National Green Tribunal
Ajit Kumar vs State Of Madhya Pradesh on 29 September, 2022
Item No. 6
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 38/2022 (CZ)
(I.A. No. 37/2022)
(I.A. No. 40/2022)
Ajit Kumar Applicant(s)
Versus
State of Madhya Pradesh & Ors. Respondent(s)
Date of Completion of Hearing and Reserving of Order : 29.09.2022
Date of Uploading of Order on the Website : 17.10.2022
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Ms. Sadapurna Mukherjee, Adv.
For Respondent(s) : Mr. M.C. Chaturvedi, Sr. Adv.
Mr. Sachin K. Verma, Adv.
Mr. Mayank Pandey, Adv.
Mr. Ashish Kumar Pandey, Adv.
ORDER
1. The issue of non-compliance of sustainable Sand Mining Guidelines 2020 has been again raised in this application with the situation of anomalies in the State of Madhya Pradesh relating to districts of Devas, Harda, Sihor and Raisen where Madhya Pradesh SEIAA has granted the prior EC to the project proponents for a period starting from 2016 till date, which stands expired as on 31.03.2021/31.03.2022 by virtue of MoEF O.M. dated 24.12.2013 and Sustainable Sand Mining Guidelines, 2020 which mandates that „EC will be valid for the lease period subjected to ceiling of five years only.
2. Effectively MP SEIAA has granted all the environment clearances for the lease period which was expiring on 31.03.2021. Subsequently in 2019, MP state government has auctioned the sand quarries in the state and awarded the contracts district wise to the successful contractors starting from March, 2020. Based on the contracts the successful contractors have got 1 the existing valid EC‟s on their name as per the EIA notification. However, these private contractors did not apply nor got a fresh EC‟s for the sand mines instead they have kept on operating the mines on the transferred EC‟s which stand expired on 31.03.2021 and thereafter extended till 31.03.2022. Even MPSMC who is the nodal agency to verify all the statutory approvals did not make any attempt to warn or curb this blatant violation of the EC norms. Instead, they are issuing additional quantity every month beyond approved tender quantity in complete violation of the judgment of the NGT Special Bench where authorities, were directed to rectify the quantities in EC with that of the tender documents in the matter of Prabhat Mohan Pandey Vs MPSEIAA dated 22.02.2022).
3. There has been complete failure of the Respondents to strictly follow the mandatory procedure to allow sand mining in Madhya Pradesh in absence of a valid Environmental Clearance which is a prerequisite for granting any mining lease(s) under the provisions of the Environmental Impact Assessment dated 14.09.2006, EIA Notification dated 15.01.2016, Sustainable Sand Mining Guidelines, 2016 and 2020 issued by the Ministry of Environment Forest and Climate Change, the Enforcement Guidelines of 2020, and the MP Sand Mining Policy, 2019.("Regulatory Guidelines") Furthermore, the continuation of sand mining in the absence of environmental clearances obtained by the lesseess contravenes the various decisions passed by the Hon‟ble Supreme Court in its Judgment dated the 27th February 2012 in I.A. No.12- 13 of 2011 in Special Leave Petition (C) No.19628-19629 of 2009, in the matter of Deepak Kumar etc. Vs. State of Haryana and Others etc. and various directions of this Hon'ble Tribunal in order dated 13th January, 2015 in the case of Himmat Singh Shekhawat v. State of Rajasthan and Ors., 2015 ALL (I) NGT Reporter (1) (Delhi) 44, National Green Tribunal Bar Association Vs Ministry of Environment and Forest & Ors. in Original Application No. 364 Of 2015 and Order dated 04.09.2018 in O.A. 173/2018 in the matter of Sudarsan Das vs. State of West Bengal 2 & Ors and MoEF&CC guidelines for Sustainable Sand Mining Management Guidelines 2016 for scientific and sustainable sand mining in the Country.
4. The extension of environmental clearances is granted under the Central law by the MoEF or SEIAA. In the present case, the same has been done suo moto by the State thereby violating the regulatory procedure. The State is vested with no power to change the system with regard to the grant of environmental clearance under law. The consideration and grant of environmental clearance is statutorily regulated by the MOEF Notification of 2006 and 2020 which extended the clearance only till 31.03.2022. The State Government is not competent to alter or completely give a go-by to the said statutory procedure and methodology to allow transfer of EC‟s which have expired without seeking permission for renewal from MoEF.
Regulatory Norms which makes it a sine qua non that a EC which is not valid cannot be transferred, have been blatantly violated.
5. Once the 5 years period expires as it did in March 2021/2022 in the present case no mining can take place without seeking prior MOEF or SEIAA approval which has not been done in the above 4 districts. Moreover the MOEF Notification dated 25.07.2018 also mandates that DSR which is a pre-condition for EC has to be updated once every 5 years and replenishment studies have to be prepared in order to ensure that the environment is not endangered. Unless the EC is updated every 5 years and the EC conditions are updated by the nodal agency the same will be adversely affecting the livelihoods of these smallscale farmers and destroying the ecology. Further, the mining activity also increases the risk of flooding of these villages. Thus, the SSMG 2020 mandated that replenishment studies be prepared every 5 years and EC be valid only upto 5 years.
6. In addition to the above, some of the ECs were erroneously granted in B2 category whereas in light of the fact that cluster formations are in less than 500 meters distance as evident from the google maps data (provided in 3 Parvesh Portal data) which should have been granted in the B1 category that too by SEIAA not by DEIAA, has violated the following Regulatory norms:
Point 6 of Appendix-XI of the EIA notification 2016 says that "A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area which shall be applicable to the mine leases or quarry licenses granted on and after 9th September,2013."
Applicability of Public hearing for all the projects exceeding 5 hectares including cluster scenario.
Through the Office Memorandum 11011/175/2018-IA-II (M) dated 12-12-2018, Ministry of Envirment, Forest & Climate Changes (MoEF & CC) has directed that "Providing for EIA, EMP and therefore, public consultation for all areas from 5 to 25 Ha falling member category B-1 at pare with Catogory B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided". Through this OM, MoEF & CC has clearly defined that the any minor mineral lease or cluster of leases exceeding 5 hectares must be go for public consultation.
Further it necessary to highlight that MoEF&CC has directed through EIA Notification 2006, to form clusters if the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area for the leases granted post 09.09.2013.
7. It is further submitted that the Tribunal in the Prabhat Mohan Pandey case directed that EC should be accorded only to the limit of auctioned and sustainably permissible quantity and accordingly directed MPSEIAA to rectify the ECs granted in all districts in M.P. as per limits as specified in 4 the tender document. In-spite of all, there are easy violations by the respondent No.2 to 5 which has been enumerated as follows :-
Sl Mine Name District Violation No DAIYAT 1 MURJHAL Dewas EC Expired; Cluster/B1 Categoty Violation Kundgaon1 2 Dewas EC Expired; Tender Quantity Violation Murzhal 3 NEMAWAR 5 Dewas EC Expired; Tender Quantity Violation Kundgaon 3 4 Dewas EC Expired; Tender Quantity Violation Murzhal Gajanpur 4 5 Bajwara Dewas EC Expired; Tender Quantity Violation PIPLANERIYA EC Expired; Cluster/B1 Categoty Violation; Tender 6 Dewas Quantity Violation Kundgaon 2 7 Murzhal Dewas EC Expired; Tender Quantity Violation 8 PEERPADALIYA Dewas EC Expired 9 NEMAWAR 4 Dewas EC Expired; Tender Quantity Violation Gajanpur 5 Dewas EC Expired; Tender Quantity Violation 10 Bajwara 11 BIJALGAON 1 Dewas EC Expired 12 CHICHLI 2 Dewas EC Expired Malpone Harda EC Expired; Tender Quantity Violation 13 beswan 14 Chhipaner Harda EC Expired; Tender Quantity Violation Golmaal B 15 mangrul Harda EC Expired; Tender Quantity Violation Uchan Harda EC Expired; Tender Quantity Violation 16 Nayapura 17 Handiya Harda EC Expired; Tender Quantity Violation lachhora Harda EC Expired; Cluster/B1 Categoty Violation; Tender 18 Quantity Violation Golmaal A Harda EC Expired; Tender Quantity Violation 19 Mangrul 20 Segone Harda EC Expired; Tender Quantity Violation Manohorapura EC Expired; Cluster/B1 Categoty Violation; Tender 21 Harda Quantity Violation Boras EC Expired; Cluster/B1 Categoty Violation; Tender 22 Raisen Quantity Violation Sivani EC Expired; Cluster/B1 Categoty Violation; Tender 23 Raisen Quantity Violation Aliganj EC Expired; Cluster/B1 Categoty Violation; Tender 24 Raisen Quantity Violation 25 Sojani Raisen EC Expired; Cluster/B1 Categoty Violation Goramachhurai Raisen EC Expired; Cluster/B1 Categoty Violation 26 Goramachhurai-1 Raisen EC Expired; Cluster/B1 Categoty Violation 27 28 Kotparmahant Raisen Cluster/B1 Categoty Violation Kotparmahant A Cluster/B1 Categoty Violation; Tender Quantity 29 Raisen Violation Ketodhan A Cluster/B1 Categoty Violation; Tender Quantity 30 Raisen Violation Ketodhan B Cluster/B1 Categoty Violation; Tender Quantity 31 Raisen Violation 32 Muwar Raisen Cluster/B1 Categoty Violation 33 Bhouti 1 Raisen Cluster/B1 Categoty Violation 5 34 Nayakheda 2 Raisen Cluster/B1 Categoty Violation 35 Boras 1 Raisen Cluster/B1 Categoty Violation 36 Sardar nagar Sehore EC Expired 37 Somalwada Sehore EC Expired
8. Next, questions as raised in this application are that mining operations by the private respondents in the district of Harda, Datia, Devas, Raisen and Sihor in the absence of valid environmental clearance is direct and serious contravention of mandatory procedure stipulated under the MoEF&CC notification dated 14.09.2016 and the Sustainable Mining Management Guidelines2016 & 2020 and further that in light of the judgment of Deepak Kumar case and Sudarshan Das vs. State of Bengal and environmental clearance is an essential condition precedent which is not only fundamental but a must and prior to granting mining lease, the respondents were not competent to allow mining operation and transfer of EC in the absence of valid environmental clearance obtained or post expiry of the EC is in contravention of the guidelines. It is further alleged that there are violations of category from B1 to B2 and violation of the direction issued in Prabhat Mohan Pandey case.
9. EIA notification dated 14.09.2006 was issued by the respondent no. 2 MoEF&CC under Section 3 of Environment (Protection) Act, 1986 with an endeavour to inter-alia provide a substantive legal framework and comprehensive procedural mechanism for evaluation, assessment and monitoring of the Environmental impact on land, air and water due to various projects undertaken by persons in all sectors throughout the territory of India.
The EIA Notification dated 14.09.2006 regulated certain activities including mining of minor minerals, as laid down in the schedule therein and provided that a prior environmental clearance is mandatory for such regulated and specific projects across all sectors and made it mandatory for lessees to have environmental clearances before starting mining activity.
―Appendix-XI of the EIA notification 2016 says that ―A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area which shall be applicable to the 6 mine leases or quarry licenses granted on and after 9 th September,2013.‖Further it necessary to highlight that MoEF&CC has directed through EIA Notification 2006, to form clusters if the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area for the leases granted post 9th Sep'2013. As per this direction all the working mines in MP are falling in the cluster scenario with more than 5 Ha. Under this scenario as per the Hon'ble NGT direction, public consultation is mandatory for any mine or cluster exceeding 5 Ha.
Clause 9 of EIA Notification 2006, The ―Validity of Environmental Clearance‖ is meant the period from which a prior environmental clearance is granted by the regulatory authority. As per the para 11 sub clause (i) of EIA Notification 2006, a prior environmental clearance granted for a specific project or activity to an applicant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferor, or by the transferee with a written ―no objection‖ by the transferor, to, and by the regulatory authority concerned, on the same terms and conditions under which the prior environmental clearance was initially granted, and for the same validity period.
Further as per para 11 sub clause (iii) of EIA notification 2006 says that, The successful bidder of the mining leases, expiring under the provisions of subsections (5) and (6) of section 8A of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957) and selected through auction as per the procedure provided under that Act and the rules made thereunder, shall be deemed to have acquired valid prior environmental clearance vested with the previous lessee for a period of two years, from the date of commencement of new lease and it shall be lawful for the new lessee to continue mining operations as per the same terms and conditions of environmental clearance granted to the previous lessee on the said lease area for a period of two years from the date of commencement of new lease or till the new lessee obtains a fresh environmental clearance with the terms and conditions mentioned therein, whichever is earlier.‖
10. The Hon‟ble Supreme Court in its Judgment dated the 27.02.2012 in I.A. No.12- 13 of 2011 in Special Leave Petition (C) No.19628-19629 of 2009, in 7 the matter of Deepak Kumar etc. Vs. State of Haryana and Others etc. made prior environment clearance mandatory for mining of minor minerals irrespective of the area of mining lease. On 24.12.2013, the MoEF issued an OM which mandates that "EC will be valid for the lease period subjected to a ceiling of 5 years". Thereafter, in 2016 the MOEF issued the Sustainable Sand Mining Management Guidelines, 2016 (hereinafter referred to as SMMG, 2016), interalia, with an endeavor to ensure that sand and gravel mining is done in an environmentally sustainable and socially responsible manner, and to further ensure the conservation of river equilibrium and its natural environment by protection and restoration of the ecological system. The same was again updated in 2020 and the same made it a sine qua non that EC is valid only for a period of 5 years, after which the same has to be renewed only with prior permission of the nodal agencies.
One of the key and nodal objectives enumerated in the SMMG, 2016 was having an environmental clearance prior to grant of mining lease.
11. The Respondent, MOEF in supplement and addition to the Sustainable Sand Mining Management Guidelines, 2016 issued the Sustainable Sand Mining Management Guidelines, 2020. Clause 4.2 states that "the State Government shall issue letter of intent as per procedure laid down in their Minor Mineral Concession Rules with due consideration of final district Survey report" and further in Clause 8.1. stated that "All district to prepare a comprehensive mining plan as per the provisions of District Survey Report. These Reports shall be put on the website of District Administration. No mining shall be allowed in the area which has not been identified in the comprehensive mining plan of the District."
12. Through the Office Memorandum 11011/175/2018-IA-II (M) dated 12-12- 2018, Ministry of Environment, Forest & Climate Changes (MoEF & CC) has directed that "Providing for EIA, EMP and therefore, public consultation for all areas from 5 to 25 Ha falling member category B-1 at pare with Catogory B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided".
8Through this OM, MoEF & CC has clearly defined that the any minor mineral lease or cluster of leases exceeding 5 hectares must be go for public consultation.
13. The matter was taken up by this Tribunal on 23.05.2022 and 31.05.2022 and notices were issued to the respondents with direction to submit the reply.
