National Green Tribunal
Goa Paryavaran Savaraksham Sanghrash ... vs The Dy. Collector/Sdm on 9 October, 2020
Item No. 03-12
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 77/2018 (WZ)
WITH
Original Application No. 78/2018 (WZ)
WITH
Original Application No. 79/2018 (WZ)
WITH
Original Application No. 80/2018 (WZ)
WITH
Original Application No. 81/2018 (WZ)
WITH
Original Application No. 82/2018 (WZ)
WITH
Original Application No. 83/2018 (WZ)
WITH
Original Application No. 84/2018 (WZ)
WITH
Original Application No. 85/2018 (WZ)
WITH
Original Application No. 86/2018 (WZ)
Goa Paryavaran Savrakshan Applicant(s)
Versus
The Dy. Collector/SDM, Pernem & Ors. Respondent(s)
Date of hearing: 09.10.2020
Date of Uploading: 13.10.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Applicant(s) : Mr. Prakash V. Shinde, Advocate, Mr. S.M.
Walawaikar, Advocates in O.A. Nos. 77/2018 to
86/2018
For Respondent(s) : Mrs. Fawia M. Mesquita, Advocate for R-1 & 4 in
O.A. Nos. 77/2018 to 86/2018)
Mrs. Ruchira Gupta, Advocate for GSPCB in O.A.
Nos. 77/2018 to 86/2018)
ORDER
1. By filing this application, the applicant has raised the matter of illegal mining operation, basalt/stone quarries in the village of Ozarim, Mandrem, Tuem, Corgao, Nagjar, Casarvarnem and Village Allorna of Taluka Pernem in the state of Goa and made a prayer to forthwith stop 1 the illegal mining and refill all the pits and stone quarries by mud and stones and or such other material upto the ground level to avoid the incidents and further to stop Respondent no. 2 to 7 for quarrying basalt and stone mining in the aforesaid villages.
2. The Respondent no. 3 has filed the reply and action taken report and stated that the Directorate of Mines and Geology regulates the grant of Quarrying leases or Quarrying Permit under the provisions of Goa Minor Mineral Concession Rules, 1985 and thereafter collection of revenue in the form of Royalty as notified in Schedule I of the said rules. As regards to policy/Guidelines and Standard operating procedures adopted by this department to monitor illegal extraction and transportation of minor mineral, it is submitted that the department has changed the mode of issuance of transit passes/permit from manual mode to electronically generated passes/permit issued to quarrying lease holders for transportation of minor mineral beyond the lease hold areas. The transit passes/permits are issued to lease holders, based upon a module developed by the Department in collaboration with a Software agency. The module and software can run on POS terminal which has helped the department in efficient collection of royalty, regulation of transportation of minor mineral and above all helped in ease of doing business for lease holders arid also in attainment of objective of zero tolerance to corruption.
Further every vehicle involved in transportation of minor mineral within the State are directed to register with the department after installation of GPS device (circular/ notification placed at Annexure '8). Only vehicles registered and equipped with GPS device are allowed for transportation of minor mineral from the quarrying lease area. An electronically generated transit pass is issued to every vehicle transporting mineral outside the lease area. Any vehicle involved in 2 transportation of mineral without a valid pass is detained at the nearest Police station and penalized as per Goa Minor Mineral Concession Rules, 1985. Number of trucks detained by the Directorate of Mines & Geology for illegal transportation of Minor minerals viz. Laterite stones, laterite rubble, basalt (road metal stone), sand etc. are as follows:
Year No. of trucks 2016-17 151 2017-18 424 2018-19 114 2019-20 44 upto June 2019
3. Under Goa Minor Mineral Concession Rules, 1985, the department is collecting the Reclamation and Rehabilitation fund from the legal Quarry lease holders as specified by the Government by notification in the Official Gazette, for the purpose of reclamation and rehabilitation of the mined out areas. With regard to scientific closure of abandoned pits, the State Government has identified the abandone pits, in Pernem Taluka as well in other Talukas in the State, through Goa Waste Management corporations (a Govt. of Goa undertaking) along with other line departments, to designate the said pits as the land fill sites. Goa Waste Management Corporations (GWMC) along with SINTEF, Norway, is in process of development and research of science and technology in the area of recycling of construction and demolition (C&D) waste and implementation of new technology related to C & D waste processing. A number of meetings and inspections have been conducted along with other line departments. The Goa Waste Management Corporation being appointed as the nodal agency, will finalize the sites after required consultations with all concerned and accordingly move a proposal to the 3 District Collector for allotment of land and handling over the identified plot to them. With regards to constitution of special task force as directed at para 10 in the order dated 03.04.2019, it is submitted that, a patrolling - cum - flying squad under the respective takuka Mamlatdar/Jt. Mamlatdar were already constituted to monitor and initiate necessary action against illegal sand mining activities vide order dated 11.09.2018. It is proposed to the State Government, that the same patrolling-cum-flying squad can also be extended to monitor and initiate action against illegal extraction of other minor minerals within the State of Goa.
4. By filing the report dated 26.03.2019, the Deputy Collector, SDM, Pernem, Goa had submitted that as per provision, the Respondent no. 1 has initiated necessary proceedings against the offending parties for needful action including restoration of subject land to its original use wherever feasible. Respondent no. 3-Director of Mines and Geology has submitted affidavit as follows:
"3. I say that, as discussed and directed in the meeting convened by the Chief Secretary of Goa, the mined out areas can be utilized as Ground Water recharge points, water storage reservoirs and the same can be handed over to Water Resource Department for further development and supply of water for irrigation purpose. The Water Resource Department has agreed with above proposal wherein the further safety aspects shall be taken care off.
4. I say that, the Department has explored various measures of scientific closure of abandoned pits, however no option was workable within permissible regulations. Therefore, the only viable option which could be explored is that of fencing of abandoned pits with barbed wire so that there is no loss of human life and livestock, and the pits can be utilized as ground water recharge points/rain water reservoirs.
5. I say that, the Water Resource Department, Government of Goa, has been requested to submit an action plan for scientific closure of open pits by providing barbed wired fencing and using the abandoned pits for ground water recharge/rain water reservoir. 6.
It is informed that there were 10 nos of abandoned quarries in Tuem village of which survey No. 117, 114 and 85 in Tuem village of Pernem Taluka are backfilled with overburden lateritic mud and the plantation being undertaken by the owner themselves.
7. I say that, the Water Resource Department has prepared and submitted the estimate cost for the remaining 07 abandoned quarries in Tuem village of Pernem Taluka. The cost of the said work is Rs. 42 lakhs. The said estimate is for providing barbed wire fencing 4 which shall be tendered after obtaining the approval from the authorities lates by 30.12.2019.
8. I say that, the Water Resource Department is preparing action plan for survey, estimation, utilization as water harvesting structure as the case may be and further implantation for the works of remaining abandoned quarries in Pernem Taluka.
9. I say that, the Water Resource Department has assured that entire work of fencing of abandoned quarries will be completed by 31st May, 2020 ie prior to onslaught of mansoons.
10. I say, that, this office has requested to Water Resource Department to take up the work of fencing the abandoned pits wherein the life of four students were lost due to drowing on war footing and later to fence all the pits simultaneously by allotting work to different contractors so that, the work of fencing is expedited.
11. I say that, this Department has requested the Water Resource Department to take up the work of fencing of smaller pit by floating short tender of seven days so that the work could be executed as early as possible. "
5. It is further submitted that with regard to scientific closure of abandoned pits, the State Government has identified the abandone pits, in Pernem Taluka as well in other Talukas in the State, through Goa Waste Management corporations (a Govt. of Goa undertaking) along with other line departments, to designate the said pits as the land fill sites. The Goa Waste Management Corporation being appointed as the nodal agency, will finalize the sites after required consultations with all concerned and accordingly move a proposal to the District Collector for allotment of land and handling over the identified plot to them.
6. The Tribunal vide order dated 25th June, 2020 directed as follows:
"1. By way of filing present application, the applicant is seeking restoration of the huge environmental damage that has been caused by the illegal and unauthorized "BASALT"/Masonry stone quarrying by the Respondent No. 2 in the Orchard land interalia SURVEY NO. 188 and 101 of Villages Ibrampur of Village Pernem, hereinafter called as "the said villages. The applicant has further submitted that apart from Respondent No. 2, there are also several other individuals and partnership firms who are illegally operating basalt stone mining which are environmentally hazardous not only to the said village but also to the neighouring villages of the state of Goa. The Applicant thus filed a batch of similar Original Applications seeking almost the same reliefs as sought in the present case as against each of them.
2. It is further submitted that the said illegal basalt/stone quarries of the Respondent Nos. 2 and similar other illegal operators have become the death traps for the human as well as wild life of the concerned village areas. In this regard one of the human tragedies that occurred in last monsoon in one of the said stone quarries is 5 specially mentioned herein. That a young boy by name NAMDEV POLJI r/o Chonsai Parse, Pernem Goa fell down into the unprotected and unguarded stone quarry illegally operated by one Mr. Hemant Kambli at Village Parcem, Tuem in Pernem Taluka. The said illegal stone quarry was filled with rainy water of the monsoon. The victim boy was unaware of the huge pit of the said death causing stone quarry and fell into it losing his life and causing irreparable permanent loss to his parents and relatives. Thus the illegal operators of these unlawful and unguarded stone quarries are responsible and accountable to make good such losses.
3. The Authorities and Director Mines and Geology was directed to submit a report and in compliance thereof, he has submitted a report in which it was narrated that the cost as directed by the Tribunal has been deposited to the CPCB but the scientific closure of mined areas had not been filled till date though direction has been issued by the concerned authorities to immediately fence the abandoned quarries to prevent incidents of drowning. The Collector and District Magistrate, North Goa had also issued directions but the matter is still pending. Another report on 18.12.2019 has been submitted in which it has been narrated that Water Resource Department, Govt. of Goa has been requested to submit an action plan for scientific closure of open pits by proving barbed wired fencing and using the abandoned pits for ground water recharge/rain water reservoir. Water Resource Department is preparing action plan.
4. It has further been submitted that life of four students were lost due to drowning in these pits. Since the matter is very serious and various applications have been filed before this Tribunal and in spite of the directions, nothing has been done and the authorities are only preparing plan thus, we deem it just and proper to constitute a Committee consisting of:-
i) Collector of the area;
ii) Director Mines and
iii) State Pollution Control Board (SPCB) and to direct them to submit the report on the following points:
1) Remedial measures to fill and secure the mined area to avoid accident in future.
2) State PCB is directed to calculate the Environmental Compensation in accordance with the law.
3) The Committee to calculate the amount of compensation payable to four students who lost their lives by drowning in the pits and suggest the amount of compensation, taking in the account the age, qualification and monthly income.
4) The Committee shall also submit the report on the point with regard to responsibility of the person to pay the compensation and ratio thereof and legal action against the persons who violated the rules.
5) One representative of the applicant may be permitted to attend the meeting for remedial suggestions if any. Suggestions by the applicant may be discussed and considered, but the Committee is at liberty to take its own decision.
5. The Committee is directed to submit a factual and action taken report. The State PCB will be the nodal agency for coordination and logistic support."
7. The Joint Committee submitted the report as follows: 6
"The CPCB issued guidelines for disposal/ utilization for fly ash for reclamation of low lying areas and in stowing of abandoned mines/ quarries. Further the Ministry of Environment, Forest and Climate Change, New Delhi issued Office Memorandum vide F.NO.2- 13/2019-IA.II dated 28/8/2019. Copy of the Office Memorandum is enclosed as Annexure 'B The Goa Waste Management Corporation is presently remediating legacy waste dump at Sonsoddo, Momugao, Cuncolim, Mapusa, Kakoda, Bicholim, Pernem, Canacona, Panaji. The CCP has got a Multure to mulch the tree waste. The CCP has requested the Collector North to provide land for disposal of tree waste. There are induction furnace units as well as sponge iron units in the State of Goa which generates slag and fly ash. It is proposed to utilise the slag, fly ash, inert, compost, and tree and garden cuttings for restoration of the quarries to its original. The last one meter will comprise of soil/compost followed by plantation through Goa State Biodiversity Board or Forest Department. The details of the remediation of the legacy waste at various locations in the State of Goa is enclosed as Annexure "C'.
