National Green Tribunal
New Vidharbha Foundationthrough ... vs State Environment Impact Assessment ... on 4 August, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Original Application No. 78/2022(WZ)
Appeal No. 17/2022 (WZ)
(Coverted vide order dated 29.08.2022)
I.A. No. 51/2022(WZ)
IN THE MATTER OF :
New Vidarbha Foundation
Through President/ Authorized Representative
Aditya Damle
Rama Empire, Birla Ram Mandir Road,
Jatharpeth, Akola-444005(M.S)
.....Appellant
Versus
1. State Environment Impact Assessment Authority,
State of Maharashtra,
Through its Member Secretary
Manisha Patankar Mhaiskar
Room No. 217, second floor, Mantralaya Annex,
Madam Cama Road, Mumbai-32
[email protected]
2. District Collector, Akola
Hospital Main Road, Near Government Medical College
Bhandaraj BK, Akola
Maharashtra 444001
[email protected]
3. District Mining Officer, Akola
Collectorate Office,
Maharashtra, Akola,
[email protected]
....Respondents
Counsel for Applicants :
Mr. Akshar Bhatt, Advocate
Counsel for Respondent(s):
Mr. Aniruddha S. Kulkarni, Standing Advocate for R-1/SEIAA
Mr. Nitin Deshpande, Advocate for R-2/Dist. Collector & R-3/DMO, Akola
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 21.07.2023
Pronounced on : 04.08.2023
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Page 1 of 47
JUDGMENT
1. This Original Application has been filed with the prayers that illegal sand mining being conducted in District Akola, Maharashtra be prohibited; the District Survey Report(DSR) for the said District for the year 2021-2022 be declared illegal; Respondent No.2/District Collector, Akola and Respondent No.3/District Mining Officer, Akola be directed to prepare a fresh District Survey Report (DSR) in compliance of applicable law; the twenty-six Environment Clearances granted to Respondent No.3/District Mining Officer (DMO) Akola dated 13.01.2022 by Respondent No.1/SEIAA- Maharashtra be declared illegal; the respondents be directed to pay compensation for the damage done to the environment, due to illegal mining; respondents be directed to restitute the area; a Special Task Force Committee for monitoring of illegal and sand mining be directed to be appointed.
2. The brief facts of this case as submitted by the Applicant are that the Applicant Mr. Aditya Damle is the President of the New Vidarbha Foundation, which is registered under the Bombay Trust Act and Societies Registration Act, which has undertaken the environmental and forest conservation work in the State of Maharashtra. On 13.01.2022, 26 Environmental Clearances have been granted by the Respondent No.1/State Environment Impact Assessment Authority (SEIAA), Maharashtra in respect of sand ghats, the details of which are enumerated in table below:
Sr. Name and Location of Date of Application Quantity Approx.
No. project along with area for EC along tracking of Sand Sand
number. Mining Quantity
as per per
EC District
granted ( Survey
in Brass) Report (
in Brass)
1. Takwada Sand Ghat, Date of Application 4346 991
uma River, Area 12300 08.12.2021 Tracking
Sq. Mtr Survey No. 2 to No. SIA/
7, 97 to 99, 101 to 104, MH/MIN/241283/2
106 to 109, 112, 113, 021
126 located at Village
Page 2 of 47
Takwad, Tehsil-
murtizapur, District-
Akola, Maharashtra
2. Kolsara-1 Sand Ghat Date of Application 3109 No data
Purna river, Area- 08.12.2021 Tracking given.
11,000 No.
Sq. Mtr. At Survey No. SIA/MH/MIN/24115
77,78,79,80 village 4/2021
Kolsara-1 Tehsil-
Murtizapur, District
Akola
3. Wadad Khu. Sand ghat, Date of application : 5963 3381
Purna river, Area 18750 08.12.2021 tracking
Sq. Mtr. at Survey No. 92 No.
to 95, 103 to 107, 116 to SIA/MH/MIN/24068
118, 126 to 128, Village 9/2021
Walad Khu, Tehsil-
Akola, District Akola
4. Sangwa Mel Sand Ghat, Date of Application: 8978 3694
Purna river, 24900 Sq. 30.11.2021 Tracking
Mtr, Near Gar No. No.
274,275,276,277 village- SIA/MH/MIN/24128
Murtizapur, District- 5/2021
akola
5. Lonsana Sand Ghat in Date of Application 3148 704
pedhi river, Area 10750 30.11.2021 Tracking
Sq. Mtr, near gar No. 14, No.
15,138,139,147,150,152 SIA/MH/MIN/24125
and 154 at Village 6/2021
Lohsana, Tehsil-
Murtizapur, District-
Akola
6. Durgawada Sand Ghat, Date of Application 3458 2290
Purna River, Area 10875 30.11.2021 Tracking
Sq. Mtr, Survey No. 1 to No.
4, 243 to 249, SIA/MH/MIN/24125
32,33,35,37,41,42,43,56 0/2021
at Village Durgawad,
Tehsil- Murtizapur,
district Akola
7. Ghungshi Hasnapur Date of Application 3253 2146
Sand Ghat, Purna River, 30.11.2021 Tracking
Area 10230 Sq. Mtr, No.
Survey No. 2,3,4,5,6, SIA/MH/MIN/24124
Village Ghungshi 6/2021
Hasnapur, Tehsil-
Murtizapur, District-
Akola
8. Khaparwada-2 Sand Date of Application 3366 1662
Ghat in Purna river Area 30.11.2021 Tracking
10500 Sq. Mtr. Survey No.
No. 37-40, Village SIA/MH/MIN/24121
Khaparwada-2, Tehsil 4/2021
Murtizapur District
9. Khaparwada-1 Sand Date of Application 3212 1804
Ghat, Purna River, Area 30.11.2021 Tracking
10100 Sq. mtr, Survey No. SIA/ MH/
No. 63, Village MIN/241203/2021
Khaparwada- 1, Tehsil-
Murtizapur, District
Page 3 of 47
Akola
10. Kolsara-2 Sand Ghat Date of Application 3578 No date
30.11.2021 Tracking availabl
No. e
SIA/MH/MIN/24119
4/2021
11. Dapura-2 Sand Ghat, Date of Application 3792 1651
Purna River, Area 10730 30.11.2021 Tracking
Sq. Mtr, Survey No. No.
14,15, Village Dapura-2 SIA/MH/MIN/24129
Tehsil- Murtizapur, 8/2021
District Akola
12. Virvada Sand Ghat, Date of Application 3049 4410
purna River, Area 22780 30.11.2021 Tracking
Sq. Mtr, Survey No. No.
1,2,22,23, 235 to 241, SIA/MH/MIN/24291
village Virvada, Tehsil- /2021
Murtizapur, District
akola
13. Lakhpuri-2 Sand Ghat in Date of Application 3816 No data
Purna river, Area 10800 30.11.2021 Tracking availabl
Sq. Mtr. At Survey No. No. e.
568,569,1.2.16. Village SIA/MH/MIN/24114
Lakhpuri-2 Tehsil- 3/2021
Murtizapur, District
Akola
14 Lakhpuri-1 Sand Ghat in Date of Apoplication 3339 No data
Purna River, Area 10500 29.11.2021 Tracking availabl
Sq. Mtr, At Survey No. No. e
531,534,539, SIA/MH/MIN/24113
540,546,565,566 Village 1/2021
Lakhpuri-1, Tehsil
Murtizapur, District-
Akola
15. Bahadura Sand Ghat, Date of Application 3053 No data
Mun River, Area 10800 29.11.2021 Tracking availabl
Sq. Mtr, Survey No. 9 to No. SIA/ e.
13,15,16,21 to 25, 31 to MH/MIN241116/20
33, village Bahadura, 21
Tehsil- Balapur, District
Akola
16. Kajikhed-2 Sand Ghat, Date of Application 3339 No data
Mun river 10500Sq. Mtr, 29.11.2021 Tracking availabl
Survey No. 1,6 to 15, No. e.
22,23,34,35 Village SIA/MH/MIN/24110
Kajikhed-2, Tehsil- 6/2021
Balapur, District Akola
17 Kajikhed-1 Sand ghat in Date of Application 3212 1943
Purna River, Area 10100 29.11.2021 Tracking
Sq. Mtr, Survey No. No.
88,89,93,99 to 103, 111 SIA/MH/MIN/24108
to 113, 125 to 129, 131 9/2021
to 133 village Kajikhed -
01 Tehsil Balapur,
District- Akola
18. Nagad Sand Ghat in Date of Application 3396 No data
Purna River, Area 10680 29.11.2021 Tracking availabl
Sq. Mtr, at Survey No. 3, No. e.
172 to 175, 177,178, SIA/MH/MIN/24107
196 to 210, 223 to 5/2021
Page 4 of 47
229231 to 233, 248,251,
Village Nagad, Tehsil-
Balapur, District Akola
19. Manjri (Kanchanpur) Date of Application 3710 No data
Sand Ghat in 29.11.2021 Tracking availabl
Kanchanpur Nall Ha No. SIA/MH/ e.
area 17500 Sq. Mtr. At MIN/241072/2021
Survey No. 43,47 to 52,
5, 57,59,66 to
69,87,89,91 to 94
98,99,109,494 Village
Manjri (Kanchanppur),
Tehsil- Balapur, District
Akola
20 Pilakwadi Sand Ghat, Date of Application 2404 No data
Purna River, Area 13608 29.11.2021 Tracking availabl
Sq. Mtr. at Survey NO. SIA/ MH/ Min/ e.
1,266,269, Village 241304
Pilakwadi, Tehsil- Akt,
District Akola
21 Keliveli Sand Ghat in Date of Application 1855 No data
Purna River, Area 10500 29.11.2021 Tracking availabl
Sq. Mtr, At Survey No. No. e.
41,39,40,33, village SIA/MH/MIN/24106
Kelively, Tehsil- Akot 8/2021
District Akola
22. Bhod Sand Ghat in Date of Application 3549 1357
Purna River, Area 10045 29.11.2021 Tracking
Sq. Mtr. at Survey No. No.
63, Village Bhod, Tehsil SIA/MH/MIN/24106
Akot, District Akola 4/2021
23. Danapur Sand Ghat in Date of Application 9540 636
Wan River, Area 30,000 29.11.2021 Tracking
Sq. Mtr at Survey No. No.
47,45,44,42,34,33,717 SIA/MH/MIN/24106
to 721, 714, 709 to 714, 0/2021
701 to
703,667,670,658,655,65
0
24. Eklara Sand Ghat in Date of application 1855 No data
Purna River, Area 10500 29.11.2021 Tracking availabl
Sq. Mtr at Survey No. No. e.
7,8,5,307,306,303,274,2 SIA/MH/MIN/24089
72,279,271,270,268,269 0/2021
,264,261,254,253 Village
Eklara, Tehsil Akola,
District Akola
25. Dahihanda Sand Ghat in Date of Application 2883 No data
Shahanur River, Area 29.11.2021 Tracking availabl
10200 Sq. Mtr. at Survey No. SIA/ e.
No. 246 to 248, 252 to MH/MIN/240888/2
257 260,263 to 267, 021
270,273,274,276, Village
Dahihanda, Tehsil akola,
District Akola
26. Mhaisang Sand Ghat in Date of Application 2849 2461
Purna River, Area 10080 29.11.2021 Tracking
Sq. Mtr. at Survey No. No.
