National Green Tribunal
Amandeep vs State Of Himachal Pradesh Through Its ... on 15 December, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 15 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 57/2021
Amandeep Applicant
Versus
State of Himachal Pradesh Respondent
Date of hearing: 15.12.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Mr. Ashok Sharma, Advocate General for the State of H.P
INDEX
A. The issue
B. Constitution of fact finding committee - order dated 2.3.2021
C. Reports of the Committee dated 7.4.2021 and 3.5.2021 finding gross
illegalities and violations and directions of NGT dated 30.7.2021 to the
authorities for remedial action
D. Supplementary report of the Committee dated 7.7.2021 and order of
NGT dated 13.8.2021
E. Reports of the Chief Secretary HP and the State PCB dated 8.11.2021
and 9.11.2021
F. Consideration of the reports and further directions in today's order
G. Tribunal's Observations
ORDER
A. The issue
1. The issue for consideration is remedial action against illegal mining at Som Bhadra River (Swan River) in District Una of Himachal Pradesh. It is stated that the Central Government has sanctioned 922 Crores for the 1 channelization of this River. Channelization work was done by spending huge public fund. As many as 73 Khads (Mini water channels from different catchment areas of nearby villages) were also channelised from this huge budget for the welfare of the people at large so that the agricultural land of the nearby villages of the River may be protected from the huge flow of water of this river during rainy season. 'Sand Mafia' having political shelter under the garb of a mining licence, are lifting the sands and other material from the bed of this Swan river in an unscientific manner by using big Pokland and JCB machines, in utter violation of the norms and rules framed for the purpose under the nose and eyes of the local District Administration and government, causing constant danger to the river and to the channelization of this river.
Thousands of Trucks are being loaded beyond the required capacity and running on the roads in utter violation of the norms fixed by the Government. The Trucks-Tippers are being over loaded which are causing damage to the roads, causing pollution in the area, inconvenience to the public at large on the roads and accidents are taking untimely lives of the people at large. There is every possibility that it may cause not only loss, damage and destruction to the channalisation work of the Swan River, it may also cause damage to the bridges, leading to loss of public funds already spent for this purpose, besides loss to the water level. It may cause pollution in the area and threat to peaceful atmosphere of green State of Himachal Pradesh, apart from damage to the roads. The applicant has also relied upon media reports.
B. Constitution of fact finding committee - order dated 2.3.2021
2. Vide order dated 02.03.2021, the Tribunal observed that remedial action to control illegal mining appeared to be necessary after verification of the facts. Accordingly, the Secretary, Environment, HP, the State PCB 2 and the District Magistrate, Una were directed to verify facts based on which further remedial action could be taken as per law. The Tribunal also constituted an independent five-member Committee headed by Justice Jasbir Singh, former Judge of Punjab and Haryana High Court, and comprising Regional Officers of the CPCB, the MoEF&CC, the Central Soil and Water Conversation Research Institute, Dehradun and the Himalayan Forest Research Institute, Shimla to give its report of status on the ground.
C. Reports of the Committee dated 7.4.2021 and 3.5.2021 finding gross illegalities and violations and directions of NGT dated 30.7.2021 to the authorities for remedial action
3. The matter was thereafter considered on 30.07.2021 in the light of report of the District Magistrate, Una dated 07.04.2021 and report of the Committee headed by Justice Jasbir Singh, former Judge of Punjab and Haryana High Court dated 03.05.2021 mentioning the extent of illegal mining and apathy of the administration in controlling the same. Noting the serious violations shown by the reports, the Tribunal found that the mining was unscientific, unsustainable, in violation of environmental norms and illegal. Prohibited mechanical machines were being deployed.
Mining areas were not demarcated, mining plan was not followed and there was extensive damage to the river bank. The vehicles and equipment used were not dealt with as required. Referring to the earlier orders of this Tribunal on the subject, the Tribunal noted the need for remedial action by regulatory authorities including registration of criminal cases under the IPC and prosecution under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. The State had to act as a trustee as per 'Public Trust' doctrine in 3 protecting the environment to uphold the principle of 'Sustainable Development'. The mining was required to be strictly as per mining plan and as per mining norms. The Tribunal directed the Chief Secretary and the DGP, H.P to hold in-house brain storming on the subject in coordination with all other concerned departments to plan further remedial action of initiating prosecution, seizing vehicles and other equipment, recovering compensation, revoking consents, ECs, undertaking carrying capacity study to determine the extent of mining which could be permitted and revamping monitoring mechanism. For ready reference, the observations and directions of the Tribunal are reproduced below:-
"
4. The report of the District Magistrate finds large scale violations in the form of unscientific mechanical mining in violation of statutory Minor Mineral Concession Rules, 2015 which led to registration of (few) FIRs and cancellation of mining leases. Some (insignificant) amount has been collected by way of fine/penalty during the last two years and three mining leases were suspended due to violations. The report also mentions that mining is being done in violation of lease conditions. Overloading of trucks and tippers was taken place. 474 violators were penalized. There are road accidents resulting in deaths and injuries, damage to public infrastructure like bridges and roads, adverse impact on water quality, water table and air. Recommendations for the remedial action include geo fencing of the leased area, compulsory GPS in all JCBs and earth moving equipments. District Una has 518 registered JCBs/ Excavators/ Earth moving equipment.
5. The relevant extracts from the report are reproduced below:
"4. Findings vis- a -vis allegations:
4.1. Unscientific mechanical mining in the Swan River:
In order to ensure the sustainable harnessing of minor minerals, Himachal Pradesh Minor Minerals (Concession) and Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015 were framed. As per these rules, for all the mining concessions or leases "District Survey Report" has been made essential for obtaining the environment clearance for mining in the river beds. Besides this Project Proponent has to get the mining plan approved from the competent authorities for the systematic & scientific mining. The major safeguards to ensure sustainable mining are incorporated in District Survey Report as well as mining plans.4
1. The section 19(15) of Himachal Pradesh Minor Minerals (Concession) and Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015 forbids the usage of mechanical mining. The mechanical mining in river/stream bed shall be allowed only with the help of tyre mounted front end loader up-to 80 Horse Power without backhoe with the permission of the Competent Authority i.e. Director. None of the mining leases in Swan river, Una district have got permission to do mechanical mining.
2. Besides this the section 34 (iv) of Himachal Pradesh Minor Minerals (Concession) and Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015 lays down a general condition for grant of mineral concession whereby the depth of mining in the river bed shall not exceed one metre or water level whichever is less:
Provided that where the Joint Inspection Committee certifies about excessive deposition or over accumulation of minerals in certain reaches requiring channelization, it can go upto two metres on defined reaches of the river.
3. Rule 19(5) of the rules ibid says that the lessee shall at his own expense erect and at all times maintain and keep in good repair boundary marks and pillars necessary to indicate the demarcation shown in the plan annexed to the lease.
Data of violations provided by mining & police department clearly point out that mechanical mining is going on in the area and cases are being detected regularly. In the years 2019-20 and 2020-21, total 77 cases of violations were detected by Police and Mining department, where mechanical mining was being done. 1 FIR was registered by Police department against the tipper driver for overloading and driving it in rash and negligent manner, so as to deter public servant from discharging its duty (section 279,353 & 506 of IPC, s 184 of MV act & s 21 of mining act). The lease was further recommended for the cancellation to mining department. A total compounding fine/penalty of Rs. 35,64,000 was collected. During the period of 2 years, mining activities of 03 mining lease holders were suspended due to violations in the granted area.
Sr. Department/ Details No of cases Fine/ Remarks
No Officials 2019-20 2020-21 Penalty
collected
1. Mining Illegal mining / 09 02 1,10,000 - For the year 2019-20, 03 cases
Department extraction (Manual) pending before Hon'ble court and
Illegal mining / 17 09 13,25,000 6 cases pending for compounding
extraction & 4 cases pending before the
(Mechanical) Hon'ble court for the year 2020-
5
Illegal Storage of - - - 21.
Mining material - During the period of 2 years
Illegal 193 191 27,54,170 mining activities of the 03 mining
Transportation lease holders were suspended due
to violations in the granted area.
2. Police Illegal mining / - - -
Department extraction (Manual)
Illegal mining 10 31 22,39,000
/extraction
(Mechanical)
Illegal Storage of - - -
Mining material
Illegal 626 603 1,21,24,000
Transportation
3. SDM, Una Illegal 06 02 69,000 -
Transportation
4. SDM, Gagret Illegal - - - -
Transportation
5. SDM, Haroli Illegal Storage of 4 - 16,000 SDM Haroli made visits with the
Mining material police and mining staff. So, the
maximum challans are made by
police and mining staff
6. SDM, Illegal 2 - 10,000 -
Bangana Transportation
7. SDM Amb Illegal - - - -
Transportation
Table 2: Details of cases challenged/ detected related to illegal Mining, Storage & Transportation.
a) A random google earth image from Nangran area in Swan river bed, whereby 6 JCBs/ Earth moving equipment could be visibly seen mining the area (approx. 11000 metre 2), is reproduced below. During spot visit to the area, large scale mining was found in the area but no JCBs were present on the day of inspection in river bed. Visibly enough the depth of mining was more than 1 metres which is clear violation of rule 34(iv) of the Himachal Pradesh Minor Minerals (Concession) and Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015.
b) Similarly, another random area near Kuthar Khurd, seen through Google earth (feb,2021) clearly shows one JCB and 5-6 tractors being used for mining. During one of the random spot visits to the area, 2 JCBs were found illegally plying in the area and were caught for the violations (pictures Below).
From both the random visits to the area, google earth analysis and deliberations with the committee members, following observations can be made:
1. The unscientific and illegal mechanical mining is undergoing in the river bed at large scale in violation of section 19(15) of the rules ibid. Based on the google images and general public perception, Mining & Police department could only catch a small fraction of it. In 6 total, district Una have 518 number of registered JCBs/ Excavators/ Earth moving equipment.
2. The condition imposed as per section 34 (iv) of the rules ibid, whereby the depth of mining in the river bed shall not exceed one metre or water level whichever is less, is neither followed by the lessee nor there is any monitoring mechanism except the random visits to the area.
3. Although as per Rule 19(5) of the rules ibid, it's the responsibility of the lessee to erect at his own expense and at all times maintain and keep in good repair boundary marks and pillars necessary to indicate the demarcation shown in the plan annexed to the lease. But in reality, the demarcation pillar marks are an exception rather than the norm. Wherever available, the boundary pillars are neither accurate nor prominent. The shifting nature of river, especially during rainy season gives an excuse to lease holders that the demarcation pillars have been washed away. In absence of properly demarcated and visibly identifiable lease area, it's difficult to differentiate between legal and illegal mining if any.
Overall ambiguity of land boundaries and the availability of private agricultural land in the Swan river bed, further complicates the problem.
Via the notification dated 30.04.2011, 39 categories of officers/officials were authorized to make complaints in writing in the court of competent jurisdiction in respect of any offence punishable under the Mines and Minerals (Development & Regulation) Act, 1957 (Act No. 67 of 1957). For aerial surveillance of illegal mining prone areas, one Drone was also provided to Police Department.
The major problem is that the leaseholders take clearance for sand mining along with duly approved mining plans but they do not follow the conditions scrupulously, on the basis of which clearance was given. Conditions, like avoiding the use of machines or doing sand mining till a particular depth, are being rarely followed. Onus for following the mining plans is majorly on the lease holder. Lack of regular monitoring mechanism and paucity of resources with mining & police department, makes it difficult to monitor the vast length & expanse (63 Km) of Swan river for unsustainable mining practices.
