National Green Tribunal
Dr Brijmohan Sapoot Kala Sanskriti Sewa ... vs State Of Rajasthan on 30 September, 2024
Item No. 05
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 194/2024(CZ)
I.A. No. 88/2024, I.A. No. 89/2024,
I.A. No. 90/2024, I.A. No. 91/2024,
I.A. No. 92/2024, I.A. No. 93/2024,
I.A. No. 94/2024, I.A. No. 95/2024,
I.A. No. 98/2024.
Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Applicant(s)
Vs.
State of Rajasthan & Ors. Respondent(s)
Date of completion of hearing and reserving of order : 25.09.2024
Date of uploading of order on website : 30.09.2024
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant(s): Mr. Arvind Nayyar, Sr. Adv.
Mr. R.K. Agarwal, Sr. Adv.
(with Mr. Aman Jha, Adv.)
Mr. Pratap Thakur, Adv.
Mr. Rishi Tutu, Adv.
For Respondent(s) : Mr. Shashank Shekhar, Sr. Adv.
(Mr. Shoeb Hasan Khan, Adv.,
Mr. Rishabh Kumar, Adv. and
Mr. Samresh Katare, Adv.)
Mr. Arvind Verma, Sr. Adv.
Mr. R.B. Mathur, Sr. Adv.
(with Achint Kumar, Adv.)
Mr. Om Shankar Shrivastava, Adv.
Mr. Sachin K. Verma, Adv.
(with Ms. Harshita Tejwani, Adv.)
Mr. Rohit Sharma, Adv.
Mr. Ravikant Patidar, Adv.
Mr. Sandeep Singh Patidar, Adv.
Mr. Prateek Singh Baghel, Adv.
ORDER
1. Heard the learned counsels for the parties and perused the record.
2. The respondent has filed the reply and applicant has filed the rejoinder to the reply filed by Respondent no. 1 and Respondent no. 2. I.A. No. 1 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
88/2024 to 95/2024 and 98/2024 have been filed by the intervenors and reply to the I.A. has been filed.
3. The contentions of the applicant are that the Respondent No. 2 has issued total number of 09 E-Auction Notices (Annexure-2) for Minor Mineral Bajri putting 114 number of plots for various Districts of Rajasthan, wherein 14 Plots of Tonk District and 32 Plots of Bhilwara District have been put for E-Auction in so far as District Bhilwara and Tonk is concerned. The Tehsil-wise breakup pertaining to Plots for Minor Mineral Bajri put far E-
Auction in respect of Bhilwara and Tonk District is furnished as under:
District Tehsil Bajri Plots put Remarks
for auction
Deoli 07
Tonk
Tonk 07
Sawalpur 09
Bhilwara Mandalgarh 08
Hurda Vijay Nagar 07
Hamirgarh 07
Baguda 01
4. The Respondent No. 2 has prepared DSR for District Tonk and Bhilwara, which have been approved by the SEIAA (Respondent No. 4) vide letter No. F.1(4)/SEIAA/SEAC/DSR/2023-24 dated 21.09.2023 in respect of District Tonk and vide letter No. F.1(4)/SEIAA/SEAC/DSR/2023-24/2568 dated 29.01.2024 in respect of District Bhilwara. The DSRs have been approved by SEIAA with condition that "Mining Department will ensure compliance of all the directions of the Hon'ble Courts and Guidelines of Sustainable Sand Mining Management Guidelines, 2016 and Enforcement & Monitoring Guidelines for Sand Mining, 2020 (EMGSM-2020) before the Auction/E-Auction/grant of Mining Lease/Letter of Intent". Thus, the 2 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
DSRs have been approved subject to compliance of aforesaid condition.
That both the DSRs are not containing any proposed leases for Auction.
Further, both the DSRs are not containing any proposed Cluster Mining Leases or Contiguous Cluster Mining Leases. As per EMGSM, 2020, it is mandatory for incorporation of proposed Mining Leases in the DSRs after public consultation and the final list of Sand Mining Areas proposed for Leases are required to be defined in the final DSR after the public hearing.
5. That the Respondent No. 2 has put on Auction total 46 of Bajri Plots for Auction in respect of District Bhilwara and Tonk and the said Plots have been distributed among various Auctions to mislead that these are separate Plots without forming any Cluster or contiguous cluster.
However, if the total Plots for both the Districts put for Auction are analyzed, it would appear that the Respondents have put on Auction cluster of Bay' Leases in violation of the limit prescribed under EMGSM, 2020. By putting the 46 Bajri (River Sand) Plots for Auction in District Bhilwara and Tonk without having any distance and gap of 500 meters and it is in violation of order of Hon'ble Supreme Court of India passed in State of Bihar & Ors. Vs. Pawan Kumar & Ors. (2022) 2SCC 348.
6. The main contention of the intervenors are that they participated in the proceedings of e-auction and after that, they have deposited a certain amount as earnest money under requisite fee and then participated in the said e-auction and in the meantime, the intervenor received a letter bearing RajKaj Ref 9698015 dated 13.08.2024 from Mining Engineer, Bhilwara directing the Intervener to submit the requisite documents along with first installment of 40% of premium amount after adjusting the bid security amount at Rs. 40,00,000/-.
7. That meanwhile the Intervener came to know that instant OA has been filed before this Hon'ble Tribunal, wherein the validity of DSR in respect of 3 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
District Bhilwara and District Tonk has been challenged and it is also noticed that the E-auction conducted by the Respondent No. 2 of the OA i.e. DMG in respect of aforesaid, Mining Plot BJ-09, Bhilwara has not been incorporated in the DSR under proposed Mining Leases thereby there is gross violation of various provisions of Enforcement and Monitoring Guidelines for Sand Mining, 2020. Thus, the whole proceedings being conducted by the Respondent No. 4 of the OA i.e. DMG is nullity in the law. It was also noticed by the Intervener that this Hon'ble Tribunal has heard the instant OA No. 194/2024 (CZ) on 08.08.2024, wherein the notices has been issued to the Respondents and Respondents are directed to submit their reply/counter affidavit before the next date of listing.
Further, the matter has been ordered to be listed on 25.09.2024. On going through the aforesaid order dated 08.08.2024 and contention raised by the Applicant, it transpires that the impugned E-auction was conducted by making misrepresentation thereby the Intervener furnished representation vide letter dated 14.08.2024 to the Respondent No. 2 of the OA LC. DMG raising following issues:
a) The Auction Notice is containing terms & conditions that the lessee shall have to comply with Para-11 (III) of the Report dated 23.12.2020 of Central Empowered Committee submitted before Hon'ble Supreme Court of India and Sustainable Sand Mining Management Guidelines, 2016 & Enforcement & Monitoring Guidelines for Sand, 2020 issued by the MoEF&CC.
b) The aforesaid condition would show that the lessee is under obligation to comply with EMGSM, 2020 thereby it is assumed that the Department would have complied with the said Guidelines in right earnest and meticulously inasmuch as the 4 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
compliance of the said Guidelines is statutory obligation on the part of the Department thereby assuming that the Department has complied with the aforesaid Guidelines, the Intervener participated in the auction proceedings.
c) However, on bare perusal of the order dated 08.08.2024 passed by this Hon'ble Tribunal and contention raised by the Applicant would show that various directions of the EMGSM, 2020 having statutory force have not been complied with by the Department and the DSR, on the basis of which e-auctions are being conducted, has been prepared in violation of the EMGSM, 2020 thereby there is gross violation of orders passed by Hon'ble Supreme Court of India in Bihar State & Ors Vs. Pawan Kumar & Ors (2022) 2 SCC 348. Further, the various orders of this Hon'ble Court has also not been complied with inasmuch as without following the due process of preparing DSR, as prescribed under EMGSM, 2020 and without considering demand and supply and so also availability of alternative source of Sand, the E-Auctions have been conducted on the basis of misrepresentation.
d) The Intervener participated in the E-Auction proceedings on the basis of misrepresentation of the Department thereby on coming into notice that there is violation of provisions of EMGSM, 2020, various orders of this Hon'ble Tribunal and orders of Hon'ble Supreme Court of India, more particularly in the case of Pawan Kumar (supra), it was requested by the Intervener to the Respondent No. 2 of the OA Lc. DMG to keep the further proceedings in respect of aforesaid Plot No. BJ-09 5 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
situated in District Bhilwara till the matter is finally heard and decided by this Tribunal.
8. The contention of the learned counsel for the intervenor are that the Enforcement and Monitoring Guidelines for Sand Mining, 2020 with regard to the DSR has not been complied and there was no public consultation or public hearing, thus, he asked the authorities concerned to clarify the position and thus, not deposited the amount.
9. The submission of the learned counsel for the respondent nos. 1 and 2 are that Shri Satya Swaroop Singh Jalon filed a SB civil writ petition 5291/24 before the High Court of Judicature for Rajasthan at Jodhpur challenging e-Auction NIB/advertisement dated 15-02-24 on the ground that preparation/ approval of DSR of Bhilwara district was not duly made in accordance with sustainable sand mining Management guidelines 2016 and Enforcement and Monitoring guideline for sand mining 2020. The stay petition was rejected on 22.03.2024 by the court after detailed examination with the observation reproduced here under :
"Learned counsel for the respondents submits that in similar controversy, this Court after hearing the matter on stay vacation application, has dismissed the same vide order dated 21.03.2024 : Satya Swaroop Singh Jadon Vs. State of Rajasthan & Ors. passed in SBCWP No.3666/2024 The said order is reproduced hereunder:-
1. Heard learned counsel for the parties on stay petition.
2. This writ petition has been filed by the petitioner challenging the e-auction advertisement dated 15.02.2024 (Annex.11), issued by the respondents for auction of the plots in order to grant mining lease for mineral river sand/Bajri in the State of Rajasthan. The petitioner has also sought a direction to the 6 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
respondents not to conduct the auction until the District Survey Report ('DSR') is duly made and approved by the competent authority i.e. State Environment Impact Assessment Authority ('SEIAA'). The petitioner has also prayed that until the replenishment study is conducted and guidelines meant under the Sustainable Sand Mining Management Guidelines, 2016 and Monitoring Guidelines for Sand Mining, 2020 are adhered, the auction may not be allowed to conducted. Certain other ancillary relief(s) have also been sought by the petitioner.
3. As an interim measure, the petitioner has prayed that during pendency of the writ petition, operation of the e- auction advertisement dated 15.02.2024 (Annex.11) be stayed.
4. Learned counsel for the petitioner contended that earlier excavation of mineral Bajri in the State of Rajasthan was governed as per Rule 63 of the Minor Mineral Concession Rules, 1986, whereby anyone could excavate Bajri after paying the royalty and permit fees, which practice was deprecated by the Hon'ble Apex Court in the case of Deepak Kumar v. State of Haryana & Ors. : (2012) 4 SCC 629, wherein while considering the possible environmental impact on river beds on account of illegal/excess excavation of mineral Bajri, various directions have been issued by the Hon'ble Apex Court.
5. Learned counsel for the petitioner submitted that pursuant to directions issued in the case of Deepak Kumar (supra), the respondent State proceeded to identify the plots for auction and issued NIT(s) for auction of the plots for grant of mining lease and qua district Jalore, the NIT dated 29.01.2013 came to be issued for mineral Bajri at reserve price of Rs.1,58,10,000/- for an area admeasuring 5269.00 7 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
hectare. Pursuant to the said NIT, the petitioner submitted his bid and in the bid process, the petitioner was declared highest bidder and thereafter Letter of Intent (LoI) came to be issued in favour of petitioner on 26.04.2013 (Annex.1).
6. It is submitted that after issuance of the LoI in favour of petitioner, the petitioner was awarded the mining lease for a period of five years vide order dated 12.07.2017 (Annex.2) on fulfillment of conditions enumerated in the LoI. It is further submitted that the mining lease was awarded in favour of petitioner and the same came to be operational for a period of five years from 30.12.2013. The petitioner in order to execute the agreement and proceed with excavation activities, applied for grant of Environmental Clearance (EC) before the concerned authority, however, on account of delay in securing the requisite EC, and on account of issuance of new conditions or requirements by the authorities the EC could not be issued.