710,1,739,740,711 SIA/MH/MIN/24088
6/2021
Page 5 of 47
3. The Respondent No.3/District Mining Officer (DMO) prepared the District Survey Report (DSR) incorrectly, which has not been prepared on a sound basis by incorporating the conditions as laid down by the judgment of the Hon‟ble Supreme Court of India and as specified by the Ministry of Environment through Guidelines and Notifications. The collective list of all the impugned ECs dated 13.01.2022 is annexed as Annexure A/14(Colly).
4. The Respondent No.3/District Mining Officer/PP has not uploaded the relevant documents as mentioned in the Notification dated 14.08.2018, by which the MoEF&CC has made it mandatory that each sand mining project falling in the B2 category with area between 0-5 Ha will be strictly appraised on the mandatory requirements of Form-1M, DSR and Approved Mine Plan before being granted Environmental Clearance. In these cases mandatory requirements have not been met. A collective list of twenty-six screen grabs downloaded on 10.05.2022 indicating project proposal and document submission status of the impugned ECs as seen on PARIVESH-
Maharashtra Portal, is annexed as Annexure A/15(Colly).
5. A rampant illegal sand mining is taking place on account of the grant of impugned ECs by the SEIAA, Maharashtra in the district Akola, Maharashtra which is depleting sand resources at an enormous pace, especially when sand quantity is very low at 0.98 Mt as per the draft DSR issued on 22.09.2021. There is no replenishment study, nor has it been mentioned in the draft DSR, which is again a flagrant violation of rules and procedures.
6. Among the grounds for filling this Original Application, it is mentioned that the impugned ECs have been recommended by the SEAC and SEIAA without considering the fact that the draft District Survey Report (DSR) dated 22.09.2021 has not been approved and appraised by the SEAC and the SEIAA. Because of that reason, EC could not have been granted in view of the law laid down by the Hon‟ble Apex Court in State of Bihar and others Vs. Pawan Kumar & others (2022) 2 SCC 348 decided on 10.11.2021. The draft District Survey Report (DSR) has been prepared Page 6 of 47 without considering the guidelines set out in various notifications and guidelines issued by the Ministry of Environment, Forests and Climate Change, Government of India from time to time. The draft District Survey Report (DSR) has been prepared by the District Mining Officer(DMO) who is the Project Proponent in all the impugned ECs which is in violation of the principles of natural justice as he could not have been a judge in his own case. The draft DSR states values against available sand in brass which is only contrary to the impugned ECs and is in violation of the law laid down by this Tribunal in Anjani Kumar Vs. State of U. P.(MANU/GT/0132/2017) wherein it is stated that data collected and declared for preparation of DSR shall take precedent over other data and form the foundation for providing mining lease. No replenishment study has been carried out before the grant of the impugned 26 ECs. As per the Notification dated 14.08.2018 issued by the MOEF&CC, sand mining project falling in the B2 category with area between 0-5 Ha will strictly adhere to the mandatory requirement of presenting Form-1M, PFR, DSR and Approved Mine Plan before grant of Environment Clearance. This procedure has not been adhered to in the case in hand.
7. The Applicant has also stated the position of law in the present matter by stating that the EIA Notification, which came into force on 14.09.2006, has set out the mandate of Environment Impact Assessment studies before the grant of Environmental Clearance (EC). Sand is a minor mineral as defined under Section 3 (e) of the Mines and Mineral ( Development Regulation) Act, 1957 (MMDR Act). Section 3 (e) MMDR Act says as below:
" "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 Gazettee, declares to be a minor mineral."
8. On 27.02.2012, Hon‟ble Apex Court in the Deepak Kumar Vs. State of Haryana (2012 4 SCC 629) directed that leases of minor minerals, including their renewal, for an area of less than five hectares, required prior Page 7 of 47 Environmental Clearance (EC). The relevant paragraph of the said judgment is quoted hereinbelow:
"23 We, in the meanwhile, order that leases of minor minerals including their renewal for an area of less than five hectares be granted by the States/ Union Territories only after getting environmental clearances from MoEF."
9. The Ministry of Environment Forest and Climate Change (MoEF&CC) had prescribed a procedure for preparation of District Survey Report (DSR)for conducting sand mining by issuing Notification dated 15.01.2016, whereby sub paragraph 7 (ii) has been inserted to the following effect which provided under "7 (iii) Preparation of District Survey Report (DSR) for sand mining or River Bed Mining and Mining of other Minor Minerals;
(a) The prescribed procedure for preparation of District Survey Report (DSR) for sand mining or river bed mining and mining of other minor minerals is given in appendix X. Appendix - X (See Paragraph 7 (iii)(a) PROCEDURE FOR PREPARATION OF DISTRICT SURVEY REPORT The main objective of the preparation of District Survey Report ( as per the Sustainable Sand Mining guideline) is to ensure the following:
Identification of areas of aggradations or deposition where mining can be allowed; and identification of areas of erosion and proximity to infrastructural structures and installations where mining should be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining in that area.
The report shall have the following structure:
1. Introduction
2. Overview of Mining Activity in the District
3. The List of Mining Leases in the District with location, area and period of validity
4. Details of Royalty or Revenue received in last three years.
5. Detail of Production of Sand or Bajari or minor mineral in last three years.
6. Process of Deposition of Sediments in the rivers of the District.
7. General Profile of the District.
8. Land Utilization Pattern in the District: Forest, Agriculture, Horticulture, Mining etc.
9. Physiography of the District
10. Rainfall: month-wise
11. Geology and Mineral Wealth In addition to the above, the report shall contain the following:Page 8 of 47
(a) District wise detail of river or stream and other sand source.
(b) District wise availability of sand or gravel or aggregate resources.
(c) District wise detail of existing mining leases of sand and aggregates.
A survey shall be carried out by the DEIAA with the assistance of Geology Department or Irrigation Department or Forest Department or Public Works Department or Ground Water Boards or Remote Sensing Department or Mining Department etc. in the district.
Drainage system with description of main rivers:
Sr. No. Name of the Area drained % Area drained river (sq. Km) in the District Salient Features of Important Rivers and Streams:
S. No. Name of Total Place of Altitude at
the River or Length in origin Origina
Stream the District
( in KM)
Portion of Length of Average Area Minerab
the River or area width of recommend le
Stream recommend area ed for mineral
Recommend ed for recommend mineral potentia
ed for mineral ed for concession ( l ( in
Mineral concession ( mineral in square metric
Concession in concession meter) tone)
kilometre) (in meters) (60% of
total
mineral
potentia
l)
Mineral Potential
Boulder (MT) Bajari (MT) Sand (MT) Total Minerable
Mineral
Potential (MT)
Annual Deposition
Sr Rive Portion of Length of Average Area Minea
. r or the river area width of recomme ble
N Stre or stream recomme area nded for Miner
o. am recomme nded for recomme mineral al
nded for mineral nded for concessio poten
mineral concessio mineral n (in tial
concessio n (in concessio square (in
n kilometre n ( in meter) metric
) meters) tonne)
(60%
Page 9 of 47
of
total
miner
al
poten
tial
Total for
the
District.
A Sub- Divisional Committee comprising of Sub-Divisional magistrate, officers from irrigation department, State Pollution control Board or Committee, Forest Department, Geology or mining officer shall visit each site for which environmental clearance has been applied for and make recommendation on suitability of site for mining or prohibition thereof. Methodology adopted for calculation of Mineral Potential:
A mineral potential is calculated based on field investigation and geology of the catchment area of the river or streams. As per the site conditions and location, depth of minable mineral is defined. The area for removal of the mineral in a river or stream can be decided depending on geo morphology and other factors, it can be 50% to 60% of the area of a particular river or stream. For example in some hill States mineral constituents like boulders, river born Bajri, sand up to a depth of one meter are considered as resource mineral. Other constituents like clay and silt are excluded as waste while calculating the mineral potential of particular river or stream.
The District Survey Report shall be prepared for each minor mineral in the District separately and its draft shall be placed in the public domain by keeping its copy in Collectorate and posting it on district‟s website for twenty one days. The comments received shall be considered and if found fit, shall be incorporated in the final Report to be finalised within six months by the DEIAA.
The District Survey Report shall from the basis for application for environmental clearance, preparation of reports and appraisal of projects. The Report shall be updated once every five years."
(b) The prescribed procedure for environmental clearance for mining of minor minerals including cluster situation is given in Appendix XI"
Appendix- XI (See Paragraph 7 (iii)(b) PROCEDURE FOR ENVIRONMENTAL CLEARANCE FOR MINING OF MINOR MINERALS INCLUDING The following policy shall be followed for environmental clearance of mining of minor minerals including cluster situation:
(1) The date provided by the States (Sustainable Sand Mining Guidelines) shows that most of the mining leases for minor minerals are of lease area less than 5 hectare. It is also reported that in hill States getting a stretch in river with area more than 5 hectare is very uncommon. So the size of lease for minor minerals Page 10 of 47 including river sand mining will be determined by the States as per their circumstances.
(2) The mining of minor minerals is mostly in clusters. The Environment Impact Assessment or Environment Management plan are required to be prepared for the entire cluster in order to capture all the possible externalities. These reports shall capture carrying capacity of the cluster, transportation and related issues, replenishment and recharge issues, geo-
hydrological study of the cluster area. The Environment Impact Assessment or Environment Management Plan shall be prepared by the State or State nominated agency or group of project proponents in the cluster or the project proponent in the cluster.
(3) There shall be one public consultation for entire cluster after which the final Environment Impact Assessment or Environment Management Plan report for the cluster shall be prepared.
(4) Environmental clearance shall be applied for and issued to the individual project proponent. The individual lease holders in cluster can use the same Environment Impact Assessment or Environment Management Plan for application for environmental clearance. The cluster Environment Impact Assessment or Environment Management Plan shall be updated as per need keeping in view any significant change.
(5) The details of cluster Environment Impact Assessment or Environment Management Plan shall be reflected in measures emanating from the Environment Impact Assessment or Environment Management plan study are fully reflected as environmental clearance conditions in the environmental clearance‟s of individual project proponents in that cluster.
(6) A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in homogeneous mineral area.
(7) Form 1M, Pre- Feasibility Report and mine plan for Category „B2‟ projects for mining of minor minerals shall be prepared by the Registered Qualified Person or Accredited Consultants of Quality Council of India, National Accreditation Board for Education and Training. The Environment Impact Assessment or Environment Management Plan for cater „A‟ and Category „B1‟ projects shall be prepared by the accredited consultants of Quality Council of India, National Accreditation Board for Education and Training.
(8) The SEIAAs shall have supervisory jurisdiction over the DEIAAs and decisions of DEIAA shall be reviewed by the SEIAA without prejudice to any provisions under any existing law.