Although during the period of 2 years, mining activities of the 03 mining lease holders were suspended due to violations in the granted area. Departments also have collected a fine of approx. Rs 1.86 crore on account of illegal mining and Rs. 42.16 lakh on overloading within 2 years (2019-20 to 2020-21). But all these punitive actions are not able to deter the unscientific and illegal mining.
74.2. Impact of mining on Channelization:
As per the report received from Superintending engineer, Swan River Flood Management Project circle, Una district, at present there is no instance of channelization assets /infrastructure being damaged due to mining.
One of the general recommendations of "District Survey Plan" mentions that "No River/Stream bed mining shall be allowed within 75 meters from the periphery of soil conservation works, nursery plantation, check dams or within the distance as recommended by the Sub-Divisional Committee, whichever is more".
The Superintending engineer, Swan River Flood Management Project circle, Una district has communicated (24/3/21) a list of 27 sites where the recommendations of "District Survey Plan" are violated. The list is being enquired by the mining department for identifying the violators and the action will be taken as per law.
Besides this Flood protection division, Gagret, District Una has taken several steps to discourage the un-scientific mining in main Swan River & its tributaries/Khads by destroying ramps at mining sites. Joint inspections have been carried out with mining authorities. One FIR (No. 348/19, dated 10/10/2019) was also registered against the Mining lease holder besides the regular notices being issued.
Sr. Department/ Details No. of cases Approx Remarks
N Officials 2019-20 2020-21 damage
o 1. Jal Shakti Damage to Swan river Nil Nil Nil -
Vibhag/ Flood channelization assets/
Protection infrastructure due to mining
Division,
Gagret, Distt.
Una, (H.P)
Violations from 27 No. of 27 No. of sites at - As per District
recommendations/ sites at different Survey Report,
conditions of District Survey different stretches in mining is
Report stretches in main Swan prohibited in the
main Swan River & its span starting
River & its tributaries/ from edge of
tributaries/ Khads waterway upto
Khads 75 m towards
river/khad.
However it is
not being
followed.
Table 3: Details of violations leading to damage to Swan River Channelization.
Although there is no instance of channelization assets /infrastructure being damaged due to mining at present. But due to excessive un-scientific mining, the bed level of Swan river & its tributaries/ Khads might go down year by year. This can lead to excessive launching of aprons of the embankments at some reaches.8
4.3. Overloading of Trucks-Tippers and related issues:
The issue of overloaded vehicles being plied on the roads are being penalised as per Motor Vehicles(MV) act. Overloading not only increases the possibility of accidents, but also damages our road infrastructure - especially in a country where most of our roads lack quality. During past 2 years, 474 violators were penalized for overloading and an amount of Rs. 42.16 lakh was collected as penalty. As per the HPPWD's report, two roads namely Una-Ajouli road and Bharolian Badehar Charatgarh road were damaged due to overloading with approx. damage amounting to Rs. 23 lakh.
Sr. Department/ Details No of Cases Fine/ Remarks
No. officials Penalty
2019- 2020- Collected
20 21
1. Police Overloading 10 17 4,70,000 -
Department
2. Transport Overloading 52 395 37,46,500 Details of overloading include all
Department types of materials including Sand,
Bajri, Boulders etc.
3. Mining Overloading - - - *Included in illegal transportation data
Department at table 2.
4. HPPWD Damage to Public - - - Slippage and crocodile
Road infrastructure cracking in Una Ajauli road
due to overloaded (Km. 8/00 to 13/00)- Approx
vehicles damage rs 18,00,000.
Pot Holes and crocodile
cracking in Bharolian Kalan
Badehar Charatgarh road Km
0/00 to 4/200- Approx
Damage rs. 5,00,000.
Table 4: Details of violations detected for Overloading and the damage to roads owing to it.
In order to check overloading and illegal transportation of the minerals from district Una, the 05 nos of Mining Check Posts (MCPs) along with the weigh bridge have been established on dated 15/03/2021 which will be helpful in controlling the transportation of the minerals in violation of Himachal Pradesh Minor Minerals (Concession) and Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015 and MV Act, 1988.
It is generally seen that the tipper/truck owners, mostly from out of the state, modify/extend the bodies to increase the capacity in violation of the MV act. The new Motor Vehicles Act, amendments are approved by the state government but are pending for notification. As soon as the new provisions are applicable in the state, the heavy fines will discourage the overloading violations.
4.4. Roads accidents due to mining:
9Sr. No. Department/ Details No of Cases Fine/Penalty Remarks officials Collected 2019-20 2020-21- 1 Police Road Accidents-involving 2 1 - -
Department mining related Trucks/Tractors/ Tippers Road Accidents casualties- 3 person died 1person died -
mining related Trucks/ Tractors/ Tippers Total number of accidents 257 172 (all reasons) Total number of accident 123 76 casualties (all reasons) Table 6: Road accident details related to mining trucks etc. In total 3 accidents involving mining related trucks/ Tractors/ Tippers happened over two years (2019-20 & 2020-21) in which 4 persons died. For the period from 2019-21, 429 total number of accidents happened in district Una, which led to the 199 accident casualties. Out of total accidents and casualties happened in district Una due to road accidents (2019-20 & 2020-21), the mining related accidents comprise only 0.6 % and casualties comprise 2%. Thus the mining related trucks/ tippers/ tractors are not the major cause for road accidents and related deaths in district Una.
4.5. Mining causing damage to Public infrastructure likes bridges, roads etc. Sr. Department/ Details No. of cases Approx Remarks No. Officials 2019-20 2020-21 damage
1. HPPWD Damage to Public Road - - - -
infrastructure due to mining Damage to Public Road - - 18,00,000 Slippage and crocodile infrastructure due to cracking in Una Ajauli road overloaded vehicles (Km. 8/00 to 13/00).
- - 5,00,000 Pot Holes and crocodile
cracking in Bharolian
Kalan Badehar Charatgarh
road Km 0/00 to 4/200
Table 7: Report of HPPWD related to any damage to public infrastructure due to mining in Swan river.
As per the report received from HPPWD, no damage to any public infrastructure (Road, Bridges etc.) was reported due to mining in the area till now except the damage to 2 roads mainly due to overloading.
4.6. Impact of mining on water quality, water table and pollution (Air & Water) level:
As per the report received from Environmental Engineer H.P. State Pollution Control Board and S.E (I& PH) at present, no adverse impact on air quality, water quality and water level due to mining were found. The data related to water (MPN/100 ml) and air quality (RPSM- monthly average) remained within 10 the prescribed limits. Further the mining officer, Una was directed by Chairman of District Environment Plan committee, Una during the 1st meeting (held on 24/07/2020) to ensure that no vehicle carrying minor minerals should ply on road without proper covering.
S. No Department/ Details No. of cases Remarks Officials 2019-20 2020-21
1. I&PH Any adverse impact on water - - No adverse impact on water Department quality/ water table due to quality /water table has been noticed mining during 2019-20 & 2020-21, however excessive instream sand and gravel mining may cause the degradation of the river. Impacts include bed degradation, bed coarsening, lowered water table near the stream bed and channel instability. Short term turbidity at the mining site due to re-suspension of sediments, sedimentation due to stock piling and dumping of excess mining materials.
2. HP-PCB Data related to any damage - - The results of Ambient air Department to river Swan from Mining quality of Una & Ind. Area Pollution increase data due to - - Mehatpur (2019-20 & 2020- 21) mining are within prescribed limits.
Similarly the results of water
samples of Swan River (2019-20
& 2020-21) for water
quality were found to be
satisfactory.
Table 5: Report from I&PH department & Pollution Control Department for water quality/ water table, pollution impacts of Swan river mining
5. Challenges:
5.1 Una district has in total 1 National Highway, 3 State Highway, 2 Major District Roads and 2 other interstate exit routes out of the state to Punjab. Besides this plain topography of the area makes ingress & exit through Swan river possible from any point. Therefore, plain topography complemented with a porous, multi exit border enables surreptitious transport of minerals through the escape routes.
5.2 The shifting nature of river, especially during rainy season gives an excuse to lease holders that the demarcation pillars have been washed away. In absence of properly demarcated and visibly identifiable lease area, it's difficult to differentiate between legal and illegal mining if any.
5.3 Majority of the area falling under Swan river belongs to private ownership where agriculture is being done by majority of landowners. Overall ambiguity of land boundaries and the availability of private agricultural land in the Swan river bed further complicates the problem.
6. Recommendation:11
6.1. At the mining plan approval stage itself, Geo fencing of the leased area is to be done using ETS-GPS method so as to remove any ambiguity related to lease area and its boundaries. Along with this high accuracy GPS location trackers, are to be given to mining/ police teams to act against mining lease holders if found mining illegally.
6.2. A compulsory GPS installation in all the JCBs and earth moving equipment's along with suitable alert mechanism (whenever it breaches the No-Go areas) can be developed to prevent mechanical unscientific mining in Swan river."
6. The report of the independent Committee refers to the above report of the District Magistrate and contains interim recommendations which are as follows:
"6.0 Interim recommendations of independent five members Committee
1. The report submitted by the Committee, constituted under the Chairmanship of Additional Deputy Commissioner, Una, has prima facie proved that there is unscientific and illegal mining in Som Bhadra river (Swan river), wherein, 58 mining sites have been leased out, out of which 33 mining leases have been granted in private land, 4 mining leases have been granted by the Govt. and 21 mining leases have been granted Swan river to feed existing stone crushers. Unscientific mining has been mentioned due to the following reason
i) Depth of mining in river bed is more than 1m
ii) The data provided by various departments indicate that mechanical mining is going on the mining lease areas and the same has been verified by the Deputy Commissioner's Committee from random Google earth images taken from Nagran area in Swan river bed where 6 JCBs/ earth moving machines were found at the site and during spot inspection, 2 JCBs were found illegally plying in the area.
Therefore, independent Committee recommends that Deputy Commissioner, Una may depute District level task force to verify as to whether mining leases operating in river Som Bhadra are complying with general conditions as mentioned in rule 34 of Himachal Pradesh Minor Mineral (Concession) are Minerals (Prevention of illegal Mining, Transportation and storage rules, 2015), failing which legal action may be initiated under rule 71 of the said rules.
2. Since no boundary marks/pillars for demarcation of the mining areas have been found by the Committee at the mining lease sites therefore, the department of Mining/Geology shall mark boundary wall/pillars around each mining site in Som Bhadra river maintaining only one entry and exit gate within 01 month.
123. District level Task Force shall check the compliance of Mining Plan submitted by each mining lease holder operating their mining activities in Som Bhadra river within 02 months and report be submitted to Mining department as well as Deputy Commissioner, Una for further action.
4. The Department of Irrigation (Swan river flood management circle) shall continue to inspect the banks and infrastructure developed for channelization of river Som Bhadra and ensure that no portion of channelized river is damaged due to mining activities in the area. Their inspections may be conducted on quarterly bases.
5. The department of Transport and Police shall jointly check the overloaded trucks / vehicles carrying minor mineral/sand and heavy fine may in imposed on these vehicles/trucks. Driving License of the driver may be seized of and put into safe custody for 01 month.
6. District level Task Force shall seize of the vehicles used for illegal mining in Som Bhadra river and those may be released as per methodology mentioned Para 8 in order dated 26.2.2021 in OA No 360 of 2015.