Further the GSPCB after considering the aforesaid is of the following opinion;
a) The approximate area of the quarry is about 17,000/ sq mts and the average dept about 6 meters, with this the total material required for restoration would work out to 1,02,000/cu.m The Corporation of the City of Panaji (CCP) has already made request seeking land for composting the tree waste: Therefore the CCP as well as other Municipalities could be directed to dispose their tree waste after multching in the mining pits along with the slag, flyash and inert upto 1 mts from the top of the quarry and the remaining height by compost.
Approx. 10,000 trucks would be required to restore the quarries to be restored and the cost of transportation is approx. 3 crores. There would be additional expenditure for deployment of staff for monitoring, machinery for levelling, plantation etc. which would work out to Rs. 1 crore and the total environmental compensation would work out to Rs. 4 crores which have to be recovered proportionally owners of the land.
b) The above sites and the disposal of Tree waste will have to be monitored, and GSPCB could request the Goa Waste Management Corporation (GWMC) to carry out this monitoring along with assistance of the officials of local Mamlatdars office. A security guard with a Register should be posted at the sites to maintain records. Nearest weigh bridges could be identified for verification of the weight of the material utilized for the restoration of the quarry.
c) The violators/quarry operators may be directed to deposit an amount of Rs.4 crores initially which could be proportional to their land holding. If not deposited by the violator the same could be recovered as arrears of Land Revenue."
8. The Director of Mines has suggested a certain remedial measures vide report dated 01st September, 2020 which is as follows:
"1) Remedial Measures to fill & secure the mined area to avoid accident in future :
In this connection it was informed by the Director of Mines & Geology that the Water Resource Department has already been requested to carry 7 out secured barbed wired fencing along the periphery of the abandoned pit. The Water Resource Department has prepared the estimate for which Administrative Approval has already been given. The expenditure sanction shall be accorded within this week to issue the work order at the earliest possible time.
It was also suggested by the Member from Goa State Pollution Control Board that huge tons of garden wastes are generated by the various Municipalities on daily basis. The same can be utilized for filling up of the mining pits and the top layer can be covered with compost. Thereafter Bio-Diversity Board can be requested to take up plantation on this land. It was informed that the subject area is a lateritic terrain wherein the laterite stone are exposed at surface and there is no plantation in such land. The restoration of such land with garden waste and compost shall upgrade the land for utilizing the same for agricultural purpose. However the cost for restoration for private land shall be borne by the respective land owners.
Further the Water Resource Department is requested to explore the possibility of utilizing such abandoned laterite stone quarries for Ground Water Recharge Structure considering the water holding capacity of such abandoned pits. It is also discussed that considering the water storage capacity, filtration plant can be setup for supply of water to nearby villages.
2) State Pollution Control Board to Calculate the Environmental Compensation in accordance with the law.
The member from Goa State Pollution Control Board informed that since the land is a barren land with no vegetation, the environmental compensation in such cases shall be negligible or nil. The environments damaged by extraction of laterite stones thereby converting the land use pattern. Therefore the Environmental compensation shall be restoration cost involved for reclamation and restoration of land to its original The GSPCB shall calculate the compensation accordingly factoring all such costs.
3 The Committee to calculate the amount of compensation payable to four students who lost their lives by drowning in the pits and suggest the amount of compensation, taking in the account the age, qualification and monthly income.
The compensation payable to the family of the students who lost their life shall be calculated taking into consideration the SDRF Norms and the standards of the State Disaster Management Authority.
4) The committee shall also submit the report on the point with regard to responsibility of the person to pay the compensation and ratio thereof and legal action against the person who violated the rules.
The compensation shall be recovered from the respective landowners/extractors/offending parties. Since the extraction of laterite stone is carried out illegally without a valid permission/NOC, the responsibility of the respective landowners/extractors/offending parties to pay the compensation shall be 100% recovery. Since the incident of drowning took place in a land owned by the private persons such compensation shall be recovered from the respective landowners."
9. The remedial measures as suggested by the Director Mines are accepted and he is directed to proceed in accordance with law. Vide 8 letter dated 5th November, 2019, the Director Mines has communicated that vide demand draft no. 555352, an amount of Rs. 5 lakhs which he was directed to pay to the Central Pollution Control Board as an environmental Compensation has been paid on 15th October, 2019. A copy of draft has been attached with the Report. Vide Report dated 7th January, 2019, it has been submitted that 35 sites in Pernem Taluka placed at page no. 17 of the application no quarrying permit or quarrying lease has been granted by this office in these cases as per office records and further it is reported that all these mining were added all abundant excavation or continued without any permissions and these are all illegal mining. The content of the application and report reveals that there is a four deaths and that too of a young students and it requires that the reasonable compensation should be paid to the persons who died due to falling in the pit of mining due to negligence of the administration and polluters. Just compensation and negligence has been discussed in FAFO No.430/2011 Uttar Padesh Rajya Sadak Parivahan Nigam Vs. Smt. Shalini Pratap W/O Late Praveen Pratap & Ors. vide order dated 4th December, 2017 and it has been discussed as follows:
"9. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 Indian Penal Code. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated Under Section 279 Indian Penal Code is attracted.
10. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar 9 considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
11. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
12. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the Indian Penal Code that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent such happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct.
13. In the case of Nageshwar Shri Krishna Ghobe v. State of Maharasthra MANU/SC/0182/1972 : (1973) 4 SCC 23, the Court observed that the statements of the witnesses who met with an accident while travelling in a vehicle or those of the people who were travelling in the vehicle driven nearby should be taken and 10 understood in their correct perspective as it is not necessary that the occupants of the vehicle should be looking in the same direction. They might have been attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. The Court held as under:
"6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre- occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom - and it is only a matter of coincidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know something more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye- witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured.
23. The expression 'just compensation' has been explained in Sarla Verma's case - AIR 2009 SC 3104, holding that the compensation awarded by a Tribunal does not become just compensation merely because the Tribunal considered it to be just. 'Just Compensation' is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. After surveying almost all the previous decisions, the Court almost standardized the norms for the assessment of damages in Motor Accident Claims.
24. In a recent decision, in Santosh Devi v. National Insurance Co. Limited and Ors. MANU/SC/0322/2012 : (2012) 6 SCC 421, Sarla Verma's case has further been explained with regard to the settled norms. It has been held in Paragraph 11 as follows:"
"11. We have considered the respective arguments. Although, the legal jurisprudence developed in the country in last five decades is somewhat precedent- centric, the judgments which have bearing on socioeconomic conditions of the citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in 11 view the fast-changing societal values, the effect of globalisation on the economy of the nation and their impact on the life of the people."
25. Consequently, it has been held at Paragraphs 14 to 18, as follows:
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self- employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.
15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put in extra efforts to generate additional income necessary for sustaining their families.
16. The salaries of those employed under the Central and State Governments and their agencies/ instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.
17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages.12
Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.
26. Since, the Court actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
27. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self- employed or on fixed wages, where there is normally no age of superannuation, it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
28. Whether the Tribunal is competent to award compensation in excess of what is claimed in the Application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case.
"Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."
29. The principle was followed in the later decisions in Oriental Insurance Co. Limited v. Mohd. Nasir and Anr.
MANU/SC/0899/2009 : AIR 2009 SC 1219 and in Ningamma and Anr. v. United Indian Insurance Co. Limited MANU/SC/0802/2009 :
(2009) 13 SCC 710.
30. Underlying principle discussed in the above decisions is with regard to the duty of the Court to fix a just compensation and it has now become settled law that the Court should not succumb to niceties or technicalities, in such matters. Attempt of the Court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim. "
10. The Tribunal had also dealt the matter of death, falling in the sand mining pit in the matter of O.A No. 363/2015 NGT Bar Association Vs. Dr.Sarvabhoum Bagali (State of Karnataka) and vide order dated 25th 13 September 2018 a reasonable amount has been awarded to the family of the deceased.
11. Section 15 of the NGT Act, 2010 provides as follows:
"15 Relief, compensation and restitution. -
(1) The Tribunal may, by an order, provide,-
(a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
(b) for restitution of property damaged;
(c) for restitution of the environment for such area or areas, as the Tribunal may think fit.
(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority."
12. Where there is a Tortious Act such as trespass, nuisance, negligence committed by anyone then he may be liable to the damages for the malicious deliberate or injurious wrong doings. There is just a tort which has been called misfeasance in a public and its includes malicious abuse of power, deliberate mismanagement and perhaps also other unlawful acts causing injury to others. The applicant or very poor 14 farmers and they cannot contest to the level of High Court and Court at Delhi. They are living in position of below poverty line and in the condition when their crops are damaged and have no source of income, they are struggling for their existence and struggling for their survival. The water for agricultural farmers is source of life and source of livelihood. An ordinary citizen and a common man are hardly equipped to match the might of the mighty and the State instrumentalities. It is provided by the rule of law, it is called check on arbitrary and capacious exercise of power and function of the authorities. A person if functions in such a way and acts maliciously are oppressively and the exercise of power results in harassment and agony that it is not an exercise of power and good management. No law provides protection against it. Who is responsible for it, must suffer for it. Compensation or damages may rise even when the act of the respondents is not bona-fide or he acted negligently and carelessly and coming into the definition of deliberate mal-administration, it is called misfeasance. Harassment of a common man by the mighty powers is socially abhorring and legally impermissible. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning of the mighty officers instead of standing against it. Therefore, the award of compensation for harassment by public authorities not only compensate the individual, satisfies him personally but helps in curing the social evil. It may result in improving the work culture and help in changing the outlook.
13. In a case reported in AIR 1999 SCC (p.2468) M.I. Builders Pvt. ltd. Vs. Rahdey Shyam Sahu & Ors., it was held that "a Country should not be ruled by man but should be ruled by law. It means that that the State action must confirm to its statuary provisions. The power must flow from 15 rules, regulations, and statutory provisions. In absence of power conferred by the statutory provision, State or its instrumentalities cannot divest a person from his or her property or abridge or dilute the right protected by Article 14 and Article 21 of the Constitution of India safeguarding life, liberty livelihood or equality of law. It was held in 2005(6) SCC (p 344) Salem Advocates Bar Association Vs. Union of India that where there is abuse of process of law or litigants suffer for no fault on their part, then court must impose cost.
14. The Tribunals or Courts constant endeavour must be to ensure that everyone gets just and fair treatment. The Court or Tribunal while rendering justice must adopt a pragmatic approach and in appropriate cases realistic cost and compensation be ordered in order to discourage dishonest litigation. When a person or institution is involved in commercial activities then any injury or damage caused by the act of these commercial activities must be compensated.
15. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters, a common who has neither the any background nor the financial strength to match the inaction in public oriental department gets frustrated and it erodes the credibility of the system. The consumer must not be made to run from pillar to post. Where there has been capacious arbitrary or negligent exercise or non exercise of power by the authorities or instrumentalities, the forum must be provided in the department itself to hear the grievances and take a decision to redress the public grievance. In a welfare State there should be immediate attention to public grievance in case some injury is caused the government and its instrumentalities should not hesitate to compensate the sufferers punish the wrong doers. The individual welfare 16 as well as the welfare of the society should be balanced and the person should not be compelled to knock the door of the Courts or Tribunals more so, when it is cumbersome process to approach the Court for payment of compensation subject to payment of court fees or lawyer fees with regard to misfeasance by the authority concerned.
16. The Privy Council in the case of Eastern and South African Telegraph Company, Limited v. Cape Town Tramways Companies Limited, reported in (1902) AC 381, has held that the principle of Rylands v. Fletcher, is not inconsistent with the Roman law. It imposes a liability on a proprietor which is measured by the non-natural user of his own property, not by that of his neighbour. It also applies to a proprietor who stores electricity on his land if it escapes therefrom and injures a person or the ordinary use of property.
