National Green Tribunal
Ridhima Pandey vs State Of Uttarakhand on 15 November, 2022
Item No.03 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH AT NEW DELHI
(Through Physical Hearing with Hybrid VC Option)
Original Application No.429/2022
Ridhima Pandey ...Applicant
Versus
State of Uttarakhand ...Respondent
Date of hearing: 15.11.2022
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Applicant in person.
Respondent: Mr. Mukesh Verma, Advocate for State PCB.
Application is registered based on a Letter Petition received by E-mail.
ORDER
1. Ms. Ridhima Pandey, aged about 14 Years, claiming herself to be a global climate activist working for protection of environment and forest since 2017 when she was 9 years old, has sent the present letter petition, which has been treated and registered as Original Application, complaining about illegal mining inside the reserved forest of Haldwani Forest Division of Uttarakhand.
2. Vide order dated 18.07.2022, this Tribunal constituted a Joint Committee comprising of the Regional Office of MoEF & CC at Dehradun, Principal Chief Conservator of Forest, Government of Uttarakhand, CPCB, State PCB, SEIAA, Uttarakhand and District Magistrates, Champawat and Nanital and directed the same to submit factual and action taken report within three months.
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3. In compliance thereof, the report of the Joint Committee has been filed by Dr. Rajendra Singh, SO, UKPCB, Dehradun vide email dated 19.10.2022.
The relevant part of the report reads as under:-
"Joint Inspection Report of Mining activity in upstream part of Nandhaur River & Upper-stream part of Sharda Barrage, Tanakpur in the matter of Ridhima Pandey vs State of Uttarakhand in OA no. 429/2022.
X X X X X X In compliance of NGT order, joint inspection of areas in question (upstream part of Nandhaur River and Upper-stream part of Sharda Barrage, Tanakpur) was carried out during August 23-24, 2022 by following team members-
1. Shri Deep Chandra Arya, Conservator of Forests, Western Circle, Haldwani.
2. Shri Runa Oraon, Scientist D, CPCB, Lucknow.
3. Dr. Krishnendu Mondal, Dy. Director MoEF&CC, Dehradun.
4. Dr. D.K. Joshi, Regional Officer, UKPCB, Haldwani.
5. Shri Madan Kishore, Geo Chemist, Geology and Mining, Unit- Haldwani.
6. Shri Manish Singh, Sub Divisional Magistrate, Haldwani.
7. Sh. Ravi Negi, District Mining Officer, Champawat Representative of State Environmental Impact Assessment Authority (SEIAA) was not present during joint inspection as SEIAA stands dissolved on the date. Joint inspection by the above said committee was carried out. Salient observation and recommendation based on site inspection and available records of each mining sites is as below-
A. Upstream part of Nandhaur River:
Salient Observations:
a) Nandhaur river is originated from Pangoot, Nainital and finally meets with river Kailash. Nandhaur river passes through Nandhaur Wildlife Sanctuary under Haldwani Forest Division.
b) Nandhaur Wildlife Sanctuary in Haldwani Forest Division:As notified Eco-Sensitive Zone vide MoEF&CC notification dated 22 May 2020. Copy of the said notification is annexed as annexure no.
2.
c) The Secretary ,Industrial Development (Mining) Section -1 Uttarakhand Government has issued a letter dated 07.01.2022 to District Magistrate, Nainital giving permission for River Dredging work to M/s APS Infra Engineers Pvt. Ltd. under Uttarakhand River Dredging Policy Point no. 10 (2) for 06 months (annexure no. 3).
d) Following that the District Magistrate, Nainital has issued a letter dated 25.03.2022 to Divisional Forest Officer, Haldwani O. A. No. 429/2022 Ridhima PandeyVs. State of Uttarakhand -3- Forest Division authorizing M/s APS Infra Engineers Pvt. Ltd. to collect R.B.M. lying upstream of Nandhaur river for a duration of 6 months, under the reference of Disaster Management Act, 2005, and requesting for facilitating demarcation of the requested site (annexure no. 4).
e) In any of the above-mentioned letters, it has not been clearly mentioned about the actual area being proposed for the mining activity. It is only mentioned that the mining will be done in the upstream of Nandhaur river.
f) However, Director, Geology and Mining unit, Directorate of Industry, Dehradun send proposal for mining activity for area in question to Secretary, Mining, Government of Uttarakhand vide letter dated December 24, 2021. Wherein, Coordinates of area in question mentioned in the letter as 29° 07'54.4" N, 79° 41'28.0" E. It has also been mentioned that channelization of the river Nandhaur will be done in 1.4 Km length and 40.0 m width of the river (annexure no. 5).
