National Green Tribunal
Jagdish Meena vs State Of Rajasthan on 26 April, 2022
Item No. 2
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 74/2019 (CZ)
(I.A. No. 113/2019)
Jagdish Meena Applicant(s)
Versus
State of Rajasthan & Ors. Respondent(s)
Date of Hearing: 26.04.2022
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Mr. Sachin K. Verma, Adv.
For Respondent(s) : Mr. Rohit Sharma, Adv.
Mr. Ashwani Chobisa, Adv.
ORDER
1. The issue of illegal mining has been raised in this application and the matter was taken up by this Tribunal on 23.01.2022 and notices were issued to the respondents to file their reply and action taken by the State for control of illegal mining in Jaipur (Rajasthan).
2. Learned counsel appearing for the applicant has submitted that the issue was raised in Original Application no. 104/2015(CZ) titled Jagdish Meena Vs. State of Rajasthan & Ors. and this Tribunal directed as follows:-
i. Directed the State to take immediate steps in accordance with law to ensure that no illegal mining is carried out. ii. Directed Principal Secretary (Mines) that inquiry into the matter be conducted and after full investigation in the matter the persons responsible for not having prevented this activity should be dealt with in accordance with law.
iii. Directed the State to come with the restoration plan including the plan for plantation of trees in the area atleast in the backdrop and at the foot of the hills.1
iv. If Jaipur Development Authority needs to develop the entire area, which has been mined and excavated, for residential purposes the Jaipur Development Authority would carry out such plantation over atleast 50% of the area.
v. For development of the area Jaipur Development Authority would require to take EC from SEIAA as the total area exceeds more than 200 hectares.
vi. The State shall continue to deploy its force for taking action to prevent any illegal activity in the area at all vital points. vii. Till further orders no further development of the area shall take place over the land i.e. till the restoration plan is submitted before us with details of financial implication and time schedule.
viii. The development and restoration plan for the same shall also be submitted by way of compliance and preventive measures which have been deployed shall be continued remain in force till further orders no mining leases shall be granted in the area.‖
3. After final disposal of the Original Application on 15.03.2017, a case of illegal mining was reported by the Mining Engineer, which was registered as FIR no.
129/2019 dated 29.01.2019 against an unknown person regarding the non-
compliance of the order and illegal mining being transported through the vehicles/tractors from Hardhayanpura Hills. The illegal mining was also reported and published on 24.09.2019 and 26.09.2019 by residents to Daily Newspaper, Rajasthan Patrika.
4. On the basis of above, learned counsel for the applicant has submitted that the State and its instrumentalities and authorities have failed to check and prevent the illegal mining and transportation of illegal mining which is continuously being done by the mafias damaging the environment and ecology.
5. Thus, this application has been filed with the prayer that :-
i. ―The Tribunal may pass an order directing closure of all illegal mining operations in hilly region of Haradi, Kunthada revenue land bearing khasra number 236, Hardhyanpura Hills revenue land bearing khasra numbers 110,111 & 112, Mangarh Khokhawala revenue land bearing khasra number 1, Dayarampura Hills revenue land bearing khasra number 1 situated at villages Dantali revenue land bearing khasra numbers 2 821,902,903, 904, 905, 906 and Siroli revenue land bearing khasra numbers 442, 442/3364, 1336 falling within Tehsil Bassi, Tehsil Siroli and Tehsit Sanganer district Jaipur with immediate effect.
ii. The Tribunal may pass direction to impose environmental compensation upon the persons who are directly or indirectly involved in illegal mining and/or responsible for the illegal mining, resulted in loss to the environment which may be utilized for the restoration of the subjective site.
iii. The Tribunal may call the status report of plantations at 100 Hectares of land at the subjective site as per the direction of the Tribunal.
iv. The Tribunal may direct the Respondents to identify those persons who are directly or indirectly involved in illegal mining and/or responsible for the illegal mining in the subjective area and may recover environmental compensation from them. v. The Tribunal may kindly pass direction to confiscate the heavy machinery, dumpers and equipments used and utilized for illegal mining at the subjective site.
vi. The Tribunal may pass an order to initiate civil and/or criminal proceeding against private persons directly or indirectly involved in illegal mining and/or responsible for the illegal mining causing loss to the environment under section 15 of Environment Protection Act, 1986 (for short "Act of 1986"), an order to initiate civil and/or criminal proceeding against Government officials involved in illegal mining.
vii. The Tribunal may pass appropriate order to comply orders and decision dated 22.02.2016, 16.05.2016, 09.08.2016, 04.11.2016, 03.01.2017, 20.02.2017 & 15.03.2017 passed by Tribunal in O.A. No. 104 /2015 (CZ) in its letter and spirit.‖
6. Notices were issued and in response thereof, Sub-Divisional Magistrate, Bassi, Jaipur, Rajasthan has submitted an affidavit with the fact that :-
i. ―That this Hon'ble Tribunal vide order dated 23.01.2020 had directed the Respondent No. 2 and 4 to ensure that no illegal mining operations takes place at the area in question. ii. That it is most respectfully submitted before this Hon'ble Tribunal that the said area fails within the domain of Jaipur Development Authority as well as some area falls within the revenue Department administered under the authority of the District Collector. iii. That thereafter the District Collector Jaipur in furtherance to order dated 23.01.2020 passed by this Hon'ble Tribunal had called for a 3 meeting for ensuring compliance of the order of the Hon'ble Tribunal. The meeting consisted of Mining Engineer, Jaipur, Deputy Commissioner (Zone 13), JDA, Assistant Commissioner of police, Bassi, Jaipur and Sub Divisional Magistrate, Jaipur (Bassi).
iv. That thereafter a joint meeting was convened and minutes of meeting dated 12.02.2020 was prepared in which it was decided that a joint action will be taken on behalf of Revenue Department, Mining Department and Jaipur Development Authority for closure of illegal mining activities, if any, being carried out in the aforementioned area, in compliance of the order of the Hon'ble Tribunal dated 23.01.2020.
v. That it is most respectfully submitted that a Factual report in compliance of the order of this Hon'ble Tribunal was prepared according to which a joint action was carried out on 19.02.2020 at Tehsil Bassi which comprises of Villages namely Hardhyanpura, Maangadh Khokhovala, Dayarampura, Kanota and Hardi and on 20.02.2020 at Tehsil Sanganer which comprises of villages Dantali and siroli. The Status Report dated 22.02.2020 prepared in this regard.
vi. That the authorities have taken appropriate measures and that 3 Tractor Trolleys have been confiscated and FIR No. 146/2020 and 147/2020 has been registered against certain persons found to be carrying illegal mining activities at the aforementioned area. FIR No. 147/2020 has been registered against one Krishna Bairwa S/o Shri Chhitarmal R/o Village Lakhesara, Tehsil Sanganer (Jaipur) and the Vehicle seized bears No. RJ 14 RB 8409. Similarly FIR No. 146/2020 has been registered against 1 unknown person who was in possession of Tractor with no registration no. bearing chasis No. MBNAAAEALKJK04052 and the said Tractor has been seized, and second against Ram Rakh Yogi S/o Shri Mahadev yogi R/o Khatambar, Thana Lalsot District Dausa who was found to be in possession of bearing No. RJ 14 RD 5216.‖
7. Respondent no. 4 Mining Department, Jaipur, Rajasthan has submitted that in compliance of the order passed by this Tribunal on 23.01.2022, the District Collector, Jaipur called a meeting for ensuring compliance of the order and to control and check the illegal mining and directed all concerned to take necessary legal action against the person involved in the illegal mining. The joint action was carried out by the authorities in the concerned villagers and the entire illegal mining activities were stopped.
48. It has further been submitted that the matters of illegal mining was registered to the police station for taking necessary prosecution case and the vehicles involved in transportation of illegal mining were seized.
9. Respondent no. 3 Jaipur Development Authority has submitted the reply as follows :-
―2. That, with respect to Para 3.1 of the original application it is submitted that the Petitioner has alleged that at Khasra No. 110, 111 and 112 of the Gram Hardayanpura Tehsil Bassi, Khasra No. 236 of Gram Kanota, Khasra No. 1 of Gram Mangadh Khokawala, Khasra No. 1 of Gram Dayarampura, Khasra No. 821, 902,903,904,905 and 906 of Gram Datali Tehsil Sanganere and Khasra No. 442, 442/3364, 1336 of Gram Seroli, total area admeasuring approx 200 hectare illegal mining is going on but when the area was inspected by the officers of Jaipur Development Authority on 19.02.2020 and 20.02.2020, the illegal mining was not found to be in operation.
11. As per the report submitted before the Hon'ble Tribunal in the previous original application, the entry in the mining pits was closed down by constructing trenches and fencing of the area so as to block the entrance. The work of back-felling of the land and carrying out plantation of the same is yet to be carried out and for its entire activity a financial sanction of Rs. 1,80,00,000/- (Rupees One Crore Eighty Lakhs) has already been issued by JDA.‖ Additional Submission ―1. That the answering respondent has duly complied with the orders passed by Hon'ble Tribunal time to time and the area in question has been duly inspected by the answering respondent. To restrict entry into the mining area at continuous ditch fencing has been constructed and wire fencing has also been done close the area. In order to fill back the dugged pits, continuous contour trench, contour furrows and earthen check dams has been constructed and an amount of Rs. One Crore Eighty Lakh only has already been sanctioned on 28.11.2016 to execute this work and a tender for the same has already been published and the received tender rate the work order for the amount 10394288.00 has been issued. As on today Rs. 84.75 lakh expenditure has been accrued.
2. That, on 19.02.2020 and 20.02.2020 a joint inspection was conducted wherein no illegal mining activity was found on the spot and the detailed report of the same has already been placed on the record by the Mining Engineer.‖ 5
10. The status has submitted by the Jaipur Development Authority dated 23.06.2020 are as follows :-
1. ―That a meeting was convened under the chairmanship of Superintendent of Police, JDA to ensure that there is no illegal mining going on at the land belonging to JDA situated at gram dantali Khasra No. 821, 902,903, 904, 905 and 906 total rakba 61.71 hectares and gram Siroli bearing khasra No 442, 4432/3366, 1336 total rakba 15.71 hectares in terms of the order passed by the Hon'ble Tribunal. An order dated 18.06.2020 was issued pursuant to the aforementioned meeting whereby the Tehsildar Zone 9, Enforcement officer Zone 9 along with mining and police officials went to the site in question. The patwati halka danili tehsil sanganer was also present at the site and at the time of inspection no mining activities were found to be taking place and infact no machinery, Vehicle, tractor, trolley or dumper were found at the spot. It becomes significant to mention here that deep pits were dug at the link road toward the mined area.