17. In the case of Corporation of The City of Glasgow v. Taylor, reported in (1922) 1 AC 44, the House of Lords have held that in the case of child eating poisonous berries, the proprietors and custodians of the garden are liable.
18. In the case of Paine v. Colne Valley Electricity Supply Co., Ltd. And British Insulated Cables, Ltd. reported in (1938) 4 All. E.R. 803, it was held that as there was no efficient screening of the dangerous parts in accordance with the provisions of that Act, there was a breach of statutory duty by the first defendants and they were held liable.
19. In the case of Yachuk& another v. Oliver Blais Co., Ltd., reported in (1949) 2 All. E.R. 150, the Privy Council has held that when employee has given an explosive substance to a boy with a limited knowledge in respect of the likely effect of the explosion, the boy having done the act which the child of his years might be reasonably expected to do. This would not be a case of contributory negligence.
20. In Madhya Pradesh Electricity Board vs. ShailKumari and others, 17 AIR 2002 SC 55,1 it was held as follows:
"8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
9.The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands v. Fletcher (1868 Law Reports (3) HL 330). Blackburn J., the author of the said rule had observed thus in the said decision:
"The rule of law is that the person who, for his own purpose, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."
10.There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one which is this. "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply". (vide Page 535 Winfield on Tort, 15th Edn.)
11. The rule of strict liability has been approved and followed in many subsequent decisions in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in CharanLalSahu v. Union of India and a Division Bench in Gujarat State Road Transport Corporation v.
RamanbhaiPrabhatbhai had followed with approval the principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd.(2001) 2 SCC 9}."
21. The plea of an inevitable accident or an act of God advanced at the stage of hearing, cannot come to the aid of the opposite parties. While 18 considering the question of inevitable accident or an act of God, it will be useful to reproduce a passage from the Law of Torts, 22nd Edition, by Justice G. P. Singh, which reads thus:
"All causes of inevitable accidents may be divided into two classes: (1) those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause; and (2) those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, non- feasance or mis-feasance, or in any other causes independent of the agency of natural forces. The terms 'act of God' is applicable to the former class."
22. In the case reported in https://indiankanoon.org/doc/121920906 : Yashpal Singh Vs. State of UP, Miscellaneous Bench No. 6929 of 2014 in the case of injury through electric wire it was held:
"An inevitable accident is an event which happens not only without the concurrence of the will of the man, but in spite of all efforts on his part to prevent it. It means, an accident physically unavoidable something which cannot be prevented by human skill or foresight. We have already referred to the report of the expert (Director) which indicates that the department was at fault for not taking safety measurements. Had the Board exercised proper care and supervision, it could have taken proper and prompt steps to cover the naked wire near human living or by taking other steps, the like situation would have been avoided. Thus, it cannot be said that the Uttar Pradesh State Electricity Board could not have prevented the incident by exercise of ordinary care, caution and proper supervision. Thus, it is not a case where the accident took place in spite of all efforts on the part of the Uttar Pradesh State Electricity Board to prevent it. In other words, it can be said that the accident was solely due to lack of care and caution on the part of the Uttar Pradesh State Electricity Board and its functionaries. Thus, it follows that the plea of an inevitable accident is wholly misconceived and cannot come to the aid of the opposite parties for getting out of its liability.
An 'act of God' is an inevitable or unavoidable accident without the intervention of the man; some casualty which the human foresight could not discern and from the consequence of which no human protection could be provided. This is not a case where the incident was due to unexpected operation of natural forces free from human intervention which no reasonable human foresight could be presumed to anticipate its occurrence or to prevent it. On the contrary, the material on record clearly indicates that but for indifference and inaction -- negligence of the Uttar Pradesh State Electricity Board in not making nuke wise steps near human living, the incident may not have occurred."
23. As a reference was made to the case of Rylands v. Fletcher (186S- 19 LR 3HL 330) (supra), the same may be dealt with briefly. In that case, the defendants had constructed a reservoir upon their land, in order to supply water to their mill. On the site that was chosen for the reservoir, there existed some shafts of a coal mine which was not in use. However, the passages also led to the adjoining mine which was owned by the plaintiff. This, however, was not discovered at the time of construction with the result that when the reservoir was filled, the water went down to the shaft and flooded the plaintiff's mine. Under these facts, the plaintiff instituted a suit for damages and succeeded. Dismissing the defendants' appeal, it was held by the House of Lords:
"The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings his land something which, though harmless while it remains there, will naturally do mischief if it escapes out of his land? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keep there, in order that it may not escape and damage his neighbours; but the question arises whether the duty which the law casts upon him under such circumstances is an absolute duty to keep it at his peril or is, ... merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more ...
We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default; or, perhaps, that the escape was the consequence of 'vis major' or the act of God; but as nothing of this sort exists here, it is unnecessary to enquire what excuse would be sufficient."
24. We have also to consider what would be just compensation. The Court has power to award the compensation above the amount claimed, so as to award compensation which was just. In this regard the following observations of the Supreme Court in State of Haryana vs. JasbirKaur reported in (2003) 7 SCC 484, are worth noting:-
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award 20 determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression 'just" denotes equitability, fairness and reasonableness, and non-arbitrary. if it is not so it cannot be just. (Helen C. Rebello v. Maharashtra SRTC (1999(1) SCC 90)".
25. It has been held by Supreme Court in Yadava Kumar Vs. Divisional Manager National Insurance Co. Ltd. Reported in (2010) 10 SCC 341 as under:
"14. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW-2 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome.
15. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a `just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of `just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (Mrs. Helen C. Rebello and others Vs. Maharashtra State Road Transport Corpn. and another - AIR 1998 SC 3191).21
16. It was also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (HardeoKaur and others Vs. Rajasthan State Transport Corporation and another - (1992) 2 SCC 567).
17. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation."
26. The learned counsel for the applicant had submitted that the National Green Tribunal Act, 2010 is a beneficial legislation to protect the environment and to compensate the person who has sustained injuries due to non-maintenance of environment and on the principle of 'Polluter's to Pay',the applicant may be compensated. The beneficial legislation was interpreted in the New India Assurance Co. Ltd. vs. Ramesh Kalita And Others in (1989) ACC 248, the point of discussion in this case was the payment of compensation in the case of accident in motor is in Tribunal and in this reference, the relevant paras are as follows:
"13. Shri P.K. Das, learned Counsel for the claimant respondent has of course cited Oriental Fire and General Insurance Co. v. Smt. Shantabai S. Dhume AIR 1987 Bombay 52. The main consideration in giving Section 92-A retrospective operation appears to have been that the provision constitute a beneficial piece of legislation and the legislative intendment appeared clear. It was observed in Para 5:
The legislative intendment appears thus clear and what was apparently meant is to provide for compensation in all accident cases involving motor vehicles where death or permanent disablement occurred, the question as to whether the accident was due to the fault of the driver of the vehicle, or of the victim, or due to a mechanical failure, or to force majoure, being entirely irrelevant and immaterial. The legislative intendment is manifesly 22 to give some relief to those who have the misfortune of meeting with such accident or to their families. Section 92-A embodies and is, as such, a piece of welfare legislation which requires a liberal interpretation so as its benefits may be extended to all victims of accidents or their families, especially when nowhere in the said provision of law it is postulated that the benefit is given prospectively only and on the contrary it would appear from its wording that the said benefit is to be given in all cases where an accident occurred and as a result thereof, a death or a permanent disablement was occasioned. The Statement of Objects and Reasons of the Amendment Act to some extent corroborates this view for it particularly indicates that the intention of the Legislature was to remove the evil and mischief that people who suffered the accident had to face, being sometimes unable to prove the negligence or rashness of the driver or the owner of the vehicle and, therefore, unable to get the compensation they were entitled to.
21. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan AIR 1987 SC 1184, the principle was laid down-
These must therefore be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life- aim. To do otherwise would amount to nullifying the benevolent provision by reading it with a non-benevolent eye and with a mind not turned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the legislature has given, the Court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent. In fact it appears that the former view is more plausible apart from the fact that it is more desirable When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the 'exclusion clause' does not cross swords with the 'main purpose' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose.
21. In Craies on Statute Law Seventh Edition at page 396 under the head "Statutes passed to protect the public sometimes held retrospective", it is stated "If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right".
22. Under the head "Statutes virtually retrospective" at the same page it is stated "Sometimes a statute although not intended to be retrospective, will in fact have a retrospective operation. For 23 instance, if two persons enter into a contract, and afterwards a statute is passed, which, as Cockburn C.J. said in Duke of Devonshire v. Barrow, etc., Co., "engrafts an enactment upon existing contracts" and thus operate so as to produce a result which is something quite different from the original intention of the contracting parties, such a statute has, in effect, a retrospective operation".
23. It is also a well recognised principle that a statute is not properly called a retrospective statute because a part of the requisite for its action is drawn from a time antecedent to its passing.
25. The provisions of Section 92-A show that the legislature did not use any express words to give retrospective effect, which it could have provided easily by use of words to that effect and in the 'commencement' clause of the Amendment Act it was said that it shall come into force on such date as the Central Government may notify. As to the commencement, I do not think it to be conclusive of the legislative intendment against retrospective operation because there were other provisions in the Amending Act and it is well known that such stipulation for commencement is made with a view to make preparation etc. for implementation of the provisions and when the Government is about ready to do so the statute is brought into force. I therefore do not consider the said stipulation about commencement as necessarily showing legislature's intendment against retrospective operation of the provisions of Section 92A. As regards the absence or non-existence of express words to give retrospective effect I am inclined to think that this too should not be considered as clinching the matter under consideration, for the reason, that there is nothing in the said provision, either, which may show that it was not intended to cover cases where death or permanent disability had occurred earlier.
26. The language of Section 92 A, that, where the death or permanent disablement has resulted from an accident the owner shall be liable to pay compensation in accordance with the provisions of this Section, in Sub-section (2), the fixed sum of compensation payable and in Sub-section (3) that in any claim for compensation Under Sub-section (1) the claimant shall not be required to plead and establish wrongful act, negligence etc. considered together, could well mean that where the claim could be made, that is where death or permanent disability had occurred and the claim was pending, compensation Under Sub-section (1) of Section 92-A could just be claimed and all that would happen would be that the claimant would not be required to plead or establish any wrongful act, negligence or default etc.
27. It, therefore, appears necessary to determine legislative intendment, underlying Section 92A. As the title of the chapter VII A itself shows the legislature intended that some compensation should be paid to the victim of a motor accident in case of death or permanent disability, without going into the question of fault. The intention of the legislature was to provide some relief immediately without even pleading or proof of wrongful act, negligence, default etc. as cause of accident.
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28. The statement of objects and reasons of the amending Act noted earlier clearly show that the new provision is manifestly a socially beneficial legislation intended to provide some measure of protective relief by way of quick payment of some compensation to the affected persons, in view of the grave risk which the public is exposed or subjected most of the time, with increasing numbers of fast moving motor vehicles on the road."
