National Green Tribunal
Praveen S/O Om Pal Singh vs Ministry Of Environment, Forest And ... on 25 August, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 05 (Court No.1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Execution Application No. 24/2020
IN
Original Application No. 401/2018
(I.A. No. 124/2021 & I.A. No. 125/2021)
(With report dated 19.08.2021)
Praveen & Anr. Applicant(s)
Versus
Ministry of Environment, Forest & Climate Change Respondent
Date of hearing: 25.08.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Mr. Sanjay Upadhyay, Advocate in EA
Respondent(s): Ms. Malvika Trivedi, Senior Advocate with Mr. Abhishek Yadav for
M/s HSM Holdings Pvt. Ltd. (R-8)
Mr. Shlok Chandra, Advocate for MoEF&CC and CPCB
Mr. Daleep Dhyani, Advocate for UPPCB
ORDER
1. The application has been filed for enforcement of earlier orders dated 08.03.2019 in O.A. No. 401/2018 whereby directions were issued to control illegal mining, including instream mining with heavy machines. As per Environment Clearance (EC) granted to Respondent No. 8, there is specific condition that heavy machine should not be employed for mining.
On inspection conducted on 22.06.2018, by the Revenue and Police Department, it was found that mining was done by use of heavy machines.
12. It is stated that inspite of order dated 08.03.2019, O.M. dated 24.07.2020 has been passed permitting mining, ignoring the report of the District Magistrate Baghpat not to allow the same, only by saying that there was sufficient mineral available. Thus, the permission is clearly against order of this Tribunal, EC conditions and the Sustainable Sand Mining Guidelines 2016 and "Enforcement and Monitoring Guidelines for Sand Mining, 2020" (EMGSM-2020). Mere availability of mining material is not enough to permit mining in violation of the EC conditions by use of heavy machinery in the river bed during the currency of flow in the river.
3. Considering the above grievance, vide order dated 26.02.2021, the Tribunal directed a joint Committee of MoEF&CC, CPCB, State PCB and District Magistrate, Baghpat to look into the matter and give its factual and action taken report to this Tribunal.
4. In pursuance of the above, the joint Committee has filed its report dated 14.06.2021. It is stated that during earlier inspection on 22.06.2018, the Project Proponent (PP) was found conducting mining by use of heavy machines against specific conditions of EC and even now the PP has been found doing illegal mining in violation of EC conditions as well as beyond the lease area.
5. With regard to reasons for permitting mining by OM 24.7.2020, it is stated that:-
"4. DETAILS OF OFFICE MEMORANDUM DATED-24.07.2020 A meeting in chairmanship of Chief Secretary, Uttar Pradesh was convened on 15.04.2019 and a 3 member committee was constituted to investigate and submit a report in the matter. In reference to above matter, a separate investigation was conducted by District Administration, Baghpat and it was informed to State Government that operation of mining would lead to objection by local villagers and result in disturbance of law and order situation, hence, not appropriate to allow mining. The 3-member committee in its report indicated the availability of material for mining in the area and recommended to allow 2 mining in accordance of rules and regulations to prevent illegal mining and loss of revenue to State.
Directorate of Geology & Mining, Uttar Pradesh issued office memorandum dated 24.07.2020 and District Magistrate, Baghpat was directed to ensure necessary action for mining operation as per rules and regulations and measures to control illegal mining."
6. It is further stated that the State PCB found deficiencies and did not grant CTO under the Water (Prevention and Control of Pollution) Act 1974, (Water Act), Air (Prevention and Control of Pollution) Act, 1981 (Air Act) initially but the PP started mining even without CTO. The report mentions that the Committee carried out field visit on 31.05.2021. Discussion was held with the PP. It was found that mining had started on 13.01.2021.