14. The reply on behalf of respondent nos. 1, 4 and 5 are on record it is submitted on behalf of the respondent that :-
―3. The respondent no. 1 & 4 department of Mineral Resources through District Collector of District Raisen has recently auctioned the sand mining blocks and the successful bidder has submitted the proposals of ECs transfer to MPSEIAA, the mining blocks which have completed the validity period of 5 years the proposal for transfer is duly rejected by MPSEIAA even in district Raisen 08 such proposals for EC transfer are rejected due to completion of S. Name of Mines Khasra Area Tehsil Sand Compan Fresh Transferred Rejectio No. No. Group y Name E.C. E.C. n due (In Ha.) No. to complet ion of 5 yrs period
1. Motalsir 551 4.000 Bareli Group- Euphori - Transferred -
1 a Mines
2. Ghatpiparia-4 299 3.000 & - Transferred -
Minerals
3. Ketudhan-B 510 2.428 Udaipura - Transferred -
4. Ketudhan-C 510 2.428 - Transferred -
5. Mohadkalan 229 3.500 - Transferred -
6. Ketudhan-D 510 2.248 - Transferred -
7. Sultanganj 385 5.000 - Transferred -
8. Kotparmahant-A 51 10.000 Bareli - Transferred -
9. Bhouti-1 104 2.000 Badi Group- Pushpa - Transferred -
2 Enterpri
10. Tijalpur 123 0.400 Raisen ses - Transferred -
11. Berkhedi Ghat 72 0.770 - Transferred -
12. Barla 30 0.330 - Transferred -
13. Nayakheda-2 245 0.710 Deori - Transferred -
14. Boras 735 4.000 Udaipura Group- Euphori - - Rejected 1 a Mines & Minerals the validity period of 5 years and 01 proposal for EC transfer is rejected due to environmental sensitivity therefore, out of 22 proposal for EC transfers only 13 ECs are transferred at present in Raisen District. The environmental clearance and details of 9 Sand Mining Block of District Raisen are given in tabular form in Annexure RR-1/1 is as follows :-
4. Similarly, the Respondents No, 1& 4 Resources through District Collector of District Chhatarpur has recently auctioned the sand mining blocks and the successful bidder has submitted the proposals of ECs transfer to MPSIEAA the proposal of EC transfer in one mining block in District Chhatarpur of Village Parei Tehsil Gaurihar is rejected by MPSEIAA due to completion of the validity period of 5 years and for District Ohhatarpur out of 26 EC transfer proposal 25 EC are transferred by MPSEIAA, The Environmental Clearance details of Sand Mine & IOCJE Of District Chhatarpur are given in tabular form which is marked and filed herewith as ANNEXURE RR-1/2 District - Chhatarpur S. Name of Mine Date of Fresh E.C/ Rejected Due to No. E.C. Transferred Completion of 5 Validity E.C. years period Group-1
1. Village Barual Tehsil 05.06.2023 E.C. -
Gaurihar Transferred
2. Village Revna Tehsil 01.05.2023 E.C. -
Gaurihar Transferred
3. Village Rampurghat Tehsil 05.06.2023 E.C. -
Gaurihar Transferred
4. Village Rampur Tehsil 30.06.2023 E.C. -
Gaurihar Transferred
5. Village Baarbandh Tehsil 05.04.2023 E.C. -
Gaurihar Transferred
6. Village Parei Tehsil Gaurihar 10.04.2022 - Rejected due to
completion of 5
year of period
7. Village Kandela Tehsil 30.06.2023 E.C. -
Gaurihar Transferred
8. Village Fhattepur Tehsil 30.06.2023 E.C. -
Gaurihar Transferred
9. Village Goyra Tehsil 30.06.2023 E.C. -
Gaurihar Transferred
10. Village Padwaar Tehsil 01.06.2023 E.C. -
Gaurihar Transferred
11. Village Mawaighat Tehsil 03.05.2023 E.C. -
Gaurihar Transferred
12. Village Mahyaba Tehsil 30.06.2023 E.C. -
Gaurihar Transferred
13. Village Ajeetpur Tehsil 30.06.2023 E.C. -
Gaurihar Transferred
Group-2
1. Village Bagmau Tehsil 06.04.2023 E.C. -
Lavkush Nagar Transferred
2. Village Sura Tehsil Rajnagar 06.04.2023 E.C. -
Transferred
10
3. Village Digauni Tehsil 01.05.2023 E.C. -
Rajnagar Transferred
4. Village Tila Tehsil Nowgong 01.05.2023 E.C. -
Transferred
5. Village Alipur Tehsil 06.04.2023 E.C. -
Nowgong Transferred
6. Village Lasgarya Tehsil 03.05.2023 E.C. -
Chandla Transferred
7. Village Banjari Tehsil 03.05.2023 E.C. -
Chandla Transferred
8. Village Harrai Tehsil 23.05.2023 E.C. -
Chandla Transferred
9. Village Baghari Tehsil 23.05.2023 E.C. -
Chandla Transferred
10. Village Surajpur Tehsil 30.06.2023 E.C. -
Chandla Transferred
11. Village Hinauta Tehsil 30.06.2023 E.C. -
Chandla Transferred
12. Village Kurela Tehsil 30.06.2023 E.C. -
Rajnagar Transferred
13. Village Morra Kurela Tehsil 30.06.2023 E.C. -
Transferred
5. In District Datia total 24 sand mining blocks EC transfer proposal were accepted, out of these 24 transfer proposals of District Datia in 4 sand mining blocks 5 years validity period is completed, the answering respondent No.3 is reviewing and examining the issue and will take appropriate action in this regard. The environmental clearance and details of Sand Mining Block of District Datia are given in tabular form in Annexure RR-1/3 is as follows :-
,u-th-Vh- izdj.k Ø- vks-,-38@2022 dh tkudkjh S.No. The. Village/Mine Name, Khasra No. Date of EC Fresh EC/ Rejected due to Validity completion of 5 years 1 2 3 4 5
1. Hkk.Msj lkyksu&, 1 01-06-2023 EC --
Transferred
2. Hkk.Msj ljlkbZ 3603]263]3635 19-12-2022 EC --
Transferred
3. Hkk.Msj cM+kSudyka&Mh 551 19-02-2022 - Rejected due to completion of 5 years
4. Hkk.Msj datksyh 1 09-05-2023 EC --
Transferred
5. Hkk.Msj :gsjk 765]2222 09-05-2023 EC --
Transferred
6. Hkk.Msj eM+h[ksMk 1 04-03-2023 EC --
Transferred
7. Hkk.Msj ejlSuh[kqnZ 1 3006-2023 EC --
Transferred
8. Hkk.Msj clbZeyd 292]295]296 27-02-2023 EC --
Transferred
9. Hkk.Msj Mksxjiqj 232 30-06-2023 EC --
Transferred
10. Hkk.Msj vthriqjk 1 15-04-2023 EC --11
Transferred
11. Hkk.Msj vthriqjk 514 17-06-2023 EC --
Transferred
12. Hkk.Msj dqrksyh 1@1 30-06-2023 EC --
Transferred
13. Hkk.Msj cSjN 1048 19-12-2022 EC --
Transferred
14. Hkk.Msj fcNjsVk 454@1] 20-01-2023 EC --
413@1 feu Transferred
1@2
15. Hkk.Msj fcNksna uk 1282 20-06-2023 EC --
Transferred
16. Hkk.Msj vLVksV 587, 646, 04-03-2022 - Rejected due to
654 completion of 5 years
17. Hkk.Msj eqLrjk 503] 596 17-03-2023 EC --
Transferred
18. Hkk.Msj lysrjk 814 27-02-2023 EC --
Transferred
19. Hkk.Msj f[kfj;k>kalh 1 19-12-2022 EC --
Transferred
20. Hkk.Msj /keuk 935 27-02-2023 EC --
Transferred
21. Hkk.Msj tjk 117 19-02-2023 EC --
Transferred
22. Hkk.Msj datksyh 138 30-09-2023 EC --
Transferred
23. Hkk.Msj Hkhdeiqjk&ch 278 19-02-2022 - Rejected due to
completion of 5 years
nfr;k ftys dh jsr [knkuksa dh lwph fuesa dyLVj gksus ls bZ-lh- izkIr ugha gks ldhA izi= & 2 Ø- ftyk rglhy xzke [kljk Øekad jdok ¼gS0½
1. nfr;k nfr;k cM+kSudyka&bZ 551 24-094
2. nfr;k nfr;k Hkhdeiqjk&, 278 15-000
3. nfr;k nfr;k clbZeyd 1 4-980
4. nfr;k nfr;k cM+kSudyka&, 173]174 23-000
5. nfr;k nfr;k eM+h[ksMk+ 122 21-100
6. nfr;k nfr;k cq<sjk 31 4-940
7. nfr;k nfr;k [kejkSyh&, 825 15-800
6. As far as Districts Dewas & Harda are concerned in both the Districts old agreements for mining are still subsisting, In Deivas District and Harda District all such ECs have already completed the validity period of 5 years and further period of extension granted by MoEr due to Covid-19 crisis therefore, the answering respondents are also reviewing and examining the issue and will take appropriate action in this regard. The environmental clearance and details of Sand Mining Block of District Dewas & Harda are given in tabular form in Annexure RR-1/4 is as follows :-12
DEWAS SAND MINES LIST SR NAME OF MINES DATE OF FRESH/TRANSFER REJECTED NO. EC DUE TO VALIDITY COMPLETION OF 5 YEARS PERIOD
1. Village Peerpadlya, 19.10.2020 Transfer No Tehsile Sonkacch
2. Village Chichli, Tehsile 05.03.2020 Transfer No Khategaon
3. Village Nemavar-II, 16.10.2020 Transfer No Tehsile Khategaon
4. Village Bhanjakhedi-I, 14.08.2018 Transfer No Tehsile Khategaon
5. Village Nemavar-V, 12.03.2020 Transfer No Tehsile Khategaon
6. Village Kundgaon-I, 12.03.2020 Transfer No Tehsile Khategaon
7. Village Daiyat, Tehsile 19.10.2020 Transfer No Khategaon
8. Village Kundgaon-III, 12.03.2020 Transfer No Tehsile Khategaon
9. Village Kundgaon-II, 12.03.2020 Transfer No Tehsile Khategaon
10. Village Bhanjakhedi-II, 14.08.2018 Transfer No Tehsile Khategaon
11. Village Pipalneriya, 06.11.2016 Transfer No Tehsile Khategaon
12. Village Gajanpur-V, 05.03.2020 Transfer No Tehsile Khategaon
13. Village Bijalgaon, Tehsile 05.03.2020 Transfer No Khategaon
14. Village Gajanpur-IV, 12.03.2020 Transfer No Tehsile Khategaon
15. Village Kundgaon-IV, 12.03.2020 Transfer No Tehsile Khategaon
16. Village Bhanjakhedi NA Inactive-Not No Mirzapur 2, Tehsile Transferred Khategaon
17. Village Rablas (Rijhi), NA Inactive-Not No Tehsile Khategaon Transferred
18. Village Melepipaliya, NA Inactive-Not No Tehsile Khategaon Transferred
19. Village Karondmafi, NA Inactive-Not No Tehsile Khategaon Transferred
20. Village Bijalgaon 2, NA Inactive-Not No Tehsile Khategaon Transferred
21. Village Chichli, Tehsile NA Inactive-Not No Khategaon Transferred
22. Village Surjana NA Inactive-Not No Peerpadaliya, Tehsile Transferred Khategaon
23. Village Patadiyataj, NA Inactive-Not No Tehsile Sonkacch Transferred
24. Village Kalukhedi NA Inactive-Not No (Inabad), Tehsile Transferred 13 Sonkacch
25. Village Jaleria (Inabad), NA Inactive-Not No Tehsile Sonkacch Transferred
26. Village Jivajigarh, Tehsile NA Inactive-Not No Tongkhurd Transferred
27. Village Chaubaridhara-A, NA Inactive-Not No Tehsile Sonkacch Transferred
28. Village Chaubaridhara-B, NA Inactive-Not No Tehsile Sonkacch Transferred Mining Department Harda S.N. Name of Mine Freshes/Transfe Rejected due Cluster Issue Date Gram/Tehsil rred EC to completatio n of 5 Years
1. Malpon- Transferred - - 2971/04.08.2016 andiya
2. Chipaner Transferred - - 6999/31.10.2015 Timami
3. Golamal-A- Transferred - - 1855/06.06.2016 Handiya
4. Uchan- Transferred - - 5420/02.03.2017 Handiya
5. Handiya- Transferred - - 7007/31.10.2015 Handiya
6. Lachora- Transferred - - 5072/23.01.2017 Timami
7. Golamal-B- Transferred - - 93/03.05.2016 Handiya
8. Segaon- Transferred - - 2213/27.06.2016 Handiya
9. Manoharpura- Transferred - - 1967/14.06.2016 Handiya
7. In District Sehore, 16 fresh ECs are issued by MPSDIAA and there are 12 cluster proposals which are pending for examination before SEAC situated at Sehore District, as far as the validity of 04 transferred ECs are concerned the answering respondent No.3 is reviewing and examining the issue jointly with the Mineral Resources Department and will take appropriate action in this regard. The environmental clearance and details of Sand Mining Block of District Sehore are given in tabular form in Annexure RR-1/6 is as follows :-14
SEHORE S. No. Name of Mine Date of E.C. Fresh E.C/ Rejected Due Validity Transferred to E.C. Completion of 5 years period
1. Village Badgaow 3 Tehsil 01.02.2024 Transfer E.C. -
Nasrullaganj
2. Village Badgaow 1 Tehsil 09.03.2023 Transfer E.C. -
Budni
3. Village Somalwadha Tehsil 01.07.2022 Transfer E.C. -
Budni
4. Village Sardarnagar Tehsil 14.01.2022 Transfer E.C. -
Budni
5. Village Jahajpura 3 Tehsil 18.01.2025 Transfer E.C. -
Rehti
6. Village Mahukala Tehsil 22.02.2021 Transfer E.C. -
Budni
7. Village Janwasa-1 Tehsil 24.02.2026 Fresh E.C. -
Budni
8. Village Janwasa-2 Tehsil 18.02.2026 Fresh E.C. -
Budni
9. Village Joshipur Tehsil 05.04.2026 Fresh E.C. -
Budni
10. Village Shahganj Tehsil 18.02.2026 Fresh E.C. - Budni
11. Village Ambajadeed-1 18.02.2026 Fresh E.C. - Tehsil Nasrullaganj
12. Village Ambajadeed-2 14.03.2026 Fresh E.C. - Tehsil Nasrullaganj
13. Village Ambajadeed-3 18.02.2026 Fresh E.C. - Tehsil Nasrullaganj
14. Village Badhgaow -1 18.02.2026 Fresh E.C. - Tehsil Nasrullaganj
15. Village Badhgaow -2 18.02.2026 Fresh E.C. - Tehsil Nasrullaganj
16. Village Dimawar Tehsil 18.02.2026 Fresh E.C. - Nasrullaganj
17. Village Babri-1 Tehsil Rehti 18.02.2026 Fresh E.C. -
18. Village Babri-2 Tehsil Rehti 18.02.2026 Fresh E.C. -
19. Village Jahajpura-1 Tehsil 18.02.2026 Fresh E.C. - Rehti
20. Village Jahajpura-2 Tehsil 18.02.2026 Fresh E.C. - Rehti
15. Respondent no. 3 MPSEIAA has submitted the reply as follows :-
―3. The Mining block having an EC which has completed the validity period of 5 years the proposal for transfer is duly rejected by MPSEIAA even in District Raisen 08 such proposal for EC transfer are rejected due to completion of the validity period of 5 years and 01 15 proposal for EC transfer is rejected due to environmental sensitivity therefore, out of 22 proposal for EC transferes only 13 ECs are transferred at present in Raisen District.
4. Similarly, one mining block in District Chhatarpur of Village Parei Tehsil Gaurihar is rejected by MPSEIAA due to completion of the validity period of 5 years and for District Chhatarpur out of 26 EC transfer proposal 25 EC are transferred by MPSEIAA.
5. In District Datia total 24 sand mining blocks EC transfer proposal were accepted, out of these 24 transfer proposal of District Datia in 4 sand mining blocks 5 years validity period is completed, the answering respondent No.3 is reviewing and examining the issue and will take appropriate action in this regard.
6. As far as Districts Dewas & Harda are concerned in these Districts old agreements for mining are still subsisting. In Dewas District and Harda District all such ECs have already completed the validity period of 5 years and further period of extension granted by MoEF due to Covid-19 crisis therefore, the answering respondent No.3 is reviewing and examining the issue jointly with the Mineral Resources Department and will take appropriate action in this regard.
7. In District Sehore, 16 fresh ECs are issued by MPSEIAA, and there are 12 cluster mining proposal situated at Sehore District which are pending for examination before SEAC, as far as the validity of 04 transferred ECs are concerned the answering respondent No.3 is reviewing and examination the issue jointly with the Mineral Resources Department and will take appropriate action in this regard.
8. The MPSEIAA respondent no. 3 in its 717th meeting dated 08/04/2022 has taken a policy decision in furtherance to the direction issued by Hon'ble Tribunal and has issued directions to all the District collectors of Madhya Pradesh that the quantity of mineable mineral shall be permitted according to the tender documents, approval mining plan, DSR, EC and the earlier production capacity mentioned in the EC whichever is lowest, therefore, the apprehension of applicant without any cogent documentary evidence is misconceived, the applicant has filed the present application on the basis of the assumptions and presumptions which have no evidentiary value in the eyes of law therefore, the application deserves to be dismissed on the threshold.‖
16. Copy of the order issued from the competent authority with regard to the approval of the DSR relating to the district Raisen dated 23.05.2022 has been 16 annexed with the reply. Report prepared by the competent authority with regard to the DSR is also on record.
17. Respondent no. 8 has filed a reply with the facts that no mining operation has taken place in district Raisen since about April 2021 as the mining contract of the earlier contractors was cancelled by the State and that mining contract was awarded after following the required procedure which is as follows :-
Sl Dates Particulars
No.
1 07.10.2021 As per the prevailing guidelines, the Agreement
Consultant started working in respect of preparation of New DSR report.
2 26.11.2021 Collector, Raisen published a e-tender notice calling of bids for sand mining in respect to the areas situated at 9 villages, Tehsil- Bareli and 6 villages, Tehsil- Udaipura, District-Raisen, M.P. 3 05.01.2022 The Technical bid for the aforesaid tender was opened.
4 10.01.2022 The Financial bid for the aforesaid tender was opened and the highest successful bidder was accepted. Copy of Tender Summary Report is annexed herewith and marked as Annexure R-8/2.
5 21.01.2022 Collector, Raisen issued the Letter of Intent to the successful bidder in the tendering process. Copy of the Letter Of Intent issued by the Collector, Raisen is annexed herewith and marked as Annexure R- 8/3.
6 February, The proposed DSR report was made available in the public domain for 30 days by the Collector, Raisen as per 2022 the guidelines framed by this Tribunal and Hon'ble Supreme Court of India. A sub-committee was formed to resolve the objections to the proposed DSR report. 7 24.02.2022 A meeting was held by SEAC wherein various directions were passed. Pursuant to this, the Final DSR was presented before the SEIAA (M.P.) by the Collector, Raisen for its final approval in terms of the meeting convened by SEAC.
8 30.03.2022 Mineral Assessment Report was prepared in accordance to the directions given by this Tribunal.
9 23.05.2022 SEIAA (M.P.) approved the DSR report for sand mining in the Raisen District in accordance with the guidelines and parameters set out by this Tribunal and Hon'ble Supreme Court of India.
1718. It is further submitted that respondent no. 8 has not carried out any mining operation in the absence of valid EC or in the absence of approval from any competent authority.
19. Reply of the respondent no. 9 is with the facts that the DSR of District Raisen was prepared in accordance with the procedure and has been approved by the competent authority vide order dated 23.05.2022 and after that Collector Raisen approved to carry out the mining activities by the successful bidders and mining ETP porter was started. Further argument of the respondent nos.
8 & 9 are that by way of IA the applicant cannot enlarge the scope of the original application and any relief which is inconsistent with the relief sought in the original application is not maintainable.