27. Accordingly this Tribunal has jurisdiction to pass an order to award a compensation and just a compensation to the family members of the deceased and it is a negligence Act on the part of the polluter or the person who were involved in the illegal mining for commercial purposed and due to negligence of those persons the four students of bright carrier succumbed to injuries and thus their family members are entitled for a reasonable compensation. This can never be said to be an inevitable accident or Act of God. As discussed above for calculation of just compensation the court has to adopt a parameter for payment of just compensation and negligence on the part of the person on the Principle of reasonable care and the person involved in legal or illegal mining if they would have taken a proper and reasonable care, the incident could have been avoided. The law imposes an obligation and duty on a person to take proper care so that the others may not be victim of their act. Just a compensation can be dealt with in Sarla Verma & Ors vs Delhi Transport Corp.& Anr AIR 2009 Supreme Court 3104 wording that the Compensation awarded by a Tribunal does not become just compensation merely because the Tribunal considered it to be just. Just Compensation is an adequate compensation which is a fair and equitable, on the facts and circumstances of the case, to make a good to the law suffered as a result of the wrong, as far as money can do so by applying the well settled principle relating to award of compensation. Since no other parameter available thus we may adopt the way of awarding reasonable compensation in light of the principle laid down in 25 the Sarla Verma case in Motor Accident Cases the parameter for fixation of the compensation may be on the basis of his salary or self-employed person or salary without provision of annual increment and with regard to the person who are not employed and on the basis of Minimum Wages Act. The rise in cost of living affects everyone across the board. It does not make and distinction between rich and poor. As a matter of fact the effect of rise in prices which directly impact the cost of living is minimum on the reach and maximum of those who are self-employed or who gets fixed income or who are daily wagers. For the calculation of compensation we take an example of minimum wages prescribed by Government of India that is Four Hundred Thirty Three Rupees (Rs. 433/-) and for easy calculation we take it as a Four Hundred Rupees (Rs. 400/-) and if minimum work for 20 days in the month is provided to the applicant the calculation of the minimum just compensation should be as follows:
a. At the rate of Rs. 400 per day and 20 days work income per month = Rs. 8000/-.
b. Annual Income Rs. 96000/-.
c. If one third is reduced for his expenditure, annual income
becomes Rs. 64000/-.
d. If he is capable to work upto 25 years during the life the
amount of Just Compensation should be Rs. 64000/- multiplied by 25 = Rs. 1600000/- (Sixteen Lakhs Rupees).
28. Accordingly at a minimum rate (the Minimum Wages as prescribed by the Government of India is Rs. 433/-) and for easy calculation we have taken Rs. 400/- and at the rate of minimum 20 days work, the amount of compensation which is to be paid or for which the family members of the 26 deceased are entitled are approximately Rs. 1600000/- (Sixteen Lakhs Rupees). Accordingly for want of any other parameter for payment of compensation, we calculated on the basis of expectancy of capability of the work of person and accordingly the family member of the deceased are entitled of Rs. 1600000/- (Sixteen Lakhs Rupees) as a compensation to be paid by the State Government (Department of Mines which can be recovered from the polluters with interest). The amount should be paid by the State of Goa, Department of Mining for deceased family members at the rate of Rs. 1600000 (Sixteen Lakhs Rupees) plus interest at the rate of 6 % per annum from the date of this order and the State will be entitled to recover the amount of compensation so paid from the polluters. If any amount has been paid by the State prior to this compensation that may be adjusted and deducted from the above amount but the State can recover the amount from the polluters.
29. By filing the reply and affidavit, State Pollution Control Board has submitted that necessary action and show cause notice has been issued to the polluters as to why the necessary action should not be initiated and as to why the environmental compensation be not recovered from them. Notices under Water (Prevention and Control of Pollution) Act, 1974 and Under Section 31 A Air (Prevention and Control of Air Pollution) Act, 1981 have been issued to the authorities concerned. State Pollution Control Board is directed to take necessary action in accordance to law and ensure that the environmental compensation must be recovered from the polluters on the basis of Principle of Polluter Pay. Further, the Collector had submitted to take remedial action as well as the legal action against the polluters, he is at liberty take action in accordance with law. 27
30. The Learned Counsel appearing for the Ministry of Environment, Forest and Climate Change (MoEF&CC) has argued that the respondent- Ministry has formulated the new guidelines i.e. "Enforcement & Monitoring Guidelines for Sand Mining" (EMGSM 2020) supplemental to the existing guidelines i.e. Sustainable Sand Management Guidelines 2016, which focus on the effective monitoring of the sand mining, the identification of sand mineral sources, its dispatch and end-use by consumers and the general public. Further, this document will serve as a guideline for collection of critical information of enforcement of the regulatory provision(s) and also highlights the essential infrastructural requirements necessary for effective monitoring for sustainable sand mining.
31. Learned Counsel appearing for the MoEF&CC has submitted that the Monitoring Guidelines as issued by the Ministry is required to be followed. It is to be noted that enforcement of Monitoring Guidelines for Sand Mining was issued in January, 2020 by the Ministry of Environment and Forest. The relevant paras are quoted below:
"a) Parts of the river reach that experience deposition or aggradation shall be identified. The Leaseholder/ Environmental Clearance holder may be allowed to extract the sand and gravel deposit in these locations to manage aggradation problem.
b) The distance between sites for sand and gravel mining shall depend on the replenishment rate of the river. Sediment rating curve for the potential sites shall be developed and checked against the extracted volumes of sand and gravel.
c) Sand and gravel may be extracted across the entire active channel during the dry season.
d) Abandoned stream channels on the terrace and inactive floodplains be preferred rather than active channels and their deltas and flood plains. The stream should not be diverted to form the inactive channel.
e) Layers of sand and gravel which could be removed from the river bed shall depend on the width of the river and replenishment rate of the river.28
f) Sand and gravel shall not be allowed to be extracted where erosion may occur, such as at the concave bank.
g) Segments of the braided river system should be used preferably falling within the lateral migration area of the river regime that enhances the feasibility of sediment replenishment.
h) Sand and gravel shall not be extracted up to a distance of 1 kilometre (1 km) from major bridges and highways on both sides, or five times (5x) of the span (x) of a bridge/public civil structure (including water intake points) on up-stream side and ten times (10x) the span of such bridge on down-stream side, subjected to a minimum of 250 meters on the upstream side and 500 meters on the downstream side.
i) The sediment sampling should include the bed material and bed material load before, during and after the extraction period.
Develop a sediment rating curve at the upstream end of the potential reach using the surveyed cross-section. Using the historical or gauged flow rating curve, determine the suitable period of high flow that can replenish the extracted volume. Calculate the extraction volume based on the sediment rating curve and high flow period after determining the allowable mining depth.
j) Sand and gravel could be extracted from the downstream of the sand bar at river bends. Retaining the upstream one to two- thirds of the bar and riparian vegetation is accepted as a method to promote channel stability.
k) The flood discharge capacity of the river could be maintained in areas where there is a significant flood hazard to existing structures or infrastructure. Sand and gravel mining may be allowed to maintain the natural flow capacity based on surveyed cross-section history. Alternatively, off-channel or floodplain extraction is recommended to allow rivers to replenish the quantity taken out during mining.
l) The Piedmont Zone (Bhabhar area) particularly in the Himalayan foothills, where riverbed material is mined, this sandy-gravelly track constitutes excellent conduits and holds the greater potential for groundwater recharge. Mining in such areas should be preferred in locations selected away from the channel bank stretches.
m) Mining depth should be restricted to 3 meters and distance from the bank should be ¼th or river width and should not be less than 7.5 meters.
n) The borrow area should preferably be located on the riverside of the proposed embankment because they get silted in the course of time. For low embankment, less than 6 m in height, borrow area should not be selected within 25 m from the toe/heel of the embankment. In the case of the higher embankment, the distance should not be less than 50 m. In order to obviate the development of flow parallels to the embankment, crossbars of width eight times the depth of borrow pits spaced 50 to 60 meter center-to-center should be left in the borrow pits.
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o) Demarcation of mining area with pillars and geo-referencing should be done prior to the start of mining.
p) A buffer distance /un-mined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.
q) A buffer distance /unmined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.
r) River bed sand mining shall be restricted within the central 3/4th width of the river/rivulet or 7.5 meters (inward) from river banks but up to 10% of the width of the river, as the case may be and decided by regulatory authority while granting environmental clearance in consultation with irrigation department. Regulating authority while regulating the zone of river bed mining shall ensure that the objective to minimize the effects of riverbank erosion and consequential channel migration are achieved to the extent possible. In general, the area for removal of minerals shall not exceed 60% of the mine lease area, and any deviation or relaxation in this regard shall be adequately supported by the scientific report.
s) Mining Plan for the mining leases (non-government) on agricultural fields/Patta land shall only be approved if there is a possibility of replenishment of the mineral or when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market."
4.1.1 Preparation of District Survey Report.
"Sustainable Sand Mining Guidelines, 2016" issued by MoEF&CC requires preparation of District Survey Report (DSR), which is an important initial step before grant of mining lease/LoI. The guidelines emphasize detailed procedure to be followed for the purpose of identification of areas of aggradation/ deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited. Calculation of annual rate of replenishment, allowing time for replenishment after mining, identification of ways of scientific and systematic mining; identifying measures for protection of environment and ecology and determining measures for protection of bank erosion, benchmark (BM) with respect to mean Sea Level (MSL) should be made essential in mining channel reaches (MCR) below which no mining shall be allowed.
The NGT in its Judgment dated 08.12.2017 in the matter of Anjani Kumar vs State of Uttar Pradesh & Ors. inter-alia mentioned the following regarding sand mining in the Uttar Pradesh:
"It states that the main object of preparation of District Survey Report is to ensure identification of areas of 30 aggradation/deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining area. Thus, the environmental protection requires a strictly regulated mining in terms of area, quantity as well as most importantly replenishment thereof."
"The data collection and declared for preparation of DSR shall take precedence over other data and would form the foundation for providing mining lease in terms of Appendix- x to the Notification dated 15th January 2016 must be prepared by the statutory authority stated therein i.e. DEIAA prior to awarding of permits for carrying on mining activity in any part of the State of UP."
The Hon'ble High Court of Jharkhand at Ranchi in its orders dated the 11th April, 2018 and 19th June, 2018 in W.P. (PIL) No. 1806 of 2015, in the matter of Court on its Own Motion Versus the State of Jharkhand & Others with W.P. (PIL) No. 290 of 2013, in the matter of Hemant Kumar Shilkarwar Versus the State of Jharkhand & Others, has inter-alia directed the preparation of District Survey Report for minor minerals other than Sand and Bajri or delegation of the powers for preparation of format of District Survey Report of minor minerals other than sand and Bajri to the State Government and/or District Environment Impact Assessment Authority and District Expert Appraisal Committee. To comply with the direction of Hon'ble High Court the Ministry has issued S.O. 3611(E) dated 25.07.2018, wherein, the procedure of preparation of DSR is mentioned. But it is felt that still there is other information that needs to be reported in DSR to make it a comprehensive DSR. Therefore, preparation of District Survey Report is a very important step and sustainable sand mining in any part of the country will depends on the quality of District Survey Report. Considering the importance of district survey report, the Ministry of Environment Forest and climate change, after consultation with experts dealing with mining-related matters, formulated the following guidelines for the preparation of comprehensive District Survey Report for sand mining:
a) District Survey Report for sand mining shall be prepared before the auction/e-auction/grant of the mining lease/Letter of Intent (LoI) by Mining department or department dealing the mining activity in respective states.
b) The first step is to develop the inventory of the River Bed Material and Other sand sources in the District. In order to make the inventory of River Bed Material, a detailed survey of the district needs to be carried out, to identify the source of River Bed Material and alternative source of sand (M- Sand). The source will include rivers, de-siltation of reservoir/dams, Patta lands/Khatedari Land, M-sand etc. The revenue department of Kerala already conducted river mapping and sand auditing of around 20 rivers of Kerala which is a good example wherein the profile of rivers was 31 created at regular intervals and aggradation/deposition was identified along with water level. In the same study, benchmarks were also created at a prominent location at regular interval for future surveying. Such study helps the mining departments to identify the source of sand.