However, the State PCB declined the application of the PP for grant to CTO in view of deficiencies noticed in the inspection held by it on 30.03.2021 as follows:-
"Reasons:
a) Unit has not installed septic tank/soak pits for domestic sewage water.
b) Unit has not complying the conditions of Environmental clearance issued by SIEAA on 30.01.2018.
c) Unit has not installed water sprinkler and other dust control measures to take care of dust generation.
d) Unit has not mentioned dust bin for disposal of Municipal Solid Waste."
7. In view of above, mining was done by the PP in violation of the Water/Air Acts and Environment (Protection) Act, 1986 (EP Act). This is not even disputed by learned counsel for the PP.
8. The report further finds that the specific boundaries of mining area were not demarcated, as required. During field visit on 31.05.2021, mining was found stopped but it was clear that before the visit, mining was being done in violation of EC conditions. Heavy machinery was found to have been used for mining activities, shown by movement of vehicles.
No Sixth Monthly compliance report was furnished to the State PCB and other authorities, as required. Air Quality Monitoring Stations were not 3 established. Green belt was not developed, as required. Coordinates for mining were not in the boundary of the lease area. Observations in the report are quoted below:-
"6. OBSERVATION MADE DURING FIELD VISIT BY JOINT COMMITTEE:
A field visit to the mining area was carried on 31.05.2021 by joint committee and Mining Officer-Baghpat was also present for assistance during the site visit and provided his technical input throughout the discussion.
As per the available records. EC was granted in favor of Shri Ajit Singh Malhotra, the company name (M/s HSM Holdings) was not mentioned on the EC. However, other related documents were issued in respect to the M/s HSM Holdings.
As per the submitted document during site visit, it was evident that the Letter of Intent (LOI) vide letter no. 1770/2017 as issued to the project proponent on 25.11.2017 and the mining patta i.e., mining lease for mining of silica sand for time-period from 15.05.2018 to 14.05.2023 (Annexure-9) As per the discussion held with PPs and Mining department, Baghpat during the site visit, it was informed that the mining work was started from 13.01.2021 onwards. As stated by PPs that the mining work was started from 13.01.2021, which was also confirmed by a letter issued by District Magistrate, Baghpat dated 13.01.2021 (Annexure-7) directed to PPs to start the mining activities after ensuring compliances of Hon'ble NGT orders with reference to the letter issued by Secretary, Geology and Mining Department, Lucknow vide letter no. 1078/2020 dated 04.12.2020 with the direction to start the mining activities by PPs with immediate effect (Annexure-10) UPPCB, RO, Meerut informed that Consent to Establish (CTE) has been not issued to the PPs. Further, UPPCB refused to PPs for granting the CTO in reference to the application dated 28.01.2021 after observing various reasons during inspection made by officers of UPPCB on 30.03.2021 the reasons are as stated below:
Reasons:
e) Unit has not installed septic tank/soak pits for domestic sewage water.
f) Unit has not complying the conditions of Environmental clearance issued by SIEAA on 30.01.2018.
g) Unit has not installed water sprinkler and other dust control measures to take care of dust generation.
4h) Unit has not mentioned dust bin for disposal of Municipal Solid Waste.
However, it was informed that Mining project have re-applied CTO application through online "NIVESH MITRA" portal dated 28.05.2021 which is under consideration by concerned department i.e. UPPCB.
Therefore, it is reflected that the excavation of sand has been done by PPs without having the CTE and CTO which is a violation/non-compliance under EPA Act, 1986. With respect to provisions of Water Act, 1974 and Air Act, 1981 the project proponent is required to obtain CTE/CTO for mining operation and should comply with the conditions of Environmental Clearance.
As per documents submitted by District Mining Officer, the mining area was demarcated by mining department, survey department and revenue department in presence of Shri Amar Veer Singh representative of M/s HSM Holding address-Nehru Bag, Piparia, District-Hosangabaad, Madhya Pradesh on 08.01.2021 and earlier demarcated on 08.02.2018. However, the specific boundaries/pillars of mining area were not found demarcated during the site visit of the committee, which is also a non-compliance under EPA Act, 1986.
