National Green Tribunal
Sabarmati Majoor Kamdar Sahkari Mandli vs State Of Gujarat on 30 September, 2020
Item Nos. 04 to 08 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Appeal No. 03/2020 (WZ)
(Earlier Original Application No. 85/2019 (WZ))
(I.A. No. 63/2020)
With
Appeal No. 04/2020 (WZ)
(Earlier Original Application No. 86/2019 (WZ))
With
Appeal No. 05/2020 (WZ)
(Earlier Original Application No. 87/2019 (WZ))
With
Appeal No. 06/2020 (WZ)
(Earlier Original Application No. 88/2019 (WZ))
With
Appeal No. 07/2020 (WZ)
(Earlier Original Application No. 89/2019 (WZ))
Sabarmati Majoor Kamdar Sahkari Mandli Ltd. Appellant(s)
Versus
State of Gujarat & Ors. Respondent(s)
With
Narendrasinh Baldevsinh Rathod Appellant(s)
Versus
State of Gujarat & Ors. Respondent(s)
With
Narendrasinh Baldevsinh Rathod Appellant(s)
Versus
State of Gujarat & Ors. Respondent(s)
With
Narendrasinh Baldevsinh Rathod Appellant(s)
Versus
State of Gujarat & Ors. Respondent(s)
With
Vishnuji Panaji Vanzara Appellant(s)
1
Versus
State of Gujarat & Ors. Respondent(s)
Date of hearing: 30.09.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Appellant(s) : Ms. Aastha Mehta, Ms. Sangna Kansagra &
Mr. Bhanji Solanki, Advocates
For Respondent (s): Mr. D. M. Gupte, Advocate for R-2 (MoEF&CC)
Mr. Maulik Nanavati, Advocate for R-3
ORDER
1. Since a common question of law and fact is involved in all the appeals, thus all the appeals are taken together.
2. These appeals have been filed against the order passed by the respondent no. 3- State Environment Impact Assessment Authority (SEIAA) whereby the Environment Clearance (EC) granted to the appellants were cancelled. It has been stated by the appellants that EC which was granted in favour of the appellants was valid and legal one for operating the sand mining and has followed all due procedure while applying for the same. It is further stated that the authorities after due and careful deliberation have granted EC to the appellants.
3. The ground on which the appellant's EC has been cancelled by the SEIAA is that the mining lease is within 500 meters of human habitation and the said fact has been concealed in Form-1. The human habitation which has been considered by the SEIAA is "Aluva Hills" a luxurious weekend home scheme which caters to only a few property owners. The said Aluva Hills is not an approved and/or registered place of continuous human habitation. The villages of Rajpur and Aluva, which are registered villages with 2 continuous human habitation have been shown and disclosed by the appellant since the Form-1 stage. The fulcrum of the entire issue is whether the standard contemplated under Sustainable Sand Mining Management Guidelines, 2016 ("2016 Guidelines") is applicable for the purpose of alleging any violation or an arbitrary standard of 500 meter which has no basis under law can be used by the authorities for the purpose of rejecting the EC. It is submitted that the criteria of 500 meter from human habitation has no basis in any guideline or under any statute. Sand mining is governed by the criteria and safeguards prescribed in 2016 Guidelines, which does not prescribe 500 meter within human habitation. The basis of alleging concealment is false, since Aluva Hills is not a permanent human habitation. The appellant's EC has been rejected on completely frivolous and arbitrary grounds.
4. It is argued that the appellant has been granted the sand mining in said lease area and till date the appellant has not started his operations on the said area. There is no allegation of any illegality in the mining activity till today against the appellant. The controversy as to cancellation of EC is based on an erroneous observation made in the meeting dated 16.07.2019 held by respondent no. 4 - State Level Expert Appraisal Committee (SEAC) which is as follows:
"Committee noted that aforementioned Project Proponents have concealed the facts for the location of human habitation within 500 meter area (including Aluva Hills) from periphery of the lease while applying for the Environmental Clearance.......
Hence, after deliberation, committee noted that aforementioned Project Proponents could not explain their stand before the Committee regarding willful hide of the facts while submitting application for obtaining EC.3
In view of the above, it was unanimously decided to recommend to SEIAA for cancellation the environmental clearances accorded to all the leases mentioned above in tabular column."
5. It is further argued by the learned counsel for the appellant that respondent no. 4 has taken the EC issued in favour of the appellant society with reference to clause 8(v) of Environment Impact Assessment Notification, 2006 in the 528th meeting held on 16.07.2019 or respondent no. 4 in the minutes of meeting of 528th meeting mentioned that respondent no. 5 has received representation from the residents of Aluva Hills dated 17.12.2008 raising grievance that earlier EC application was rejected due to existence of human habitation at 120 meters from the subject lease area and subsequently, project proponent has not mentioned about the fact of the surrounding entities and has obtained EC. The human habitation which has been considered by the SEIAA is Aluva Hills a luxurious weekend home scheme which caters to only a few property owners. The scheme of Aluva Hills is not a densely populated zone, neither it is a fully built up area since the plots in the said scheme are spread across acres.
6. Office of the respondent no. 6- Geologist, Gandhinagar, Gujarat has requested to take appropriate action to respondent no. 4 on three aspects. The appellant further stated that in the meeting dated 03.01.2019, respondent no. 4 after deliberation decided to carry out joint inspection with the help of Regional Officer, State Pollution Control Board and Geologist, District Gandhinagar. The appellant stated that the appellant society was called upon to clarify all the aspects and after joint inspection carried out by the above-mentioned officers, submitted report on 06.03.2019 to 4 respondent no. 4. The appellant further stated that appellant has submitted his submissions with presentation dated 16.07.2019 before the respondent no. 4. In the above report, it was mentioned that there are in all six leases, including the subject lease, existing within 500 meters distance from the nearest human habitation. After discussion of all the aspects, respondent no. 4 has noted that appellant society and other lease holders have concealed the facts for the location of human habitation within 500 meters area from the periphery of lease (boundary) while applying for the EC and, therefore, on the sole ground of concealment of the fact under clause 8(v) of the EIA Notification, 2006 recommended to respondent no. 4 for cancellation of the EC accorded to all the lease holders. The aforesaid recommendation was considered in the 258th meeting held on 30.07.2019 of respondent no. 3 and decided to cancel EC, as recommended by respondent no. 4. The appellant further states that on the basis of decision taken by respondent no. 3 order dated 23.08.2019 cancelling the EC issued in favour of the appellant society was communicated.
7. It is further argued that the impugned order is directly in contravention of standards established under 2016 Guidelines. The said Guidelines prescribe different Environment Standard in Clause 49 which is titled "Protection of Infrastructure" which provides that the mining shall not be undertaken in mining lease located in 200-500 infrastructure meter of bridge, 200 meter upstream and downstream of water supply/irrigation scheme, 100 meters from the edge of National Highway and railway line, 50 meters from a reservoir, canal or building, 25 meter from the edge of State Highway and 10 meters from the edge of other roads except 5 on special exemption by the Sub-Divisional level Joint Inspection committee.
8. In the case of Sudarshan Das vs. State of West Bengal, Original Application No. 173 of 2018 vide order dated 04.09.2019, this Tribunal directed that all safeguards which are suggested in Sustainable Sand Mining Guidelines as well as notification dated 15.01.2016 ought to be scrupulously followed.
9. The version of the respondent was that Aluva Hills and human habitation is within 500 meters of lease area. It is submitted that Aluva Hills ought not to be considered as human habitation since the same is only a scheme for weekend homes. Aluva Hills cannot be termed as continuous human habitation. The said scheme falls within the village Aluva which has been disclosed as human habitation on all prior occasions.
10. While the learned counsel appearing for the respondent had submitted that the appellant had admitted the fact that there is habitation within the area prescribed and as shown by the respondents, the SEIAA has not considered Rule 18(6) of Gujarat Minor Mineral Concession Rules 2017 which also does not stipulate criteria for 500 meters. The said Rule makes it amply clear that mining operations cannot be carried out within 500 meters from an approved continuous habitation.
11. The learned counsel appearing for the Ministry of Environment, Forest and Climate Change (MoEF&CC) has argued that the respondent- Ministry has formulated the new guidelines i.e. "Enforcement & Monitoring Guidelines for Sand Mining" (EMGSM 2020) supplemental to the existing guidelines i.e. Sustainable Sand 6 Management Guidelines 2016, which focus on the effective monitoring of the sand mining since from the identification of sand mineral sources of its dispatch and end-use by consumers and the general public. Further, this document will serve as a guideline for collection of critical information of enforcement of the regulatory provision(s) and also highlights the essential infrastructural requirements necessary for effective monitoring for sustainable sand mining.
12. Learned counsel appearing for the MoEF&CC has submitted that the Monitoring Guidelines as issued by the Ministry is required to be followed. It is to be noted that enforcement of Monitoring Guidelines for Sand Mining was issued in January, 2020 by the Ministry of Environment and Forest. The relevant paras are quoted below:
"a) Parts of the river reach that experience deposition or aggradation shall be identified. The Leaseholder/ Environmental Clearance holder may be allowed to extract the sand and gravel deposit in these locations to manage aggradation problem.
b) The distance between sites for sand and gravel mining shall depend on the replenishment rate of the river. Sediment rating curve for the potential sites shall be developed and checked against the extracted volumes of sand and gravel.
c) Sand and gravel may be extracted across the entire active channel during the dry season.
d) Abandoned stream channels on the terrace and inactive floodplains be preferred rather than active channels and their deltas and flood plains. The stream should not be diverted to form the inactive channel.
e) Layers of sand and gravel which could be removed from the river bed shall depend on the width of the river and replenishment rate of the river.
f) Sand and gravel shall not be allowed to be extracted where erosion may occur, such as at the concave bank.7
g) Segments of the braided river system should be used preferably falling within the lateral migration area of the river regime that enhances the feasibility of sediment replenishment.
h) Sand and gravel shall not be extracted up to a distance of 1 kilometre (1 km) from major bridges and highways on both sides, or five times (5x) of the span (x) of a bridge/public civil structure (including water intake points) on up-stream side and ten times (10x) the span of such bridge on down-stream side, subjected to a minimum of 250 meters on the upstream side and 500 meters on the downstream side.
i) The sediment sampling should include the bed material and bed material load before, during and after the extraction period.