2. That pursuant to the order dated 16th June 2020 passed by the Hon'ble Tribunal a meeting was convened under the chairmanship of SP JDA to prevent illegal mining going at the Pahadi Area of Gram Hardayanpura, dayarampura, mangadhkhokawala and gram kanota and in the said meeting Dy. Commissioner Zone 13, tehsildar 13, Enforcement officer zone 13, ME, Jaipur, SDM Bassi and Thana Officer Kanota participated. It was decided in the meeting that the entire illegal mining activities needs to be stopped in a collective manner and it was decided that a team of all the above departments be constituted in order to inspect the area in question on different timings.
4. That letters have been issued to the Collector Jaipur and SP IDA to establish a check post at the area where the illegal mining have taken place. Similar letters have been issued previously to the police Commissioners Office Jaipur (city) (E).
5. That while the aforementioned team was inspecting the area in question, 3 tractors along with trolley constricting of mineral were caught at site and FIR No. 330 and 331 were registered on 17th June 2020 and FIR No. 338 was registered on 19th June 2020 at police Station Kanota.6
8. That the team constituted observed that on a certain Khatidari land, certain quantity of mineral was found and the information of the same was furnished to the mining Department. The Mining Department have processed the complaint to be registered as an FIR and the same is pending consideration before the police Authorities at police Station Kanota.
9. That apart from the above under the guidance of the Horticulture department JAD an agency of Security of the officer namely gaurav, sainani welfare co-operative Ltd. Jaipur had filed a complaint on 14.06.2020 before the police station Shivdaspura which is pending consideration before the concerned police station.
10. That during the upcoming monsoon period plantation shall be done by planting trees of various species by way of notching and under the greenwood scheme plants will be planted and conserved.‖
11. The Commissioner, Jaipur Development Authority filed an affidavit on 13.07.2020 and submitted the status report as follows :-
―3. That pursuant to the orders passed by the Hon'ble Tribunal on the last date of hearing, a meeting was conveved under the chairmanship of the nodal officer and additional Commissioner (LPC) JDA on 03.07.2020 which was attended by the following officers, who have been given their respective tasks to be executed:
Sr. No. Name of the Officer Post of the Officer
1. Dr. Girish Parashar Additional Commissioner (LPC)
2. Sh. Raghuvir Saini Chief Controller-Enforcement
3. Sh. Lokesh Kumar Gutam Dy. Commissioner, Zone 13
4. Sh. Mahesh Tiwari Senior Horticulturist
5. Sh. Ghanshayam Sharma Subdivision Officer Sanganer
6. Sh. Ram Kumar Sharma Subdivision Officer Bassi
7. Sh. Surendra Sankhal Assistant Commissioner Police, Bassi
8. Sh. Mukesh Sharma Enforcement Officer Zone 09
9. Sh. Anil Kumar Sharma Enforcement Officer Zone 13
10. Sh. Indraj Mordiya Thana Incharge, Shivdaspura
11. Sh. Shiv Kumar Bhardwaj Thana Incharge, Bassi
12. Sh. Anil Gupta Mining Officer
13. Sh. Rajesh Sharma DEC-IV
14. Sh. Anant Kumar Director (Law)
15. Sh. Sharad Tiwari Tehsildar Zone - 13
16. Sh. Ratan Singh Nathawat Revenue Inspector Zone 13 7
4. That in order to quantify the loss caused to the environment from the year 2016 till date, more specifically in the areas of village Dantali and Siroli of tehsil Sanganer falling in Zone 9 and villages hardayanpura, kanota, mangadh khokhavala, dayarampura of teshil bassi falling in Zone 13, a request was made by the Senior Horticulturist, JDA to Shri Rajeev Goyal, Professor, Civil Engineering Department, Malaviya National Institute of Technology, Jaipur.
5. That in response to the above letter, the acceptance letter was sent by Shri Rohit Goyal, Prof. Civil, Engg., MNIT, Jaipur on 11.07.2020. Immediately after receipt of the report from MNIT, reference shall be made to the ME, Jaipur for Initiate recovery of the amount of damages from the illegal miners in accordance with the provisions of Rajasthan Minor Mineral Concession Rules, 2017.
6. That an amount of Rs. 84,75,000/- (Rupees Eighty Four Lakhs Seventy Five Thousand) has already been spent by the Jaipur Development Authority towards restoration, and an additional amount of Rs. 30,00,000/- (Rupees Thirty Lakh) is likely to be spent in future, thereby a total amount spent and yet to be spent towards restoration of the area in question, by JDA is 114.75 Lakhs and for recovery of this amount, a request has been sent to the Mining Engineer, Jaipur, who is the competent authority for recovery under RMMCR 2017.‖
12. Jaipur Development Authority has further submitted that remedial action for plantation and others maintenance has been taken as follows :-
―1. That pursuant to the orders passed by the Hon'ble Tribunal, JDA had taken administrative as well as Financial approval for an amount of Rs. 180 Lakhs vide order dated 28.11.2016. In view of the above administrative and financial approval the Horticulture Department of JDA issued tender after technical approval of Rs. 63,24,800 for village dantali siroli and Rs. 1,05,82,205/- for villages kanota, hardhyanpura, dayarampura, mangarh khokavala. On basis of the successful bidding, the successful bidder was given the tender for a period between 06.03.2017 to 05.03.2020 to carry out the work of plantation and its maintenance and the work order for Dantali Siroli was issued for Rs. 36,51,307/- and the work order for villages kanota, hardhyanpura, dayarampura, mangarh khokavala was issued for Rs. 6,74,291/-. It becomes pertinent to mention here that by 5th March 2020 a total amount of Rs 29.87 Lakhs has been utilized for Development and conservation of village Dantali Siroli and Rs. 54.88 Lakhs for villages kanota hardhyanpura, dayarampura, 8 mangarh khokavala and at present the time period of the work order has expired.
2. That in the areas affected due to illegal mining, the trees such as churail, desi babul, karanj, bair, etc. are existing and some illegal miners tried to damage the fencing in order to carry out illegal mining activities. The Horticulture Department after duly communicating to the Enforcement Department of JDA has taken continuous steps to stop the illegal mining activities and in order to prevent any illegal mining, the department by use of JCB has demolished the link roads in order to block the transportation of mineral. At present JDA has deployed 10 personnel in order to ensure prevention of illegal mining, protection of forest and for patrolling of the area.
3. That in order to prevent illegal mining in the Land belonging to JDA forming part of Revenue village dantali bearing Khasra No. 821, 902, 903, 904, 905, 906 total rakba 61.74 hectares and village siroli bearing khasra No. 442, 442/3366, 1336 total rakba 15.71 hectare, a letter dated 05.03.2020 has been written to the Police Commissioner, Jaipur and district collector Jaipur for establishment of check post and for vigilance by the mining department. Copy of the letters dated 05.03.2020 are annexed. The office of zone 9 JDA carried out spot inspection of the area in question, the photos of which are annexed herewith. No illegal mining was found to be taking place at the area in question at the time of inspection.
4. That on 09.06.2020 while the area was being patrolled by the junior engineer of JDA, it was observed that 1 JCB bearing No. RJ 14 EA 2900 and 1 dumper bearing No. RJ 14 GF 5721 were found at Khasra No. 821 and were carrying out illegal mining activities. The JCB and dumper were seized by the competent officers and an FIR bearing No. 241 dated 09.06.2020 has been registered against the concerned persons. The Copy of FIR is annexed herewith. Therefore, the concerned officers of JDA have been carrying out routine inspections of the area in question and ensuring no illegal mining takes places and in case of illegal mining having found, appropriate actions have been taken against them.
Sr. Village Name Khasra No. Rakba Kism of Land No. (Hec) 1 Hardayanpura 110 39.1236 Gair Mumkin Pahad 111 1.0369 Gair Mumkin Pahad 112 17.0581 Charagah 2 Dayarampura 1 38.7190 Gair Mumkin Pahad 3 Kanota 236 22.1667 Gair Mumkin Pahad 9 4 Mangarh Khokhawala 1 50.428 Gair Mumkin Pahad
5. That in the above mentioned revenue villages, the tehsildar, enforcement officer and Amin of JDA have carried out spot inspection on 02.03.2020, 12.03.2020 and 01.06.2020. At the time of these inspections, no illegal mining was found to be taking place.‖
13. Respondent no. 14 has submitted that:-
―3. That at the outset it may be mentioned that the answering respondent purchases minerals from valid sources such as royalty the minerals from the crushers is dispatched through transit pass issued by the department. Not a single ton quantity of mineral is being used illegally or without payment of royalty. The stock of purchase as well as dispatch is mainlined online and as such there is no possibility of any illegal procurement of minerals. The monthly returns are submitted online to the Mines Department as well as the annual returns. The Mines Department on the basis of the returns submitted by the answering respondent makes assessment of royalty strictly in accordance with provisions of Rajasthan Minor Mineral Concession Rules of 2017. The copy of the assessment order dated 07.04.2021 for the assessment 2017-2018, 2018-2019 & 2019-2020 is being filed herewith. Before making assessment the Mines Department makes inquiry as contemplated under the Rules. Physical inspection and verification of site and the stock is also made in order to ascertain the genuineness of online return. Not only this the Mines Department makes random checking/inspection of the vehicles in which the mineral is transported to the crusher and from the crusher. The entire quantity of mineral procured by the answering respondent is royalty paid and procurement of minerals through invalid sources have not been practiced by the answering respondent at any point of time.
4. That the applicant unnecessary wants to implead the answering respondent only in order to harass the answering respondent. The applicant should be asked to clarify as to from where he has procured the receipts annexed with the application. It may be mentioned that the receipts does not at all show that the answering respondent has encouraged illegal mining from any part of land for which no mining lease is in existence. It may be mentioned that the answering respondent purchases minerals through valid sources through ravannas. The dug of the crusher is having limited space, therefore, the mineral is stocked at the crusher enclosure. As per requirement the mineral is transported for processing to the dug of the crusher. The transportation is done through tractor and other vehicles. For the purpose of maintaining record internally receipt is issued to the tractor 10 driver mentioning the quantity so that record can be maintained as to what quantity of mineral was sent from the enclosure of the crusher to the dugout and by whom it has been carried. The receipts are generated for internal purposes only. The applicants have misused the receipts and somehow obtained the print outs of the photos of the receipts and are trying to mislead to this Hon'ble Tribunal by making an averment that these receipts have been issued in order to encourage illegal mining which is factually incorrect.