20. The Ministry of Environment, Forest and Climate Change and issued monitoring guidelines for sand mining in January, 2020. The relevant paras are quoted below:-
a) ―Parts of the river reach that experience deposition or aggradation shall be identified. The Leaseholder/ Environmental Clearance holder may be allowed to extract the sand and gravel deposit in these locations to manage aggradation problem.
b) The distance between sites for sand and gravel mining shall depend on the replenishment rate of the river. Sediment rating curve for the potential sites shall be developed and checked against the extracted volumes of sand and gravel.
c) Sand and gravel may be extracted across the entire active channel during the dry season.
d) Abandoned stream channels on the terrace and inactive floodplains be preferred rather than active channels and their deltas and flood plains. The stream should not be diverted to form the inactive channel.
e) Layers of sand and gravel which could be removed from the river bed shall depend on the width of the river and replenishment rate of the river.18
f) Sand and gravel shall not be allowed to be extracted where erosion may occur, such as at the concave bank.
g) Segments of the braided river system should be used preferably falling within the lateral migration area of the river regime that enhances the feasibility of sediment replenishment.
h) Sand and gravel shall not be extracted up to a distance of 1 kilometre (1 km) from major bridges and highways on both sides, or five times (5x) of the span
(x) of a bridge/public civil structure (including water intake points) on up-stream side and ten times (10x) the span of such bridge on down-stream side, subjected to a minimum of 250 meters on the upstream side and 500 meters on the downstream side.
i) The sediment sampling should include the bed material and bed material load before, during and after the extraction period. Develop a sediment rating curve at the upstream end of the potential reach using the surveyed cross-section. Using the historical or gauged flow rating curve, determine the suitable period of high flow that can replenish the extracted volume. Calculate the extraction volume based on the sediment rating curve and high flow period after determining the allowable mining depth.
j) Sand and gravel could be extracted from the downstream of the sand bar at river bends. Retaining the upstream one to two- thirds of the bar and riparian vegetation is accepted as a method to promote channel stability.
k) The flood discharge capacity of the river could be maintained in areas where there is a significant flood hazard to existing structures or infrastructure. Sand and gravel mining may be allowed to maintain the natural flow capacity based on surveyed cross-
section history. Alternatively, off-channel or floodplain extraction is recommended to allow rivers to replenish the quantity taken out during mining.
19l) The Piedmont Zone (Bhabhar area) particularly in the Himalayan foothills, where riverbed material is mined, this sandy-gravelly track constitutes excellent conduits and holds the greater potential for groundwater recharge. Mining in such areas should be preferred in locations selected away from the channel bank stretches.
m) Mining depth should be restricted to 3 meters and distance from the bank should be ¼th or river width and should not be less than 7.5 meters.
n) The borrow area should preferably be located on the riverside of the proposed embankment because they get silted in the course of time. For low embankment, less than 6 m in height, borrow area should not be selected within 25 m from the toe/heel of the embankment. In the case of the higher embankment, the distance should not be less than 50 m. In order to obviate the development of flow parallels to the embankment, crossbars of width eight times the depth of borrow pits spaced 50 to 60 meter center-to-center should be left in the borrow pits.
o) Demarcation of mining area with pillars and geo- referencing should be done prior to the start of mining.
p) A buffer distance /un-mined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.
q) A buffer distance /unmined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.
r) River bed sand mining shall be restricted within the central 3/4th width of the river/rivulet or 7.5 meters (inward) from river banks but up to 10% of the width of the river, as the case may be and decided by regulatory authority while granting environmental 20 clearance in consultation with irrigation department. Regulating authority while regulating the zone of river bed mining shall ensure that the objective to minimize the effects of riverbank erosion and consequential channel migration are achieved to the extent possible. In general, the area for removal of minerals shall not exceed 60% of the mine lease area, and any deviation or relaxation in this regard shall be adequately supported by the scientific report.
s) Mining Plan for the mining leases (non-government) on agricultural fields/Patta land shall only be approved if there is a possibility of replenishment of the mineral or when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market.‖ 4.1.1 Preparation of District Survey Report.
"Sustainable Sand Mining Guidelines, 2016‖ issued by MoEF&CC requires preparation of District Survey Report (DSR), which is an important initial step before grant of mining lease/LoI. The guidelines emphasize detailed procedure to be followed for the purpose of identification of areas of aggradation/ deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited. Calculation of annual rate of replenishment, allowing time for replenishment after mining, identification of ways of scientific and systematic mining; identifying measures for protection of environment and ecology and determining measures for protection of bank erosion, benchmark (BM) with respect to mean Sea Level (MSL) should be made essential in mining channel reaches (MCR) below which no mining shall be allowed.21
The NGT in its Judgment dated 08.12.2017 in the matter of Anjani Kumar vs State of Uttar Pradesh & Ors. inter- alia mentioned the following regarding sand mining in the Uttar Pradesh:
―It states that the main object of preparation of District Survey Report is to ensure identification of areas of aggradation/deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining area. Thus, the environmental protection requires a strictly regulated mining in terms of area, quantity as well as most importantly replenishment thereof.‖ ―The data collection and declared for preparation of DSR shall take precedence over other data and would form the foundation for providing mining lease in terms of Appendix- x to the Notification dated 15th January 2016 must be prepared by the statutory authority stated therein i.e. DEIAA prior to awarding of permits for carrying on mining activity in any part of the State of UP.‖ The Hon'ble High Court of Jharkhand at Ranchi in its orders dated the 11th April, 2018 and 19th June, 2018 in W.P. (PIL) No. 1806 of 2015, in the matter of Court on its Own Motion Versus the State of Jharkhand & Others with W.P. (PIL) No. 290 of 2013, in the matter of Hemant Kumar Shilkarwar Versus the State of Jharkhand & Others, has inter-alia directed the preparation of District Survey Report for minor minerals other than Sand and Bajri or delegation of the powers for preparation of format of District Survey Report of minor minerals other than sand and Bajri to the State Government and/or District Environment Impact Assessment Authority and District Expert Appraisal Committee. To comply 22 with the direction of Hon'ble High Court the Ministry has issued S.O. 3611(E) dated 25.07.2018, wherein, the procedure of preparation of DSR is mentioned. But it is felt that still there is other information that needs to be reported in DSR to make it a comprehensive DSR.
Therefore, preparation of District Survey Report is a very important step and sustainable sand mining in any part of the country will depends on the quality of District Survey Report.
Considering the importance of district survey report, the Ministry of Environment Forest and climate change, after consultation with experts dealing with mining-related matters, formulated the following guidelines for the preparation of comprehensive District Survey Report for sand mining:
a) District Survey Report for sand mining shall be prepared before the auction/e-auction/grant of the mining lease/Letter of Intent (LoI) by Mining department or department dealing the mining activity in respective states.
b) The first step is to develop the inventory of the River Bed Material and Other sand sources in the District. In order to make the inventory of River Bed Material, a detailed survey of the district needs to be carried out, to identify the source of River Bed Material and alternative source of sand (M- Sand). The source will include rivers, de-
siltation of reservoir/dams, Patta lands/ Khatedari Land, M-sand etc. The revenue department of Kerala already conducted river mapping and sand auditing of around 20 rivers of Kerala which is a good example wherein the profile of rivers was created at regular intervals and aggradation/deposition was identified along with water level. In the same study, benchmarks were also created at a 23 prominent location at regular interval for future surveying. Such study helps the mining departments to identify the source of sand.
Thus, it is proposed that for preparation of district survey report, the auditing of rivers needs to be carried out. There is already a provision under MMDR Act 2015 for National Mineral Exploration Trust (MET) wherein a 2% of royalty amount to be deposited in the trust. This fund is used for mineral exploration in the country. The Sand Auditing is also a sort of identification of mineral and State Government may request Central Govt. for proving funds for river auditing. The Central Govt. (Ministry of Mines) may also explore the possibilities for providing the funds for river auditing. The other option is that State Govt. may conduct such studies by its own fund and the same may be recovered from the leaseholders to whom the mining lease will be allocated.
c) District Survey Report is to be prepared in such a way that it not only identifies the mineral-bearing area but also define the mining and no mining zones considering various environmental and social factors.
d) Identification of the source of Sand & M-Sand. The sources may be from Rivers, Lakes, Ponds, Dams, De- silting locations, Patta land/Khtedari lands. The details in case of Rivers such as [name, length of river, type (Perennial or Non-Perennial ), Villages, Tehsil, District], in case of Lakes, Ponds, Dams, De- silting locations [Name, owned/maintained by (State Govt./PSU), area, Villages, Tehsil, District] in case of Patta land/Khtedari lands [ Owner Name, Sy No, Area, Agricultural/Non-Agricultural, Villages, Tehsil, District], in case of M-Sand Plant [Owner Name, Sy No, Area, Quantity/Annum, Villages, Tehsil, District], needs to be recorded as per format given in Annexure-I.
e) Defining the sources of Sand/M-Sand in the district 24 is the next step for identification of the potential area of deposition/aggradation wherein mining lease could be granted. Detailed survey needs to be carried out for quantification of minerals. The purpose of mining in the river bed is for channelization of rivers so as to avoid the possibility of flooding and to maintain the flow of the rivers. For this, the entire river stretch needs to be surveyed and original ground level (OGL) to be recorded and area of aggradation/deposition needs to be ascertained by comparing the level difference between the outside riverbed OGL and water level. Once the area of aggradation/deposition are identified, then the quantity of River Bed Material available needs to be calculated. The next step is channelization of the river bed and for this central ¾th part of the river, width needs to be identified on a map. Out of the ¾th part area, where there is a deposition/aggradation of the material needs to be identified. The remaining ¼th area needs to be kept as no mining zone for the protection of banks. The specific gravity of the material also needs to be ascertained by analyzing the sample from a NABL accredited lab. Thus, the quantity of material available in metric ton needs to be calculated for mining and no mining zone.
Note: As physical survey with conventional method is time- consuming, use of unmanned aerial vehicle (UAV) may be explored to carry out the survey and finalizing the original ground level and for developing a 3D model of the area.
f) The permanent boundary pillars need to be erected after identification of an area of aggradation and deposition outside the bank of the river at a safe location for future surveying. The distance between boundary pillars on each side of the bank shall not be more than 100 meters.
g) Identifying the mining and no mining zone shall follow with defining the area of sensitivity by ascertaining the distance of the mining area from 25 the protected area, forest, bridges, important structures, habitation etc. and based on the sensitivity the area needs to be defined in sensitive and non-sensitive area.
h) Demand and supply of the Riverbed Material through market survey needs to be carried out. In addition to this future demand for the next 5 years also needs to be considered.
i) It is suggested that as far as possible the sensitive areas should be avoided for mining, unless local safety condition arises. Such deviation shall be temporary & shall not be a permanent feature.
j) The final area selected for the mining should be then divided into mining lease as per the requirement of State Government. It is suggested the mining lease area should be so selected as to cover the entire deposition area. Dividing a large area of deposition/aggradation into smaller mining leases should be avoided as it leads to loss of mineral and indirectly promote illegal mining.
k) Cluster situation shall be examined. A cluster is formed when one mining lease of homogenous mineral is within 500 meters of the other mining lease. In order to reduce the cluster formation mining lease size should be defined in such a way that distance between any two clusters preferably should not be less than 2.5 Km. Mining lease should be defined in such a way that the total area of the mining leases in a cluster should not be more than 10 Ha.
l) The number of a contiguous cluster needs to be ascertained. Contiguous cluster is formed when one cluster is at a distance of 2.5 Km from the other cluster.
m) The mining outside the riverbed on Patta land/Khatedari land be granted when there is possibility of replenishment of material. In case, there is no replenishment then mining lease shall 26 only be granted when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects, mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market. Cluster situation as mentioned in para k above is also applicable for the mining in Patta land/Khatedari land.
n) The State Government should define the transportation route from the mining lease considering the maximum production from the mines as at this stage the size of mining leases, their location, the quantity of mineral that can be mined safely etc. is available with the State Government. It is suggested that the transportation route should be selected in such a way that the movement of trucks/tippers/tractors from the villages having habitation should be avoided. The transportation route so selected should be verified by the State Government for its carrying capacity.
o) Potential site for mining having its impact on the forest, protected area, habitation, bridges etc, shall be avoided. For this, a sub-divisional committee may be formed which after the site visit shall decide its suitability for mining. The list of mining lease after the recommendation of the Committee needs to be defined in the following format given in as Annexure-II. The Sub-Divisional Committee after the site visit shall make a recommendation on the site for its suitability of mining and also records the reason for selecting the mining lease in the Patta land. The details regarding cluster and contiguous cluster needs to be provided as in Annexure-III.
p) Public consultation-The Comments of the various stakeholders may be sought on the list of mining lease to be auctioned. The State Government shall give an advertisement in the local and national newspaper for seeking comments of the general 27 public on the list of mining lease included in the DSR. The DSR should be placed in the public domain for at least one month from the date of publication of the advertisement for obtaining comments of the general public. The comments so received shall be placed before the sub-divisional committee for active consideration. The final list of sand mining areas [leases to be granted on riverbed & Patta land/Khatedari land, desiltation location (ponds/lakes/dams), M-Sand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per Annexure V. The details regarding cluster and contiguous cluster needs to be provided in Annexure-VI.
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 excessive 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 in-stream biota and riparian habitats. It is assumed that the riparian habitat disturbance is minimum if the replenishment 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 28 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.
5.2 Methodology for Replenishment Study The replenishment estimation is based on a theoretical empirical formula with the estimation of bedload transport comprising of analytical models to calculate the replenishment estimation. The iso-pluvial maps of IMD can be used for estimation of rainfall. Catchment yield is computed using different standard empirical formulas relevant to the geographical and channel attributes. eg. Strange's Monsoon runoff curves for runoff coefficient). Peak flood discharge for the study area can be calculated by using Dickens, Jarvis and Rational formula at 25, 50 and 100 years return period. The estimation of bed load transport using Ackers and White Equation or similar can be made. A simulation model is used with basic data generated from the field in the pre-study and post-study period (preferably pre- monsoon and post- monsoon) to estimate the volume of replenished material. The particle size distribution and bulk density of the deposited material are required to be assessed from a NABL recognized laboratory. Considering the bulk density and the volume, the estimation of replenishment in weight will be calculated after considering safeguards and 29 stability of the slopes and riverine regime. Some of the common methods used for field data acquisition for replenishment study 5.2.1 Physical survey of the field by the conventional method i. The conventional survey technical using DGPS and other survey tools are used to define the topography, contours and offsets of the lease area. The survey should clearly depict the important attributes of the stretch of the river and its nearby important civil and other feature of importance. Such information will provide the eligible spatial area for mining. The contour and the elevation benchmarks will provide the baseline data for assessing the pre and post-study period scenario.
ii. Physical benchmarks are to be fixed at appropriate intervals (preferable 1 in 30 m) and the Reduced Level (RL) shall be validated from a nearby standard RL. These RL should be engraved on a steel plate (Bench Plate) and shall be fixed and placed at locations which are free from any damages and are available in pre and post-study period. The bench plates shall be available for use during the mining period as reference for all mining activity. Reference pillar may also be used in place of Bench Plates with visible and readable demarcation on the ground as common reference points to control the topographic survey and mining activity.
iii. Baseline data on elevation status for a grid of 10 m x 10 m is preferred to have accuracy in the assessment. It is expected that two consecutive cross-sections in longitudinal and lateral direction should not be more than 10-meter distance apart, however, the regulatory authority may fix these intervals depending on the geographical and site-specific conditions, only and after providing the scientific reason for such deviation.
iv. The changes observed in the elevation in per and post scenario at each node should be depicted in graphical forms with an appropriate scale to estimate the area of deposition and erosion. These graphical presentations 30 should depict the active channel regime and the flow bed elevation with other important features required to be considered for estimation of the mining area. The area of deposition and erosion shall be calculated for each cross- section after giving due regard to the stability and safety of active channel banks, and other features of importance. The elevation level shall be in reference to the nearest bench-plates established for the purpose.
v. The levels (MSL & RL) of the corner point of each grid should be identifiable and safety barriers (Non-Mining) demarcated as restricted in consensus with Mineral Concession Rules of respective State, and the provision mentioned in this Sustainable Sand Mining Management Guidelines.
vi. A clear identification is required to be highlighted between grids under mineable and grids under the non- mineable area. These baseline data (pre and post) be subjected to stimulation with the help of data mine software to derive at the replenishment area and corresponding volume and estimated weight.
vii. The database should be structured in a tabulated form clearly depicting the nomenclature of the section lines, latitude and longitude of the starting point, chain-age and respective levels of all the points taken on that section line.
viii. Net area shall be derived after the summation of the area of deposition minus area of erosion for each cross- section. The volume will be estimated by multiplying the distance between two cross-sections with the average of net area of these two consecutive cross-sections.
ix. One sample per 900 square meters (30 m x 30 m) shall be preferred sample density for assessment of bulk density for estimation of deposition rate. Care should be taken that the sample for assessment of bulk density is taken from the deposition zone and not from erosion. However, depending on the site condition, river morphology and geographical condition, sample density may be adjusted. Reason for such deviation shall be 31 appropriately highlighted in the report with supporting scientific data.
5.2.4 Replenishment study shall have the details of List of instruments List of software Establishment of Benchmark by putting No. of pillar points and various Ground Control Points (GCP) at the site.
Ground Control Points (GCP) Collection: - Various GCPs were observed by using DGPS for Permanent Benchmarks and for control points.
The summary of the elevation data from each section's profile based on the post-monsoon the survey should have mentioned in the table form.
The detail of post-monsoon survey data in the tabular form shall be The detailed comparison of both pre-monsoon and post- monsoon elevation data shall be attached Cross-sectional depiction of deposition and erosion for each section in pre and post-deposition season shall be given supported by relevant field study data and plan.
21. The adverse effect of sand mining without a proper mine plan was indicated by the Hon‟ble Supreme Court in Deepak Kumar and others v. State of Haryana and others [(2012) 4 SCC 629] ―9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious 32 impacts on both instream biota and the associated riparian habitat. The demand for sand continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand.
25. Quarrying of river sand, it is true, is an important economic activity in the country with river sand forming a crucial raw material for the infrastructural development and for the construction industry but excessive instream sand and gravel mining causes the degradation of rivers. Instream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes the deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material as already mentioned from within or near a streambed has a direct impact on the stream's physical habitat characteristics.
Conditions imposed by the Environment Authority
25. The environmental clearance issued for mining of sand contained the following mandatory conditions:-
i. The Licensee must use minimum number of poclains and it should not be more than two in the project site.
ii. The District Administration should assess the site for Environmental impact at the end of first year to permit the continuation of the operation.
iii. The Annual replenishment report certified by the authorised agency must be submitted to the prescribed authority. In case, the replenishment is low, the mining activity/production levels shall accordingly be decreased/stopped.
iv. There shall be no quarrying of sand in any river bed 33 or adjoining area or any other area which is located within 500 m radial distances from the location of any bridge, water supply system, infiltration well or pumping installation.
v. The ultimate working depth shall be 1 m from the present natural river bed level and the thickness of the sand available shall be more than 3 m in the proposed quarry site.
vi. The sand quarrying shall not be carried out below the ground water table under any circumstances. In case, the ground water table occurs within the permitted depth at 1 meter, quarrying operation shall be stopped immediately. The sand mining should not disturb in any way the turbidity, velocity and flow pattern of the river water.
vii. The mining activity shall be monitored by the Taluk level Force once in a month by conducting physical verification.
viii. After closure of the mining, the licensee shall immediately remove all the sheds put up in the quarry and all the equipments used for operation of sand quarry. The roads/pathways shall be levelled to let the river resume its normal course without any artificial obstruction to the extent possible.
ix. The mined out pits to be backfilled where warranted and area should be suitably landscaped to prevent environmental degradation.