Area of Categ Requirem Requirem Requirem Who can Who Authority Authorit
lease ory of ent of ent of ent of EC prepare will to y to
(Hectar Project EIA/ Public EIA/EM apply appraise/ monitor
e) EMP hearing P for EC grant EC EC
complia
nce
EC proposal of Sand Mining and other Minor Mineral Mining on the basis of individual mine lease 0-5ha „B2‟ Form-1M, No Yes Project Project DEAC/ DEIAA PFR and Propone Propon DEIAA SEIAA Approved nt ent SPCB Page 11 of 47 Mine CPCB plan MoEFC C Agency >5 ha „B2‟ Form-I. No Yes Project Project SEAC/SEI Nominat and < PFR and Propone Propon AA ed by 25 ha approved nt ent MoEFC Mine C Plan and EMP ≥ 25 ha „B1" Yes Yes Yes Project Project SEAC/SEI and < Propone Propon AA 50ha nt ent EC Proposal of Sand Mining and other Minor Mineral Mining in cluster situation Cluster „B2‟ Form-1M, No Yes State, Project DEAC/DEI DEIAA area of PFR and State Propon AA SEIAA mine Approved Agency, ent SPCB leases Mine Group of CPCB up to 5 Plan Project MoEFC ha Propone C nts, Agency Project Nominat Propone ed by nt MoEFC Cluster „B2‟ Form-I, No Yes State, Project DEAC/DEI C area of PFR and State Propon AA Mine Approved Agency, ent leases Mine Group of > 5 ha Plan and Project and < one EMP Propone 25 ha for all nts, with no lease in Project individ the Propone ual Cluster nt lease >5 ha Cluster „B1‟ Yes Yes Yes State, Project SEAC/SEI of mine State Propon AA lease Agency, ent of area Group of ≥25 Project hectare Propone s with nts, individ Project ual Propone lease nt size< 50ha Cluster „A‟ Yes Yes Yes State, Project EAC/MoE of any State Propon FCC size Agency, ent with Group of any of Project the Propone individ nts, ual Project lease Propone ≥50 ha nt
10. Further, it is mentioned that the Sustainable Sand Mining Guidelines were brought about by the Ministry of Environment, Forest and Climate Change in the year 2016 which has not only emphasized the importance of District Survey Report (DSR) as an essential first step but has also detailed out the structure to be prepared, which is as follows: Page 12 of 47
"THE STRUCTURE OF DISTRICT SURVEY REPORT The report can have following structures
1. Introduction
2. Overview of Mining Activity in the District
3. The list of Mining Leases in the District with location, area and period of validity
4. Details of Royalty or Revenue received in last three years
5. Detail of production of Sand or Bajari or minor mineral in last three years
6. Process of Deposition of Sediments in the rivers of the District
7. General profile of the District
8. Land Utilization Pattern in the district: Forest, Agriculture, Horticulture, Mining etc,
9. Physiography of the District
10. Rainfall: month-wise
11. Geology and Mineral Wealth
12. Drainage System with description of main rivers.
SI. No. Name of River Area Drained % Area Drained (Sq. Km)
13. Salient Features of Important Rivers and Streams:
SI. No. Name of the Total Length Place of Altitude at River/ in the origin Origin Stream District ( in Km)
14. Methodology Adopted for Calculating of Mineral Potential The mineral potential is calculated based on field investigation and geology of the catchment area of the river/ streams. As per the policy of the State and location, depth of minable mineral is defined. The area for removal of mineral in a river or stream can be decided depending on geo-morphology and other factors, it can be 50% to 60% of the area of a particular river/ stream, e.g. in Himachal Pradesh mineral constituents like boulders, river born bajari, sand up to a depth of one meter are considered as resource mineral. Other constituents like clay and silt are excluded as waste while calculating the mineral potential of particular river/ stream.
The specific gravity of each mineral constituent is different. While calculating the mineral potential the average specific gravity is taken as 2.25. The percent Page 13 of 47 of mineral constituent like boulder, river bajari, sand also varies for different river and streams. While calculating the mineral potential the percentage of each mineral constituent is taken as, Boulders 35-40%, Bajari-30-35%, Sand 25-30% and 5-10% silt and clay.
The quantum of deposition varies from stream to steam depending upon factors like catchment lithology, discharge, river profile and geomorphology of the river course. There are certain geomorphological features developed in the river beds such as channel bar, point bar etc. where annual deposition is more even two to three meters."
11. Further, it is mentioned that this Tribunal laid down in the judgement of Anjani Kumar Vs. State of Uttar Pradesh (MANU/GT/0132/2017) that the data collection for preparation of DSR shall take precedent over other data and form the foundation for providing mining lease. The Environmental Clearance shall be a condition precedent for carrying on mining activity.
"94. The information or data collected by the authorized officer of the State Government under Mining Act for inviting tenders would not be and cannot be the base for compliance of Appendix- X as it is not a substitute for the District Survey Report referred to which must be prepared by District Environment Impact Assessment Authority the body in terms of Appendix-x. In light of the above discussion we pass the following orders and directions:
1. We have already held that we are not concerned in deciding the merit or otherwise of the Mining Policy, 2017 framed by the State of UP and inviting of e-
tender and e- auction as it falls beyond the jurisdiction of this Tribunal.
2. The data collection and declared for preparation of DSR shall take precedent 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.
3. Upon finalization of the DSR in the manner prescribed 21 days notice shall be provided and objections if any file shall be considered in accordance with law.
4. Obtaining of Environmental Clearance shall be a condition precedent to the carrying on of the mining activity/ execution of the lease. This be so for the environmental laws afore- referred and even stipulated in the rule 34 (iv) of the Mining Rule, 2017
5. The State Government and all its agencies and instrumentalities would ensure that the protection and replenishment of natural resources including sand is Page 14 of 47 duly provided for in the mining lease that would be granted by the State Government as required under Appendix-x to the notification dated 15th January, 2016.
6. The State Government and its instrumentalities shall also ensure that the terms and conditions of the Mining Lease would contain all the relevant clauses as stated in Appendix-x and Notification dated 15th January, 2016 for carrying out sustainable mining."
12. Further, it is mentioned that the MoEF&CC released a Notification on 25.07.2018 which has amended the procedure for preparation of District Survey Report for sand mining or river bed mining in the earlier Notification dated 15.01.2016. It has included within its ambit the structure of how the report must be like:
"II. PROCEDURE FOR PREPARATION OF DISTRICT SURVEY REPORT OF MINOR MINERALS OTHER THAN SAND MINING OR RIVER BED MINING The District Survey Report shall be prepared for each minor mineral in the district separately and its draft shall be placed in the public domain by keeping its copy in Collectorate and posting it on district‟s website for twenty-one days. The comments received shall be considered and if found fit, shall be incorporated in the final Report to be finalized within six months by the DEIAA.
The District Survey Report for minor minerals other than sand mining or River bed mining shall be as per structure mentioned below:
FORMAT FOR PREPARATION OF DISTRICT SURVEY REPORT FOR MINOR MINERALS OTHER THAN SAND MINING OR RIVER BED MINING.
(1) Introduction;
(2) Overview of Mining Activity in the District; (3) General profile of the District;
(4) Geology of the District;
(5) Drainage of Irrigation pattern;
(6) Land utilization Pattern in the District: Forest, Agriculture, Horticultural, Mining etc.;
(7) Surface Water and Ground Water scenario of the District; (8) Rainfall of the district and climatic condition; (9) Details of the mining leases in the District as per the following format:-
SI. Name of Name Address Mining Area Period of Period of No. the of & lease of Mining Mining lease Mineral lessee Contact Grant Mining lease (1st/2nd No. of order lease (Initial) lessee No. & (ha) Page 15 of 47 date From To From To 1 2 3 4 5 6 7 8 9 10 Date of Status Captive/N Obtained Locatio Method of commencem (Working/ on-Captive Environmen n of the Mining ent of Non- tal Mining (Opencast/Un Mining working/Te Clearance lease der ground) Operation mp. Working (Yes/No), if Latitud for dispatch yes Letter e & etc. No with Longitu date of de grant of EC.11 12 13 14 15 16
`
10. Details of Royalty or Revenue received in last three years;
11. Details of production of Minor Mineral in last three years;
12. Mineral Map of the District;
13. List of Letter of Intent (LOI) Holders in the District along with its validity as per the following format:
14. Total Mineral Reserve available in the District;
SI. Name Name Address Letter Area of Validity Use Location
No. of the of the & of Mining of LoI (Captive of the
Mineral Lessee Contact Intent Lease Non- Mining
No. of Grant to be Captive) lease
Letter of Order allotted (Latitude
intent No & &
Holder date Longitude
1 2 3 4 5 6 7 8 9
15. Quality/Grade of Mineral available in the District;
16. use of Mineral;
17. Demand and Supply of the Mineral in the last three years;
18. Mining lease marked on the map of the District;
19. Details of the area of where there is a cluster of mining lease viz. Number of mining leases, location ( Latitude and longitude);
20. Details of Eco-Sensitive Area, if any in the District;
21. Impact on the Environment ( Air, Water, Noise, Soil, Flora & Fauna, land use, agriculture, forest etc.) due to mining activity.
22. remedial measures to mitigate the impact of mining on the Environment.
Page 16 of 47
23. Reclamation of Mined out area ( best practice already implemented in the district, requirement as per rules and regulation, proposed reclamation plan);
24. risk Assessment & Disaster Management Plan;
25. Details of the Occupational Health issues in the District. ( Last five- year data of number of patients of Silicosis & Tuberculosis is also needs to be submitted)
26. Plantation and Green Belt development in respect of leases already granted in the District;
27. any other information.
The District Environment Impact Assessment Authority (DEIAA) based on the nature and type of minor mineral in the District may include the additional parameters in the District Survey Report in consultation with the Department of Mines and Geology of the concerned State Government.
The District Survey Report shall form the basis for application for environmental clearance preparation of reports and appraisal of projects. The Report shall be updated once every five years."
13. Further, it is mentioned that the Ministry of Environment, Forest and Climate Change brought out a Notification dated 14.08.2018 laying down the procedure for application of Environmental Clearance in respect of sand mining. It has significance that those sand mines which are in the range of 0-5 Ha falling in B2 category have to adhere to the strict requirement of having Form-1M, PFR, DSR and Approved Mine Plan before being granted Environmental clearance.
"Now, therefore, in exercise of power conferred by sub - section (I) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 (29 of 1986), read with clause (d) of sub- rule (3) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby makes the following further amendments in the Environment Impact Assessment Notification, 2006 namely-
In the said Notification, in the SCHEDULE, for item 1(a),1(c) and the Schematic Presentation of requirements on environmental Clearance of Minor Minerals including cluster situation in Appendix-XI and entries relating thereto, the following item and entries shall be substituted, namely:Page 17 of 47
Project or Activity Category with threshold Conditions if any limit A B 1 Mining extraction of natural resources and power generation ( for a specified production capacity) (1) (2) (3) (4) (5) 1(a) i. Mining of > 100 ha. of ≤ 100 ha of General conditions minerals. mining lease area mining lease shall apply except:
in respect of non- area in (i) For project coal mine lease. respect of non- or activity of coal mine mining of > 150 ha of lease. minor minerals mining lease area of Category in respect of coal ≤ 150 ha of „B2‟ (up to 25 mine lease. mining lease ha of mining area in lease area) respect of coal (ii) For project ii. Slurry All Projects. mine lease. or activity pipelines of mining (Coal, of minor lignite minerals of and other Category ores) „B1‟ in passing case of through cluster of national mining parks lease area;
sanctuari and
es/ coral (iii) River bed
reefs, mining
ecological projects on
ly account of
sensitive inter- state
areas. boundary.