5. That the photographs of the receipts are not admissible in evidence as per Section 65 (B) of the Indian Evidence Act the electronic record is not admissible unless a certificate is filed as to which device the record belongs to. The receipts filed by the applicants, therefore, is not admissible in evidence at all.
8. That when the original application number 104/2015 was filed by the original applicant before this Hon'ble Tribunal then it was alleged that illegal mining operations of masonary stone were being carried out by the villagers in area of roughly 200 hectare in order dated 16.11.2015 passed by this Hon'ble Tribunal it was noted that roughly 200 odd persons were engaged in the aforesaid activity. The observation of the Hon'ble Tribunal was that the activity is contrary to the provisions of law and without complying with the requirement of obtaining the mining lease and EC mining operations cannot be allowed to be operated. The copy of the order dated 16.11.2015 is being filed herewith. It was directed that the State of Rajasthan would take steps in accordance with law to ensure that no illegal activity is carried in the area in question relating to mining as complained in the application. In fact the villagers have been involved in the illegal excavation and none else than the persons who had conducted illegal excavation are responsible for environmental damages. The applicant is not at all involved in illegal excavations and as such is not a necessary party to the present application.
14. During the course of hearing learned counsel appearing for the applicant has moved an application I.A. No. 30/2022 with the allegation that vide letter dated 24.03.2022, the applicant has informed the Mining Engineer, Department of Mines and Geology, Jaipur that in-spite of the direction by this Tribunal rampant illegal mining are being carried by the proposed respondents against which, actions are required to be taken. The letter was responded by the authority vide letter dated 01.04.2022, in which the Mining Department has been directed to take necessary legal actions. Learned counsel appearing for the 11 respondent has submitted that this is a fresh cause of action against the newly added person against whom remedy lies by filing fresh application. Accordingly, the I.A.No.30/2022 moved today during the course of hearing stand disposed of accordingly.
15. Applicant has argued the importance and requirement of preparation of District Survey Report Consequent upon the decision taken at the United Nation Conference on Human Environment held in Stockholm, the Parliament enacted the Environment (Protection) Act, 1986 in September, 2006. The parent EIA Notification dated 14.09.2006 was issued by the MoEF & CC under Section 3 of the EP Act with an endeavour to provide a substantive legal framework and comprehensive procedural mechanism for evaluation, assessment and monitoring of the Environmental Impact on the land, air and water due to various projects undertaken by person in all sectors throughout the territory of India. The EIA Notification dated 14.09.2006, regulated certain activities including mining of minor mineral as laid down in the schedule therein and provided that a prior environmental clearance is mandatory for such regulated and specific projects across all sectors. The notification provided for constitution of central and state level environmental impact assessment authorities, SEIAA manned by professional, experts and technical individuals that shall screen, scope and appraise projects from an environmental prospective and further monitor the same from time to time, in order to achieve much desired goals of sustainable development. The MoEF & CC issued notification dated 15.01.2016 which amended the EIA Notification, 2006 by introducing clause 7 (III) (A) which mandated for the preparation of DSR for sand mining or River Bed Mining and mining of other mineral. Vide another notification dated 20.01.2016, the MoEF & CC constituted the DEIAA and the DEAC. The DEIAA comprised of 04 members and headed by District Magistrate whereas DEAC comprised of 11 members, who were mostly the government officer's bureaucrats. Further, MoEF & CC issued the Sustainable Sand Mining Management Guidelines, 2016 with an endeavor to 12 ensure that sand and gravel mining is done in an environmentally sustainable and socially responsible manner, and to further ensure the conservation of river equilibrium and its natural environment by protection and restoration of the ecological system. One of the key and nodal objectives enumerated in the SMMG, 2016 was the preparation of the DSR report that would identify the areas of aggradations/deposition where mining can be allowed, and identification of areas of erosion and proximity to infrastructural structures and installation wherein mining should be prohibited.
16. This Tribunal, in the case titled Anjani Kumar v. State of U.P. 2017 SCC Online NGT 979 vide its Judgment dated 8.12.2017 held that a District Survey Report (DSR) is a pre-requisite and conditional precedent before the grant of any mining leases of sand and bajri. The Relevant portion is extracted below:
―31. From the extracted portion, it could well be understood that to begin with the process prescribed for preparing of survey document mapping the status of the sand sources in a District is an integral but an essential part. The Survey has to be conducted and report be prepared for each District. It must also be noticed that while taking into consideration the fact that rivers cut across districts and States and every river is an ecosystem in itself but keeping in mind the fact that district is a most established unit of administration conduct of survey, planning and monitoring can be ensured effectively, the scheme proposed that every district will prepare this document (District Survey Report) taking river stretch in that district as an ecological and inventorising other sources of sand in the district...
65. Thus there is merit in the contention of the applicant that the District Survey Report is not only an important act but it should be conducted prior to sanctioning of the permission/concession.
71. In other words it is evident that absence of the factual 13 District Survey Report after due inspection grant of mining lease will be in conflict of the environmental laws as sand mining lease could be granted in an area only when aspect of replenishment of miner mineral especially in river sand is clearly established.
96. It is true that under the Mining Policy, Rules the State is empowered to conduct survey for the purpose of inviting bids opine. The preparation of DSR and obtaining if Environmental Clearance is also a conditional precedent to carrying on mining activity. It is for the State Government to ensure that there is no conflict between two and they are balanced so as to ensure that neither there is scope for illegal mining nor there should be environmental degradation.
17. Notice Inviting Tender (NIT) The rules provide for a conservative estimation of the permissible quantity and in no way discounts the importance of NIT or accord primacy to mining plan. NIT is primary document and it is the constitutional requirement to give level playing field to all the bidders as held in Manohar lal Sharma vs principal secretary (SC) 2014 all SCR 3470 as follow:-
49. .........The constitutional philosophy about law making in relation to mines and minerals and List I Entry 36 (Federal Legislative List) and List II Entry 23 (Provincial Legislative List) in Schedule VII of the Government of India Act, 1935 which correspond to List I Entry 54 (Union List) and List II Entry 23 (State List) in our Constitution has been noticed by this Court in Monnet Ispat and Energy Ltd. v. Union of India and Ors., (2012) 11 SCC 1. Speaking through one of us (R.M. Lodha, J., as he then was) in Monnet Ispat and Energy Ltd. v. Union of India and Ors., (2012) 11 SCC 1, this Court has noted the statement of the learned Solicitor General in the House of Commons made in the course of debate in respect of the above entries in the Government of India Bill that the rationale of including only the "regulation of mines" and "development of minerals" and that, too, only to the extent it was 14 considered expedient in the public interest by a federal law was to ensure that the provinces were not completely cut out from the law relating to mines and minerals and if there was inaction at the Centre, then the provinces could make their own laws. Thus, power in relation to the mines and minerals was accorded to both, the Centre and the States. The Court in Monnet Ispat and Energy Ltd.
v. Union of India and Ors., (2012) 11 SCC 1 said:
"130. .......... The management of the mineral resources has been left with both the Central Government and the State Governments in terms of List I Entry 54 and List II Entry 23. In the scheme of our Constitution, the State Legislatures enjoy the power to enact legislation on the topics of "mines and minerals development". The only fetter imposed on the State Legislatures under Entry 23 is by the latter part of the said entry which says, "subject to the provisions of List I with respect to regulation and development under the control of the Union". In other words, the State Legislature loses its jurisdiction to the extent to which the Union Government had taken over control, the regulation of mines and development of minerals as manifested by legislation incorporating the declaration and no more. If Parliament by its law has declared that regulation of mines and development of minerals should in the public interest be under the control of the Union, which it did by making declaration in Section 2 of the 1957 Act, to the extent of such legislation incorporating the declaration, the power of the State Legislature is excluded. The requisite declaration has the effect of taking out regulation of mines and development of minerals from List II Entry 23 to that extent. It needs no elaboration that to the extent to which the Central Government had taken under "its control"
"the regulation of mines and development of minerals" under the 1957 Act, the States had lost their legislative competence. By the presence of the expression "to the extent hereinafter provided" in 15 Section 2, the Union has assumed control to the extent provided in the 1957 Act. The 1957 Act prescribes the extent of control and specifies it. We must bear in mind that as the declaration made in Section 2 trenches upon the State legislative power, it has to be construed strictly. Any legislation by the State after such declaration, trespassing the field occupied in the declaration cannot constitutionally stand "........
83. Two recent decisions viz., (1) (2G Case) Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1 and (2) Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1 directly deal with the question of auction as mode for the disposal or allocation of natural resources. But before we consider these two decisions, reference to some of the decisions of this Court, which had an occasion to deal with disposal of natural resources, may be of some help in appreciating this aspect in correct perspective.
84. P.N. Bhagwati, J. in Kasturi Lal Lakshmi Reddy & Ors. v. State of J&K & Anr., (1980) 4 SCC 1 had said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging setting up of industries within the State, the State was not bound to advertise and tell the people that it wanted a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. It was also observed that if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose.
85. In Sachidanand Pandey & Anr. v. State of West Bengal & Ors., (1987) 2 SCC 295 this Court had observed that ordinary rule for disposal of State-owned or public-owned property, was by way of public auction or by inviting tenders but there could be situations where departure from the said rule may be necessitated but then the reasons for the departure must be rational and should not be suggestive of discrimination and that nothing should be done which gives an appearance of bias, jobbery or nepotism.
86. The statement of law in Sachidanand 16 Pandey & Anr. v. State of West Bengal & Ors., (1987) 2 SCC 295 was echoed again in Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (1988) 1 SCC 166, wherein this Court reiterated that the public property owned by the State or by an instrumentality of State should be generally sold by public auction or by inviting tenders. It was emphasised that this rule has been insisted upon not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities and to obviate the factors like bias, favoritism or nepotism. Clarifying that this is not an invariable rule, the Court reiterated that departure from the rule of auction could be made but then it must be justified.
87. The above principle is again stated by this Court in M.P. Oil Extraction & Anr. v. State of M.P. & Ors., (1997) 7 SCC 592, in which this Court said that distribution of largesse by inviting open tenders or by public auction is desirable but it cannot be held that in no case distribution of such largesse by negotiation is permissible.
88. In Netai Bag & Ors. v. State of West Bengal & Ors., (2000) 8 SCC 262 this Court said that when any State land is intended to be transferred or the State largesse is decided to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people as that would be a sure method of guaranteeing compliance with mandate of Article 14 of the Constitution but non-floating of tenders or not holding public auction would not in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner.
89. In Villianur Iyarkkai Padukappu Maiyam v. Union of India & Ors., (2009) 7 SCC 561 the matter before this Court related to the selection of contractor for development of the port of Pondicherry without floating a tender or holding public auction. The Court said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging development of the port, the State was not bound to advertise and tell the people that it wanted development of the port in a particular manner and invite those interested to come up with proposals for the purpose.