32. The natural resources are valuable assets of the State. It is the primary duty of the State to conserve the natural resources for our future generation. The citizens must be in a position to enjoy the resources without causing damage to the environment and the ecology.
There must be an institutional framework and enforcement mechanism to prevent illegal and excess quarrying.
33. The mining should be undertaken by the State without any adverse impact on the environment. The State alone is responsible for this sorry state of affairs. There is no proper mechanism to check the illegal quarrying and the excess sand mining. The authorities who are given the mandate to operate the sand quarry are not at all concerned with the environment and ecology. They are conducting mining activities in collusion with the mining mafia and looting the natural wealth.
3434. The River sand is an essential raw material for construction activity. The cost of construction nowadays depends upon very much on the cost of sand. The State for supply of sand to the people at affordable rate ought to have quarried the River sand judiciously and in compliance with the environmental norms and without causing destruction of Rivers. There is no dispute that depletion of sand in the stream bed would result in deepening of rivers and it would have a cascading effect on the environment. Therefore, a balance has to be struck taking into account the need to preserve the ecology and the need for quarrying River Sand for the economic development of the State.
22. The Hon‟ble Supreme Court in M.C. Mehta vs. Kamal Nath [1997 (1) Supreme Court Cases 388] made it clear that if there is a law made by the State legislature, the Courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review:
―35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the Courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the constitution.‖
43. The quarrying operations, even in those quarries where there are shoals of sand, must be undertaken only by abiding the norms and conditions of the environmental clearance. The 35 quarry site shall be closed immediately after removing the available shoals of sand. The area and the depth of the quarry shall be in accordance with the permission granted by the environmental authorities. Such quarrying operations would be subject to the result of the Special Leave Petition pending before the Hon'ble Supreme Court in SLP No. 2831 of 2018.
45. The Government must undertake a scientific study with the help of experts to identify the mineral deposits and its exact location. The State must excavate the minerals only from the places identified by the experts and by following the conditions imposed by the environmental authorities. Interlinking roads inside the river must be removed to check the illegal mining and transportation of minerals. The levelling of roads inside the river shall be done on a phased manner and giving priority. The sand mining shall not be undertaken in respect of locations where illegal sand mining has already been carried out.
46. The State must ensure that the sand quarries would adhere to the norms regarding extent and depth. The boundary of the quarry shall be demarcated by following the procedure set-out under Clause 2 (ii) of the conditions imposed by the environmental authority.
50. The Court Commissioners have observed that clearance from the State Environment Impact Assessment Authority (SEIAA) has been routinely obtained for river sand mining without divulging the material factors like existence of Bridge, Water supply system etc. The SEIAA without conducting field inspection and cross checking the details permitted quarrying. There is no mechanism now to ascertain as to whether the conditions imposed by the SEIAA have been complied with by the licensee. This issue must be addressed by the Government and SEIAA. Before granting permission 36 for the sites, where sand is available, the SEIAA must visit the place indicated in the application for sand mining. The boundaries of the site must be shown in the mine plan and excavation must be within the boundaries. The Project Director must fix the pucca permanent pillar boundaries for excavation.
The Project Director must ensure that stones are erected at 50 metre intervals along the boundaries with the marking of Shoal height, River Bed Height and depth to be excavated. The State must streamline the entire process right from site selection to operation of quarry and supply of sand in an ecologically friendly and environmentally sustainable manner. The entire quarry sites must have CCTV. There must be IP cameras set up in all the poclains for monitoring the overloading. The State must include environmental experts from reputed Central/State Institutions preferably from Indian Institute of Technology to be part of the District Task Force. It must be the responsibility of the concerned District Collector to oversee, monitor and streamline the functioning of the sand quarrying. The Taluk and District level task force must be sensitized. The officials of the Public Works Department and others involved in the process must be given training periodically in relation to environmental and legal aspects of sand quarrying. The Government must fix liability on officials, who are violating the conditions of the clearance or permitting excess quarrying. The jurisdictional Revenue, Police, Geology and Transport department officials must be taken to task in case of illegal quarrying or transportation of sand without permission. The State Appellate Forum constituted by the order in G.O.Ms.No.27 Industries Department dated 17 February 2015 must be a vibrant body. The Government must set up a centralised control room to monitor sand quarrying operations, one at Chennai and the other at Trichy as undertaken in the affidavit. The Centralised Monitoring through CCTVs must be taken up through live streaming from the control room. There must be a Customer Care Centre to receive complaints and take action on such complaints. The 37 action taken report must be sent to the complainant and it must be available on line.‖
23. We have two things, sovereignty of the State and the doctrine of public trust. We have to make a balance between the two though the State has every authority to utilize the land but Public Trust Doctrine says that the property of the public should be utilized for the public purposes and not for the private purposes. The water bodies, lake, air and land all these are the public properties and should be made available to all for maintaining the health and environment. This Doctrine of public trust and precautionary measures was discussed in public interest litigation no. 87/2006; Bombay Environmental Action Group Vs. State of Maharashtra 2018 SCC online Bombay 2680.2019(1) Bombay CRI and it was held as follows:-
―Apex Court observed thus:
―2. The Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and saints of India lived in forests. Their preachings contained in vedas, upanishads, smritis, etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora, fauna and every species of life.‖ ― The ancient Roman Empire developed a legal theory known as the ―doctrine of the public trust‖. It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and 38 unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. 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 exploitation to satisfy the greed of a few.‖ In the case of M.C. Mehta v. Kamal Nath, in paragraph 34 and 35, the Apex Court held thus:
―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 sea-shore, running waters, airs, 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.
35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The 39 aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.‖ In the case of Fomento Resorts & Hotels Limited v. Minguel Martins 4, In paragraphs 53 to 55 and 65, the Apex Court held thus:
55. The public trust 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. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets.
Professor Joseph L. Sax in his classic article, ―The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention‖ (1970), indicates that the public 40 trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.
55. The public trust doctrine is a tool for exerting long- established public rights over short-term public rights and private gain.
Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.
65. We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems.‖ (emphasis added) 54. Public at large has a right to enjoy and have a benefit of our forests including mangroves forest. The 41 pristine glory of such forests must be protected by the State. The mangroves protect our environment. Therefore, apart from the provisions of various statutes, the doctrine of public trust which is very much applicable in India makes it obligatory duty of the State to protect and preserve mangroves.
PRECAUTIONARY PRINCIPLE
55. In the case of M.C. Mehta (Badhkal and Surajkund Lakes matter) v. Union of India, the Apex Court held thus:
―10. In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held as under:
―The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem.‖ The ―Precautionary Principle‖ has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The ―Precautionary Principle‖ makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the 42 construction activity in the close vicinity of the lakes.‖
24. Learned counsel for the respondent has argued that the application with the prayer of multiple reliefs is not maintainable and further submitted that only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A petition is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the Appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which jurisdiction is resorted to. The Court/Tribunal can of course, enforce the performance of a statutory duty by a public body, using its jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the jurisdiction of the courts/Tribunals. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In-fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the Appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide: State of Orissa v. Madan Gopal Rungta MANU/SC/0012/1951MANU/SC/0012/1951: AIR 1952 SC 12;
Saghir Ahmad and Anr. v. State of U.P. MANU/SC/0110/1954 MANU SC/0110/ 1954:AIR 1954 SC 728; Calcutta Gas Co.
(Proprietary) Ltd. v. State of West Bengal and Ors.
MANU/SC/0063/1962 MANU/SC/0063/1962:AIR1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh MANU/SC/0690/1996 MANU /SC/0690/1996:AIR 1996 SC 43 2736; and Tamilnadu Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar and Ors. MANU/SC/8375/2008 MANU/SC /8375/2008 : (2009) 2 SCC 784). A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York MANU/SC/0017/1974 MANU / SC/0017 /1974 : AIR 1974 SC 1719; and State of Rajasthan and Ors.
v. Union of India and Ors. MANU/SC/ 0370/ 1977 MANU/SC/0370/1977: AIR 1977 SC 1361). In Desh Bandhu Gupta & Co. & Ors Vs. Delhi Stock Exchange Association Ltd., AIR 1979 SC 1049, the Apex Court observed that the principle of contemporenea expositio, i.e. interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the same will not always be decisive of the question of construction. The administrative construction, i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules etc. generally should be clearly wrong before it is over-turned. Such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive.
However, it may be disregarded for cogent reasons. In a clear case of error the Court should, without hesitation refuse to follow such construction for the reason that "wrong practice does not make the law." (Vide Municipal Corporation for City of Pune & Anr. Vs. Bharat Forge Co. Ltd. & Ors., AIR 1996 SC 44 2856). In D. Stephen Joseph Vs. Union of India & Ors., (1997) 4 SCC 753, the Hon‟ble Supreme Court has held that "past practice should not be upset provided such practice conforms to the rules" but must be ignored if it is found to be de hors the rules. However, in Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr., AIR 2003 SC 3502, the Apex Court held that "the manner in which a statutory authority had understood the application of a statute would not confer any legal right upon a party unless the same finds favour with the Court of law dealing with the matter".
―Therefore, ―contemporanea exposito‖ by the State instrumentality is very useful and relevant for providing guidance to interpretation of expression used in the Rules. The administrative construction placed by the executive officers, responsible for execution of rules should be accepted and does not warrant over-turning unless found not in conformity of the Rules.‖ ―When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852;
K.P. Srinivas Vs. R.M. Premchand & Ors.,
(1994) 6 SCC 620). Thus, who seeks equity
must do equity. The legal maxim ―Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem‖, means that it is a law of nature that one should not be enriched by the loss or injury to another.‖
25. It is relevant to quote certain provisions of the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rule, 2019 which are as follows:-
45"3. Restrictions.--
The following restrictions shall be applied with regard to mineral sand,-
(1) No vehicle shall cause to be transported the mineral sand from the sanctioned quarry or storage place without prescribed transit pass.
(2) No vehicle shall cause to be transported without substantial entry in Transit Pass (as quantity of mineral, date/time of transport, time to be taken to reach to destination place, etc.).
(3) No person, except the valid contractor, shall be permitted to store mineral sand for commercial purpose or for use in commercial construction, quantity more than the quantity specified in these rules.
(4) The vehicles engaged in sand transportation without GPS or establishing of machine of equivalent technique as prescribed, shall be prohibited after the date of notification by the State Government.
(5) Extraction and removal of sand from the following area shall be prohibited as provided in sustainable sand mining guidelines, 2016 issued by Government of India,-
(a) within 200 meters from any bridge;
(b) within 200 meter upstream and downstream areas of any water supply scheme or water resources scheme;
(c) within 100 meter from edge of national highway and Railway line;
(d) within 50 meter from any canal, reservoir or building;
(e) within 50 meter from edge of state highway and 10 meters from edge of other village road;
(f) within fixed distance from any areas which has been built to control the flood;
(g) within 200 meter distance from the place of 46 cultural, religious, historical, and archaeological importance or within the distance as provided in the Act/Rule;
(h) such areas which have been declared prohibited by Collector due to environmental or other reasons: Provided that, on receipt of representation, permission to grant for mining within the limit of prohibited area may be considered, after getting NOC/Consent from the concerned administrative department.
(6) There shall be complete ban on mining, loading and storage of sand by machines from the sanctioned quarries in river Narmada. Sand mining, loading and storage from quarries having area up to 5.00 hectare situated on other rivers shall be done by the committee of local labourers and quarries having area more than 5.000 hectare, local labourers shall be given priority for sand mining, loading and storage. The use of machines for sand mining in other rivers may be given depending upon the requirement and approval in mining plan and environmental clearance.
5. (1) Demarcation of sand quarries The Collector, shall identify new sand bearing areas in rivers or on other places of the State. D.G.P.S. survey shall be carried out and its location on revenue map alongwith Latitude and Longitudes shall be marked:
Provided that the sand quarries demarcated and declared prior to the commencement of these rules, may be amended by following the same procedure as required.
(2) Declaration of sand quarries The sand quarry identified as per sub-rule (1) above shall be declared by the Collector, after making such inquiry as he deems fit, on receipt of information/application/proposal. Prior to declaring sand quarry, opinion from the concerned Gram Panchayat/Urban Body shall be obtained and for this 47 purpose a formal order shall be issued:
Provided, if no opinion/advise of the concerned Gram Panchayat/Urban Body is received within a period of 15 days, the Collector, by presuming that there is no objection, shall declare new sand quarries in non-
scheduled areas only:
Provided further that, if any objection is received from concerned Gram Panchayat/Urban Body within stipulated period, the Collector by disposing off the objections on merit shall take appropriate decision regarding declaration of quarry: Provided further that, prior to declaration of sand quarry consent/no objection of Gram Sabha shall be mandatory in scheduled areas: Provided also that, the declaration of such sand bearing areas shall not be necessary separately which are operational or have been auctioned earlier.
(3) Making of group of the sand quarry.-
(a) The Collector shall make the group of sand quarries and send proposal to the Director along with details of area, boundary, revenue map, Khasra-Panchsala, Latitude-Longitude for each quarry included in group.
(b) The group shall be constituted on the basis of geographical location and revenue boundary (Tehsil, District) as for as possible.
(c) While making the group, total area of sand quarries included in the group and approximate available quantity of sand shall be taken into consideration.
(d) The proposal of constituted group sent by the Collector shall be finalised by Director.
12. Statutory Permissions.--
The statutory permissions/formalities for each sand quarry of the group may be obtained/completed, as per rule. All the statutory permissions (e.g. Mining Plan, Environmental Clearance, Water and Air Consent etc.) required for the operation of the sand quarry shall 48 be obtained by the successful tenderer. The successful tenderer may start mining operation only after obtaining the statutory permissions as per rule
14. Excavation without statutory permission or excavation in excess quantity than permitted quantity in statutory permission, in such condition 100% cost of the excavated mineral and amount of compensation towards environmental damage shall be recoverable from the contractor. The statutory permission are as follows:-
(1) Mining Plan-
(a) The successful tenderer shall submit mining plan for approval to the Collector within a period of one month from the date of issuance of letter of intent.
The Mining Plan shall be prepared by the Recognised Qualified Person (R.Q.P.), authorised by the Director.
(b) The mining plan shall consist of the location (latitude- longitude) of the mines, quantity of mineable sand available in the sand quarry and other issues, as provided for in Madhya Pradesh Minor Mineral Rules 1996.
(c) The Collector shall approve the mining plan on the basis of recommendations of the technically qualified officer (Post Graduate Degree Holder in Geology/Applied Geology) of the department posted in the district and in case if in any district technically qualified officer is not posted, in such case concerned Regional head or Director shall approve the mining plans.
(d) The mining plan shall be prepared only on the basis of actual quantity available/estimated and all the Mining operations shall be carried-out in accordance with the approved mining plan. (2) Environmental Clearance- The successful tenderer after getting approved mining plan, within a maximum period of 15 days, shall submit application before the competent authority to obtain Environmental Clearance in accordance with notification issued by Ministry of Environment, 49 Forest and Climate Changes.
(3) Water and Air Consent- The successful tenderer after getting environmental clearance within a maximum period of 7 days, shall submit application before the competent authority for obtaining the consent under the Water (Prevention of pollution and control) Act, 1974 and the Air (Prevention of Pollution and Control) Act 1981.
(4) Permissible Quantity-The mining shall be permitted up to mineable quantity fixed in mining plan, environmental clearance, water and air consent (whichever is less).
(5) The annual contract amount shall not be reduced in any case if there is reduction in mineable quantity in approved mining plan, environmental clearance, water and air Consent.
(6) All the above statuary permissions shall be obtained within a time limit. The corporation shall supervise for the permissions being taken for each group by the group contractor. In case of any delay, carelessness or lack of interest proceedings for cancellation of letter of intent may be initiated.
14. Commencement of the Mining Operations.--
(1) The successful tenderer, after execution of agreement and registration but prior to commencement of the mining operation, shall inform to the Collector about such intention. After Commencement of the mining operation the objection regarding available quantity of mineral in quarry, approach road and other related issues shall not be acceptable.
(2) On the condition of depositing the contract amount of the group on the prescribed date as mentioned in the agreement, the mining operation of the quarry may be started as and when the statutory permission is received. It shall not be compulsory to obtain statutory permission for all the quarries of the group simultaneously.
5026. Provisions for transition period.--
(1) After commencement of these rules, there may be delay in complete execution of these rules, and due to nonoperation of sand quarries, deficiency in supply of sand may result, hence these provisions are being made. Some of the sand quarries which were auctioned previously and are in operation, the period of those quarries is up to March 2022. Besides this, some quarries which have been handed over/allotted to Gram Panchayat under provision of Madhya Pradesh Sand Rules 2018 are also in operation at present, the contractors of the group shall start immediately proceedings of transfer of permissions under environmental rules of such quarries.
(2) Other sand quarries transferred to panchayat in which operations have been started after the completion of formalities, all such quarries may remain date of start of operation be operated by Panchayat/Urban Bodies till 31st March 2020 or by the new group contractor from after execution of agreement, whichever is earlier.
(3) From the date of commencement of these rules, the contractors of the auction quarries, may surrender the quarries. Surrender of such sand quarries shall be accepted, giving exemption in condition of agreement and security amount shall be refunded as per eligibility.