During the site visit, it was observed that the excavation of sand has been done by M/s HSM Holdings, having its registered office at Bhopal, Madhya Pradesh. However, mining activity was found stopped during the field visit of joint committee on 31.05.2021 in that particular area; but machinery such as Poclain machine, tractor, etc, were found on the site (photograph P3). The very recent impressions of the tyres of Hydraulic excavator were found on site indicating their use for mining activities as shown in photograph (P5), which is non-compliance of EC condition as well as Hon'ble NGT order.
As per the office record, no any six-monthly compliance report has been submitted by the project proponent to the UPPCB, RO Meerut and also to MoEF&CC, IRO, Lucknow till date. Further, no any inspection report was submitted by Mining Department, Baghpat before the committee. The District Mining officer should quarterly monitored the compliance status of the EC as per EC General condition no. 23 and if any violation detected, they should report to SIEAA. MoEF&CC vide its notification S.O 637(E) dated 28.01.2014 has delegated the power to State/Union Territory Environmental Impact Assessment Authority to issue show cause notice to category 'B' (0 to 100 Ha) projects in case of violation of Conditions of Environmental Clearance (Guidelines for Sand Mining, 2020) As per EC specific conditions no. 37, it is required that four ambient air quality monitoring stations should be established in the core zone as well as buffer zone for monitoring PM 10, PM 2.5 and NOx but during the inspections such monitoring stations not found established so far.
5 Green belt cover was also not found at site, which should also be developed by following CPCB guidelines including selection of plant species and in consultation with local DFO/Horticulture Officer to minimize the impact of dust on near-by agricultural filed wind barrier such tin-shed of suitable heights may be installed along the boundary of mining area and regular water sprinkling may be done.
Interpretation of images capture by Google Earth Imagery of Mining Lease Area The images of mining area were captured through Google Earth Imagery by entering the coordinates of the pillars namely A,B,C,D,E as mentioned in the sanctioned mining lease on page no.4(Annexure 11) on Imagery date 28.03.2021 (Annexure 12 consist of image 1-6). The boundaries of the sanctioned lease area are shown with the help of the pillars coordinates and sand mining activities has been observed with Imagery date 28.03.2021 (Image 1). It has been also noticed that the coordinates mentioned for the mining area in the granted EC by SIEAA, UP does not fall in the boundary of the lease area drawn on the basis of the coordinates of the pillars mentioned in the mining lease (Image 2). The differences in these coordinates and demarcated areas should be verified by the local administration. Further, it has been also observed in the zoom views of the images that the mining activities have been found inside and outside the sanctioned lease area (Image3-6) which should be verified by the local administration that either the mining in outside lease area has been done by M/s HSM Holding or someone else."
9. A further report has been filed by the State PCB on 12.08.2021 to the effect that consents under the Water and Air Acts have been granted on 05.07.2021, subject to the conditions mentioned therein. Consent is valid from 26.05.2021 to 31.12.2022. Conditions therein include control of dust, compliance of EC Conditions and liability of consent being withdrawn in case of violations, submission of compliance report within one month. Further report dated 19.08.2021 has been filed by the State PCB to the effect that penalty of Rs.14,75,000/- has been imposed for illegal mining outside the sanctioned lease area on 02.08.2021 under the provision of Uttar Pradesh Minor Mineral (Concession) Rules, 1963.
610. The PP has filed its objection to the report. It is stated that in absence of finding of pits in the mining lease area, it could not be said that Hydraulic excavator, which was present at the site, was used for mining.
It was used for loading of the mined material, collected in trucks and loaders. Scalper is used at the site to mine the area. W.P. (C) No. 6974 of 2021 filed by the applicant has been disposed of on 18.06.2021 as infructuous due to which the issue before the Tribunal is barred by res judicata. In the said Writ Petition, filing of present execution application was also mentioned. Response to the observations in the report of the joint Committee is depicted in the following table:-
S. Observation in the report Response of the PP No.
1. Starting of mining from Mining was started after Mining 13.01.2021. Department directed the PP to do so under bonafide belief that it could be done without CTO under Air/Water Act. PP apologises for the same.