90. There are numerous decisions of this Court dealing with the mode and manner of disposal of natural resources but we think it is not necessary 17 to refer to all of them. Having indicated the view taken by this Court in some of the cases, now we may turn to 2G case, Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1. In that case, the two-Judge Bench of this Court stated that a duly publicised auction conducted fairly and impartially was perhaps the best method for alienation of natural resources lest there was likelihood of misuse by unscrupulous people who were only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. Court laid emphasis that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.
91. The above view in (2G Case) Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1 necessitated the reference by the President of India to this Court under Article 143(1) of the Constitution. The first two questions ? Question 1 and Question 2 ? referred to this Court for consideration and report read as under:
―Question 1 Whether the only
permissible method for
disposal of all natural
resources across all
sectors and in all
circumstances is by the
conduct of auctions?
Question 2 Whether a broad
proposition of law that
only the route of
auctions can be
resorted to for disposal
of natural resources
does not run contrary
to several judgments of
the Supreme Court
including those of the
larger Benches?
92. The Constitution Bench which dealt with the above reference observed that the answer to the following three questions would provide comprehensive answer to the parent question, viz., Question 1:
(i) Are some methods ultra vires and others intra vires the Constitution of India, especially Article 14?18
(ii) Can disposal through the method of auction be elevated to a constitutional principle?
(iii) Is this Court entitled to direct the executive to adopt a certain method because it is the "best"
method? If not, to what extent can the executive deviate from such "best" method?
93. The Constitution Bench clarified that the statement of law in (2G Case) Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1 that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction was confined to the specific case of spectrum and not for dispensation of all natural resources. The Constitution Bench said that findings of this Court in (2G Case) Centre for Public Interest Litigation & Ors. v. Union of India & Ors., (2012) 3 SCC 1 were limited to the case of spectrum and not beyond that and that it did not deal with the modes of allocation for natural resources other than spectrum.
94. The Constitution Bench while dealing with the aspect of disposal of natural resources other than auction, divided the consideration of this aspect under two heads, viz., "Legitimate deviations from auction" and "Potential of abuse". Under the head "Legitimate deviations from auction" the Court considered the earlier decisions of this Court in Kasturi Lal Lakshmi Reddy & Ors. v. State of J&K & Anr., (1980) 4 SCC 1, Sachidanand Pandey & Anr. v. State of West Bengal & Ors., (1987) 2 SCC 295, Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (1988) 1 SCC 166, M.P. Oil Extraction & Anr. v. State of M.P. & Ors., [(1997) 7 SCC 592], Netai Bag & Ors. v. State of West Bengal & Ors., (2000) 8 SCC 262 and Villianur Iyarkkai Padukappu Maiyam v. Union of India & Ors., (2009) 7 SCC 561, which we have briefly noted above, and it was held that there is no constitutional mandate in favour of auction under Article 14. In the main judgment (paras 129 to 131, pg. 92), the Constitution Bench stated as under:
"129. Hence, it is manifest that there is no constitutional mandate in favour of auction under Article 14. The Government has repeatedly deviated from the course of auction and this Court has repeatedly upheld such actions. The judiciary tests such deviations on the limited scope of arbitrariness and fairness under Article 14 and its role is limited to that extent. Essentially whenever the object of policy is anything but revenue maximization, the Executive 19 is seen to adopt methods other than auction.
130. A fortiori, besides legal logic, mandatory auction may be contrary to economic logic as well. Different resources may require different treatment. Very often, exploration and exploitation contracts are bundled together due to the requirement of heavy capital in the discovery of natural resources. A concern would risk undertaking such exploration and incur heavy costs only if it was assured utilisation of the resource discovered; a prudent business venture, would not like to incur the high costs involved in exploration activities and then compete for that resource in an open auction. The logic is similar to that applied in patents. Firms are given incentives to invest in research and development with the promise of exclusive access to the market for the sale of that invention. Such an approach is economically and legally sound and sometimes necessary to spur research and development. Similarly, bundling exploration and exploitation contracts may be necessary to spur growth in a specific industry.
131. Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of an industry, like in Kasturi Lal's case, discussed above. However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criteria for alienation of all natural resources."
95. While dealing with the argument that even if the method of auction was not a mandate under Article 14, it must be the only permissible method due to the susceptibility of other methods to abuse, the Court under the head "Potential of abuse" held that a potential for abuse cannot be the basis for striking down the method as ultra vires the Constitution. The Court noted two decisions of this Court in R.K. Garg v. Union of India & Ors., (1981) 4 SCC 675 and D.K. Trivedi & Sons & Ors. v. State of Gujarat & Ors., 1986 Supp SCC 20 and held that neither auction nor any other method of disposal can be held ultra vires the Constitution merely because of a potential abuse. The Constitution Bench (para 135, pgs. 93-94) stated as under:
"135. Therefore, a potential for abuse cannot be the basis for striking down a method as ultra vires the Constitution. It is the actual abuse itself that must be brought before the Court for being tested on the anvil of constitutional provisions. In fact, it may be said that even auction has a potential of abuse, like any other method of allocation, but that cannot be the basis of declaring it as an unconstitutional methodology 20 either. These drawbacks include cartelization, "winners curse" (the phenomenon by which a bidder bids a higher, unrealistic and unexecutable price just to surpass the competition; or where a bidder, in case of multiple auctions, bids for all the resources and ends up winning licenses for exploitation of more resources than he can pragmatically execute), etc. However, all the same, auction cannot be called ultra vires for the said reasons and continues to be an attractive and preferred means of disposal of natural resources especially when revenue maximization is a priority. Therefore, neither auction, nor any other method of disposal can be held ultra vires the Constitution, merely because of a potential abuse."
96. In Natural Resources Allocation, In re, Special Reference No.1 of 2012; [(2012) 10 SCC 1] the Constitution Bench, in the main judgment, thus, concluded that auction despite being a more preferable method of alienation/allotment of natural resources cannot be held to be constitutional requirement or limitation for alienation of all natural resources and, therefore, every method other than auction cannot be struck down as ultra vires the constitutional mandate. The Court also opined that auction as a mode cannot be conferred the status of a constitutional principle. While holding so, the Court held that alienation of natural resources is a policy decision and the means adopted for the same are, thus, executive prerogatives. The Court summarised the legal position as under:
"146. To summarise in the context of the present Reference, it needs to be emphasised that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them. As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-a-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra 21 vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down.
147. Finally, market price, in economics, is an index of the value that a market prescribes to a good. However, this valuation is a function of several dynamic variables: it is a science and not a law. Auction is just one of the several price discovery mechanisms. Since multiple variables are involved in such valuations, auction or any other form of competitive bidding, cannot constitute even an economic mandate, much less a constitutional mandate.
148. In our opinion, auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and therefore, every method other than auction cannot be struck down as ultra vires the constitutional mandate.
149. Regard being had to the aforesaid precepts, we have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximising private entrepreneurs, adoption of means other than those that are competitive and maximise revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution."
97. J.S. Khehar, J., while concurring with the main opinion has stated that auction is certainly not a constitutional mandate in the manner expressed, but it can be applied in some situations to maximise revenue returns, to satisfy legal and constitutional requirements.
22In his view, if the State arrives at a conclusion, in a given situation, that maximum revenue would be earned by auction of the particular natural resource, then that alone would be the process which it would have to adopt. In the penultimate para of his opinion, J.S. Khehar, J., observed," there can be no doubt about the conclusion recorded in the "main opinion" that auction which is just one of the several price recovery mechanisms, cannot be held to be the only constitutionally recognised method for alienation of natural resources. That should not be understood to mean, that it can never be a valid method for disposal of natural resources ".
98. In Natural Resources Allocation, In re, Special Reference No.1 of 2012; [(2012) 10 SCC 1], the Constitution Bench said that reading auction as a constitutional mandate would be impermissible because such an approach may distort another constitutional principle embodied in Article 39(b). In the main judgment, with reference to Article 39(b), the Court stated as follows:
"113. The disposal of natural resources is a facet of the use and distribution of such resources. Article 39(b) mandates that the ownership and control of natural resources should be so distributed so as to best subserve the common good. Article 37 provides that the provisions of Part IV shall not be enforceable by any court, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Therefore, this Article, in a sense, is a restriction on "distribution" built into the Constitution. But the restriction is imposed on the object and not the means. The overarching and underlying principle governing "distribution" is furtherance of common good. But for the achievement of that objective, the Constitution uses the generic word "distribution".
Distribution has broad contours and cannot be limited to meaning only one method i.e. auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately sub-serve the "common good".
*** *** ***
115. It can thus, be seen from the aforequoted paragraphs that the term "distribute" undoubtedly, has wide amplitude and encompasses all manners and methods of distribution, which would include classes, industries, regions, private and public sections, etc. Having regard to the basic nature of Article 39(b), a narrower concept of equality under Article 14 than that discussed above, may 23 frustrate the broader concept of distribution, as conceived in Article 39(b). There cannot, therefore, be a cavil that "common good" and "larger public interests" have to be regarded as constitutional reality deserving actualization.
116. The learned counsel for CPIL argued that revenue maximization during the sale or alienation of a natural resource for commercial exploitation is the only way of achieving public good since the revenue collected can be channelized to welfare policies and controlling the burgeoning deficit. According to the learned counsel, since the best way to maximise revenue is through the route of auction, it becomes a constitutional principle even under Article 39(b). However, we are not persuaded to hold so. Auctions may be the best way of maximizing revenue but revenue maximisation may not always be the best way to subserve public good. "Common good" is the sole guiding factor under Article 39(b) for distribution of natural resources. It is the touchstone of testing whether any policy subserves the "common good" and if it does, irrespective of the means adopted, it is clearly in accordance with the principle enshrined in Article 39(b).
*** *** ***
119. The norm of "common good" has to be understood and appreciated in a holistic manner. It is obvious that the manner in which the common good is best subserved is not a matter that can be measured by any constitutional yardstick?it would depend on the economic and political philosophy of the Government. Revenue maximisation is not the only way in which the common good can be subserved. Where revenue maximisation is the object of a policy, being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method. Where revenue maximisation is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations.
120. Therefore, in conclusion, the submission that the mandate of Article 14 is that any disposal of a natural resource for commercial use must be for revenue maximisation, and thus by auction, is based neither on law nor on logic. There is no constitutional imperative in the matter of economic policies? Article 14 does not predefine any economic policy as a constitutional mandate. Even the mandate of Article 39(b) imposes no restrictions on the means adopted to sub-serve the public good and uses the broad term "distribution", suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to sub- serve the common good, and at times, may run counter to 24 public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate."