7. It is submitted that in the meanwhile the Hon'ble Apex Court vide order dated 16.11.2017 passed in the case of Naveen Sharma v. The State of Rajasthan & Ors. :
Special Leave to Appeal (C) No.34811/2013 proceeded to direct that no mining activity shall be undertaken till environmental clearance is granted. Learned counsel for the petitioner further contended that a dispute arose between the Bajri LoI Holders and the State Government with regard to certain conditions of the LoI and the litigation went up to Hon'ble Apex Court and the Hon'ble Apex Court vide order dated 19.02.2020 after considering factual historical background for excavation of mineral Bajri appointed Central Empowered Committee to look into the issue of river sand mining in the State of Rajasthan.8
OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
8. Counsel for the petitioner submitted that the respondents thereafter issued an advertisement dated 06.12.2023 for e-auction of 22 plots for mineral Bajri, wherein two plots which are sought to be auctioned qua Jalore district, lie within the earlier lease hold area of the petitioner. The aforesaid advertisement dated 06.12.2023 was assailed by the petitioner by filing a writ petition being SBCWP No.19297/2023, as the said advertisement was issued in contravention to mandatory guidelines of 2016 and 2020 and the provisions of law. Since, the respondents withdrew the advertisement dated 06.12.2023, the writ petition preferred by the petitioner was dismissed with liberty to file fresh petition.
9. Counsel for the petitioner submitted that after withdrawing the earlier e-auction advertisement, the respondents again issued a fresh advertisement dated 15.02.2024 (Annex.11) qua 22 plots for grant of mining lease for mineral river sand/Bajri, subject matter of challenge in the instant writ petition.
10. This Court vide order dated 04.03.2024 after hearing learned counsel for the petitioner stayed the e-auction advertisement dated 15.02.2024 (Annex.1).
11. Mr. Vikas Balia, learned Senior Advocate vehemently contended that the auction advertisement has been issued by the respondents without adhering to the mandatory prerequisites provided for issuance of the advertisement for grant of mining lease as also in violation of settled position of law. Counsel for the petitioner contended that while issuing the e-auction advertisement (Annex.11), the guidelines viz. Enforcement and Monitoring Guidelines for Sand Mining, 2020 issued by the Ministry of Environment, Forest & Climate Change and Sustainable Sand Management Guidelines, 2016 respectively have not at 9 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
all been taken into consideration. It is further contended that while issuing the e-auction advertisement, the respondents have not even taken into consideration the directions issued by Hon'ble Apex Court in the case of Bajri Lease LoI Holders Welfare Society v. The State of Rajasthan & Ors. :
Special Leave Petition (Civil) No. 10587 of 2019, vide order dated 11.11.2021, whereby the recommendations made by the Central Empowered Committee ('CEC') have been approved by the Hon'ble Apex Court.
12. Learned counsel for the petitioner contended that SEIAA made a communication dated 21.09.2023 (Annex.15) to the Director, Mines and Geology in which it was specifically mentioned that DSR of remaining 15 districts (other than Tonk) had to be incorporated with certain data within a period of six months, whereas the respondents without incorporating the said details in the DSR for 15 districts have proceeded while issuing the fresh advertisement dated 15.02.2024 (Annex.11).
13. On the other hand, the respondents have filed reply to the writ petition. The respondents have also preferred an application under Article 226 (3) of the Constitution of India for vacation of the interim order dated 04.03.2024.
14. Learned Advocate General while justifying the issuance of e-auction advertisement dated 15.02.2024 (Annex.11) vehemently contended that the fresh e- auction advertisement has been issued in compliance of the directions issued by the Hon'ble Apex Court vide order dated 11.11.2023 and in pursuance of the Guidelines of 2016 and 2020. It is submitted that DSR(s) for 15 districts were approved by the State Environment Assessment Committee ('SEAC') in its 10 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
meeting dated 05.09.2022 and recommendation was made by SEAC to SIEAA to grant approval. It is submitted that the approval to DSR(s) was granted by SIEAA on 21.09.2023 qua 15 districts in relation to mineral Bajri with Condition 'd' incorporated in the approval, which was required to be complied with within a period of six months, which has duly been complied with within the times prescribed i.e. six months.
15. It is submitted that out of 22 plots, which are situated in six districts, out of which qua two districts viz. Tonk and Bhilwara, the approval was granted on 21.09.2023 without there being any condition/rider and qua rest of four districts, in which condition 'd' was incorporated, has been complied with and thus the apprehension of the petitioner that without approval of the DSR(s), the auction has been undertaken, is misconceived. Learned counsel for the respondents clarified that the DSR has been duly approved and qua NOC(s) from the authorities concerned, it is contended that demarcation and inspection of all 22 plots have been undertaken by the representatives of the Department concerned and thereafter the Sub Committee after due inspection recommended to put 22 plots to auction.
16. Learned Advocate General submits that SEIAA had issued approval to the DSR(s) for Sand/River Bed Mining for districts Jalore, Tonk, Bhilwara, Nagaur, Rajsamand and Pali on 21.09.2023. He also submitted that the said approvals are also placed on record as Annex.R/1. It is further contended that the respondents in pursuance of the approval so accorded, also fulfilled the condition 'd' and the same was duly forwarded to SEIAA. Learned Advocate General further submitted that State Environment Assessment Committee held a meeting on 10.08.2023 and fifteen 11 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
days' time was given for submitting the clarification and revised DSR(s) and accordingly, the same was done and the Committee held its meeting on 05.09.2021, in which after considering the revised DSR(s), which was in consonance with the Guidelines of 2016 and 2020 recommendation for approval of DSR(s) of 16 district. It was also contended that while preparing the DSR(s), the respondents have complied with the directions and requirements and also refuted the contention of the petitioner that representatives of the respective Departments were not present and the averred that the same is misplaced, as the Sub Divisional Committee consisting of representatives of Department of Revenue, Department of Mines and Geology, Department of Water Resources and Pollution Control Board were very much present.
17. Learned counsel for the respondents thus prayed that the exparte interim order be vacated and the stay petition preferred by the petitioner be dismissed.
18. I have considered the submissions made by counsel for the parties and have perused the material available on record.
19. Upon perusal of Annex.R/1 dated 21.09.2023 placed on record by the respondents, it is seen that the Member Secretary, SEIAA granted approval of the DSR(s) for Sand or River Bed mining for respective districts. The Secretariat, State Level Expert Appraisal Committee held a meeting on 10.08.2023 (Annex.R/3) for the purpose of examination of DSR(s) for Sand or River Bed Mining. The said Committee examined the DSR(s) of 13 districts and 9 members attended the said meeting. In the said meeting, it was observed by the Committee that the Nodal Officer for Sand Mining and ADM, Department of Mines and Geology shall submit clarification on the issues cited above as discussed in 12 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
the meeting alongwith due rectification of the shortcomings/deficiencies in the DSR(s) accordingly and for that purpose, a time period of fifteen days was given.
20. On 05.09.2023, another meeting was held, which was duly attended by nine members. The Nodal Officer for Sand Mining and ADM, Department of Mines and Geology submitted the reply and point wise compliance regarding recommendations made by CEC for preparation of DSR(s). The Department also submitted a detailed note in respect of main provisions related to the procedure to be adopted for preparation of DSR(s) as per the Guidelines of 2016 and 2020 alongwith revised DSR(s) to SEAC-1. The Mining Department had also submitted a reply and the revised DSR(s). The Committee after going through the reply and revised DSR(s) submitted by ADM, Department of Mines and Geology noted that the Mining Department has revised the DSR(s) as per the observations of the CEC.
21. The Committee thereafter observed that SEAC-1 examined the DSR(s) of 16 districts in its meeting held on 05.09.2023, which was attended by the Nodal Officer for Sand Mining and ADM, Department of Mines and Geology, Government of Rajasthan, Jaipur, who had participated as an expert from the Department of Mines and Geology for examination of DSR(s). The Committee had observed that the Mining Department has accepted that all the DSR(s) that have been prepared in accordance with the provisions of Ministry of Environment, Forest and Climate Change Notifications dated 15/01/2016 and 25/07/2018 as well as the Guidelines of 2016 and 2020; and that the representative of the Mining Department has ensured the compliance of the directions of the Hon'ble Apex Court as well as Guidelines of 2016 and 2020 prior to auction/e-auction of the grant of mining lease/letter of 13 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
intent by the Mining Department. The Committee after detailed deliberations resolved that revised DSR(s) for Sand or River Bed Mining for all the 16 district (13 districts, namely, Rajsamand, Tonk, Barmer, Ajmer, Jodhpur, Baran, Jhalawar, Chittorgarh, Alwar, Pali, Jalore, Sawaimadhopur, Jhunjhunu and three districts viz. Banswara, Bundi and Nagaur) are recommended for approval with certain conditions. The relevant part of the resolution of the meeting is reproduced herein below:
"Observations of the committee:
The SEAC-1 examined the DSRs of 16 districts in its meeting held on 05.09.2023. Shri B S Sodha, Nodal Officer for sand mining & ADM Department of Mines and Geology, Government of Rajasthan, Jaipur participated as an expert from the Department of Mines and Geology for the Examination of District Survey Report (DSR).
The Mining Department has accepted that all the DSR/s have been prepared in accordance with the provisions of Ministry of Environment, Forest and Climate Change Notification dated 15/01/2016 and 25/07/2018, the Sustainable Guidelines for Sand Mining Management Guidelines, 2016 and Enforcement & Monitoring Guidelines for Sand Mining, 2020 (EMGSM-2020).
The representative of the Mining Department has mentioned that department will ensure compliance of all the directions of the Hon'ble Courts and Guidelines of Sustainable Sand Mining Managing Guidelines, 2016 and Enforcement & Monitoring Guidelines for Sand Mining, 2020 (EMGMS-2020) before the auction/e-auction/grant of mining lease/Letter of intent (LOI) by the Mining Department. The actual mining area will be selected as per DSR at the time of preparation of mining blocks for auction by sub divisional 14 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
committee as provided in MoEF & CC Notification dated 28.07.2015 and all the conditions will be taken care of.
Resolution:
After detailed deliberation, the Committee resolved that revised DSRs for Sand or River Bed Mining for all the 16 districts (13 districts namely Rajsamand, Tonk, Barmer, Ajmer, Jodhpur, Baran, Jhalawar, Chittorgarh, Alwar, Pali, Jalore, namely Banswara, Bundi, Nagaur) are recommended for approval with following conditions:
1. Mining Department will ensure compliance of all the directions of the Hon'ble Courts and Guidelines of Sustainable Sand Mining Managing Guidelines, 2016 and Enforcement & Monitoring Guidelines for Sand Mining, 2020 (EMGMS-2020) before the auction/e-auction/grant of mining lease/Letter of intent (LOI).
2. As per MoEF & CC Notification dated 15/01/2016, DSR shall be updated once in five years.
3. All environmental concerns shall be taken care of and no damage is caused to the environment."
22. It is also seen that the joint inspection was carried out by the team of the members of respective Departments for the plots, which have been put to auction vide the advertisement (Annex.11) in question and the copies of said reports have been placed on record as Annex.R/4 and R/6 respectively. The joint inspection/recommendation for the respective plots/districts have been carried 15 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
out by concerned S.D.M., Mining Engineer(s) concerned, Executive Engineer, Water Resources, Division-I, Superintending Scientist Officer, RPCB, Geo-Scientist, and Mineral Executives. The demarcation reports for the plots, sought to be auction, have been prepared by the concerned authorities, copies whereof are placed on record as Annex.R/5.
23. Upon perusal of various inspection reports, placed on record, it is seen that the inspection Committee has given NOC/opined that there are no public places viz. temple, mosque, railway line, school, hospital, high tension electricity line and the there is no forest land within 25 meters periphery of the demarcated area.
24. Thus, upon perusal of the said documents, it is seen that the respondents after obtaining the approval of the DSR(s) for sand or river bed mining from SEIAA and after getting inspection done of the plots, which have been put to auction by way of advertisement, have issued the auction notice dated 15.02.2024 (Annex.11). There is no iota of doubt that the respondents have not only complied with the directions of the Hon'ble Apex Court in the case of Bajri Lease LoI Holders Welfare Society (supra) as also the Guidelines of 2016 and 2020.
25. The precise contention of learned Senior Counsel for the petitioner is that the respondents have utterly failed to comply with the directions passed by the Hon'ble Apex Court in the case of Bajri Lease LoI Holders Welfare Society (supra) and the said directions reads as under:
16OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
"H. The State Government will auction the sand mining leases after proper ground demarcation and after assessing the extractable sand resources as given in the approved DSR and after obtaining no objection certificates from all concerned authorities. The sale of mining blocks objected to by any of the government departments shall not be put up for tender/auction."
26. The said contention of learned Senior Counsel for the petitioner is not sustainable, inasmuch as pursuant to the directions issued by the Hon'ble Apex Court, the respondents were under an obligation to take approval by SEIAA of the DSR(s) for Sand or River Bed Mining for the districts of which the plots have been put to auction and obtained NOC(s) from the concerned authorities and it is writ large that SEIAA has duly approved the DSR(s) of all the districts for which the plots have been put to auction and further no objections certificates from the concerned authorities have also been taken prior to putting the plots for auction.