2. Non grant of CTE and CTO Subsequent CTO has been due to deficiencies of the PP. granted on 05.07.2021 effective from 26.05.2021. Deficiencies were non-existent. Mining was started under bonafide belief that filing of consent of application was enough to start mining which is a mistake.
3. There was no demarcation Copy of the report has been as no pillars found at the sought under the RTI Act. site, as required.
4. Presence of machinery PP was using permitted during the inspection on machines for mining. Heavy 31.05.2021 machines were for loading.
5. Impressions of tyres found There were no pits and therefore showing movement of heavy inference is not justified.
machines, showing use in violation of EC conditions.
6. No six monthly compliance Two reports have been sent -
reports submitted to the One in 2018 and the other in authorities, as required. June, 2021.
77. Violation of EC condition No. The condition is generic 37 of establishing air quality monitoring stations.
8. Green belt not found Plantation done in March/April, 2021 of 250 trees and further plantation to be done for which saplings purchased in May.
9. Mining outside the lease Mining is done as per area demarcated area, based on record of the Revenue Department.
10. The District Magistrate has levied royalty and penalty of Rs.
14,75,000/-
11. We have heard learned counsel for the applicants and the PP.
Counsel for the MoEF&CC, CPCB and State PCB, though present, did not make any submission even on being asked to do so.
12. Question for consideration is whether the PP has committed violations of law in the course of mining and if so remedial action to be taken.
13. From the report quoted above, several illegalities in conduct of mining are patent:-
(i) Starting of mining without requisite mandatory CTO by the State PCB and inspite of the same being declined for specific reasons and continuing the same till it was granted later after about six months.
(ii) Mining outside the lease area and without any demarcation on the spot.
(iii) Use of heavy machinery in violation of EC conditions.
(iv) Violations of EC condition No. 37 requiring establishment of Air Quality Monitoring Stations in the Core Zone and Buffer 8 Zone and not developing green belt cover as per CPCB guidelines, before commencing mining to mitigate dust pollution.
14. The above violations stand established and partial denial by the PP is without any basis. Admittedly, mining commenced without requisite CTE/CTO on 13.01.2021 which continued for six months till CTO was granted later. Stand of the PP that application was made which was wrongly rejected cannot justify the violations nor tendering apology substitute for remedial action against such violation which is criminal offence under the Water Act, Air Act as well as EP Act, apart from offences under IPC. Mere fact that consent has been subsequently granted cannot legitimize the illegal mining done earlier. Moreover, subsequent consent is conditional and liable to be withdrawn for the violation of conditions.
Since such violations stand established as above, the CTO is not valid. No demarcation has been shown. Mining has been found outside the lease area and with the use of heavy machinery without safeguards of green belt and air quality monitoring. Plea that heavy machinery was only for loading is unacceptable having regard to the nature of machinery and the purpose for which such machinery is usually employed. Once presence of machinery and its use were found, burden of proof to establish its legitimate use is on the PP which is not discharged in the circumstances.
Absence of pits is not conclusive for proving non-user. There is no explanation for not establishing Air Quality Monitoring Station or developing the green belt to mitigate the air pollution in the course of mining. Such conditions have to be held mandatory before mining is undertaken. Levying of royalty and penalty of Rs. 14,75,000 by the District Magistrate under the Minor Mineral Rules, for mining outside the leased area, does not wipe out the need for remedial action against violation of 9 Environmental - EC conditions, consent condition and the penal law.
Order of the Allahabad High Court disposing of a Writ Petition as infructuous does not show that the issues before this Tribunal were either subject matter of the said petition or were considered. Violation of environmental law affects the public at large and even if particular person who files a Petition and withdraws the same cannot mean that the law cannot be enforced. Bar of res judicata does not apply.