Note:
(1) Mineral
prospecting
is
exempted;
(2) The
prescribed
procedure
for
environmen
tal
clearance
for mining
of minor
minerals
including
cluster
situation is
given in
Appendix
XI;
Page 18 of 47
Schematic Presentation of Requirements on Environment Clearance of Minor Minerals including cluster situation in Appendix- XI Area of Catego Requirem Requirem Requirem Who Who Authority Authority lease ry of ent of ent of ent of EC can will to to (Hecta Project EIA/ public prepare apply appraise/ monitor re) EMP/DSR Hearing EIA/ for EC grant EC EC EMP complian ce.
EC Proposal of Sand Mining and other Minor Mineral Mining on the basis of individual mine lease.
0-5ha „B2‟ Form-1M, No. Yes Project Project DEAC/DEI DEIAA
PFR, DSR, Propone Propone AA SEIAA
And nt nt SPCB
Approved CPCB
Mine plan. MoEFCC
agency
nominate
d by
MoEFCC
14. Further, it is mentioned that this Tribunal in O.A. 186/2016 in the matter of Satendra Pandey Vs. Ministry of Environment, forest & Climate Change & Anr. and in connected matters decided on 13th September, 2018, has examined the legality of the EIA Amendment Notification dated 15.01.2016 and called for the revision of procedure as per the judgment passed by the Hon‟ble Supreme Court in the matter of Deepak Kumar Vs. State of Haryana (Supra) . By way of this judgment, it has cancelled the constitution of District Environmental Impact Assessment Authority (DEIAA) and the District Environmental Appraisal Committee (DEAC).The relevant paragraphs from the said judgment are quoted hereunder:
"22. For all these reasons, we direct that the procedure laid down in the impugned Notification be brought in consonance and in accord with the directions passed in the case of Deepak Kumar (Supra) by (i) providing for EIA, EMP and therefore, Public consultation for all areas from 5 to 25 ha falling under Category B-2 at par with Category B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided; (ii) Form-1M be made more comprehensive for areas of 0 to 5 ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA; (iii) if a cluster or an individual lease size exceeds 5 ha the EIA/ EMP be made applicable in the process of grant of prior environmental clearance;(iv) EIA and/or EMP be prepared for the entire Page 19 of 47 cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof; (v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and timeframe replenishment after mining closure in an area; (vi) the MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining.
23. We have permitted retention of 0-5 ha as a category keeping in view that some States grant isolated single lease of 5 ha and less not falling in cluster situation for which stringent requirements in Form -1M will serve the purpose of providing safeguards for protection of the environment and sustainable mining of minor minerals. This is particularly true in smaller and mountainous States as will also appear from condition No.2 under "The issues and management of Mining in Cluster" referred to earlier in para 20 of this order.
24. It is reiterated that any attempt to split the lease area for the purpose of avoiding the applicable regulatory regime shall be viewed seriously. This in our view will be in the interest of the environment as deliberated in detail in the case of Deepak Kumar (Supra) and would also satisfy the Precautionary Principle and the Principle of Sustainable Development contemplated under Section 20 of the National Green Tribunal Act, 2010.
25. The MoEF&CC shall, therefore, take appropriate steps to revise the procedure laid down in the impugned Notification dated 15th January, 2016 in terms of the above directions and observations so that it is conformity with the letter and spirit of the directions passed by the Hon‟ble Supreme Court in Deepak Kumar(Supra)
15. In January, 2020, the Ministry of Environment, Forest and Climate Change brought out Enforcement & Monitoring Guidelines for Sand Mining which has emphasized on the importance of the District Survey Report at Page No. 15 and 16 in points a) and c).
a) District Survey Report for sand mining shall be prepared before the auction/ e-auction/ grant f the mining lease/ Letter of Intent(LoI) by Mining Department or department dealing the mining activity in respective states
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.
16. Further, it is mentioned that on 14.10.2020, this Tribunal in O.A. 40/2020 in the matter of Pawan Kumar Vs. State of Bihar (2020 SCC OnLine NGT 2848) decided on 14.10.2020 had provided certain guidelines for the preparation of District Survey Report.
"103. In the light of the above findings, we direct as follows:Page 20 of 47
(i) Having regard to the findings at (a), (b) and (c) above, we direct the State to undertake further exercise for preparation of a fresh DSR for the Banka District.
(ii) As the DEIAA is not functioning as a consequence of the decision of the Tribunal in Satendra Pandey (Supra), the DSR shall be prepared through a consultant(s) accredited by the National Accreditation Board of Education and Training/ Quality Control Council of India in terms of O. M. of MoEF&CC dated 16.03.2010.
(iii) The DSR so prepared shall be submitted to the District Magistrate who shall verify the DSR only in respect of the relevant facts pertaining to the physical and geographical features of the district which shall be distinct from the scientific findings based on the parameters prescribed in the SSMMG-2016. After such verification, the District Magistrate shall forward the DSR for examination and evaluation by the State Expert Appraisal Committee (SEAC) having regarding to the fact that the SEIAA comprises of technical/ scientific experts. The SEAC after appraisal of the report shall forward it to the SEIAA for consideration and approval if it meets all scientific/ technical requirements.
(iv) While preparing the DSR, the MoEF&CC Accredited Agency / Consultant shall scrupulously follow the procedure and the parameters laid down under the SSMMG-2016 and EMGSM-
2020 read in sync with each other.
17. Further, it is mentioned that the Hon‟ble Apex Court in State of Bihar and Others Vs. Pawan Kumar and Others ((2022) 2 SCC 348) decided on 10.11.2021, modified the conditions for the preparation of the District Survey Report, with an important criterion that all draft DSRs prepared by erstwhile District Environmental Impact Assessment Authorities be scrutinized by State Expert Appraisal Committee and then the State Environmental Impact Assessment Committee within a period of 6 weeks. The relevant paragraph is quoted hereunder:
"16. We therefore find it appropriate to substitute the directions issued by the Tribunal vide judgment and order dated 14th October, 2020, with the following:
16.1. The exercise of preparation of DSR for the purpose of mining in the State of Bihar in all the districts shall be undertaken afresh. The draft DSRs shall be prepared by the sub divisional committees consisting of the Sub Divisional Magistrate, officers from Irrigation Department, State Pollution Control Board or Committee, Forest Department, Geological or mining officer.
The same shall be prepared by undertaking site visits and also by using modern technology.
The said draft DSRs shall be prepared within a period of 6 weeks from the date of this order.
After the draft DSRs are prepared, the District Page 21 of 47 Magistrate of the concerned District shall forward the same for examination and evaluation by the SEAC. The same shall be examined by the SEAC within a period of 6 weeks and its report shall be forwarded to the SEIAA within the aforesaid period of 6 weeks from the receipt of it. The SEIAA will thereafter consider the grant of approval to such DSRs within a period of 6 weeks from the receipt thereon.
16.2 Needless to state that while preparing DSRs and the appraisal thereof by SEAC and SEIAA, it should be ensured that a strict adherence to the procedure and parameters laid down in the policy of January 2020 should be followed.
16.3 Until further orders, we permit the State Government to carry on mining activities through Bihar State Mining Corporation for which it may employ the services of the contractors. However, while doing so, the State Government shall ensure that all environmental concerns are taken care of an no damage is caused to the environment."
The above directions have not been complied with while preparing the draft DSR for the district of Akola dated 22.09.2021 as they have not been approved by the SEAC and the SEIAA. Therefore, it suffers from infirmity. Hence, the above prayers have been made.
18. This matter was first considered by us on 26.05.2022 and the Registry was directed to issue notices to the Respondents.
19. The stand of Respondent No.2 & 3/ District Collector & District Mining Officer is as follows:
From the side of Respondent No.2 & 3/District Collector & District Mining Officer, reply affidavit dated 28.07.2022 has been filed where-in it is submitted that the SEIAA Maharashtra granted twenty six environmental clearances to the District Mining Officer (DMO) Akola, as per the directions prevailing as on the date of issuance of DSR. The DSR dated 22.09.2019 is prepared as per the guidelines given in "Enforcement and Monitoring guidelines" issued by the MoEF&CC, GoI dated January 2020. On perusal of the EC it would show that condition No. III of General conditions would show that the validity of EC of the Page 22 of 47 sand block in question is up to 30th September, 2022. On perusal of the Chapter „V‟- „The Mode of Sand Auction‟ of the Government Resolution dated 28th January, 2022, would show that in point No.2, the period from 10th June till 30th of September is considered as a rainy season and during this period no sand mining is permissible. Accordingly, the answering respondents issued the letter dated 01.06.2022 to every auctioneer that, care shall be taken in the above referred period which will be the rainy season and the mining in this period shall not be done.
The prayer made by the Applicant shows that he is seeking cancellation of the environmental clearances granted to the District Mining Officer, Akola, Maharashtra, despite the fact that the period of mining is already over. Therefore, the prayers seeking to quash Environmental Clearances have become infructuous, since from 1st of October 2022 fresh mining year starts. Hence, the appeal may be dismissed.
20. The stand of Respondent No.1/SEIAA is as follows:
From the side of Respondent No.1/SEIAA, reply affidavit dated 23.08.2022 has been filed where-in it is submitted that each Environmental Clearance is giving rise to a fresh and different cause of action for which appeal has to be filed in the proper format as per the National Green Tribunal (NGT Practice and Procedure) Rules 2011, which has not been done by the applicant to escape paying appropriate court fee. Hence, on the ground of the maintainability, the Appeal should be dismissed.
21. The Respondent No.2 & 3/ District Collection and District Mining Officer has filed additional affidavit dated 19.06.2023 wherein it is submitted that the Applicant had filed an appeal challenging 26 ECs granted by SEIAA to the answering respondent. Since the said appeal was found to be not maintainable it was allowed to be converted into an O.A. It is submitted that the answering Respondent is discharging its duties strictly according to the directions by the State Government within the framework of the GRs, circulars and other orders issued, based upon the judgments of Hon‟ble Supreme Court, High Court and Hon‟ble National Page 23 of 47 Green Tribunal. The answering Respondent has complied with the directions issued in Deepak Kumar‟s case by the Hon‟ble Supreme Court regarding lease of the Sand Ghats including their renewal, for an area of less than five hectors by seeking prior Environmental Clearances, which has been granted by the SEIAA, MoEF&CC on 13.01.2022 and then the process of an auctioning is initiated by the Respondent No.2 & 3 with first round dated 05.02.2022, Second round on 23.02.2022 and Third round on 04.03.2022. Therefore, it is clear that the Sand Ghats were auctioned only after receiving an environment clearance for 0 to 5 hectors of Sand Ghats. The District Survey Report (DSR) for the year 2021-2022 has been prepared by DEIAA as per notification of MoEF&CC, dated 15.01.2016 and 25.07.2018 and updated by answering respondents as per notification of 25.07.2018 of MoEF&CC as well as Enforcement and Monitoring Guidelines for Sand Mining January, 2020, prior to awarding of sand permits for carrying out mining activities. Since it is mentioned in the notification dated 25.07.2018 that the report shall be updated once every five years, the general list of 72 Sand Ghats of Akola district which was prepared earlier was kept as it is. Only those Sand Ghats which were feasible for auction i.e. 30 Sand Ghats have been updated which is Annexure II to DSR.
Further, it is mentioned that the Principal Bench of this Tribunal in Executive Application No. 55/2018 in Original Application No. 520/2016 in the matter of Vikrant Tongad Vs. Union of India has directed as follows :
"5. Accordingly, we direct the MoEF&CC to comply with the order dated 13.09.2018 forthwith and furnish a report of compliance on or before 31.12.2018 falling which coercive measures may have to be taken. We also make it clear that till a fresh Notification is issued by the MoEF&CC, Notification dated 15.01.2016 will not be acted upon.