99. In light of the above legal position, the argument that auction is a best way to select private parties as per Article 39(b) does not merit acceptance. The emphasis on the word "best" in Article 39(b) by the learned senior counsel for the intervener does not deserve further discussion in light of the legal position exposited by the Constitution Bench in Natural Resources Allocation, In re, Special Reference No.1 of 2012; [(2012) 10 SCC 1] with reference to Article 39(b). We are fortified in our view by a recent decision of this Court (3-Judge Bench) in Goa Foundation v. Union of India and Others, (2014) 6 SCC 590 wherein following Natural Resources Allocation, In re, Special Reference No.1 of 2012; [(2012) 10 SCC 1], it is stated, "...it is for the State Government to decide as a matter of policy in what manner the leases of these mineral resources would be granted, but this decision has to be taken in accordance with the provisions of the MMDR Act and the Rules made thereunder and in consonance with the constitutional provisions?".
18. As described in the EMGSM 2020, Mining Plan is an important document to assist the mine owner to operate the mine in a scientific manner. There is no practice for regular replenishment study to ascertain the rate of depositing, plan and section needs to be prepared based on the restrictions provided in letter of intent and provisions of Sustainable Sand Mining Management Guidelines 2016.
Therefore, granting EC on the basis of Mining Plan is in violation of the Guidelines and against the principles of sustainable sand mining.
Considering the importance of district survey report, the Ministry of Environment Forest and climate change, after consultation with experts dealing with mining-related matters, formulated the guidelines for the preparation of comprehensive District Survey Report for sand mining. It accordingly, prescribed that District Survey Report for sand mining should be prepared before the auction/e-
auction/grant of the mining lease/Letter of Intent (LoI) by Mining department or department dealing the mining activity in respective states. DSR is to be approved at the level of SEIAA with the help of 25 SEAC. It is surprising that SEIAA is not taking DSR or Annual Replenishment Study (ARS) into consideration. Had DSR and ARS taken into consideration the discrepancy between the quantity of sand given in NIT and EC can be easily avoided and sand mining would be sustainable. In addition to that it would also eliminate the chances of misuse of EC for illegal mining.
19. Another category of cases includes those in which the mining areas (Khasra/survey numbers) are not given in NIT but EC are granted even for them. Obviously such EC can lead to illegal mining as well as loss of exchequer to the State. It would also disrupt the system of sustainable mining and escape all kinds of monitoring and supervision, as EC would be available but the mining department would not be looking after them. It is completely out of sync so far as the mining administration in States exists.
20. The matter of procedure for DSR was considered by Principal Bench of this Tribunal in O.A. No. 360/2015 vide order dated 26.02.2021 and necessary directions and the method of implementation were discussed in the following manner :-
―Procedure for DSR/EC
13. Vide order dated 14.10.2020 in O.A. No. 40/2020, Pawan Kumar v. State of Bihar & Ors., the issue of preparation of District Survey Report (DSR) by Experts was considered. Vide Notification dated 25.07.2018 issued by the MoEF&CC, under Section 3(2)(v) of the EP Act, 1986 amending EIA Notification dated 14.09.2006, procedure for preparation of DSR for sand mining/riverbed mining was laid down. The DSR is crucial as it contains Environment Management plan, including the replenishment study and other safeguards and is the basis to consider the environment impact of mining based on which decision to grant the Environmental Clearance is taken. The Tribunal held that for such crucial exercise, the Experts should be out of those accredited by the National Accreditation Board of Education and Training/ Quality Control Council of India (NABT/QCCI) in terms of O.M. of MoEF&CC dated 16.03.2010.
Verification by the District Magistrate and evaluation by the SEAC was also necessary. Accordingly, following directions were issued in relation to a matter arising from the State of 26 Bihar:- ―(ii) As the DEIAA is not functioning as a consequence of the decision of the Tribunal in Satendra Pandey (supra), the DSR shall be prepared through a consultant(s) accredited by the National Accreditation Board of Education and Training/ Quality Control Council of India in terms of O.M. of MoEF&CC dated 16.03.2010. (iii) The DSR so prepared shall be submitted to the District Magistrate who shall verify the DSR only in respect of the relevant facts pertaining to the physical and geographical features of the district which shall be distinct from the scientific findings based on the parameters prescribed in the SSMMG2016. After such verification, the District Magistrate shall forward the DSR for examination and evaluation by the State Expert Appraisal Committee (SEAC) having regarding to the fact that the SEIAA comprises of technical/scientific experts. The SEAC after appraisal of the report shall forward it to the SEIAA for consideration and approval if it meets all scientific/technical requirements. (iv) While preparing the DSR, the MoEF&CC Accredited Agency/Consultant shall scrupulously follow the procedure and the parameters laid down under the SSMMG-2016 and EMGSM2020 read in sync with each other.‖
14. Considering the above, vide order dated 04.11.2020 in O.A. No. 726 of 2018, Rupesh Pethe v. State of M.P. & Ors., the Tribunal directed that the above direction ought to be followed pan India, as follows:-
―5. The above direction may be followed by the State of MP also for the sake of uniformity. Further information required to be furnished is about the extent of illegal mining, extent of action taken, including the compensation recovered, vehicles seized and other coercive measures and impact of such action. The State of M.P. may compile relevant directions on the subject including the binding order of any Courts or Tribunal. This exercise may be undertaken jointly by the Secretary Geology and Mining, Member Secretary State PCB and Member Secretary SEIAA. In light of above, the State may further revise its policy and exercise. Let further compliance status be furnished before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.27
6. We are of the view that the above directions need to be followed by all other States where the issue of mining is relevant.
7. A copy of this order be forwarded to the Chief Secretaries of all the States and UTs by e-mail for compliance.‖ Adverse impact of unscientific/unregulated Sand Mining
15. It is undisputed that there is huge degradation of environment on account of unregulated sand mining remains which is otherwise lucrative activity. It poses threat to bio- diversity, could destroy riverine vegetation, cause erosion, pollute water sources, badly affecting riparian ecology, damaging ecosystem of rivers, safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the riverbeds, affects fish breeding and migration, spell disaster for the conservation bird species, increase saline water in the rivers. It has direct impact on the physical habitat characteristics of the rivers such as bed elevation, substrate composition and stability, in-stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Increase in demand of sand has placed immense pressure in the supply of sand resource and mining activities were going on illegally as well as legally without requisite restrictions. Lack of proper planning and sand management disturbs marine ecosystem and upset the ability of natural marine processes to replenish the sand. The Hon'ble Supreme Court (in Deepak Kumar, supra) noted that core group was constituted by the MoEF&CC to examine the impact of minor minerals on riverbeds and ground waters. A draft report was prepared recommending mandatory preparation of mining plan on the pattern of mining plans for major minerals. Further recommendations are reclamation and rehabilitation of abandoned mines, proportion of hydro geo-logical balance for minerals below ground water table limiting depth of mining to 3 meter and identification on locations where mining should be permitted was required. There is need for identifying safety zones in the proximity of intendments. Thus, strict regulatory parameters were required for regulating mining of minor minerals. It was noted that in-stream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of 28 sand in the stream bed causes deepening of rivers which may result in destruction of aquatic and riparian habitats. It has impact on stream's physical habitat characteristics.
16. In State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, at page 790, it was observed :
―32. The policy and object of the Mines and Minerals Act and Rules have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature. The Court cannot lose sight of the fact that adverse and destructive environmental impact of sand mining has been discussed in the UNEP Global Environmental Alert Service Report. As per the contents of the Report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in India, it was stated that sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our country.‖ ―33. The mining of aggregates in rivers has led to severe damage to rivers, including pollution and changes in levels of pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 cm a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. Illegal sand mining also causes erosion. Damming and mining have reduced 29 sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion.
34. The Report also dealt with the astonishing impact of sand mining on the economy. It states that tourism may be affected through beach erosion. Fishing, both traditional and commercial, can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structures for water supply.
35. Sand is often removed from beaches to build hotels, roads and other tourism-related infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors--beaches themselves.
Mining from, within or near a riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, instream roughness of the bed, flow velocity, discharge capacity, sediment transportation capacity, turbidity, temperature, etc. Alteration or modification of the above attributes may cause hazardous impact on ecological equilibrium of riverine regime. This may also cause adverse impact on instream biota and riparian habitats. This disturbance may also cause changes in channel configuration and flow paths.
.....Today, demand for sand and gravel continues to increase. Mining operators, instead of working in conjunction with cognizant resource agencies to ensure that sand mining is conducted in a responsible manner, are engaged in full-time profiteering. Excessive in-stream sand and gravel mining from riverbeds and like 30 resources causes the degradation of rivers. In-stream mining lowers the stream bottom, which leads to bank erosion. Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river mouths and coastal inlets. It also leads to saline water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in-stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in-stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the streambed and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction of sand from riverbeds may also cause the entire stream- bed to degrade to the depth of excavation.‖
21. Mining within the State is required to be regulated not only by the Mining Department but also by the State Pollution Control Board under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981and by the MoEF& CC under the Environment (Protection) Act, 1986. The Environmental Laws override other laws and any provision contrary in the Mines Act, 1952 will not stay in the way of enforcing environment norms. The Enforcement and Monitoring Guidelines for Sand Mining, 2020 (EMGSM-2020) seeks to provide effective enforcement and monitoring from the stage of identification of source to its dispatch and in use which requires environment of all stakeholders, Central Government, State Government, Lease Holders, Mine Owners, Distributors, Dealers, Transporters and Consumers. The guidelines issued from the MoEF&CC makes EC mandatory irrespective of the area of mining lease, followed by monitoring in terms of the Environment Management Plan, using IT and IT enabled services.
3122. Dealing the similar matter in O.A. No. 173/2018(EZ) Sudarsan Das Vs State of West Bengal & Ors. vide order dated 04.09.2018 this Tribunal observed as follows :-
―18. We may note the salient features of the EMGSM-2020, which are supplemental to existing SSMG-2016 and seek to provide effective enforcement and monitoring from the stage of identification of source to its dispatch and end use which requires involvement of all stakeholders viz.
