the point of dredging/desilting/mining and transportation of the same to the destination so as to avoid misuse of both minerals for unauthorised purpose or other purposes than the permission granted including registering the vehicles permitted for this purpose and providing GPS in these vehicles wherever it is possible.
8. The State of Tamil Nadu is also directed to instruct the enforcement authorities to take stringent action against the persons who are violating the norms and engaged in illegal sand mining or other exploitation of the mines/minerals than the permitted quantity, including launching of prosecution and collecting environmental compensation apart from collecting penalty and royalty provided under the respective Mines & Minerals (Development & Regulation) Act, 1957 and Mineral Concession Rules and confiscating or taking action against the vehicles involved in such illegal activities in accordance with law.
9. The State of Tamil Nadu is also directed to have a permanent Expert Appraisal Committee in each District under the Chairmanship of District Collector with experts from the Mining Geology Department, PWD, Irrigation Department and if necessary, an outside independent agency for the purpose of carrying out the work of conducting replenishment study and for preparation of District Survey Report in this regard and directions be issued to them to carry out these things in regular manner well in advance before deciding to entrust the work of desilting or dredging or river sand mining to the concerned machinery.
10. The State Government is also directed to take steps for installing CCTVs in the places allotted or identified for dredging/desilting/mining so as to monitor the activities scientifically and also curb illegal mining and enabling identifying of the culprits effectively.
11. The report filed by the Joint Committee dated 14.12.2020 is recorded and accepted.
12. The directions given by this Tribunal are in addition to and not in-
derogation to any of the direction, if any, issued by the Hon'ble High Court of Madras in this regard.
13. Any interim order passed by this Tribunal is vacated in view of the disposal of the matter with the above directions.
14. Considering the Circumstances, the parties are directed to bear their respective costs in these applications.
15. The Registry is directed to communicate this order to the Chief Secretary, State of Tamil Nadu, Principal Secretary, Environment, Mining and Geology, State of Tamil Nadu and also to respective District Collectors for their information and strict implementation of directions of this Tribunal.
39. With the above directions and observations, the applications are disposed of.
40. Judgment Pronounced in open court through Video Conference by separate Judgment.
...................................J.M. (Justice K. Ramakrishnan) ..............................E.M. (Shri. Dr. K. Satyagopal) O.A. No. 158/2015 O.A. No. 218/2015 O.A. No. 182/2016 & O.A. No. 261/2016 20th May, 2021(AM)