Develop a sediment rating curve at the upstream end of the potential reach using the surveyed cross-section. Using the historical or gauged flow rating curve, determine the suitable period of high flow that can replenish the extracted volume. Calculate the extraction volume based on the sediment rating curve and high flow period after determining the allowable mining depth.
j) Sand and gravel could be extracted from the downstream of the sand bar at river bends. Retaining the upstream one to two- thirds of the bar and riparian vegetation is accepted as a method to promote channel stability.
k) The flood discharge capacity of the river could be maintained in areas where there is a significant flood hazard to existing structures or infrastructure. Sand and gravel mining may be allowed to maintain the natural flow capacity based on surveyed cross-section history. Alternatively, off-channel or floodplain extraction is recommended to allow rivers to replenish the quantity taken out during mining.
l) The Piedmont Zone (Bhabhar area) particularly in the Himalayan foothills, where riverbed material is mined, this sandy-gravelly track constitutes excellent conduits and holds the greater potential for groundwater recharge. Mining in such areas should be preferred in locations selected away from the channel bank stretches.
m) Mining depth should be restricted to 3 meters and distance from the bank should be ¼th or river width and should not be less than 7.5 meters.
n) The borrow area should preferably be located on the riverside of the proposed embankment because they get silted in the course of time. For low embankment, less than 6 m in height, borrow area should not be selected within 25 m from the toe/heel of the embankment. In the case of the higher 8 embankment, the distance should not be less than 50 m. In order to obviate the development of flow parallels to the embankment, crossbars of width eight times the depth of borrow pits spaced 50 to 60 meter center-to-center should be left in the borrow pits.
o) Demarcation of mining area with pillars and geo-referencing should be done prior to the start of mining.
p) A buffer distance /un-mined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.
q) A buffer distance /unmined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.
r) River bed sand mining shall be restricted within the central 3/4th width of the river/rivulet or 7.5 meters (inward) from river banks but up to 10% of the width of the river, as the case may be and decided by regulatory authority while granting environmental clearance in consultation with irrigation department. Regulating authority while regulating the zone of river bed mining shall ensure that the objective to minimize the effects of riverbank erosion and consequential channel migration are achieved to the extent possible. In general, the area for removal of minerals shall not exceed 60% of the mine lease area, and any deviation or relaxation in this regard shall be adequately supported by the scientific report.
s) Mining Plan for the mining leases (non-government) on agricultural fields/Patta land shall only be approved if there is a possibility of replenishment of the mineral or when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market."
4.1.1 Preparation of District Survey Report.
"Sustainable Sand Mining Guidelines, 2016" issued by MoEF&CC requires preparation of District Survey Report (DSR), which is an important initial step before grant of mining lease/LoI. The guidelines emphasize detailed procedure to be followed for the purpose of identification of areas of aggradation/ deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited.9
Calculation of annual rate of replenishment, allowing time for replenishment after mining, identification of ways of scientific and systematic mining; identifying measures for protection of environment and ecology and determining measures for protection of bank erosion, benchmark (BM) with respect to mean Sea Level (MSL) should be made essential in mining channel reaches (MCR) below which no mining shall be allowed.
The NGT in its Judgment dated 08.12.2017 in the matter of Anjani Kumar vs State of Uttar Pradesh & Ors. inter- alia mentioned the following regarding sand mining in the Uttar Pradesh.
"It states that the main object of preparation of District Survey Report is to ensure identification of areas of aggradation/deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining area. Thus, the environmental protection requires a strictly regulated mining in terms of area, quantity as well as most importantly replenishment thereof."
"The data collection and declared for preparation of DSR shall take precedence over other data and would form the foundation for providing mining lease in terms of Appendix- x to the Notification dated 15th January 2016 must be prepared by the statutory authority stated therein i.e. DEIAA prior to awarding of permits for carrying on mining activity in any part of the State of UP."
The Hon'ble High Court of Jharkhand at Ranchi in its orders dated the 11th April, 2018 and 19th June, 2018 in W.P. (PIL) No. 1806 of 2015, in the matter of Court on its Own Motion Versus the State of Jharkhand & Others with W.P. (PIL) No. 290 of 2013, in the matter of Hemant Kumar Shilkarwar Versus the State of Jharkhand & Others, has inter-alia directed the preparation of District Survey Report for minor minerals other than Sand and Bajri or delegation of the powers for preparation of format of District Survey Report of minor minerals other than sand and Bajri to the State Government and/or District Environment Impact Assessment Authority and District Expert Appraisal Committee. To comply with the direction of Hon'ble High Court the Ministry has issued S.O. 3611(E) dated 25.07.2018, wherein, the procedure of preparation of DSR is mentioned. But it is felt that still there is other information that needs to be reported in DSR to make it a comprehensive DSR.
10 Therefore, preparation of District Survey Report is a very important step and sustainable sand mining in any part of the country will depends on the quality of District Survey Report. Considering the importance of district survey report, the Ministry of Environment Forest and climate change, after consultation with experts dealing with mining-related matters, formulated the following guidelines for the preparation of comprehensive District Survey Report for sand mining:
a) District Survey Report for sand mining shall be prepared before the auction/e-auction/grant of the mining lease/Letter of Intent (LoI) by Mining department or department dealing the mining activity in respective states.
b) The first step is to develop the inventory of the River Bed Material and Other sand sources in the District. In order to make the inventory of River Bed Material, a detailed survey of the district needs to be carried out, to identify the source of River Bed Material and alternative source of sand (M- Sand). The source will include rivers, de-siltation of reservoir/dams, Patta lands/Khatedari Land, M-sand etc. The revenue department of Kerala already conducted river mapping and sand auditing of around 20 rivers of Kerala which is a good example wherein the profile of rivers was created at regular intervals and aggradation/deposition was identified along with water level. In the same study, benchmarks were also created at a prominent location at regular interval for future surveying. Such study helps the mining departments to identify the source of sand.
Thus, it is proposed that for preparation of district survey report, the auditing of rivers needs to be carried out. There is already a provision under MMDR Act 2015 for National Mineral Exploration Trust (MET) wherein a 2% of royalty amount to be deposited in the trust. This fund is used for mineral exploration in the country. The Sand Auditing is also a sort of identification of mineral and State Government may request Central Govt. for proving funds for river auditing. The Central Govt. (Ministry of Mines) may also explore the possibilities for providing the funds for river auditing. The other option is that State Govt. may conduct such studies by its own fund and the same may be recovered from the leaseholders to whom the mining lease will be allocated.
c) District Survey Report is to be prepared in such a way that it not only identifies the mineral-bearing area but also define the mining and no mining zones considering various environmental and social factors.
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d) Identification of the source of Sand & M-Sand. The sources may be from Rivers, Lakes, Ponds, Dams, De- silting locations, Patta land/Khtedari lands. The details in case of Rivers such as [name, length of river, type (Perennial or Non-Perennial ), Villages, Tehsil, District], in case of Lakes, Ponds, Dams, De-silting locations [Name, owned/maintained by (State Govt./PSU), area, Villages, Tehsil, District] in case of Patta land/Khtedari lands [ Owner Name, Sy No, Area, Agricultural/Non-Agricultural, Villages, Tehsil, District], in case of M-Sand Plant [Owner Name, Sy No, Area, Quantity/Annum, Villages, Tehsil, District], needs to be recorded as per format given in Annexure-I.
e) Defining the sources of Sand/M-Sand in the district is the next step for identification of the potential area of deposition/aggradation wherein mining lease could be granted. Detailed survey needs to be carried out for quantification of minerals. The purpose of mining in the river bed is for channelization of rivers so as to avoid the possibility of flooding and to maintain the flow of the rivers. For this, the entire river stretch needs to be surveyed and original ground level (OGL) to be recorded and area of aggradation/deposition needs to be ascertained by comparing the level difference between the outside riverbed OGL and water level. Once the area of aggradation/deposition are identified, then the quantity of River Bed Material available needs to be calculated. The next step is channelization of the river bed and for this central ¾th part of the river, width needs to be identified on a map. Out of the ¾th part area, where there is a deposition/aggradation of the material needs to be identified. The remaining ¼th area needs to be kept as no mining zone for the protection of banks. The specific gravity of the material also needs to be ascertained by analyzing the sample from a NABL accredited lab. Thus, the quantity of material available in metric ton needs to be calculated for mining and no mining zone.
Note: As physical survey with conventional method is time- consuming, use of unmanned aerial vehicle (UAV) may be explored to carry out the survey and finalizing the original ground level and for developing a 3D model of the area.
f) The permanent boundary pillars need to be erected after identification of an area of aggradation and deposition outside the bank of the river at a safe location for future surveying. The distance between boundary pillars on each side of the bank shall not be more than 100 meters. 12
g) Identifying the mining and no mining zone shall follow with defining the area of sensitivity by ascertaining the distance of the mining area from the protected area, forest, bridges, important structures, habitation etc. and based on the sensitivity the area needs to be defined in sensitive and non-sensitive area.
h) Demand and supply of the Riverbed Material through market survey needs to be carried out. In addition to this future demand for the next 5 years also needs to be considered.
i) It is suggested that as far as possible the sensitive areas should be avoided for mining, unless local safety condition arises. Such deviation shall be temporary & shall not be a permanent feature.
j) The final area selected for the mining should be then divided into mining lease as per the requirement of State Government. It is suggested the mining lease area should be so selected as to cover the entire deposition area. Dividing a large area of deposition/aggradation into smaller mining leases should be avoided as it leads to loss of mineral and indirectly promote illegal mining.
k) Cluster situation shall be examined. A cluster is formed when one mining lease of homogenous mineral is within 500 meters of the other mining lease. In order to reduce the cluster formation mining lease size should be defined in such a way that distance between any two clusters preferably should not be less than 2.5 Km. Mining lease should be defined in such a way that the total area of the mining leases in a cluster should not be more than 10 Ha.
l) The number of a contiguous cluster needs to be ascertained. Contiguous cluster is formed when one cluster is at a distance of 2.5 Km from the other cluster.
m) The mining outside the riverbed on Patta land/Khatedari land be granted when there is possibility of replenishment of material. In case, there is no replenishment then mining lease shall only be granted when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects, mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market. Cluster situation as mentioned in para k above is also applicable for the mining in Patta land/Khatedari land.