6. Since our attention has been drawn to letter dated 29.10.2018 issued by the State Environment Impact Assessment Authority, Kerala addressed to the District Environment Impact Assessment Authorities of various districts in Kerala that Notification dated 15.01.2016 having not being stayed, the same be followed. This interpretation is clearly contrary to the order of this Tribunal disapproving the Page 24 of 47 Notification dated 15.01.2016 and requiring the same to be revised. The direction that 15.01.2016 should still be acted upon is clearly illegal and in violation of judgment of this Tribunal. The same will stand suspended till a fresh Notification is issued by the MoEF&CC as directed hereinabove.
7. This direction will apply to all the State Environment Impact Assessment Authorities/ State Governments."
Copy of the said judgment is annexed as Annexure A-3 to the present reply and a letter written by SEIAA Rajasthan addressed to all the Collectors, Member Secretary DEIAA, communicating therein that the order of NGT dated 11.12.2018 be ensured to be complied with. It is mentioned in the order and letter by the Member Secretary, SEIAA Rajasthan that the general list of 72 Sand Ghats of Akola district, which was prepared earlier, was kept as it is.
Further, it is mentioned that the draft DSR was uploaded on government website on 22.09.2021 for one month by way of a notice for the public to invite objections, if any. It is further mentioned that this Tribunal in Anjani Kumar Vs. The State of UP (supra) stated that data collection for preparation of District Survey Report shall take precedent over other data and form the foundation for providing mining lease. It is further stated that Environmental Clearance shall be a condition precedent for carrying on mining activity. The said judgment has been relied upon by the applicant. Regarding it, it is submitted that the directions issued by this said judgment are complied with by the answering respondent and the District Survey Report of Akola, Maharashtra for the year 2021-22 is annexed as Annexure -B Further, it is mentioned that while preparing above District Survey Report the provisions mentioned in amended notification dated 25.07.2018 issued by MoEF&CC are strictly followed by the answering Respondent. As per Notification dated 25.07.2018, index of which is at Page No. 1817 to 1821 of the paper book, the mines which fall within the range of 0-5 Hectors i.e. „B2‟ category require Form - 1M, PFR, EMP, DSR and approved Page 25 of 47 Mine plan were considered by SEIAA before being granted Environmental clearance. The copy of the Form-1M, PFR, EMP, DSR are attached as Annexure- C1 to C4 respectively. It is further stated that the directions /guidelines issued vide judgment in Pawan Kumar Vs. State of Bihar (Supra) have been strictly followed by the answering respondent. The available sand for mining in the year is 0.98 MT, it means (0.98 MT = 123675 Brass of Sand). Therefore, a total 30 Sand Ghats were kept for auction, out of which 21 Sand Ghats were auctioned successfully. It is submitted that total sand available from 21 auctioned sand ghats was 90543 brass, however actual sand lifted till 9th June 2022 is merely 51603 brass. Hence, there is no illegal sand mining since approximately only half of total sand auctioned is lifted in entire year. It also shows that no loss has been caused to the environment in Akola District due to sand mining of the year 2021-2022. It is further mentioned that no directions are issued by way of any letter/ Office Memorandum/ circular or notification by MoEF&CC to get the DSR approved from SEAC or SEIAA either in online or offline mode.
It is further mentioned that no provision is made available on PARIVESH portal for approval of DSR by MoEF&CC. Despite that, the answering Respondents have submitted DSR to SEAC & SEIAA committees through a consolidated power point presentation, prior to grant of 30 environmental clearances. After being duly satisfied post scrutiny by SEAC and SEIAA authorities, Environmental Clearances have been granted to Respondent No.3/DMO Akola on 13.01.2022 by SEIAA, MoEF&CC, Maharashtra. Further, it is mentioned that the values mentioned in column No.7 (approx. Sand quantity as per district survey report in brass ) of Para No. 18 by the Applicant is at Page No.11 of the District Survey Report of Akola District dated 22.09.2021, which is of 72 Sand Spots available in Akola District. However, only 30 Sand Ghats which were found feasible for auction for the year 2021-2022 are at Annexure-II i.e. list of Potential Page 26 of 47 Mining Leased (Existing and Proposed )as per Enforcement and Monitoring Guidelines for Sand Mining, MoEF&CC January, 2020. As regards compliance of the direction given by the Hon‟ble Supreme Court in the Case of State of Bihar and others Vs. Pawar Kumar and others (Supra), it is submitted that the draft DSR for the District of Akola dated 22.09.2021 has not been approved by the SEAC and the SEIAA as per this judgment of the Hon‟ble Supreme Court. It is not the case of the applicant that the said judgment would have retrospective effect. It is further mentioned that admittedly the DSR under challenge in the present Original Application is dated 22.09.2021, and the judgment passed by the Hon‟ble Supreme Court in above mentioned case is of 10.11.2021 i.e. of a subsequent date.
Further, it is submitted that a general List of 72 (i.e. List of the sand Ghats with Location, area and period of validity is tabled) sand spots of Akola district is given at Page No.11 of the DSR. On 22.09.2021, however out of them, only 30 Sand Ghats were found feasible for auction for the year 2021-22 which were published at Annexure- II i.e. list of Potential Mining Lease ( Existing and Proposed) Rivers / Nala (Mineral Sand) as per Sand Mining Guidelines dated January 2020. It is further submitted that the DSR is prepared by following the guidelines laid down by the Para 4.1.1 of Chapter 4 of the "Environment and Monitoring Guidelines for Sand Mining dated January 2020." It is further submitted that the values mentioned in column No.7 of the approx. Sand quantity as per District Survey Report (in brass) of para No. 18 by applicant is at Page No.11 of the District Survey Report of Akola district on 22.09.2021 is incorrect. The figures submitted by the Applicant of the quantity of sand in Sand Ghats as per the DSR is incorrect, if compared with its quantity mentioned by the answering Respondent in Annexure-2. The figure which is correct with respect to quantity of the Sand is as follows:
Page 27 of 47
Sr. Name and Location of Date of Application Quantity Approx.
No. project along with area for EC along tracking of Sand Sand
number. Mining Quantity
as per per
EC District
granted ( Survey
in Brass) Report (
in Brass)
1. Takwada Sand Ghat, Date of Application 4346 4346
uma River, Area 12300 08.12.2021 Tracking
Sq. Mtr Survey No. 2 to No. SIA/
7, 97 to 99, 101 to 104, MH/MIN/241283/2
106 to 109, 112, 113, 021
126 located at Village
Takwad, Tehsil-
murtizapur, District-
Akola, Maharashtra
2. Kolsara-1 Sand Ghat Date of Application 3109 3109
Purna river, Area- 08.12.2021 Tracking
11,000 No.
Sq. Mtr. At Survey No. SIA/MH/MIN/24115
77,78,79,80 village 4/2021
Kolsara-1 Tehsil-
Murtizapur, District
Akola
3. Wadad Khu. Sand ghat, Date of application : 5963 5963
Purna river, Area 18750 08.12.2021 tracking
Sq. Mtr. at Survey No. 92 No.
to 95, 103 to 107, 116 to SIA/MH/MIN/24068
118, 126 to 128, Village 9/2021
Walad Khu, Tehsil-
Akola, District Akola
4. Sangwa Mel Sand Ghat, Date of Application: 8978 8978
Purna river, 24900 Sq. 30.11.2021 Tracking
Mtr, Near Gar No. No.
274,275,276,277 village- SIA/MH/MIN/24128
Murtizapur, District- 5/2021
akola
5. Lonsana Sand Ghat in Date of Application 3148 3148
pedhi river, Area 10750 30.11.2021 Tracking
Sq. Mtr, near gar No. 14, No.
15,138,139,147,150,152 SIA/MH/MIN/24125
and 154 at Village 6/2021
Lohsana, Tehsil-
Murtizapur, District-
Akola
6 Durgawada Sand Ghat, Date of Application 3458 3458
Purna River, Area 10875 30.11.2021 Tracking
Sq. Mtr, Survey No. 1 to No.
4, 243 to 249, SIA/MH/MIN/24125
32,33,35,37,41,42,43,56 0/2021
at Village Durgawad,
Tehsil- Murtizapur,
district Akola
7 Ghungshi Hasnapur Date of Application 3253 3253
Sand Ghat, Purna River, 30.11.2021 Tracking
Area 10230 Sq. Mtr, No.
Survey No. 2,3,4,5,6, SIA/MH/MIN/24124
Village Ghungshi 6/2021
Hasnapur, Tehsil-
Murtizapur, District-
Page 28 of 47
Akola
8 Khaparwada-2 Sand Date of Application 3366 3366
Ghat in Purna river Area 30.11.2021 Tracking
10500 Sq. Mtr. Survey No.
No. 37-40, Village SIA/MH/MIN/24121
Khaparwada-2, Tehsil 4/2021
Murtizapur District
9 Khaparwada-1 Sand Date of Application 3212 3212
Ghat, Purna River, Area 30.11.2021 Tracking
10100 Sq. mtr, Survey No. SIA/ MH/
No. 63, Village MIN/241203/2021
Khaparwada- 1, Tehsil-
Murtizapur, District
Akola
10 Kolsara-2 Sand Ghat Date of Application 3578 3578
30.11.2021 Tracking
No.
SIA/MH/MIN/24119
4/2021
11 Dapura-2 Sand Ghat, Date of Application 3792 3792
Purna River, Area 10730 30.11.2021 Tracking
Sq. Mtr, Survey No. No.
14,15, Village Dapura-2 SIA/MH/MIN/24129
Tehsil- Murtizapur, 8/2021
District Akola
12 Virvada Sand Ghat, Date of Application 3049 3049
purna River, Area 22780 30.11.2021 Tracking
Sq. Mtr, Survey No. No.
1,2,22,23, 235 to 241, SIA/MH/MIN/24291
village Virvada, Tehsil- /2021
Murtizapur, District
akola
13 Lakhpuri-2 Sand Ghat in Date of Application 3816 3816
Purna river, Area 10800 30.11.2021 Tracking
Sq. Mtr. At Survey No. No.
568,569,1.2.16. Village SIA/MH/MIN/24114
Lakhpuri-2 Tehsil- 3/2021
Murtizapur, District
Akola
14 Lakhpuri-1 Sand Ghat in Date of Apoplication 3339 3339
Purna River, Area 10500 29.11.2021 Tracking
Sq. Mtr, At Survey No. No.
531,534,539, SIA/MH/MIN/24113
540,546,565,566 Village 1/2021
Lakhpuri-1, Tehsil
M2urtizapur, District-
Akola
15 Bahadura Sand Ghat, Date of Application 3053 3053
Mun River, Area 10800 29.11.2021 Tracking
Sq. Mtr, Survey No. 9 to No. SIA/
13,15,16,21 to 25, 31 to MH/MIN241116/20
33, village Bahadura, 21
Tehsil- Balapur, District
Akola
16 Kajikhed-2 Sand Ghat, Date of Application 3339 3339
Mun river 10500Sq. Mtr, 29.11.2021 Tracking
Survey No. 1,6 to 15, No.
22,23,34,35 Village SIA/MH/MIN/24110
Kajikhed-2, Tehsil- 6/2021
Balapur, District Akola
Page 29 of 47
17 Kajikhed-1 Sand ghat in Date of Application 3212 3212
Purna River, Area 10100 29.11.2021 Tracking
Sq. Mtr, Survey No. No.