Thus, it is proposed that for preparation of district survey report, the auditing of rivers needs to be carried out. There is already a provision under MMDR Act 2015 for National Mineral Exploration Trust (MET) wherein a 2% of royalty amount to be deposited in the trust. This fund is used for mineral exploration in the country. The Sand Auditing is also a sort of identification of mineral and State Government may request Central Govt. for proving funds for river auditing. The Central Govt. (Ministry of Mines) may also explore the possibilities for providing the funds for river auditing. The other option is that State Govt. may conduct such studies by its own fund and the same may be recovered from the leaseholders to whom the mining lease will be allocated.
c) District Survey Report is to be prepared in such a way that it not only identifies the mineral-bearing area but also define the mining and no mining zones considering various environmental and social factors.
d) Identification of the source of Sand & M-Sand. The sources may be from Rivers, Lakes, Ponds, Dams, De- silting locations, Patta land/Khtedari lands. The details in case of Rivers such as [name, length of river, type (Perennial or Non-Perennial ), Villages, Tehsil, District], in case of Lakes, Ponds, Dams, De-silting locations [Name, owned/maintained by (State Govt./PSU), area, Villages, Tehsil, District] in case of Patta land/Khtedari lands [ Owner Name, Sy No, Area, Agricultural/Non-Agricultural, Villages, Tehsil, District], in case of M-Sand Plant [Owner Name, Sy No, Area, Quantity/Annum, Villages, Tehsil, District], needs to be recorded as per format given in Annexure-I.
e) Defining the sources of Sand/M-Sand in the district is the next step for identification of the potential area of deposition/aggradation wherein mining lease could be granted. Detailed survey needs to be carried out for quantification of minerals. The purpose of mining in the river bed is for channelization of rivers so as to avoid the possibility of flooding and to maintain the flow of the rivers. For this, the entire river stretch needs to be surveyed and original ground level (OGL) to be recorded and area of aggradation/deposition needs to be ascertained by comparing the level difference between the outside riverbed OGL and water level. Once the area of aggradation/deposition are identified, then the quantity of River Bed Material available needs to be calculated. The next step is channelization of the river bed and for this central ¾th part of the river, width needs to be identified on a map. Out of the ¾th part area, where there is a deposition/aggradation of the material needs to be identified. The remaining ¼th area needs to be kept as no 32 mining zone for the protection of banks. The specific gravity of the material also needs to be ascertained by analyzing the sample from a NABL accredited lab. Thus, the quantity of material available in metric ton needs to be calculated for mining and no mining zone.
Note: As physical survey with conventional method is time- consuming, use of unmanned aerial vehicle (UAV) may be explored to carry out the survey and finalizing the original ground level and for developing a 3D model of the area.
f) The permanent boundary pillars need to be erected after identification of an area of aggradation and deposition outside the bank of the river at a safe location for future surveying. The distance between boundary pillars on each side of the bank shall not be more than 100 meters.
g) Identifying the mining and no mining zone shall follow with defining the area of sensitivity by ascertaining the distance of the mining area from the protected area, forest, bridges, important structures, habitation etc. and based on the sensitivity the area needs to be defined in sensitive and non-sensitive area.
h) Demand and supply of the Riverbed Material through market survey needs to be carried out. In addition to this future demand for the next 5 years also needs to be considered.
i) It is suggested that as far as possible the sensitive areas should be avoided for mining, unless local safety condition arises. Such deviation shall be temporary & shall not be a permanent feature.
j) The final area selected for the mining should be then divided into mining lease as per the requirement of State Government. It is suggested the mining lease area should be so selected as to cover the entire deposition area. Dividing a large area of deposition/aggradation into smaller mining leases should be avoided as it leads to loss of mineral and indirectly promote illegal mining.
k) Cluster situation shall be examined. A cluster is formed when one mining lease of homogenous mineral is within 500 meters of the other mining lease. In order to reduce the cluster formation mining lease size should be defined in such a way that distance between any two clusters preferably should not be less than 2.5 Km. Mining lease should be defined in such a way that the total area of the mining leases in a cluster should not be more than 10 Ha.
l) The number of a contiguous cluster needs to be ascertained. Contiguous cluster is formed when one cluster is at a distance of 2.5 Km from the other cluster.
m) The mining outside the riverbed on Patta land/Khatedari land be granted when there is possibility of replenishment of material. In case, there is no replenishment then mining lease shall only be granted when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects, 33 mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market. Cluster situation as mentioned in para k above is also applicable for the mining in Patta land/Khatedari land.
n) The State Government should define the transportation route from the mining lease considering the maximum production from the mines as at this stage the size of mining leases, their location, the quantity of mineral that can be mined safely etc. is available with the State Government. It is suggested that the transportation route should be selected in such a way that the movement of trucks/tippers/tractors from the villages having habitation should be avoided. The transportation route so selected should be verified by the State Government for its carrying capacity.
o) Potential site for mining having its impact on the forest, protected area, habitation, bridges etc, shall be avoided. For this, a sub-divisional committee may be formed which after the site visit shall decide its suitability for mining. The list of mining lease after the recommendation of the Committee needs to be defined in the following format given in as Annexure-II. The Sub-Divisional Committee after the site visit shall make a recommendation on the site for its suitability of mining and also records the reason for selecting the mining lease in the Patta land. The details regarding cluster and contiguous cluster needs to be provided as in Annexure-III.
p) Public consultation-The Comments of the various stakeholders may be sought on the list of mining lease to be auctioned. The State Government shall give an advertisement in the local and national newspaper for seeking comments of the general public on the list of mining lease included in the DSR. The DSR should be placed in the public domain for at least one month from the date of publication of the advertisement for obtaining comments of the general public. The comments so received shall be placed before the sub-divisional committee for active consideration. The final list of sand mining areas [leases to be granted on riverbed & Patta land/Khatedari land, desiltation location (ponds/lakes/dams), M-Sand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per Annexure- V. The details regarding cluster and contiguous cluster needs to be provided in Annexure-VI.
5.0 REPLENISHMENT STUDY The need for replenishment study for river bed sand is required in order to nullify the adverse impacts arising due to excessing sand extraction. Mining within or near riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, in-stream roughness of the bed, flow velocity, discharge capacity, sediment transport capacity, turbidity, temperature 34 etc. Alteration or modification of the above attributes may cause an impact on the ecological equilibrium of the riverine regime, disturbance in channel configuration and flow-paths. This may also cause an adverse impact on instream biota and riparian habitats. It is assumed that the riparian habitat disturbance is minimum if the replenishment is equal to excavation for a given stretch. Therefore, to minimize the adverse impact arising out of sand mining in a given river stretch, it is imperative to have a study of replenishment of material during the defined period. 5.1 Generic Structure of Replenishment Study Initially replenishment study requires four surveys. The first survey needs to be carried out in the month of April for recording the level of mining lease before the monsoon. The second survey is at the time of closing of mines for monsoon season. This survey will provide the quantity of the material excavated before the offset of monsoon. The third survey needs to be carried out after the monsoon to know the quantum of material deposited/replenished in the mining lease. The fourth survey at the end of March to know the quantity of material excavated during the financial year. For the subsequent years, there will be a requirement of only three surveys. The results of year-wise surveys help the state government to establish the replenishment rate of the river. Based on the replenishment rate future auction may be planned.
The replenishment period may vary on nature of the channel and season of deposition arising due to variation in the flow. Such period and season may vary on the geographical and precipitation characteristic of the region and requires to be defined by the local agencies preferable with the help of the Central Water Commission and Indian Meteorological Department. The excavation will, therefore, be limited to estimated replenishment estimated with consideration of other regulatory provisions.
5.2 Methodology for Replenishment Study The replenishment estimation is based on a theoretical empirical formula with the estimation of bedload transport comprising of analytical models to calculate the replenishment estimation. The iso-pluvial maps of IMD can be used for estimation of rainfall. Catchment yield is computed using different standard empirical formulas relevant to the geographical and channel attributes. eg. Strange's Monsoon runoff curves for runoff coefficient). Peak flood discharge for the study area can be calculated by using Dickens, Jarvis and Rational formula at 25, 50 and 100 years return period. The estimation of bed load transport using Ackers and White Equation or similar can be made. A simulation model is used with basic data generated from the field in the pre-study and post-study period (preferably pre-monsoon and post- monsoon) to estimate the volume of replenished material. The particle size distribution and bulk density of the deposited material are required to be assessed from a NABL recognized laboratory. Considering the bulk density and the volume, the estimation of replenishment in weight will be calculated after considering safeguards and stability of the slopes and riverine 35 regime. Some of the common methods used for field data acquisition for replenishment study 5.2.1. Physical survey of the field by the conventional method i. The conventional survey technical using DGPS and other survey tools are used to define the topography, contours and offsets of the lease area. The survey should clearly depict the important attributes of the stretch of the river and its nearby important civil and other feature of importance. Such information will provide the eligible spatial area for mining. The contour and the elevation benchmarks will provide the baseline data for assessing the pre and post-study period scenario. ii. Physical benchmarks are to be fixed at appropriate intervals (preferable 1 in 30 m) and the Reduced Level (RL) shall be validated from a nearby standard RL. These RL should be engraved on a steel plate (Bench Plate) and shall be fixed and placed at locations which are free from any damages and are available in pre and post-study period. The bench plates shall be available for use during the mining period as reference for all mining activity. Reference pillar may also be used in place of Bench Plates with visible and readable demarcation on the ground as common reference points to control the topographic survey and mining activity.
iii. Baseline data on elevation status for a grid of 10 m x 10 m is preferred to have accuracy in the assessment. It is expected that two consecutive cross-sections in longitudinal and lateral direction should not be more than 10-meter distance apart, however, the regulatory authority may fix these intervals depending on the geographical and site-specific conditions, only and after providing the scientific reason for such deviation. iv. The changes observed in the elevation in per and post scenario at each node should be depicted in graphical forms with an appropriate scale to estimate the area of deposition and erosion. These graphical presentations should depict the active channel regime and the flow bed elevation with other important features required to be considered for estimation of the mining area. The area of deposition and erosion shall be calculated for each cross-section after giving due regard to the stability and safety of active channel banks, and other features of importance. The elevation level shall be in reference to the nearest bench-plates established for the purpose. v. The levels (MSL & RL) of the corner point of each grid should be identifiable and safety barriers (Non-Mining) demarcated as restricted in consensus with Mineral Concession Rules of respective State, and the provision mentioned in this Sustainable Sand Mining Management Guidelines. vi A clear identification is required to be highlighted between grids under mineable and grids under the non-mineable area. These baseline data (pre and post) be subjected to stimulation with the help of data mine software to derive at the replenishment area and corresponding volume and estimated weight.
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vii. The database should be structured in a tabulated form clearly depicting the nomenclature of the section lines, latitude and longitude of the starting point, chain-age and respective levels of all the points taken on that section line. viii. Net area shall be derived after the summation of the area of deposition minus area of erosion for each cross-section. The volume will be estimated by multiplying the distance between two cross-sections with the average of net area of these two consecutive cross-sections.
ix. One sample per 900 square meters (30 m x 30 m) shall be preferred sample density for assessment of bulk density for estimation of deposition rate. Care should be taken that the sample for assessment of bulk density is taken from the deposition zone and not from erosion. However, depending on the site condition, river morphology and geographical condition, sample density may be adjusted. Reason for such deviation shall be appropriately highlighted in the report with supporting scientific data.
5.2.4 Replenishment study shall have the details of List of instruments List of software Establishment of Benchmark by putting No. of pillar points and various Ground Control Points (GCP) at the site. Ground Control Points (GCP) Collection: - Various GCPs were observed by using DGPS for Permanent Benchmarks and for control points.
The summary of the elevation data from each section's profile based on the post-monsoon the survey should have mentioned in the table form.
The detail of post-monsoon survey data in the tabular form shall be The detailed comparison of both pre-monsoon and post- monsoon elevation data shall be attached Cross-sectional depiction of deposition and erosion for each section in pre and post-deposition season shall be given supported by relevant field study data and plan.
32. The matter of sand mining and its effects has been discussed in the case of K. Rajasekar vs. The Chief Secretary to Government decided on 16.02.2018 by Hon'ble the Madras High Court the relevant paragraphs are quoted below:
"12. The learned counsel for the writ petitioners in the respective writ petitions contended that the State has been undertaking mining operations without any regard to the environment. The agents engaged by the State for mining and transportation of sand indulged in all kinds of illegal activities 37 and the same resulted in causing considerable damage to the environment. By placing reliance on the report submitted by the Court Commissioners, it was contended that time has come to stop the sand quarrying operations across the River Cauvery and Coleroon in the interest of the ecology. It was further contended that the natural resources, which is the public wealth has been looted by the State in collusion with the intermediaries.