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n) The State Government should define the transportation route from the mining lease considering the maximum production from the mines as at this stage the size of mining leases, their location, the quantity of mineral that can be mined safely etc. is available with the State Government. It is suggested that the transportation route should be selected in such a way that the movement of trucks/tippers/tractors from the villages having habitation should be avoided. The transportation route so selected should be verified by the State Government for its carrying capacity.
o) Potential site for mining having its impact on the forest, protected area, habitation, bridges etc, shall be avoided. For this, a sub-divisional committee may be formed which after the site visit shall decide its suitability for mining. The list of mining lease after the recommendation of the Committee needs to be defined in the following format given in as Annexure-II. The Sub-Divisional Committee after the site visit shall make a recommendation on the site for its suitability of mining and also records the reason for selecting the mining lease in the Patta land. The details regarding cluster and contiguous cluster needs to be provided as in Annexure-III. The details of the transportation need to be provided as in Annexure IV.
p) Public consultation-The Comments of the various stakeholders may be sought on the list of mining lease to be auctioned. The State Government shall give an advertisement in the local and national newspaper for seeking comments of the general public on the list of mining lease included in the DSR. The DSR should be placed in the public domain for at least one month from the date of publication of the advertisement for obtaining comments of the general public. The comments so received shall be placed before the sub-divisional committee for active consideration. The final list of sand mining areas [leases to be granted on riverbed & Patta land/Khatedari land, desiltation location (ponds/lakes/dams), M-Sand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per Annexure- V. The details regarding cluster and contiguous cluster needs to be provided in Annexure-VI. The details of the transportation need to be provided in Annexure-VII. 5.0 REPLENISHMENT STUDY The need for replenishment study for river bed sand is required in order to nullify the adverse impacts arising due to excessing sand extraction. Mining within or near riverbed has a direct 14 impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, in-stream roughness of the bed, flow velocity, discharge capacity, sediment transport capacity, turbidity, temperature etc. Alteration or modification of the above attributes may cause an impact on the ecological equilibrium of the riverine regime, disturbance in channel configuration and flow-paths. This may also cause an adverse impact on instream biota and riparian habitats. It is assumed that the riparian habitat disturbance is minimum if the replenishment is equal to excavation for a given stretch. Therefore, to minimize the adverse impact arising out of sand mining in a given river stretch, it is imperative to have a study of replenishment of material during the defined period. 5.1 Generic Structure of Replenishment Study Initially replenishment study requires four surveys. The first survey needs to be carried out in the month of April for recording the level of mining lease before the monsoon. The second survey is at the time of closing of mines for monsoon season. This survey will provide the quantity of the material excavated before the offset of monsoon. The third survey needs to be carried out after the monsoon to know the quantum of material deposited/replenished in the mining lease. The fourth survey at the end of March to know the quantity of material excavated during the financial year. For the subsequent years, there will be a requirement of only three surveys. The results of year-wise surveys help the state government to establish the replenishment rate of the river. Based on the replenishment rate future auction may be planned.
The replenishment period may vary on nature of the channel and season of deposition arising due to variation in the flow. Such period and season may vary on the geographical and precipitation characteristic of the region and requires to be defined by the local agencies preferable with the help of the Central Water Commission and Indian Meteorological Department. The excavation will, therefore, be limited to estimated replenishment estimated with consideration of other regulatory provisions.
5.2 Methodology for Replenishment Study The replenishment estimation is based on a theoretical empirical formula with the estimation of bedload transport comprising of analytical models to calculate the replenishment estimation. The iso-pluvial maps of IMD can be used for estimation of rainfall. Catchment yield is computed using different standard empirical formulas relevant to the geographical and channel attributes. eg. Strange's Monsoon runoff curves for runoff coefficient). Peak flood discharge for the study area can be calculated by using 15 Dickens, Jarvis and Rational formula at 25, 50 and 100 years return period. The estimation of bed load transport using Ackers and White Equation or similar can be made. A simulation model is used with basic data generated from the field in the pre-study and post-study period (preferably pre-monsoon and post- monsoon) to estimate the volume of replenished material. The particle size distribution and bulk density of the deposited material are required to be assessed from a NABL recognized laboratory. Considering the bulk density and the volume, the estimation of replenishment in weight will be calculated after considering safeguards and stability of the slopes and riverine regime. Some of the common methods used for field data acquisition for replenishment study 5.2.1. Physical survey of the field by the conventional method i. The conventional survey technical using DGPS and other survey tools are used to define the topography, contours and offsets of the lease area. The survey should clearly depict the important attributes of the stretch of the river and its nearby important civil and other feature of importance. Such information will provide the eligible spatial area for mining. The contour and the elevation benchmarks will provide the baseline data for assessing the pre and post-study period scenario. ii. Physical benchmarks are to be fixed at appropriate intervals (preferable 1 in 30 m) and the Reduced Level (RL) shall be validated from a nearby standard RL. These RL should be engraved on a steel plate (Bench Plate) and shall be fixed and placed at locations which are free from any damages and are available in pre and post-study period. The bench plates shall be available for use during the mining period as reference for all mining activity. Reference pillar may also be used in place of Bench Plates with visible and readable demarcation on the ground as common reference points to control the topographic survey and mining activity.
iii. Baseline data on elevation status for a grid of 10 m x 10 m is preferred to have accuracy in the assessment. It is expected that two consecutive cross-sections in longitudinal and lateral direction should not be more than 10-meter distance apart, however, the regulatory authority may fix these intervals depending on the geographical and site-specific conditions, only and after providing the scientific reason for such deviation. iv. The changes observed in the elevation in per and post scenario at each node should be depicted in graphical forms with an appropriate scale to estimate the area of deposition and erosion. These graphical presentations should depict the active channel regime and the flow bed elevation with other important 16 features required to be considered for estimation of the mining area. The area of deposition and erosion shall be calculated for each cross-section after giving due regard to the stability and safety of active channel banks, and other features of importance. The elevation level shall be in reference to the nearest bench-plates established for the purpose. v. The levels (MSL & RL) of the corner point of each grid should be identifiable and safety barriers (Non-Mining) demarcated as restricted in consensus with Mineral Concession Rules of respective State, and the provision mentioned in this Sustainable Sand Mining Management Guidelines. vi A clear identification is required to be highlighted between grids under mineable and grids under the non-mineable area. These baseline data (pre and post) be subjected to stimulation with the help of data mine software to derive at the replenishment area and corresponding volume and estimated weight.
vii. The database should be structured in a tabulated form clearly depicting the nomenclature of the section lines, latitude and longitude of the starting point, chain-age and respective levels of all the points taken on that section line. viii. Net area shall be derived after the summation of the area of deposition minus area of erosion for each cross-section. The volume will be estimated by multiplying the distance between two cross-sections with the average of net area of these two consecutive cross-sections.
ix. One sample per 900 square meters (30 m x 30 m) shall be preferred sample density for assessment of bulk density for estimation of deposition rate. Care should be taken that the sample for assessment of bulk density is taken from the deposition zone and not from erosion. However, depending on the site condition, river morphology and geographical condition, sample density may be adjusted. Reason for such deviation shall be appropriately highlighted in the report with supporting scientific data.
5.2.4 Replenishment study shall have the details of List of instruments List of software Establishment of Benchmark by putting No. of pillar points and various Ground Control Points (GCP) at the site. Ground Control Points (GCP) Collection: - Various GCPs were observed by using DGPS for Permanent Benchmarks and for control points.
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The summary of the elevation data from each section's profile based on the post-monsoon the survey should have mentioned in the table form.
The detail of post-monsoon survey data in the tabular form shall be The detailed comparison of both pre-monsoon and post- monsoon elevation data shall be attached Cross-sectional depiction of deposition and erosion for each section in pre and post-deposition season shall be given supported by relevant field study data and plan.
13. The matter of sand mining and its effects has been discussed in the case of K. Rajasekar vs. The Chief Secretary to Government decided on 16.02.2018 by Hon'ble the Madras High Court and relevant paragraphs are quoted below:
"12. The learned counsel for the writ petitioners in the respective writ petitions contended that the State has been undertaking mining operations without any regard to the environment. The agents engaged by the State for mining and transportation of sand indulged in all kinds of illegal activities and the same resulted in causing considerable damage to the environment. By placing reliance on the report submitted by the Court Commissioners, it was contended that time has come to stop the sand quarrying operations across the River Cauvery and Coleroon in the interest of the ecology. It was further contended that the natural resources, which is the public wealth has been looted by the State in collusion with the intermediaries.
13. The learned Advocate General by placing reliance on the affidavit filed by the Principal Secretary to the Government, Public Works Department and the supporting affidavit filed by the Chief Secretary to the Government submitted that the State would undertake sand mining after satisfying all the legal requirements and without adversely affecting the ecology. According to the learned Advocate General, the State would discharge the obligation undertaken without causing any kind of damage to the environment. The learned Advocate General took us through the proposal indicated in the affidavit filed by the Principal Secretary to the Government to demonstrate that in case the steps suggested by the Government is taken, it would enable the State to undertake mining operations without affecting the environment. The learned Advocate General submitted that there are enough shoals of sand at Mayanur, Sriramasamuthiram/ Sipilaputhur, Chinthalavadi, 18 M.Puthur, Sirugamani, Musiri (West), Panayakurichi and Vittalapuram and made a request to grant permission to the State to undertake sand quarrying operations in those sites subject to the clearance to be obtained from the environmental authorities. The learned Advocate General submitted that sand would be quarried without private participation. It was submitted that on account of the interim order, cost of sand was shooted up and common man is the ultimate sufferer.
24. The adverse effect of sand mining without a proper mine plan was indicated by the Hon'ble Supreme Court in Deepak Kumar and others v. State of Haryana and others [ (2012) 4 SCC 629]
9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both instream biota and the associated riparian habitat. The demand for sand continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand.
25.Quarrying of river sand, it is true, is an important economic activity in the country with river sand forming a crucial raw material for the infrastructural development and for the construction industry but excessive instream sand and gravel mining causes the degradation of rivers. Instream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes the deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material as already mentioned from within or near a streambed has a direct impact on the stream's physical habitat characteristics.
Conditions imposed by the Environment Authority
25. The environmental clearance issued for mining of sand contained the following mandatory conditions:-
i) The Licensee must use minimum number of poclains and it should not be more than two in the project site.
ii) The District Administration should assess the site for Environmental impact at the end of first year to permit the continuation of the operation.19
iii) The Annual replenishment report certified by the authorised agency must be submitted to the prescribed authority. In case, the replenishment is low, the mining activity/production levels shall accordingly be decreased/stopped.
iv) There shall be no quarrying of sand in any river bed or adjoining area or any other area which is located within 500 m radial distances from the location of any bridge, water supply system, infiltration well or pumping installation.
v) The ultimate working depth shall be 1 m from the present natural river bed level and the thickness of the sand available shall be more than 3 m in the proposed quarry site.
vi) The sand quarrying shall not be carried out below the ground water table under any circumstances. In case, the ground water table occurs within the permitted depth at 1 meter, quarrying operation shall be stopped immediately.
vii) The sand mining should not disturb in any way the turbidity, velocity and flow pattern of the river water.
viii) The mining activity shall be monitored by the Taluk level Force once in a month by conducting physical verification.
ix) After closure of the mining, the licensee shall immediately remove all the sheds put up in the quarry and all the equipments used for operation of sand quarry. The roads/pathways shall be levelled to let the river resume its normal course without any artificial obstruction to the extent possible.
x) The mined out pits to be backfilled where warranted and area should be suitably landscaped to prevent environmental degradation.
32. The natural resources are valuable assets of the State. It is the primary duty of the State to conserve the natural resources for our future generation. The citizens must be in a position to enjoy the resources without causing damage to the environment and the ecology. There must be an institutional framework and enforcement mechanism to prevent illegal and excess quarrying.
33. The mining should be undertaken by the State without any adverse impact on the environment. The State alone is responsible for this sorry state of affairs. There is no proper mechanism to check the illegal quarrying and the excess sand mining. The authorities who are given the mandate to operate the sand quarry are not at all concerned with the environment and ecology. They are conducting mining activities in collusion with the mining mafia and looting the natural wealth.