88,89,93,99 to 103, 111 SIA/MH/MIN/24108
to 113, 125 to 129, 131 9/2021
to 133 village Kajikhed -
01 Tehsil Balapur,
District- Akola
18 Nagad Sand Ghat in Date of Application 3396 3396
Purna River, Area 10680 29.11.2021 Tracking
Sq. Mtr, at Survey No. 3, No.
172 to 175, 177,178, SIA/MH/MIN/24107
196 to 210, 223 to 5/2021
229231 to 233, 248,251,
Village Nagad, Tehsil-
Balapur, District Akola
19 Manjri (Kanchanpur) Date of Application 3710 3710
Sand Ghat in 29.11.2021 Tracking
Kanchanpur Nall Ha No. SIA/MH/
area 17500 Sq. Mtr. At MIN/241072/2021
Survey No. 43,47 to 52,
5, 57,59,66 to
69,87,89,91 to 94
98,99,109,494 Village
Manjri (Kanchanppur),
Tehsil- Balapur, District
Akola
20 Pilakwadi Sand Ghat, Date of Application 2404 2404
Purna River, Area 13608 29.11.2021 Tracking
Sq. Mtr. at Survey NO. SIA/ MH/ Min/
1,266,269, Village 241304
Pilakwadi, Tehsil- Akt,
District Akola
21 Keliveli Sand Ghat in Date of Application 1855 1855
Purna River, Area 10500 29.11.2021 Tracking
Sq. Mtr, At Survey No. No.
41,39,40,33, village SIA/MH/MIN/24106
Kelively, Tehsil- Akot 8/2021
District Akola
22 Bhod Sand Ghat in Date of Application 3549 3549
Purna River, Area 10045 29.11.2021 Tracking
Sq. Mtr. at Survey No. No.
63, Village Bhod, Tehsil SIA/MH/MIN/24106
Akot, District Akola 4/2021
23 Danapur Sand Ghat in Date of Application 9540 9540
Wan River, Area 30,000 29.11.2021 Tracking
Sq. Mtr at Survey No. No.
47,45,44,42,34,33,717 SIA/MH/MIN/24106
to 721, 714, 709 to 714, 0/2021
701 to
703,667,670,658,655,65
0
24 Eklara Sand Ghat in Date of application 1855 1855
Purna River, Area 10500 29.11.2021 Tracking
Sq. Mtr at Survey No. No.
7,8,5,307,306,303,274,2 SIA/MH/MIN/24089
72,279,271,270,268,269 0/2021
,264,261,254,253 Village
Eklara, Tehsil Akola,
District Akola
Page 30 of 47
25 Dahihanda Sand Ghat in Date of Application 2883 2883
Shahanur River, Area 29.11.2021 Tracking
10200 Sq. Mtr. at Survey No. SIA/
No. 246 to 248, 252 to MH/MIN/240888/2
257 260,263 to 267, 021
270,273,274,276, Village
Dahihanda, Tehsil akola,
District Akola
26 Mhaisang Sand Ghat in Date of Application 2849 2849
Purna River, Area 10080 29.11.2021 Tracking
Sq. Mtr. at Survey No. No.
710,1,739,740,711 SIA/MH/MIN/24088
6/2021
It is further submitted that Sand Ghats regarding which ECs have been issued, included Virwada Sand Ghat, Purna River, which is in 22,780 Sq.
M. of Survey Nos. 1,2,22,23,235-241, of Village Virwada, Tahsil Murtizapur, District Akola with 8049 Brass quantity of Sand. „Mining Plans with Progressive Mine Closure Plan of Express Sand Ghat‟ on Purna river at Virwada (Virwada Sand Ghat) is the best document for showing actual application made and volume of Sand of Virwada Sand Ghat is Brass 8049. Copy of Mining Plan for prior Environmental Clearance dated 30.11.2021 is attached as Annexure-C-4. Form No. 1M is also attached as Annexure - C1 to support contention that an Application is made by the Respondent No.3/DMO to State Environmental Impact Assessment Authority, Maharashtra(SEIAA) for grant of Environmental Clearance for 8049 Brass of Sand but out of it, only the quantity of 3049 brass was granted. Pursuant to the said grant, about 3804 brass is lifted in the year 2021-2022, approval whereof is annexed as Annexure- H. Further, it is mentioned that the answering Respondent realized typographical mistake in the Environmental Clearance, therefore, review application was moved for correction of the quantity as per application, which should have been 8049 brass, but due to the validity of EC having expired on 30th September, 2022, and there being no provision to apply for review of an order through online mode the same could not be got reviewed.
It is further submitted that in Chart Prepared by the Applicant in Para No. 18 of his application at Page Nos. 35,36,37,38,39 & 40, it is mentioned at Page 31 of 47 Serial No. 4 and Serial No. 9 of Column No.4 (IV)(FOUR)quantity of sand Mining as per EC granted (In Brass), at Serial No. 4 ( at Page No. 36 of the Application filed by Applicant) is 8978 brass quantity however as per Environmental Clearance it is 8798 Brass Sand. At Serial No.5 (at Page No. 37 of the application filed by Applicant) Quantity of Sand to be mined as per EC granted is 3148 Brass. Copies of environmental Clearances of Sand Ghats „Sangwa Mel‟ and „Lonsana Sand‟ Ghat are attached as Annexure- I-1 & I-2. In view of the above, it is denied that „the DSR prepared by answering Respondent No.3/District Mining Officer Akola, is wholly incorrect and that it has not been prepared on sound basis by incorporating the conditions as laid down by the Ministry of Environment through Guidelines and Notifications‟.
It is further submitted that DSR was presented to SEAC & SEIAA committees during the consolidated power point presentation prior to grant of Environmental Clearances as per the Enforcement and Monitoring Guidelines for Sand Mining, January 2020. After due satisfaction and due scrutiny of DSR by SEAC and SEIAA authorities, it recommended the proposals for the grant of Environmental Clearances. After submission of Form 2 along with Form-1M, PFR, DSR, EMP, all the respective environmental clearances have been granted to DMO Akola on 13.01.2022 by SEIAA, MoEF&CD Maharashtra.
Further, it is mentioned that District Survey Report dated 22.09.2021 for the year 2021-22 is prepared in accordance with i) Appendix- X of MoEF&CC , GoI Notification S. O. 141(E) dated 15.01.2016(ii) Sustainable sand Mining Guidelines-2016 (iii) MoEF&CC, GoI Notification S. O. 3611(E) dated 25.07.2018. (iv) Enforcement and Monitoring Guidelines for Sand Mining, MoEF&CC, GoI January, 2020.
Further, it is submitted that the DSR is prepared as per the format prescribed in S. O. 3611 (E) dated 25.07.2018, the details which are given in below:
Page 32 of 47
Sr. Particulars as per Standing order Page No. of No. 3611 DSR.
1. Drainage System with description of 47 Main rivers.
2. Salient Features of important rivers 47 and streams.3. Mineral potential 51 4. Annual Deposition 51 5. Details of Mining Lease 83
6. Details of Royalty in last three years 91
7. Details of production of Minor 91 Minerals All mandatory documents i.e. Form-1M, PFR, DSR and Approved Mining plans were uploaded on the website of the Government of India, Ministry of Environment, Forest and Climate Change along with application for prior Environmental Clearances on 30.11.2021. Further, it is submitted that in all 30 Sand Ghats were kept for auction, out of them, 21 Sand Ghats were auctioned successfully. Total sand available from 21 auctioned sand ghats was 90543 brass however actual sand lifted till 9th June 2022 is 51603 brass. Further, it is submitted that there is no illegal sand mining since approximately only half of the total sand is lifted in entire year. Hence, no loss seems to have been caused to the environment in Akola district due to sand mining of the year 2021-2022.
Further, it is submitted that in 4.1.1 clause of „preparation of District Survey Report‟ of Chapter 4 of Enforcement and Monitoring Guidelines for Sand Mining, January 2020, it is nowhere mentioned that replenishment study should be incorporated in DSR. Therefore sand replenishment study is not mentioned in DSR. However, as per clause (5) of Enforcement and Monitoring Guidelines for Sand Mining, January 2020, „the need for replenishment study for riverbed sand is required in order to nullify the adverse impacts arising due to excessive sand extraction‟. In fact replenishment study of sand is carried out in Akola District. Copy of the replenishment study is attached as Annexure -L. Page 33 of 47 We have gone through the said Annexure -L and find that it contains replenishment rate for Purna River at two sites; replenishment rate for Man river at one side; replenishment rate for Vidrupa river at one site and percentage of the replenishment is shown at these sites to be 26 %, 33%, 24% and 21% respectively. Besides that, for river Purna average replenishment is considered to be 30% for post monsoon calculations. Similarly for river Man, average replenishment is considered to be 20 % for post monsoon calculations and for river Vidrupa, average replenishment is considered to be 20 % for post monsoon calculations. It is also recorded in the said Annexure that „It is concluded that no river has replenishment rate to replenish excavated sand from the river bed‟ We find that there is some typographical error in the text mentioned above. It is beyond our comprehension as to how it was possible to mention that there is no replenishment rate to replenish extracted sand despite the above figures in the said tables. We have already mentioned above the replenishment rate based on the actual calculation.
22. In addition to the consolidated presentation for prior EC, the conditions as per the E & M guidelines (appears to be Enforcement and Monitoring guidelines 2022) as well as compliances of sand replenishment study mentioned on Page No.47- Point No.7, we do not find this replenishment study at the said page. They are found at page No. 2610 to 2615 of the paper book. It is further mentioned that the replenishment study is also mentioned in Environmental Management Plan of every sand ghat and that a copy of the consolidated presentation of Environmental Management Plan by way of example of Virvada Sand Ghat is attached, which we find that at Page No. 2632 to 2633 of the paper book where-in the replenishment rate of each ghat has been given. We find that the Annexure- M is presentation to SEIAA for Environmental Clearances for DSR. We find that the Annexure C-3, which is at Page No. 2073 of the paper book, is the Environmental Management Plan for Sand Ghats at Akola. At page No. 2089 of the paper book, we find a study related to sand Page 34 of 47 replenishment which shows large boulders removed during the scooping of sand will be arranged in the extracted area as per procedure depicted in approved mining plan as per para 2.7 of this document. This will enable to replenish the sand ghat during the monsoon period. Besides that, the study has also been conducted in respect of land use pattern in the buffer zone; anticipated impact; proposed Mitigation Measures etc.
23. The Respondent No.1/ SEIAA has filed rejoinder affidavit dated 10.01.2023 wherein it is submitted that SEAC/SEIAA is the nodal authority to determine the correctness of the EC application at the state level. If the authorities which determine the grant of EC, they themselves do not check the correctness of EC application, they must be held accountable for the same. As the project falls within the schedule of the EIA, significant duty is cast on the SEAC/ SEIAA while determining grant of EC. This Tribunal in O. A. No. 186/2016 in case of Satendra Pandy Vs. Ministry of Environment Forest and Climate Change decided on 13.09.2018, nullified the constitution of DEAC and DEIAA. Therefore, appraisal of the DSR must be carried out by SEAC and forward it to SEIAA for consideration and approval if it meets all the scientific technical requirement. This has been reiterated by the NGT in Pawan Kumar Vs. State of Bihar (2020 SCC OnLine NGT 2848) decided on 14.10.2020 and Hon‟ble Supreme Court in State of Bihar Vs. Pawar Kumar ((2020) 2 SCC 348) decided on 10.11.2021. The Respondent No.1 cannot hold that there is no mention regarding consideration of DSR by SEAC/ SEIAA provided in the EIA Notification 2006. It is submitted that decisions of the Hon‟ble Supreme Court of India shall be treated to be law of the country which provided for DSR to be approved by SEAC/ SEIAA.