15. In Jayant & Ors. v. State of MP1 reiterating the law laid down in NCT of Delhi v. Sanjay2, the Hon'ble Supreme Court held that unsustainable sand mining has serious adverse impact on environment and the State authorities have to control the same. It was further held that even if the offences under the Mining laws are compounded, Penal Code offences, being different, can continue. Relevant observations of the said judgment are quoted below:-
"8. Before submissions made on behalf of the respective parties are considered, the decision of this Court in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] dealing with the provisions of the MMDR Act in which this Court considered in detail the policy and object of the MMDR Act and the Rules made thereunder, is required to be referred to.
8.1. The question which arose for consideration before this Court was, whether the provisions contained in Sections 21, 22 and other sections of the MMDR Act operate as bar against prosecution of a person who has been charged with allegation which constitutes offences under Sections 379/414 and other provisions of the Penal Code ("IPC"). The question which arose was, whether the provisions of the MMDR Act explicitly or impliedly exclude the provisions of the Penal Code (IPC) when the act of an accused is an offence both under the Penal Code and under the provisions of the MMDR Act. This Court considered in detail the policy, object and purpose of the MMDR Act in paras 32 to 39, which read as under: (SCC pp. 790-95) "32. The policy and object of the Mines and Minerals Act and Rules have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature. The Court cannot lose sight of the fact that adverse and destructive environmental impact of sand mining has 1 (2021) 2 SCC 670 2 (2014) 9 SCC 772 10 been discussed in the UNEP Global Environmental Alert Service Report. As per the contents of the Report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in India, it was stated that sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our country.
33. The mining of aggregates in rivers has led to severe damage to rivers, including pollution and changes in levels of pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 cm a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion.
34. The Report also dealt with the astonishing impact of sand mining on the economy. It states that tourism may be affected through beach erosion. Fishing, both traditional and commercial, can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structures for water supply.
35. Sand is often removed from beaches to build hotels, roads and other tourism-related infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors--beaches themselves. Mining from, within or near a riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, instream roughness of the bed, flow velocity, discharge capacity, sediment transportation capacity, turbidity, temperature, etc. Alteration or modification of the above attributes may cause hazardous impact on 11 ecological equilibrium of riverine regime. This may also cause adverse impact on instream biota and riparian habitats. This disturbance may also cause changes in channel configuration and flow paths.
36. In M. Palanisamy v. State of T.N. [M. Palanisamy v. State of T.N., 2012 SCC OnLine Mad 2125 :
(2012) 4 CTC 1] , the amended provisions of the Tamil Nadu Mines and Minerals Concession Rules, 1959 was challenged on the ground that the said Rules for the purpose of preventing and restricting illegal mining, transportation and storage of minerals are ultra vires constitutional provisions and the provisions of the Mines and Minerals (Development and Regulation) Act, 1957. Upholding the vires of the Rules, the Division Bench (one of us, Eqbal, J. as he then was) of the Madras High Court, elaborately discussed the object of restriction put in the illegal mining, transportation and storage of minerals including sand and after considering various reports observed thus: (SCC OnLine Mad: CTC pp. 24-25, paras 21 & 23-24) '21. In order to appreciate the issue involved in these writ petitions, we may have to look at the larger picture --
the impact of indiscriminate, uninterrupted sand quarrying on the already brittle ecological set-up of ours. According to expert reports, for thousands of years, sand and gravel have been used in the construction of roads and buildings. Today, demand for sand and gravel continues to increase. Mining operators, instead of working in conjunction with cognizant resource agencies to ensure that sand mining is conducted in a responsible manner, are engaged in full-time profiteering. Excessive in-stream sand and gravel mining from riverbeds and like resources causes the degradation of rivers. In- stream mining lowers the stream bottom, which leads to bank erosion. Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river mouths and coastal inlets. It also leads to saline water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in-stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in-stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the stream-bed and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction of sand from riverbeds may also cause the entire stream-bed to degrade to the depth of excavation.