34. The River sand is an essential raw material for construction activity. The cost of construction nowadays depends upon very much on the cost of sand. The State for 20 supply of sand to the people at affordable rate ought to have quarried the River sand judiciously and in compliance with the environmental norms and without causing destruction of Rivers. There is no dispute that depletion of sand in the stream bed would result in deepening of rivers and it would have a cascading effect on the environment. Therefore, a balance has to be struck taking into account the need to preserve the ecology and the need for quarrying River Sand for the economic development of the State.
40. The Hon'ble Supreme Court in M.C.Mehta v. Kamal Nath [1997 (1) Supreme Court Cases 388] made it clear that if there is a law made by the State legislature, the Courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review:
"35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the Courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the constitution."
43. The quarrying operations, even in those quarries where there are shoals of sand, must be undertaken only by abiding the norms and conditions of the environmental clearance. The quarry site shall be closed immediately after removing the available shoals of sand. The area and the depth of the quarry shall be in accordance with the permission granted by the environmental authorities. Such quarrying operations would be subject to the result of the Special Leave Petition pending before the Hon'ble Supreme Court in SLP No.2831 of 2018.
45. The Government must undertake a scientific study with the help of experts to identify the mineral deposits and its exact location. The State must excavate the minerals only from the places identified by the experts and by following the conditions imposed by the environmental authorities. Interlinking roads inside the river must be removed to check the illegal mining and transportation of minerals. The levelling of roads inside the river shall be done on a phased manner and giving priority. The sand mining shall not be undertaken in respect of locations where illegal sand mining has already been carried out.
46. The State must ensure that the sand quarries would adhere to the norms regarding extent and depth. The boundary of the quarry shall be demarcated by following the 21 procedure set-out under Clause 2 (ii) of the conditions imposed by the environmental authority.
50. The Court Commissioners have observed that clearance from the State Environment Impact Assessment Authority (SEIAA) has been routinely obtained for river sand mining without divulging the material factors like existence of Bridge, Water supply system etc. The SEIAA without conducting field inspection and cross checking the details permitted quarrying. There is no mechanism now to ascertain as to whether the conditions imposed by the SEIAA have been complied with by the licensee. This issue must be addressed by the Government and SEIAA. Before granting permission for the sites, where sand is available, the SEIAA must visit the place indicated in the application for sand mining. The boundaries of the site must be shown in the mine plan and excavation must be within the boundaries. The Project Director must fix the pucca permanent pillar boundaries for excavation. The Project Director must ensure that stones are erected at 50 metre intervals along the boundaries with the marking of Shoal height, River Bed Height and depth to be excavated. The State must streamline the entire process right from site selection to operation of quarry and supply of sand in an ecologically friendly and environmentally sustainable manner. The entire quarry sites must have CCTV. There must be IP cameras set up in all the poclains for monitoring the overloading. The State must include environmental experts from reputed Central/State Institutions preferably from Indian Institute of Technology to be part of the District Task Force. It must be the responsibility of the concerned District Collector to oversee, monitor and streamline the functioning of the sand quarrying. The Taluk and District level task force must be sensitized. The officials of the Public Works Department and others involved in the process must be given training periodically in relation to environmental and legal aspects of sand quarrying. The Government must fix liability on officials, who are violating the conditions of the clearance or permitting excess quarrying. The jurisdictional Revenue, Police, Geology and Transport department officials must be taken to task in case of illegal quarrying or transportation of sand without permission. The State Appellate Forum constituted by the order in G.O.Ms.No.27 Industries Department dated 17 February 2015 must be a vibrant body. The Government must set up a centralised control room to monitor sand quarrying operations, one at Chennai and the other at Trichy as undertaken in the affidavit. The Centralised Monitoring through CCTVs must be taken up through live streaming from the control room. There must be a Customer Care Centre to receive complaints and take action on such complaints. The action taken report must be sent to the complainant and it must be available on line."
14. We have two things, sovereignty of the State and the doctrine of public trust. We have to make a balance between the two though 22 the State has every authority to utilize the land but Public Trust Doctrine says that the property of the public should be utilized for the public purposes and not for the private purposes. The water bodies, lake, air and land all these are the public properties and should be made available to all for maintaining the health and environment. This Doctrine of public trust and precautionary measures was discussed in public interest litigation no. 87/ 2006; Bombay Environmental Action Group Vs. State of Maharashtra 2018 SCC onlinebombay 2680.2019(1) Bombay CRI and it was held as follows:-
"Apex Court observed thus:
"2. The Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and saints of India lived in forests. Their preachings contained in vedas, upanishads, smritis, etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora, fauna and every species of life."
" The ancient Roman Empire developed a legal theory known as the "doctrine of the public trust". It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few."
In the case of M.C. Mehta v. Kamal Nath, in paragraph 34 and 35, the Apex Court held thus:
"34. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is 23 the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources."
In the case of Fomento Resorts & Hotels Limited v. Minguel Martins 4, In paragraphs 53 to 55 and 65, the Apex Court held thus:
55. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" (1970), indicates that the public trust 24 doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.
55. The public trust doctrine is a tool for exerting long-
established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.
65. We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems." (emphasis added) 54. Public at large has a right to enjoy and have a benefit of our forests including mangroves forest. The pristine glory of such forests must be protected by the State. The mangroves protect our environment. Therefore, apart from the provisions of various statutes, the doctrine of public trust which is very much applicable in India makes it obligatory duty of the State to protect and preserve mangroves.
PRECAUTIONARYPRINCIPLE
55. In the case of M.C. Mehta (Badhkal and Surajkund Lakes matter) v. Union of India, the Apex Court held thus:
"10. In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held as under:
"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem."25
The "Precautionary Principle" has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes."
15. India is endowed with extraordinarily diverse and distinctive traditional water bodies found in different parts of the country, commonly known as ponds, tanks, lakes, vayalgam, ahars, bawdis, talabs and others. They play an important role in maintaining and restoring the ecological balance. They act as sources of drinking water, recharge groundwater, control floods, support biodiversity, and provide livelihood opportunities to a large number of people. Currently, a major water crisis is being faced by India, where 100 million people are on the frontlines of a nationwide water crisis and many major cities facing an acute water shortage. The situation will worsen as United Nations and Niti Ayog reports say that the demand for water will reach twice the available supply, and 40 per cent of India's population will not have access to clean drinking water by 2030. One of the reasons is our increasing negligence and lack of conservation of waterbodies. Since independence, the government has taken control over the waterbodies and water supply. With a colonial mindset, authorities move further and further away in the quest of water supply, emphasing more on networks, infrastructure and construction of dams. This, over time, has led to the neglect of 26 waterbodies and catchments areas. As a result, we have started valuing land more than water. In the last few decades, waterbodies have been under continuous and unrelenting stress, caused primarily by rapid urbanisation and unplanned growth. Encroachment of waterbodies has been identified as a major cause of flash floods in Mumbai (2005), Uttarakhand (2013), Jammu and Kashmir (2014) and Chennai (2015). Further, waterbodies are being polluted by untreated effluents and sewage that are continuously being dumped into them. Across the country, 86 waterbodies are critically polluted, having a chemical oxygen demand or COD concentration of more than 250 mg/l, which is the discharge standard for a polluting source such as sewage treatment plants and industrial effluent treatment plants. In urban India, the number of waterbodies is declining rapidly. For example, in the 1960s Bangalore had 262 lakes. Now, only 10 hold water. Similarly, in 2001, 137 lakes were listed in Ahmedabad. However, by 2012, 65 were already destroyed and built upon. Hyderabad is another example. In the last 12 years, it has lost 3,245 hectares of its wetlands. The decline in both the quality and quantity of these waterbodies is to the extent that their potential to render various economic and environmental services has reduced drastically. Although there are sufficient polices and acts for protection and restoration of waterbodies, they remain insufficient and ineffective.
16. Realizing the seriousness of the problem confronting waterbodies, the Centre had launched the Repair, Renovation and Restoration of Water Bodies scheme in 2005 with the objectives of comprehensive improvement and restoration of traditional water bodies. These included increasing tank storage capacity, ground water recharge, 27 increased availability of drinking water, improvement of catchment areas of tank commands and others. However, in this regard, not much has been seen on the ground.
17. It is of utmost importance for meeting the rising demand for water augmentation, improving the health of waterbodies as they provide various ecosystem services that are required to manage microclimate, biodiversity and nutrient cycling. Many cities are working towards conservation of waterbodies like the steps initiated in the capital city of Delhi for instance. In turning Delhi into a city of lakes, rejuvenation of 201 waterbodies has been finalised. Of these, the Delhi Jal Board (DJB) plans to revive 155 bodies while the Flood and Irrigation Department will revive 46. DJB claims that the aim is to achieve biological oxygen demand or BOD to 10ppm and total suspended solids to 10mg/l. Also the establishment of the Wetlands Authority by the Delhi government is a welcome step towards notifying and conserving natural waterbodies. In order to achieve the goal of revival of waterbodies, it is important to understand that one solution may not fit all the waterbodies. Depending on the purpose, ecological services, livelihood and socio- cultural practices, the approach will vary from one waterbody to another. However the issues with regard to lack of data and action plans, encroachments, interrupted water flow from the catchment, siltation, violations of laws, solid waste deposit and polluted water, involvement of too many agencies, etc. have to be taken into consideration.
18. Action needs to be taken towards:
28
i. Attaining sustainability. Thus, emphasis on long-term goals, operation and maintenance should be included along with the allocation of budget.
ii. Success of the lakes should be tested on all three fronts namely economic, environmental and social. Many studies point that a deliberate effort has to be made on the social front for which better publicity of the environmental benefits of the project and enhancing environmental awareness, especially among the local community is required.
iii. Encouraging local people to collaborate with other stakeholders to successfully utilise resources and ensure the protection and conservation of waterbodies.
iv. Traditionally, water was seen as a responsibility of citizens and the community collectively took the responsibility of not only building but also of maintaining the water bodies. This needs to be brought back into the system.
v. Thus, an integrated approach taking into account the long-term sustainability, starting from the planning stage where looking at every waterbody along with its catchment, is required.
19. The natural source of air, water and soil cannot be utilized, if the utilization results in irreversible damage to environment. There has been accelerated degradation of the environment primarily on account of lack of effective enforcement of environmental laws and non-compliance with statutory norms. It has been repeatedly held by the Supreme Court that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to enjoyment of pollution free water and air for full enjoyment of life. 29 The definition of sustainable development which gave more than three decades back still holds goods. The phrase covers the development that meets the need of the present without compromising the availability of future generation to meet their own needs. Sustainable development means the type or extent of development that can take place and which can be sustained by nature / ecology with or without mitigation. In these matters the required standards now is that the risk of harm to the environment or to human health is to be decided in public interest according to a reasonable person test. Life, public health and ecology has priority over unemployment and loss of revenue.
20. It is argued by the learned counsel that while passing the order impugned, no opportunity of hearing was given to the appellants and there is no compliance of principles of natural justice. It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi Vs. State Bank of India & Ors., AIR 1984 SC 273; N.K. Prasada Vs. Government of India & Ors., (2004) 6 SCC 299; State of Punjab Vs. Jagir Singh, (2004) 8 SCC 129; Karnataka SRTC & Anr. Vs. S.G. Kotturappa & Anr., (2005) 3 SCC 409; and in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337.