Central Government, State Government, Leaseholders/Mine Owners, Distributors, Dealers, Transporters and Consumers (bulk & retail). EMGSM refer to the judgment of the Hon'ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors. (2012) 4 SCC 629 making EC mandatory irrespective of the area of mining lease, followed by monitoring in terms of the Environment Management Plan, using IT and IT enabled services. Monitoring has to be with reference to quantity of mined material, transportation with a view to promote environmental protection, limit negative physiological, hydrogeological and social impacts underpinning sustainable economic growth. Observations in the order of this Tribunal dated 04.09.2018 in O.A. 173/2018 in Sudarsan Das vs. State of West Bengal & Ors. has also been referred to as follows:
―There can be no two views that an effective institutional monitoring mechanism is required not only at the stage when Environmental Clearance is granted but also at subsequent stages‖.
―The guidelines focus on the preparation of District Survey Report and the Management Plan‖ ...
We are of the view that all the safeguards which are suggested in sustainable sand mining guidelines as well as notification dated 15.01.2016 ought to be scrupulously followed.‖ ...
It is a known fact that in spite of the above-suggested guidelines being in existence, on the ground level, illegal mining is still going on. The existing mechanism has not been successful and effective in remedying the situation.‖ ...
Since there is an utter failure in the current monitoring mechanism followed by the State Boards, SEIAAs and DEIAAs, it is required to be revised for effective monitoring of sand and gravel mining and a dedicated monitoring mechanism be set up.‖ 32 Further reference has been made to the directions in the order dated 05.04.2019 requiring the 17 States, which were party before the Tribunal viz. West Bengal, Gujarat, Karnataka, Maharashtra, Punjab, Uttar Pradesh, Haryana, Madhya Pradesh, Andhra Pradesh, Bihar, Uttarakhand, Jammu and Kashmir, Goa, Kerala, Telangana and Tamil Nadu and Himachal Pradesh, to follow the revised Guidelines and to review their respective monitoring mechanism. It is then stated that with the object of regulating the mining, the sources of sand and steps required are mentioned which provide for District Survey Report (DSR), Mining Plan, replenishment study, consideration of environment impact while granting EC, laying down conditions for EC, monitoring of transportation to the end user to ensure that only legally mined material is transported. There is need to balance between deposition and extraction of sand as per replenishment study, maintaining surveillance, using Unmanned Artificial Vehicles (UAVs)/Drone for reserves estimation, quantity estimation, land use monitoring. Details about all these aspects have been mentioned in the said Guidelines. With regard to post EC monitoring, there is a provision for environment audit, monitoring of sale and purchase by developing online portal and laying down the levels of monitoring i.e. Level 1- Reach/ Stockyard level monitoring, Level 2 - Transportation monitoring, Level 3 - End consumer monitoring/ bulk consumer, Level 4 - Indirect monitoring. Reference has then been made to the High-Powered Committee incorporating safeguards to be adopted by the project proponents. There is also provision for assessment of compensation for the ecological damage by the State/ PCB/ any other Authority. Inter District and Inter State boundaries are separately dealt with. The uniform monitoring mechanism stipulates:
" 9.4. Monitoring Mechanism xxx ...............................xxx.......................xxx......
..............
331. All precaution shall be taken to ensure that the water stream flows unhindered and process of Natural river meandering doesn't get affected due to mining activity.
2. River mining from outside shall not affect rivers, no mining shall be permitted in an area up to a width of 100 meters from the active edge of embankments or distance prescribed by the Irrigation department.
3. The mining from the area outside river bed shall be permitted subject to the condition that a safety margin of two meters (2 m) shall be maintained above the groundwater table while undertaking mining and no mining operation shall be permissible below this level unless specific permission is obtained from the Competent Authority. Further, the mining should not exceed nine-meter (9 m) at any point in time.
4. Survey shall be carried out for identifying the stretches having habitation of freshwater turtles or turtle nesting zones. Similarly, stretches shall be identified for other species of significant importance to the river ecosystem. Such stretch with adequate buffer distance shall be declared as no-mining zone and no mining shall be permitted. The regulatory authority as defined for granting Environmental Clearance, while considering the application of issuance of ToR and/or EC for the adjacent block (to non- mining zone) of mining shall take due precaution and impose requisite conditions to safeguard the interest of such species of importance.
5. District administration shall provide detailed information on its website about the sand mines in its district for public information, with an objective to extend all information in public domain so that the citizens are aware of the mining activities and can also report to the district administration on any deviation observed. Appropriate feedback and its redressal mechanism shall also be made operational. The details shall include, but not limited to, lease area, geo- coordinates of lease area and mineable area, transport routes, permitted capacity, regulatory conditions for operation including mining, environmental and social commitments etc.
6. A website needs to be maintain to track the movement of centralised sand mining and a Centralised server system should be made to manage the data related to sand mining across India.
7. The mineral concession holders shall maintain electronic weighbridges at the appropriate location identified by the district mining officer, in order to ensure that all mined minerals from that particular mine are accounted for before the material is dispatched from the mine. The weighing bridge 34 shall have the provision of CCTV camera and all dispatch from the mine shall be accounted for.
8. The mineral movement shall be monitored and controlled through the use of transit permit with security features like printing on IBA approved MICR papers, Unique bar/QR, fugitive ink background, invisible ink mark, void pantographs and watermarks papers or through use of RFID tagged transit permits and IT /IT- enabled services. Such monitoring system shall be created and made operationalised by State Mining department and district level mining officer shall be responsible for ensuring that all legal and operational mines are connected and providing the requisite information on the system. Regular check and associated report shall be submitted to DLTF and uploaded on the website.
9. State Government shall constitute a District Level Task Force (DLTF) under the Chairmanship of Deputy Commissioner/District Magistrate/Collector with Superintendents of Police and other related senior functionaries (District Forest Officer, District transport officer, Regional officer-
SPCBs, Senior Officer of Irrigation Department, District Mining Officer) with one/two independent member nominated by the Commissioner concerned. The independent member shall be retired government officials/teacher or ex-
serviceman or ex-judiciary member.
The DLTF shall keep regular watch over the mining activities and movement of minerals in the district. The DLTF shall have its regular meeting, preferably every month to reconcile the information from the mining activity, and other observations made during the month and take appropriate corrective and remedial action, which may include a recommendation for revoking mining lease or environmental clearance. The DLTF may constitute an independent committee of the expert to assess the environmental or ecological damage caused due to illegal mining and recommend recovery of environmental compensation from the miner's concern.
The recommendation may also include action under the provision of E(P) Act, 1986.
10. The area not identified for mining due to restriction or otherwise are also to be monitored on a regular basis by the DLTF. Any observations of mining activity from the restricted area shall be reported and corrective measures shall be initiated on an urgent basis by the DLTF.
11. The dispatch routes shall be defined in the Environmental Clearance and shall be avoided through densely habituated area and the increase in the number of vehicle movement on the road shall be in agreement with the IRC 35 guidelines / carrying capacity of the road. The alternate and dedicated route shall be explored and preferred for movement of mining to avoid inconvenience to the local habitat. The mining production capacity, by volume/weight, shall be governed by total permissible dispatch calculated based on the carrying capacity of dispatch link roads and accordingly, the production should be regulated.
12. The movement of minerals shall be reconciled with the data collected from the mines and various Naka/check posts. Other measures may also include a general survey of the potential mineable area in the district which has not been leased/auctioned or permitted for mining due to regulatory or other reasons.
13. The location and number of check post requirement shall be reviewed by DLTF on a regular basis so that appropriate changes in location/number could be made as per the requirement. Such review shall be carried out on a regular basis for the district on inter-state boundary or district providing multiple passages between two districts of different states.
14. The district administration shall compile the information from their district of the permitted and legal mined out minerals and other details and share such information and intelligence with the officials of the adjoining district (Inter or/and Intra State) for reconciliation. The information shall include the area of operation, permissible quantity, mined out minerals (production) the permitted route etc., and other observations, especially where the mine lease boundary is congruent with the district boundary. Such coordination meeting shall be held on a quarterly basis, alternatively in two district headquarters or any other site in two districts decided mutually by the District Magistrate.
15. The mining department shall include submission of an annual environmental audit report as one of the conditions in the mining lease agreement. The annual audit for each river bed mining lease shall be carried out and the audit report shall be uploaded on the website of district administration. The audit shall be carried out by an independent team of 3 members nominated by District Collector/Magistrate/Commissioner comprising of Ex- Serviceman, Ex-
Government officials of repute, Professor or Person having experience of mining/environment. The guidelines and method of the audit shall reflect adequately the monitor-able parameters and output and reflect the compliance status with respect to the conditions imposed by the regulatory authorities including conditions of Environmental clearance.
16. The in-situ and ex-situ environmental mitigative measures stipulated as EMP, CER, CSR and other environmental and safety conditions in mines including the welfare of labours shall properly reflect in the audit report.
369.5 Suggestive additional requirements are-
i. The requirement at the Mine Lease Site:
a. Small Size Plot (Up to 5 hectares): Android Based Smart Phone.
b. Large Size Plots (More than 5 hectares): CCTV camera, Personal Computer (PC), Internet Connection, Power Back up.
c. Access control of mine lease site.
d. Arrangement for weight or approximation of the weight of mined out mineral on the basis of the volume of the trailer of vehicle used.
ii. Scanning of Transport Permit or Receipt and Uploading on Server:
a. Website: Scanning of receipt on mining site can be done through barcode scanner and computer using the software;
b. Android Application: Scanning on mining site can be done using Android Application using a smartphone. It will require internet availability on SIM card;
c. SMS: Transport Permit or Receipt shall be uploaded on the server even by sending SMS through mobile. Once Transport Permit or Receipt get uploaded, a unique invoice code gets generated with its validity period.
iii. Proposed working of the system:
The State Mining Department should print the Transport Permit or Receipt with security features and issue them to the mining leaseholder through the District Collector. Once these Transport Permits or Receipts are issued, they would be uploaded on the server against that mine lease area. Each receipt should be preferable with pre-fixed quantity, so the total quantity gets determined for the receipts issued. When the Transport Permit or Receipt barcode gets scanned and invoice is generated, that particular barcode gets used and its validity time is recorded on the server. So all the details of transporting of mined out material can be captured on the server and the Transport Permit or Receipt cannot be reused.
iv. Checking On Route:
The staff deployed for the purpose of checking of vehicles carrying mined mineral should be in a position to check the validity of Transport Permit or Receipt by scanning them using the website, Android Application and SMS.
v. Breakdown of Vehicle:
In case the vehicle break-down, the validity of Transport Permit or Receipt shall be extended by sending SMS by the driver in specific format to report the breakdown of the vehicle. The server will register this information and register the 37 breakdown. The State can also establish a call center, which can register breakdowns of such vehicles and extend the validity period. The subsequent restart of the vehicle also should be similarly reported to the server or call center.
vi. Tracking of Vehicles:
The route of the vehicle from source to destination can be tracked through the system using checkpoints, RFID Tags, and GPS tracking. vii. Alerts or Report Generation and Action Review:
The system will enable the authorities to develop a periodic report on different parameters like daily lifting report, vehicle log or history, lifting against allocation, and total lifting. The system can be used to generate auto mails or SMS. This will enable the District Collector or District Magistrate to get all the relevant details and shall enable the authority to block the scanning facility of any site found to be indulged in irregularity. Whenever any authority intercepts any vehicle transporting illegal sand, it shall get registered on the server and shall be mandatory for the officer to fill in the report on action taken. Every intercepted vehicle shall be tracked.