27. The upshot of above discussion is that the exparte interim order dated 04.03.2024 granted by this Court deserves to be vacated, the same is accordingly vacated. The Stay Petition No.3783/2024 is thus dismissed."
Mr. Vikas Balia, learned Senior Counsel representing the petitioner submits that the situation in case at hand is similar to the auction notice dated 15.02.2024 (Annexure-11), which was the subject matter of the writ petition bearing SBCWP No.3666/2024.
17OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
Thus, in light of the aforequoted order i.e. Satya Swaroop Singh Jadon Vs. State of Rajasthan & Ors. (supra), the present stay application No.5419/2024, is dismissed."
10. It is further submitted that the Special Appeal Writ No. 420/2024 and 421/2024 were filed before the Division Bench High Court of Rajasthan at Jodhpur against above quoted order which was rejected vide order dated 06.05.2024, which is as follows :-
1. "Since these three appeals arise out of order passed by the learned Single Judge rejecting the stay application and vacating the interim order, with the consent of the parties, the appeals were finally heard together and decided by this common order.
For brevity and convenience, the records of D.B. Special Appeal Writ No.429/2024, which have been referred to by the learned counsel for the parties, are being considered for deciding these appeals.
2. Assailing correctness and validity of the order passed by the learned Single Judge by which prayer for grant of stay has been rejected, learned senior counsel appearing for the appellant would submit that the learned Single Judge has failed to appreciate that a very strong prima facie case was made out by the appellant inasmuch as it is apparent from the record that the so called District Survey Report ('DSR' for short) (Annexure.A15) dated 21.09.2023 cannot be said to be an approved DSR in respect of the Districts in view of para (d) contained therein. It only shows that the authority was in the process of collecting various data for being analyzed and scrutinized by the competent authority i.e. the State Environment Impact Assessment Authority, Rajasthan ('SEIAA' for short), therefore, the so called DSR could not be said to be validly approved vide letter dated 21.09.2023. Further submission is that even though various information, as received under Clause (d) of the letter dated 21.09.2023, have been collected and placed on record, there is no independent analysis of the same by SEIAA and, therefore, it cannot be said to be a case of approved DSR. Unless 18 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
there is an approved DSR, even the environment clearance cannot be granted and, therefore, the entire exercise of identifying extractable area for mining purposes and initiating the process for auction is in patent violation of not only the governing rules and guidelines, but also the directions of the Hon'ble Supreme Court in the case of Bajri Lease LOI Holders Welfare Society Vs. State of Rajasthan & Ors. [SLP (Civil) No.10587/2019]. The next submission is that even the requirement of Clause 4.1.1(p), which mandates invitation of objections and consideration of the same, has also not been followed. No objection was published/invited and, therefore, the DSR cannot be said to be validly approved.
3. Further submission is that no NOC was obtained in terms of the directions of the Supreme Court in the case of Bajri Lease LOI Holders Welfare Society(supra). It is submitted that constituting a joint inspection team on the spot instead of obtaining individual report from the departments, is illegal. In any case it is argued that constitution of committee is illegal as it did not involve a representative of the forest department. Lastly, it is submitted that coordinates for DSR auction are different and the plots were also overlapping as per the map.
4. On the other hand, learned counsel for the official respondents would submit that the District Survey Report has been prepared after a detailed examination and strictly in accordance with the applicable rules and regulations and directions of the Supreme Court in the case of Bajri Lease LOI Holders Welfare Society(supra). Learned counsel for the State would further submit that the letter granting approval on 21.09.2023 is quite clear and it is not a case where no relevant data was collected or analyzed. He would also submit that during pendency of the writ petition, various information, as contained in Clause (d) of the letter dated 21.09.2023, have been collected and placed on record which satisfy the requirement of a proper survey, to identify the extractable area for mining as also the area which is to be excluded from the purview of mining activity. Further 19 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
referring to the document (Annexure.R3) filed along with the return, it is also submitted that all the conditions, as incorporated in Clause (d) of letter dated 21.09.2023, have been fulfilled and necessary caution and care have also been taken after detailed consideration before granting approval. Condition
(d) applies to few districts only relating to 11 plots of Rajsamand, Jalore, Nagaur and Pali. Referring to various letters in respect of the aforesaid districts, it has been argued that all the conditions, as contained in the approved District Survey Report dated 21.09.2023, are fulfilled. Learned counsel for the State would further submit that as there is no forest area involved, there was no necessity of including any representative from the forest department. Even the petitioner has not placed any material to show that the disputed area is covered wholly or partially with forest. He would also submit that all these departments, from whom NOC was required, provided their representative and a joint inspection team was constituted which inspected the area. There is no malafide alleged against the authority individually or collectively. He would further submit, referring to the report annexed along with the reply, that the procedural requirement of inviting objections has also been duly fulfilled and the objections were not only invited but also duly considered. The allegations of overlapping are disputed as factually incorrect referring to maps annexed along with the reply.
5. Learned counsel appearing for LOI holders would also submit that the present petition is not bonafide but is filed by the petitioner, who himself is the mining operator and is operating some of the mines in question, only to forestall the process of auction so that due to delay and failure of auction process, the department again reverts back to him to continue his mining lease over the parts of the disputed area. It is submitted that the sole object of the petitioner is to monopolize the mining activity in the disputed area.
20OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
6. We have heard learned counsel for the parties, perused the records, pleadings and the documents available on record before us so also the order passed by the learned Single Judge.
7. Though it is only a matter regarding consideration of prayer for stay, we find that the learned Single Judge has considered, in great detail, not only the submissions of learned counsel for the parties, but also recorded prima facie observations in the detailed order to conclude that present is not a case for grant of stay.
8. The exercise of jurisdiction by the writ Court in the matter of grant of interim relief is ordinarily not open to interference in intra-court appeal, unless an exceptional case is made out. If there is possibility of more than one view while deciding the application for grant of stay, a view taken in exercise of discretion by the writ Court would ordinarily not be interfered with. Detailed consideration made by the learned Single Judge speaks for itself that parties were heard at length and thereafter the order was passed.
9. The dispute is sought to be raised by the appellant, who himself operates some of the mines on part of the area covered under the dispute. His period of lease has expired. Though the process of auction was initiated, he did not choose to participate but seeks to challenge the auction proceedings mainly on the ground that there is no approved DSR and also on the other grounds such as non-invitation of objections, non-inclusion of representatives of forest department in the joint inspection committee etc.
10. It is not a case that there is no approval of District Survey Report.
Present is a case where correctness and validity of the approval granted to the District Survey is under challenge. Along with the report, various materials with regard to information as required under Clause (d) of letter dated 21.09.2023 as also information with regard to various plots situated in districts of Nagaur, Pali, Jalore and Rajsamand have been placed on record. There are also material placed on record by the respondents to indicate 21 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
regarding inviting of objections. There is specific stand taken that there is no forest area covered, therefore, a representative of the forest department was not considered necessary to be included in the joint inspection team. Moreover, petitioner has not come out with the clinching material that the disputed area is under forest coverage. Therefore, it is not a case where no inspection has been held. Representatives of various departments from which NOC was required to be taken have provided their representatives to facilitate the join inspection. This is only intended to expedite the process.
11. Keeping in view the aforesaid facts and circumstances and the material on record, the learned Single Judge has vacated the stay in exercise of her discretion. We do not find any ground to interfere with the detailed order passed by the learned Single Judge.
12. Before parting with the case, to dispel the apprehension on the part of the appellant that the learned Single Judge has recorded findings on merits of the case, we would hasten to add and also clarify that whatever has been observed by the learned Single Judge in the impugned order are only prima facie observations, limited and confined to the stage of consideration of interim application. It will be open for the appellant to raise all the grounds, as are available to it, at the time of hearing of the writ petitions.
13. Furthermore, we give liberty to the appellant to pray before the learned Single Judge for expeditious hearing of the writ petitions.
14. All the appeals are accordingly dismissed."
11. It is further argued that, aggrieved by the order of this Tribunal passed in Original Application No. 171/2013, NGT Bar Association vs. Ministry of Environment, Forest and Climate Change, the State of Rajasthan preferred Civil Appeal No. 9703/2013 before the Hon'ble Apex Court and Hon'ble 22 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
the Court, stayed the further proceeding and directed for further proceedings. The issue of sand mining, its control on illegal mining was further raised before Hon'ble the Supreme Court of India in SLP No. 10587/2019 and vide order dated 19.02.2020, Hon'ble the Supreme Court of India passed an order as follows:-
"We find that the issue of sand mining in the State of Rajasthan has become extremely complicated and probably chaotic. The parties before us blame each other for the present situation. In these circumstances, we consider it appropriate to accept the suggestion of Shri Naveen Sharma, the petitioner appearing in person in C.P. © No. 674/2019 in SLP© No. 34811/2013, that the CEC should be empowered to go into this issue and submit a report to this Court on the problems relating to sand mining that are faced by the traders, the consumers, the transporters, the State and other stakeholders. It would be necessary for the CEC to also go into the question of illegal mining and suggest measures for stopping such illegal mining.
Shri Mahendra Vyas, who is a member of the CEC is present before us and suggest that the CEC will carry out the mandate of this Court and submit a report along with recommendations within six weeks. The CEC shall have the power to summon any person, including, Government officials for the purpose of making the aforesaid enquiry for preparing the report. The CEC shall also hear the representatives of the State Government, Dastak NGO, the LOI holders, the stakeholders and Shri Naveen Sharma. The CEC shall be entitled to obtain copies of any court proceedings on the subject.
It is not disputed by anybody, including the State, that illegal sand mining is rampant in the State of Rajasthan. This cannot be allowed to continue. We, therefore, direct the State of Rajasthan and in particular, the Collector and the Superintendent of Police for each District in Rajasthan to take immediate steps for stopping illegal sand mining as there is no doubt that such 23 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
unbridled sand mining is likely to damage the environment irreparably. The State of Rajasthan shall submit an action taken report to this Court within a period of four weeks from today.
Put up on a non miscellaneous day in end of April, 2020 along with SLP© Nos. 34811/2013, 34134/2013 and Civil Appeal No. 9703/2013.
Permission is granted to learned counsel for the petitioners in SLP© Nos. 30739, 30740, 30741 and 30742/2019 to file spare copies in the respective matters."
12. The matter of sand mining in river bed has been raised before Hon'ble the Supreme Court of India in SLP No. (C) 10587/2019, in I.A. No. 29984/2021 namely Bajri Lease LoI Holders Welfare Society Vs. The State of Rajasthan with SLP No. 10670/2019 and the Hon'ble Court has constituted CEC and directed to comply with the recommendation to allow river sand mining. Relevant portion of the order is quoted below :-
1. Realising the damage caused to lakes, riverbeds and groundwater on account of quarry/ mining leases, the Ministry of Environment, Forest and Climate Change constituted a Core Group by its order dated 24.03.2009, to look into the following points:
"(i) To consider the environmental aspects of mining of minor minerals (quarrying as well as riverbed mining) for their integration into the mining process.
(ii) Specific safeguard measures required to minimise 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 24 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
manner for their adoption and implementation by all the mineral-producing States".
2. A report was submitted by the Core Group on the basis of which several recommendations were made by the MoEFCC relating to sand mining in March, 2010. Later, Model Guidelines on "Environmental Aspects of Quarrying of Minor Minerals" were formulated in 2010 for sustainable mining of minor minerals, along with draft rules titled Minor Minerals Conservation and Development Rules, 2010. In Deepak Kumar v. State of Haryana1, this Court directed the State Governments and Union Territories to implement the recommendations made by the MoEFCC in its report of March, 2010 and the Model Guidelines framed by the Ministry of Mines within a period of six weeks from the date of the judgment. The State Governments and Union Territories were also directed to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 ("MMDR Act"). The above directions were issued by this Court after recording the deleterious effects of sand mining on biodiversity, such as destabilization of the soil structure of river banks and loss of habitat, to name a few.
3. Pursuant to the directions issued by this Court in Deepak Kumar (supra), the Rajasthan Minor Mineral Concession Rules, 1986 ("1986 Rules") were amended by notifications dated 23.05.2012, 19.06.2012 and 21.06.2012. By the said notifications, mining leases for sand were to be given by tender / auction for a period of five years. Letters of Intent ("LoIs") were to be issued to the eligible applicants by the competent authority and the eligible applicants were required to submit the requisite No Objection Certificates, Environmental Clearance ("EC") and approved mining plan. As the grant of EC was likely to be delayed, the State of Rajasthan incorporated a provision in the 1986 Rules by way of the amendment dated 21.06.2012, permitting sand mining 25 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
through the then existing system of Royalty Collection Contract and issue of Temporary Work Permit, till EC is granted.