21. In Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr. Vs. Ramjee, AIR 1977 SC 965 the Court has observed that natural justice is not an unruly horse, no lurking landmine, 30 nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
22. In Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416 the Hon'ble Supreme Court held:-
"Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible."
23. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan Lal Gupta & Ors. Vs. Asha Devi Gupta & Ors., (2003) 7 SCC 492; Mardia 31 Chemicals Ltd. Vs. Union of India, AIR 2004 SC 2371 and Canara Bank Vs. Debasis Das, AIR 2003 SC 2041.
24. In Hira Nath Mishra & Ors. Vs. The Principal, Rajendra Medical College, Ranchi & Anr. AIR 1973 SC 1260, the Hon'ble Supreme Court held that principles of natural justice are not inflexible and may differ in different circumstances. Rules of natural justice cannot remain the same applying to all conditions.
25. The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad Vs. B. Karunakar, AIR 1994 SC 1074 made reference to its earlier decisions and observed:-
"In A.K. Kraipak & Ors. Vs. Union of India & Ors., AIR 1970 SC 150, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasijudicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice." (Emphasis added)".
26. The Hon'ble Supreme Court in Bihar School Examination Board Vs. Subhas Chandra Sinha & Ors., AIR 1970 SC 1269 while considering 32 the cancellation of the entire examination because of use of mass copy considered the scope of the principles of natural justice in such a matter and observed:-
"It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go........."
27. After referring to the aforesaid decision, the Supreme Court in Chairman J&K State Board of Education Vs. Feyaz Ahmed Malik, AIR 2000 SC 1039, emphasised that the Board is entrusted with the duty of proper conduct of examinations.
28. In Biswa Ranjan Sahoo & Ors., Vs. Sushanta Kumar Dinda & Ors., AIR 1996 SC 2552, the Hon'ble Supreme Court had the occasion to examine whether principles of natural justice were required to be followed in a matter where because of large scale malpractice in the selection process, the selection was cancelled and in this context it was observed:-
"Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment."
29. In Union of India & Ors. Vs. O. Chakradhar, AIR 2002 SC 1119, the Hon'ble Supreme Court considered the question whether it was necessary to issue individual show cause notices to each selected 33 person when the entire selection was cancelled because of widespread and all pervasive irregularities affecting the result of selection and it was observed:-
"The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable."
30. In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors., AIR 1994 SC 853, the Hon'ble Supreme Court refused to interfere on the ground of breach of principles of natural justice by observing that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
31. It is further to be noted that the Court is to proceed as to whether non-observance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. Even, if in a given case, like the fact of the present case there may be some deviation but it has not resulted in grave injustice or has not prejudiced the cause of the petitioner because the decision taken by the respondent was based on the scientific report. This Court does not function as a Court of appeal on the finding of scientific report submitted by the experts. On examining the facts and circumstances of the present case, it cannot be held that the process adopted or decision made by the respondents is in anyway arbitrary or irrational or in any way in violation of the principles of natural justice. 34
32. Article 21 of the Constitution of India which provides that no person shall be deprived of his right to life or personal liberty, except according to the procedure established by law, is interpreted by the Indian courts to include in this right to life, the right to clean and decent environment. Right to decent environment, as envisaged under Article 21 of the Constitution of India also gives, by necessary implication, the right against environmental degradation. It is in the form of right to protect the environment, as by protecting environment alone can we provide a decent and clean environment to the citizenry. Right to clean environment is a guaranteed fundamental right. Various courts, particularly the superior courts in India are vested with wide powers, especially in terms of Articles 32 and 226 of the Constitution of India to deal with issues relating to the fundamental rights of the persons. The courts, in fact, can even impose exemplary damages against the polluter. Proper and healthy environment enables people to enjoy a quality life which is the essence of the right guaranteed under Article 21. The State and the citizens are under a fundamental obligation to protect and improve the environment including forests, lakes, rivers, wild life and to have compassion for living creatures. Right to have living atmosphere congenial to human existence is a right to life. The State has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. The power to issue directions and other powers should be exercised by the State to effectuate and further the goals of approved scheme, zonal plans, etc. The hazards to health and environment of not only the persons residing in illegal colonisations but of the entire town 35 as well as the provisions and schemes of the relevant Acts have to be taken into consideration. The most vital necessities, namely air, water and soil having regard to the right to life under Article 21 cannot be permitted to be misused or polluted so as to reduce the quality of life of others. Risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. Life, public health and ecology have priority over unemployment and loss of revenue. It is often said that development and protection of environment are not enemies but are two sides of the same coin. If without degrading the environment or by minimising the adverse effects thereupon by applying stringent safeguards, it is possible to carry on developmental activities applying the principle of sustainable development, in that eventuality, development has to go on because one cannot lose sight of the need for development of industry, irrigation resources, power projects, etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. Courts have exercised the power of imposing exemplary damages against the pollutants in order to protect the environment and to restore the damage done to the environment as well. In fact, even the disturbance in the environment by undesirable sound of various kinds, amounts to noise pollution. It is a shadowy public enemy whose growing public menace has increased in the modern age of industrialisation and technological advancement. Noise has become one of the major pollutants and has serious effects on human health. Consistent judicial opinion in India has recognised the right to live in freedom from noise pollution as a fundamental right also, protected under 36 Article 21 of the Constitution. If anybody increases the volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed under Article 21. Courts have even held that Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed under Article 21 of the Constitution. Thus, the right of an individual to healthy and clean environment including air, water, soil and noise-free environment is of paramount consideration and it is impermissible to cause environmental pollution and particularly in violation of the prescribed standards. Since the different facets of environment are relatable to life and human rights and concern a person's liberty, it is necessary that resources are utilised in a planned manner. Wherever industrialisation has an impact on utilisation of essential resources like air, water and soil and results in irreversible damage to environment, then it may be impermissible to utilise these resources in that fashion. In the recent times, there has been accelerated degradation of the environment, primarily on account of lack of effective enforcement of laws and non-compliance with the statutory norms. Concentrated industrialisation in some pockets has been the other reason for enhanced damage to the environment. It emerges from the desire of the people to operate from the areas where the industry presently exists.
33. The right to development itself cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. It encompasses much more than economic 37 well-being and includes within its definition the guarantee of fundamental human rights. It includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of people's wellbeing and realisation of their full potential. It is an integral part of human rights. Of course, development is the essence of any pragmatic and progressive society. But essentially, development besides being inter- generational, must be balanced to its ecology and environment. Sustainable development means that the richness of the earth's bio-diversity would be conserved for future generations by greatly slowing or if possible halting extinctions, habitat and ecosystem destruction, and also by not risking significant alterations of the global environment that might-by an increase in sea level or changing rainfall and vegetation patterns or increasing ultraviolet radiation-alter the opportunities available for future generations. Sustainable development has been defined in many ways but the most frequently quoted definition is from the Brundtland Report which states as follows:
Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:
• The concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and • The idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs.38
34. The earlier school of thought was that development and ecology are opposed to each other but with the passage of time and development of law, this concept has undergone tremendous change and is no longer acceptable. Now operates the principle of sustainable development. It takes within its ambit the application of 'principle of proportionality' and the 'precautionary principle'. In other words, one must, while promoting development, not only ensure that no substantial damage is caused to the environment but also take such preventive measures which would ensure that no irretrievable damage to the environment, even in future, is caused. All these principles have to be examined and applied on the touch stone of "reasonable person's test", as afore-stated. Where the principle of proportionality introduces prudent mind's reasonableness in relation to development vis-a-vis environment, there the precautionary principle can be explained to say that it contemplates that an activity which poses danger and threat to the environment is to be prevented since prevention is better than cure.
35. While applying the concept of sustainable development, one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which courts or tribunals have to balance the priorities of development on the one hand and environmental protection on the other. So sustainable development should also mean the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable person's 39 test'. [Refer: Research Foundation for Science and Technology and Natural Resource Policy v. Union of India MANU/SC/7894/2007 :
(2007) 9 SCR 906; Narmada Bachao Andolan v. Union of India supra; Chairman Barton: The Status of the Precautionary Principle in Australia (Vol. 22) (1998) (Harv. Envtt. Law Review, p. 509 at p.
549-A) as in A.P. Pollution Control Board v. Prof M.V. Nayudu supra; and M.C. Mehta v. Union of India, supra.] At this stage, we may usefully refer to a very recent judgment of the Supreme Court in the case of G. Sundarrjan v. Union of India & Ors. MANU/SC/0466/2013: (2013) 6 SCC 620 where the Court, while referring to the principles of balance inbuilt in the concept of sustainable development, elaborated the principles as follows:
228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society. But, a pregnant one, the present case really does not fall within the four corners of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is done and there is constant vigil, life of "some" can be in danger.40
That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution.
36. Sustainable Development primarily finds its origin from the Rio Declaration, 1992 on Environment and Development. Certain principles were stated for achieving sustainable development. The element of integration of environmental and developmental aspects was spelt out in the following principles of that Declaration:
Principle 3:
The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
Principle 4:
In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
37. In fact, in Karnataka Industrial Areas Development Board v. C. Kenchappa & Ors. MANU/SC/8159/2006 : (2006) 6 SCC 383-84, the Apex Court held as follows:
63. The World Conservation Union' and 'the Worldwide Fund for Nature' prepared jointly by UNEP described that 'sustainable development, therefore, depends upon accepting a duty to seek harmony with other people and with nature' according to Caring for the Earth, A Strategy for Sustainable Living. The guiding rules are:
(i) People must share with each other and care for the earth;
(ii) Humanity must take no more from nature than man can replenish; and
(iii) People must adopt lifestyles and development paths that respect and work within nature's limits.
38. The development should be such as can be sustained by ecology.
Sustainable development would be the development which can be 41 maintained indefinitely in proportion to environment and ecology. Thus, there should not be development at the cost of causing irretrievable or irreversible damage to the ecology or the environment. They must find a common path and objectivity in achieving the goal of sustainable development.
39. Precautionary principle is one of the most important concepts of sustainable development. This principle essentially has the element of prevention as well as prohibition. In order to protect the environment, it may become necessary to take some preventive measures as well as to prohibit certain activities. These decisions should be based on best possible scientific information and analysis of risks. Precautionary measures may still have to be taken where there is uncertainty but potential risk exists. Ecological impact should be given paramount consideration, particularly when the end result would be irreversible. The decision making authority should assess the records and conclude whether it was a case of directing precautionary and preventive measures to be taken or that the information on which it has to reach a determination is inadequate. Informed decision is the essence of a preventive or a prohibitory decision. The principle of direction thereunder involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity which is based on scientific certainty. Environmental protection should not only aim at protecting health, property and economic interest but also the environment for its own sake. It is said that inadequacies of science is the basis that has led to change from an 'assimilating impact principle' to 'precautionary principle'. Availability of scientific data is one of the 42 most essential features of environmental adjudication. The precautionary principle was stated in Article 7 of the Bergen Ministerial Declaration on Sustainable Development in the ECE Region, May, 1990, as incorporated in an article of Professor Ben Boer, which reads as follows:
Environmental measures must anticipate, prevent and attack the causes of environment degradation. Where there are threats of serious or irreversible damage, lack of scientific certainty should not be used as reason for postponing measures to prevent environmental degradation.
