National Green Tribunal
Amandeep vs State Of Himachal Pradesh Through Its ... on 13 August, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 04 (Court No.1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 57/2021
Amandeep Applicant
Versus
State of Himachal Pradesh Respondent
Date of hearing: 13.08.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
ORDER
1. This order is being passed in continuation of order dated 30.07.2021 on the subject of illegal mining at Som Bhadra River (Swan River) in District Una, Himachal Pradesh.
2. Having regard to the allegation of large scale unscientific mining in violation of environmental norms, the Tribunal sought a factual report from the concerned authorities of the State and also appointed an independent five-Member Committee headed by Justice Jasbir Singh, former Judge of Punjab and Haryana High Court.
3. The Tribunal considered the matter further in the light of report of the District Magistrate, Una dated 07.04.2021 and report of the independent Committee dated 03.05.2021. After noticing large scale violations, Tribunal directed Chief Secretary and D.G.P., Himachal Pradesh to hold their inhouse brainstorming on the subject with all 1 concerned departments/authorities and set their house in order to uphold the law.
4. It has been now brought to our notice that the independent Committee had also filed a further report dated 07.07.2021 which could not be put up and considered at the time of passing the order dated 30.07.2021.
5. In view of above, the report dated 07.07.2021 is taken on record.
A copy of the report forwarded to the Chief Secretary, D.G.P., Himachal Pradesh, State PCB, SEIAA, Himachal Pradesh and District Magistrate, Una for further action in the light thereof. If there are any objections, the aggrieved parties are free to raise the same before the Tribunal to be considered on the next date. The recommendations in the report are reproduced below:-
"5.5 Recommendations of the Monitoring Committee The visual observations of the Monitoring Committee at three places as mentioned above indicated that there was organized loot of natural resources causing loss to public exchequer more than Rs. 100 crores as well as lot of damage to the environment. It was found that illegal mining has been done in many hectares of land of river Som Bhadra, which is 63 km in length in Una area for which mining lease was not approved by the Govt. It indicates that there was absolutely no checking, when the mining officer and officer of Geology deptt., deployed for monitoring of sand mining, the said officer has put up an excuse of shortage of staff. He was also directed to measure the illegal and unlicensed mined area in the entire stretch of river and submit the report.
Surprisingly, it has come to the notice of the Monitoring Committee that everything has been left to the sweet will of the mining lease holder. Through the online system, the licensee declares the amount of mined material and the same is believed by mining officer without any further verification.
To stop this damage to natural resources, public money and environment, the following recommendations are made for immediate action.
a) Recommendations for immediate action.2
1. An enforcement wing with adequate staff strength of atleast 30 persons under the control of Deputy Superintendent of Police may be deployed at Una to monitor Som Bhadra mining sites. The team should also include officers from department of geology and District Administration. The enforcement wing may patrol the area in three shifts along the river, where the sand mining/ mining of other mineral has been leased out. The said enforcement wing may be funded from District Mineral Development Funds, in which enough amount is available. The enforcement wing shall also provide Control Room at each cluster of mining sites for proper checking of the vehicles transporting the mined material. In the control room, one dedicated landline number and an android phone with Whatsapp facility be provided and this number be circulated in the area on the both sides of river through village Panchayats. Each telephone call should be entered in a register and if there is complaint regarding illegal mining, District Level Special Task Force should take immediate action. The control room be provided with four vehicles (four wheel driven jeeps) to control the area in day and night shifts.
2. The stone crusher owner may be directed to maintain complete record of manpower employed at mining lease area for digging minor mineral and also at the site of stone crusher.
3. The Mining Officer should be the competent authority to specify the transport route which shall be used by the vehicles used by the mining lease holders so that it may route through atleast one of the mining check posts established by the Department. There should be complete restriction on loading & transport of mined material during night hours (7:00 PM to 6:00 AM), since this is the time window which is used for maximum evasion. These provisions already exist in respect of forest produce under the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 2013 and the similar provisions can be adopted in respect of mined minerals with salutary effect. Currently, the lessee generates Form -X at his own end which does not have the option of specifying the transit route. Lessee should give a list of vehicles to the Mining Officer which should be entered into the portal and which will get auto-populated in the software in the lessee's login. The list of permitted vehicles should be shared with the Police Department and with the mining check posts. Any vehicle which is not in the list given by the lessees, should simply be impounded. All these vehicles should be made GPS enabled by the lessee and their movement should be accessible by the Mining Department through a central access login.