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23. The most important effects of in-stream sand mining on aquatic habitats are bed degradation and sedimentation, which can have substantial negative effects on aquatic life. The stability of sand-bed and gravel-bed streams depends on a delicate balance between stream flow, the sediments supplied from the watershed and the channel form. Mining-induced changes in sediment supply and channel form disrupt the channel and the habitat development processes. Furthermore, movement of unstable substrates results in downstream sedimentation of habitats. The affected distance depends on the intensity of mining, particle sizes, stream flows, and channel morphology.
24. Apart from threatening bridges, sand mining transforms the riverbeds into large and deep pits; as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry. Bed degradation from in-stream mining lowers the elevation of stream flow and the floodplain water table, which in turn, can eliminate water table-dependent woody vegetation in riparian areas and decrease wetted periods in riparian wetlands. So far as locations close to the sea are concerned, saline water may intrude into the fresh waterbody.'
37. In Centre for Public Interest Litigation v. Union of India [Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1] , this Court, while observing that the natural resources are the public property and national assets, held as under: (SCC p. 53, para 75) '75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.'
38. In M.C. Mehta v. Kamal Nath [M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388] , this Court while considering the doctrine of public trust which extends to natural resources observed as under: (SCC pp. 407-408 & 413, paras 24-25 & 34) '24. The ancient Roman Empire developed a legal theory known as the "Doctrine of Public Trust". It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by 13 Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about 'the environment' bears a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullius) or by everyone in common (res communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan--proponent of the Modern Public Trust Doctrine--in an erudite article "Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol. 68, Part 1, p. 473, has given the historical background of the public trust doctrine as under:
"The source of modern public trust law is found in a concept that received much attention in Roman and English law--the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature and need not be repeated in detail here. But two points should be emphasised. First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties-- such as the seashore, highways and running water-- "perpetual use was dedicated to the public", it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government."
25. The public trust doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the public trust doctrine imposes the following restrictions on governmental authority:
"Three types of restrictions on governmental authority are often thought to be imposed by the public trust:
first, the property subject to the trust must not only be 14 used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses."
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34. Our legal system--based on English common law-- includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.'
39. In Intellectuals Forum v. State of A.P. [Intellectuals Forum v. State of A.P., (2006) 3 SCC 549] , this Court while balancing the conservation of natural resources vis-à-vis urban development observed as under: (SCC p. 572, para 67) '67. The responsibility of the State to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "State responsibility" for pollution emanating within one's own territories (Corfu Channel case [Corfu Channel case (United Kingdom v. Albania), 1949 ICJ Rep 4 : (1949) 43 AJIL 491] ). This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is para 2, which states:
"The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate." ' Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area."
8.2. This Court in Sanjay case [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] further observed in paras 60 and 69 as under: (SCC pp. 809 & 811) "60. There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country. Similarly, Article 51-A enjoins a 15 duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for all the living creatures. In view of the constitutional provisions, the doctrine of public trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, water and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership.
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69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels."
8.3. That thereafter, after considering the relevant provisions of the MMDR Act, this Court opined that there is no complete and absolute bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offence. Ultimately, this Court concluded in paras 72 and 73 as under: (SCC p. 812) "72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à-vis the Code of 16 Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly."
8.4. Thus, as held by this Court, the prohibition contained in Section 22 of the MMDR Act against prosecution of a person except on a written complaint made by the authorised officer in this behalf would be attracted only when such person is sought to be prosecuted for contraventions of Section 4 of the MMDR Act and not for any act or omission which constitutes an offence under the Penal Code.
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17. Now so far as the submission on behalf of the private appellant violators that in view of the fact that the violators were permitted to compound the violation in exercise of powers under Rule 53 of the 1996 Rules or Rule 18 of the 2006 Rules and the violators accepted the decision and deposited the amount of penalty determined by the appropriate authority for compounding the offences/violations, there cannot be any further criminal proceedings for the offences under Sections 379 and 414 IPC and Sections 4/21 of the MMDR Act and the reliance placed on Section 23-A of the MMDR Act is concerned, it is true that in the present case the appropriate authority determined the penalty under Rule 53 of the 1996 Rules/Rule 18 of the 2006 Rules, which the private appellant violators paid and therefore the bar contained in sub-section (2) of Section 23-A of the MMDR Act will be attracted.