4. A total of 130 mining plots were identified for conduct of auction for sand mining. Tenders were received for 105 plots. LoIs were issued to each of the successful bidders with respect to the105 plots, who were further directed to submit a mining application and obtain EC under the notification dated 14.09.2006 issued by the MoEF&CC ("EIA Notification, 2006") and submit the same within a period of 12 months. Between November, 2013 and March, 2016, 65 out of the 82 LoI holders presented final Environment Management Plant (EMP) after Environment Impact Assessment (EIA) study and public hearing. The Expert Appraisal Committee (EAC) constituted under the EIA Notification, 2006 by the MoEFCC recommended grant of EC to these 65 LoI holders. As EC was not granted by the MoEFCC to most of the LoI holders within a period of six months, the State of Rajasthan sought for extension of time for continuing the then existing system of sand mining by way of Royalty Collection Contract. The High Court refused the request made by the State Government by an order dated 21.10.2013. Aggrieved thereby, the State Government filed SLP (C) No. 34134 of 2013 before this Court. This Court passed an interim order dated 25.11.2013 permitting the 82 LoI holders, who had submitted their applications for obtaining EC to the MoEFCC, to carry on mining operations in accordance with the notification dated 21.06.2012 amending the 1986 Rules. Temporary Work Permits were issued to 80 out of the 82 LoI holders to carry on mining operations pursuant to the said interim order. The interim order dated 25.11.2013 was extended by this Court on 24.02.2014 and 27.03.2014. Ultimately, by an order dated 16.11.2017, this Court restrained all the 82 mining lease / quarry holders from carrying on mining of sand and bajri, unless a scientific replenishment study is completed and EC is granted by the MoEFCC. This Court was concerned about the continuation of mining without EC. The State Government 26 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
stopped the mining activities pursuant to the order passed by this Court on 16.11.2017.
5. Shortly after, a notification was issued by the State of Rajasthan on 28.12.2017 with respect to Rule 51 of the Rajasthan Minor Mineral Concession Rules, 2017, permitting grant of short-term permits for excavation of sand in Khatedari lands only for Government-related works or organisations aided by the Government. The 2017 Rules were amended on 25.06.2018 by which Rule 17A was inserted, enabling the Government to grant mining lease in Khatedari lands to Khatedars.
6. On 28.02.2018, sub-rule (4) of Rule 5 of the 2017 Rules was amended. By the said amendment, the time period of one year for fulfilment of the conditions of the LoIs, including execution and registration of mining lease, was extended to 13 months from the date of commencement of the 2017 Rules, failing which the rights of the applicants would stand forfeited. According to the State Government, the LoIs of 74 members of the Bajri Lease LoI Holders Welfare Society had lapsed owing to non-fulfilment of conditions within the period of 13 months. The remaining 8 LoI holders, who had been issued EC and subsequently granted mining leases, could not continue with mining operations without the requisite replenishment study reports.
7. The Bajri Lease LoI Holders Welfare Society challenged the vires of sub-rule (4) of Rule 5 of the 2017 Rules in the High Court of Rajasthan. On 09.04.2019, the High Court dismissed the writ petitions. Thereafter, the Petitioner-Society filed SLP (C) No.10587 of 2019 assailing the judgment of the High Court. Notice was issued in the matter and an interim order was passed on 10.05.2019 restraining cancellation of the LoIs of the members of the Petitioner-Society. On 19.02.2020, this Court, taking note of the scale of the issue of illegal sand mining in the State of Rajasthan, directed the Central Empowered Committee to submit a report on the problems 27 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
relating to sand mining that are faced by traders, consumers, transporters, the State and other stakeholders and also on measures to stop illegal sand mining.
8. The CEC submitted its report to this Court dated 23.12.2020, in which the following recommendations have been made:
a) All the Khatedari leases located within 5 kms from the river bank as well as leases where violation of the lease conditions including misuse of e-ravannas are detected are terminated forthwith and the State Government shall not issue fresh Khatedari leases except for Palaeo deposits in the District of Binaker without the approval of this Hon'ble Court.
b) The State Government shall dispense with the Excess Royalty Collection Contract system in respect of any kind of sand mining leases forthwith and the royalty shall be paid on line by the lessee to the State Government and generate royalty paid e-ravanna before transporting of sand from the mining site;
c) The MoEF&CC will issue EC in respect of all the valid LoI holders recommended by the EAC in its meeting held during 2014-2016 without insisting on submission of scientific study report as a precondition for grant of EC within a period of three months. MoEF&CC shall also prescribe detailed methodology in consultation with CMPDI for undertaking replenishment study during the course of mining as discussed in para 11 (iii) of this Report.
d) River sand mining in Rajasthan is permitted to be conducted after obtaining all statutory clearances and payment of dues and applicable taxes 28 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
following the procedure listed in para 11 (iii) of this report.
e) The MoEF&CC shall arrange for scrutiny of the DSR prepared as provided in MoEF&CC Guidelines of 2016 and 2020 and the production figures approved in the DSR are scrupulously followed by the authorities under the EP Act 1986 while issuing the EC.
f) The period of actual mining of sand under TWP should be adjusted against the five-year lease period.
g) Government of Rajasthan will constitute an
Empowered Committee headed by the Chief
Secretary to consider and settle claims of excess payments collected from the LoI holders during the period of working under TWP. The Committee shall examine each of the cases and take a decision in this regard within a period of six months from the date of orders. Monthly progress reports in this regard may be sent to CEC.
h) The State Government will auction the sand mining leases after proper ground demarcation and after assessing the extractable sand resources as given in the approved DSR and after obtaining no objection certificates from all concerned authorities. The sale of mining blocks objected to by any of the government departments shall not be put up for tender/auction.
i) State Government to review the amendments to Rule 5(4) of RMMCR, 2017 so that it will not be an impediment for execution of sand mining lease.
j) For brazen violation of this Hon'ble Court order dated 16.11.2017 exemplary penalty of Rs.10 29 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
lakhs per vehicle and Rs.5 lakhs per cu.m of sand seized may be imposed as a deterrent. This will be in addition to what has already been ordered/collected by the State agencies as penalty/compensation.
k) State Government of Rajasthan is directed to conduct drone survey in respect of all the remaining Khatedari leases and complete the same within the next four months to assess the irregularities if any committed by them. A copy of this Report may also be made available to CEC."
9. The State of Rajasthan has filed Interlocutory Application No. 29984 of 2021 requesting this Court to accept the recommendations made by the CEC in respect of all points, except recommendations 'A' and 'J'. Recommendation 'A' relates to termination of Khatedari leases within 5 km of the river bank and restriction on the State Government to grant fresh Khatedari leases without the approval of this Court. Recommendation 'J' pertains to exemplary penalty of Rs.10 lakh per vehicle and Rs.5 lakh per cubic metre of sand seized for violation of the order passed by this Court on 16.11.2017.
10. The reasons given by the State of Rajasthan for its objection to the recommendation made by the CEC for cancellation of Khatedari leases is that mineral wealth lying in agricultural land should also be utilized. The State Government has brought to the notice of this Court that a request was made to the MoEFCC to revisit the Enforcement & Monitoring Guidelines for Sand Mining, 2020 regarding excavation of sand within the periphery of 5 km from the river bed. In view of scanty rain fall patterns in the State, the submission of the State is that mining leases in agricultural fields should be permitted. Insofar as additional penalty recommended by the CEC for the illegal sand mining and transportation is concerned, the State is of the opinion that the penalties 30 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
recommended are excessive and their recovery would be difficult.
11. Interlocutory Application No. 54981 of 2021 seeking intervention has been filed on behalf of 10 Khatedars who asserted that no illegal sand mining is being carried on by them. It was argued on their behalf that these Khatedars have been acting in accordance with the conditions of their lease. It was contended that the CEC committed an error in recommending cancellation of their mining leases. The said Khatedars found fault with recommendation 'C' of the CEC in favour of the LoI holders.
12. The CEC, in its report, has highlighted the delay in the grant of EC by the MoEFCC to the LoI holders as the cause for widening the gap in demand and supply of sand, which has resulted in proliferation of illegal sand mining activities to meet the shortfall in supply. The recommendation made by the CEC is that the MoEFCC will issue EC in respect of all the valid LoI holders recommended by the EAC, within a period of three months, without insisting on submission of the scientific replenishment study report as a pre-condition for the grant of EC, with the replenishment study due to be undertaken during the course of mining.
13. In spite of the order passed by this Court on 16.11.2017 that no river sand shall be permitted unless a scientific replenishment study is completed and EC is granted, 194 mining leases of Khatedari lands have been granted in the State of Rajasthan, with most of these lands being in close proximity of the river banks of the State. 114 Khatedari leases are within a distance of 100 metres or less from the river bank and only 23 Khatedari leases have been granted beyond a distance of 5 km from the river bank. The CEC has stated in its report that the agricultural lands do not have deposits of quality sand suitable for construction, being a mixture of sand, silt and clay. The Khatedars have been exploiting the locational proximity to the river banks by excavating sand 31 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
from the river bed, instead of restricting the mining to their leasehold areas, completely in violation of the mining plan. The quantity of sand is in excess of the permissible limit which is transported by being shown as having been mined in the Khatedari lands. The CEC has commented upon the involvement of sand mafia in the trade of sand illegally mined by the Khatedars as well as the involvement of authorities in the State of Rajasthan. Therefore, the CEC has recommended the cancellation of all Khatedari leases located within 5 km from the river banks as well as those leases where violation of lease conditions including misuse of e-ravannas are detected. The CEC further recommended that no fresh Khatedari leases shall be granted, except for Palaeo deposits, without the approval of this Court.
14. Section 23C of the MMDR Act empowers the State Governments to make rules for preventing illegal mining, transportation and storage of minerals. This Court in Deepak Kumar (supra) directed the State Governments / Union Territories to formulate rules in accordance with the Model Guidelines. Pursuant to the directions issued by this Court and the National Green Tribunal, the Sustainable Sand Mining Management Guidelines, 2016 were issued. The responsibility for implementation of the said Guidelines was placed on the State Governments which had to create a mechanism to measure the mined-out mineral and its transportation and also to ensure that the amount of mineral mined does not exceed the quantity permitted in the EC. The 2016 Sand Mining Guidelines recommended use of Transport Permits with bar codes, for generation of reports showing the daily lifting of and and user performance reports. Transport Permits with bar codes would also enable vehicles carrying sand to be tracked from source to destination. Dissatisfied with the ineffective monitoring mechanism, failure of the Mines Surveillance System as well as lack of an effective institutional monitoring mechanism not only at the stage of the grant of EC but at subsequent stages with respect to illegal sand mining, the 32 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
NGT, in an order dated 05.04.2019 in National Green Tribunal Bar Association v. Virender Singh in OA No. 360 of 2015 and connected matters, directed the MoEFCC and the State Governments to review extant monitoring mechanisms and consider revision of the 2016 Sand Mining Guidelines. Consequently, the MoEFCC issued the 2020 Sand Mining Guidelines.
15. The damage caused to the environment due to rampant unscientific illegal mining needs no reiteration. Unabated illegal mining has resulted in the emergence of sand mafia who have been conducting illegal mining in the manner of organized criminal activities and have been involved in brutal attacks against members of local communities, enforcement officials, reporters and social activists for objecting to unlawful sand excavation. The statistics provided by the State Government highlights the magnitude of the problem as about 2411 FIRs have been registered in relation to illegal mining in the State of Rajasthan, between 16.11.2017 and 30.01.2020. When this Court has restrained 82 mining lease / quarry holders from carrying on mining of sand and bajri unless a scientific replenishment study is completed and EC is issued by the MoEFCC, the State of Rajasthan ought not to have issued mining leases in favour of the Khatedars. It is clear from the report of the CEC that the majority of the Khatedari leases are within 100 metres from the river bed. The 2020 Sand Mining Guidelines prescribe that mining plan for mining leases on Khatedari lands shall only be approved if there is a possibility of replenishment of the mineral or when there is no possibility of river bed mining within 5 km of the patta land / Khatedari land. Agreeing with the CEC's conclusions on the issue of mining leases in Khatedari lands facilitating legalisation of transportation and sale of illegally extracted sand, we approve the recommendation of the CEC that all Khatedari leases which are located within 5 km from the rivered and those leases where lease conditions have been 33 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
violated have to be terminated forthwith and that Khatedari leases shall be granted only with the permission of this Court.