7. The department of Transport and Police shall jointly check the loaded/overloaded trucks/vehicles carrying minor minerals/sand and in case these trucks are found with extended bodies, the vehicle may be seized of and shall be released following the procedure and methodology as mentioned in par 8 of order dated 26.2.2021 in OA No 360 of 2015 in the matter of National Green Tribunal Bar Association V /s Virender Singh (State of Gujarat).
8. For transporting of minor mineral material from mining area, only one or two roads may be fixed and notified by department of Mining and all the mined materials should be transported only through these roads. There shall be total restriction on the movement of trucks carrying/transporting minor minerals/sand on the other non notified road
9. The department of Mining/Geology shall provide Geo fencing on all mining lease areas in river Som Bhadra within 03 months.
10. All the mining lease holders shall provide High frequency GPS on the vehicles deployed for transportation of mined material so that their movement can be tracked and can be monitored by the Department of Mining and Police and prompt action may be taken against the illegal mining operator.
11. During the meeting held on 9.4.2021, it was informed to the Independent Committee that no JCB/Mechanical equipments are allowed in mining of minor minerals/sand in Som Bhadra river (Swan river). Therefore, the Independent 13 Committee recommends that no JCB/mechanical equipments may be allowed for mining in the river Swan.
12. In no case, mining of minor minerals/sand may be allowed in night hours.
13. The department of Irrigation may continue to make survey along river Som Bhadra 04 times in a year to ensure that no sand and gravel may be allowed to be extracted where erosion may occur and especially at the concave banks of the river.
14. District level Special Task Force shall not allow extraction of sand and gravel with 200 to 500m from sensitive structures such as water intake system, pumping station and bridges.
15. The department of Mining shall identify ways of scientific and systematic mining is Som Bhadra river and shall conduct replenishment study which may include the time for continuing replenishment after mining on area.
16. The department of Mining shall ensure that while preparing District Survey Report of mining area along Som Bhadra river, the stretches of river having aggradations/deposition of material where mining can be allowed may be identified. Identification of area of erosion and proximity to infrastructure structures and installation where mining should be prohibited may also done.
Further the District Survey report of mining area may be prepared as per structure mentioned in Sustainable Sand Mining Management Guidelines, 2016.
17. For monitoring illegal sand/gravel mining in Som Bhadra river, there should be a provisions of checking Transport permits, printing of transport permit on security papers, invisible ink mark, fugitive ink background and unique barcode system. The department of Mining shall provide said documents to the monitoring teams or District Level Special Task Force at District level. The Monitoring team deployed for checking of vehicles/trucks carrying mined material should be in a position to check the validity of Transport permit or receipt by scanning them using website, mobile phone application and SMS etc.
18. There should a mechanism at district level to generate the system which may enable the authorities to develop periodic report on different parameters like daily lifting report, vehicle log or history, lifting against allocation and total lifting. The system can be used to generate auto mails or SMS. This will enable the Deputy Commissioner to get all the relevant details and shall enable the authority to block the scanning facility of any site found to be indulged in irregularity.
1419. The mining lease holder shall ensure that vehicles used for transportation of sand/mined material are to be permitted only with of fitness and PUC Certificates and he shall ensure that the road may not be damaged due to transportation of the mined material and transport of minerals will be as per IRC Guidelines with respect to complying with traffic congestion and density. The compliance in this regard may be checked by department of Mining.
20. The District level Task Force while monitoring the mining areas in Som Bhadra river shall check the following parameters.
i) No river/stream bed mining may be allowed within 75 meter from the periphery of soil conservation works, nursery plantations, check dams or within the distance as recommended by the Sub-Divisional Committee whichever is more.
ii) No river/stream bed mining may be allowed within 1/ 10th of its span or 5 meters from the banks or as specified by the Sub-Divisional Level Committee, whichever is more.
iii) No river/stream bed mining may be allowed within 200 meters upstream and downstream of water supply scheme or as specified by the Committee, whichever is more.
iv) No river/stream bed mining may be allowed within 200 meters upstream and 200 to 500 meters downstream of bridges depending upon the site specific conditions.:
v) No digging for more than 1 meter shall be allowed in river/stream beds.
vi) No blasting shall be allowed in river/stream beds."
7. We have duly considered the above reports and are shocked at the extent of violations and helpless shown in taking remedial action. The violations are resulting in serious harm to the environment and public health. It is established that unscientific and illegal mining is continuing for long in more depth than permitted, by prohibited mechanical means such as using JCBs/earth moving machines, absence of boundary marks/pillars for demarcation of mining areas, non-adhering to mining plan, damage to the river bank and infrastructure for channelization of the river, overloading of trucks/vehicles, absence of geo fencing of mining leased areas, absence of high frequency GPS in the vehicles used for transportation, absence of survey to check regulation of mining where erosion is happening, extraction of material from sensitive structures such as water intake systems, pumping station and bridges, absence of proper district survey report, checking of transport permits and other documents, mechanism to generate daily 15 reports. The report of the District Magistrate, Una shows that there are as many as 518 registered JCBs/Excavators/Earth moving equipments in District Una. It is surprising that if such large number of equipments have been registered, why the same are not monitored. It is difficult to believe that the administration lacks competence in taking action. There is no reason for the plea that monitoring is not taking place. If it is so why? There appears to be laxity on the part of the police in not controlling overloading trucks, illegal theft in the form of illegal mining. Equal failure is of mining department. So is the failure of the State PCB and SEIAA for inaction against violation of EC and Consent conditions.
8. Vide order of this Tribunal dated 26.02.2021 in OA 360/2015, National Green Tribunal Bar Association v. Virender Singh (State of Gujarat), it was directed that the vehicles involved in transportation of illegally mined material need to be seized and not released without payment of amounts mentioned in the said order. The said order having been passed under Section 15 of the National Green Tribunal Act, 2010 has overriding effect on provisions of any other statute in view of section 33 of the said Act. Indicative scale of compensation to be recovered has been approved taking into account the illegal benefit taken by violation of norms, cost of loss to ecological services and cost of restoration with deterrence element if violations are of continuing nature. We reproduce below relevant observations on the subject of seizure of vehicles, compensation assessment and coercive measures from the said order:
"Seizure and Release of vehicles involved in illegal mining
8. Another issue bearing on the enforcement mechanism is the action against the vehicles used in illegal sand mining. Seizure of such vehicles is required and release of seized vehicles lightly defeats the purpose of the coercive measures. Since the vehicles are in a way weapon of offence, the same cannot be dealt with in the manner disputed property is dealt with under section 451 Cr.PC. by releasing the same in favour of the ostensible owner by taking an entrustment/indemnity bond/sapurdginama. In Sujit Kumar Rana, (2004) 4 SCC 129 and order dated 26.03.2019 in Cr. A. 524/2019, State of Madhya Pradesh v. Uday Singh, it was held that special procedure for seizure and release of such vehicles prevails over the procedure under Section 451 Cr.P.C. This Tribunal earlier directed, in the case of illegal mining in Meghalaya that such vehicles should be released only on the payment of 50% of the showroom value. The same was affirmed by the Hon'ble Supreme Court in 2019 (8) SCC 177. Similar order was passed by the Tribunal on 10.01.2019 in O.A. No. 670/2018, Atul Chouhan v. State of U.P., which stands affirmed by the Hon'ble Supreme Court vide order dated 07.05.2019 in C.A. No. 1590/2019. Thus, the procedure under Cr.P.C. for release of vehicles on superdari without stringent conditions would not apply in respect of action taken for enforcement of Sustainable Guidelines issued under the Environment (Protection) Act, 1986 (EP Act) and for enforcement of orders of this Tribunal under Section 15 16 of the National Green Tribunal Act, 2010 (NGT Act). However, having regard to the difficulty expressed by the State that requirement to pay 50% of the showroom value of the vehicle was resulting in vehicles not being released at all, the earlier order was modified on 19.02.2020 to the effect that following scale of amount be recovered for release of the seized vehicles:-
Sr. No. Category of Vehicle Penalty
Amount
1 Vehicles/Equipments/Excavators with showroom Rs. 4 lacs
value more than Rs. 25 lacs and less than 5 years old.
2 Vehicles/Equipments/Excavators with showroom Rs. 3 lacs value more than Rs. 25 lacs and more than 5 years but less than 10 years old.
3 For the remaining Vehicles older than 10 Rs. 2 lacs years/Equipments/ Excavators which are otherwise legally permissible to be operated and not covered by Serial No. 1 and 2.
Note - I: On repetition of the offence by the same vehicle/ equipment, Order dated 05.04.2019 will be applicable.
Note - II: The option of release may be available for a period of one month from the date of seizure and thereafter, the vehicles may be confiscated and auctioned.
9. Following further directions were issued :-
"6. The State may issue an appropriate Office Order/Rule to the above effect and publish the same. Needless to say that any private contract between a financer and a debtor cannot affect the States' sovereign power to protect the environment and take incidental coercive measure for enforcement of rule of law. Lien of the State will override any private interest. The above compensation regime will be over and above any existing Rules or provisions. The amount collected may be remitted to the State PCBs/PCCs for being utilized for restoration of the environment.
7. The above course of action will be permissible to all the States at their option."
Scale of compensation for violations on polluter pays principle
10. Vide order dated 17.08.2020, the Tribunal considered the CPCB report dated 30.01.2020, in pursuance of earlier orders on scale of compensation to be recovered for violation of norms for mining on polluter pays principle and the matter was deferred for further consideration of such scale and further orders in the light of the EMGSM 2020. On the issue of scale of compensation for violations, the Tribunal held that the same has to be calculated having regard to the polluter pays principle and 17 not mere loss of royalty. This requires taking into account value of the illegally mined material and cost of restoration of the environment. CPCB did the exercise by constituting an expert Committee. The Tribunal considered the report as follows:-
"8. The Committee considered two approaches:
(I) Approach 1: Direct Compensation based on the market value of extraction, adjusted for ecological damages.
(II) Approach 2: Computing a Simplified NPV for ecological damages.
9. In the first approach, the criteria adopted is:
Exceedance Factor (EF).
Risk Factor (RF).
Deterrence Factor (DF).
10. Approach 1 is demonstrated by Table 1 as follows:
" Table No. 01: Approach 1Permitted Total Excess Exceedance in Compensation Charge Quantity Extractio Extraction Extraction: (in Rs.) (in MT or n (in MT (in MT or m3) m3) or m3) X Y Z = Y-X Z/ X D * (1+RF + DF) Where D = Z x Market Value-of-
the-material-per-MT-or-m3 DF = 0.3 if Z/X = 0.11 to 0.40 DF = 0.6 if Z/X = 0.41 to 0.70 DF = 1 if Z/X >= 0.71 RF = 0.25, 0.50. 0.75, 1.00 (as per table 2) "
11. Approach 2 is demonstrated by following formula:
"Till such time as data and information for a comprehensive NPV is worked out in a site specific manner to account for all (or atleast the major) ecological damages, a simplified NPV, proxied on the market value of the illegally extracted amount may be computed. In this case the NPV approach would imply that the total benefits from the activity of sand mining (as represented by the market value of the extracted amount) be deducted from the total ecological costs imposed by the activity. In the absence of data on benefits and costs separately, we recommend a modification of the formula as shown below:
Total Benefits(B) = Market Value of illegal extraction : D (refer Table 1) Total Ecological Costs = Market Value Adjusted for risk factor: D ✱RF (refer Table1).