24. The Respondent No.2 & 3/ District Collector & District Mining Officer have filed written submission dated 23.04.2023 wherein whatever has been stated in their reply affidavit, has been given in Tabular Form, in order to assist this Tribunal as to the relevant page numbers and annexures, giving position of law clearly.
Page 35 of 47
25. The Respondent No.2 & 3/ District Collector & District Mining Officer have filed reply affidavit dated 19.06.2023 wherein it is submitted that the final DSR which is prepared after following procedure is being placed on record, with its preliminary objection to the effect that the applicant had filed an Appeal challenging 24 ECs granted by SEIAA to the District Mining Officer, Akola, which was found to be not maintainable, which was converted into an original Application, considering the practice & procedure of the National Green Tribunal. The prayer for quashing the ECs cannot be entertained in Original Application (Appeal appears to be wrongly mentioned). The Challenge to the process of granting ECs and their validity cannot be gone into, in the present Original Application. Further, it is submitted that the draft DSR was published on 22.09.2021 where-in Additional Collector, Akola published a Notice in the daily newspaper inviting objections and suggestions from the general public within a period of 30 days. No objection or suggestion was received within the said period and ultimately on 24.11.2021, the DSR was finally published. It pertains to the sand mining or riverbed mining and minerals other than sand mining or riverbed mining. This report has been prepared as per the notifications, guidelines, issued by MoEF. Structure of the Report is as per the applicable Notifications, which are needed to be taken into consideration. Report contains all the requisite details that are made compulsory by various notifications of MoEF, as well various Judgments of this Tribunal, so also of the Hon‟ble Supreme Court of India. Further, it is mentioned that the Collector, Akola had appointed a private agency namely Enviro Techno Consult Pvt. Ltd., an Accredited Environment Consultant. The said presentation did contain replenishment study. All these aspects are considered by SEIAA and thereafter it has taken a conscious decision to grant ECs. The said presentation is annexed as EXHIBIT „R-2‟. Lastly it is further mentioned that the ECs which have been challenged, the said relief has become infructuous because the period of validity of ECs has expired on 30.09.2022 Page 36 of 47
26. The Applicant has filed rejoinder affidavit dated 19.07.2023 wherein he has reiterated the same facts which have already been mentioned by us hereinabove. But in addition to that, he further has supplemented the facts that in O.A. No. 30 of 2022 (WZ) in the case of Gaurav Ashok Dhote Vs. Mining Officer, Nagpur & Ors, it has been held that mining can only be done by the Project Proponent in whose name EC has been granted. Relevant para is quoted below:
"30. We find from the record that only one sand block was in the name of M/sAshtha Associates and only one lease regarding the sand mining was issued by the District Collector, Nagpur in the name of M/s. Ashtha Associates, which we find defective on account of inappropriate EC as the same is not found to be in his name rather the same is found to be in the name of District Mining Officer, it will be treated that he excavated the sand without any valid EC. Therefore, the total account for which the sand has been excavated by him i.e. 2800 brass shall be recoverable from him."
A copy of the said judgment is annexed as Annexure A-3. No proper survey was carried out of the mines that were auctioned before beginning of the mining operations. Hence the sand lifted from these 21 sites, as admitted to by Respondent Nos.2 & 3 has to be held illegal. On the website of Respondent No.2, total sand production has been put forth as 90543 Brass. Contradictory plea has been taken by the Respondent No.2 & 3 by saying that on the one hand draft DSR was submitted to SEAC and SEIAA, on the other Respondent No.1 has admitted that SEAC and SEIAA have no mandate to approve the DSR. Accordingly, the Respondent No.1, the approving authority for DSR is the Department of Geology and Mines, Government of Maharashtra. It is a matter of record that DSR has not been appraised by SEAC/ SEIAA. There is a mandatory requirement of appraisal of District Survey Report by the said authority as has been laid down in Pawan Kumar Vs. State of Bihar, 2020 SCC OnLine NGT 2848 (Supra) by the Hon‟ble Supreme Court in State of Bihar and others Vs. Pawar Kumar and Others, (2020) 2 SCC 348. This Tribunal in O. A. No. 221 of 2021, Dheerendra Vs. State of UP has held the requirement of appraisal of District Survey Report by SEAC/ SEIAA as a mandatory Page 37 of 47 criterion, even though ECs ranged from 2018-2020, because, the constitution of DEAC/DEIAA was quashed by Satender Pandey's judgment, hence any DSR prepared by erstwhile DEAC/ DEIAA would automatically become void and would be competent only with the approval of SEAC/SEIAA. It is urged by the Respondent No.2 & 3 that the judgment of the Hon‟ble Supreme Court in the matter of State of Bihar and others Vs. Pawarn Kumar and others, (2022) 2 SCC 348 was delivered on 22.11.2022 while the DSR was uploaded on 22.09.2021, hence the judgment relied upon would not be applicable in the facts of the case in hand. In this regard, it is submitted that the judgment of the Hon‟ble Supreme Court was a reiteration of earlier judgments of the NGT in Satendra Pandy Vs. Union of India & Ors (Supra) and Pawan Kumar Vs. State of Bihar (Supra). This has been further highlighted by the judgment passed by the NGT in O.A. No. 221 of 2021 in Dheerendera Vs. State of UP, on 04.07.2022 wherein the Principal Bench has taken a consistent view of appraisal of District Survey Report by SEIAA. The extract of the relevant portion of the judgment is quoted hereinbelow:
"It is not disputed that there is no replenishment study. Cluster procedure has not been followed as per procedure laid down by the MoEF&CC in Notification dated 15.01.2016. In two cases the PPs do not have requisite CTO while in the remaining illegal extraction of ground water has been observed. Since requirement of DSR and replenishment studies are laid down by the MoEF&CC under the EMGSM, 2020 in the light of judgment of the Hon‟ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors. read with orders of this Tribunal dated 14.10.2020 in O.A. No. 40/2020/EZ with OA No. 57/2020.EZ, Pawan Kumar Vs. State of Bihar & Ors. and earlier orders, reiterated by the Hon‟ble Supreme Court vide recent judgment dated 10.11.2021 in Civil Appeal No. 3661-3662 of 2020, State of Bihar & Ors. Vs. Pawar Kumar & Ors., we are of opinion that ECs/ other permissions granted by SEIAA need to be revisited. This view has been taken by this Tribunal repeatedly, including in a rent order dated 01.07.2022 in O. A. No. 319 of 2022, Dileep Singh Vs. State of Uttar Pradesh & Ors."
Copy of the said judgment is annexed as Annexure A-4 Further, it is submitted that this Tribunal in O. A. No. 38 of 2022 in Ajit Kumar Vs. State of Madhya Pradesh & Ors. (CZ) decided on Page 38 of 47 17.10.2022 where the question about appraisal of the DSR rules, held in para 45 as is follows:
" (i) Question No.1: Requirement of DSR and its finality:
Answer: The Sustainable Sand Mining Management Guideline, 2016 & 2020 provides for the preparation of DSR and MoEF has issued necessary directions. It is settled Law and District Survey Report for Sand Mining shall be prepared before the auction/eauction/grant of mining lease by the Mining Department or department dealing with the mining activities in the respective States. DSR is to be approved at the level of SEIAA with the help of SEAC. The DSR becomes final on the date when it is approved by the SEIAA. With regard to the DSR relating to the district Raisen it was approved on 23.05.2022. Thus, the valid DSR/approved DSR came into existence on 23.05.2022 district Raisen, the question is replied accordingly.
(ii) Question No.2 Sanctity of NIT in absence of DSR or DSR duly approved by SEIAA.
Answer: In view of the discussion made above and in view of Prabhat Mohan Pandey case(Supra) and the direction issued in the Pawar Kumar Case, the action of NIT in absence of valid DSR is in violation of Sand Mining Guidelines issued in 2016 & 2020, it becomes final only after the approval of the SEIAA. Any NIT before the date of approved of DSR by SEIAA is in contravention of the Rules, Guidelines and the direction issued by the Hon‟ble Supreme Court. The question is replied accordingly."
Copy of the said judgment is annexed as Annexure- A-5 Further, it is submitted that the Respondent No.2 and No.3 have admitted that no replenishment study has been carried out and regarding this, reference is made of Para-18 of the counter reply at Page No. 1843 to 1845. Drawing our attention to Annexure L , learned counsel has proceeded to argue that replenishment study was done, it is submitted that Respondent No.2 and 3 admit that no river has replenishment rate to replenish excavated sand from the river bed, excess excavation will impact groundwater affecting bank erosion and stability of banks and that there is no certainty that excavated sand can replenish. It has further been said that since the replenishment rate is not certain considering the data available, as rivers in the district are unstable, this poses a fundamental question; whether sand mining itself should be permitted in an ecologically fragile area such as Akola, Maharashtra ? the replenishment study has not Page 39 of 47 been carried out in accordance with Enforcement and Monitoring Guidelines, 2020. The data presented in Annexure L lays the fact that only two surveys have been mentioned in the preparation of the Replenishment Study; one in May and the other in October. It is further submitted that guidelines state that four surveys have to be carried out initially and subsequently three surveys can be carried out. Relevant portion of the E & M Guidelines, 2020 is as follows:
"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 XXXX For the subsequent years, there will be a requirement of only three surveys.
XXXX"
Further, it is submitted that it is apparent that not even three full surveys have been carried out while as per the guidelines while four surveys were required to be conducted. Even in that limited survey, it is pointed out that sand must not be excavated on account of no possibility of replenishment. Yet, Respondents have carried out sand mining. Further, it is submitted that the draft DSR, in the absence of a fresh study for financial year 2021-2022 is erroneous. A fresh survey was required to be done in order to ensure that there was correct demarcation of ghats and corresponding values of sand. Yet, very cleverly, an amendment was included by adding and subtracting survey numbers from one sand ghat to the other. The new proposed amendment of sand ghats contains values which are inconsistent with those in the District Survey Report. The Respondent No.2 and 3 have admitted that quantity, far in excess of that was mentioned in the DSR, has already been mined and for this, example of Virwada has been quoted. EC was granted only for 3049 Brass, while more than 3804 Brass has been lifted till June, 2022, the details of which are available at Page No. 1866 to 1867 of the paper book. It is further submitted that in all the auctioned sites, survey numbers are inconsistent with those given in the District Survey Report and quantities Page 40 of 47 are far in excess to those that are permissible according to DSR. This would primarily indicate that no appraisal had been carried out by the SEAC/SEIAA of the DSR. Since replenishment was not possible, sand lifting had been illegally carried out. Further, it is mentioned that a list of mining leases in the District with location, area and period of validity were required to be mentioned in DSR as specified in the SSMG-2016, but the same is not found to be there in the present case. It is also mentioned that no amendment as proposed can be outside the main text of the DSR. Hence, the entire DSR is liable to be declared illegal.