16. The CEC has recommended imposition of exemplary penalty of Rs.10 lakh per vehicle and Rs.5 lakh per cubic meter of sand seized, which would be in addition to what has already been ordered / collected by the State agencies as compensation. Compensation / penalty to be paid by those indulging in illegal sand mining cannot be restricted to the value of illegally-mined minerals. The cost of restoration of environment as well as the cost of ecological services should be part of the compensation. The "Polluter Pays" principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
17. The scale of compensation by those who are involved in illegal mining has been dealt with by the NGT in National Green Tribunal Bar Association v. Virender Singh (supra). In its order dated 26.02.2021, the NGT considered and approved the Report submitted by the Central Pollution Control Board dated 30.01.2020, in pursuance of its earlier orders, on scale of compensation to be recovered for violation of norms for mining on "Polluter Pays" principle. Additionally, para 9.2 of the 2020 Sand Mining Guidelines provides as follows:
"The environmental damages incurred or resulting due to illegal mining shall be assessed by a committee constituted by District Administration having expertise from relevant fields, and also having independent representation of locals and State Pollution Control Board. Guidelines for assessment of 34 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
ecological damages prescribed by the State Government or Concerned Pollution Control Boards or any other authority shall be applicable and compensation as fixed shall be paid by the project proponent, in light of Hon'ble National Green Tribunal orders."
18. Section 21(5) of the MMDR Act empowers the State Government to recover the price of the illegally-mined mineral, in addition to recovery of rent, royalty or tax. The penalty recommended by the CEC for illegal sand mining is in addition to the penalty that can be imposed by the State Government in terms of Section 21(5) of the Act. However, the basis for imposition of exemplary penalty of Rs. 10 lakh per vehicle and Rs. 5 lakh per cubic metre of sand has not been stated by the CEC in its report. The CEC is directed to follow the directions given by the NGT in respect of imposition of penalty / determining scale of compensation for illegal mining and the provisions of the 2020 Sand Mining Guidelines and determine the penalty / compensation afresh and submit a report to this Court within a period of eight weeks from today.
19. The recommendations made by the CEC, except recommendation 'J', are approved for implementation forthwith. IA No. 29984 of 2021 and IA No. 54981 of 2021 are disposed of.
20. SLP (C) No. 10587 of 2019 and SLP (C) No. 10670 of 2019 are directed to be listed after eight weeks."
13. Learned Counsel for the State has submitted that all the recommendations submitted by the CEC have been accepted by the Hon'ble Court and directed for implementation and the State Government is implementing the directions issued by Hon'ble the Supreme Court of 35 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
India. It is further submitted that the matter is still pending before Hon'ble Court and it requires no interference.
14. It is further argued that sand mining in river bed following proper procedure and guidelines has not been banned by any court or MoEF&CC.
NIB also provides that mining will be allowed only after getting EC by successful bidder, strictly following condition of EC and Enforcement and Monitoring Guidelines for Sand Mining, 2020. Whereas, the desilting process also have same environmental impact as in the case of river bed mining but EC is not required for production/dispatch of sand during the desilting/dredging process. The State of Rajasthan has issued Standard Operating Procedure dated 07.10.2023, whereby a policy was formulated for grant of bajri leases in the state delineating plots of maximum 100 ha. areas along rivers. The objective is to allot maximum number of plots by transparent auction process to avoid monopoly of certain persons or group of persons. It was also mandated that the lease holders will not be allowed to sell bajri at pit mouth at a price more than four times of the royalty, i.e. Rs. 200 per tonne in case of Bhilwara District and the objective is to make sand available to common people at a cheaper rates.
15. Further contention of the learned counsel for the respondent are that the Hon'ble Apex Court vide its order dated 10.11.2021 passed in the matter Civil Appeal no 3661-3662 of 2020 State of Bihar versus Pawan Kumar held that:
"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 a time, it also cannot be 36 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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."
The rivers in Bhilwara and Tonk districts are non-perennial flowing in monsoon season only. If legal mining is not allowed, since the river flows to hundreds of Kilometer in length and mining of river sand being easy will lead to illegal mining. Illegal mining will cause not only law and order problem but also cause huge loss of Revenue to the State Government.
The demand of the state is nearly more than 75 Million tonnes of Bajri per annum. The desilting permission for Bisalpur Dam has been granted for a quantity of 153.3 million tonne for a period of 20 years. Meaning thereby that annual dispatch capacity of nearly 7.65 million tons only. This quantity also includes silt and gravel apart from the sand. The desilting contractor has so far dispatched only 0.3 Million tons of sand after issuance of permit in the month of December 2023. This clearly shows that the demand of the state cannot be met by the projects of desilting only. It is also to mention here that the transportation cost will be very higher from the Bisalpur Dam to other districts for supply of sand which will lead to high cost to common people for purchase of Bajri."
16. The Tribunal in OA Nо. 06/2023 (CZ) in IA 54/2023 and 55/2023 the matter of Dinesh Bothra vs Union of India, State of Rajasthan, ERCPCL and M/S N.G. Gadhiya and Ors. passed order dated 24-11-2023 in which it was held that Respondent No. 5 i.e. ERCPCL is restrained from 37 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
permitting allowing Respondent No. 6 i.e. Project Proponent, to proceed with desilting and dredging activities, extraction of mineral and its disposal pursuant to impugned NIT/ NIB dated 21-11-2022 unless prior EC under EIA 2006 is obtained by Respondent No. 6. N.G. Gadhiya also restrained from carrying out any dredging/ desilting activities, extraction of silt, sand, gravel mixed silt from the submerged area of Bisalpur Dam and other mining activities until and unless prior EC under EIA 2006 after following the procedure laid down therein, is obtained. In case environment laws and directions are not complied with Rajasthan State Pollution Control Board shall take appropriate preventing prohibitive actions against the defaulters.
17. M/s N.G. Gadhiya filed Civil Appeal 7992/2023 before the Hon'ble Supreme Court of India and Hon'ble Apex Court vide order dated 24.05.2024 had stayed, till next date of hearing, the impugned judgement of the NGT with the condition that the applicant shall maintain account of the material removed from the stock pile.
18. The matter is pending consideration before the Hon'ble Apex Court. Since the operation of desilting process is going on under stay order till next date, if stay is vacated by the Hon'ble apex Court then supply will be stopped till obtaining of EC by project proponent. Meaning thereby that legal mining cannot be stopped on the ground of desilting process which is under consideration of the Court.
19. In reply to the contention raised by the learned counsel for the respondent, learned counsel for the applicant has submitted that the concerned of the applicant is protection of environment and not the auction proceeding.
20. While the question raised by the respondents are that the matter of e-
auction has been raised before Hon'ble the High Court and the Hon'ble 38 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
High Court has dismissed the application filed by the applicant and the same matter cannot be reagitated before this Tribunal.
21. Learned Counsel for the Applicant relied on the decision taken by Hon'ble the Supreme Court of India in Deepak Kumar v. State of Haryana (2012), 4 SCC 629 were Hon'ble Court observed as follows :-
"8. We have no materials before us to come to the conclusion that the removal of minor minerals, boulders, gravel, sand quarries, etc. covered by the auction notices dated 3-6-2011 and 8-8-2011, in the places notified therein and also in the riverbeds of Yamuna, Ghaggar, Tangri, Markanda, Krishnavati River basin, Dohan River basin, etc. would not cause environmental degradation or threat to the biodiversity, destroy riverine vegetation, cause erosion, pollute water sources, etc. Sand mining on either side of the rivers, upstream and instream, is one of the causes for environmental degradation and also a threat to the bio-diversity. Over the years, India's rivers and riparian ecology have been badly affected by the alarming rate of unrestricted sand mining which damage the ecosystem of rivers and the safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the riverbeds, affects fish breeding and migration, spells disaster for the conservation of many bird species, increases saline water in the rivers, etc.
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 impacts on both instream blota 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 39 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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".
Hon'ble Supreme Court of India in State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 has observed that:
"32. The policy and object of the Mines and Minerals Act and Rules have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature. The Court cannot lose sight of the fact that adverse and destructive environmental Impact of sand mining has been discussed in the UNEP Global Environmental Alert Service Report. As per the contents of the Report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in India, it was stated that sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our country.
33. The mining of aggregates in rivers has led to severe damage to rivers, including pollution and changes in levels of pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from Vembanad Lake catchment In India has led to the lowering of the riverbed by 7 to 15 cm a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase 40 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion.
34. The Report also dealt with the astonishing impact of sand mining on the economy. It states that tourism may be affected through beach erosion. Fishing, both traditional and commercial, can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches effects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structures for water supply.
35. Sand is often removed from beaches to build hotels, roads and other tourism-related infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors-beaches themselves. Mining from, within or near a riverbed has a direct Impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, Instream roughness of the bed, flow velocity, discharge capacity, sediment transportation capacity, turbidity, temperature, etc. Alteration or modification of the above attributes may cause hazardous impact on 41 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
ecological equilibrium of riverine regime. This may also cause adverse Impact on instream blota and riparian habitats. This disturbance may also cause changes in channel configuration and flow paths.
60. There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and Improve the environment and safeguard the forests and wildlife of the country. Similarly, Article 51-A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for all the living creatures. In view of the constitutional provisions, the doctrine of public trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, water and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership",
22. It is further argued that in compliance to the orders of Hon'ble Supreme Court of India in Deepak Kumar (supra) and by this Hon'ble Tribunal in Himmat Singh Shekhawat, the Government of India In the Ministry of Environment, Forest & Climate Change issued Notification dated 15.01.2016, wherein Paragraph 7(III) was Inserted, which is reproduced below: -
"7(iii) Preparation of District Survey Report for Sand Mining or River Bed Mining and Mining of other Minar Minerals:42
OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
(a) The prescribed procedure for preparation of District Survey Report for Sand Mining or River Bed Mining and Mining of other Minor Minerals. (Appendix-X)
(b) The prescribed procedure for Environmental Clearance for Mining of Minor Minerals including Cluster situation.
(Appendix-XI) Accordingly, the Appendix-X was inserted inter-alia prescribing procedure for preparation of DSR and Appendix-XI was inserted inter-alia prescribing procedure for Environmental Clearance. A copy of Notification bearing No. S.O. No. 141(E) dated 13.03.2016 has been annexed.
23. It is further argued that the preparation of District Survey Report for sand mining or river sand mining was prescribed under Appendix-X vide notification quoted above which was substituted vide notification dated 25.07.2018. Learned counsel for the applicant has further raised the question of mandatory requirement of preparation of DSR and appraisal by the SEAC and SEIAA and strict adherence to the procedure and parameter laid down in Enforcement and Monitoring Guidelines for Sand Mining, 2020 and that consequent upon the decision taken at the United Nation Conference on Human Environment held in Stockholm, the Parliament enacted the Environment (Protection) Act, 1986 in September, 2006. The parent EIA Notification dated 14.09.2006 was issued by the MoEF&CC under Section 3 of the EP Act with an endeavor to provide a substantive legal framework and comprehensive procedural mechanism for evaluation, assessment and monitoring of the Environmental Impact on the land, air and water due to various projects undertaken by person in all sectors throughout the territory of India. The EIA Notification dated 14.09.2006, regulated certain activities including mining of minor mineral as laid down in the schedule therein and provided that a prior 43 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
environmental clearance is mandatory for such regulated and specific projects across all sectors. The notification provided for constitution of central and state level environmental impact assessment authorities, SEIAA manned by professional, experts and technical individuals that shall screen, scope and appraise projects from an environmental prospective and further monitor the same from time to time, in order to achieve much desired goals of sustainable development. The MoEF & CC issued notification dated 15.01.2016 which amended the EIA Notification, 2006 by introducing clause 7 (III) (A) which mandated for the preparation of DSR for sand mining or River Bed Mining and mining of other mineral.
Vide another notification dated 20.01.2016, the MoEF & CC constituted the DEIAA and the DEAC. The DEIAA comprised of 04 members and headed by District Magistrate whereas DEAC comprised of 11 members, who were mostly the government officer's bureaucrats. Further, MoEF & CC issued the Sustainable Sand Mining Management Guidelines, 2016 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. One of the key and nodal objectives enumerated in the SMMG, 2016 was the preparation of the DSR report that would identify the areas of aggradations/deposition where mining can be allowed, and identification of areas of erosion and proximity to infrastructural structures and installation wherein mining should be prohibited.
24. The Tribunal, in the case titled Anjani Kumar v. State of U.P. 2017 SCC Online NGT 979 vide its Judgment dated 8.12.2017 held that a District Survey Report (DSR) is a pre-requisite and conditional precedent before 44 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
the grant of any mining leases of sand and bajri. The Relevant portion is extracted below:
"31. From the extracted portion, it could well be understood that to begin with the process prescribed for preparing of survey document mapping the status of the sand sources in a District is an integral but an essential part. The Survey has to be conducted and report be prepared for each District. It must also be noticed that while taking into consideration the fact that rivers cut across districts and States and every river is an ecosystem in itself but keeping in mind the fact that district is a most established unit of administration conduct of survey, planning and monitoring can be ensured effectively, the scheme proposed that every district will prepare this document (District Survey Report) taking river stretch in that district as an ecological and inventorising other sources of sand in the district...