(4) Such quarries which have been surrendered or the period has been expired, shall be deemed to be included in the group which have been identified at the time of inviting tender. The contractor of the group shall complete all the statutory formalities for operation of such included quarries. In respect of this new quarry included additionally in the group, the amount of royalty as calculated per cubic meter shall be paid on the basis of the highest tender amount received for that group. The period of new quarry included shall be up to the period of expiry of contract. (5) If during the period of operation of contract, any 51 proposal for new quarry is received to the Collector, the Collector after such enquiry, as deems fit may include quarry in the nearest suitable group. The period of new quarry shall be the period of expiry of contract. The contractor of the group for despatch of sand from such new quarry shall deposit the amount on the basis of the highest tender amount received at the rate of per cubic meter for that group. Maximum of 25% of total permitted quantity for the group contract shall be allowed to be added in case of new quarry.
(6) The group or" quarries of the group remained vacant temporarily under the provisions of this rule or due to other reasons may, in public interest, be operated by the department or by the corporation for ensuring availability of sand.‖
26. Learned counsel for the applicant has submitted that after expiry of the period the environmental clearances, mining permission was given in violation of settled rules and ECs were awarded in the districts which have either expired with effect from 31.03.2022 or siege to be effective being in violation of category disturb the details of excessive sand mining as granted in the EC for the four districts of Harada, Chattarpur, Datiya and Devas reflecting the discrepancies between the quantities specified in the tender documents has been filed as annexure A/7 which is for the SEIAA/competent authority to examine and to rectify in accordance with the direction given in Prabhat Mohan Case.
27. Reliance has been placed on Deepak Kumar vs. State of Haryana I.A. No. 11- 13/2011 in SLP (C) No. 729-731/2011 & Ors. where Hon‟ble the Supreme Court of India vide order dated 27.02.2012, held as follows :-
―9. We find that it is without conducting any study on the possible environmental impact on/in the river beds and elsewhere the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a river bed has an impact on the rivers physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an 52 answer to say that the extraction is in blocks of less than 5 hectares, separated by 1 kilometre, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan. Possibly this may be the reason that in the affidavit filed by the MoEF on 23.11.2011 along with the annexure-2 report, the following stand has been taken:
―The Ministry is of the opinion that where the mining area is homogenous, physically proximate end on identifiable piece of land of 5 ha or more, it should not be broken into smaller sizes to circumvent the EIA Notification, 2006 as the EIA Notification, 2006 is not applicable to the mining projects having lease area of less than 5 ha. The Report of Committee on Minor Minerals, under the Chairmanship of the Secretary (E&F) with representatives of various state Governments as members including the State of Haryana and Rajasthan recommended a minimum lease size of 5 ha for minor minerals for undertaking scientific mining for the purpose of integrating and addressing environmental concerns. Only in cases of isolated discontinued mineral deposits in less than 5 ha, such mining leases may be considered keeping in view the mineral conservation.‖ Situations referred to earlier prevail not only in the State of Haryana but also in the neighbouring and other States of the country as well and those issues had come up for serious deliberations before the Government of India, on various occasions.
10. Government of India was receiving various reports regarding the adverse impacts on riverbeds and groundwater due to quarrying/mining of minerals. The Mines and Minerals (Development & Regulation) Act 1957 empowers the State Governments to make rules in respect of minor minerals. It was noticed that proposals for mining of major minerals typically undergo environment impact assessment and environmental clearance procedure, but due attention has not been given to environmental aspects of mining of minor minerals. Environmental Impact Assessment Notification of 1994 did not apply to the mining of minor minerals, noticing that minor minerals were brought under the ambit of the Environmental Impact Assessment Notification of 2006 and as per the said notification 53 mining of minerals with a lease area of 5 hectares and above require prior environmental clearance. MoEF's attention was drawn to several instances across the country regarding damage to lakes, riverbeds and groundwater leading to drying up of water beds and causing water scarcity on account of quarry/mining leases and mineral concessions granted under the Mineral Concession Rules framed by the State Governments under Section 15 of the Mines and Minerals (Development and Regulation) Act 1957. MoEF noticed that less attention was given on environmental aspects of mining of minor minerals since the area was small, but it was noticed that the collective impact in a particular area over a period of time might be significant. Taking note of those aspects, MoEF constituted a Core Group under the Chairmanship of the Secretary (E&F) to look into the environmental aspects associated with mining of minor minerals, vide its order dated 24.03.2009. The terms of reference to the Group were as under:
i. To consider the environmental aspects of mining of minor minerals (quarrying as well as river beds mining) for their integration into the mining process.
ii. Specific safeguard measures required to minimize the likely adverse impacts of mining on environment with specific reference to impact on water bodies as well as groundwater so as to ensure sustainable mining.
iii. To evolve model guidelines so as to address mining as well as environmental concerns in a balanced manner for their adoption and implementation by all the mineral producing States.
The Group held its first meeting on 7.7.2009 and discussed the impact that may be caused by quarrying/mining of minor minerals on riverbeds and ground waters. It was noticed that individual mines of minor minerals being small in size may have insignificant impact, however, their collective impacts, taking into consideration various mines on a regional scale, is significantly adverse. It was, therefore, felt necessary to consider various aspects since appropriate guidelines have to be issued on the basis of the report of the Committee. The issues which were brought up for consideration were;
(i) the need to re-look the definition of minor mineral, (ii) minimum size of lease for adopting eco friendly scientific mining practices, (iii) period of lease, (iv) cluster of mine approach for addressing and 54 implementing EMP in case of small mines, (v) depth of mining to minimize adverse impact on hydrological regime, (vi) requirement of mine plan for minor minerals, similar to major minerals, and (vii) reclamation of mined out area, post mine land use, progressive mine closure plan etc.‖
28. Hon‟ble the Supreme Court of India has further quoted the recommendations of the MoEF as follows :-
―4.0 ISSUES AND RECOMMENDATIONS Definition of Minor Mineral:
The term minor mineral is defined in clause (e) of Section 3 of MMDR Act, 1957 as ―minor mineral means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any other material which the Central Government may, by Notification in the Gazette of India declare to be a minor mineral‖. The term ‗ordinary sand' used in clause (e) of Section 3 of the MMDR Act, 1957 has been further clarified in rule 70 of the MCR, 1960 as ―sand shall not be treated as minor mineral when used for any of the following purposes namely: (i) purposes of refractory and manufacture of ceramic, (ii) metallurgical purposes, (iii) optical purposes, (iv) purposes of stowing in coal mines, (v) for manufacture of silvicrete cement, (vi) manufacture of sodium silicate and (vii) manufacture of pottery and glass.
Additionally, the Central Government has declared the following minerals as minor minerals: (i) boulder, (ii) shingle, (iii) chalcedony pebbles used for ball mill purposes only, (iv) limeshell, kankar and limestone used in kilns for manufacture of lime used as building material, (v) murrum, (vi)brick-earth, (vii) fuller's earth, (viii) bentonite,
(ix) road metal, (x) reh-matti, (xi) slate and shale when used for building material, (xii) marble, (xiii) stone used for making household utensils, (xiv) quartzite and sandstone when used for purposes of building or for making road metal and household utensils, (xv) saltpeter and (xvi) ordinary earth (used or filling or levelling purposes in construction or embankments, roads, railways building).55
It may thus be observed that minerals have been classified into major and minor minerals based on their end use rather than level of production, level of mechanization, export and import etc. There do exist some minor mineral mines of silica sand and limestone where the scale of mechanization and level of production is much higher than those of industrial mineral mines. Further, in terms of the economic cost and revenue, it has been estimated that the total value of minor minerals constitutes about 10% of the total value of mineral production whereas the value of non metallic minerals comprises only 3%. It is, therefore, evident that the operation of mines of minor minerals need to be subject to some regulatory parameters as that of mines of major minerals.
Further, unlike India there does not exist any such system based on end usage in other countries for classifying minerals into major and minor categories. Thus, there is a need to re-look at the definition of ―minor‖ minerals per se.
It is, therefore, recommended that Ministry of Mines along with Indian Bureau of Mines, in consultation with the State Governments may re- examine the classification of minerals into major andminor categories so that the regulatory aspects and environment mitigation measures are appropriately integrated for ensuring sustainable and scientific mining with least impacts on environment.
Size of the Mine Lease:
Area for grant of mine lease varies from State to State. Maximum area which can be held under one or more mine lease is 2590 ha or 25.90 sq.miles in Jammu & Kashmir. Rajasthan prescribed a minimum limit of 1 ha for a lease. Maximum area prescribed for permit is 50x50 m. In most of the States area of permit is not specified in the rules. It has recently been observed by Punjab and HaryanaHigh Court in its order dated 15.5.2009 that State Government are apparently granting short term permits by 56 dividing the mining area into small zones in effect avoids environmentalnorms.
There is, thus a need to bring uniformity in the extent of area to be granted for mine lease so as to ensure that eco friendly scientific mining practices can be adopted. It is recommended that the minimum size of mine lease should be 5 ha. Further, preparation of comprehensive mine plan for contiguous stretches of mineral deposits by the respective State Governments may also be encouraged. This may suitably be incorporated in the Mineral Concession Rules, 1960 by Ministry of Mines.
Period of Mine Lease:
The period of lease varies from State to State depending on type of concessions, minerals and its end use. The minimum lease period is one year and maximum 30 years. Minerals like granite where huge investments are required, a period of 20 years is generally given with the provisions of renewal. Permits are generally granting for short periods which vary from one month to a maximum one year. In States like Haryana, minor mineral leases are auctioned for a particular time period. Mining is considered to be capital intensive industry and considerable time is lost for developing the mine before it attains the status of fully developed mine. If the tenure of the mine lease is short, it would encourage the lessee to concentrate more on rapid exploitation of mineral without really undertaking adequate measures for reclamation and rehabilitation of mined out area, posing thereby a serious threat to the environment and health of the workers andpublic at large.
There is thus, a need to bring uniformity in the period of lease. It is recommended that a minimum period of mine lease should be 5 years, so that eco friendly scientific and sustainable mining practices are adopted. However, under exceptional circumstances arising due to judicial interventions, short term mining leases / contracts could be granted to the State Agencies to meet the situation arising there from.57
Cluster of Mine Approach for SmallSized Mines:
Considering the nature of occurrence of minor mineral, economic condition of the lessee and the likely difficulties to be faced by Regulatory Authorities in monitoring the environmental impacts and implementation of necessary mitigation measures, it may be desirable to adopt cluster approach in case of smaller mine leases being operated presently. Further, these clusters need be provided with processing/crusher zones for forward integration and minimizing excessive pressure on road infrastructure. The respective State Governments / Mine Owners Associations may facilitate implementation of Environment Management Plans in such cluster of mines.
Requirement of Mine Plan for MinorMinerals:
At present, most of the State Governments have not made it mandatory for preparation of mining plan in respect of minor minerals. In some States like Rajasthan, eco friendly mining plans are prepared, which are approved by the State Mining Department. The eco friendly mining plans so prepared, though conceptually welcome, are observed to be deficient and need to be made comprehensive in a manner as is being done for major minerals. Besides, the aspects of reclamation and rehabilitation of mined out areas, progressive mine closure plan, as in vogue for major minerals could be introduced for minor minerals as well.
It is recommended that provision for preparation and approval of mine plan, as in the case of major minerals may appropriately be provided in the Rules governing the mining of minor minerals by the respective State Governments. These should specifically include the provision for reclamation and rehabilitation of mined out area, progressive mine closure plan and post mine land use.
Creation of Separate Corpus for Reclamation / Rehabilitation of Mines of Minor Minerals:58
Mining of minor minerals, in our country, is by and large unorganized sector and is practiced in haphazard and unscientific manner. At times, the size of the leasehold is also too small to address the issue of reclamation and rehabilitation of mined outs areas. It may, therefore, be desirable that before the concept of mine closure plan for minor minerals is adopted, the existing abandoned mines may be reclaimed and rehabilitated with the involvement of the State Government. There is thus, a need to create a separate corpus, which may be utilized for reclamation and rehabilitation of mined out areas. The respective State Governments may work out a suitable mechanism for creation of such corpus on the 'polluter pays' principle. An organizational structuremay also need to be created for undertaking and monitoring these activities.
Depth of Mining:
Mining of minerals, whether major or minor have a direct bearing on the hydrological regime of the area. Besides, affecting the availability of water as a resource, it also affects the quality of water through direct run of going into the surface water bodies and infiltration / leaching into groundwater. Further, groundwater withdrawal, dewatering of water from mine pit and diversion of surface water may cause surface and sub surface hydrologic systems to dry up. An ideal situation would require that quarrying should be restricted to unsaturated zone only above the phreatic water table and should not intersect the groundwater table at any point of time. However, from the point of view of mineral conservation, it may not be desirable to impose blanket ban on mining operation below groundwater table.
It is, therefore, recommended that detailed hydro-geological report should be prepared in respect of any mining operation for minor minerals to be undertaken below groundwater table. Based on the findings of the study so undertaken and the comments / recommendations of Central Ground Water Authority / State Ground Water Board, a decision regarding restriction on depth of mining for 59 any area should be taken on case to case basis.
Uniform Minor Mineral Concession Rules:
The economic value of the minor minerals excavated in the country is estimated to contribute to about 9% of the total value of the minerals whereas the non metallic mineralscontribute to about 2.8%. Keeping in view the large extent of mining of minor minerals and its significant potential to adversely affect the environment, it is recommended that Model Mineral Concession rules may be framed for minor minerals as well and the minor minerals may be subjected to a simpler regulatory regime, which is, however, similar to major minerals regime.
River Bed Mining:
Environment damage being caused by unregulated river bed mining of sand, bazari and boulders is attracting considerable attention including in the courts. The following recommendations are therefore made for the river bed mining.
(a) In the case of mining leases for riverbed sand mining, specific river stretches should be identified and mining permits/lease should be granted stretch wise, so that the requisite safeguard measures are duly implemented and are effectively monitored by the respective Regulatory Authorities.
(b) The depth of mining may be restricted to 3m/water level, whichever is less.
(c) For carrying out mining in proximity to any bridge and/or embankment, appropriate safety zone should be worked out on case to case basis, taking into account the structural parameters, locational aspects, flow rate etc. and no mining should be carried out in the safety zone so worked out.60
5.0 Conclusion:
Mining of minor minerals, though individually, because of smaller size of mine leases is perceived to have lesser impact as compared to mining of major minerals.
5. However, the activity as a whole is seen to have significant adverse impacts on environment. It is, therefore, necessary that the mining of minor minerals is subjected to simpler but strict regulatory regime and carried out only under an approved framework of mining plan, which should provide for reclamation and rehabilitation of the mined out areas. Further, while granting mining leases by the respective State Governments ―location of any eco-fragile zone(s) within the impact zone of the proposed mining area, the linked Rules/Notifications governing such zones and the judicial pronouncements, if any, need be duly noted.
6. The Union Ministry of Mines along with Indian Bureau of Mines and respective State Governments should therefore make necessary provisions in this regard under the Mines and Minerals (Development and Regulation) Act, 1957, Mineral Concession Rules, 1960 and adopt model guidelines to be followed by allStates.‖ (emphasis supplied)
29. Learned counsel for the applicant has further argued that the DSR was finally approved and finalized by the competent authority on 23.05.2022 in Raisen and tender notice before the finalization of the DSR was in contravention of the rules and regulations and guidelines issued by the MoEF&CC and against the provision of EP Act and deserves to be rejected and action taken by the district authorities for the permission of mining activities on the basis of any action before the finalization of DSR is not valid.
30. Procedure of DSR finds place in appeal no. 25/2021 Prabhat Mohan Pandey v MPSEIAA & Ors. decided on 22.02.2022 by this Tribunal which is as follows:-61
―Procedure for DSR/EC
13. Vide order dated 14.10.2020 in O.A. No. 40/2020, Pawan Kumar v. State of Bihar & Ors., the issue of preparation of District Survey Report (DSR) by Experts was considered. Vide Notification dated 25.07.2018 issued by the MoEF&CC, under Section 3(2)(v) of the EP Act, 1986 amending EIA Notification dated 14.09.2006, procedure for preparation of DSR for sand mining/riverbed mining was laid down. The DSR is crucial as it contains Environment Management plan, including the replenishment study and other safeguards and is the basis to consider the environment impact of mining based on which decision to grant the Environmental Clearance is taken. The Tribunal held that for such crucial exercise, the Experts should be out of those accredited by the National Accreditation Board of Education and Training/ Quality Control Council of India (NABT/QCCI) in terms of O.M. of MoEF&CC dated 16.03.2010.
Verification by the District Magistrate and evaluation by the SEAC was also necessary. Accordingly, following directions were issued in relation to a matter arising from the State of Bihar:- ―(ii) As the DEIAA is not functioning as a consequence of the decision of the Tribunal in Satendra Pandey (supra), the DSR shall be prepared through a consultant(s) accredited by the National Accreditation Board of Education and Training/ Quality Control Council of India in terms of O.M. of MoEF&CC dated 16.03.2010.
(iii) The DSR so prepared shall be submitted to the District Magistrate who shall verify the DSR only in respect of the relevant facts pertaining to the physical and geographical features of the district which shall be distinct from the scientific findings based on the parameters prescribed in the SSMMG2016. After such verification, the District Magistrate shall forward the DSR for examination and evaluation by the State Expert Appraisal Committee (SEAC) having regarding to the fact that the SEIAA comprises of technical/scientific experts. The SEAC after appraisal of the report shall forward it to the SEIAA for consideration and approval if it meets all scientific/technical requirements. (iv) While preparing the DSR, the MoEF&CC Accredited Agency/Consultant shall scrupulously follow the procedure and the parameters laid down under the SSMMG-2016 and EMGSM2020 read in sync with each other.‖ 62
14. Considering the above, vide order dated 04.11.2020 in O.A. No. 726 of 2018, Rupesh Pethe v. State of M.P. & Ors., the Tribunal directed that the above direction ought to be followed pan India, as follows:-
―5. The above direction may be followed by the State of MP also for the sake of uniformity. Further information required to be furnished is about the extent of illegal mining, extent of action taken, including the compensation recovered, vehicles seized and other coercive measures and impact of such action. The State of M.P. may compile relevant directions on the subject including the binding order of any Courts or Tribunal. This exercise may be undertaken jointly by the Secretary Geology and Mining, Member Secretary State PCB and Member Secretary SEIAA. In light of above, the State may further revise its policy and exercise. Let further compliance status be furnished before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
6. We are of the view that the above directions need to be followed by all other States where the issue of mining is relevant.