17.1. Section 23-A as it stands today has been brought on the statute in the year 1972 on the recommendations of the Mineral Advisory Board which provides that any offence punishable under the MMDR Act or any Rules made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under Section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify. Sub-section (2) of Section 23-A further provides that where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be released forthwith. Thus, the bar under sub-section (2) of Section 23-A shall be applicable with respect to the offences under the MMDR Act or any Rules made thereunder.
1717.2. However, the bar contained in sub-section (2) of Section 23-A shall not be applicable for the offences under IPC, such as, Sections 379 and 414 IPC. In the present case, as observed and held hereinabove, the offences under the MMDR Act or any Rules made thereunder and the offences under IPC are different and distinct offences.
17.3. Therefore, as in the present case, the Mining Inspectors prepared the cases under Rule 53 of the 1996 Rules and submitted them before the Mining Officers with the proposals of compounding the same for the amount calculated according to the Rules concerned and the Collector approved the said proposal and thereafter the private appellant violators accepted the decision and deposited the amount of penalty determined by the Collector for compounding the cases in view of sub-section (2) of Section 23-A of the MMDR Act and the 1996 Rules and even the 2006 Rules are framed in exercise of the powers under Section 15 of the MMDR Act, criminal complaints/proceedings for the offences under Sections 4/21 of the MMDR Act are not permissible and are not required to be proceeded further in view of the bar contained in sub-section (2) of Section 23-A of the MMDR Act. At the same time, as observed hereinabove, the criminal complaints/proceedings for the offences under IPC -- Sections 379/414 IPC which are held to be distinct and different can be proceeded further, subject to the observations made hereinabove."
16. This Tribunal had dealt with inter-alia vide order dated 26.02.2021 in OA No. 360/2015, National Green Tribunal Bar Association v. Virender Singh (State of Gujarat) on the subject, wherein it was directed:-
"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 18 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 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 19 violations, the Tribunal held that the same has to be calculated having regard to the polluter pays principle and 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).20
For present purposes, it is assumed that the Benefits would accrue only in the first year (in which the extraction of the 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)
21
(1+0.05)1 (1+0.05)2 (1+0.05)3 (1+0.05)4 (1+0.05)5
= 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 UP3 to which reference will be made later.
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27. We direct all the States/UTs to strictly follow the SSMG- 2016 read with EMGSM-2020 reinforced by mechanism for preparation of DSRs (in terms of directions of this Tribunal dated 14.10.2020 in Pawan Kumar, supra and 04.11.2020 in Rupesh Pethe, supra), Environment Management Plans, replenishment studies, mine closure plans, grant of EC (in terms of direction dated 13.09.2018 in Satendra Pandey, supra), assessment and recovery of compensation (as per discussion in Para 25), seizure and release of vehicles involved in illegal mining (in terms of order dated 19.02.2020 in Mushtakeem, supra), other safeguards against violations, grievance redressal, accountability of the designated officers and periodical review at higher levels. As already noted, EMGSM-2020 contemplates extensive use of digital technology, including remote sensing.
28. We further direct that periodic inspection be conducted by a five-members Committee, headed and coordinated by the SEIAA and comprising CPCB (wherever it has regional office), State PCB and two expert members of SEAC dealing with the subject. Where CPCB regional office is not available, if MoEF&CC regional office is available, its Regional Officer will be included in the Committee. Where neither CPCB nor MoEF&CC regional office exists, Chairman, SEIAA will tie up with the nearest institution of repute such as IIT to nominate an expert for being included in the Committee. Such inspection must be conducted at least thrice for each lease i.e. after expiry 3 constituted by this Tribunal to oversee compliance of environmental issues, on suggestions of the State Government.