For present purposes, it is assumed that the Benefits would accrue only in the first year (in which the extraction of the 18 illegally mined material takes place), while the ecological costs would continue to be felt over a period of time. NPV is to be calculated for a period of 5 years on the net value, Σ (C-B), at a discount rate ranging from 8%-5%, varying in inverse with the risk factor. Thus, where the highest risk factor (say
1) is applicable, the discount rate applicable would be the lowest (say 5% in this case)."
12. Final recommendation is as follows:
"Thus, it is recommended that the annual net present value (NPV) of the amount arrived at after taking the difference between the costs and the benefits through the use of the above approach, maybe calculated for a period of 5 years at a discount rate of 5% for mining which is in a severe ecological damage risk zone. The rationale for levying this NPV is based on expert opinion that reversal and/or restoration of the ecological damages is usually not possible within a short period of time and rarely is it feasible to achieve 100% restoration, even if the sand deposition in the river basin is restored through flooding in subsequent years.
The negative externalities of the mining activity are therefore to be accounted for in this manner. Ideally, the worth of all such damages, including costs of those which can be restored should be charged. However, till data on site- specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorization charged. However, till data on site- specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorisation is unavailable or pending calculation, the following Discount Rates may be considered:
Severity Mild Moderate Significant Severe Risk Level 1 2 3 4 Risk Factor 0.25 0.50 0.75 1.0 Discount 8% 7% 6% 5% "
Rate
11. Annexure-A appended to the report gives the calculation as follows:
"Compensation Charge (Scenario II - explicit accounting of NPV) Market Value of Illegally Mined Material (D) 5000*400 = 2000000/-
Annual Value of Foregone Ecological Values D*RF = 2000000/-
Present Value of Foregone Ecological Values (@ 5% discount rate
and over 5 years)
(𝑫+𝑹𝑻)
PV = ∑𝟓𝒕=𝟏 (𝟏+𝒓)𝒕
= ∑(2000000) + (2000000) + (2000000) + (2000000)+ 2000000)
(1+0.05)1 (1+0.05)2 (1+0.05)3 (1+0.05)4 (1+0.05)5
19
= Rs. 86,58,953/-
Net Present Value (after netting out market value of illegally mined
material) - i.e., Total Compensation to be levied = NPV=PV-D = Rs. 66,58,953/-
Compensation Charge in above case:
Approach 1
(no explicit accounting of NPV) Approach 2
(explicit accounting of NPV)
D*(1+RF+DF) @ 5% discount rate and over 5 years
Rs. 46,00,000/- Rs. 66,58,953/- "
12. The Tribunal directed undertaking of scenario analysis, as suggested on behalf of the applicant and to furnish a further report accordingly. Further report dated 12.10.2020 has been filed by the CPCB reiterating its earlier report. We propose to approve approach-2 in the report. Apart from the above, a report dated 15.01.2021 has been filed by the Oversight Committee for the State of UP1 to which reference will be made later.
xxx..........................................xxx.........................................
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."
9. It is a matter of surprise that such rampant violations are going on under the nose of all regulatory authorities - District Magistrate, District Police, Mining Department, Environment Department and Statutory Regulators, including SEIAA and State PCB. There is no dearth of power with the said authorities but failure is sought to be covered by pleading inability to handle the situation 1 constituted by this Tribunal to oversee compliance of environmental issues, on suggestions of the State Government.
20to remedy violations. Illegal mining is not only theft which is a cognizable offence under the IPC and covered by various offences under Chapter XIV of IPC but also offence under the Air (Prevention and Control of Pollution) Act, 1981, the Water (Prevention and Control of Pollution) Act, 1974 and the Environment (Protection) Act, 1986. The State is the trustee for protection of environment under the Constitution. Public Trust Doctrine applies. Right to clean environment is a fundamental right of the citizens. Natural wealth in the form of minerals belongs to the citizens which need to be protected by the State. Unscientific mining has serious and irreversible consequences on river and environment which needs to be checked for giving effect to the 'sustainable development' principle, to which India is committed. Thus, mining has to be as per plan and in accordance with sustainable mining guidelines issued by the MoEF&CC. The mining department claims to have recovered some amount as per mining rules which may represent loss of royalty but not all the components of compensation. Thus, the State Authorities need to remedy their failure in performance of their duties and are accountable. Heads of concerned departments have to explain their failure and make amends. Their failures due to incompetence or connivance is taking toll on the rights of citizens. Serious crimes are taking place unchecked. We alert the higher authorities of the State to take meaningful action against the officers aiding and abating such crimes in District Una by their inaction or wrongful action.
10. Accordingly, we direct the Chief Secretary and D.G.P., Himachal Pradesh to hold their inhouse brainstorming on the subject with all concerned departments/authorities and set their house in order to uphold the law instead of private interests of law violators. They may take stock of the situation and plan further course of action to prevent illegal mining, register criminal cases for offences involved, ensure seizure of vehicles involved in crime, assess and recover compensation for the violations, take action of cancellation of leases for violations, revocation of consents/ECs, criminal prosecution and other steps for protection and restoration of environment. Carrying capacity study must be conducted with a view to determine the number of leases to be granted and inter-se distance to be maintained for the same. Monitoring mechanism in place must be reviewed in the light of startling revelation of the continuing failure of the authorities. Colluding officers/authorities may also be identified and made accountable under the environment, criminal and service laws. First such meeting may be organized within 15 days from today to take stock of the situation and to plan remedial action. The Chief Secretary and the DGP, HP may remain personally present by Video conferencing with their action taken reports."
D. Supplementary report of the Committee dated 7.7.2021 and order of NGT dated 13.8.2021
4. Since another report submitted by the Committee headed by Justice Jasbir Singh on 07.07.2021 was not put up when order dated 21 30.7.2021 was passed by the Tribunal, vide further order dated 13.08.2021 the said report was considered and directed to be forwarded to the Chief Secretary, DGP, H.P and other authorities in the State of H.P for action in terms of the recommendations in the said report.
5. The operative part of the order is reproduced below:-
"
5. In view of above, the report dated 07.07.2021 is taken on record. A copy of the report forwarded to the Chief Secretary, D.G.P., Himachal Pradesh, State PCB, SEIAA, Himachal Pradesh and District Magistrate, Una for further action in the light thereof. If there are any objections, the aggrieved parties are free to raise the same before the Tribunal to be considered on the next date. The recommendations in the report are reproduced below:-
"5.5 Recommendations of the Monitoring Committee The visual observations of the Monitoring Committee at three places as mentioned above indicated that there was organized loot of natural resources causing loss to public exchequer more than Rs. 100 crores as well as lot of damage to the environment. It was found that illegal mining has been done in many hectares of land of river Som Bhadra, which is 63 km in length in Una area for which mining lease was not approved by the Govt. It indicates that there was absolutely no checking, when the mining officer and officer of Geology deptt., deployed for monitoring of sand mining, the said officer has put up an excuse of shortage of staff. He was also directed to measure the illegal and unlicensed mined area in the entire stretch of river and submit the report.
Surprisingly, it has come to the notice of the Monitoring Committee that everything has been left to the sweet will of the mining lease holder. Through the online system, the licensee declares the amount of mined material and the same is believed by mining officer without any further verification.
To stop this damage to natural resources, public money and environment, the following recommendations are made for immediate action.
a) Recommendations for immediate action.
1. An enforcement wing with adequate staff strength of atleast 30 persons under the control of Deputy Superintendent of Police may be deployed at Una to monitor Som Bhadra mining sites. The team should also include officers from department of geology and District Administration. The enforcement wing may 22 patrol the area in three shifts along the river, where the sand mining/ mining of other mineral has been leased out. The said enforcement wing may be funded from District Mineral Development Funds, in which enough amount is available. The enforcement wing shall also provide Control Room at each cluster of mining sites for proper checking of the vehicles transporting the mined material. In the control room, one dedicated landline number and an android phone with Whatsapp facility be provided and this number be circulated in the area on the both sides of river through village Panchayats. Each telephone call should be entered in a register and if there is complaint regarding illegal mining, District Level Special Task Force should take immediate action. The control room be provided with four vehicles (four wheel driven jeeps) to control the area in day and night shifts.
2. The stone crusher owner may be directed to maintain complete record of manpower employed at mining lease area for digging minor mineral and also at the site of stone crusher.
3. The Mining Officer should be the competent authority to specify the transport route which shall be used by the vehicles used by the mining lease holders so that it may route through atleast one of the mining check posts established by the Department. There should be complete restriction on loading & transport of mined material during night hours (7:00 PM to 6:00 AM), since this is the time window which is used for maximum evasion. These provisions already exist in respect of forest produce under the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 2013 and the similar provisions can be adopted in respect of mined minerals with salutary effect. Currently, the lessee generates Form -X at his own end which does not have the option of specifying the transit route. Lessee should give a list of vehicles to the Mining Officer which should be entered into the portal and which will get auto-populated in the software in the lessee's login. The list of permitted vehicles should be shared with the Police Department and with the mining check posts. Any vehicle which is not in the list given by the lessees, should simply be impounded. All these vehicles should be made GPS enabled by the lessee and their movement should be accessible by the Mining Department through a central access login.
4. Advance Technological Drones may be provided to the Mining department to take prompt action against illegal mining activity.
5. While approving mining plan of the mining area, Geo- fencing of the area to be leased out should be made so as to remove any ambiguity relating to mining lease area and boundaries.
b) Other recommendations of the Monitoring Committee.
1. A Committee under the Chairmanship of Additional Deputy Commissioner, Una and officers of other Departments namely Department of Mining, Department of Police, Department of Revenue, Geology and HPSPCB shall prepare a detailed plan of the mining area in Som Bhadra river mentioning the 23 original bed level of river, level upto which extraction of sand has been done, total quantity of sand or any other minor mineral extracted per year, the quantity of mined material in the record of mining department and the quantity of permitted mined material, quantity of mined material which was over extracted and transported illegally to sell in the market. A proper document in this regard may be prepared and assessment of damage caused to the environment and loss occurred to the State due to illegal activity may be done within 2 months. The said detailed report may be submitted to the Deputy Commissioner, Una. Cost of damage caused to environment and financial loss made to the Government may be calculated by the said Committee based on the Approaches I and II mentioned as in para No. 10 and 25 of order dated 26.2.2021 in OA No. 360 of 2015 in the matter of National Green Tribunal Bar Association Vs Verinder singh (State of Gujrat). The persons/contractors involved in illegal activities for over extraction of mined material using non scientific and illegal method for extraction of Sand/ Bajri may be identified and cost of damage caused to the environment and loss of royalty to the State may be imposed within 3 months. The said financial loss caused to the Government and cost of damage caused to the ecological system may be recovered from the defaulters by the department of mining.
2. Since lot of indiscriminate and over extraction of sand involving unscientific method and deep dug places have been found in Som Bhadra river in almost all the mining sites either on Government land or by the private land owner, as such, it is not advisable to allow mining leases in the area for atleast 01 year till the replenishment of all the dugged mines is properly occurred and bed level of the river comes to its original level.
3. To identify the location of the mining sites, concrete pillars may be erected as a sign of demarcation around the mining site within 02 months.
4. All the vehicles utilized for transportation of mined material should be provided with GPS for its real time tracking within 02 months.
5. All the mining lease holders shall jointly provide one weigh bridge at each cluster of mining sites for weighing of mined material within 03 months and proper record in this regard may be maintained and it may be submitted to mining department on daily basis.
6. The cluster of mining sites should be provided with only one entry, one exit gate and one check post so that any illegal mining and transportation may be restricted.