13. The learned Advocate General by placing reliance on the affidavit filed by the Principal Secretary to the Government, Public Works Department and the supporting affidavit filed by the Chief Secretary to the Government submitted that the State would undertake sand mining after satisfying all the legal requirements and without adversely affecting the ecology. According to the learned Advocate General, the State would discharge the obligation undertaken without causing any kind of damage to the environment. The learned Advocate General took us through the proposal indicated in the affidavit filed by the Principal Secretary to the Government to demonstrate that in case the steps suggested by the Government is taken, it would enable the State to undertake mining operations without affecting the environment. The learned Advocate General submitted that there are enough shoals of sand at Mayanur, Sriramasamuthiram/ Sipilaputhur, Chinthalavadi, M.Puthur, Sirugamani, Musiri (West), Panayakurichi and Vittalapuram and made a request to grant permission to the State to undertake sand quarrying operations in those sites subject to the clearance to be obtained from the environmental authorities. The learned Advocate General submitted that sand would be quarried without private participation. It was submitted that on account of the interim order, cost of sand was shooted up and common man is the ultimate sufferer.
24. The adverse effect of sand mining without a proper mine plan was indicated by the Hon'ble Supreme Court in Deepak Kumar and others v. State of Haryana and others [ (2012) 4 SCC 629]
9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both instream biota and the associated riparian habitat. The demand for sand continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand.
25.Quarrying of river sand, it is true, is an important economic activity in the country with river sand forming a crucial raw 38 material for the infrastructural development and for the construction industry but excessive instream sand and gravel mining causes the degradation of rivers. Instream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes the deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material as already mentioned from within or near a streambed has a direct impact on the stream's physical habitat characteristics.
Conditions imposed by the Environment Authority
25. The environmental clearance issued for mining of sand contained the following mandatory conditions:-
i) The Licensee must use minimum number of poclains and it should not be more than two in the project site.
ii) The District Administration should assess the site for Environmental impact at the end of first year to permit the continuation of the operation.
iii) The Annual replenishment report certified by the authorised agency must be submitted to the prescribed authority. In case, the replenishment is low, the mining activity/production levels shall accordingly be decreased/stopped.
iv) There shall be no quarrying of sand in any river bed or adjoining area or any other area which is located within 500 m radial distances from the location of any bridge, water supply system, infiltration well or pumping installation.
v) The ultimate working depth shall be 1 m from the present natural river bed level and the thickness of the sand available shall be more than 3 m in the proposed quarry site.
vi)The sand quarrying shall not be carried out below the ground water table under any circumstances. In case, the ground water table occurs within the permitted depth at 1 meter, quarrying operation shall be stopped immediately.
vii) The sand mining should not disturb in any way the turbidity, velocity and flow pattern of the river water.
viii) The mining activity shall be monitored by the Taluk level Force once in a month by conducting physical verification.
ix) After closure of the mining, the licensee shall immediately remove all the sheds put up in the quarry and all the equipments used for operation of sand quarry. The roads/pathways shall be levelled to let the river resume its normal course without any artificial obstruction to the extent possible.
x) The mined out pits to be backfilled where warranted and area should be suitably landscaped to prevent environmental degradation.39
32. The natural resources are valuable assets of the State. It is the primary duty of the State to conserve the natural resources for our future generation. The citizens must be in a position to enjoy the resources without causing damage to the environment and the ecology. There must be an institutional framework and enforcement mechanism to prevent illegal and excess quarrying.
33. The mining should be undertaken by the State without any adverse impact on the environment. The State alone is responsible for this sorry state of affairs. There is no proper mechanism to check the illegal quarrying and the excess sand mining. The authorities who are given the mandate to operate the sand quarry are not at all concerned with the environment and ecology. They are conducting mining activities in collusion with the mining mafia and looting the natural wealth.
34. The River sand is an essential raw material for construction activity. The cost of construction nowadays depends upon very much on the cost of sand. The State for supply of sand to the people at affordable rate ought to have quarried the River sand judiciously and in compliance with the environmental norms and without causing destruction of Rivers. There is no dispute that depletion of sand in the stream bed would result in deepening of rivers and it would have a cascading effect on the environment. Therefore, a balance has to be struck taking into account the need to preserve the ecology and the need for quarrying River Sand for the economic development of the State.
40. The Hon'ble Supreme Court in M.C.Mehta v. Kamal Nath [1997 (1) Supreme Court Cases 388] made it clear that if there is a law made by the State legislature, the Courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review:
"35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the Courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the constitution."
43. The quarrying operations, even in those quarries where there are shoals of sand, must be undertaken only by abiding the norms and conditions of the environmental clearance. The quarry site shall be closed immediately after removing the available shoals of sand. The area and the depth of the quarry shall be in accordance with the permission granted by the environmental authorities. Such quarrying operations would be 40 subject to the result of the Special Leave Petition pending before the Hon'ble Supreme Court in SLP No.2831 of 2018.
45. The Government must undertake a scientific study with the help of experts to identify the mineral deposits and its exact location. The State must excavate the minerals only from the places identified by the experts and by following the conditions imposed by the environmental authorities. Interlinking roads inside the river must be removed to check the illegal mining and transportation of minerals. The levelling of roads inside the river shall be done on a phased manner and giving priority. The sand mining shall not be undertaken in respect of locations where illegal sand mining has already been carried out.
46. The State must ensure that the sand quarries would adhere to the norms regarding extent and depth. The boundary of the quarry shall be demarcated by following the procedure set-out under Clause 2 (ii) of the conditions imposed by the environmental authority.
50. The Court Commissioners have observed that clearance from the State Environment Impact Assessment Authority (SEIAA) has been routinely obtained for river sand mining without divulging the material factors like existence of Bridge, Water supply system etc. The SEIAA without conducting field inspection and cross checking the details permitted quarrying. There is no mechanism now to ascertain as to whether the conditions imposed by the SEIAA have been complied with by the licensee. This issue must be addressed by the Government and SEIAA. Before granting permission for the sites, where sand is available, the SEIAA must visit the place indicated in the application for sand mining. The boundaries of the site must be shown in the mine plan and excavation must be within the boundaries. The Project Director must fix the pucca permanent pillar boundaries for excavation. The Project Director must ensure that stones are erected at 50 metre intervals along the boundaries with the marking of Shoal height, River Bed Height and depth to be excavated. The State must streamline the entire process right from site selection to operation of quarry and supply of sand in an ecologically friendly and environmentally sustainable manner. The entire quarry sites must have CCTV. There must be IP cameras set up in all the poclains for monitoring the overloading. The State must include environmental experts from reputed Central/State Institutions preferably from Indian Institute of Technology to be part of the District Task Force. It must be the responsibility of the concerned District Collector to oversee, monitor and streamline the functioning of the sand quarrying. The Taluk and District level task force must be sensitized. The officials of the Public Works Department and others involved in the process must be given training periodically in relation to environmental and legal aspects of sand quarrying. The Government must fix liability on officials, who are violating the conditions of the clearance or permitting excess quarrying. The jurisdictional Revenue, Police, Geology and Transport department officials must be taken to task in case of illegal quarrying or transportation of sand without permission. The 41 State Appellate Forum constituted by the order in G.O.Ms.No.27 Industries Department dated 17 February 2015 must be a vibrant body. The Government must set up a centralised control room to monitor sand quarrying operations, one at Chennai and the other at Trichy as undertaken in the affidavit. The Centralised Monitoring through CCTVs must be taken up through live streaming from the control room. There must be a Customer Care Centre to receive complaints and take action on such complaints. The action taken report must be sent to the complainant and it must be available on line."
33. We have two things, sovereignty of the State and the doctrine of public trust. We have to make a balance between the two though the State has every authority to utilize the land but Public Trust Doctrine says that the property of the public should be utilized for the public purposes and not for the private purposes. The water bodies, lake, air and land all these are the public properties and should be made available to all for maintaining the health and environment. This Doctrine of public trust and precautionary measures was discussed in public interest litigation no. 87/2006; Bombay Environmental Action Group Vs. State of Maharashtra 2018 SCC online Bombay 2680.2019(1) Bombay CRI and it was held as follows:-
"Apex Court observed thus:
"2. The Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and saints of India lived in forests. Their preachings contained in vedas, upanishads, smritis, etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora, fauna and every species of life."
" The ancient Roman Empire developed a legal theory known as the "doctrine of the public trust". It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public 42 rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few."
In the case of M.C. Mehta v. Kamal Nath, in paragraph 34 and 35, the Apex Court held thus:
"34. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources."
In the case of Fomento Resorts & Hotels Limited v. Minguel Martins 4, In paragraphs 53 to 55 and 65, the Apex Court held thus:
55. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in 43 which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.
55. The public trust doctrine is a tool for exerting long-
established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.
65. We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems." (emphasis added) 54. Public at large has a right to enjoy and have a benefit of our forests including mangroves forest. The pristine glory of such forests must be protected by the State. The mangroves protect our environment. Therefore, apart from the provisions of various statutes, the doctrine of public trust which is very much applicable in India makes it obligatory duty of the State to protect and preserve mangroves.
PRECAUTIONARY PRINCIPLE
55. In the case of M.C. Mehta (Badhkal and Surajkund Lakes matter) v. Union of India, the Apex Court held thus:
"10. In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held as under:
"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary 44 treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem."
The "Precautionary Principle" has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes."
34. India is endowed with extraordinarily diverse and distinctive traditional water bodies found in different parts of the country, commonly known as ponds, tanks, lakes, vayalgam, ahars, bawdis, talabs and others. They play an important role in maintaining and restoring the ecological balance. They act as sources of drinking water, recharge groundwater, control floods, support biodiversity, and provide livelihood opportunities to a large number of people. Currently, a major water crisis is being faced by India, where 100 million people are on the frontlines of a nationwide water crisis and many major cities facing an acute water shortage. The situation will worsen as United Nations and Niti Ayog reports say that the demand for water will reach twice the available supply, and 40 per cent of India's population will not have access to clean drinking water by 2030. One of the reasons is our increasing negligence and lack of conservation of waterbodies. Since independence, the government has taken control over the waterbodies and water supply. With a colonial mindset, authorities move further and further away in the quest of water supply, emphasing more on networks, infrastructure and construction of dams. This, over time, has led to the neglect of waterbodies and catchments areas. As a result, we have started 45 valuing land more than water. In the last few decades, waterbodies have been under continuous and unrelenting stress, caused primarily by rapid urbanisation and unplanned growth. Encroachment of waterbodies has been identified as a major cause of flash floods in Mumbai (2005), Uttarakhand (2013), Jammu and Kashmir (2014) and Chennai (2015). Further, waterbodies are being polluted by untreated effluents and sewage that are continuously being dumped into them. Across the country, 86 waterbodies are critically polluted, having a chemical oxygen demand or COD concentration of more than 250 mg/l, which is the discharge standard for a polluting source such as sewage treatment plants and industrial effluent treatment plants. In urban India, the number of waterbodies is declining rapidly. For example, in the 1960s Bangalore had 262 lakes. Now, only 10 hold water.
Similarly, in 2001, 137 lakes were listed in Ahmedabad. However, by 2012, 65 were already destroyed and built upon. Hyderabad is another example. In the last 12 years, it has lost 3,245 hectares of its wetlands. The decline in both the quality and quantity of these waterbodies is to the extent that their potential to render various economic and environmental services has reduced drastically. Although there are sufficient polices and acts for protection and restoration of waterbodies, they remain insufficient and ineffective.
35. Realizing the seriousness of the problem confronting waterbodies, the Centre had launched the Repair, Renovation and Restoration of Water Bodies scheme in 2005 with the objectives of comprehensive improvement and restoration of traditional water bodies. These included increasing tank storage capacity, ground water recharge, increased availability of drinking water, improvement of catchment areas of tank commands and others. However, in this regard, not much has been seen on the ground.