4. Advance Technological Drones may be provided to the Mining department to take prompt action against illegal mining activity.
5. While approving mining plan of the mining area, Geo- fencing of the area to be leased out should be made so as to remove any ambiguity relating to mining lease area and boundaries.
b) Other recommendations of the Monitoring Committee.
31. A Committee under the Chairmanship of Additional Deputy Commissioner, Una and officers of other Departments namely Department of Mining, Department of Police, Department of Revenue, Geology and HPSPCB shall prepare a detailed plan of the mining area in Som Bhadra river mentioning the original bed level of river, level upto which extraction of sand has been done, total quantity of sand or any other minor mineral extracted per year, the quantity of mined material in the record of mining department and the quantity of permitted mined material, quantity of mined material which was over extracted and transported illegally to sell in the market. A proper document in this regard may be prepared and assessment of damage caused to the environment and loss occurred to the State due to illegal activity may be done within 2 months. The said detailed report may be submitted to the Deputy Commissioner, Una.
Cost of damage caused to environment and financial loss made to the Government may be calculated by the said Committee based on the Approaches I and II mentioned as in para No. 10 and 25 of order dated 26.2.2021 in OA No. 360 of 2015 in the matter of National Green Tribunal Bar Association Vs Verinder singh (State of Gujrat). The persons/contractors involved in illegal activities for over extraction of mined material using non scientific and illegal method for extraction of Sand/ Bajri may be identified and cost of damage caused to the environment and loss of royalty to the State may be imposed within 3 months. The said financial loss caused to the Government and cost of damage caused to the ecological system may be recovered from the defaulters by the department of mining.
2. Since lot of indiscriminate and over extraction of sand involving unscientific method and deep dug places have been found in Som Bhadra river in almost all the mining sites either on Government land or by the private land owner, as such, it is not advisable to allow mining leases in the area for atleast 01 year till the replenishment of all the dugged mines is properly occurred and bed level of the river comes to its original level.
3. To identify the location of the mining sites, concrete pillars may be erected as a sign of demarcation around the mining site within 02 months.
4. All the vehicles utilized for transportation of mined material should be provided with GPS for its real time tracking within 02 months.
5. All the mining lease holders shall jointly provide one weigh bridge at each cluster of mining sites for weighing of mined material within 03 months and proper record in this regard may be maintained and it may be submitted to mining department on daily basis.
6. The cluster of mining sites should be provided with only one entry, one exit gate and one check post so that any illegal mining and transportation may be restricted.
47. All the mining lease holders shall provide CCTV cameras at all the vulnerable points with its connectivity to Deputy Commissioner office/Control Room and Mining Department to control illegal and unscientific mining and transportation within 03 months.
8. The Monitoring mechanism for seize and release of vehicles used for illegal mining, scale of compensation for violation on polluter pays principle as mentioned in the para no. 8 to 11 of order dated 26.02.2021 in OA no. 360/2015 in the matter of National Green Tribunal Bar Association Vs Virender Singh may be implemented by the concerned departments of Himachal Pradesh. The monitoring mechanism and suggestive additional requirements as mentioned in sub para no. 9.4 and 9.5, respectively, of para 18 of said order may also be implemented.
9. The State of Himachal Pradesh shall strictly follow Sustainable Sand Mining Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand mining, 2020 for preparation of District Survey Report (DSR), environmental management plan, replenishment studies, mine closure plan and grant of environment clearance.
10. The State of Himachal Pradesh shall also implement the directions issued in para no.28 of order dated 26.02.2021 in OA No. 360 of 2015 by way of getting conduct visit to the mining lease sites by a five member committee, headed and coordinated by the SEIAA and comprising CPCB (wherever it has regional office), State PCB and two expert members of SEAC dealing with the subject. Such inspection must be conducted at least thrice for each lease i.e. after expiry of 25% the lease period, then after 50% of the period and finally six months before expiry of the lease period for midway correction and assessment of damage, if any.