7. All the mining lease holders shall provide CCTV cameras at all the vulnerable points with its connectivity to Deputy Commissioner office/Control Room and Mining Department to control illegal and unscientific mining and transportation within 03 months.
248. The Monitoring mechanism for seize and release of vehicles used for illegal mining, scale of compensation for violation on polluter pays principle as mentioned in the para no. 8 to 11 of order dated 26.02.2021 in OA no. 360/2015 in the matter of National Green Tribunal Bar Association Vs Virender Singh may be implemented by the concerned departments of Himachal Pradesh. The monitoring mechanism and suggestive additional requirements as mentioned in sub para no. 9.4 and 9.5, respectively, of para 18 of said order may also be implemented.
9. The State of Himachal Pradesh shall strictly follow Sustainable Sand Mining Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand mining, 2020 for preparation of District Survey Report (DSR), environmental management plan, replenishment studies, mine closure plan and grant of environment clearance.
10. The State of Himachal Pradesh shall also implement the directions issued in para no.28 of order dated 26.02.2021 in OA No. 360 of 2015 by way of getting conduct visit to the mining lease sites by a five member 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. 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.
11. While selecting mining sites to be given on mining lease, the stipulations for grant of mining leases, stipulations for river bed mining as mentioned in the Himachal Pradesh Minor Mineral (Concession) and Minerals (Prevention of illegal mining, transportation and storage) Rules, 2016, may be implemented.
12. In case of mining in private land, if any violation of the terms and conditions of the lease agreement is detected/ observed by way of extraction of sand/minor mineral more than the permissible quantity and mining is done in non scientific manner by using mechanical machinery etc, the said private land owner may not be allowed to lease out his land for mining in the next two year.
13. JCBs/earth moving equipments deputed at dump sites may be provided with advance technological GPS with suitable alert mechanism to prevent unscientific/mechanical mining within 3 months.
14. Rule 73 of Himachal Pradesh Miner Minerals (concession) and minerals (prevention of illegal mining, transportation and storage) Rule, 2015 may be amended to the extent that powers for challaning the vehicles used for illegal activities and recovery of the fine amounting to Rs 50,000/- may be with the mining officer of department of Mining.
15. The Government of Himachal Pradesh may issue appropriate notification to implement the Judgment of Hon'ble NGT dated 26.02.2021 in the matter of National Green Tribunal Bar Association vs. Virender Singh (OA No. 360/2015) regarding seizure and penalties on vehicles found doing illegal 25 mining, specifically paragraphs 8 and 9 of the judgment and for imposing penalties on violators for releasing of vehicles engaged in illegal mining as per formula approved in para 12 of the said order taking into account the net present value (NPV) of the environmental damage and not merely loss of royalty may also be approved for use during compounding of offences instead of paltry sum of Rs. 50,000/-
16. As per the provisions of section 22 of the Mines and Minerals (Development & Regulation) Act, 1957 [(MMDR Act, 1957)], there is provision that no court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Govt. or State Govt. As such, the police cannot register an FIR against the violator on the complaint of any citizen/individual. There is need to amend the said section of MMDR, Act, 1957 to the extent that police department should have powers to register FIR against the violators.
17. The Mining Department may create an online app which can be used by all officers authorized for compounding so that an alert can be generated for vehicle numbers in case of repeat violations are occurred. In all such cases, FIR should be registered and the case should be sent to Court for trial & conviction.
18. As per Rule 73 of the Himachal Pradesh Miner Minerals Rules, 2015, in case of illegal mining is done mechanically in the river/stream beds, the amount of compounding fee shall not be less than Rs. 50,000/-. This is a very small penalty and the machine used in illegal mining gets used again and again and violators recoup the financial penalty within a day or two. Currently, any machine or transport vehicle found engaged in illegal mining can be seized by the officer on the spot (after two violations) but it can only be confiscated by competent court of law as per Section 21 (4A) of the MMRDA, 1957. This provision is ineffective and does not create any deterrence for the violators. To create real deterrence, machines or transport vehicles found engaged in illegal mining should be allowed to be confiscated by the officer seizing them in the first instance itself and vested in the State Government and allocated to the executing agencies of the Government for use. The onus should be on the owner of the machinery/ vehicle to avail legal remedies to recover the possession thereof. This would absolutely deter mechanical mining in the river bed.
19. The Department of Mining shall increase number of check posts. Mining lease holders shall declare and get register all the vehicles used for transportation of mined material with Mining Department. The mined material shall be brought to the check post for its weighing and keep the weighing slips with them. Form X should be issued only in case of declared registered vehicles. There should be monthly inspection of the lessees by the Mining Officer to match the Form-X and weighing slips and any discrepancy should be considered as illegal mining and fine recovered thereof.
2620. Rule 34 (v) of Himachal Pradesh Miner Minerals (concession) and minerals (prevention of illegal mining, transportation and storage) Rule, 2015 provides that mining site shall only be handed over to the mining lease holder, after it is duly demarcated by permanent boundary pillars and certified by concerned Mining Officer. In river bed mining, lessee takes the plea that the boundary pillars get washed away during monsoon season. Consequently, lessee can mine wherever they want until someone challenges their rights and applies for a demarcation. The Mining Department urgently needs to float RFP to explore the possibility of geo- fencing of mining areas and effectiveness of other technological measures like remote volumetric analysis in case of river bed mining.
21. While approving the mining plan, the concerned department shall issue its statement that sufficient sand/miner mineral is available at the site for N number of years and accordingly mining leases may be accorded for specific time for which the material is available for mining.
22. District level Task Force shall check the compliance of Mining Plan submitted by each mining lease holder operating their mining activities in Som Bhadra river within 02 months and report be submitted to Mining department as well as Deputy Commissioner, Una for further action.
23. The Department of Irrigation (Swan river flood management circle) shall continue to inspect the banks and infrastructure developed for channelization of river Som Bhadra and ensure that no portion of channelized river is damaged due to mining activities in the area. Their inspections may be conducted on quarterly bases.
24. The department of Transport and Police shall jointly check the overloaded trucks / vehicles with extended bodies carrying minor mineral/sand and heavy fine may be imposed on these vehicles/trucks. The trucks/vehicles and driving License of the driver may be seized and put into safe custody for 01 month and these trucks/vehicles shall be released following the procedure and methodology as mentioned in para 8 of order dated 26.2.2021 in OA No 360 of 2015 in the matter of National Green Tribunal Bar Association V/s Virender Singh (State of Gujarat).
25. District level Task Force shall seize the vehicles used for illegal mining in Som Bhadra river and these may be released as per methodology mentioned Para 8 in order dated 26.2.2021 in OA No 360 of 2015.
26. For transporting of minor mineral from mining area, only one or two roads may be fixed and notified by department of Mining and all the mined materials should be routed only through these roads. The check posts may be constructed on these roads. There shall be total restriction on the movement of trucks carrying/transporting minor minerals/sand on the other non-notified roads.
27. The department of Mining/Geology shall provide Geo fencing on all mining lease areas in river Som Bhadra within 03 months.
2728. All the mining lease holders shall provide advance technological GPS on the declared/registered vehicles deployed for transportation of mined material having their connectivity with the office of Deputy Commissioner and Mining Department within 3 months so that their movement can be tracked and can be monitored by the Department of Mining and Police and prompt action may be taken against the illegal mining operator.
29. The department of Irrigation may continue to make survey along river Som Bhadra four times in a year to ensure that no sand and gravel is allowed to be extracted, where, soil erosion may occur and especially at the concave banks of the river.
30. The department of Mining shall identify ways of scientific and systematic mining is Som Bhadra river and shall conduct replenishment study to determine the time for continuing replenishment of river bed after mining in the area as per the methodology mentioned in Sustainable Sand Mining Management Guidelines, 2016.
31. The department of Mining shall ensure that while preparing District Survey Report of mining area along Som Bhadra river, the stretches of river having aggradations/deposition of material where mining can be allowed, may be identified. The area of erosion and proximity to infrastructure structures and installation, where mining should be prohibited should be identified. Further, the District Survey report of mining area may be prepared as per the methodology mentioned in Sustainable Sand Mining Management Guidelines, 2016.
32. For monitoring illegal sand/gravel mining in Som Bhadra river, there should be a provisions of checking Transport permits, printing of transport permit on security papers, invisible ink mark, fugitive ink background and unique barcode system. The department of Mining shall provide said documents to the monitoring teams or District Level Special Task Force at District level within 3 months. The Monitoring team deployed for checking of vehicles/trucks carrying mined material should be in a position to check the validity of Transport permit or receipt by scanning them using website, mobile phone application and SMS etc.
33. There should be a mechanism at district level to generate the system which may enable the authorities to develop periodic report on different parameters like daily lifting report, vehicle log or history, lifting against allocation and total lifting. The system can be used to generate auto mails or SMS. This will enable the Deputy Commissioner to get all the relevant details and shall enable the authority to block the scanning facility of any site found to be indulged in irregularity.
34. During the visit to the stone crushing unit namely Rudhra Stone Crushing and Screening Plant, V.P.O. Basal Lower, Una on 17.6.2021, it was observed that lot of raw material i.e boulder and bajri of big size was found stored at site. These stone crushers have not been allowed to use mechanical machinery to extract raw material from Som Bhadra river and the raw material is to be extracted only 28 with manual labor. The quantity of raw material lying at site indicated that such huge quantity cannot be extracted manually, therefore, the mining officer, present at site was asked by the Chairman of the Monitoring Committee to assess the following :
i) Total quantity of raw material lying at site.
ii) Manpower available with stone crusher.
iii) Quantity of raw material can be extracted per person/day.
iv) No. of JCB/poclain available with the stone crusher or taken on rent by the stone crusher.
v) Quantity of raw material processed per day to manufacture bajri and sand.
vi) Quantity of products i.e bajri and sand produced and sold by the stone crusher The above data may be supplied to Deputy Commissioner, Una. The data may be analyzed jointly by Department of Mining and Himachal Pradesh State Pollution Control Board and in case, it is proved that mechanical machinery has been used for extraction of raw material, legal action against the stone crusher may be taken as per the provisions of Himachal Pradesh Mine Minerals (concession) and Minerals, Rules, 2015.
Besides, there were following observations w.r.t. pollution control system, which are mentioned as under:
i. No water sprinkling system has been provided on all the five conveyor belts.
ii. No telescopic chutes have been provided at the end of conveyor belts.
iii. No covered sheds have been provided on the material transfer points.
iv. No metalled Road has been provided in the premises of the stone crusher.
v. No wind breaking wall has been provided around the stone crusher vi. No plantation/green cover has been provided around stone crusher.
vii. No covered sheds have been provided on the conveyor belts.
viii. The stone crusher has also screening plant for which water is used for washing for sand/bajri and lot of wastewater, containing silt, is discharged into a drain provided within the premises of stone crusher. No settling tank has been provided to settle the sediments and no arrangements have been made to recycle the wastewater for washing of raw material. Lot of stagnation of wastewater, containing silt, was observed at site.
Also there are 23 stone crushing units operating in the catchment area of Som Bhadra River, out of 29 which Monitoring Committee has visited 01 unit as mentioned above. The list of the 23 stone crushing units is annexed as per Annexure -F. The Monitoring Committee recommended as under:
i) The stone crushing unit namely M/s Rudhra Stone crushing and screening plant may be issued closure notice by HPSPCB after following due procedure as per the provisions of the Air Act, 1981 and Water Act, 1974.
ii) HPSPCB should visit all the remaining 22 stone crushing units operating in the catchment area of Som Bhadra River and check all the points of the code of practice to be implemented by these stone crushers to control air pollution and action against the violating stone crushing units may be taken within one month.
iii) All the stone crushers, located in the catchment area of river Som Bhadra, shall provide adequate plantation all around their periphery within 2 months.