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36. It is of utmost importance for meeting the rising demand for water augmentation, improving the health of waterbodies as they provide various ecosystem services that are required to manage microclimate, biodiversity and nutrient cycling. Many cities are working towards conservation of waterbodies like the steps initiated in the capital city of Delhi for instance. In turning Delhi into a city of lakes, rejuvenation of 201 waterbodies has been finalised. Of these, the Delhi Jal Board (DJB) plans to revive 155 bodies while the Flood and Irrigation Department will revive 46. DJB claims that the aim is to achieve biological oxygen demand or BOD to 10ppm and total suspended solids to 10mg/l. Also the establishment of the Wetlands Authority by the Delhi government is a welcome step towards notifying and conserving natural waterbodies. In order to achieve the goal of revival of waterbodies, it is important to understand that one solution may not fit all the waterbodies. Depending on the purpose, ecological services, livelihood and socio-cultural practices, the approach will vary from one waterbody to another. However the issues with regard to lack of data and action plans, encroachments, interrupted water flow from the catchment, siltation, violations of laws, solid waste deposit and polluted water, involvement of too many agencies, etc. have to be taken into consideration.
37. Action needs to be taken towards:
i. Attaining sustainability. Thus, emphasis on long-term goals, operation and maintenance should be included along with the allocation of budget.
ii. Success of the lakes should be tested on all three fronts namely economic, environmental and social. Many studies point that a deliberate effort has to be made on the social front for which better publicity of the environmental benefits of the project and 47 enhancing environmental awareness, especially among the local community is required.
iii. Encouraging local people to collaborate with other stakeholders to successfully utilise resources and ensure the protection and conservation of waterbodies.
iv. Traditionally, water was seen as a responsibility of citizens and the community collectively took the responsibility of not only building but also of maintaining the water bodies. This needs to be brought back into the system.
v. Thus, an integrated approach taking into account the long-term sustainability, starting from the planning stage where looking at every waterbody along with its catchment, is required.
38. Article 21 of the Constitution of India which provides that no person shall be deprived of his right to life or personal liberty, except according to the procedure established by law, is interpreted by the Indian courts to include in this right to life, the right to clean and decent environment. Right to decent environment, as envisaged under Article 21 of the Constitution of India also gives, by necessary implication, the right against environmental degradation. It is in the form of right to protect the environment, as by protecting environment alone can we provide a decent and clean environment to the citizenry. Right to clean environment is a guaranteed fundamental right. Various courts, particularly the superior courts in India are vested with wide powers, especially in terms of Articles 32 and 226 of the Constitution of India to deal with issues relating to the fundamental rights of the persons. The courts, in fact, can even impose exemplary damages against the polluter. Proper and healthy environment enables people to enjoy a quality life which is the essence of the right guaranteed under Article 21. The State and the citizens are under a 48 fundamental obligation to protect and improve the environment including forests, lakes, rivers, wild life and to have compassion for living creatures. Right to have living atmosphere congenial to human existence is a right to life. The State has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. The power to issue directions and other powers should be exercised by the State to effectuate and further the goals of approved scheme, zonal plans, etc. The hazards to health and environment of not only the persons residing in illegal colonisations but of the entire town as well as the provisions and schemes of the relevant Acts have to be taken into consideration. The most vital necessities, namely air, water and soil having regard to the right to life under Article 21 cannot be permitted to be misused or polluted so as to reduce the quality of life of others. Risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. Life, public health and ecology have priority over unemployment and loss of revenue. It is often said that development and protection of environment are not enemies but are two sides of the same coin. If without degrading the environment or by minimising the adverse effects thereupon by applying stringent safeguards, it is possible to carry on developmental activities applying the principle of sustainable development, in that eventuality, development has to go on because one cannot lose sight of the need for development of industry, irrigation resources, power projects, etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. Courts have exercised the power of imposing exemplary damages against the pollutants in order to protect the environment and to restore the damage done to the environment as well. In fact, even the disturbance in the environment by undesirable sound of various kinds, amounts to 49 noise pollution. It is a shadowy public enemy whose growing public menace has increased in the modern age of industrialisation and technological advancement. Noise has become one of the major pollutants and has serious effects on human health. Consistent judicial opinion in India has recognized the right to live in freedom from noise pollution as a fundamental right also, protected under Article 21 of the Constitution. If anybody increases the volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed under Article 21. Courts have even held that Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed under Article 21 of the Constitution. Thus, the right of an individual to healthy and clean environment including air, water, soil and noise-free environment is of paramount consideration and it is impermissible to cause environmental pollution and particularly in violation of the prescribed standards. Since the different facets of environment are relatable to life and human rights and concern a person's liberty, it is necessary that resources are utilised in a planned manner. Wherever industrialisation has an impact on utilisation of essential resources like air, water and soil and results in irreversible damage to environment, then it may be impermissible to utilise these resources in that fashion. In the recent times, there has been accelerated degradation of the environment, primarily on account of lack of effective enforcement of laws and non-compliance with the statutory norms. Concentrated industrialisation in some pockets has been the other reason for enhanced damage to the environment. It emerges from the desire of the people to operate from the areas where the industry presently exists.
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39. The right to development itself cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. It encompasses much more than economic well- being and includes within its definition the guarantee of fundamental human rights. It includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of people's wellbeing and realisation of their full potential. It is an integral part of human rights. Of course, development is the essence of any pragmatic and progressive society. But essentially, development besides being inter-generational, must be balanced to its ecology and environment. Sustainable development means that the richness of the earth's bio-diversity would be conserved for future generations by greatly slowing or if possible halting extinctions, habitat and ecosystem destruction, and also by not risking significant alterations of the global environment that might-by an increase in sea level or changing rainfall and vegetation patterns or increasing ultraviolet radiation-alter the opportunities available for future generations. Sustainable development has been defined in many ways but the most frequently quoted definition is from the Brundtland Report which states as follows:
"Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:
• The concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and • The idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs."
40. The earlier school of thought was that development and ecology are opposed to each other but with the passage of time and development of law, this concept has undergone tremendous change and is no longer acceptable. Now operates the principle of sustainable development. It 51 takes within its ambit the application of 'principle of proportionality' and the 'precautionary principle'. In other words, one must, while promoting development, not only ensure that no substantial damage is caused to the environment but also take such preventive measures which would ensure that no irretrievable damage to the environment, even in future, is caused. All these principles have to be examined and applied on the touch stone of "reasonable person's test", as afore-stated. Where the principle of proportionality introduces prudent mind's reasonableness in relation to development vis-a-vis environment, there the precautionary principle can be explained to say that it contemplates that an activity which poses danger and threat to the environment is to be prevented since prevention is better than cure.
41. While applying the concept of sustainable development, one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which courts or tribunals have to balance the priorities of development on the one hand and environmental protection on the other. So sustainable development should also mean the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable person's test'. [Refer: Research Foundation for Science and Technology and Natural Resource Policy v. Union of India MANU/SC/7894/2007 : (2007) 9 SCR 906; Narmada Bachao Andolan v. Union of India supra; Chairman Barton: The Status of the Precautionary Principle in Australia (Vol. 22) (1998) (Harv. Envtt. Law Review, p. 509 at p. 549-A) as in A.P. Pollution Control Board v. Prof M.V. Nayudu supra; and M.C. Mehta v. Union of India, supra.] At this stage, we may usefully refer to a very recent judgment of the Supreme Court in the case of G. Sundarrjan v. Union of 52 India & Ors. MANU/SC/0466/2013: (2013) 6 SCC 620 where the Court, while referring to the principles of balance inbuilt in the concept of sustainable development, elaborated the principles as follows:
"228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society. But, a pregnant one, the present case really does not fall within the four corners of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is done and there is constant vigil, life of "some" can be in danger. That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution.
42. Sustainable Development primarily finds its origin from the Rio Declaration, 1992 on Environment and Development. Certain principles were stated for achieving sustainable development. The element of integration of environmental and developmental aspects was spelt out in the following principles of that Declaration:
Principle 3:
The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.53
Principle 4:
In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
43. In fact, in Karnataka Industrial Areas Development Board v. C. Kenchappa & Ors. MANU/SC/8159/2006 : (2006) 6 SCC 383-84, the Apex Court held as follows:
63. The World Conservation Union' and 'the Worldwide Fund for Nature' prepared jointly by UNEP described that 'sustainable development, therefore, depends upon accepting a duty to seek harmony with other people and with nature' according to Caring for the Earth, A Strategy for Sustainable Living. The guiding rules are:
(i) People must share with each other and care for the earth;
(ii) Humanity must take no more from nature than man can replenish; and
(iii) People must adopt lifestyles and development paths that respect and work within nature's limits.
44. The development should be such as can be sustained by ecology. Sustainable development would be the development which can be maintained indefinitely without having adverse impact on the environment and ecology. Thus, there should not be development at the cost of causing irretrievable or irreversible damage to the ecology or the environment. They must find a common path and objectivity in achieving the goal of sustainable development.
45. Precautionary principle is one of the most important concepts of sustainable development. This principle essentially has the element of prevention as well as prohibition. In order to protect the environment, it may become necessary to take some preventive measures as well as to prohibit certain activities. These decisions should be based on best possible scientific information and analysis of risks. Precautionary measures may still have to be taken where there is uncertainty but potential risk exists. Ecological impact should be given paramount 54 consideration, particularly when the end result would be irreversible. The decision making authority should assess the records and conclude whether it was a case of directing precautionary and preventive measures to be taken or that the information on which it has to reach a determination is inadequate. Informed decision is the essence of a preventive or a prohibitory decision. The principle of direction thereunder involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity which is based on scientific certainty. Environmental protection should not only aim at protecting health, property and economic interest but also the environment for its own sake. It is said that inadequacies of science is the basis that has led to change from an 'assimilating impact principle' to 'precautionary principle'. Availability of scientific data is one of the most essential features of environmental adjudication. The precautionary principle was stated in Article 7 of the Bergen Ministerial Declaration on Sustainable Development in the ECE Region, May, 1990, as incorporated in an article of Professor Ben Boer, which reads as follows:
"Environmental measures must anticipate, prevent and attack the causes of environment degradation. Where there are threats of serious or irreversible damage, lack of scientific certainty should not be used as reason for postponing measures to prevent environmental degradation."
46. The Supreme Court of India, in the case of Vellore Citizens' Welfare Forum v. Union of India (MANU/SC/0686/1996 : AIR 1996 SC 2715) recognised the precautionary principle and explained it as follows:
"11. (i) Environmental measures-by the State Government and the statutory authorities-must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The 'onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign."55
47. On the analysis of the above, one could state the essentials of invocation of precautionary principle as under:
(a) There should be an imminent environmental or ecological threat in regard to carrying out of an activity or development;
(b) Such threat should be supported by reasonable scientific data;
and
(c) Taking precautionary, preventive or prohibitory steps would serve the larger public and environmental interest.
48. With reference to these ingredients, the decision making authority, upon taking an objective approach, could take recourse to and pass directives under the precautionary and preventive principles. These are the tools available to the authorities concerned to adopt a balanced and pragmatic approach to ensure environmental protection while permitting sustainable development.
49. It will not only be expected of but shall be an obligation on the decision making authority to identify sources of pollution as well as their impact on public health or environment. It must be understood that every direction under the precautionary principle is not a punitive action in its content and effect. These are two different legal connotations which operate in their own respective fields. Precaution in contradistinction to punitive action is an anticipated action and is futuristic.
50. 'Precaution' is a measure taken in advance to prevent something dangerous, unpleasant or inconvenient from happening. To put it simply, it is a prudent foresight, while a 'punitive' action is one involving or inflicting punishment. It has an element of something that has already occurred. Environmental pollution was controlled rigidly in the ancient times. It was an affair limited to individuals but the society as a whole accepted as its duty to protect environment. It was to sustain and ensure 56 progress of all. Thus, it was acceded as a positive duty with regard to protecting the environment on the one hand and the fear of punishment on the other. Apart from the motivation, efforts were not only to punish the culprits who damage the trees or other environment but also to balance the ecosystem [T.N. Godavarman Thirumulpad v. Union of India (supra)].