40. The Supreme Court of India, in the case of Vellore Citizens' Welfare Forum v. Union of India (MANU/SC/0686/1996 : AIR 1996 SC 2715) recognised the precautionary principle and explained it as follows:
"11. (i) Environmental measures-by the State Government and the statutory authorities-must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The 'onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign."
41. On the analysis of the above, one could state the essentials of invocation of precautionary principle as under:
(a) There should be an imminent environmental or ecological threat in regard to carrying out of an activity or development;
(b) Such threat should be supported by reasonable scientific data;
and
(c) Taking precautionary, preventive or prohibitory steps would serve the larger public and environmental interest.
42. With reference to these ingredients, the decision making authority, upon taking an objective approach, could take recourse to and 43 pass directives under the precautionary and preventive principles. These are the tools available to the authorities concerned to adopt a balanced and pragmatic approach to ensure environmental protection while permitting sustainable development.
43. It will not only be expected of but shall be an obligation on the decision making authority to identify sources of pollution as well as their impact on public health or environment. It must be understood that every direction under the precautionary principle is not a punitive action in its content and effect. These are two different legal connotations which operate in their own respective fields. Precaution in contradistinction to punitive action is an anticipated action and is futuristic.
44. 'Precaution' is a measure taken in advance to prevent something dangerous, unpleasant or inconvenient from happening. To put it simply, it is a prudent foresight, while a 'punitive' action is one involving or inflicting punishment. It has an element of something that has already occurred.
45. Environmental pollution was controlled rigidly in the ancient times.
It was an affair limited to individuals but the society as a whole accepted as its duty to protect environment. It was to sustain and ensure progress of all. Thus, it was acceded as a positive duty with regard to protecting the environment on the one hand and the fear of punishment on the other. Apart from the motivation, efforts were not only to punish the culprits who damage the trees or other environment but also to balance the ecosystem [T.N. Godavarman Thirumulpad v. Union of India (supra)].
44
46. Punitive action, which would include punishment in one form or the other, would normally be for the damage or the wrong done to environment and for its restoration thereto. Therefore, there must be a nexus between befalling of an event, or its likelihood thereof, and its pollution source and the injury apprehended or caused. All these ingredients must be supported by reasonable scientific data, especially in the case of precautionary principle.
47. This brings us to discuss the onus of proof in matters relating to environment. We must, at the very threshold of discussion on this topic refer to the judgment of the Supreme Court in A.P. Pollution Control Board v. Prof. M.V. Nayudu supra, where the Hon'ble Court, while discussing the onus in environmental matters, held as under:
"31. The Vellore judgment has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that Courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them.
The precautionary Principle replaces the Assimilative Capacity principle:
32. A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier the concept was based on the 'assimilative capacity rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the 'precautionary Principle', and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows:
Principle 15: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage; lack of full scientific certainty shall not be used as a reason for proposing cost- effective measures to prevent environmental degradation.45
33. In regard to the cause for the emergence of this principle, Chairman Barton, in the article earlier referred to in Vol. 22, Harv. Envtt. L. Rev. (1998) P. 509 at (p. 547) says:
There is nothing to prevent decision makers from assessing the record and concluding there is inadequate information on which to reach a determination. If it is not possible to make a decision with "some" confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through Judicial and legislative means is necessary.
In other words, inadequacies of science is the real basis that has led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
34. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake.
Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (Justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case". (See First Report of Dr. Sreenivasa Rao Pemmaraju, Special-Rapporteur, International Law Commission dated 3.4.1998 paras 61 to 72).
The Special Burden of Proof in Environmental cases:
35. We shall next elaborate the new concept of burden of proof referred to in the Vellore case AIR 1996 SC 2715. In that case, Kuldip Singh, J. stated as follows:
The 'onus of proof is on the actor or the
developer/industrialist to show that his action is
environmentally benign.
46
36. It is to be noticed that while the inadequacies of science have led to the 'precautionary principle', the said 'precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo (Wynne, Uncertainty and Environmental Learning, 2 Global Envtl. Change 111 (1992) at p. 123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the changes would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less-
polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M. Olson, Shifting the Burden of Proof, 20 Envtl. Law p. 891 at 898 (1990). (Quoted in Vol. 22 (1998) Harv. Env. Law Review p. 509 at 519, 550).
37. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4.1998, para 61).
38. It is also explained that if the environmental risks being run by regulatory inaction are in some way "ascertain but non- negligible", then regulatory action is justified. This will lead to the question as to what is the non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a 'reasonable ecological or medical concern. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society v. Federated Fanners of New Zealand [1988] 1 NZLR 78. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable persons' test. (See Precautionary Principle in Australia by Chairman Barton) (Vol.
22) (1988) Harv. Env. L. Rev. 509 at 549).
48. The normal rule of evidence is that one who pleads must prove before the Court or the Tribunal i.e. the onus of proving, while claiming relief, is on the person who approaches the 47 Court/Tribunal. However, this rule may not be applicable to this Tribunal stricto sensu.
49. This Tribunal has been established both with original and appellate jurisdiction relating to environmental laws. The NGT Act, 2010 was enacted for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal rights relating to environment. In relation to NGT, the legislature, in its wisdom, has specifically excluded the application of the procedure under the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872 (for short 'the Evidence Act') in terms of Section 19(1) and 19(3) of the NGT Act. On the contrary, Section 19(2) of the NGT Act empowers the Tribunal to have the power to regulate its own procedure. In terms of its Section 19(5), NGT is a judicial Tribunal.
50. Section 20 of the NGT Act further recognises the application of the principles of sustainable development, precautionary principle and polluter pays principle by the Tribunal while adjudicating upon disputes on environment.
51. Once the applicability of specific rules of evidence, as prescribed under the Evidence Act, is excluded, the Tribunal has to state its own procedure, including recording of evidence, but the same essentially has to be in consonance with the principles of natural justice. It will have to be examined on a case to case basis as to when the onus will shift from the applicant to non-applicant. In environmental cases, normally the damage to environment or public health is evident by itself, res ipsa loquitur. The cases of environmental degradation, damage and health hazards are 48 obvious by themselves as a result of some industrial activity or development. In that event and keeping in view the very object of the NGT Act, it will be unacceptable to require the applicant to discharge his primary onus by strict number of events and their details.
52. In Ravi Kapur v. State of Rajasthan MANU/SC/0659/2012 : (2012) 9 SCC 284, it was held that the doctrine of res ipsa loquitur serves two purposes. Firstly, that an accident may by its nature be more consistent with being caused by negligence for which the opposite party is responsible than by any other cause and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. Recourse to this principle is also permissible where there is no direct evidence brought on record. These stated principles apply more often than not to motor accident cases and can squarely be applied to cases of environmental pollution resulting from industrial activities or development.
53. Under the provisions of the NGT Act, any aggrieved person can approach the Tribunal for redressal of his grievances in relation to environment within the ambit and scope of Sections 14, 16 and 18 of the NGT Act. The legislative object appears to be to catalyse the access to environmental justice, which need not be circumscribed by strict rule of locus standi in legal prescriptions.
54. Once an applicant approaches the Tribunal with a complaint of environmental injury or environmental degradation or health hazards resulting from negligence, or incidental occurrence of 49 emission or discharge of gases or effluents in violation of the prescribed standards, then such an applicant discharges the primary onus by instituting a petition in the prescribed form, supported by an affidavit, which then shifts upon the industrial unit, developer or the person carrying out the activity complained of, to establish by cogent and reliable evidence that it has not caused pollution or health hazards by carrying out its activities; all the expected norms of discharge have been strictly adhered to by that unit; and any harm, if caused, was neither the result of any negligence nor violation of prescribed standards. Upon discharge of such onus, which is certainly much heavier, by the developer/industrial unit, it will then again be for the applicant to establish to the contrary. In other words, heavy onus lies upon the industrial unit or the developer to show by cogent and reliable evidence that it is non-polluting and non-hazardous or is not likely to have caused the accident complained of.
55. The view we are taking finds strength from the observations stated by the Supreme Court in its judgment in the case of Narmada Bachao Andolan v. Union of India (supra) where the Court, while referring to the case of Vellore Citizens' Welfare Forum supra and the report of the International Law Commission, held as under:
119. It is this decision which was the subject-matter of challenge in this Court. After referring to the different concepts in relation to environmental cases like the 'precautionary principle' and the 'polluter-pays principle', this Court relied upon the earlier decision of this Court in Vellore Citizens' Welfare Forum v. Union of India (MANU/SC/0686/1996 : AIR 1996 SC 2715) and observed that there was a new concept which places the burden of proof on the developer or industrialist who is proposing to alter the status quo and has become part of our environmental law. It was noticed that inadequacies of science had led to the precautionary principle and the said 'precautionary principle' in its turn had led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the 50 actions proposed is placed on those who want to change the status quo. At page 735, this Court, while relying upon a report of the International Law Commission, observed as follows:
The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution is major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.
120. It appears to us that the 'precautionary principle' and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology or environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what imitative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that imitative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.
56. Therefore, the stated principle could be a valid dictum for environmental adjudicatory process.
57. Learned counsel appearing for respondent no. 1 had submitted that the decision was taken for public purposes and the administrative decisions which has been taken by the State Government should not be interfered with unless and until it is proved by cogent evidence and report of any Expert Committee that there is any violation of law and/or damage to the environment and relied on following decision:
51
"19. In 2011 (1) SCC 640 (Bajaj Hindustan limited vs Sir ShadiLal Enterprises Limited and another), the Hon'ble Apex Court has held as follows:
39. We should not be understood to have meant that the judiciary should never interfere with administrative decisions. However, such interference should be only within narrow limits e.g., when there is clear violation of the statute or a constitutional provision, or there is arbitrariness in the Wednesbury sense. It is the administrators and legislators who are entitled to frame politics and take such administrative decisions as they think necessary in the public interest. The Court should not ordinarily interfere with policy decisions, unless clearly illegal.
24. When there is no violation of the provisions of the statute or of a constitutional provision or in the absence of arbitrariness, the Court should not interfere with the administrative decisions. It is the administrators and legislature, who are entitled to frame policy and entitled to take decisions as they think necessary in the public interest.
25. It is settled position that the Courts should not ordinarily interfere with the policy decisions unless they are clearly illegal or unconstitutional. The Court can invalidate an executive policy only when it is clearly violative of some provisions of the statute or Constitution or is shockingly arbitrary but not otherwise."
58. In the case of Km. Shrilekha Vidyarthi (supra) the Apex Court has held that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness it would be unconstitutional.