35. During the visit of the Monitoring Committee to the mining sites of Basal lower area, the residents of the nearby area have made complaint against the setting up of 02 new stone crushers, which are not meeting with the prescribed siting guidelines. The Monitoring Committee recommends that Himachal Pradesh Pollution Control Board should take immediate steps to get stop the construction of stone crushing units, in case, these are not meeting with the prescribed parameters/guidelines from the residential area/ sensitive places/ other features.
36. A news item dated 20.6.2021 has been published in the Tribune stating that 200-250 trucks carrying mined material from Himachal Pradesh are entering into the State of Punjab creating loss of royalty and financial loss to the State Government and Punjab Mining Industry, respectively. The news item is annexed as per Annexure- G. The five member Committee recommends that the department of mining and police department of State of Punjab shall take adequate steps to check the entry of these trucks carrying mined material in the State of Punjab. Strong barricades may be erected on the different routes so as to stop the entry of these illegal trucks in the State and legal action may be taken as per the provision of the Minor Minerals (Development & Regulation) Act, 1957
37. Adequate plantation may be done along the river Som Bhadra in District Una for stabilizing its embankments.
3038. In order to protect soil erosion, soil conservation works may be completed in a time bound manner.
39. The Monitoring Committee recommends that Hon'ble National Green Tribunal may direct the State of Himachal Pradesh to implement all the recommendations made by the Monitoring Committee in a time bound manner and State Govt. may also be directed to submit the timelines on the action to be taken on the recommendations made by the independent five members committee before Hon'ble National Green Tribunal."
6. The Chief Secretary, D.G.P., Himachal Pradesh, State PCB, SEIAA, Himachal Pradesh and District Magistrate, Una may take further action in terms of the report and furnish action taken report/response accordingly before the next date. As per direction in para 5 above, a copy of the report be sent by email to the said authorities."
E. Reports of the Chief Secretary HP and the State PCB dated 8.11.2021 and 9.11.2021
6. In pursuance of above, an action taken report dated 08.11.2021 has been filed by the Chief Secretary, H.P and the report dated 09.11.2021 has been filed by the Stated PCB separately. In the report of the Chief Secretary, it is mentioned that committee was constituted on 30.07.2021 to inspect the mining activities in Swan River under the Chairmanship of Director of Industries having members i.e. Member Secretary, Himachal Pradesh State Pollution Control Board; Deputy Commissioner, District Una; Superintendent of Police, District Una; S. E. Flood Control (Swan River Flood Management Project) Circle, Una; Shri Arun Sharma, Member, State Level Environment Impact Assessment Committee and State Geologist.
7. The action taken by the State in pursuance of orders of this Tribunal is said to be as follows:-
"
a) That it has been observed that illegal mining mostly take place along the border areas of District Una. As such, in order to curb the illegal mining and illegal transportation of minerals, 5 31 No. of check posts/weigh bridges has been established at different locations of Una District viz. Gagret, Pandoga, 8athri, Pollian and Mehatpur. Moreover, to make these check posts more effective, instructions have been issued to Mining Officer, Una vide letter dated 24.07.2021 to ensure that mineral filled Vehicles going towards adjoining States should essentially be passed through anyone of the above check posts after proper weighing and entry of Transit passes. A copy of letter dated 24.07.2021 is annexed herewith as Annexure-A3.
b) That though there is adequate mineral potential in the Swan River bed as per the survey report approved for District Una and recent report of the Expert Committee constituted vide Notification dated 30.07.2021 referred above. However, due to frequent changes in the course of River Swan especially during the rainy season along with the border areas, boundary dispute, various objections raised by the Public, local Panchayats and other Environment groups etc. and difficulties being faced by the concerned Department to regulate the mineral concession given for open sale in border areas, the Respondent State has imposed a complete ban vide Notification No. Ind-II(F)6-d15/2020-1 dated 03.08.2021 on grant of fresh mineral concession by way of mining leases over private land for open sale of river borne material i.e. sand, stone and bajri etc. in the border river bed area of District Una till more stringent mechanism is put in place. A copy of Notification dated 03.08.2021 is annexed herewith as Annexure-A4.
c) That a D.O. letter was also forwarded to all Deputy Commissioners on 19.07.2021 by the Director of Industries wherein apart from various directions, it was specifically copy of Notification dated 03.08.2021 is annexed herewith as asked to lodge FIR against the Offenders for the offences under IPC & to seize and confiscate their vehicles. A copy of D.O. letter dated 19.07.2021 is annexed as Annexure-AS. Thereafter, a video conference of all the Deputy Commissioners was also held on 28.07.2021 under the Chairmanship of Director of Industries for compliance of the directions issued vide aforesaid D.O. letter.
d) That the Superintendent of Police, District Una vide Order No. ReaderlSP-21 dated 27.08.2021 has constituted an Enforcement Wing (EW) comprising of Police Officials, Members of Geological Wing and District Administration under the supervision of Shri Kulvinder Singh HPS, Deputy Superintendent of Police to keep close watch on the illegal mining activities at Som Bhadra river mining site. A copy of Order dated 27.08.2021 is annexed herewith as AnnexureA6.
e) That the Deputy Commissioner Una, District Una vide letter dated 16.08.2021 has issued instructions to the Superintendent of Police Una; Sub Divisional Magistrate Una; Regional Transport Officer Una and Mining Officer Una to seize the vehicles involved in the illegal mining activities in River Swan or its tributaries in the District and release the same 32 after payment of penalty amount as fixed by this Hon'ble Tribunal vide Order dated 26.02.2021 passed in O.A. No. 360 of 2015, National Green Tribunal Bar Association Vs. Virender Singh (State of Gujarat). A copy of letter dated 16.08.2021 is annexed herewith as Annexure-A7.
f) That the Deputy Commissioner, Una vide letter dated 28.06.2021 has issued instructions to the Regional Transport officer, Una District Una (H.P.) to check overloading and stop the movement of vehicles with body extended beyond permissible limits and these orders are being complied. A copy of letter dated 28.06.2021 is annexed herewith as Annexure- A8.
g) That the Deputy Commissioner, Una vide letter dated 23.08.2021 has issued instruction to the Superintendent of Police, Una; Executive Engineer; Flood Production, Division Gagret, District Una, H.P.; the Sub Divisional Magistrates Una/Haroli/Amb/GagretlBangana Sub Divisions of District Una; the Environment Engineer, H.P. State Pollution Control Board, Una; Mining Officer, Una to take stringent action against offenders under Mining Act, including lodging FIRs for the offences under IPC and accordingly, confiscation of machinery etc. A copy of letter dated 23.08.2021 is annexed herewith as Annexure-A9
h) Transit Passes: An online mechanism for issuance of transit passes is in place, which contains OR code and other security feature. A copy of Standard Operating Procedure (SoP) issued by the Department of Industries is annexed herewith as Annexure-A10.
i) That the Mining Officer, Una vide letters dated 24.05.2021, 31.05.2021, 26.07.2021 & 13.09.2021 issued various instructions including demarcation of mining lease areas & to erect proper boundary pillars to all the lease holders. The copies of letters dated 24.05.2021, 31.05.2021; 26.07.2021 &. 13.09.2021 are annexed herewith as Annexure-A11 (Colly).
j) That the Executive Engineer, Una, Division H.P.P.W.D vide letter dated 21.09.2021 has issued instruction to all the Assistant Engineers under his control to check overloading of vehicles for safety of road. A copy of letter dated 21.09.2021 is annexed herewith as Annexure-A12.
Thus, the Respondent State is taking every step to regulate mining activities in Swan River & to check illegal mining by taking deterrent action in compliance to the various recommendations contained in the Order dated 13.08.2021 referred above passed by this Hon'ble Tribunal.
9. That it is humbly submitted that mining activities in all the 28 numbers of mining leases sanctioned for open sale in Swan River falling in Haroli & Una Sub Divisions have been 33 suspended by the Respondent State since July, 2021, resultantly, the commercial activities of sand mining have come to halt. It is further submitted that the expert Committee, constituted by the Respondent State for the inspection of mining activities in the Swan River of District Una, has recently submitted its detailed report on 02.11.2021. Therefore, the Respondent State shall examine the recommendations made by the said expert committee in the light of recommendations as mentioned in para 5 of the Order dated 13.08.2021, made by the Monitoring Committee constituted by this Hon'ble Tribunal and accordingly, after putting pragmatic and more stringent mechanism in place, the Mining activities in the said suspended leases shall be restored."
F. Consideration of the reports and further directions in today's order
8. We have duly considered the reports. In substance, the report mentions setting up of certain check-posts and imposing of ban on fresh mineral concessions in the form of leases, instructions to the Police for registration of FIR, seizure of vehicles, directions for demarcation of mining leases and suspension of 28 mining leases. The report concludes "after putting pragmatic and more stringent mechanism in place, the Mining activities in the said suspended leases shall be restored".
9. Before considering adequacy of the steps taken as per report of the Chief Secretary, we may refer to the report the state PCB and the findings of the Committee constituted by the State Government itself.
10. The report of the State PCB is in a tabular form as follows:-
"
Sr. Recommendations of Action Taken by the State Pollution No. Monitoring Committee at Control Board point no. 5.5 of the report dated 07.07.2021.
1. At Point No. 5.5(34)(i): As per the report received from Regional "..The stone crushing unit Officer, HPSPCB, Una, M/s Rudra Stone namely M/s Rudhra Stone Crusher, VP0 Basal, District Una was crushing and screening plant inspected jointly by Asst. Env. Engineer- may be issued closure notice cum-Regional officer, HPSPCB, Una and 34 by HPSPCB after following Mining Officer, Una, H.P. on 07/09/2021 to due procedure as per the analyze the quantity of raw material provisions of the Air Act, stacked/lying at crusher's site and means 1981 and Water Act, I974.." of mining used for the extraction/collection of mining material. According to the inspection report dated 07/09/2021, from the perusal of stock to the tune of 23500 MT at the site, production from mining lease (average 4700 MT monthly) & dispatch of material (average 4150 MT monthly), it was observed that in average 550 MT material will be left at crusher site as uncrushed material and for the accumulation of material to the tune of 23500 MT stock, 42-43 months will be required which seems to be unrealistic.
Hence, the collection/extraction of mining material by mechanical means cannot be denied. A copy of the above inspection report was sent to Deputy Commissioner Una, District Una (HP) for further necessary action as per the provisions H.P. Mine Minerals (Concession) and Minerals, Rules, 2015. Reportedly, on the basis of this inspection report, Mining Department, Una, imposed penalty of Five Lakh Rupees under the provisions of H.P. Mine Minerals (Concession) and Minerals, Rules, 2015, on M/s Rudra Stone Crusher.
The joint inspection report dated 07/09/2021 of M/s Rudra Stone Crusher alongwith photographs of Pollution Control Devices as recommended by the monitoring committee are annexed as Annexure-I collectively.
As per report submitted by Regional Officer, HPSPCB, Una, the unit was inspected on 24/08/2021 wherein unit was required to update its pollution control devices/measures as per recommendations of the Monitoring Committee. Accordingly, notice/directions was issued to the unit on 26/08/2021 for improvement/upgradation of pollution control devices/measures as recommended by the Monitoring Committee Later on the unit was re-inspected to verify the compliance status and reportedly the unit has complied with the. directions of the State Board with respect to pollution control devices/measures.