11. While selecting mining sites to be given on mining lease, the stipulations for grant of mining leases, stipulations for river bed mining as mentioned in the Himachal Pradesh Minor Mineral (Concession) and Minerals (Prevention of illegal mining, transportatio n and storage) Rules, 2016, may be implemented.
12. In case of mining in private land, if any violation of the terms and conditions of the lease agreement is detected/ observed by way of extraction of sand/minor mineral more than the permissible quantity and mining is done in non scientific manner by using mechanical machinery etc, the said private land owner may not be allowed to lease out his land for mining in the next two year.
13. JCBs/earth moving equipments deputed at dump sites may be provided with advance technological GPS with suitable alert mechanism to prevent unscientific/mechanical mining within 3 months.
14. Rule 73 of Himachal Pradesh Miner Minerals (concession) and minerals (prevention of illegal mining, transportation and storage) Rule, 2015 may be amended to the extent that powers for challaning the vehicles used for illegal activities and recovery of the fine amounting to Rs 50,000/- may be with the mining officer of department of Mining.
515. The Government of Himachal Pradesh may issue appropriate notification to implement the Judgment of Hon'ble NGT dated 26.02.2021 in the matter of National Green Tribunal Bar Association vs. Virender Singh (OA No. 360/2015) regarding seizure and penalties on vehicles found doing illegal mining, specifically paragraphs 8 and 9 of the judgment and for imposing penalties on violators for releasing of vehicles engaged in illegal mining as per formula approved in para 12 of the said order taking into account the net present value (NPV) of the environmental damage and not merely loss of royalty may also be approved for use during compounding of offences instead of paltry sum of Rs. 50,000/-
16. As per the provisions of section 22 of the Mines and Minerals (Development & Regulation) Act, 1957 [(MMDR Act, 1957)], there is provision that no court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Govt. or State Govt. As such, the police cannot register an FIR against the violator on the complaint of any citizen/individual. There is need to amend the said section of MMDR, Act, 1957 to the extent that police department should have powers to register FIR against the violators.
17. The Mining Department may create an online app which can be used by all officers authorized for compounding so that an alert can be generated for vehicle numbers in case of repeat violations are occurred. In all such cases, FIR should be registered and the case should be sent to Court for trial & conviction.
18. As per Rule 73 of the Himachal Pradesh Miner Minerals Rules, 2015, in case of illegal mining is done mechanically in the river/stream beds, the amount of compounding fee shall not be less than Rs. 50,000/-. This is a very small penalty and the machine used in illegal mining gets used again and again and violators recoup the financial penalty within a day or two. Currently, any machine or transport vehicle found engaged in illegal mining can be seized by the officer on the spot (after two violations) but it can only be confiscated by competent court of law as per Section 21 (4A) of the MMRDA, 1957. This provision is ineffective and does not create any deterrence for the violators. To create real deterrence, machines or transport vehicles found engaged in illegal mining should be allowed to be confiscated by the officer seizing them in the first instance itself and vested in the State Government and allocated to the executing agencies of the Government for use. The onus should be on the owner of the machinery/ vehicle to avail legal remedies to recover the possession thereof. This would absolutely deter mechanical mining in the river bed.
19. The Department of Mining shall increase number of check posts. Mining lease holders shall declare and get register all the vehicles used for transportation of mined material with Mining Department. The mined material shall be brought to the check post for its weighing and keep the weighing slips with them. Form X should be issued only in case of declared registered vehicles. There should be monthly inspection of the lessees by the Mining Officer to match the Form-X and weighing slips and any 6 discrepancy should be considered as illegal mining and fine recovered thereof.
20. Rule 34 (v) of Himachal Pradesh Miner Minerals (concession) and minerals (prevention of illegal mining, transportation and storage) Rule, 2015 provides that mining site shall only be handed over to the mining lease holder, after it is duly demarcated by permanent boundary pillars and certified by concerned Mining Officer. In river bed mining, lessee takes the plea that the boundary pillars get washed away during monsoon season. Consequently, lessee can mine wherever they want until someone challenges their rights and applies for a demarcation. The Mining Department urgently needs to float RFP to explore the possibility of geo- fencing of mining areas and effectiveness of other technological measures like remote volumetric analysis in case of river bed mining.