65. Thus there is merit in the contention of the applicant that the District Survey Report is not only an important act but it should be conducted prior to sanctioning of the permission/concession.
71. In other words it is evident that absence of the factual District Survey Report after due inspection grant of mining lease will be in conflict of the environmental laws as sand mining lease could be granted in an area only when aspect of replenishment of miner mineral especially in river sand is clearly established.
96. It is true that under the Mining Policy, Rules the State is empowered to conduct survey for the purpose of inviting bids opine. The preparation of DSR and obtaining if Environmental Clearance is also a conditional precedent to carrying on mining activity. It is for the State Government to ensure that there is no conflict between two and they are balanced so as 45 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
to ensure that neither there is scope for illegal mining nor there should be environmental degradation."
25. The present litigation consists of cases where procedure adopted by mining department for allotment of mining lease by issuing Notice Inviting Tender (NIT) is a preliminary process and is not a concern of SEIAA. Once the mining lease is allotted and mining plan is prepared and approved by the mining department, the EC application is filed before SEIAA for grant of EC. It has further mentioned that as provided in rule 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. It has further been provided in rule that the mining shall be permitted upto mineable quantity fixed in the mining plan, environmental clearance, water and air consent (whichever is less). SEIAA argues that this rule gives further clarity in the matter as the documents required to be relied upon for determining the permissible quantity are mining plan, EC and Air/Water consent. The tender document is relevant document as per the Rule while determining the permissible mineable quantity. The above mentioned provisions also clarify that the approved mining plan is the basis on which further permissions and approvals are given. The procedure adopted prior to the preparation of mining plan is relevant for SEIAA while dealing with the EC applications.
26. 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 46 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 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, only to 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 enact legislation on the topics of "mines and minerals development". The only fetter imposed on the State Legislatures under Entry 23 is by the latter part of the said entry which says, "subject to the 47 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 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 Stat 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 prescribes the 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 48 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 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 not be 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 nothing should 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 49 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 auction or 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 auction could 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 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 nonfloating 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 v. Union of India & Ors., (2009) 7 SCC 561 the 50 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 publicized auction conducted fairly and impartially was perhaps the best method for alienation of natural resources lest there was likelihood of misuse by unscrupulous people who were only interested in garnering maximum financial 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:
51OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
"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 2 Whether a broad
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?
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 52 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 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, 53 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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. The logic is similar to that applied in patents. Firms are given incentives to invest 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 was not a mandate under Article 14, it must be the only permissible method due to the 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 54 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 abuse itself 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."55
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96. In Natural Resources Allocation, In re, Special Reference No.1 of 2012; [(2012) 10 SCC 1] the Constitution Bench, in the main judgment, 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 be struck 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 same are, 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 make them. 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 56 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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. 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 just one 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 57 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 maximising private entrepreneurs, adoption of means other than those that are competitive and maximise 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 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 ".
58OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 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".
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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 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).
*** *** ***
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 60 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 commercial use 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 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 61 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 thereunder and in consonance with the constitutional provisions?".
And respondent had followed the NIT procedure and was examined by Hon'ble High Court.
27. As described in the Enforcement and Monitoring Guidelines for Sand Mining, 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. 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 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.
28. 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 62 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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.
29. The matter of procedure for DSR was considered by Principal Bench of this Tribunal in O.A. No. 360/2015 vide order dated 26.02.2021 and necessary directions and the method of implementation were discussed in the following manner :-
"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 63 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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.
14. 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."
15.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 64 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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."
Adverse impact of unscientific/unregulated Sand Mining It is undisputed that there is huge degradation of environment on account of unregulated sand mining remains which is otherwise lucrative activity. It poses threat to bio-diversity, could destroy riverine vegetation, cause erosion, pollute water sources, badly affecting riparian ecology, damaging ecosystem of rivers, safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the riverbeds, affects fish breeding and migration, spell disaster for the conservation bird species, increase saline water in the rivers. It has direct impact on the physical habitat characteristics of the rivers such as bed elevation, substrate composition and stability, in-stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Increase in demand of sand has placed immense pressure in the supply of sand resource and mining activities were going on illegally as well as legally without requisite restrictions. Lack of proper planning and sand management disturbs marine ecosystem and upset the ability of natural marine 65 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
processes to replenish the sand. The Hon'ble Supreme Court (in Deepak Kumar, supra) noted that core group was constituted by the MoEF&CC to examine the impact of minor minerals on riverbeds and ground waters. A draft report was prepared recommending mandatory preparation of mining plan on the pattern of mining plans for major minerals. Further recommendations are reclamation and rehabilitation of abandoned mines, proportion of hydro geo-logical balance for minerals below ground water table limiting depth of mining to 3 meter and identification on locations where mining should be permitted was required. There is need for identifying safety zones in the proximity of intendments. Thus, strict regulatory parameters were required for regulating mining of minor minerals. It was noted that in- stream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the stream bed causes deepening of rivers which may result in destruction of aquatic and riparian habitats. It has impact on stream's physical habitat characteristics.
16. In State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, at page 790, it was observed :
"32. The policy and object of the Mines and Minerals Act and Rules have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature. The Court cannot lose sight of the fact that adverse and destructive environmental impact of sand mining has been discussed in the UNEP Global Environmental Alert Service Report. As per the contents of the Report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in 66 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
India, it was stated that sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our country."
"33. The mining of aggregates in rivers has led to severe damage to rivers, including pollution and changes in levels of pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 cm a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion.
34. The Report also dealt with the astonishing impact of sand mining on the economy. It states that tourism may be affected through beach erosion. Fishing, both traditional and commercial, can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is 67 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structures for water supply.
35. Sand is often removed from beaches to build hotels, roads and other tourism-related infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors--beaches themselves. Mining from, within or near a riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, instream roughness of the bed, flow velocity, discharge capacity, sediment transportation capacity, turbidity, temperature, etc. Alteration or modification of the above attributes may cause hazardous impact on ecological equilibrium of riverine regime. This may also cause adverse impact on instream biota and riparian habitats. This disturbance may also cause changes in channel configuration and flow paths.
17. .....Today, demand for sand and gravel continues to increase. Mining operators, instead of working in conjunction with cognizant resource agencies to ensure that sand mining is conducted in a responsible manner, are engaged in full-time profiteering. Excessive in-stream sand and gravel mining from riverbeds and like resources causes the degradation of rivers. In-stream mining lowers the stream bottom, which leads to bank erosion. Depletion 68 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river mouths and coastal inlets. It also leads to saline water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in-stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in-stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the streambed and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction of sand from riverbeds may also cause the entire stream-bed to degrade to the depth of excavation."
30. 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 69 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
Consumers. The guidelines issued from the 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.
31. Dealing the similar matter in O.A. No. 173/2018(EZ) Sudarsan Das Vs State of West Bengal & Ors. vide order dated 04.09.2018 this 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 70 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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." ...
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 71 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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.
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:
" 9.4. Monitoring Mechanism xxx...............................xxx.......................xxx...
1. All precaution shall be taken to ensure that the water stream flows unhindered and process of Natural river meandering doesn't get affected due to mining activity.
2. River mining from outside shall not affect rivers, no mining shall be permitted in an area up to a width of 100 meters from the active edge of embankments or distance prescribed by the Irrigation department.72
OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
3. The mining from the area outside river bed shall be permitted subject to the condition that a safety margin of two meters (2 m) shall be maintained above the groundwater table while undertaking mining and no mining operation shall be permissible below this level unless specific permission is obtained from the Competent Authority. Further, the mining should not exceed nine-meter (9 m) at any point in time.
4. Survey shall be carried out for identifying the stretches having habitation of freshwater turtles or turtle nesting zones. Similarly, stretches shall be identified for other species of significant importance to the river ecosystem. Such stretch with adequate buffer distance shall be declared as no-mining zone and no mining shall be permitted. The regulatory authority as defined for granting Environmental Clearance, while considering the application of issuance of ToR and/or EC for the adjacent block (to non- mining zone) of mining shall take due precaution and impose requisite conditions to safeguard the interest of such species of importance.
5. District administration shall provide detailed information on its website about the sand mines in its district for public information, with an objective to extend all information in public domain so that the citizens are aware of the mining activities and can also report to the district administration on any deviation observed.73
OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
Appropriate feedback and its redressal mechanism shall also be made operational. The details shall include, but not limited to, lease area, geo- coordinates of lease area and mineable area, transport routes, permitted capacity, regulatory conditions for operation including mining, environmental and social commitments etc.
6. A website needs to be maintain to track the movement of centralised sand mining and a Centralised server system should be made to manage the data related to sand mining across India.
7. The mineral concession holders shall maintain electronic weighbridges at the appropriate location identified by the district mining officer, in order to ensure that all mined minerals from that particular mine are accounted for before the material is dispatched from the mine. The weighing bridge shall have the provision of CCTV camera and all dispatch from the mine shall be accounted for.
8. The mineral movement shall be monitored and controlled through the use of transit permit with security features like printing on IBA approved MICR papers, Unique bar/QR, fugitive ink background, invisible ink mark, void pantographs and watermarks papers or through use of RFID tagged transit permits and IT /IT-enabled services. Such monitoring system shall be created and made operationalised by State Mining department and district level mining officer shall be responsible for ensuring 74 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
that all legal and operational mines are connected and providing the requisite information on the system. Regular check and associated report shall be submitted to DLTF and uploaded on the website.
9. State Government shall constitute a District Level Task Force (DLTF) under the Chairmanship of Deputy Commissioner/District Magistrate/Collector with Superintendents of Police and other related senior functionaries (District Forest Officer, District transport officer, Regional officer- SPCBs, Senior Officer of Irrigation Department, District Mining Officer) with one/two independent member nominated by the Commissioner concerned. The independent member shall be retired government officials/teacher or ex- serviceman or ex- judiciary member.
The DLTF shall keep regular watch over the mining activities and movement of minerals in the district. The DLTF shall have its regular meeting, preferably every month to reconcile the information from the mining activity, and other observations made during the month and take appropriate corrective and remedial action, which may include a recommendation for revoking mining lease or environmental clearance. The DLTF may constitute an independent committee of the expert to assess the environmental or ecological damage caused due to illegal mining and recommend recovery of environmental 75 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
compensation from the miner's concern. The recommendation may also include action under the provision of E(P) Act, 1986.
10. The area not identified for mining due to restriction or otherwise are also to be monitored on a regular basis by the DLTF.
Any observations of mining activity from the restricted area shall be reported and corrective measures shall be initiated on an urgent basis by the DLTF.
11. The dispatch routes shall be defined in the Environmental Clearance and shall be avoided through densely habituated area and the increase in the number of vehicle movement on the road shall be in agreement with the IRC guidelines / carrying capacity of the road. The alternate and dedicated route shall be explored and preferred for movement of mining to avoid inconvenience to the local habitat. The mining production capacity, by volume/weight, shall be governed by total permissible dispatch calculated based on the carrying capacity of dispatch link roads and accordingly, the production should be regulated.
12. The movement of minerals shall be reconciled with the data collected from the mines and various Naka/check posts.
Other measures may also include a general survey of the potential mineable area in the district which has not been leased/auctioned or permitted for mining due to regulatory or other reasons.76
OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
13. The location and number of check post requirement shall be reviewed by DLTF on a regular basis so that appropriate changes in location/number could be made as per the requirement. Such review shall be carried out on a regular basis for the district on inter-state boundary or district providing multiple passages between two districts of different states.
14. The district administration shall compile the information from their district of the permitted and legal mined out minerals and other details and share such information and intelligence with the officials of the adjoining district (Inter or/and Intra State) for reconciliation. The information shall include the area of operation, permissible quantity, mined out minerals (production) the permitted route etc., and other observations, especially where the mine lease boundary is congruent with the district boundary. Such coordination meeting shall be held on a quarterly basis, alternatively in two district headquarters or any other site in two districts decided mutually by the District Magistrate.
15. The mining department shall include submission of an annual environmental audit report as one of the conditions in the mining lease agreement. The annual audit for each river bed mining lease shall be carried out and the audit report shall be uploaded on the website of district administration. The audit shall be carried out by an independent team of 3 77 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
members nominated by District
Collector/Magistrate/Commissioner
comprising of Ex- Serviceman, Ex-
Government officials of repute, Professor or Person having experience of mining/environment. The guidelines and method of the audit shall reflect adequately the monitor-able parameters and output and reflect the compliance status with respect to the conditions imposed by the regulatory authorities including conditions of Environmental clearance.