7. A copy of this order be forwarded to the Chief Secretaries of all the States and UTs by e-mail for compliance.‖
15. Mining within the State is required to be regulated not only by the Mining Department but also by the State Pollution Control Board under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981and by the MoEF& CC under the Environment (Protection) Act, 1986. The Environmental Laws override other laws and any provision contrary in the Mines Act, 1952 will not stay in the way of enforcing environment norms. The Enforcement and Monitoring Guidelines for Sand Mining, 2020 (EMGSM-2020) seeks to provide effective enforcement and monitoring from the stage of identification of source to its dispatch and in use which requires environment of all stakeholders, Central Government, State Government, Lease Holders, Mine Owners, Distributors, Dealers, Transporters and Consumers. The guidelines issued from the 63 MoEF&CC makes EC mandatory irrespective of the area of mining lease, followed by monitoring in terms of the Environment Management Plan, using IT and IT enabled services.
16. Dealing the similar matter in O.A. No. 173/2018(EZ) Sudarsan Das Vs State of West Bengal & Ors. Tribunal observed as follows :-
―18. We may note the salient features of the EMGSM- 2020, which are supplemental to existing SSMG-2016 and seek to provide effective enforcement and monitoring from the stage of identification of source to its dispatch and end use which requires involvement of all stakeholders viz. Central Government, State Government, Leaseholders/Mine Owners, Distributors, Dealers, Transporters and Consumers (bulk & retail). EMGSM refer to the judgment of the Hon'ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors. (2012) 4 SCC 629 making EC mandatory irrespective of the area of mining lease, followed by monitoring in terms of the Environment Management Plan, using IT and IT enabled services. Monitoring has to be with reference to quantity of mined material, transportation with a view to promote environmental protection, limit negative physiological, hydrogeological and social impacts underpinning sustainable economic growth. Observations in the order of this Tribunal dated 04.09.2018 in O.A. 173/2018 in Sudarsan Das vs. State of West Bengal & Ors. has also been referred to as follows:
―There can be no two views that an effective institutional monitoring mechanism is required not only at the stage when Environmental Clearance is granted but also at subsequent stages‖.
―The guidelines focus on the preparation of District Survey Report and the Management Plan‖ ...
We are of the view that all the safeguards which are suggested in sustainable sand mining guidelines as well as notification dated 15.01.2016 ought to be scrupulously followed.‖ ...64
It is a known fact that in spite of the above-suggested guidelines being in existence, on the ground level, illegal mining is still going on. The existing mechanism has not been successful and effective in remedying the situation.‖ ...
Since there is an utter failure in the current monitoring mechanism followed by the State Boards, SEIAAs and DEIAAs, it is required to be revised for effective monitoring of sand and gravel mining and a dedicated monitoring mechanism be set up.‖ Further reference has been made to the directions in the order dated 05.04.2019 requiring the 17 States, which were party before the Tribunal viz. West Bengal, Gujarat, Karnataka, Maharashtra, Punjab, Uttar Pradesh, Haryana, Madhya Pradesh, Andhra Pradesh, Bihar, Uttarakhand, Jammu and Kashmir, Goa, Kerala, Telangana and Tamil Nadu and Himachal Pradesh, to follow the revised Guidelines and to review their respective monitoring mechanism. It is then stated that with the object of regulating the mining, the sources of sand and steps required are mentioned which provide for District Survey Report (DSR), Mining Plan, replenishment study, consideration of environment impact while granting EC, laying down conditions for EC, monitoring of transportation to the end user to ensure that only legally mined material is transported. There is need to balance between deposition and extraction of sand as per replenishment study, maintaining surveillance, using Unmanned Artificial Vehicles (UAVs)/Drone for reserves estimation, quantity estimation, land use monitoring. Details about all these aspects have been mentioned in the said Guidelines. With regard to post EC monitoring, there is a provision for environment audit, monitoring of sale and purchase by developing online portal and laying down the levels of monitoring i.e. Level 1- Reach/ Stockyard level monitoring, Level 2 - Transportation monitoring, Level 3 - End consumer monitoring/ bulk consumer, Level 4 - Indirect monitoring.65
Reference has then been made to the High- Powered Committee incorporating safeguards to be adopted by the project proponents. There is also provision for assessment of compensation for the ecological damage by the State/ PCB/ any other Authority. Inter District and Inter State boundaries are separately dealt with. The uniform monitoring mechanism stipulates:
xx...........................xx...............................xx.....................
The following action may be taken to achieve this deterrence against illegal business:
1. The action should be taken under all legal options available simultaneously. Thus, after identifying the case of illegal excavation, storage and/or transport of minor minerals (including sand), fine should be levied as per the land revenue laws/code(s) of the state. In addition, FIR should be lodged in the police station under relevant sections of law including sec 379 IPC.
In addition, action under the Motor Vehicle Act, 1989 and relevant rules should initiate to cancel/suspend the driving license of the driver and permit of the vehicle. Further, action should be initiated under provisions in the Income Tax Act, 1961 for unaccounted income and under the Central Goods and Services Act, 2017 for nonpayment of GST. (Earlier this was done under the state act pertaining to Value Added Tax/Sales Tax). Habitual offenders should also be taken up under local state laws for externment and/or preventive action. It is clarified that as per law, it is possible to take all actions under various laws simultaneously for one offence. What is prohibited in law is an action under the same law for the same act more than once.
2. The action should be taken against all persons responsible. Often, there is a tendency to penalize only the drivers of the vehicles. The mafia of illegal mining and transport is much bigger and drivers are only one part of the system. It is necessary to identify all those involved in the offence. It is usually not possible to 66 reach the place of excavation without creating a motorable pathway up to the same through land which may be private land. Such role of such landowners needs to be looked into for each offence and proceeded against simultaneously. Further, the role of vehicle owners needs to be probed. Role of the person who allowed his land to be used for illegal excavation and storage should also be examined. Lastly, the person who purchases such sand should also be probed. The legal proceedings stated above needs to be initiated against all of these together. An attempt should be made to fix the financial responsibility in joint and several ways so that recovery is easier.
3. There may be discretion available in law about the extent of the penalty to be levied. If such discretion is very wide, then it is advisable that guidelines may be laid down to reduce such discretion in law for levying penalties. For example, in Maharashtra, Land Revenue Code, fine of any amount of penalty up to thrice the value of the sand can be levied. Solapur district administration had instructed Tahsildars and SDMs not to use discretion and levy the fine of three times the value. Availability of discretion makes junior level functionaries susceptible to pressures and it may also lead to corrupt practices.
4. It is emphasized that actions, as stated above, are most important to ensure that the IT-based system works. If these exemplary actions are not taken against everyone, it shall create a strong disincentive to those involved in legal excavation and transportation. For IT-based (or any other) legal system to work, it is necessary to ensure that illegal system stops working altogether.‖
31. Hon‟ble the Supreme Court of India in State of Bihar and Ors vs. Pawan Kumar and Ors etc (Civil Appeal No. 3661-3662 of 2020) decided on 10th November, 2021 considered the essentiality and prerequisite of DSR and held as follows:
67―7. It cannot be in dispute that though the developmental activities are not stalled, the environmental issues are also required to be addressed. A balanced approach of sustainable development ensuring environmental safeguards, needs to be resorted to. At the same time, it also cannot be ignored that when legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization and at times, loss of human lives. It also cannot be disputed that sand is required for construction of public infrastructural projects as well as public and private construction activities. A total ban on legal mining, apart from giving rise to illegal mining, also causes huge loss to the public exchequer.
8. Taking into consideration these aspects of the matter, we propose to issue certain interim directions.
9. The Tribunal, in the case of Satendra Pandey (supra), has found that the notification dated 15th January 2016, which provided Environmental Clearance to be given by the District Environment Impact Assessment Authority (hereinafter referred to as the ―DEIAA‖) was not in consonance with the judgment of this Court in the case of Deepak Kumar v. State of Haryana and Others2. The Tribunal therefore in Satendra Pandey (supra), had directed Ministry of Environment, Forest and Climate Change (hereinafter referred to as ―MoEF and CC) to take steps to revise the procedure laid down in the notification dated 15th January 2016. It is to be noted that MoEF and CC, in accordance with the directions of the Tribunal, had issued Enforcement and Monitoring Guidelines for Sand Mining (hereinafter to referred to as ―the 2020 guidelines‖) in the month of January 2020. Chapter 4 of the 2020 guidelines deals with identification of possible sand mining sources and preparation of DSR. It will be relevant to refer to Clause 4.1.1 (a), (o) and (p) of the 2020 guidelines:
"4.1 Identification of possible sand mining sources and preparation of District Survey Report (DSR) 4.1.1 Preparation of District Survey Report.
District Survey Report for sand mining shall be prepared before the auction/e-auction/ grant of the mining lease/Letter of Intent (Loi) by Mining department or department dealing the mining activity in respective states.
o) Potential site for mining having its impact on the forest, 68 protected area, habitation, bridges etc, shall be avoided. For this, a sub divisional committee may be formed which after the site visit shall decide its suitability for mining. The list of mining lease after the recommendation of the Committee needs to be defined in the following format given in as Annexure II. The Sub Divisional Committee after the site visit shall make a recommendation on the site for its suitability of mining and also records the reason for selecting the mining lease in the Patta land. The details regarding cluster and contiguous cluster needs to be provided as in Annexure III. The details of the transportation need to ~e provided as in Annexure IV.
p) Public consultation- The Comments of the various stakeholders may be sought on the list of mining lease to be auctioned. The State Government shall give an advertisement in the local and national newspaper for seeking comments of the general public on the list of mining' lease included in the DSR.
The DSR should be placed in the public domain for at least one month from the date of publication of the advertisement for obtaining comments of the general public. The comments so received shall be placed before the sub divisional committee for active consideration. The final list of sand mining areas [leases to be granted on riverbed & Patta land/Khatedari land, de- siltation location (ponds/lakes/dams), M-Sand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per Annexure-V. The details regarding cluster and contiguous cluster needs to be provided in Annexure-VI. The details of the transportation need to be provided in Annexure- VII.‖
10. It could thus be seen that in accordance with the 2020 guidelines, the DSR is required to be prepared before the auction/e-auction/ grant of mining lease by Mining Department or Department dealing with mining activity in the respective States. It is further provided that the potential site for mining having its impact on the forest, protected area, habitation and bridges should be avoided. For this, a sub divisional committee is required to be formed which, after the site visit, is required to decide regarding the suitability of the sites for mining. The sub divisional committee is further required to record its reasons for selecting the mining lease in the patta land. Various details are required to be given in the annexure appended to the said policy.
11. It is further to be noted that Appendix-X of the notification 69 dated 15th January 2016, issued by MoEF and CC also provides for composition of the sub divisional committee:
―A Sub Divisional Committee comprising of Sub Divisional Magistrate, Officers from Irrigation department, State Pollution Control Board or Committee, Forest department, Geology or mining officer shall visit each site for which environmental clearance has been applied for and make recommendation on suitability of site for mining or prohibition thereof.‖
12. It is to be noted that with the advent of modern technology, various technological gadgets like Drones and satellite imaging etc. can be used for identification of the potential sites and preparation of the DSR and also to check misuse and unauthorized mining.
13. We further find that when the 2020 guidelines as well as the notification issued by MoEF and CC of 2016 itself provide for constitution of sub divisional committees comprising of the officers of the State Government from various Departments for identification of the potential sites for mining, there would be no necessity of the DSRs being prepared through private consultants as directed by the Tribunal in the impugned order. The sub divisional committee consists of various officers from Revenue Department, Irrigation Department, State Pollution Control Board, Forest Department and Geology Mining Department of the State Government. They are better equipped to visit the sites and prepare the draft DSR for the concerned district. Apart from that, preparation of DSR through private consultants would also unnecessarily burden the public exchequer. We are therefore of the view that the direction in that regard issued by the Tribunal requires to be modified. We are further of the considered view that until the DSRs are finalized and granted approval by SEAC and SEIAA, it is appropriate that certain necessary arrangements are permitted so that the State can continue with legal mining activities. This apart from preventing illegal mining activities, would also ensure that the public exchequer is not deprived of its share in legalized mining.
14. We therefore find it appropriate to substitute the directions issued by the Tribunal vide judgment and order dated 14th October 2020, with the following directions:-
(i) The exercise of preparation of DSR for the purpose of mining in the State of Bihar in all the districts shall be undertaken afresh. The draft DSRs shall be prepared by the 70 sub divisional committees consisting of the Sub-Divisional Magistrate, Officers from Irrigation Department, State Pollution Control Board or Committee, Forest Department, Geological or mining officer. The same shall be prepared by undertaking site visits and also by using modern technology. The said draft DSRs shall be prepared within a period of 6 weeks from the date of this order. After the draft DSRs are prepared, the District Magistrate of the concerned District shall forward the same for examination and evaluation by the SEAC. The same shall be examined by the SEAC within a period of 6 weeks and its report shall be forwarded to the SEIAA within the aforesaid period of 6 weeks from the receipt of it. The SEIAA will thereafter consider the grant of approval to such DSRs within a period of 6 weeks from the receipt thereon;
(ii) Needless to state that while preparing DSRs and the appraisal thereof by SEAC and SEIAA, it should be ensured that a strict adherence to the procedure and parameters laid down in the policy of January 2020 should be followed;
(iii) Until further orders, we permit the State Government to carry on mining activities through Bihar State Mining Corporation for which it may employ the services of the contractors. However, while doing so, the State Government shall ensure that all environmental concerns are taken care of and no damage is caused to the environment.‖ xx.........................xx............................xx......................Issue No. 9, 10
12. The applicability of the law laid down by the Hon'ble Supreme Court of India in State of Bihar Vs Pawan Kumar.
We have gone through the orders and directions passed by the Hon'ble Supreme Court of India vide order dated 10th November, 2021 in Civil Appeal No. 3661-3662 of 2020 in State of Bihar Vs Pawan Kumar & Ors, where in the case of Bihar, certain directions were issued and substituted with reference to preparation of DSR. We deem it appropriate that the guidelines and directions issued by the Hon'ble Supreme Court of India vide order referred above are fully applicable in the present matter and State authorities are directed to act in accordance with direction issued by the Apex Court till the finalization of the DSR. In view of the above reference and in light of the directions issued in Goa 71 Foundation case and the guidelines issued by the MoEF & CC in 2016, 2018 and 2020 referred above, the respondents, the State Authorities and the Mining Department are bound to prepare a District Survey Report.‖
32. Direction in Prabhat Mohan Pandey (Supra) are as follows :-
34. Considering the facts narrated above, the conclusions and directions are as follows:-
I. We direct the State to follow the guidelines issued in Sustainable Sand Mining Guidelines 2016 (SSMG-2016) as well as Enforcement and Monitoring Guidelines for Sand Mining, 2020 (EMGSM-2020) and also enforce the mechanism for the preparation of DSR, Environment Management Plan, Replenishment Studies, Mine Closure Plan, grant of EC, assessment and recovery of compensation, seizure and release of vehicles involved in illegal mining and other safeguards against violation, grievance redressal, accountability of the designated officers and periodical review at higher level of the State.
II. A mechanism should be developed for periodic inspection by a five-members Committee, headed and coordinated by the SEIAA and comprising CPCB, State PCB and two expert members of SEAC dealing with the subject as directed by this Tribunal in O.A. No. 360/2015.
III. The Authority constituted/nominated under Section 3(3) of the Environment (Protection) Act, 1986 as envisaged by Hon'ble the Supreme Court in Goa Foundation Vs. Union of India & Ors. and in the matter of T.N. Godavarman Thirumulpad Vs. Union of India & Ors. (2014) 4 SSC 61 may take further action. The monitoring must be ensured through the Chief Secretary by holding a meeting and issue the necessary guidelines and actions in accordance with the order passed by this Tribunal in O.A. No. 360/2015. IV. 31 appeals relating to 19 districts (Para-18) and the cases as contained in the letter dtd.07.01.2022 (Para-16) issued from the Madhya Pradesh State Mining Corporation Limited whose mining lease have been cancelled or surrendered became infructuous.
V. The matter relating to 08 cases given in Table-1 (F) & 72 discrepancies and variations as shown in Para 4 and 5, where there is a mismatch of khasra number, area, period or quantity of lease shall be reconsidered by the SEIAA and to take necessary action according to law.
VI. E-auction/auction/tender should be done in accordance with Sustainable Sand Mining Guidelines 2016 as well as Enforcement and Monitoring Guidelines for Sand Mining 2020 and only where details of approved DSR and Annual Replenishment Study are available.
VII. EC should be accorded only to the limit of auctioned and sustainably permissible quantity.
VIII. In cases where ECs are transferred, present status of mining areas should be ascertained through ARS and DSR. ECs which have been transferred without the assessments of present environmental status, damages must be revisited by MPSEIAA before any mining is taken up on the basis of transferred ECs.
IX. The orders and directions passed by Hon'ble Supreme Court of India vide order dated 10th November, 2021 in Civil Appeal No. 3661-3662 of 2020 in State of Bihar Vs Pawan Kumar must be complied with and to be effected in the State of Madhya Pradesh also.
X. The conclusions as drawn in Para-N referred above must be complied with by the MPSEIAA and SEAC while dealing with the mining leases.
33. In Pawan Kumar Vs. State of Bihar Hon‟ble the the Supreme Court of India in Civil Appeal No. 3611/2020 vide order data 10.11.2021 held that in accordance with the 2020 Guidelines, the DSR is required to be prepared before the auction/e-auction/ grant of Mining lease by Mining Department or department dealing with mining activity in the respective States. It was further held that any process of successful bidder prior to the preparation or finalization of DSR cannot claim a vested right to do in mining activities.
Cluster formation and public consultation before the DSR to be held to be valid following is required a necessary condition.