59. In the case of Ugar Sugar Works Ltd. v. Delhi Administrative and Ors. MANU/SC/0189/2001 : (2001) 3 SCC 635 the Apex Court has held as follows:
18. ...It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the 52 policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy....
26. In the aforesaid paragraph the Apex Court has further held that the Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State.
60. In the case of Ms. Aruna Roy and Ors. v. Union of India and Ors.
(2002) 7 SCC 368, the Apex Court has held as follows:
96. ...It is ultimately for Parliament to take a decision on the National Education Policy one way or the other. It is not the province of the Court to decide on the good or bad points of an education policy. The Court's limited jurisdiction to intervene in implementation of a policy is only if it is found to be against any statute or the Constitution...
It has further held in paragraph 97 of said Report as follows:
It cannot, however, compel that a particular practice or tradition followed in framing and implementing the policy, must be adhered to. The Court has to keep in mind the above limitations on its jurisdiction and power. It is true that if a policy framed in the field of education or other fields runs counter to the constitutional provisions or the philosophy behind those provisions, this Court must, as part of its constitution duty, interdict such policy.
28. In the case of Union of India and Anr. v. International Trading Co. and Anr. MANU/SC/0392/2003 : (2003) 5 SCC 437 the Apex Court has held as follows:
15. While the discretion to change the policy in exercise of the executive power, when not trammeled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily on by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible 53 reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
61. In the case of Delhi Development Authority and Anr. v. Joint Action Committee, Allottee of SFS Flats and Ors. MANU/SC/0202/2008 :
(2008) 2 SCC 672, the Apex Court has held as follows:
64. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nittygritties of the policy, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision.
Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.
65. Broadly, a policy decision is subject to judicial review on the following grounds:
(a) if it is unconstitutional;
(b) if it is dehors the provisions of the Act and the Regulations;
(c) if the delegate has acted beyond its power of delegation;
(d) if the executive policy is contrary to the statutory or a larger policy.
62. In the case of Villianur Iyarkkai Padukappu Maiyam v. Union of India and Ors. MANU/SC/0811/2009 : (2009) 7 SCC 561, the Apex Court has held as follows:
168. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or malafide, a decision bringing about change cannot per se be interfered with by the court.54
169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a Petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review.
In matters relating to economic issues the Government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts.From the aforesaid decisions of the Apex Court, it is clear that a Court can interfere in a policy decision of the Parliament/State Legislatures/Governments if any of the following conditions exist:(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.(II) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.(III) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.(IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.(V) It is dehors the provisions of the Act or Legislations.(VI) If the delegatee has acted beyond its power of delegation."
63. The rule can also be challenged if it is beyond its limits permissible under the principal Act and it must be in good faith and in the public interest. In the case of State of U.P. and others v. Renusagar Power Co. and others, MANU/SC/0505/1988 : (1988) 4 SCC 59, the Supreme Court has observed as under:
"79. If the exercise of power is in the nature of subordinate legislation the exercise must conform to the provisions of the statute. All the conditions of the statute must be fulfilled...."
48. A subordinate legislation can be declared ultra vires if it is found that the rule challenged is not within the scope of authority conferred on the rule maker by the parent Act. The Court cannot examine the wisdom or officiousness of the rules. It cannot consider the merit or demerit of a policy of the State. It is well-settled law that delegatee cannot frame a rule which is not authorized by the parent statute. If the rule has not been framed within the powers delegated by the parent Act and if it is beyond the said power, only in those cases the Court can declare it ultra vires.
49. De. Smith in his book in 'Principles of Judicial Review', 55 1999 Edition, at page 95 has observed as under:
"In essence, the doctrine of ultra vires permits the Courts to strike down decisions made by bodies exercising public functions which they have no power to make. Acting ultra vires and acting without jurisdiction have essentially the same meaning, although in general the term "vires" has been employed when considering administrative decisions and subordinate legislative orders, and "jurisdiction" when considering judicial decisions, or those having a judicial flavour."
Sir William Wade and Christopher Forsyth in their book on 'Administrative Law', Eighth Edition, at page 35, has defined the ultra vires in the following terms:
"The simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law. The juristic basis of judicial review is the doctrine of ultra vires. To a large extent the Courts have developed the subject by extending the refining this principle, which has many ramifications and which in some of its aspects attains a high degree of artificiality."
In the case of P. Krishnamurthy (supra) the Supreme Court has culled out the following principles:
"15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a subordinate legislation can be challenged under any of the following grounds:
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where Court might well say that the legislature never intended to give authority to make such Rules)."
64. It is argued on behalf of the respondent that in exercise of power of judicial review, the Courts do not ordinarily interfere with the 56 policy decisions of the executive unless the policy can be faulted on the ground of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed arbitrariness, irrationality, perversity and mala fide, render the policy unconstitutional. Unless a policy decision is demonstrably capricious or arbitrary and not informed by any reason or discriminatory or infringing any Statute or the Constitution, it cannot be a subject of judicial interference. However, if the policy cannot be touched on any of these grounds, the mere fact that it may affect business interests of a party does not justify invalidating the policy. (Vide M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration & Ors., AIR 2001 SC 1447; State of Himachal Pradesh & Anr. Vs. Padam Dev & Ors., (2002) 4 SCC 510; Balco Employees' Union (Regd) Vs. Union of India & Ors., AIR 2002 SC 350; State of Rajasthan & Ors. Vs. Lata Arun AIR 2002 SC 2642; and Federation of Railway Officers Association Vs. Union of India, (2003) 4 SCC 289).
65. In Union of India & Anr. Vs. International Trading Company & Anr.
(2003) 5 SCC 437, the Supreme Court pointed out that the Policy of the Government, even in contractual matters, must satisfy the test of reasonableness and every State action must be informed by reason. Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. The Court further held as under:-
"15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done 57 arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labeled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary." (Emphasis added).
66. In Union of India Vs. Dinesh Engineering Corpn. & Anr. (2001) 8 SCC 491 the Supreme Court observed as follows:-
".........Where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record.......... . Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution."
67. In Krishnan Kakkanth Vs. Govt. of Kerala, AIR 1997 SC 128; the Hon'ble Apex Court held that the judicial review of policy decision is permissible in exceptional circumstances only when the Court is 58 of the view that the order suffers from arbitrariness and unreasonableness. The Court observed as under:-
"To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial if a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, Court should avoid embarking on uncharted ocean of public policy."
68. The Supreme Court in Kailash Chandra Sharma Vs. State of Rajasthan & Ors., AIR 2002 SC 2877 upheld the Full Bench judgment of the Rajasthan High Court in Deepak Kumar Suthar Vs. State & Ors., 2000 Lab IC 1 wherein the Court had struck down the policy decision of the Government granting bonus marks on the ground of residence in public employment being ultra vires the provisions of Article 14 and 16 of the Constitution. The Supreme Court held that policy decision giving weightage to the candidates in public employment on the ground of residence was impermissible in view of the Constitutional provisions. The policy decision was, therefore, bad and in such a case judicial review was found to be warranted.
69. The Supreme Court in Cholan Roadways Ltd. Vs. G. Thirugnanasambandam, AIR 2005 SC 570, has gone a step further by bringing "errors of facts" within the scope of judicial review. While deciding the said case, reliance was placed upon the judgment in E. Vs. Secretary of State for the Home Department, 59 (2004) 2 Weekly Law Report, 1351, wherein it has been held that a review of the merits of the decision making process is fundamental to the Court's jurisdiction. The power of review may even extend to a decision on a question of fact. The error sought to be corrected must be undeniably a significant factor in the decision making process.
70. In R.K. Garg Vs. Union of India & Ors., AIR 1981 SC 2138, the Supreme Court considered the validity of the provisions of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 and Special Bearer Bonds (Immunities and Exemptions) Act, 1981, which was provided for exemption and immunity from criminal liability of the persons who invest money in purchasing the Special Bearer Bonds from the income never disclosed earlier. The Court made the following observations:-
"It is clear that Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be "arbitrary, artificial or evasive" but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature...........Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. ........The Court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract 60 units and are not to be measured by abstract symmetry" that exact wisdom and nice adaption of remedy are not always possible and that "judgment is largely a prophecy based on meagre and uninterpreted experience". Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuse. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.............There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. (Emphasis added).
71. In State of M.P. & Ors. Vs. Nandlal Jaiswal & Ors., (1986) 4 SCC 566, the Hon'ble Supreme Court re-examined the scope of Article 14 of the Constitution while having a judicial review of the executive order of the State relating to trade and business and held as under:-
"But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the court would hesitate to intervene and strike down what the State Government had done, unless it appears to be plainly arbitrary, irrational or mala fide..........in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as 61 legislative judgment in so far as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call 'trial and error method' and, therefore, its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait jacket formula. The court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or 'play' in the "joints" to the executive.........The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide."
72. While deciding the said case, the Apex Court relied upon the admonition given by the Frankfurter, J. in Morey v. Doud, (1957) 354 US 457:-
"In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference, to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events - self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability."
73. A similar view has been reiterated in M. P. Oil Extraction & Anr. Vs. State of M.P. & Ors., (1997) 7 SCC 592.
74. In Sterling Computers Ltd. Vs. M/s. M & N Publications Ltd., AIR 1996 SC 51, the Hon'ble Supreme Court held as under:-
"It is not possible for Courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the 62 decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive........ On the basis of those judgments it cannot be urged that this Court has left to the option of the authorities concerned whether to invite tenders or not according to their own discretion and to award contracts ignoring the procedures which are basic in nature, taking into account factors which are not only irrelevant but detrimental to the public interest."
75. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The principles of governance has to be tested on the touchstone of justice, equity, fair play and if decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the fact of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade; that decision cannot be allowed to operate. (Vide Onkar Lal Bajaj & Ors. Vs. Union of India & Ors., AIR 2003 SC 2562).
76. In State of Karnataka & Anr. Vs. All India Manufacturers Organisation & Ors., AIR 2006 SC 1846, the Hon'ble Supreme Court examined the scope of change of policy with the change of the Government. After considering the scope of judicial review in contractual matters, the Court examined as under what circumstances, the Government should revoke the decision taken by the earlier Government. The Court held that an instrumentality of the State cannot have a case to plead from that of the State and the policy in respect of a particular project adopted by the State Government should not be changed with the change of the Government. The Court further held as under:-
63
"It is trite law that when one of the contracting parties is "State" within the meaning of Article 12 of the Constitution, it does not cease to enjoy the character of "State" and, therefore, it is subjected to all the obligations that "State" has under the Constitution. When the State's acts of omission or commission are tainted with extreme arbitrariness and with mala fides, it is certainly subject to interference by the Constitutional Courts in this country........We make it clear that while the State Government and its instrumentalities are entitled to exercise their contractual rights under the FWA, they must do so fairly, reasonably and without mala fides; in the event that they do not do so, the Court will be entitled to interfere with the same.