16. The in-situ and ex-situ environmental mitigative measures stipulated as EMP, CER, CSR and other environmental and safety conditions in mines including the welfare of labours shall properly reflect in the audit report.
9.5 Suggestive additional requirements are-
i. The requirement at the Mine Lease Site:
a. Small Size Plot (Up to 5 hectares):
Android Based Smart Phone.
b. Large Size Plots (More than 5 hectares):
CCTV camera, Personal Computer (PC), Internet Connection, Power Back up. c. Access control of mine lease site.
d. Arrangement for weight or approximation of the weight of mined out mineral on the basis of the volume of the trailer of vehicle used.78
OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
ii. Scanning of Transport Permit or Receipt and Uploading on Server:
a. Website: Scanning of receipt on mining site can be done through barcode scanner and computer using the software;
b. Android Application: Scanning on mining site can be done using Android Application using a smartphone. It will require internet availability on SIM card;
c. SMS: Transport Permit or Receipt shall be uploaded on the server even by sending SMS through mobile. Once Transport Permit or Receipt get uploaded, a unique invoice code gets generated with its validity period.
iii. Proposed working of the system:
The State Mining Department should print the Transport Permit or Receipt with security features and issue them to the mining leaseholder through the District Collector. Once these Transport Permits or Receipts are issued, they would be uploaded on the server against that mine lease area. Each receipt should be preferable with pre-fixed quantity, so the total quantity gets determined for the receipts issued. When the Transport Permit or Receipt barcode gets scanned and invoice is generated, that particular barcode gets used and its validity time is recorded on the server. So all the details of transporting of mined out material can 79 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
be captured on the server and the
Transport Permit or Receipt cannot be
reused.
iv. Checking On Route:
The staff deployed for the purpose of
checking of vehicles carrying mined
mineral should be in a position to check the validity of Transport Permit or Receipt by scanning them using the website, Android Application and SMS.
v. Breakdown of Vehicle:
In case the vehicle break-down, the validity of Transport Permit or Receipt shall be extended by sending SMS by the driver in specific format to report the breakdown of the vehicle. The server will register this information and register the breakdown. The State can also establish a call center, which can register breakdowns of such vehicles and extend the validity period. The subsequent restart of the vehicle also should be similarly reported to the server or call center.
vi. Tracking of Vehicles:
The route of the vehicle from source to destination can be tracked through the system using checkpoints, RFID Tags, and GPS tracking.
vii. Alerts or Report Generation and Action Review:
The system will enable the authorities to develop a periodic report on different parameters like daily lifting report, vehicle log or history, lifting against allocation, and 80 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
total lifting. The system can be used to generate auto mails or SMS. This will enable the District Collector or District Magistrate to get all the relevant details and shall enable the authority to block the scanning facility of any site found to be indulged in irregularity. Whenever any authority intercepts any vehicle transporting illegal sand, it shall get registered on the server and shall be mandatory for the officer to fill in the report on action taken. Every intercepted vehicle shall be tracked.
The monitoring of mined out mineral, environmental clearance conditions and enforcement of Environment Management Plan will be ensured by the regulatory authority and the State Pollution Control Board or Committee. The monitoring arrangements envisaged above shall be put in place. The monitoring of enforcement of environmental clearance conditions shall be done by the Central Pollution Control Board, Ministry of Environment, Forest and Climate Change and the agency nominated by the Ministry for the purpose.
Some of the State has followed the SSMMG-2016 and has also improvised or customized on the provisions given therein, and are successfully in operation. Salient provision adopted at different stages of sand mining in the state of Tamil Nadu is given as Annexure VIII.
9.6. Actions against illegal excavation and transport 81 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
Solapur district administration in Maharashtra had adopted a multi-pronged strategy to penalize the persons involved in illegal excavation and transport which resulted in a significant increase in revenue earned by the state. Following rules and procedures as mentioned in these guidelines will add to the costs of PP. Those involved in illegal activities are not required to bear these costs and this will make their supply in the market cheaper (though illegal). This will put the players running their business by following rules and procedures laid down by the government to disadvantage as far as the selling price is considered. Therefore, it is necessary to come down heavily on those involved in illegal excavation/transport, so that there is no incentive for players to abide by the rules.
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 82 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 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.
83OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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."
32. 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:
"7. It cannot be in dispute that though the 84 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 85 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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, 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 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 86 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 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 87 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 prepration 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 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 88 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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 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 89 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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."
33. With regard to the preparation of DSR and the plots for mineral bajri and its compliance in accordance with guidelines issued in SSMG, 2016 & EMGSM, 2020 the learned counsel for the respondents has argued that DSR has been approved by the competent authority on 29.01.2024. After approval of the DSR, delineation of plots of Bajri has been made following the guidelines EMGSM-2020 issued by the ministry. On the recommendation of Sub Divisional Level Committee constituted by the department in compliance of Ministry of Environment and Forest notification dated 25-07-2018. All plots put to auction by the respondent department have been recommended by the committee consisting of SDM, Forest Officer, Office of Rajasthan Pollution Control Board and Officer of Mines and Water Resource Department. The committee had visited the area of delineation and taken all points considered before recommendation. The plots have been delineated in the potential area of deposition as shown in the District Survey Report.
34. The DSR has been duly prepared after putting to public domain for inviting suggestions and objections. In the DSR, potential areas for river sand mining has been clearly shown at Annexure-II with existing and 90 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
proposed mining leases. After preparation of the DSR in consultation with revenue officers, it was put to public domain for inviting objections as well as suggestions at district website with the heading "DISTRICT MINERAL SURVEY REPORT OF BAJRI SAND MINERAL IN BHILWARA DISTRICT" on 06-01-2023. After taking presentation the SEIAA approved it on 29-01- 2024. The plots were put to different NIBs to get auction of plots as per auction plan of the department. It is clear to mention putting to NIB does not relate with cluster formation. In-fact cluster is formed to decide the category of the plot for grant of EC Hence it is immaterial that all plots in a cluster are put for auction in one NIB or different NIBs.
35. That respondent department has issued permit under rule 52(4) of Rajasthan Minor Mineral Concession Rules, 2017 for dispatch of 15,33,40,000 metric tonnes of Bajri and Gravel for period upto 02-02- 2043. This permit has been issued to M/s N.G. Gadhiya for the work order Reclamation of Storage Capacity by Desilting of Bisalpur Dam in District Tonk, Rajasthan.
36. That DSR is to be prepared and followed as per the procedure and parameters laid down in the guidelines of 2020. It is necessary to mention here that Hon'ble Apex Court in the matter of Bajri Lease LOI Holder Welfare's Society vs State of Rajasthan in SLP No. 10587/2019 passed order dated 11-11-2021, accepted recommendations of CEC. The state started process of auctioning as well as allotment of Bajri Mining Leases as per the recommendations of the CEC.
37. On the point of putting in the public domain it is argued that the DSR has duly been prepared and kept in public domain for objections as well as consultation. After approval from SEIAA, auctioning process of Bajri Plots as per the Standard Operating Procedure laid down by Government of Rajasthan on 07.10.2023 was started. As per the notification of the 91 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
Ministry of Environment Forest and Climate Change dated 25-07-2018 Sub Divisional level Committees consisting of all concerned departments visited the site and recommended plots for Bajri Mining. Apart from this, quantification of mineral Bajri was also carried out as per the guidelines of the Ministry. Hence, it is clear that conditions are being followed.
38. It is further argued that delineation of the Bajri Plots were made in cluster situation keeping size of each plot upto 100 Hectare as per the SOP issued by the Government. Plots falling within distance of 500 meter have been put to same cluster. Cluster Certificates are issued to the LOI holders for the purpose of deciding category of the case for grant of EC. It is also necessary to mention that where distance between two plots exceeds more than 500 meters, another cluster was formed. The DSR shows the potential area for allowing mining of Bajri and plots were delineated in these potential areas as per policy of the state issued by SOP dated 07-10- 2023, and that as per the notification of MoEF dated 25- 07-2018, the plots were finalized by Sub Divisional Committee constituted vide Departmental order dated 29-08-2023 and 05- 04-2024. The committee consist of officers of Revenue, Forest, water resources, pollution control board and mines department. The committee recommended auctioning of the plot after field visit and proper examination of the record.
39. It is further argued that the matter which has been raised before this Tribunal in this application was raised in Civil Appeal No. 7992/2023 and Hon'ble Supreme Court of India had stayed the order dated 24.11.2023 passed in OA No. 06/2023 with the condition that the applicants shall maintain account of the material removed from the stockpile. The matter is pending consideration before Hon'ble the Apex Court. The process shall be governed by the order passed by Hon'ble Supreme Court of India narrated above.
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40. It is further argued that interveners (Aravali Resource, LLP & Ors.) were blacklisted as per the provisions of Sub-Rule 14(14) of Rule 14 of RMMCR-
2017 to participate future auction for a period of five years. The submission of the learned counsel for the applicant are that they are raising the environmental issues and EMGSM, 2020 and in reply thereof the learned counsel for the Respondent/State Counsel has submitted that the Intervener/ Impleader has no locus standii in the case, since after carefully reading and understanding all the conditions of the NIB, participated in the E-auction process. As per Rule 15(9) of Rajasthan Minor Mineral Concession Rules, 2017 and conditions (condition No. C2) of the NIB clearly says that on deposition of the bid security amount it shall be deemed that the bidder has carefully read and understood all the conditions of NIB and the provision of RMMCR, 2017. After completion of the bidding process objecting on various issues and seeking clarifications is an afterthought to hamper the process of granting mining lease for making availability of Bajri to the common people at reasonable rates.
41. The facts as narrated is that the Intervener had already took part in the e-
auction process for the various plots of Bhilwara and Tonk in the past but did not deposit the requisite amount of 40% as per the conditions of NIB.
Earlier, in the month of March 2024, the Intervener on being debarred for participation for further e-auction because of non-deposition of 40% of the bid amount. Applicant intervener company challenged the orders of the respondent pertaining to debarring it before the Hon'ble Rajasthan High Court at Jaipur by filing writ petition no. 6916/2024, 6917/2024 and 6918/2024. All the writ petitions were dismissed with the observation that the petitions have no merit. Against the orders of single bench, Special Appeals no. 510/2024, 511/2024 and 512/2024 were filed before the division bench of Rajasthan High Court. Meaning thereby that the 93 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
applicant company had already approached the Hon'ble High Court on the similar issues and failed to get any relief.
42. With regard to the matter of DSR as raised by learned counsel for the Applicant, it is replied that the present matter is already decided by the High Court regarding validity of DSR, as well as debarring of the intervener in writ petition. The matter pertaining to river bed mining of bajri for the State of Rajasthan is also pending consideration before the Hon'ble Apex Court. The impugned auction/e-auction has been conducted following the procedure laid down by various guidelines and rules, quoted below :-
a) The E-auction notice has been issued in line with directions of CEC vide report dated 23.12.2020 as well as guidelines of 2016 and 2020.
b) The department had complied with the conditions/ directions issued by the ministry of environment, forest & climate change, GOI in EMGSM-2020.
c) The respondent have complied with the provisions of EMGSM-2020 and the Tribunal has found nothing in violation of the directions of EMGSM-2020 in its order dated 08.08.2024.
d) The respondent have complied with the provisions of EMGSM-2020. It is pertinent to mention here that the Intervener after depositing bid security participated in the e- auction process for the plot no. BJ-04 in district Tonk. As per the conditions of the NIB and RMMCR, 2017, it shall be deemed that the bidder has carefully read and understood all the conditions of NIB and the provision of RMMCR, 2017. After completion of the bidding process objecting on 94 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
various issues and seeking clarifications is an after thought to hamper the process of granting mining lease to make availability of Bajri to the common people at reasonable rate.
43. The learned counsel for the applicant has further raised the issue of demand and supply of the river bed material through market survey which requires to be carried out. In reply to the above contention it has been submitted by the respondent that the Bisalpur Dam being situated in the district Tonk of Rajasthan and the annual quantity of De-silting from the dam has been mentioned in the DSR of district Tonk. However, by notification dated 07.10.2023 in RMMCR, 2017 rule 52 was amended and Sand and Gravel produced during the process of Desilting of Dams was allowed to be despatched on payment of Royalty. During the process of preparation of DSR of Tonk, no such application was received in the office of Assistant Mining Engineer, Tonk. Further, it is pertinent to mention that the entire quantity of Desilting has been mentioned in the DSR of district Tonk so it is clear that alternate source has clearly been mentioned in the DSR's.