―Chapter 4 of the 2020 guidelines deals with identification of possible sand mining sources and preparation of DSR. It will 73 be relevant to refer to Clause 4.1.1 (a), (o) and (p) of the 2020 guidelines: -
―4.1 Identification of possible sand mining sources and preparation of District Survey Report (DSR) 4.1.1 Preparation of District Survey Report.
a) District Survey Report for sand mining shall be prepared before the auction/eauction/grant of the mining lease/Letter of Intent (Loi) by Mining department or department dealing the mining activity in respective states.
o) Potential site for mining having its impact on the forest, protected area, habitation, bridges etc, shall be avoided. For this, a sub-divisional committee may be formed which after the site visit shall decide its suitability for mining. The list of mining lease after the recommendation of the Committee needs to be defined in the following format given in as AnnexureII.
The Sub-divisional Committee after the site visit shall make a recommendation on the site for its suitability of mining and also records the reason for selecting the mining lease in the Patta land. The details regarding cluster and contiguous cluster needs to be provided as in Annexure-III. The details of the transportation need to be provided as in Annexure IV.
p) Public consultation-The Comments of the various stakeholders may be sought on the list of mining lease to be auctioned. The State Government shall give an advertisement in the local and national newspaper for seeking comments of the general public on the list of mining' lease included in the DSR. The DSR should be placed in the public domain for at least one month from the date of publication of the advertisement for obtaining comments of the general public. The comments so received shall be placed before the subdivisional committee for active consideration. The final list of sand mining areas [leases to be granted on riverbed & Patta land/Khatedari land, desiltation location (ponds/lakes/dams), MSand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per Annexure-V. The details regarding cluster and contiguous cluster needs to be provided in Annexure-VI. The details of the transportation needto be provided in Annexure-VII‖ 74
34. During the course of hearing the Learned Counsel for the State Mr. Sachin K Verma has apprised the Tribunal that the district Raisen has obtained fresh EC in pursuant to the fresh DSR and further intimated that all those ECs which has expired has been cancelled and the process of initiating the mining activities are being regulated in accordance with the provision of Sand Mining Guidelines 2020 and DSR being prepared. The cluster situation transportation route are still to be complied with by the State Authorities District Raisen and as per guidelines DSR for sand mining is required to be prepared before the auction/E-auction/ grant of the mining lease later of intent by Mining Department or department dealing with the mining activities and in light of the facts that the DSR in the district of Raisen was finalized only on 23.05.2022, prior proceeding with regard to the E-auction is not said to be according to the parameter laid down in the Sand Mining Guideline 2020 and Pawan Kumar case. While dealing with the O.A. No. 40/2020(EZ) Pawan Kumar vs. State of Bihar, Principal bench of this Tribunal has cancelled the tenders of Baka district in the following terms.
―79.. The facts and circumstances set out above clearly indicate that firstly the permissible area for mining has grossly exceeded even going by the DSR 2019 filed by the State. Secondly, the mineable mineral has not been quantified in the NIT leaving it in the realm of speculation.
We have already rejected the explanation of the State on the increase of the mineable area earlier and, therefore, need not delay ourselves on this except to observe that the stand of the Respondents has been inconsistent, contradictory and lacking in clarity.
92. Thus, it would by implication mean that the Interim DSR was subject to the DSR being finalized after completion of the entire process. Instead, we find mineable areas having been added and Sand Blocks are created without following the due process with an objective of revenue maximization
102. In the result, we allow the applications and hold that: (a) DSR 2018 cannot be considered as a final DSR and is only an Interim report. (b) The DSR 2019 incorporating the 14 Sand Ghats also 75 cannot be considered as a final DSR and is hereby quashed.6 88 (c) All actions taken pursuant to DSR 2018 and DSR 2019 referred to in
(a) and (b) above are hereby held to be void and a nullity.‖
35. The Hon‟ble Supreme Court in the judgment of State of Bihar Vs. Pawan Kumar and in the judgment of at paragraph 10 and in Special Leave Petition (C) No.19628-19629 of 2009, in the matter of Deepak Kumar etc. Vs. State of Haryana and Others has held that prior to any auction process it is mandatory to have a valid DSR. Thus, the e-auction dated 26.11.2021 could not have been valid on the basis of an old DSR prepared 6 years ago on 2016.
Moreover, the old DSR of March 2016 has expired in March 2021 and ceases to be valid in light of the following:
a. "As per the Notification S.O.3611 (E). dated 25th Jul'18, under Appendix - X, Section I last para says that ―The District Survey Report shall form the basis for application for environmental clearance, preparation of reports and appraisal of projects. The Report shall be updated once every five years‖ b. The Sustainable Sand Mining Guidelines, 2016 & Enforcement Monitoring Guidelines for Sand Mining, 2020 issued by the Ministry of Environment Forest and Climate Change which stipulate periodic replenishment studies and regular updation of DSR.
c. National Green Tribunal Bar Association And Ors v. Virender Singh And Ors dated 26.02.2021 the Hon'ble Tribunal held that DSR has to be updated periodically ―DSRs need to be prepared very carefully. They should be based on Physical surveys and replenishment studies. Since sand deposition is a dynamic issue, they need to be regularly updated. While awarding lease deeds, important environmental parameters like deposition and replenishment of sand, areas of erosion, distance from infrastructural structures need be considered.
4. In the absence of replenishment studies and physical inspection before award, many times sites are awarded where there is no sand. The lease holder per force indulges in mining 76 adjoining areas, some of which may be environmentally not very suitable. Before award of LOI, physical inspection should be mandatory.
5. Areas where only few leases are operative and the rest are not settled/surrendered need to be carefully analyzed. There could be a chance of cartel formation and mining of sand illegally from other vacant mining plots under the garb of the operative lease.
(In district Prayagraj, there is only one operative lease out of 51 leases).
6. Storage Godowns should be at least 5 kms away from the river bank. Otherwise, illegal mining can be carried on under the garb of storage by the leaseholder himself.
7. Geo-fencing of sites, their physical demarcation, allotment of geo-coordinates to all the pillars and their constant physical inspection and electronic surveillance is a must to ensure that the mining activity is as per the approved mining plan and no illegal mining, detrimental to environment, is going on.
8. There has to be a mechanism to ensure that the actual mining activity conforms to the approved Mining Plan and the approved Environment Management Plan (EMP). Besides the statutory system of Departmental inspections, there has to be a system of annual mandatory Environmental Audit by experts. Environment Department can empanel some experts/expert institutions with standard TORs and Remuneration terms which could be utilized by the Mines Department on a regular basis. This way the District Administrations can access good technical experts with standard conditions in a transparent way without bothering about tedious time-consuming tender formalities.‖ Thus the tender dated 26.11.2021 could not have been valid on the basis of the DSR 2016.
36. It has further been clarified by the Learned counsel for the State that all those mines whose period of validity has been completed, have been rejected and cancelled and other matters are being reviewed and being under examination by the appropriate authority for taking necessary actions.
37. Learned Counsel for the State Sh. Sachin K. Verma has argued that in Pawan Kumar's case Hon‟ble the Supreme Court has reiterated that the tender 77 documents must be issued after a valid DSR has been prepared and in the matter of State of Bihar it has been stated that since the DSR has been finalized in pursuant to our order dated 10.11.2021, there should be no impediment for the State of Bihar to proceed further for inviting tenders or auction of Sand blocks in accordance with the DSR which has already been approved. It was held that :-
xx..........................xx...................................xx.....................................xx ―The DSR so prepared shall be submitted to the District Magistrate who shall verify the DSR only in respect of the relevant facts pertaining to the physical and geographical features of the district which shall be distinct from the scientific findings based on the parameters prescribed in the SSMMG2016. After such verification, the District Magistrate shall forward the DSR for examination and evaluation by the State Expert Appraisal Committee (SEAC) having regarding to the fact that the SEIAA comprises of technical/scientific experts. The SEAC after appraisal of the report shall forward it to the SEIAA for consideration and approval if it meets all scientific/technical requirements‖
38. The contention of the Learned Counsel for the State that State Authorities of District Raisen are proceeding with the tender dated 26.11.2021 in accordance with the provisions contained in State of Bihar vs. Pawan Kumar case order passed in Civil Appeal No. 3661 of 2020 wherein it has been stated that after finalizing the fresh DSR there will be no impediment on the State to issue fresh tenders. These words are wrongly interpreted by the State (District Raisen).
Finalisation of DSR means it has been duly prepared and approved by the Competent authority and simply preparation does not mean that the DSR has been finalized before approval and finalization of the DSR Action taken on the basis of the tender dated 26.11.2021 is in contravention of the provisions of Guidelines 2020 and the order of the Hon‟ble Supreme Court. The process of tender and DSR has already been discussed in appeal no. 25/2021 and connected matters and the authorities were directed to comply in letter and 78 spirit. It doesn't intend to frustrate the proceedings on the ground of preparation of DSR. The preparation of DSR and finalization of DSR and lastly, approval by the competent authority are three different stages and it will come into effect only after approval by the competent authority under EP Act. It is admitted fact that in the district Raisen the DSR was finally approved by the competent authority on 23.05.2022 and in view of the directions issued in the State of Bihar vs Pawan Kumar Case the tender holder prior to the date 23.05.2022 cannot claim any vested right and any action on the basis of any tender or NIT before the approval of the DSR i.e. 23.05.2022 is illegal, irregular and in contravention of the Sand Mining Guidelines 2020. The perusal of the chart submitted by the applicant and the State counsel reveals that in the Districts of Devas, Harda, Sihor, Raisen, MPSIAA has granted the prior EC to the project proponents in case of sand mining for the lease period during 2016 till date which stand expired as on 31.03.2022. MPSEIAA has granted the EC for the lease period which was expiring on 31.03.2021 and thereafter extended till 31.03.2022 (due to COVID relaxation notification by the MoEF&CC), but the contractors did not apply not got a fresh EC for the sand mines on which they are continuing mining activities on transferred EC which stand expired on 31.03.2021 and thereafter extended till 31.03.2022. The matter of transfer of EC without taking the environmental consideration and the matter of NIT was discussed in the case of Prabhat Mohan Pandey vs. MPSEIAA & Anr. in appeal no. 25/2021 (Supra).
Notice Inviting Tender (NIT)
39. The rules provide for a conservative estimation of the permissible quantity and in no way discounts the importance of NIT or accord primacy to mining plan. NIT is primary document and it is the constitutional requirement to give level playing field to all the bidders as held in Manohar lal Sharma vs principal secretary (SC) 2014 all SCR 3470 as follow:-
49. .........The constitutional philosophy about law making in relation to mines and minerals and List I Entry 36 (Federal Legislative List) and List II Entry 23 (Provincial 79 Legislative List) in Schedule VII of the Government of India Act, 1935 which correspond to List I Entry 54 (Union List) and List II Entry 23 (State List) in our Constitution has been noticed by this Court in Monnet Ispat and Energy Ltd. v. Union of India and Ors., (2012) 11 SCC 1. Speaking through one of us (R.M. Lodha, J., as he then was) in Monnet Ispat and Energy Ltd. v. Union of India and Ors., (2012) 11 SCC 1, this Court has noted the statement of the learned Solicitor General in the House of Commons made in the course of debate in respect of the above entries in the Government of India Bill that the rationale of including only the "regulation of mines" and "development of minerals" and that, too, onlyto the extent it was considered expedient in the public interest by a federal law was to ensure that the provinces were not completely cut out from the law relating to mines and minerals and if there was inaction at the Centre, then the provinces could make their own laws. Thus, power in relation to the mines and minerals was accorded to both, the Centre and the States. The Court in Monnet Ispat and Energy Ltd. v.
Union of India and Ors., (2012) 11 SCC 1 said:
"130. .......... The management of the mineral resources has been left with both the Central Government and the State Governments in terms of List I Entry 54 and List II Entry 23. In the scheme of our Constitution, the State Legislatures enjoy the power to enactlegislation on the topics of "mines and minerals development". The only fetter imposed on the State Legislatures under Entry 23 is by thelatter part of the said entry which says, "subject to the provisions of List I with respect to regulation and development under the control of the Union". In other words, the State Legislature loses its jurisdiction to the extent to which the Union Government had taken over control, the regulation of mines and development of minerals as manifested by legislation incorporating the declaration and no more. If Parliament by its law has declared that regulation of mines and development of minerals should in the public interest 80 be under the control of the Union, which it did by making declaration in Section 2 of the 1957 Act, to the extent of such legislation incorporating the declaration, the power of the State Legislature is excluded. The requisite declaration has the effect of taking out regulation of mines and development of minerals from List II Entry 23 to that extent. It needs no elaboration that to the extent to which the Central Government had taken under "its control"
"the regulation of mines and development of minerals" under the 1957 Act, the States had lost their legislative competence. By the presence of the expression "to the extent hereinafter provided" in Section 2, the Union has assumed control to the extent provided in the 1957 Act. The 1957 Act prescribesthe extent of control and specifies it. We must bear in mind that as the declaration made in Section 2 trenches upon the State legislative power, it has to be construed strictly. Any legislation by the State after such declaration, trespassing the field occupied in the declaration cannot constitutionally stand "........
83. Two recent decisions viz., (1) (2G Case) Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1 and (2) Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1 directly deal with the question of auction as mode for the disposal or allocation of natural resources. But before we consider these two decisions, reference to some of the decisions of this Court, which had an occasion to deal with disposal of natural resources, may be of some help in appreciating this aspect in correct perspective.
84. P.N. Bhagwati, J. in Kasturi Lal Lakshmi Reddy & Ors. v. State of J&K & Anr., (1980) 4 SCC 1 had said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging setting up of industries within the State, the State 81 was not bound to advertise and tell the people that it wanted a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. It was also observed that if any private party comes before the State and offers to set up an industry, the State would notbe committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose.
85. In Sachidanand Pandey & Anr. v. State of West Bengal & Ors., (1987) 2 SCC 295 this Court had observed that ordinary rule for disposal of State-owned or public-owned property, was by way of public auction or by inviting tenders but there could be situations where departure from the said rule may be necessitated but then the reasons for the departure must be rational and should not be suggestive of discrimination and that nothingshould be done which gives an appearance of bias, jobbery or nepotism.
86. The statement of law in Sachidanand Pandey & Anr. v. State of West Bengal & Ors., (1987) 2 SCC 295 was echoed again in Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (1988) 1 SCC 166, wherein this Court reiterated that the public property owned by the State or by an instrumentality of State should be generally sold by public auctionor by inviting tenders. It was emphasised that this rule has been insisted upon not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities and to obviate the factors like bias, favoritism or nepotism. Clarifying that this is not an invariable rule, the Court reiterated that departure from the rule of auctioncould be made but then it must be justified.
87. The above principle is again stated by this Court in M.P. Oil Extraction & Anr. v. State of M.P. & Ors., (1997) 7 SCC 592, in which this 82 Court said that distribution of largesse by inviting open tenders or by public auction is desirable but it cannot be held that in no case distribution of such largesse by negotiation is permissible.
88. In Netai Bag & Ors. v. State of West Bengal & Ors., (2000) 8 SCC 262 this Court said that when any State land is intended to be transferred or the State largesse is decided to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people as that would be a sure method of guaranteeing compliance with mandate of Article 14 of the Constitution but non- floating of tenders or not holding public auction would not in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner.
89. In Villianur Iyarkkai Padukappu Maiyam Union of India & Ors., (2009) 7 SCC 561 the matter before this Court related to the selection of contractor for development of the port of Pondicherry without floating a tender or holding public auction.
The Court said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging development of the port, the State was not bound to advertise and tell the people that it wanted development of the port in a particular manner and invite those interested to come up with proposals for the purpose.
90. There are numerous decisions of this Court dealing with the mode and manner of disposal of natural resources but we think it is not necessary to refer to all of them. Having indicated the view taken by this Court in some of the cases, now we may turn to 2G case, Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1. In that case, the two-
Judge Bench of this Court stated that a duly publicised auction conducted fairly and impartially was perhaps the best method for alienation of natural resources lest there was likelihood of 83 misuse by unscrupulous people who were only interested in garnering maximumfinancial benefit and have no respect for the constitutional ethos and values. Court laid emphasis that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.
91. The above view in (2G Case) Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1 necessitated the reference by the President of India to this Court under Article 143(1) of the Constitution. The first two questions ? Question 1 and Question 2 ?
referred to this Court for consideration and report read as under:
Question-1 Whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions?
Question-1 Whether a board proposition of law that only the route of auctions can be resorted to for disposal of natural resources does not run contrary to several judgments of the Supreme Court including those of the larger Benches?
92. The Constitution Bench which dealt with the above reference observed that the answer to the following three questions would provide comprehensive answer to the parent question, viz., Question 1:
(i) Are some methods ultra vires and others intra vires the Constitution of India, especially Article 14?
(ii) Can disposal through the method of auction be elevated to a constitutional principle?
(iii) Is this Court entitled to direct the executive to adopt a certain method because it is the "best" method? If not, to what extent can the executive deviate from such "best" method?84
93. The Constitution Bench clarified that the statement of law in (2G Case) Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1 that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction was confined to the specific case of spectrum and not for dispensation of all natural resources. The Constitution Bench said that findings of this Court in (2G Case) Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1 were limited to the case of spectrum and not beyond that and that it did not deal with the modes of allocation for natural resources other than spectrum.
94. The Constitution Bench while dealing with the aspect of disposal of natural resources other than auction, divided the consideration of this aspect under two heads, viz., "Legitimate deviations from auction"
and "Potential of abuse". Under the head "Legitimate deviations from auction" the Court considered the earlier decisions of this Court in Kasturi Lal Lakshmi Reddy & Ors. v. State of J&K & Anr., (1980) 4 SCC 1, Sachidanand Pandey & Anr.
v. State of West Bengal & Ors., (1987) 2 SCC 295, Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (1988) 1 SCC 166, M.P. Oil Extraction & Anr. v. State of M.P. & Ors., [(1997) 7 SCC 592], Netai Bag & Ors. v. State of West Bengal & Ors., (2000) 8 SCC 262 and Villianur Iyarkkai Padukappu Maiyam v. Union of India & Ors., (2009) 7 SCC 561, which we have briefly noted above, and it was held that there is no constitutional mandate in favour of auction under Article 14. In the main judgment (paras 129 to 131, pg. 92), the Constitution Bench stated as under:
"129. Hence, it is manifest that there is no constitutional mandate in favour of auction under Article 14. The Government has 85 repeatedly deviated from the course of auction and this Court has repeatedly upheld such actions. The judiciary tests such deviations on the limited scope of arbitrariness and fairness under Article 14 and its role is limited to that extent.