The monitoring of mined out mineral,
environmental clearance conditions and
enforcement of Environment Management Plan will be ensured by the regulatory authority and the State Pollution Control Board or Committee. The monitoring arrangements envisaged above shall be put in place. The monitoring of enforcement of environmental clearance conditions shall be done by the Central Pollution Control Board, Ministry of Environment, Forest and Climate Change and the agency nominated by the Ministry for the purpose.
Some of the State has followed the SSMMG-
2016 and has also improvised or customized on the provisions given therein, and are successfully in operation. Salient provision adopted at different stages of sand mining in the state of Tamil Nadu is given as Annexure VIII.
9.6 Actions against illegal excavation and transport Solapur district administration in Maharashtra had adopted a multi-pronged strategy to penalize the persons involved in illegal excavation and transport which resulted in a significant increase in revenue earned by the state. Following rules and procedures as mentioned in these guidelines will add to the costs of PP. Those involved in illegal activities are not required to bear these costs and this will make their supply in the market cheaper (though illegal). This will put the players running their business by following rules and procedures laid down by the government to disadvantage as far as the selling price is 38 considered. Therefore, it is necessary to come down heavily on those involved in illegal excavation/transport, so that there is no incentive for players to abide by the rules.
The following action may be taken to achieve this deterrence against illegal business:
1. The action should be taken under all legal options available simultaneously. Thus, after identifying the case of illegal excavation, storage and/or transport of minor minerals (including sand), fine should be levied as per the land revenue laws/code(s) of the state. In addition, FIR should be lodged in the police station under relevant sections of law including sec 379 IPC. In addition, action under the Motor Vehicle Act, 1989 and relevant rules should initiate to cancel/suspend the driving license of the driver and permit of the vehicle.
Further, action should be initiated under provisions in the Income Tax Act, 1961 for unaccounted income and under the Central Goods and Services Act, 2017 for nonpayment of GST. (Earlier this was done under the state act pertaining to Value Added Tax/Sales Tax). Habitual offenders should also be taken up under local state laws for externment and/or preventive action. It is clarified that as per law, it is possible to take all actions under various laws simultaneously for one offence. What is prohibited in law is an action under the same law for the same act more than once.
2. The action should be taken against all persons responsible. Often, there is a tendency to penalize only the drivers of the vehicles. The mafia of illegal mining and transport is much bigger and drivers are only one part of the system. It is necessary to identify all those involved in the offence. It is usually not possible to reach the place of excavation without creating a motorable pathway up to the same through land which may be private land. Such role of such landowners needs to be looked into for each offence and proceeded against simultaneously. Further, the role of vehicle owners needs to be probed. Role of the person who allowed his land to be used for illegal excavation and storage should also be examined. Lastly, the person who purchases such sand should also be probed. The legal proceedings stated above needs to be initiated against all of these together. An attempt should be made to fix the financial responsibility in joint and several ways so that recovery is easier.
3. There may be discretion available in law about the extent of the penalty to be levied. If such discretion is very wide, then it is advisable that guidelines may be laid down to reduce such discretion in law for levying penalties. For example, in Maharashtra, Land Revenue Code, fine of any amount of penalty up to thrice the value of the sand can be levied. Solapur district administration had instructed Tahsildars 39 and SDMs not to use discretion and levy the fine of three times the value. Availability of discretion makes junior level functionaries susceptible to pressures and it may also lead to corrupt practices.
4. It is emphasized that actions, as stated above, are most important to ensure that the IT-based system works. If these exemplary actions are not taken against everyone, it shall create a strong disincentive to those involved in legal excavation and transportation. For IT-based (or any other) legal system to work, it is necessary to ensure that illegal system stops working altogether.‖
23. Hon'ble the Supreme Court of India in State of Bihar and Ors vs. Pawan Kumar and Ors etc (Civil Appeal No. 3661-3662 of 2020) decided on 10th November, 2021 considered the essentiality and prerequisite of DSR and held as follows:
―7. It cannot be in dispute that though the developmental activities are not stalled, the environmental issues are also required to be addressed. A balanced approach of sustainable development ensuring environmental safeguards, needs to be resorted to. At the same time, it also cannot be ignored that when legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization and at times, loss of human lives. It also cannot be disputed that sand is required for construction of public infrastructural projects as well as public and private construction activities. A total ban on legal mining, apart from giving rise to illegal mining, also causes huge loss to the public exchequer.
8. Taking into consideration these aspects of the matter, we propose to issue certain interim directions.
9. The Tribunal, in the case of Satendra Pandey (supra), has found that the notification dated 15th January 2016, which provided Environmental Clearance to be given by the District Environment Impact Assessment Authority (hereinafter referred to as the ―DEIAA‖) was not in consonance with the judgment of this Court in the case of Deepak Kumar v. State of Haryana and Others2. The Tribunal therefore in Satendra Pandey (supra), had directed Ministry of Environment, Forest and Climate Change (hereinafter referred to as ―MoEF and CC) to take steps to revise the procedure laid down in the notification dated 15th January 2016. It is to be noted that MoEF and CC, in accordance with the directions of the Tribunal, had issued Enforcement and Monitoring 40 Guidelines for Sand Mining (hereinafter to referred to as ―the 2020 guidelines‖) in the month of January 2020. Chapter 4 of the 2020 guidelines deals with identification of possible sand mining sources and preparation of DSR. It will be relevant to refer to Clause 4.1.1 (a), (o) and (p) of the 2020 guidelines:
"4.1 Identification of possible sand mining sources and preparation of District Survey Report (DSR) 4.1.1 Preparation of District Survey Report. District Survey Report for sand mining shall be prepared before the auction/e-auction/ grant of the mining lease/Letter of Intent (Loi) by Mining department or department dealing the mining activity in respective states.
o) Potential site for mining having its impact on the forest, protected area, habitation, bridges etc, shall be avoided. For this, a sub divisional committee may be formed which after the site visit shall decide its suitability for mining. The list of mining lease after the recommendation of the Committee needs to be defined in the following format given in as Annexure II. The Sub Divisional Committee after the site visit shall make a recommendation on the site for its suitability of mining and also records the reason for selecting the mining lease in the Patta land. The details regarding cluster and contiguous cluster needs to be provided as in Annexure III. The details of the transportation need to ~e provided as in Annexure IV.
p) Public consultation- The Comments of the various stakeholders may be sought on the list of mining lease to be auctioned. The State Government shall give an advertisement in the local and national newspaper for seeking comments of the general public on the list of mining' lease included in the DSR. The DSR should be placed in the public domain for at least one month from the date of publication of the advertisement for obtaining comments of the general public. The comments so received shall be placed before the sub divisional committee for active consideration. The final list of sand mining areas [leases to be granted on riverbed & Patta land/Khatedari land, de-siltation location (ponds/lakes/dams), M-Sand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per Annexure-V. The details regarding cluster and contiguous cluster needs to be provided in Annexure-
VI. The details of the transportation need to be provided in Annexure-VII.‖
10. It could thus be seen that in accordance with the 2020 41 guidelines, the DSR is required to be prepared before the auction/e-auction/ grant of mining lease by Mining Department or Department dealing with mining activity in the respective States. It is further provided that the potential site for mining having its impact on the forest, protected area, habitation and bridges should be avoided. For this, a sub divisional committee is required to be formed which, after the site visit, is required to decide regarding the suitability of the sites for mining. The sub divisional committee is further required to record its reasons for selecting the mining lease in the patta land. Various details are required to be given in the annexure appended to the said policy.
11. It is further to be noted that Appendix-X of the notification dated 15th January 2016, issued by MoEF and CC also provides for composition of the sub divisional committee:
―A Sub Divisional Committee comprising of Sub Divisional Magistrate, Officers from Irrigation department, State Pollution Control Board or Committee, Forest department, Geology or mining officer shall visit each site for which environmental clearance has been applied for and make recommendation on suitability of site for mining or prohibition thereof.‖
12. It is to be noted that with the advent of modern technology, various technological gadgets like Drones and satellite imaging etc. can be used for identification of the potential sites and preparation of the DSR and also to check misuse and unauthorized mining.
13. We further find that when the 2020 guidelines as well as the notification issued by MoEF and CC of 2016 itself provide for constitution of sub divisional committees comprising of the officers of the State Government from various Departments for identification of the potential sites for mining, there would be no necessity of the DSRs being prepared through private consultants as directed by the Tribunal in the impugned order. The sub divisional committee consists of various officers from Revenue Department, Irrigation Department, State Pollution Control Board, Forest Department and Geology Mining Department of the State Government. They are better equipped to visit the sites and prepare the draft DSR for the concerned district. Apart from that, preparation of DSR through private consultants would also unnecessarily burden the public exchequer. We are therefore of the view that the direction in that regard issued by the Tribunal requires to be modified. We are further of the considered view that until the DSRs are finalized and granted approval by SEAC and 42 SEIAA, it is appropriate that certain necessary arrangements are permitted so that the State can continue with legal mining activities. This apart from preventing illegal mining activities, would also ensure that the public exchequer is not deprived of its share in legalized mining.