21. While approving the mining plan, the concerned department shall issue its statement that sufficient sand/miner mineral is available at the site for N number of years and accordingly mining leases may be accorded for specific time for which the material is available for mining.
22. District level Task Force shall check the compliance of Mining Plan submitted by each mining lease holder operating their mining activities in Som Bhadra river within 02 months and report be submitted to Mining department as well as Deputy Commissioner, Una for further action.
23. The Department of Irrigation (Swan river flood management circle) shall continue to inspect the banks and infrastructure developed for channelization of river Som Bhadra and ensure that no portion of channelized river is damaged due to mining activities in the area. Their inspections may be conducted on quarterly bases.
24. The department of Transport and Police shall jointly check the overloaded trucks / vehicles with extended bodies carrying minor mineral/sand and heavy fine may be imposed on these vehicles/trucks. The trucks/vehicles and driving License of the driver may be seized and put into safe custody for 01 month and these trucks/vehicles shall be released following the procedure and methodology as mentioned in para 8 of order dated 26.2.2021 in OA No 360 of 2015 in the matter of National Green Tribunal Bar Association V/s Virender Singh (State of Gujarat).
25. District level Task Force shall seize the vehicles used for illegal mining in Som Bhadra river and these may be released as per methodology mentioned Para 8 in order dated 26.2.2021 in OA No 360 of 2015.
26. For transporting of minor mineral from mining area, only one or two roads may be fixed and notified by department of Mining and all the mined materials should be routed only through these roads. The check posts may be constructed on these roads. There shall be total restriction on the movement of trucks carrying/transporting minor minerals/sand on the other non-notified roads.
727. The department of Mining/Geology shall provide Geo fencing on all mining lease areas in river Som Bhadra within 03 months.
28. All the mining lease holders shall provide advance technological GPS on the declared/registered vehicles deployed for transportation of mined material having their connectivity with the office of Deputy Commissioner and Mining Department within 3 months so that their movement can be tracked and can be monitored by the Department of Mining and Police and prompt action may be taken against the illegal mining operator.
29. The department of Irrigation may continue to make survey along river Som Bhadra four times in a year to ensure that no sand and gravel is allowed to be extracted, where, soil erosion may occur and especially at the concave banks of the river.
30. The department of Mining shall identify ways of scientific and systematic mining is Som Bhadra river and shall conduct replenishment study to determine the time for continuing replenishment of river bed after mining in the area as per the methodology mentioned in Sustainable Sand Mining Management Guidelines, 2016.
31. The department of Mining shall ensure that while preparing District Survey Report of mining area along Som Bhadra river, the stretches of river having aggradations/deposition of material where mining can be allowed, may be identified. The area of erosion and proximity to infrastructure structures and installation, where mining should be prohibited should be identified. Further, the District Survey report of mining area may be prepared as per the methodology mentioned in Sustainable Sand Mining Management Guidelines, 2016.
32. For monitoring illegal sand/gravel mining in Som Bhadra river, there should be a provisions of checking Transport permits, printing of transport permit on security papers, invisible ink mark, fugitive ink background and unique barcode system. The department of Mining shall provide said documents to the monitoring teams or District Level Special Task Force at District level within 3 months. The Monitoring team deployed for checking of vehicles/trucks carrying mined material should be in a position to check the validity of Transport permit or receipt by scanning them using website, mobile phone application and SMS etc.
33. There should be a mechanism at district level to generate the system which may enable the authorities to develop periodic report on different parameters like daily lifting report, vehicle log or history, lifting against allocation and total lifting. The system can be used to generate auto mails or SMS. This will enable the Deputy Commissioner to get all the relevant details and shall enable the authority to block the scanning facility of any site found to be indulged in irregularity.