2. At Point No. 5.5(34)(ii): It is submitted that as per report received "..HPSPCB should visit all the from Regional Officer, HPSPCB, Una, all the remaining 22 stone crushing remaining 22 stone crushing units falling in units operating in the the catchment area of Swan River were catchment area of Som- inspected by Assistant Environmental Bhadra River and check all Engineer alongwith JEE-II and JEE-III of the points of the code of Regional Office, HPSPCB, Una on practice to be implemented 18/08/2021, 24/08/2021 and by these stone crushers to 25/08/2021. On the basis of observations control air pollution and made during these inspections, action against the violating notices/directions regarding 35 stone crushing units may be improvement/upgradation in pollution taken within one month.." control devices/measures were issued on 25/08/2021 and 26/08/2021 to all 22 stone crusher units for observed non-
compliances of pollution control system as recommended by the Monitoring Committee in its report.
After the issuance of notices, all the stone crusher units were re-inspected for verifying the compliance status. Out of total 22 number of stone crushers, 05 Stone Crushing units were found non-compliant with respect to upgradation/improvement in pollution control devices/measures, namely:-
1) Shiva Stone Crusher,VP0 Damandri, Tehsil and Distt. Una HP
2) Balaji Stone Crusher and Screening Plant, VPO Upper Basal, Tehsil and Distt. Una HP.
3) Luxmi Stone Crusher, Village Ram Nagar, PO Thathal, Tehsil Amb, Distt. Una HP.
4) Thakur Enterprises, VPO Chowki Minar, Tehsil Bangana, Distt. Una HP.
5) Mahesh Stone Crusher, VPO Kalruhi, Tehsil Amb, Distt. Una H.P. Hence direction under section 31-A of Air Act 1981 and Water Act 1974 was issued for disconnection of power supply of these 05 non-complying stone crushers on
23.09.2021.
It has been further reported by the Regional Officer, HPSPCB, Una, that the complying 17 number Stone Crusher units have also provided updated pollution control measures/devices in the stone crusher as per latest notification dated 29.06.2021 notified by the Government of Himachal Pradesh and ambient air quality monitoring results are found to be within limits.
Individual details of all these units as reported by Regional Officer, HPSPCB, Una, has been compiled and annexed as Annexure-II.
3. At Point No. 5.5(34)(iii): As reported by Regional Officer, HPSPCB, "-All the stone crushers, Una plantation is being carried out around located in the catchment area the periphery of these stone crushing units. of river Som Bhadra, shall Regional Officer, Una shall keep vigil on the provide adequate plantation progress of plantations done by these units all around their periphery Within 2 months."
364. At Point No. 5.5(35) As regard to the complaint against setting "..During the visit of the up of 02 new stone crushers, not meeting Monitoring Committee to the with the prescribed siting guidelines, it is mining sites of Basal lower submitted that one stone crusher area, the residents of the complained of was in the name & style of nearby area have made M/s Thakur Stone Crusher and Screening complaint against the setting Plant, VPO Guglehar, Sub Tehsil Kaloh, up of 02 new stone crushers, District Una (H.P.). As per records, joint which are not meeting with inspection for the Site Appraisal of this unit the prescribed siting was conducted on 23/08/2018 under the guidelines. Chairmanship of Sub Divisional Officer (C) Himachal Pradesh Pollution Amb, District Una, H.P. and the site was Control Board should take approved by the site appraisal committee. immediate steps to get stop The Site Appraisal Report is annexed as the construction of stone Annexure-III. Consequent to the site crushing units, in case, these selection by Site Appraisal Committee, are not meeting with the Consent to Establish was granted to M/s prescribed parameters/ Thakur Stone Crusher and Screening Plant guidelines from the on 27/04/2021 by the Regional officer, residential area/ sensitive HPSPCB, Una after following due places/ other features.." procedure.
The spot was inspected by the Assistant Environmental Engineer, HPSPCB along with Mining Officer Una, District Una (HP) & JEE, HPSPCB Una on 07/09/2021 and during inspection it was observed that excavation work for the footing/foundation was initiated earlier and .no further construction work was observed at the time of inspection. Spot report of distance between Thakur Stone Crusher and cluster of abadi in Village Pipluhaar, Guglehar Sub Tehsil Gagret, District Una, HP by Naib Tehsildar Gagret at Kaloh, District Una (HP) is annexed as Annexure-IV.
The second stone crusher unit complained of, was in the name & style of Sh. Rajiv Kumar, S/o Sh. Dhyan Singh R/0 VPO Upper Basal, Tehsil and District Una (HP), which had already been issued a Notice by Regional officer, HPSPCB, Una under Water Act, 1974 and Air Act, 1981 vide letter dated 13/01/2020 with directions to stop the construction activity of the Stone Crusher till the Consent to Establish is issued to the unit The spot was inspected by Assistant Environmental Engineer, HPSPCB along with Mining Officer Una, District Una (HP) & JEE, HPSPCB, Una on 07/09/2021 and during the inspection it was observed that construction for hopper platform was initiated earlier and now unit has stopped the development of site and no further construction work was observed in progress at the site.
It is further submitted that a complaint against unit was also received from Sh.
Shiv Haripal Singh, VPO Banjhal Upper, District Una (HP), alleging that site of Stone crusher unit is at 677 meters from the Govt.
37High School, Village Lower Basal, Una District Una (HP) and he has requested to re-measure the distance between the stone crusher and Govt. High School, village "
Lower Basal. In this context, Regional officer had already issued a letter dated 29/06/2021 (copy annexed as Annexure- V) to Mining Officer, Una, District Una (HP).
11. We may now refer to the report of the Committee headed by the Director of Industries, H.P., annexed to the action taken report filed by the Chief Secretary. The Committee found unscientific and excessive mining, need for regulation of mining close to the river, lack of adequate monitoring and requisite safeguards. Remedial suggestions in the recommendations are as follows:-
"A (g) Final recommendation and suggestions of the committee:
i) With regards to mining operations of present 24 leases for open sale in Sub-Div of Una and Haroli.
The mining operation in these leases may be allowed after spot inspection, w.r.t any unscientific mining, mining outside area, maintenance of records etc. Proper demarcation with boundary pillars. Reference pillars above HFL.
Revenue map to match with topographical plan. Selection of common route by lease holders falling in over common stretch.
Erection of common weigh bridge by association of lease holders in one common stretch.
Maintenance of production/dispatch/labor/tractors register at site, after getting these registers countersigned by staff of mining department, Erection of sign boards giving details of lease. Proper designation of stockyards.
ii) With regards to mining operations of present 4 auctioned areas in Sub-Division, Una.
During inspection of Swan river, it has been reporter that most damages were caused due to unsci~ntific and mechanizer mining done by contractors of the auctioned areas for which a no. of complaints were I registered by the duty holders. Physically the sites could not be inspected I due to water in Swan River.
38 On the basis of violations noticed by the Mining Officer W.r.t the conditions of the contract agreement deed, working suspended in the above said auctioned areas may not be allowed further and contract agreement may be cancelled after forfeiture of the security amount and recovery thereof due to breaching of the conditions of Agreement.
iii) With regards to future grant of mineral concessions.
Govt. vide Notification No. Ind-II(F) 6-15/2020-1 dated 03/08/2021, has imposed complete ban on grant of fresh mineral concession by way' of mining lease for open sale of river borne minerals i.e. sand, stone and bajri etc. over private land.
Replenishment studies indicate enough availability of minor mineral particularly sand and gravel. Observations of two committees earlier and even by this committee indicate aggradations of mineral as point, midchannel or month bars observed at various location. These are all renewable resources, periodically replaced by sediment transport. It must be removed on an annual basis to prevent built-up, or else it could cause more damages to infrastructures, silting of agricultural lands, occurring within the embankment, and ever lose to Govt. exchequer, revenue to private land owners and employment issues.
Best way to lift such mineral bearing areas could be by identification large rectangular areas by the department, preferably in the central part of the . river an along the bars. Thereafter revenue records of the area can be obtained to know the ownership. All the owners can be asked to form a group/society for obtaining mineral concession and other statutory clearances or else they' can be given a percentage of royalty, say 20-25% in ratio of their lands involved, by the, mineral concession holders.
iv) With regards to replenishment study issue Replenishment studies are required in order to nullify the adverse impacts arising due to mining activities.
Methodology of replenishment studies, require detailed survey's and data processing techniques. For this sophisticated instruments, dedicated software along with establishment of benchmarks by putting number of pillar points and various ground control points with the help of DGPS are required. Further, studies are spread over long period of times and it may not be possible to maintain the ground stations. These studies can either be outsourced 39 to some reputed agency (of course at a great cost) or can be done by conventional physical survey of the field, by observation of Google images, photographs and siltation issues etc. These physical survey studies should be done at least twice a year by a Joint Inspection Committee.
v) With regard to Mining Plans:-
Mining plan is an important document to assist the mine owners to operate the mine in scientific and systematic manner. This plan forms basis for getting environmental clearances, hence utmost care should be taken. To physically map the area and demarcate the boundaries of the mining area with pillars As most of the areas fall within the HFL, these boundary pillars may get washed away during rains/floods, hence at least three stations be fixed above HFL to help mark this boundary afresh after the rains All physical features, particularly the distance of both the embankments, the flow channel of river, location of bars, location of agriculture vetiver grass etc. should clearly be indicated on the surface plan.
Data of water table, through the nearest walls, should invariably be recorded, at least twice a year. Indian Bureau of Mines, Govt. of India, charges the lease holders for verification and site inspection of the mining plans. Similar charges can also be levied by the department for the extra services rendered.
vi) Other related recommendations and suggestions to ensure scientific mining and checking of illegal mining.
a) Promoting adoption of mechanical mining: -
Presently only manual mining is- allowed in river beds, although there is provisions in rules(Rule 19 of H.P Minor Mineral (Concession)and Minerals (Prevention of illegal Mining, Transportation and Storage)Rules-2015 which allows a tyre mounted front and loader up to 80 hp without backhoe, with the permission of Director Industries, however no such permission has been given to any lease holder yet.
The mining of sand/gravel is a quantitative activity requiring mining, loading, unloading, reloading etc. and this cannot be done manually. Thousands of tonne of material are extracted daily, and without the use of machines it is not at all possible. In fact 80% of illegal mining cases have been reported as a result of using the machines like JCB, pocklain etc. Because of this restriction limits, blackmailing have crossed. In the adjoining state of Punjab, pocklains (chairsmounted machines) with huge buckets are allowed, and depth of mining also exceeds more than 3 meters.40
The Govt. needs to consider this issue and devise a mechanism to monitor the conditions for safely using machines for carrying out scientific mining. Huge penalties can be imposed for non-adherence to the conditions
b) Delegation of powers under MM(D and R) Act to officers of different Departments to be reviewed:
In order to check illegal mining activities, the Government vide notification dated 30104/2011 has delegated powers to 39 officer/ officials of various categories of different departments like, PWD, I&PH, Forest, Revenue, Police and Industries to make complaints in writing in the court of competent jurisdiction regarding illegal mining/transportation of minerals.