51. Punitive action, which would include punishment in one form or the other, would normally be for the damage or the wrong done to environment and for its restoration thereto. Therefore, there must be a nexus between befalling of an event, or its likelihood thereof, and its pollution source and the injury apprehended or caused. All these ingredients must be supported by reasonable scientific data, especially in the case of precautionary principle.
52. This Tribunal has been established both with original and appellate jurisdiction relating to environmental laws. The NGT Act, 2010 was enacted for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal rights relating to environment. In relation to NGT, the legislature, in its wisdom, has specifically excluded the application of the procedure under the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872 (for short 'the Evidence Act') in terms of Section 19(1) and 19(3) of the NGT Act. On the contrary, Section 19(2) of the NGT Act empowers the Tribunal to have the power to regulate its own procedure. In terms of its Section 19(5), NGT is a judicial Tribunal. Section 20 of the NGT Act further recognizes the application of the principles of sustainable development, precautionary principle and polluter pays principle by the Tribunal while adjudicating upon disputes on environment.
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53. Once the applicability of specific rules of evidence, as prescribed under the Evidence Act, is excluded, the Tribunal has to state its own procedure, including recording of evidence, but the same essentially has to be in consonance with the principles of natural justice. It will have to be examined on a case to case basis as to when the onus will shift from the applicant to non-applicant. In environmental cases, normally the damage to environment or public health is evident by itself, res ipsa loquitur. The cases of environmental degradation, damage and health hazards are obvious by themselves as a result of some industrial activity or development. In that event and keeping in view the very object of the NGT Act, it will be unacceptable to require the applicant to discharge his primary onus by strict number of events and their details.
54. Once an applicant approaches the Tribunal with a complaint of environmental injury or environmental degradation or health hazards resulting from negligence, or incidental occurrence of emission or discharge of gases or effluents in violation of the prescribed standards, then such an applicant discharges the primary onus by instituting a petition in the prescribed form, supported by an affidavit, which then shifts upon the industrial unit, developer or the person carrying out the activity complained of, to establish by cogent and reliable evidence that it has not caused pollution or health hazards by carrying out its activities; all the expected norms of discharge have been strictly adhered to by that unit; and any harm, if caused, was neither the result of any negligence nor violation of prescribed standards. Upon discharge of such onus, which is certainly much heavier, by the developer/industrial unit, it will then again be for the applicant to establish to the contrary. In other words, heavy onus lies upon the industrial unit or the developer to show by cogent and reliable evidence that it is non-polluting and non- hazardous or is not likely to have caused the accident complained of. 58
55. It is argued on behalf of the learned counsel appearing for the MoEF&CC that sand mining contributes to construction of buildings infrastructure development, it helps in extracting minerals and provides both economic and social benefits. Even though, the Government has implemented step to stop illegal sand mining and produce an alternative by supplying manufacturing of sand yet there is still illegal mining happening. Sand is an important economic resource and also source of Silica for making sodium silicate, a chemical compound used for manufacture for both common and optical glasses. The economic aspect of sand are not confined to it value as raw-material. Besides its economic importance, sand also constitutes an important biotic component in aquatic eco-system like rivers. Depletion of sand in the stream bed and along coastal areas causes the deepening of rivers and in estuaries and the enlargement of the river mouths causing major habitat disruptions that favoured some species or other and caused overall declines in biological diversity and productivity.
56. Learned counsel appearing for the MoEF&CC has also raised the issue that the control of illegal mining is purely within the domain of the State Government. It is necessary to quote the relevant paragraphs with regard to rule making power of the State which is enshrined in the constitution as follows:
"28. Entry-54 of List I-Union List of the Seventh Schedule of the Constitution of India deals with regulation of mines and mineral development under the control of the Union. Entry-54 of List-I reads as under:
"54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest."
29. Entry-23 of List II-State List of the Seventh Schedule of the Constitution provides as under:
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"23. Regulation of mines and mineral development subject to the provisions of List-I with respect to regulation and development under the control of the Union."
30. The Act, 1957 i.e. the Mines and Minerals (Development and Regulation) Act, 1957 is enacted by the Parliament to provide for the development and regulation of mines and minerals. Section 3(e) of the Act, 1957 defines 'minor minerals'. It reads thus:
"(e) "minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral;"
31. Sub-section (1-A) of Section 4 of the Act, 1957 prohibits transportation and storage of minerals in the following manner:
"4(1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder."
32. Section 15 of the Act, 1957 gives power to the State Government to make rules in respect of minor minerals. Section 15 is extracted below:
"15. Power of State Governments to make rules in respect of minor minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith.
(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions may be made and the fees to be paid therefor;
(b) the time within which, and the form in which, acknowledgement of the receipt of any such applications may be sent;
(c) the matters which may be considered where applications in respect of the same land are received within the same day;
(d) the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concessions may be granted or renewed;
(e) the procedure for obtaining quarry leases, mining leases or other mineral concessions;60
(f) the facilities to be afforded by holders of quarry leases, mining leases or other mineral concessions to persons deputed by the Government for the purpose of undertaking research or training in matters relating to mining operations;
(g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable;
(h) the manner in which rights of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining operations;
(i) the manner in which rehabilitation of flora and other vegetation, such as trees, shrubs and the like destroyed by reason of any quarrying or mining operations shall be made in the same area or in any other area selected by the State Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease;
(j) the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred;
(k) the construction, maintenance and use of roads, power transmission lines, tramways, railways, aerial ropeways, pipelines and the making of passage for water for mining purposes on any land comprised in a quarry or mining lease or other mineral concession;
(l) the form of registers to be maintained under this Act;
(m) the reports and statements to be submitted by holders of quarry or mining leases or other mineral concessions and the authority to which such reports and statements shall be submitted;
(n) the period within which and the manner in which and the authority to which applications for revision of any order passed by any authority under these rules may be made, the fees to be paid therefore, and the powers of the revisional authority; and
(o) any other matter which is to be, or may be prescribed.
2) Until rules are made under sub-section (1), any rules made by a State Government regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force.
(3) The holder of a mining lease or any other mineral concession granted under any rule made under sub-section (1) shall pay royalty or dead rent, whichever is more in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate 61 prescribed for the time being in the rules framed by the State Government in respect of minor minerals:
Provided that the State Government shall not enhance the rate of royalty or dead rent in respect of any minor mineral for more than once during any period of three years.
4) Without prejudice to sub-sections (1), (2) and sub-section (3), the State Government may, by notification, make rules for regulating the provisions of this Act for the following, namely--
(a) the manner in which the District Mineral Foundation shall work for the interest and benefit of persons and areas affected by mining under sub-section (2) of Section 9B;
(b) the composition and functions of the District Mineral Foundation under sub-section (3) of Section 9B; and
(c) the amount of payment to be made to the District Mineral Foundation by concession-holders of minor minerals under Section 15A.
"33. Section 23-C of the Act, 1957 gives power to the State Government to make rules for preventing illegal mining, transportation and storage of minerals. Section 23-C reads thus:
"23-C. Power of State Government to make rules for preventing illegal mining, transportation and storage of minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) establishment of check-posts for checking of minerals under transit;
(b) establishment of weigh-bridges to measure the quantity of mineral being transported;
(c) regulation of mineral being transported from the area granted under a prospecting licence or a mining lease or a quarrying licence or a permit, in whatever name the permission to excavate minerals, has been given;
(d) inspection, checking and search of minerals at the place of excavation or storage or during transit;
(e) maintenance of registers and forms for the purposes of these rules;
(f) the period within which and the authority to which applications for revision of any order passed by any authority be preferred under any rule made under this section and the 62 fees to be paid therefor and powers of such authority for disposing of such applications; and
(g) any other matter which is required to be, or may be, prescribed for the purpose of prevention of illegal mining, transportation and storage of minerals.
(3) Notwithstanding anything contained in Section 30, the Central Government shall have no power to revise any order passed by a State Government or any of its authorised officers or any authority under the rules made under sub-sections (1) and (2)."
57. Section 23 C of MMDR, Act 1957 empowered the State Government to make rules for preventing illegal mining, transportation and storage of minerals. But in the recent past, it has been observed that there was large number of illegal mining cases in the Country and in some cases, many of the officers lost their lives while executing their duties for curbing illegal mining incidence. The illegal and uncontrolled illegal mining leads to loss of revenue to the State and degradation of the environment.
58. India is developing at a faster pace and much technological advancement has already been taken place in the surveillance and remote monitoring in the field of mining. Thus, it is prudent to utilize the technological advancement for the effective monitoring of the mining activities particularly sand mining in the country.
59. It is the responsibility of every citizen of India to protect the environment and effective monitoring can only be possible when all the stakeholders viz. Central Government, State Government, Leaseholders/Mine Owners, Distributors, Dealers, Transporters and Consumers (bulk & retail) will contribute towards sustainable mining, and comply with all the statutory provisions. It is felt necessary to identify the minimum requirements across all geographical region to have a uniform protocol for monitoring and enforcement of regulatory provision prescribed for sustainable sand and gravel mining. 63
60. Accordingly, we dispose of all these Original Applications with following directions:
i. As per discussion made above the four students succumbed to injuries due to falling in the pit left uncared thus the family members of the deceased are entitled for the payment of compensation of Rs.1600000 (Sixteen Lakh Rupees) each with interest at the rate of 6 % per annum from the date of the order. The State of Goa (Department of Mines) is directed to pay the amount of compensation to family members of the deceased at the rate mentioned above. The Department of Mines, State of Goa may recover the amount from the polluters on Principle of Polluters Pay. Any amount paid to the family member of deceased may be deducted from the above amount. The State may recover the total amount from the polluter according to law.
ii. If any material or machinery is found at the place at the site where there is illegal mining, State Pollution Control Board is at liberty to seize and confiscate and proceed in accordance with law.
iii. The mines were operational two years ago and now at the time of inspection were reported to be closed. The State PCB shall proceed to calculate the environmental compensation and proceed to realise the environmental compensation in accordance with law.
iv. The Licensee must use minimum number of poclains and it should not be more than two in the project site.64
v. The District Administration should assess the site for Environmental impact at the end of first year to permit the continuation of the operation.
vi. The Annual replenishment report certified by the authorised agency must be submitted to the prescribed authority. In case, the replenishment is low, the mining activity/production levels shall accordingly be decreased/stopped.
vii. There shall be no quarrying of sand in any river bed or adjoining area or any other area which is located within 500 m (are within the paramters as fixed by CPCB) radial distances from the location of any bridge, water supply system, infiltration well or pumping installation.
viii. The ultimate working depth shall be 1 m from the present natural river bed level and the thickness of the sand available shall be more than 3 m in the proposed quarry site.
ix. The sand quarrying shall not be carried out below the ground water table under any circumstances. In case, the ground water table occurs within the permitted depth of 1 meter, quarrying operation shall be stopped immediately.
x. The sand mining should not disturb in any way the turbidity, velocity and flow pattern of the river water.
xi. The mining activity shall be monitored by the Taluk level Force once in a month by conducting physical verification.
xii. After closure of the mining, the licensee shall immediately remove all the sheds put up in the quarry and all the equipments used for operation of sand quarry. The 65 roads/pathways shall be levelled to let the river resume its normal course without any artificial obstruction to the extent possible.
xiii. The mined out pits to be backfilled where warranted and area should be suitably landscaped to prevent environmental degradation.
xiv. The filling of pits and replenishment matter be immediately taken by the Collector as suggested by his Report. The Collector is at liberty to recover the damages in according to law and also the cost of the restitution. The Collector is further directed to initiate legal action against the polluters in accordance with law.
61. Accordingly, Original Application No. 77/2018, Original Application No. 78/2018, Original Application No. 79/2018, Original Application No. 80/2018, Original Application No. 81/2018, Original Application No. 82/2018, Original Application No. 83/2018, Original Application No. 84/2018, Original Application No. 85/2018 and Original Application No. 86/2018 are disposed of with no order as to costs.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM October 13th, 2020 Original Application No. 77/2018 (WZ) and other connected matters.
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