g) In the above-mentioned letter dated December 24, 2021, the area mentioned is reads as "flowing from the mouth of Dehwa river to the mouth of Kailash River near Dubelbera Dhoka forest compound". During the site inspection, Divisional Forest Officer of Haldwani Forest Division has confirmed that the above-mentioned area falls inside the Eco-Sensitive Zone of Nandhaur Wildlife Sanctuary.
h) Additional Director, Geology and Mining unit, Nainital vide its letter dated March 26, 2022 requested Divisional Forest Officer, Haldwani for joint demarcation of area in question. Divisional Forest Officer, Haldwani vide letter dated March 28, 2022 informed District Magistrate, Nainital that area in question (Upstream part of the river Nandhaur where the mining is being proposed) comes inside the Eco-Sensitive Zone of Nandhaur Wildlife Sanctuary, where the proposed mining activity may cause environmental degradation and loss of bio-diversity and subsequently may attract legal issues (annexure no. 6).
i) There is one mining activity carried out in Nandhaur river as per record available with Mining Department, which is located outside the Nandhaur Wildlife Sanctuary.
j) It was also confirmed by Divisional Forest Officer, Haldwani Forest Division that the mining activity has been permitted in the downstream of Nandhaur river (approx. 50 m away from the boundary of Eco-Sensitive Zone of Nandhaur Wildlife Sanctuary) to the Uttarakhand Forest Development Corporation for which Environmental Clearance and Forest Clearance have been obtained from MoEF&CC and consent to operate has been granted by Uttarakhand Pollution Control Board. During inspection, mining activity was not carried out due to monsoon season.
k) As per the point no. 5 of the notification of Eco-Sensitive Zone of Nandhaur Wildlife Sanctuary (Dated 22 May 2020), a monitoring committee has been constituted by the MoEF&CC for monitoring the Eco-Sensitive Zone, where the District Magistrate Nainital has been designated as the chairman of the committee. The same has been communicated to the District Magistrate Nainital by the Divisional O. A. No. 429/2022 Ridhima PandeyVs. State of Uttarakhand -4- Forest Officer, Haldwani Forest Division vide letter dated March 28, 2022(annexure no. 7).
l) In a similar matter (WPPIL No. 48 of 2022 at Hon'ble High Court of Uttarakhand, Nainital) keeping in the view of the observations made by the National Green Tribunal, Southern Zone, Chennai in O.A. No. 75 of 2020 (SZ) on 19-04-2022, in the matter of Tribunal on its own motion vs. Chief Secretary of Kerala, appearing at Page No. 70 of the order, vide Clause (v), Hon'ble High Court order present reads as "we, hereby, permit dredging of river Nandhaur, but we prohibit the removal of any riverbed material (RBM) from the river for any purpose, whatsoever. The same may be kept on the banks of the river, or in the nearby forest". However, it is to mention that the above-mentioned WPPIL is under subjudice (annexure no.
8).
m) No mining activity was found on the day of inspection by the joint inspection committee as constituted by NGT. However, it was also observed that some dredging activity including Channelization of Nandhaur river has been performed at two locations with length approx. 100 mtr each. As informed by the Divisional Forest Officer of Haldwani Forest Division, the Channelization of river work has been performed jointly by the Irrigation Department and Forest Department of Uttarakhand in June, 2022. It was also informed that the extracted RBM has been deposited on both the sides of the river.
n) It is informed by Divisional Forest Officer and Geo-chemist that no mining activity has been started by M/s APS Infra Engineers Pvt. Ltd. at area in question.
Conclusion and Recommendation:
1) It is evident from above observation that mining permission has been granted by Secretary (Industrial Development (Mining), Section -1, Uttarakhand Government, which is not started. The area in question is rich in bio-diversity and comes within Eco-Sensitive Zone of Nandhaur Wildlife Sanctuary. Hence, mining activity may not be permitted. However, preventive measures may be taken as per law/rule to protect soil erosion.
2) District Survey Report of District Nainital has been prepared on 25.07.2018 which need to be updated along with Geo coordinates and fresh replenishment study as per the guidelines of MoEF&CC, Govt. of India.
B. Upper-stream part of Sharda Barrage, Tanakpur, Champawat, Uttarakhand Salient Observations:
a) Sharda river is originated from kalapani in the Pithoragarh District, Uttarakhand. It travels approx. 350 km and finally meets with river Ghaghara (U.P).