27. The Applicant has filed written submission dated 20.07.2023, which also contains the same facts which have already been narrated by us in the earlier affidavit by the Applicant.
28. On the basis of the above pleadings and arguments made before us by the learned counsel for the parties, following issues are framed for being decided by us in this Original Application.
I. Whether the DSR required approval of the SEIAA? II. Whether the quantity of sand to be mined provided under DSR and the quantities mentioned in ECs, are different ?
Findings:
29. As to Issue No. I As per this issue, we have to decide as to whether the District Survey Report (DSR) required approval of the SEIAA ?. In this regard, learned counsel for the Applicant has mainly argued that the DSR which is prepared for the District Akola, by the Respondent No.2 & 3 has not been got approved from SEAC / SEIAA which was required to be done in accordance with the law laid down in State of Bihar Vs. Pawan Kumar (cited by us above). Further, he has relied upon Appeal No. 25/2021 to 27/2021(CZ) Prabhat Mohan Pandey Vs. MP SEIAA decided on 22.02.2022 by the Principal Bench of this Tribunal where-in while rendering the judgment and considering Issue No. 9 & 10 following is held: Page 41 of 47 "Issue No. 9, 10
34. The applicability of the law laid down by the Hon‟ble Supreme Court of India in State of Bihar Vs. Pawan Kumar.
We have gone through the orders and directions passed by the Hon‟ble Supreme Court of India vide order dated 10 th November, 2021 in Civil Appeal No. 3661-3662 of 2020 in State of Bihar Vs. Pawan Kumar & Ors, where in the case of Bihar, certain directions were issued and substituted with reference to preparation of DSR. We deem it appropriate that the guidelines and directions issued by the Hon‟ble Supreme Court of India vide order referred above are fully applicable in the present matter and State authorities are directed to act in accordance with direction issuing by the Apex Court till the finalization of the DSR. In view of the above reference and in light of the directions issued in Goa Foundation case and the guidelines issued by the MoEF& CC in 2016, 2018 and 2020 referred above, the respondents, the State Authorities and the Mining Department are bound to prepare a District Survey Report."
Having drawn our attention to above, it is vehemently argued by the learned counsel that the Principal Bench of this Tribunal also relied upon the judgment of the Hon‟ble Apex Court delivered in State of Bihar Vs. Pawar Kumar (Supra) while considering the above appeals, where-in challenge was made by the State of MP to the orders granting EC or transfer of EC in violation of the procedure established by law and that while transferring the EC, the provisions under Clause XI of EIA Notification 2006, were not followed. In this judgment the Tribunal has clearly directed that the judgment of Hon‟ble Supreme Court in State of Bihar Vs. Pawar Kumar (Supra) was fully applicable and the State Authorities were directed to act in accordance with the direction issued in that case by the Hon‟ble Supreme Court for the finalization of the DSR.
At this stage we made a query to the learned counsel for the applicant that when this Tribunal has dealt with the matter which pertained to the State of MP and the matter which was dealt with by the Hon‟ble Supreme Court in Pawan Kumar's case related to State of Bihar, then how would it be possible by us to hold that this position of law should be followed all across the country. To this, the learned Page 42 of 47 counsel for the Applicant replied that when the Hon‟ble Supreme Court has made the position of law clear in respect of State of Bihar, which has also been reiterated and followed by Principal Bench of this Tribunal in Prabhat Mohan Pandy Vs. MP. SEIAA, it should be treated applicable across India. The learned counsel for the Applicant has also drawn our attention to the judgment of the Central Bench of this Tribunal delivered on 17.10.2022 in Ajit Kumar Vs. State of Madhya Pradesh & ors. where-in in Para 45 following is held:
i. "Question No.1 : Requirement of DSR and its finality.
Answer: The Sustainable sand Mining Management Guideline 2016 & 2020 provides for the preparation of DSR and MoEF has issued necessary directions. It is settled law that District Survey Report for Sand Mining shall be prepared before the Auction/e-auction/grant of mining lease by the Mining Department or department dealing with the mining activities in the respective States. DSR is to be approved at the level of SEIAA with the help of SEAC. The DSR becomes final on the date when it is approved by the SEIAA. With regard to the DSR relating to the District Raisen it was approved on 23.05.2022. Thus, the valid DSR/approved DSR came into existence on
23.05.2022 district Raisen, the question is replied accordingly"
Having drawn our attention to the above extract of the said judgment, it is argued that even in this judgment, Central Bench of this Tribunal has held that the DSR is required to be approved by the SEIAA before it‟s being treated to be final.
Thereafter, the learned counsel for the Applicant drew our attention to the Page Nos. 2557 to 2558 of the paper book which is part of the DSR, where-in it is recorded that the conclusion was drawn that there was no replenishment rate to replenish excavated sand from the river bed and that as the replenishment is not certain considering the data available, as the rivers bed in the districts are unstable, mining plan could not be prepared for five years and hence as per EIA Notification 2006 environmental clearance is accorded as per year- wise production. Based on this statement, which is part of the DSR, it is argued that it is quite evident that the authorities, who finalised the DSR knew this fact that there was no replenishment possible of the sand excavated from the river Page 43 of 47 bed and yet the DSR has been finalized, though it was necessary that the replenishment must happen in an area where the said sand mining is permitted.
At this very stage we find that this argument of the learned counsel for the applicant appears to be erroneous because at Page Nos. 2556 to 2558 of the paper book, the study of replenishment is provided regarding replenishment rate for Purna River at two sites and that of Man river and Vidrupa River at one site each, regarding which already we have given our opinion that the statement made in the said report appears to be typographical error because the said figure of replenishment mentioned at above mentioned pages would indicate that replenishment study was conducted which did show that there was replenishment happening in these rivers.
The learned counsel for the Applicant has also argued that the DEIAA is not a competent authority for finalization of the DSR and for this he has relied upon the judgment of this Tribunal delivered on 13.09.2018 in Satendra Pandey Vs. Union of India & others (Supra). We are not in agreement with above argument of the learned counsel for the Applicant because in the Satendra Pandey's case, the question involved was whether DEIAA was competent to grant EC. It was held that DEIAA was not competent to grant EC, rather it is the SEIAA which is competent authority in this regard. It would be appropriate for us to clarify that in Appendix- X Para-7 (iii) (a) pertaining to procedure for preparation of District Survey Report, it is clearly laid down that "the DSR shall be prepared for each minor mineral in the district separately and its draft shall be placed in the public domain by keeping its copy in Collectorate and posting it on district‟s website for 21 days. The comments received shall be considered and if found fit, shall be incorporated in the report to be finalized within six months by the DEIAA."
The above provision is very clear that DEIAA has been given power to finalize the DSR, but subsequent to the judgment of the Hon‟ble Supreme Page 44 of 47 Court in Pawan Kumar's case (Supra), now the position of law is that the DSR shall have to be got approved from the SEIAA before attaining finality which is being pressed by the learned counsel for the Applicant. As of now, this would be treated to be correct position of law by us, particularly in view of the judgment of Hon‟ble Supreme Court in Pawan Kumar's case which has been followed by the other benches of this Tribunal in above mentioned different cases cited by the applicant. We find that the said position of law should be uniform across India but for that the MoEF&CC needs to bring appropriate Notification directing all the States that whenever DSR is to be finalized, the same should be got approved from SEIAA of the concerned State, so that discrepancy does not arise in this regard and it will minimize future litigation as well. In rebuttal, it has been argued that despite the judgment of Hon‟ble Apex Court in Pawan Kumar's case dated 10.11.2021, there is no Notification / Guidelines issued by the MoEF&CC to the effect that the DSR prepared needs to be got approved from the SEIAA, therefore, this procedure was not adopted by them. However, it is highlighted by the learned counsel for the Respondents that the DSR after having been prepared was placed before the SEIAA, however no formal approval was taken. We are of the view that it was necessary to obtain formal approval of DSR in view of the position of law prevailing on the date when the ECs were issued on 13.01.2022, which is the date when judgment of Hon‟ble Supreme Court in Pawan Kumar's case had already been delivered. In view of the above discussion we are of the view that in the present case, the DSR in question was needed to be approved by the SEIAA. This issue is decided accordingly.
30. As to Issue No. II As per this issue, we have to decide as to whether the quantity of sand to be mined provided under DSR and the quantities mentioned in ECs, are different ? In this regard, we find that at Para-18 of the Application the quantity of the sand to be mined is mentioned as per the EC in column Page 45 of 47 No. 4 of the table is correct when compared with the entry of these figures in the EC letters issued while the quantity mentioned by the Applicant in column No.5 of the same para pertaining to the figures shown in DSR, the same is found to be incorrect when compared with draft DSR at Page Nos. 2044 to 2046. We find that the applicant appears to have taken the figures in Colum No.5 pertaining to DSR, from the existing mining leases which are at Page No. 1964 to 1969 of the paper book relating to 72 ghats, while he should have mentioned these figures in DSR Colum from the DSR which is annexed at Page Nos. 2044 to 2046 of the paper book, wherein the position is given of potential mining leases (existing & proposed). We find that in the table given by the Applicant of the sand ghats at Para-18 at Serial No.1 for Takwada Sand Ghat is shown to have figure of 991 as per the DSR but when we cross checked it we found that the same is not matching with the figure given of the Takwada Sand Ghat at Serial No. 29 at page 2046 of the paper book because it contains figure 4346 which is same as given in EC. With respect to sand mine Kolsara-1 Sand Ghat, Purna river in Para- 18 of Application in the same column, no data is mentioned, while at Serial No. 19 at Page No. 2045 in draft DSR, we find the figure of 3109 which is again the same which has been given in EC. With respect to Wadad-Khu Sand Ghat at serial No.3 in Para-18 of the application figure in the Colum of District Survey Report is recorded 3381 while in cross checking, we found in DSR the same figure recorded as at Serial No.1 to be 5963 which is the same as mentioned in EC.
We have tried to compare these figures regarding some of the sand ghats and found these discrepancies to be there which is indicative of the fact that the applicant has been very careless while providing these facts before this Tribunal.
It would also be pertinent to mention here that the applicant appears to have hurriedly gone for filing an appeal which had to be subsequently got converted into O.A. Earlier he had filed an appeal Page 46 of 47 seeking quashing of the EC, which, in fact, would have been the right prayer because it is evident that for quashing of EC, an appeal only can be filed. But we find that in order to bring the relief under limitation, he has chosen to get his appeal converted into O.A. By the time this application was brought before us, applicant had argued that there was no final DSR on record and his submissions were based on draft DSR, although as per affidavit of DMO DSR had been finalized by 24.11.2021, while appeal was filed on 11.05.2022, which was later on got converted into O.A.. It is quite evident that the DSR was already fianlized prior to filing the Appeal. There is no reason disclosed as to why appellant preferred the appeal and thereafter got it converted into O.A. without bringing the final DSR on record. Therefore, in view of above analysis, we decide issue No. II in the negative. We find that there is no difference in the quantity of sand to be mined as mentioned in EC and in the DSR. This issue is decided accordingly.
31. We are also of the view that since the ECs have expired on 30.09.2022, no mining is possible to be done under those ECs. On this count, this application appears to have become infructuous and is accordingly held to be infructuous
32. 1With above observation and directions, we dispose of this Application. All the pending I.As, if any, stand disposed of. No order as to costs Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM August 3, 2023.
Original Application No. 78/2022 Sachin J.
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