Similarly, vide notification dated 30/04/2011 no. of officers/ officials of various departments have been delegated powers to seize any mineral raised or transported or caused to be raised or transported by any person without any lawful authority, any mineral from any land for that purpose uses any tool, equipment, vehicle or any other thing for this purpose. Powers have also been delegated to Regional Transport Officers vide Notification dated 19/09/2012 to help in prevention of illegal mining and also to in-charge of multi-purpose barriers vide letter dated 05/12/2012. As mentioned by worthy DC Una vide letter dated 29/05/2021 addressed to ACS (Ind) to the Govt. of H.P, these notifications are fundamentally flawed as it authorizes other departments to do the work of mining department and allows the mining department to take the plea that other departments are not doing enough to control illegal mining. Just like the Mining department cannot be authorized to take action against offenders under Revenue, Police, Forest Acts etc., this responsibility of enforcing the mining Act should not be pinned on other departments. As rightly said by worthy DC "everyone's responsibility is none's responsibility". Hence these delegations of powers need to be rescinded, making mining department primarily responsible to enforce its own rules.
The Deputy Commissioner Una District Una has suggested the following points
a) Higher penalties should be notified for illegal mining by State Government as per scales specified in NGT order in NGT Bar Association V s Virender Singh.
b) Per metric tons Environmental compensation should also be notified for violators as per NGT orders 41
c) Use of modern technology like UAVlDrone/CCTV etc. With the development in image data processing tools and its accuracy acceptability, drone/UAV fitted with advance cameras, can be used for survey purposes to study replenishments factors. The surveys are conducted by using a set of instruments and compatible software. However ground support is invariably required, by establishment of benchmarking by putting No. of pillar points and various ground control points (GCP). These can also be used to locate spots of illegal mining. However they have limitation, both in time and cost factors. Swan River may be a herculean task. Establishing benchmarks through No. of pillars points in the Swan river profile may not be possible, for they may be washed away during floods or destroyed by unscrupulous person. Similarly, use of CCTV cameras, for checking of illegal mining and movement .of vehicle carrying mineral is possible only near public places, where security to these cameras are ensured.
They may not be useful in river beds, firstly because of security reasons and secondly due to lack of electrical connections and other multiple limitations. Mining Department had earlier tried fixing of CCTV cameras in District Solan, Sirmour Una and Nurpur, area of Kangra District of Himachal Pradesh as per order of the Hon'ble High court of Himachal Pradesh in CWPIL 17/2016 but they were either damaged or stolen away. Accordingly the Hon'ble Court was apprised about the fact that the installation of CCTV Cameras for monitoring of illegal mining was impracticable, expensive and was technically not feasible. The Hon'ble Court was pleased to direct the Respondent State to explore the possibility of monitoring the illegal mining activities by way of Drone if, it, is economically viable; and it proves to be useful. Accordingly, efforts were made by the Mining Department and practical demonstration of Drones were arranged in the river bed area of the State, however during the demonstrations of the Drones, it was observed that Drone only provides the Ariel view of the mining activities being carried out in the ground and is unable to distinguish legal and illegal status of mining being undertaken. The cameras of the Drones also could not capture the Registration No. of the vehicles engaged in Mining neither it can decipher whether the vehicles are transporting the legally mined mineral or otherwise.' During the demonstration of Drone camera, a no. of other limitations of the technology was noticed by the authorities and it was experienced that the use of drones for monitoring of illegal mining was impracticable, expensive and was not solving the 42 purpose of the Department. Accordingly, the Hon'ble High court was appraised about the factual position.
d) Possibility of Geo-fencing of mining lease areas: -
Geo-fencing is a location based service in which an app or other software program uses radio-frequency identification (RFID), wi-fi, GPS, or cellular data to trigger a targeted marketing action (such as a text, e-mail, social media, app. Notification)when a mobile device or RFID enters or exits a virtual geographic boundary, known as a geo-fence.
With practical application for a number of industries, geo fencing is the practice of creating virtual. perimeters within certain environments, when integrated with radio dispatch solutions, it may enable operations;
- To see when employees enter restricted zones, work areas etc.
- Monitoring of blast zone area;
- Transporting of minerals;
- No-go zones, setting up of alerts;
- Checking of speed limits etc. Basically, this hi-tech technique is useful when areas are large, say a big mining areas like that of Mis ACC or Mis Ambujas in Himachal Pradesh, or a large industrial area like Morpen.etc. For small areas, the signatures would be to small, to decipher the data Moreover, geo-fencing or geo-referencing would require outsourcing, may be through AGISAC (Aryabhata geo- informatics& space application centre), involving design, development and implementation· of web based integrated mines and minerals management system application software, training and capacity building and a dedicated trained staff. Moreover collection of field data shall still be required to get the exact geo- coordinates of lease area based on demarcation by the revenue authorities. These co-ordinates would often change after every rainy season, when pillars are re- fixed after fresh demarcations.
It is for this reason that even in the "Enforcement & Monitoring guidelines for sand mining January, 2020", the requirement at .!he mining lease site for, small size plots i.e up to 5 hectares is an Android based smart phone; which a local mine owner (being ignorant of these high-tools system) can easily handle and understand.
e) To use cheaper and manageable technologies:-43
To effectively check the menace of illegal mining, regular monitoring of lease holders, and replenishment studies, cheaper technologies through google maps/ go ogle earth/latest topo sheets of survey of India, are useful tools. For this an android plane is the requirement, which can
- Locate the latitude and longitudes of any area of study like spot of deposition, spot of degradation, spot of illegal mining etc.
- Photographs of such location along with dates and co-ordinates.
- Photographs of boundary pillars, supporting pillars above HFL etc. Satellite imageries of the area through remote sensing, Google map can help in locating the locations of unscientific mining. Presence of deep pits if excavated, use of machinery etc. and then through spot inspections, action can be taken against the offenders In any case physical action is required on the ground may be with regards to nabbing the miscreants, challaning of vehicles or taking other stringent action.
f) Strengthening of the Mining Staff:-
As mentioned in above paras, men power is required to;
- periodically carry out replenishment studies;
- to regularly monitor, if any damage is caused due to mining -legally or illegally, to any infrastructures like bridges, embankments etc.
- Identification of fresh location, where aggradations of minerals has taken place after rains;
- Place/locations which can be prone to illegal mining and their monitoring thereof.
- taking action against offenders involved In illegal mining and· transportation of minerals etc.
- checking of records of production, dispatches, labour involved, stockyards etc. of lease holders etc. For this mining department needs to be adequately strengthened, as at present Distt. Una has one Mining Officer, one Mining Inspector, 2 Assistant Mining Inspector and only 8 mining guards (two in check posts), to undertake day and 'night monitoring of such vast stretch of river Swan and other parts of the distt, particularly with its large border with adjoining State of Punjab.
All the above duties can be carried out by the officers/officials of the department, if the mining department is adequately strengthened by at least doubling the staff. Two flying squads along with 44 vehicles would be sufficient for patrolling the entire area.
Cost wise also, this strengthening would be much cheaper than having hi-tech surveillance systems like Drones/CCTV cameras/geo-fencing etc.
g) Independent monitoring mechanism:
In order to regularly monitor the mining activities, with reference to various issues as have been discussed above, the "Environmental and Monitoring Guidelines for Sand Mining - January, 2020" has recommended constitution of a District Land Task Force (DLFT) under the Chairmanship of Deputy Commissioner, with Superintendent of Police, other related senior functionaries of Forest, HPPWD, Revenue, Jal Shakti/Swan Channelization Deptt. Una, HPPCB, Distt. Transport Officer etc. with one/two independent members nominated by this commissioner concerned.
Instead of having multiple committees, this one committee should suffice the overall mandate of mining and related activities by meeting at least twice a year."
G. Tribunal's Observations
12. We have duly considered the above reports and heard learned Advocate General appearing for the State. As already noted from the report of the Committee headed by Justice Jasbir Singh quoted earlier, and confirmed by the Committee appointed by the State itself, in its above report, there is large scale illegal mining to the detriment of environment, in violation of environmental norms. As per observations of the Committee headed by Justice Jasbir Singh quoted in para 5 above, there is organized loot to the detriment of public exchequer to the extent of more than Rs. 100 crores, apart from the damage to the environment.
It is not shown as to how the said loss is proposed to be made up and persons making wrong gain are to be dealt with. Monitoring and remedial action is inadequate. The action taken report of the Chief Secretary merely mentions proposed steps in the light of report of the Committee 45 but implementation of such steps is yet to be seen. The report itself may need review to determine effectiveness of measures proposed. In particular, we find that even after finding large scale violations, initiation of prosecution though directed is not shown to have been implemented.
The Committee has given contradictory observations. On the one hand, it is observed that there are replenishment studies to show availability of minerals, on the other hand, it is stated that replenishment studies are required to nullify adverse impact of mining. The natural course of the river has changed which needs remedial action. There is also fall in level of the river due to mining towards Punjab side which needs to be verified.
Even after finding unsustainable and unscientific mining in violation of law, compensation for damage to the environment has not been taken.
Further, we have noted this aspect in para 8 to 10 of our order dated 30.07.2021, quoted above in para 3, need for compliance of directions of this Tribunal dated 26.02.2021 in O.A No. 360/2015, National Green Tribunal Bar Association v. Virender Singh (State of Gujarat). Action is required on the subject of strict enforcement of Sustainable Sand Mining Guidelines, issued by the MoEF, (which principles logically apply to mining of other minerals also) evaluation of environmental parameters while granting EC, including replenishment studies, assessment of compensation for illegal mining, and action against vehicles and equipments used for illegal mining. We may also note the observations of the Hon'ble Supreme Court in Common Cause Vs. U.O.I. & Ors., (2017) 9 SCC 499 to the effect that in case of illegal mining, the value of the entire mined material has to be recovered as compensation (asper mandate under section 21(5) od the MMDR Act, 1957, apart from compensation for the loss to the environment. These components are in addition to royalty. Relevant observations are extracted below:
46"153. In our opinion, there can be no compromise on the quantum of compensation that should be recovered from any defaulting lessee - it should be 100%. If there has been illegal mining, the defaulting lessee must bear the consequences of the illegality and not be benefited by pocketing 70% of the illegally mined ore. It simply does not stand to reason why the State should be compelled to fore go what is its due from the exploitation of a natural resource and on the contrary be a party in filling the coffers of defaulting lessees in an ill gotten manner.
xxx .................................... xxx ............................xxx
184. .... We make it clear that mineral extracted either without an EC or without an FC or without both would attract the provisions of Section 21(5) of the MMDR Act and 100% of the price of the illegally or unlawfully mined mineral must be compensated by the mining lease holder. ..."
No adequate compliance has been shown in respect of the above observations. Failure to take action against the law violators encourages lawlessness which a welfare State committed to Rule of Law cannot afford.
13. We expect specific compliance status in respect of the above directions against the law violators who have caused damage to the environment for their personal benefit. Till such remedial action and strong monitoring mechanism is in place and placed before this Tribunal, the State may not permit any mining. Monitoring Committee needs to meet at shorter intervals. To uphold rule of law, law violators need to be visited with serious consequences. Since violations have been found, violators should not be eligible for mining/crushing for specified appropriate duration in future and held fully accountable for past violations in terms of compensation and other punitive measures.
Antecedents of the persons to whom mining permissions are given, in terms of past violations, must be duly verified.
4714. Let further report of follow up action taken reports giving status as on 31.03.2022 be filed by the Chief Secretary and the State PCB separately by April 15, 2022 by e-mail at [email protected], preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
List for further consideration on 27.04.2022.
A copy of this order be forwarded to the Chief Secretary and the State PCB by email for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dr. Nagin Nanda, EM December 15, 2021 Original Application No. 57/2021 AB 48