14. We therefore find it appropriate to substitute the directions issued by the Tribunal vide judgment and order dated 14th October 2020, with the following directions:-
(i) The exercise of preparation of DSR for the purpose of mining in the State of Bihar in all the districts shall be undertaken afresh. The draft DSRs shall be prepared by the sub divisional committees consisting of the Sub-Divisional Magistrate, Officers from Irrigation Department, State Pollution Control Board or Committee, Forest Department, Geological or mining officer. The same shall be prepared by undertaking site visits and also by using modern technology. The said draft DSRs shall be prepared within a period of 6 weeks from the date of this order. After the draft DSRs are prepared, the District Magistrate of the concerned District shall forward the same for examination and evaluation by the SEAC. The same shall be examined by the SEAC within a period of 6 weeks and its report shall be forwarded to the SEIAA within the aforesaid period of 6 weeks from the receipt of it. The SEIAA will thereafter consider the grant of approval to such DSRs within a period of 6 weeks from the receipt thereon;
(ii) Needless to state that while preparing DSRs and the appraisal thereof by SEAC and SEIAA, it should be ensured that a strict adherence to the procedure and parameters laid down in the policy of January 2020 should be followed;
(iii) Until further orders, we permit the State Government to carry on mining activities through Bihar State Mining Corporation for which it may employ the services of the contractors. However, while doing so, the State Government shall ensure that all environmental concerns are taken care of and no damage is caused to the environment.‖
24. The matter of mining and illegal transportation was taken up by the Principal Bench of this Tribunal in Original Application no. 360/2015 and vide order dated 26.02.2021, the Tribunal observed as follows :-43
"Interaction for Effective enforcement ―26. The above discussion shows that the problem has defied solution and unless tackled seriously, damage to the environment will continue. Clear road map is thus required with effective monitoring mechanism. Report of the Oversight Committee for UP and affidavit of the State of MP, the report from Rajasthan and some other States also show that effective mechanism is lacking. For clarity on all issues, periodic interaction of stake holders, particularly the enforcement authorities is required. This will also facilitate engagement of accredited agencies/experts for preparing DSRs/replenishment studies. In the Central Government, the concerned authorities include Mining Ministry, Environment Ministry, Jalshakti Ministry and CPCB. In States, Departments of Mining, Environment, SEIAA, PCB and District Magistrates.
Enforcement of Monitoring Mechanism and review by the Chief Secretary at State level and Secretary MoEF&CC at National level
27. We direct all the States/UTs to strictly follow the SSMG-2016 read with EMGSM-2020 reinforced by mechanism for preparation of DSRs (in terms of directions of this Tribunal dated 14.10.2020 in Pawan Kumar, supra and 04.11.2020 in Rupesh Pethe, supra), Environment Management Plans, replenishment studies, mine closure plans, grant of EC (in terms of direction dated 13.09.2018 in Satendra Pandey, supra), assessment and recovery of compensation (as per discussion in Para 25), seizure and release of vehicles involved in illegal mining (in terms of order dated 19.02.2020 in Mushtakeem, supra), other safeguards against violations, grievance redressal, accountability of the designated officers and periodical review at higher levels. As already noted, EMGSM-2020 contemplates extensive use of digital technology, including remote sensing.
28. We further direct that periodic inspection be conducted by a five- members Committee, headed and coordinated by the SEIAA and comprising CPCB (wherever it has regional office), State PCB and two expert members of SEAC dealing with the subject. Where CPCB regional office is not available, if MoEF&CC regional office is available, its Regional Officer will be included in the Committee. Where neither CPCB nor MoEF&CC regional office exists, Chairman, SEIAA will tie up with the nearest institution of repute such as IIT to nominate an expert for being included in the Committee. Such 44 inspection must be conducted at least thrice for each lease i.e. after expiry of 25% the lease period, then after 50% of the period and finally six months before expiry of the lease period for midway correction and assessment of damage, if any. The reports of such inspections be acted upon and placed on website of the SEIAA. Every lessee, undertaking mining, must have an environment professional to facilitate sustainable mining in terms of the mining plan and environmental norms. This be overseen by the SEIAA. Environment Departments may also develop an appropriate mobile App for receiving and redressing the grievances against the sand mining, including connivance of the authorities and also a mechanism to fix accountability of the concerned officers. Recommendations of the Oversight Committee for the State of UP quoted earlier may be duly taken into account.
The mechanism must provide for review at the level of the Chief Secretary at least once in every quarter, in a meeting with all concerned Departments in the State. The Chief Secretary UP may ensure further action in the light of the report of the Oversight Committee.
Similarly, at National level, such review needs to be conducted atleast once in a year by the Secretary, Environment in coordination with the Secretaries Mining and Jalshakti Ministries the CPCB.
Publication of Annual Reports.
29. We further direct all the States/UTs to publish their annual reports on the subject and such annual reports may be furnished to MoEF&CC by 30th April every year giving status till 31st March. First such report as on 31.03.2022 may be filed with the MoEF&CC by all he States/UTs on or before 30.04.2022. The report may also be simultaneously posted on the website of the Environment Department of the States/UTs. Based on such reports, MoEF&CC may consider supplementing its Guidelines from time to time. The MoEF&CC may prepare a consolidated report considering the reports from the States/UTs and publish its own report on the subject, preferably by 31st May every year.
Interaction at National Level
30. We direct the Secretary MoEF to convene a meeting in coordination with the CPCB and Mining and Jalshakti Ministries of Central Government and such other experts/individuals at National 45 level and representatives of States within three months for interaction on the subject which may be followed by such meetings being convened by the Chief Secretaries in all States in next three months. Holding of such meetings will provide clarity on enforcement strategies and help protection of environment.‖
25. Continuous monitoring by this Tribunal is a difficult situation. In view of the Constitutional provisions control of illegal mining is purely within the domain of the State Government. It is necessary to quote the relevant paragraphs with regard to rule making power of the State and the control of illegal mining which is enshrined in the constitution as follows :-
―Entry-54 of List I-Union List of the Seventh Schedule of the Constitution of India deals with regulation of mines and mineral development under the control of the Union. Entry-54 of List-I reads as under:
―54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.‖
29. Entry-23 of List II-State List of the Seventh Schedule of the Constitution provides as under:
―23. Regulation of mines and mineral development subject to the provisions of List-I with respect to regulation and development under the control of the Union.‖
30. The Act, 1957 i.e. the Mines and Minerals (Development and Regulation) Act, 1957 is enacted by the Parliament to provide for the development and regulation of mines and minerals. Section 3(e) of the Act, 1957 defines ‗minor minerals'. It reads thus:
―(e) ―minor minerals‖ means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral;‖
31. Sub-section (1-A) of Section 4 of the Act, 1957 prohibits transportation and storage of minerals in the following manner:
―4(1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.‖ 46
32. Section 15 of the Act, 1957 gives power to the State Government to make rules in respect of minor minerals. Section 15 is extracted below:
―15. Power of State Governments to make rules in respect of minor minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith.
(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions may be made and the fees to be paid therefore;
(b) the time within which, and the form in which, acknowledgement of the receipt of any such applications may be sent;
(c) the matters which may be considered where applications in respect of the same land are received within the same day;
(d) the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concessions may be granted or renewed;
(e) the procedure for obtaining quarry leases, mining leases or other mineral concessions;
(f) the facilities to be afforded by holders of quarry leases, mining leases or other mineral concessions to persons deputed by the Government for the purpose of undertaking research or training in matters relating to mining operations;
(g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable;
(h) the manner in which rights of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining operations;
(i) the manner in which rehabilitation of flora and other vegetation, such as trees, shrubs and the like destroyed by reason of any quarrying or mining operations shall be made in the same area or in any other area selected by the State Government (whether by way of 47 reimbursement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease;
(j) the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred;
(k) the construction, maintenance and use of roads, power transmission lines, tramways, railways, aerial ropeways, pipelines and the making of passage for water for mining purposes on any land comprised in a quarry or mining lease or other mineral concession;
(l) the form of registers to be maintained under this Act;
(m) the reports and statements to be submitted by holders of quarry or mining leases or other mineral concessions and the authority to which such reports and statements shall be submitted;
(n) the period within which and the manner in which and the authority to which applications for revision of any order passed by any authority under these rules may be made, the fees to be paid therefore, and the powers of the revisional authority; and
(o) any other matter which is to be, or may be prescribed.
2) Until rules are made under sub-section (1), any rules made by a State Government regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force.
(3) The holder of a mining lease or any other mineral concession granted under any rule made under sub-
section (1) shall pay royalty or dead rent, whichever is more in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals:
Provided that the State Government shall not enhance the rate of royalty or dead rent in respect of any minor mineral for more than once during any period of three years.
4) Without prejudice to sub-sections (1), (2) and sub-
section (3), the State Government may, by notification, make rules for regulating the provisions of this Act for the following, namely--
(a) the manner in which the District Mineral Foundation shall work for the interest and benefit of persons and areas affected by mining under sub-section (2) of Section 9B;
(b) the composition and functions of the District Mineral Foundation under sub-section (3) of Section 9B; and 48
(c) the amount of payment to be made to the District Mineral Foundation by concession-holders of minor minerals under Section 15A.
―33. Section 23-C of the Act, 1957 gives power to the State Government to make rules for preventing illegal mining, transportation and storage of minerals. Section 23-C reads thus:
―23-C. Power of State Government to make rules for preventing illegal mining, transportation and storage of minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) establishment of check-posts for checking of minerals under transit;
(b) establishment of weigh-bridges to measure the quantity of mineral being transported;
(c) regulation of mineral being transported from the area granted under a prospecting licence or a mining lease or a quarrying licence or a permit, in whatever name the permission to excavate minerals, has been given;
(d) inspection, checking and search of minerals at the place of excavation or storage or during transit;
(e) maintenance of registers and forms for the purposes of these rules;
(f) the period within which and the authority to which applications for revision of any order passed by any authority be preferred under any rule made under this section and the fees to be paid therefore and powers of such authority for disposing of such applications; and
(g) any other matter which is required to be, or may be, prescribed for the purpose of prevention of illegal mining, transportation and storage of minerals.
(3) Notwithstanding anything contained in Section 30, the Central Government shall have no power to revise any order passed by a State Government or any of its authorized officers or any authority under the rules made under sub-sections (1) and (2).‖
68. Section 23 C of MMDR, Act 1957 empowered the State Government to make rules for preventing illegal mining, transportation and storage of minerals. But in the recent past, it has been observed that there was large number of illegal mining cases in the Country and in some cases, many of the officers lost 49 their lives while executing their duties for curbing illegal mining incidence. The illegal and uncontrolled illegal mining leads to loss of revenue to the State and degradation of the environment.‖
26. Accordingly, we direct the Chief Secretary, State of Rajasthan to continuously monitor illegal mining or develop a mechanism to control the illegal minings and to ensure that there shall not be illegal mining and there must be compliance of the Sustainable Sand Mining Management Guidelines, 2016 & The Enforcement and Monitoring Guidelines for Sand Mining, 2020.
27. State Pollution Control Board is directed to ensure the compliance of environmental rules and further to take necessary steps to control the illegal mining, to initiate proceedings for prosecution in-case the matter of illegal sand mining or illegal transportation of sand mining is found and in addition, to take necessary steps for assessment and realisation of environmental compensation as prescribed by the CPCB or as prescribed in original application no.360/2015. The Original Application No. 74/2019 alongwith I.A. No. 113/2019 stand disposed of accordingly.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 26th April, 2022 O.A. No. 74/2019(CZ) PN 50