34. During the visit to the stone crushing unit namely Rudhra Stone Crushing and Screening Plant, V.P.O. Basal Lower, Una on 17.6.2021, it was observed that lot of raw material i.e boulder and bajri of big size was found stored at site. These stone crushers have not been allowed to 8 use mechanical machinery to extract raw material from Som Bhadra river and the raw material is to be extracted only with manual labor. The quantity of raw material lying at site indicated that such huge quantity cannot be extracted manually, therefore, the mining officer, present at site was asked by the Chairman of the Monitoring Committee to assess the following :
i) Total quantity of raw material lying at site.
ii) Manpower available with stone crusher.
iii) Quantity of raw material can be extracted per person/day.
iv) No. of JCB/poclain available with the stone crusher or taken on rent by the stone crusher.
v) Quantity of raw material processed per day to manufacture bajri and sand.
vi) Quantity of products i.e bajri and sand produced and sold by the stone crusher The above data may be supplied to Deputy Commissioner, Una. The data may be analyzed jointly by Department of Mining and Himachal Pradesh State Pollution Control Board and in case, it is proved that mechanical machinery has been used for extraction of raw material, legal action against the stone crusher may be taken as per the provisions of Himachal Pradesh Mine Minerals (concession) and Minerals, Rules, 2015.
Besides, there were following observations w.r.t. pollution control system, which are mentioned as under:
i. No water sprinkling system has been provided on all the five conveyor belts.
ii. No telescopic chutes have been provided at the end of conveyor belts.
iii. No covered sheds have been provided on the material transfer points.
iv. No metalled Road has been provided in the premises of the stone crusher.
v. No wind breaking wall has been provided around the stone crusher vi. No plantation/green cover has been provided around stone crusher.
vii. No covered sheds have been provided on the conveyor belts.
viii. The stone crusher has also screening plant for which water is used for washing for sand/bajri and lot of wastewater, containing silt, is discharged into a drain provided within the premises of stone crusher. No settling tank has been provided to settle the sediments and no arrangements have been made to recycle the wastewater for washing of raw material. Lot of stagnation of wastewater, containing silt, was observed at site.9
Also there are 23 stone crushing units operating in the catchment area of Som Bhadra River, out of which Monitoring Committee has visited 01 unit as mentioned above. The list of the 23 stone crushing units is annexed as per Annexure -F. The Monitoring Committee recommended as under:
i) The stone crushing unit namely M/s Rudhra Stone crushing and screening plant may be issued closure notice by HPSPCB after following due procedure as per the provisions of the Air Act, 1981 and Water Act, 1974.
ii) HPSPCB should visit all the remaining 22 stone crushing units operating in the catchment area of Som Bhadra River and check all the points of the code of practice to be implemented by these stone crushers to control air pollution and action against the violating stone crushing units may be taken within one month.
iii) All the stone crushers, located in the catchment area of river Som Bhadra, shall provide adequate plantation all around their periphery within 2 months.
35. During the visit of the Monitoring Committee to the mining sites of Basal lower area, the residents of the nearby area have made complaint against the setting up of 02 new stone crushers, which are not meeting with the prescribed siting guidelines. The Monitoring Committee recommends that Himachal Pradesh Pollution Control Board should take immediate steps to get stop the construction of stone crushing units, in case, these are not meeting with the prescribed parameters/guidelines from the residential area/ sensitive places/ other features.
36. A news item dated 20.6.2021 has been published in the Tribune stating that 200-250 trucks carrying mined material from Himachal Pradesh are entering into the State of Punjab creating loss of royalty and financial loss to the State Government and Punjab Mining Industry, respectively. The news item is annexed as per Annexure- G. The five member Committee recommends that the department of mining and police department of State of Punjab shall take adequate steps to check the entry of these trucks carrying mined material in the State of Punjab. Strong barricades may be erected on the different routes so as to stop the entry of these illegal trucks in the State and legal action may be taken as per the provision of the Minor Minerals (Development & Regulation) Act, 1957
37. Adequate plantation may be done along the river Som Bhadra in District Una for stabilizing its embankments.
1038. In order to protect soil erosion, soil conservation works may be completed in a time bound manner.
39. The Monitoring Committee recommends that Hon'ble National Green Tribunal may direct the State of Himachal Pradesh to implement all the recommendations made by the Monitoring Committee in a time bound manner and State Govt. may also be directed to submit the timelines on the action to be taken on the recommendations made by the independent five members committee before Hon'ble National Green Tribunal."
6. The Chief Secretary, D.G.P., Himachal Pradesh, State PCB, SEIAA, Himachal Pradesh and District Magistrate, Una may take further action in terms of the report and furnish action taken report/response accordingly before the next date. As per direction in para 5 above, a copy of the report be sent by email to the said authorities.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM August 13, 2021 Original Application No. 57/2021 A 11