44. The supply of River Sand from the district Tonk is made to the neighboring districts in Rajasthan. The mineable quantity of Sand has been assessed in each plot to be auctioned and plot-wise quantity of sand has also been mentioned in the NIB published. Potential areas for river sand mining has been shown in the DSR in which existing and proposed mining lease areas are clearly shown. A State policy formulated for grant of Bajri leases vide Government Standing Operating Procedure dated 07.10.2023 whereby it was decided that plots of maximum 100 Hectare area depending on the situation of the river would be delineated and auctioned with the condition that the lease holder will not sale the Bajri at 95 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
pit mouth at the rate not more than 4 times of the rate of royalty. The objective of this policy was to make availability of sand at reasonable prices to the common people by avoiding monopoly of some people over large areas. As per the policy, plots were delineated close to each other without leaving gap in between. While delineation, it was also observed that safe distance from bridges, anicuts and other structures were left as per sand mining guidelines.
45. The clusters are formed to decide the category of the mineral grant for issuance of environment clearance by the competent authority as per MoEFCC notification dated 15.01.2016. All plots within a distance of 500 meters are clubbed in a single cluster and total area of the cluster is calculated. No unnecessary gap in between two adjacent plots was left during formation of the plots which can lead to illegal mining. The EC is granted by the competent authority looking to the cluster area and environment impact assessment and environment management plan of the entire cluster area. The respondent have violated nothing as far as the procedure for the grant of environment clearance is concerned. 10(E).The plot was finalised for e-auction only after having been visited by a sub divisional committee consisting of Sub Divisional Officer (Revenue), Officers Rajasthan Pollution Control Board, Mines and Geology Department, Forest Department and Water Resource Department. All plots delineated in the potential mining areas of DSR were put to auction only after recommendation of this committee and that DSR has been prepared after putting to public domain for inviting suggestions and objections. In the DSR, potential areas for river sand mining has been clearly shown at Annexure-II with existing and proposed mining leases.
After preparation of the DSR in consultation with revenue officers, it was put to public domain for inviting objections as well as suggestions at 96 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
district website with the heading "DISTRICT MINERAL SURVEY REPORT OF BAJRI SAND MINERAL IN TONK DISTIRCT" on 13.12.2022. After taking presentation the SEIAA approved it on 18.09.2023.
46. The Intervener was well aware of the facts and after satisfaction submitted bid security and participated in the process of e- auction. It is submitted that in rule 15(9) of RMMCR, 2017 and condition C2 of NIB it is clearly mentioned that he has made complete and careful examination of rules and guidelines of e-auction and accept it unconditionally and irrevocably.
The relevant rule is reproduced as under -
"(9) It shall be deemed that by submitting a bid, the bidder has,-
(i) made a complete and careful examination of rules or guidelines for e-auction and unconditionally and irrevocably accepted the terms thereof;
(ii) reviewed all relevant information provided by the Government, as may be relevant to the bid;
(iii) accepted the risk of inadequacy, error or mistake in the information provided by or on behalf of the Government relating to any of the matters related to the e-auction process;
(iv) satisfied itself about all matters regarding the e-auction process for submitting an informed bid, in accordance with the rules; and
(v) acknowledged and agreed that inadequacy, lack of completeness or incorrectness of information or ignorance of any of the matters related to the e-auction process hereinabove shall not be a basis for any claim for compensation, damages, extension of time for performance of its obligations, loss of profits etc. from the Government.
47. It is also submitted that condition स(2)of NIB provides in clear and specific terms that on deposition of bid security and application fee it shall be deemed that the bidder has carefully read and understood all conditions of NIB and provisions of RMMCR, 2017. Since the Intervener was well 97 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
aware and acquainted with all the provisions, terms and conditions. After completion of bidding process, objections and seeking clarification is an after thought to somehow hamper the process of granting mining leases of mineral Bajri. Meaning thereby the Intervener has no right to challenge the conditions of e-auction after participation and declaration as successful bidder.
48. The submissions of the interveners were with regard to blacklisting of their firm or for future of the amount deposited during the period of participation in auction proceedings and in reply thereof, it is submitted by the learned counsel for the respondent that the Intervener has already put highest bid in the plot no. BJ-01, BJ-09, BJ-14 and BJ-04 but did not deposited the requisite amount as per the conditions of NIB. The Intervener Company were debarred for e-auction in plot no. BJ-01, BJ-09, BJ-14 and BJ-04. The company also blacklisted for participation in future e-auctions by the respondent no. 2 vide order dated 02.09.2024. The conduct of the company clearly shows that it is not serious for getting mining leases but want to hamper the process of granting mining leases by unfair means. Meaning thereby that the applicant is a not a proper and necessary party in the present matter.
49. It is further argued that the intervener has no locus standii and not came with clean hands and not serious as far as auction is concerned and simply acting as a forum shopping. It is settled law when a person approaches a court of equity in exercise of its power, he should not only come to the tribunal or court with clean hands but also with clean mind, clean heart and clean objectives. Thus, who seeks equity must do equity.
Equally, the judicial process should never become an instrument to appreciation or abuse or a means in the process of the court to subvert justice. The power wasted in the tribunal or in the court will be exercised 98 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
only in furtherance of justice and not merely on the making out of a legal point, the interest of justice and public interest, coalesce. No litigant has a right to unlimited draught on the court time and public money in order to get his affairs settled in the manner he wishes. Easy access to justice should not be misused as a license to file misconceived and frivolous petitions.
I.A. Nos. 88/2024, 89/2024, 90/2024, 91/2024, 92/2024, 93/2024 and 98/2024
50. Some interim application has been filed by the interveners who participated in the said e-auction and deposited certain amount but later on their application was rejected and forfeited and they were blacklisted.
They moved an application before this Tribunal almost with the same relief to direct the respondent Mining Department not to proceed further in respect of that e-auction, for quashing and setting aside the order, forfeiting the bid security amount and debarring the applicant intervener and direction to the mining department not to take any action against the intervener and refund the bid security amount and further that the mining department may be restrained from e-auction and issuance of LOI granting the mining lease. The grounds as mentioned by the applicant are the same and some of the grounds are narrated below:-
a) The E-Auction Notice is containing terms & conditions that the Lessec shall have to comply with Para-11 (III) of the Report dated 23.12.2020 of Central Empowered Committee submitted before Hon'ble Supreme Court of India and Sustainable Sand Mining Management Guidelines, 2016 & Enforcement & Monitoring Guidelines for Sand, 2020 issued by the MoEF&CC, 99 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
b) The aforesaid condition would show that the Lessee is under obligation to comply with EMGSM, 2020 thereby it is assumed that the Department would have complied with the said Guidelines in right earnest and meticulously inasmuch as the compliance of the said Guidelines is statutory obligation on the part of the Department thereby assuming that the Department has complied with the aforesaid Guidelines, the Intervener participated in the auction proceedings.
c) However, on bare perusal of the order dated 08.08.2024 passed by this Tribunal and contention raised by the Applicant would show that various directions of the EMGSM, 2020 having statutory force have not been complied with by the Department and the DSR. on the basis of which e-auctions are being conducted, has been prepared in violation of the EMGSM, 2020 thereby there is gross violation of orders passed by Hon'ble Supreme Court of India in Bihar State & Ors Vs. Pawan Kumar & Ors (2022) 2 SCC 348. Further, the various orders of this Hon'ble Court has also not been complied with inasmuch as without following the due process of preparing DSR, as prescribed under EMGSM, 2020 and without considering demand and supply and so also availability of alternative source of Sand, the E-Auctions have been conducted on the basis of misrepresentation.
d) The Intervener participated in the E-Auction proceedings on the basis of misrepresentation of the Department thereby on coming into notice that there is violation of provisions of EMGSM, 2020, various orders of this Tribunal and orders of Hon'ble Supreme Court of India, more particularly in the case 100 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
of Pawan Kumar (supra), it was requested by the Intervener to the Respondent No. 2 of the OA i.e. DMG to keep the further proceedings in respect of aforesaid Plot No. 04 situated in District Tonk till the matter is finally heard and decided by this Tribunal.
I.A. No. 94/2024 & I.A. No. 95/2024
51. I.A. No. 94/2024 was filed for early hearing and I.A. No. 95/2024 was filed for stay of the operation of the proceedings of the Mining Department.
52. Reply has been filed against all the intervener applications with the facts that the intervener participated in e-auction proceedings and was declared a successful bidder but did not deposited the required amount to frustrate the proceedings and was debarred for further participation in e-auction for the next five years.
53. In reply thereof, the learned counsel for the state has submitted that provisions of Rajasthan Minor Mineral Concession Rules, 2017 and condition no. C2 of NIB clearly says that on the position of the bid security amount shall be deemed that the bidder carefully red and understood all the conditions of NIB the provisions of RMMCR Rules, 2017. The intervener has already put highest bid but did not deposit the requisite amount as per condition of NIB and this was intended to frustrate the proceedings and for this fraudulent, undesirable and restrictive practices, the company was blacklisted for participation in future e-auctions by the Respondent No. 2 under Rule 14(14) of RMMCR, 2017.
54. The conduct of the company clearly shows that it is not serious for getting mining leases but want to hamper the process of granting mining leases by unfair means. Learned Counsel for the State and Respondent has submitted that this is a purely contractual matter and the matter of e-
101OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
auction, its acceptance, cancellation of bid, acceptance of bid, highest bidder, issue of LOI, frustrating the policy of the e-auction by the intervener or performance of contract or agreement between the parties are the matter not covered under Schedule-1 of the NGT Act, 2010 and not within the domain of the National Green Tribunal. These are the contractual obligations between the parties and the parties may approach to the appropriate forum for redressal of their grievances.
55. Since, the aggrieved party approached before Hon'ble the High Court and the matter has been heard and decided as discussed above, thus, the point as raised by these interveners cannot be re-agitated again before this Tribunal. Further, the matter pending before this Tribunal is environmental matter and the I.As in the form of counterclaim is not maintainable because the proceedings of e-auction or its cancellation or order by the competent authorities are subject matter of contractual obligations which can be raised before the appropriate forum by the person aggrieved before the competent court. On the grounds mentioned above, all the I.As are not maintainable before this Tribunal and thus, disposed of accordingly. Rest of the matters were directly and substantially in issue before Hon'ble the High Court and Hon'ble High Court has heard the parties and disposed of the application with regard to interim application and the premium amount and as reported by the learned counsel for the State it is still pending before the Hon'ble High Court, thus, relief sought is not maintainable before this Tribunal.
56. 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 102 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
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. 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 103 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
and only where details of approved DSR and Annual Replenishment Study are available and should only be undertaken for the plots already mentioned in the approved DSR.
V. EC should be accorded only to the limit of auctioned and sustainably permissible quantity.
VI. The matter of e-auction, the DSR shall be governed by the order of Hon'ble High Court, passed in SB Civil Writ Petition No. 5291/2024, Special Appeal No. 420/2024, 421/2024, SB Civil Writ Petition No. 6884/2024.
57. The matter of river sand mining will be governed by the orders of Hon'ble Supreme Court of India passed in SLP No. 34134/2020 Nature Club of Rajasthan v. State of Rajasthan & Ors. and respondents are directed to enforce the order and reports submitted by the Central Powered Committee as directed by Hon'ble Court.
58. The matter of de-silting and dredging activities and extraction of mineral will be in accordance with the order of Hon'ble Supreme Court of India, passed in Civil Appeal No. 7992/2023 and respondents have to comply the order.
59. The matter of DSR in the present case has been duly approved by the State Level Environment Impact Assessment Authority on 29.01.2024 and after approval of DSR the respondent has acted in accordance with the guidelines issued in 2020. The matter of DSR was raised before Hon'ble High Court in SB Civil Writ Petition No. 5291/2024, which has been finally heard and decided and was found that there are no faults in the preparation of the DSR and the interim application has been dismissed.
An appeal filed against the order has also been dismissed. Thus, there is no irregularity or illegality in the DSR.
104OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.
60. Since all the matters raised in this application and I.As have been either heard and decided by the Hon'ble High Court or pending before Hon'ble High Court or Hon'ble Supreme Court, thus, reagitating on the point of DSR or e-auction proceedings are not maintainable before this Tribunal.
61. Original Application No. 194/2024 alongwith all I.As. and objections are disposed in terms of above order.
Sheo Kumar Singh, JM Dr. Afroz Ahmad, EM 30th September, 2024 O.A. No. 194/2024(CZ) PN 105 OA No. 194/2024(CZ) Dr. Brijmohan Sapoot Kala Sanskriti Sewa Sansthan Vs. State of Rajasthan & Ors.