National Green Tribunal
Raj Kumar vs State Of Uttar Pradesh on 10 August, 2022
Item No. 02 & 03 Court No. 2
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
M.A. No. 44/2022
IN
Original Application No. 140/2021
Raj Kumar Applicant
Versus
State of U.P. & Ors. Respondent(s)
State of U.P. --------------- Applicant in M.A. No. 44/2022
WITH
M.A. No. 45/2022
IN
Original Application No. 141/2021
Ramkaran Karn Applicant
Versus
State of U.P. & Ors. Respondent(s)
State of U.P. --------------- Applicant in M.A. No. 45/2022
Date of hearing: 10.08.2022
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Respondent: Mr. Pradeep Misra, Advocate for Applicant (State of UP)
in M.A.'s 44-45/2022
ORDER
1. Heard Shri Pradeep Misra, learned Counsel appearing for Applicant, State of UP who has filed these M.A. No. 44/2022 in O.A. No. 140/2021 and M.A. No. 45/2022 in O.A. No. 141/2021. Prayers made in 1 both applications are common and we may reproduce the same from MA No. 44/2022 as under:
"(a) modify the order dated 06.05.2022 thereby replacing the words "ACS, Mining, U.P. has fairly stated that replenishment study will be conducted prior to auctions in future" by "to conduct replenishment study in the first pre and post monsoon period subsequent to commencement of mining operation.",
(b) time for carrying out the replenishment study of District Banda be extended by 31.12.2022 in the light of report of CMPDIL."
2. OA No. 140/2021 was disposed of on 06.05.2022 when Additional Chief Secretary, Mining, State of UP (hereinafter referred to as 'ACS', Mining') was present in person. The Tribunal pointed out the provisions of "Sustainable Sand Mining Management Guidelines 2016" and "Enforcement & Monitoring Guidelines for Sand Mining, 2020"
whereupon ACS, Mining made a statement which was recorded in para 11 and thereafter original application was disposed of by issuing directions. It would be appropriate to reproduce relevant extract of the order from para 9 to 12 as under:
"9. We find that replenishment study as required under the SSMG-2016 and EMGSM-2020 has not been undertaken prior to the auction in terms of para 5.1 of the EMGSM, 2020 which is reproduced below:
"5.0 REPLENISHMENT STUDY The need for replenishment study for river bed sand is required in order to nullify the adverse impacts arising due to excessing sand extraction. Mining within or near riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, in-stream roughness of the bed, flow velocity, discharge capacity, sediment transport capacity, turbidity, temperature etc. Alteration or modification of the above attributes may cause an impact on the ecological equilibrium of the riverine regime, disturbance in channel configuration and flow-paths. This may also cause an adverse impact on instream biota and riparian habitats. It is assumed that the riparian habitat disturbance is minimum if the replenishment 2 is equal to excavation for a given stretch. Therefore, to minimize the adverse impact arising out of sand mining in a given river stretch, it is imperative to have a study of replenishment of material during the defined period.
5.1 Generic Structure of Replenishment Study Initially replenishment study requires four surveys. The first survey needs to be carried out in the month of April for recording the level of mining lease before the monsoon. The second survey is at the time of closing of mines for monsoon season. This survey will provide the quantity of the material excavated before the offset of monsoon. The third survey needs to be carried out after the monsoon to know the quantum of material deposited/replenished in the mining lease. The fourth survey at the end of March to know the quantity of material excavated during the financial year. For the subsequent years, there will be a requirement of only three surveys. The results of year-wise surveys help the state government to establish the replenishment rate of the river. Based on the replenishment rate future auction may be planned.
The replenishment period may vary on nature of the channel and season of deposition arising due to variation in the flow. Such period and season may vary on the geographical and precipitation characteristic of the region and requires to be defined by the local agencies preferable with the help of the Central Water Commission and Indian Meteorological Department. The excavation will, therefore, be limited to estimated replenishment estimated with consideration of other regulatory provisions."
10. With regard to the allegation of instream mining in submerged water, it has been orally stated by the ACS that no such instream mining is permitted. However, in the reports filed before this Tribunal, no such statement has been made on behalf of the State.
11. Accordingly, the ACS, Mining, UP has fairly stated that replenishment study will be conducted prior to auctions in future and with regard to the current leases, ongoing replenishment study will be expedited. In the light thereof, the leases will be renewed, if necessary. Such studies for all Districts in UP will be completed by December 31, 2022 and for Banda by June 30, 2022. She has further stated that the allegation of instream mining will be verified and if found true, the same will be discontinued.
12. In view of above, let the Replenishment studies be completed by credible institutions, following due procedure, in accordance with para 5 of EMSG, 2020. Further, no mining be permitted till replenishment studies are completed beyond the schedule laid down above. The State may ensure that the Regulatory authorities are adequately equipped and capable to assess quantities of mined material. With regard to instream mining, it may be ensured that the machineries permitted or used otherwise comply with "Semi mechanised" mining operations in true sense. In all mining 3 potential districts, environmental damage assessment be carried out and annual assessment reports placed in public domain on the websites of the Mining Department as well as the PCB. Compliance of SSMG, 2016 and EMGSM, 2020 and earlier directions of this Tribunal may be ensured by an effective monitoring mechanism."
3. A common order was passed on 06.05.2022 in OA Nos. 140/2021 and 141/2021.
4. Now, after almost more than two months, this application has been filed accompanied by an affidavit sworn by one Ranjeet Nirmal, District Mining Officer, Gautam Budh Nagar, UP stating that the statement of ACS, Mining which was recorded in para 11 of order dated 06.05.2022 be scored out and be replaced by a sentence, permitting replenishment study in the first pre and post monsoon period subsequent to commencement of mining operations meaning thereby the authorities are interested more in doing away replenishment study as per rules but to implement it after mining operations are started. This is contrary to law. Moreover, it is not a case of the applicant that such a statement was not made by ACS, Mining. We do not find any justification for such modification.
5. Moreover, even otherwise, in a decided matter, for seeking modification or review of an order whereby original applications are disposed of finally, no MA under any provision of NGT Act, 2010 or Rules framed thereunder is maintainable.
6. Thus, for the reasons, discussed above, we are of view that these applications lack bonafide. The same are rejected.
Sudhir Agarwal, JM 4 Prof. A. Senthil Vel, EM August 10, 2022 M.A. No. 44/2022 IN OA No. 140/2021 other connected matter DV 5