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b) There is only one mining activity being carried out in Sharda River (approx. 500 m downstream of Sharda Barrage) as per record available with Mining Department. The said mining activity is carried out by Uttarakhand Forest Development Corporation (UKFDC) for which Environmental Clearance (EC) and Consolidated Consent to operate and Authorization (CCA) of UKPCB for 384.69 Hectare covering both upstream and downstream of Sharda barrage.
c) However, as per condition no. 4 of Forest Clearance (FC) issued on 11.02.2013," no collection of mining shall be permitted from the portion of Sharda River located on upstream of sharda barrage." Following that, UKFDC is carrying out manual mining only on downstream area of approx. 284 hectares and leaving 100 hectares on upstream of Sharda barrage untouched. Copy of EC, FC and CCA is annexed as annexure no. 9.
d) It is also informed by Divisional Forest Officer that upstream of Sharda barrage falls under elephant Corridor.
e) It is also informed by mining officer, Champawat no mining activity is permitted on the upstream of Sharda barrage by mining department. During visit, no mining activity was observed.
f) District Magistrate, Champawat has constituted a committee on 05.04.2022 (annexure no. 3 of applicant's letter filed at Hon'ble NGT) for joint inspection and recommendation for flood control.
g) Based on site inspection and recommendation by the joint committee, District Magistrate, Champawat has issued order on 19.04.2022 for:
i. First of all, the work of channelization should be done as such a place where more effective solutions can be found by doing channelization. After seeing its effect, it would be appropriate to do channelization work at other places. The channelization work of areas near Gandakhali.No-01 should be done before the monsoon period in 2022 and after assessing its effect in the coming rainy season, advance action should be taken.
ii. Addition to above, flood protection work should be done from Boom to Sharda.
iii. The above-mentioned work was decided to be done by the Irrigation department, Lohaghat under the supervision of D.F.O, Haldwani division.
o) It was informed by Divisional Forest Officer, Haldwani that Irrigation Department has made channelization of length approx.
800 m on the upstream of Sharda barrage (approx. 06 km north of barrage) in June, 2022 in compliance of District Magistrate, Champawat order dated 19.04.2022(annexure no. 10).
Conclusion and Recommendation:
1) It is evident from above observation that no mining activity is being carried out on upstream of Sharda barrage.
2) District Survey Report of District Champawat has been prepared on 25.11.2018 which need to be updated along with Geo coordinates and fresh replenishment study as per MoEF & CC, Govt. of India guidelines.
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3) As informed by the mining officer, Champawat, a short-term permit was issued to Pvt miner. (M/s Shiv Shakti Traders) on 06.03.2021 by Sub-Divisional Magistrate, Purnagiri, Tanakpur on the upstream of sharda barrage, which may be consider as a commercial activity and may not be permitted. No mining activity has been undertaken so far."
4. In view of the averments in the application and observations in the report of the Joint Committee, we consider it appropriate to have response of (1) State of Uttarakhand through Chief Secretary, Government of Uttarakhand, (2) State PCB, (3) District Magistrates, Champawat and Nanital, and (4) the Project Proponent- M/s. A.P.S Infra Engineers Pvt. Ltd., who stand impleaded as respondents No. 1 to 4. The Registry is directed to prepare and attach memo of parties to the application and issue notices to respondents No. 1 to 3 requiring them to file their reply/response within one month at [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
5. Notice be served on the Project Proponent- M/s. A.P.S Infra Engineers Pvt. Ltd., through the District Magistrate, Nanital and for this purpose notice issued to the Project Proponent be sent to the District Magistrate, Nanital by E-mail for getting service of the same effected on it and sending his report in this regard.
6. The State PCB is directed to obtain the copies of the writ petition pending before and the orders passed by the Hon'ble High Court of Uttarakhand within one month so that the nature of relief sought and granted therein may be ascertained.
7. List the matter for further consideration on 19.12.2022.
8. Section 20 of the National Green Tribunal Act, 2010 inter alia requires this Tribunal to apply precautionary principle. Section 19 (4) (j) of the National Green Tribunal Act, 2010 empowers this Tribunal to pass an order O. A. No. 429/2022 Ridhima PandeyVs. State of Uttarakhand -7- requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I.
9. In view of the facts and circumstances of the case, report of the Joint Committee and above referred statutory provisions, the Project Proponent may carry out dredging of river Nandur as permitted by Hon'ble High Court of Uttarakhand but shall not carry out any mining for commercial purpose from the mining site in question till the date of hearing fixed.
10. However, it is clarified that in case of conflict with the order passed/to be passed by the Hon'ble High Court of Uttarakhand, this order shall cease to operate to the extent of such conflict.
11. The District Magistrate and the Superintendent of Police, Champawat and Nanital are also directed to take all requisite steps to ensure that no further illegal mining takes place in the mining site in question.
12. A copy of this order be sent to the Project Proponent and the District Magistrate and the Superintendent of Police, Champawat and Nanital by email for requisite compliance.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM November 15, 2022 AG