Essentially whenever the object of policy is anything but revenue maximization, the Executive is seen to adopt methods other than auction.
130. A fortiori, besides legal logic, mandatory auction may be contrary to economic logic as well. Different resources may require different treatment. Very often, exploration and exploitation contracts are bundled together due to the requirement of heavy capital in the discovery of natural resources. A concern would risk undertaking such exploration and incur heavy costs only if it was assured utilisation of the resource discovered; a prudent business venture, would not like to incur the high costs involved in exploration activities and then compete for that resource in an open auction. Thelogic is similar to that applied in patents. Firms are given incentives toinvest in research and development with the promise of exclusive access to the market for the sale of that invention. Such an approach is economically and legally sound and sometimes necessary to spur research and development. Similarly, bundling exploration and exploitation contracts may be necessary to spur growth in a specific industry.
131. Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of an industry, like in Kasturi Lal's case, discussed above. However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criteria for alienation of all natural resources."
95. While dealing with the argument that even if the method of auction wasnot a mandate under Article 14, it must be the only permissible method due to the 86 susceptibility of other methods to abuse, the Court under the head "Potential of abuse" held that a potential for abuse cannot be the basis for striking down the method as ultra vires the Constitution. The Court noted two decisions of this Court in R.K. Garg v. Union of India & Ors., (1981) 4 SCC 675 and D.K. Trivedi & Sons & Ors. v. State of Gujarat & Ors., 1986 Supp SCC 20 and held that neither auction nor any other method of disposal can be held ultra vires the Constitution merely because of a potential abuse. The Constitution Bench (para 135, pgs. 93-94) stated as under:
"135. Therefore, a potential for abuse cannot be the basis for striking down a method as ultra vires the Constitution. It is the actual abuseitself that must be brought before the Court for being tested on the anvil of constitutional provisions. In fact, it may be said that even auction has a potential of abuse, like any other method of allocation, but that cannot be the basis of declaring it as an unconstitutional methodology either. These drawbacks include cartelization, "winners curse" (the phenomenon by which a bidder bids a higher, unrealistic and unexecutable price just to surpass the competition; or where a bidder, in case of multiple auctions, bids for all the resources and ends up winning licenses for exploitation of more resources than he can pragmatically execute), etc. However, all the same, auction cannot be called ultra vires for the said reasons and continues to be an attractive and preferred means of disposal of natural resources especially when revenue maximization is a priority. Therefore, neither auction, nor any other method of disposal can be held ultra vires the Constitution, merely because of a potential abuse."
96. In Natural Resources Allocation, In re, Special Reference No.1 of 2012; [(2012) 10 SCC 1] the Constitution Bench, in the main judgment, 87 thus, concluded that auction despite being a more preferable method of alienation/allotment of natural resources cannot be held to be constitutional requirement or limitation for alienation of all natural resources and, therefore, every method other than auction cannot bestruck down as ultra vires the constitutional mandate. The Court also opined that auction as a mode cannot be conferred the status of a constitutional principle. While holding so, the Court held that alienation of natural resources is a policy decision and the means adopted for the sameare, thus, executive prerogatives. The Court summarised the legal position as under:
"146. To summarise in the context of the present Reference, it needs to be emphasised that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to makethem. As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-a-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution.88
Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down.
147. Finally, market price, in economics, is an index of the value that a market prescribes to a good. However, this valuation is a function of several dynamic variables: it is a science and not a law. Auction is justone of the several price discovery mechanisms. Since multiple variables are involved in such valuations, auction or any other form of competitive bidding, cannot constitute even an economic mandate, much less a constitutional mandate.
148. In our opinion, auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and therefore, every method other than auction cannot be struck down as ultra vires the constitutional mandate.
149. Regard being had to the aforesaid precepts, we have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximizing private entrepreneurs, adoption of means other than those that are competitive and maximize revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial 89 scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution."
97. J.S. Khehar, J., while concurring with the main opinion has stated that auction is certainly not a constitutional mandate in the manner expressed, but it can be applied in some situations to maximise revenue returns, to satisfy legal and constitutional requirements. In his view, if the State arrives at a conclusion, in a given situation, that maximum revenue would be earned by auction of the particular natural resource, then that alone would be the process which it would have to adopt. In the penultimate para of his opinion, J.S. Khehar, J., observed,"
there can be no doubt about the conclusion recorded in the "main opinion" that auction which is just one of the several price recovery mechanisms, cannot be held to be the only constitutionally recognised method for alienation of natural resources. That should not be understood to mean, that it can never be a valid method for disposal of natural resources ".
98. In Natural Resources Allocation, In re, Special Reference No.1 of 2012; [(2012) 10 SCC 1], the Constitution Bench said that reading auction as a constitutional mandate would be impermissible because such an approach may distort another constitutional principle embodied in Article 39(b). In the main judgment, with reference to Article 39(b), the Court stated as follows:
"113. The disposal of natural resources is a facet of the use and distribution of such resources. Article 39(b) mandates that the ownership and control of 90 natural resources should be so distributed so as to best subserve the common good. Article 37 provides that the provisions of Part IV shall not be enforceable by any court, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Therefore, this Article, in a sense, is a restriction on "distribution"
built into the Constitution. But the restriction is imposed on the object and not the means. The overarching and underlying principle governing "distribution" is furtherance of common good. But for the achievement of that objective, the Constitution uses the generic word "distribution". Distribution has broad contours and cannot be limited to meaning only one method i.e. auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately sub-serve the "common good".
xx..........................xx........................xx
115. It can thus, be seen from the aforequoted paragraphs that the term "distribute" undoubtedly, has wide amplitude and encompasses all manners and methods of distribution, which would include classes, industries, regions, private and public sections, etc. Having regard to the basic nature of Article 39(b), a narrower concept of equality under Article 14 than that discussed above, may frustrate the broader concept of distribution, as conceived in Article 39(b). There cannot, therefore, be a cavil that "common good" and "larger public interests" have to be regarded as constitutional reality deserving actualization.
116. The learned counsel for CPIL argued that revenue maximization during the sale or alienation of a natural resource for commercial exploitation is the only way of achieving public good since the revenue collected can be channelized to welfare policies and controlling the burgeoning deficit. According to the learned 91 counsel, since the best way to maximise revenue is through the route of auction, it becomes a constitutional principle even under Article 39(b). However, we are not persuaded to hold so. Auctions may be the best way of maximizing revenue but revenue maximisation may not always be the best way to subserve public good.
"Common good" is the sole guiding factor under Article 39(b) for distribution of natural resources. It is the touchstone of testing whether any policy subserves the "common good" and if it does, irrespective of the means adopted, it is clearly in accordance with the principle enshrined in Article 39(b).
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119. The norm of "common good" has to be understood and appreciated in a holistic manner. It is obvious that the manner in which the common good is best subserved is not a matter that can be measured by any constitutional yardstick? it would depend on the economic and political philosophy of the Government. Revenue maximisation is not the only way in which the common good can be subserved. Where revenue maximisation is the object of a policy, being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method. Where revenue maximisation is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations.
120. Therefore, in conclusion, the submission that the mandate of Article 14 is that any disposal of a natural resource for commercialuse must be for revenue maximisation, and thus by auction, is based neither on law nor on logic. There is no constitutional imperative in the matter of economic policies? Article 14 does not predefine any economic policy as a constitutional mandate. Even the mandate of Article 39(b) imposes no restrictions on the means adopted to sub-serve the 92 public good and uses the broad term "distribution", suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to sub- serve the common good, and at times, may run counter to public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate."
99. In light of the above legal position, the argument that auction is a best way to select private parties as per Article 39(b) does not merit acceptance. The emphasis on the word "best" in Article 39(b) by the learned senior counsel for the intervener does not deserve further discussion in light of the legal position exposited by the Constitution Bench in Natural Resources Allocation, In re, Special Reference No.1 of 2012; [(2012) 10 SCC 1] with reference to Article 39(b). We are fortified in our view by a recent decision of this Court (3-Judge Bench) in Goa Foundation v. Union of India and Others, (2014) 6 SCC 590 wherein following Natural Resources Allocation, In re, Special Reference No.1 of 2012; [(2012) 10 SCC 1], it is stated, "...it is for the State Government to decide as a matter of policy in what manner the leases of these mineral resources would be granted, but this decision has to be taken in accordance with the provisions of the MMDR Act and the Rules made there under and in consonance with the constitutional provisions?".
40. As described in the EMGSM 2020, Mining Plan is an important document to assist the mine owner to operate the mine in a scientific manner. There is no practice for regular replenishment study to ascertain the rate of depositing, plan and section needs to be prepared based on the restrictions provided in letter of intent and provisions of Sustainable Sand Mining Management Guidelines 2016. Therefore, granting EC on the basis of Mining Plan is in violation of the Guidelines and against the principles of sustainable sand mining. Considering the importance of 93 district survey report, the Ministry of Environment Forest and climate change, after consultation with experts dealing with mining-related matters, formulated the guidelines for the preparation of comprehensive District Survey Report for sand mining. It accordingly, prescribed that District Survey Report for sand mining should be prepared before the auction/e-auction/grant of the mining lease/Letter of Intent (LoI) by Mining department or department dealing the mining activity in respective states. DSR is to be approved at the level of SEIAA with the help of SEAC. It is surprising that MPSEIAA is not taking DSR or Annual Replenishment Study (ARS) into consideration. Had DSR and ARS taken into consideration the discrepancy between the quantity of sand given in NIT and EC can be easily avoided and sand mining would be sustainable. In addition to that it would also eliminate the chances of misuse of EC for illegal mining.
41. Another category of cases includes those in which the mining areas (Khasra/survey numbers) are not given in NIT but EC are granted even for them. Obviously such EC can lead to illegal mining as well as loss of exchequer to the State. It would also disrupt the system of sustainable mining and escape all kinds of monitoring and supervision, as EC would be available but the mining department would not be looking after them. It is completely out of sync so far as the mining administration in States exists.
42. Direction nos. 6 & 7 in Prabhat Mohan Case was issued as follows :-
vi. E-auction/auction/tender should be done in accordance with Sustainable Sand Mining Guidelines 2016 as well as Enforcement and Monitoring Guidelines for Sand Mining 2020 and only where details of approved DSR and Annual Replenishment Study are available. EC should be accorded only to the limit of auctioned and sustainably permissible quantity.
vii. In cases where ECs are transferred, present status of mining areas should be ascertained through ARS and DSR. ECs which have been transferred without the assessments of present environmental 94 status, damages must be revisited by MPSEIAA before any mining is taken up on the basis of transferred ECs.
43. In the matter of 40/2020 (EZ) with OA No. 57/2020 (EZ) the principal Bench of this Tribunal directed the authorities concerned to prepare the DSR and then send it to SEAC and after appraisal of the report, it shall forward it to SEIAA for consideration and approval if it meets all scientific/technical requirements.
This order was challenged before Hon‟ble the Supreme Court of India and Hon‟ble Supreme Court of India in State of Bihar Case in para no. 14 directed as follows:-
"14. We therefore find it appropriate to substitute the directions issued by the Tribunal vide judgment and order dated 14th October 2020, with the following directions:
(i) The exercise of preparation of DSR for the purpose of mining in the State of Bihar in all the districts shall be undertaken afresh.
The draft DSRs shall be prepared by the subdivisional committees consisting of the SubDivisional Magistrate, Officers from Irrigation Department, State Pollution Control Board or Committee, Forest Department, Geological or mining officer. The same shall be prepared by undertaking site visits and also by using modern technology. The said draft DSRs shall be prepared within a period of 6 weeks from the date of this order. After the draft DSRs are prepared, the District Magistrate of the concerned District shall forward the same for examination and evaluation by the SEAC. The same shall be examined by the SEAC within a period of 6 weeks and its report shall be forwarded to the SEIAA within the aforesaid period of 6 weeks from the receipt of it. The SEIAA will thereafter consider the grant of approval to such DSRs within a period of 6 weeks from the receipt thereon;
(ii) Needless to state that while preparing DSRs and the appraisal thereof by SEAC and SEIAA, it should be ensured that a strict adherence to the procedure and parameters laid down in the policy of January 2020 should be followed;
(iii) Until further orders, we permit the State Government to carry on mining activities through Bihar State Mining Corporation for which it may employ the services of the contractors. However, while doing so, the State Government shall ensure that all 95 environmental concerns are taken care of and no damage is caused to the environment.
15. List the matter after 20 weeks.‖
42. It makes it clear that finality of DSR will take place after approval of SEIAA and admittedly SEIAA approved the DSR of Raisen district on 23.05.2022 thus DSR came into existence on 23.05.2022.
43. Learned Counsel for the State and rest of the respondent had taken reliance of the order passed in OA No. 10/2020 to Rambabu Gaur vs State of MP & Ors. but the orders cannot be interpreted in violation of the Sand Mining Guidelines and the law laid down in Pawan Kumar‟s case .
44. Learned counsel for the State has further taken reliance of the order dated 12.01.2022 passed in W.P. No. 26824/2021 passed by the Hon‟ble High Court of M.P., where the question of recovery of Revenue amounting to 67 crores was in question. The issue with regard to DSR, validity of the DSR and compliance of the Sand Mining Guidelines, 2020 was not in issue in that matter and that matter relates only to the recovery of the penal amount.
Contention of the Learned counsel for respondent no. 8 & 9 are to the effect that DSR was finally approved by the competent authority SEIAA, MP on 23.05.2022 and the proceedings were in accordance with the Sand Mine Guidelines. The matter may be examined by the SEIAA in accordance with the relevant rules and since the DSR was finalized and approved by the SEIAA only on 23.05.2022 thus actions taken on the basis of DSR after approval of DSR shall be taken into account and any NIT or the action on the basis of NIT prior to the date cannot be held to be valid and shall be in contravention of Sand Mine Guidelines, 2020.
45. The main questions raised in this petition are as follows:-
i. Question No. 1 : Requirement of DSR and its finality.
Answer : The Sustainable Sand Mining Management Guideline, 2016 & 2020 provides for the preparation of DSR and MoEF has 96 issued necessary directions. It is settled Law that District Survey Report for Sand Mining shall be prepared before the auction/e-
auction/grant of mining lease by the Mining Department or department dealing with the mining activities in the respective States. DSR is to be approved at the level of SEIAA with the help of SEAC. The DSR becomes final on the date when it is approved by the SEIAA. With regard to the DSR relating to the district Raisen it was approved on 23.05.2022. Thus, the valid DSR/approved DSR came into existence on 23.05.2022 district Raisen, the question is replied accordingly.
ii. Question no. 2: Sanctity of NIT in absence of DSR or DSR duly approved by SEIAA.
Answer: In view of the discussion made above and in view of Prabhat Mohan Pandey case (Supra) and the direction issued in the Pawan Kumar Case, the action of NIT in absence of valid DSR is in violation of Sand Mining Guidelines issued in 2016 & 2020, it becomes final only after the approval of the SEIAA. Any NIT before the date of approval of DSR by SEIAA is in contravention of the Rules, Guidelines and the directions issued by the Hon‟ble Supreme Court. The question is replied accordingly.
iii. Question no. 3: Continuance of mining operation, in absence of valid environment clearance or after expiry of the term.
Answer: Any mining activities on the basis of environmental clearance which was expired w.e.f. 31.03.2021 & 31.03.2022 ceased to be in accordance with law and the mining activities and EC granted in violation of category is also against the provisions of law and against the Sustainable Send Mining Rules, 2020.97
46. In the present case, Learned Counsel for the State/ SEIAA has submitted that the mining operation in which EC has expired, has been either cancelled or under consideration before the SEIAA. In light of above facts all those ECs whose terms has expired stand cancelled. The pending matters must be considered and decided according to law by the MPSEIAA within a time frame or say within 15 days and take a suitable decision and intimate accordingly.
47. In view of the above facts, the summary of the conclusions and directions are as follows :-
i. The DSR in the district Raisen was finalized/approved by the MPSEIAA on 23.05.2022. Any action taken on the basis of NIT issued prior to 23.05.2022 including (26.11.2021) is irregular, void, having no effect and, in violation of guidelines and stands cancelled. The respondents may initiate exercise as fresh on the basis of approved DSR i.e. dated 23.05.2022 in the district of Raisen.
ii. The environment clearance whose terms has expired either on 31.03.2021 & 31.03.2022 stands canceled and Madhya Pradesh State Environmental Impact Assessment Authority is directed to cancel the remaining matters, where the matter is under scrutinization before the authorities concerned and take appropriate decision within 15 days. Till the Final decision is taken by the appropriate authority/ MPSEIAA, no mining activities are permitted in the concerned districts under question where the EC has been expired on the basis of expired ECs.98
iii. We direct the Madhya Pradesh State Mining Corporation and the MPSEIAA to rectify the EC in accordance with law and in light of the judgment and orders passed by this Tribunal in Prabhat Mohan Pandey vs. State of MP & Ors. (Supra).
iv. Issue of electronic traffic passes by the MPSMC portal from the mines whose EC has expired is illegal, irregular and in contravention of Sand Management Guidelines and the respondents are directed to take necessary actions to control the illegal mining in accordance with law.
48. The Original Application No. 38/2022 with all I.As stands disposed of in view of the above order. A copy of this order be forwarded to Madhya Pradesh State Environmental Impact Assessment Authority, Madhya Pradesh State Mining Corporation, Madhya Pradesh Pollution Control Board, Director, Geology & Mining, Madhya Pradesh, Collector, Raisen, Devas, Harda, Sehore for taking necessary actions in accordance with law.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 17th October, 2022 OA No. 38/2022(CZ) PN 99