22of 25% the lease period, then after 50% of the period and finally six months before expiry of the lease period for midway correction and assessment of damage, if any. The reports of such inspections be acted upon and placed on website of the SEIAA. Every lessee, undertaking mining, must have an environment professional to facilitate sustainable mining in terms of the mining plan and environmental norms. This be overseen by the SEIAA. Environment Departments may also develop an appropriate mobile App for receiving and redressing the grievances against the sand mining, including connivance of the authorities and also a mechanism to fix accountability of the concerned officers. Recommendations of the Oversight Committee for the State of UP quoted earlier may be duly taken into account.
The mechanism must provide for review at the level of the Chief Secretary at least once in every quarter, in a meeting with all concerned Departments in the State. The Chief Secretary UP may ensure further action in the light of the report of the Oversight Committee.
Similarly, at National level, such review needs to be conducted atleast once in a year by the Secretary, Environment in coordination with the Secretaries Mining and Jalshakti Ministries the CPCB.
29. We further direct all the States/UTs to publish their annual reports on the subject and such annual reports may be furnished to MoEF&CC by 30th April every year giving status till 31st March. First such report as on 31.03.2022 may be filed with the MoEF&CC by all the States/UTs on or before 30.04.2022. The report may also be simultaneously posted on the website of the Environment Department of the States/UTs. Based on such reports, MoEF&CC may consider supplementing its Guidelines from time to time. The MoEF&CC may prepare a consolidated report considering the reports from the States/UTs and publish its own report on the subject, preferably by 31st May every year.
30. We direct the Secretary MoEF&CC to convene a meeting in coordination with the CPCB and Mining and Jalshakti Ministries of Central Government and such other experts/individuals at National level and representatives of States within three months for inter-action on the subject which may be followed by such meetings being convened by the Chief Secretaries in all States in next three months. Holding of such meetings will provide clarity on enforcement strategies and help protection of environment."
17. In view of violations discussed in para 14 and legal position discussed above, remedial action by way of preventing the illegality by terminating lease, cancelling EC/consents and taking coercive measures 23 to enforce the law by way of initiating prosecution, black listing and recovering compensation for restoration of damage to the environment and violation of law are required to be taken. We direct a six-Member joint Committee of Secretary, Environment, UP, Secretary, Mining, UP, State PCB, SEIAA, UP, District Magistrate, Baghpat and CPCB. The Committee may meet within 15 days and decide further course of action, including preparation of Restoration plan for restoring the damage to the environment, at the cost of the PP. The Committee will be free to take assistance of any other experts/institutions. SEIAA, UP and CPCB will be nodal agency for coordination and compliance. The Committee may consider steps for stopping further illegal mining, registering criminal case for violations of offences under the IPC and assessment of recovery of compensation for violations, cancel EC/Consent, black listing.
Proceedings of the Committee be finalized as far as possible within two months from today. An action taken report may be furnished to the Chief Secretary, UP for using as input in policy making and taking State wide action against such violations. The CPCB may also in the light of the report of the Committee consider issuing further appropriate guidelines on the subject of river bed mining.
18. The quantum of compensation is required to be assessed on the principle of restoration having regard to the extent of violation, repeat violations, extent of loss to the ecological services caused, illegal benefit taken, turnover of a violator and other attending circumstances. We are of the view that pending determination of compensation by the Committee, in view of clearly established violations, interim compensation should be fixed by this Tribunal under Section 15 read with Section 20 of the NGT Act. Taking into account the totality of circumstances already discussed above, we determine the amount of interim compensation at Rs. 5 Crores.
24The PP may deposit the same within one month with the District Magistrate, Baghpat. If the amount is not deposited, the District Magistrate may take coercive measures, including attachment and seizure of the assets/equipments/ encashing bank guarantee, if any. Utilisation will abide by directions of the joint Committee.
The application is disposed of.
A copy of this order be forwarded to the Secretary, Environment, UP, Secretary, Mining, UP, State PCB, SEIAA, UP, District Magistrate, Baghpat and CPCB by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM August 25, 2021 E.A. No. 24/2020 in O.A. No. 401/2018 A 25