Taking an overall view of the matter, it appears that there could hardly be a dispute that the Project is a mega project which is in the larger public interest of the State of Karnataka and merely because there was a change in the Government, there was no necessity for reviewing all decisions taken by the previous Government, which is what appears to have happened. That such an action cannot be taken every time there is a change of Government."
77. While deciding the said case, reliance had been placed by the Court in its earlier judgments in State of U.P. & Anr. Vs. Johri Mal, AIR 2004 SC 3800; and State of Haryana Vs. State of Punjab & Anr., AIR 2002 SC 685. In the former, the Apex Court held that the panel of District Government Counsel should not be changed only on the ground that the panel had been prepared by the earlier Government. In the later case, while dealing with the river water- sharing dispute between two States, the Court observed thus:
".........in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same."
78. It is argued on behalf of the learned counsel appearing for the MoEF&CC that sand mining contributes to construction of buildings infrastructure development, it helps in extracting minerals and provides both economic and social benefits. Even 64 though, the Government has implemented step to stop illegal sand mining and produce an alternative by supplying manufacturing of sand yet there is still illegal mining happening. Sand is an important economic resource and also source of Silica for making sodium silicate, a chemical compound used for manufacture for both common and optical glasses. The economic aspect of sand are not confined to it value as raw-material. Besides its economic importance, sand also constitutes an important biotic component in aquatic eco-system like rivers. Depletion of sand in the stream bed and along coastal areas causes the deepening of rivers and in estuaries and the enlargement of the river mouths causing major habitat disruptions that favoured some species or other and caused overall declines in biological diversity and productivity.
79. Learned counsel appearing for the MoEF&CC has also raised the issue that the control of illegal mining is purely within the domain of the State Government. It is necessary to quote the relevant paragraphs with regard to rule making power of the State which is enshrined in the constitution as follows:
"28. Entry-54 of List I-Union List of the Seventh Schedule of the Constitution of India deals with regulation of mines and mineral development under the control of the Union. Entry-54 of List-I reads as under:
"54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest."
29. Entry-23 of List II-State List of the Seventh Schedule of the Constitution provides as under:
"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 65 provide for the development and regulation of mines and minerals. Section 3(e) of the Act, 1957 defines 'minor minerals'. It reads thus:
"(e) "minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral;"
31. Sub-section (1-A) of Section 4 of the Act, 1957 prohibits transportation and storage of minerals in the following manner:
"4(1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder."
32. Section 15 of the Act, 1957 gives power to the State Government to make rules in respect of minor minerals. Section 15 is extracted below:
"15. Power of State Governments to make rules in respect of minor minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith.
(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions may be made and the fees to be paid therefor;
(b) the time within which, and the form in which, acknowledgement of the receipt of any such applications may be sent;
(c) the matters which may be considered where applications in respect of the same land are received within the same day;
(d) the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concessions may be granted or renewed;
(e) the procedure for obtaining quarry leases, mining leases or other mineral concessions;
(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;66
(g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable;
(h) the manner in which rights of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining operations;
(i) the manner in which rehabilitation of flora and other vegetation, such as trees, shrubs and the like destroyed by reason of any quarrying or mining operations shall be made in the same area or in any other area selected by the State Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease;
(j) the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred;
(k) the construction, maintenance and use of roads, power transmission lines, tramways, railways, aerial ropeways, pipelines and the making of passage for water for mining purposes on any land comprised in a quarry or mining lease or other mineral concession;
(l) the form of registers to be maintained under this Act;
(m) the reports and statements to be submitted by holders of quarry or mining leases or other mineral concessions and the authority to which such reports and statements shall be submitted;
(n) the period within which and the manner in which and the authority to which applications for revision of any order passed by any authority under these rules may be made, the fees to be paid therefore, and the powers of the revisional authority; and
(o) any other matter which is to be, or may be prescribed.
2) Until rules are made under sub-section (1), any rules made by a State Government regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force.
(3) The holder of a mining lease or any other mineral concession granted under any rule made under sub-section (1) shall pay royalty or dead rent, whichever is more in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals:67
Provided that the State Government shall not enhance the rate of royalty or dead rent in respect of any minor mineral for more than once during any period of three years.
4) Without prejudice to sub-sections (1), (2) and sub-section (3), the State Government may, by notification, make rules for regulating the provisions of this Act for the following, namely--
(a) the manner in which the District Mineral Foundation shall work for the interest and benefit of persons and areas affected by mining under sub-section (2) of Section 9B;
(b) the composition and functions of the District Mineral Foundation under sub-section (3) of Section 9B; and
(c) the amount of payment to be made to the District Mineral Foundation by concession-holders of minor minerals under Section 15A.
"33. Section 23-C of the Act, 1957 gives power to the State Government to make rules for preventing illegal mining, transportation and storage of minerals. Section 23-C reads thus:
"23-C. Power of State Government to make rules for preventing illegal mining, transportation and storage of minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) establishment of check-posts for checking of minerals under transit;
(b) establishment of weigh-bridges to measure the quantity of mineral being transported;
(c) regulation of mineral being transported from the area granted under a prospecting licence or a mining lease or a quarrying licence or a permit, in whatever name the permission to excavate minerals, has been given;
(d) inspection, checking and search of minerals at the place of excavation or storage or during transit;
(e) maintenance of registers and forms for the purposes of these rules;
(f) the period within which and the authority to which applications for revision of any order passed by any authority be preferred under any rule made under this section and the fees to be paid therefor and powers of such authority for disposing of such applications; and 68
(g) any other matter which is required to be, or may be, prescribed for the purpose of prevention of illegal mining, transportation and storage of minerals.
(3) Notwithstanding anything contained in Section 30, the Central Government shall have no power to revise any order passed by a State Government or any of its authorised officers or any authority under the rules made under sub-sections (1) and (2)."
80. Learned counsel appearing for the appellant had submitted that the criteria as laid down or followed by the authorities are not in accordance with the provisions of law or neither has been laid down anywhere in the rules. The Sustainable Sand Mining Guidelines are exhausted in respect of sand mining activity. Clause 49 of the Guidelines says that the mining cannot be undertaken in 200-500 infrastructure meter of bridge, 200 meter upstream and downstream water supply/ irrigation scheme, 100 meter from the edge of the national highway and railway line, 50 meter reservoir, canal or building 25 meter from the edge of State Highway and 10 meter from edge of other roads. There is no mention of any distance from a human habitation. The EC granted to the applicant earlier on 21.02.2015 shows that EC was subject to the appellants were following the Guidelines. The Guidelines are being followed by the appellant in letter and spirit. The State Authorities has not produced any document to show stipulation of 500 meter criteria for human habitation.
81. The Guidelines issued in 2020 make it clear that they are supplemental to the 2016 Guidelines. The Guidelines itself says that the document is supplemental to the existing 2016 Guidelines and these two Guidelines via enforcement of monitoring guidelines 69 for sand mining 2020 and 2016 shall be read and implemented in sync with each other.
82. It is further argued that Rule 18(6) of Gujarat Minor Mineral Concession Rules, 2017 also does not prescribe for 500 meter criteria vis-a-vis human habitation. It stipulates that in the event mining involve blasting then distance to be kept from any public work, roads, highways etc., is 200 meter and if no blasting is involved then distance to be kept is 50 meter. It is further argued that the parameter of distance which has been argued for the learned counsel for the State have different footing with regard to mining in stone quarries and sand mining, which are inherently different kind of mining activity. The CPCB report dated 09.07.2020 refers to a circular dated 31.01.2003 issued by the Director General of Mines Safety which has been relied erroneously and has been wrongly interpreted by the respondents. This circular deals with the blasting project tiles and in that context for the safety of all concerned in open cast times and it is not the case of the appellants with regard to the blasting and thus criteria as aforesaid as applied by the respondent are not applicable too in the case of appellants. The parameter with regard to the distance as narrated are as follows:
"RULES AND REGULATIONS APPLICABLE TO THE APPELLANT Clause 49 of "Protection of Infrastructure"
Sustainable Mining shall not be undertaken in a mining Sand Mining lease located in 200-500 Infrastructure meter Guidelines of bridge, 200 meter upstream and downstream of water supply / irrigation scheme, 100 meters from the edge of National Highway and railway line, 50 meters from a reservoir, canal or building, 25 meter from the edge of State Highway and 10 meters from the 70 edge of other roads except on special exemption by the Sub-Divisional level Joint Inspection Committee.
Rule 18(6) of Duties and Obligations of Lessee:
Gujarat Minor "The lessee shall, subject to the provisions of Mineral rule 19, have the following duties and Concessions obligations:
Rules 2017 (6) No mining operations in certain areas-
Except with the written permission of the concern authority the lessee shall not carry on, or allow to be carried on, any mining operation at any point within a distance of:
a. Fifty meters from any road (excluding a village road or other district road), notified reservoirs, canal, national highway, state highway, boundary of any railway line, public works, cities, towns, villages and other approved continuous habitations, if no blasting is involve; or b. two hundred meters from any road, notified reservoirs, canal, national highway, state highway, boundary of any railway line, public works, cities, towns, villages and other approved continuous habitation, if blasting is involved.
Enforcement and 8. General Approach to Sustainable Sand monitoring Mining guidelines for 8.1 Pre-requisite for starting sand mining sand mining operation issued by MoEF in January 2020 vi) The LoI holder shall seek Environmental Clearance as per the provision of EIA notification and the regulatory authority shall ensure that the provision suggested in "Sustainable Sand Mining and Management 2016" and in this document as applicable are part of the clearance conditions.
"71
83. The report prepared by the CPCB in compliance of the order of this Tribunal passed in O.A. No. 304/2019 in the case of M. Haridasan & Ors. Vs. State of Kerala is as follows:
"2.0 Stone Quarrying:
Stone is classified as minor minerals under Section 3(e) of the Mines and Minerals (Development and Regulations) Act, 1957. As per provisions of MMDR Act, the administrative and legal control over minor minerals vests with State Governments and empowered to make rules to govern minor minerals.
Stone Quarrying / Mining is an activity where extraction of stone is done from hillocks or mountain or ground surface having geological mineral deposits. The stone extracted from stone quarry are used either as construction materials or in stone crushers to produce rori/bajri and dust.
Systematic Mining (formation of benches) is done by blasting and drilling, to loosen up the rock materials followed by fragmentation of large size into smaller size. The reduced size material is then loaded and transferred to stone crushers for further processing in order to obtain necessary sizes required for final use. The blasting and drilling during mining operation have environmental impacts and requires mitigation measures to minimise the impacts on environment and nearby habitations.
3.0 Minor Mineral Concession Rules As per sub-section (1) of section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act 67 of 1957), State Government has to make Rules for regulating the grant of quarry lease, mining lease/permit, mineral concessions and purposes connected in respect of minor minerals.
Accordingly, State Governments have framed rules and defined the criteria of minimum distance of minor mineral mining from different locations based on the type of mining used.
Minimum distance prescribed by various states is vary with respect to mining operation of minor mineral involved. In general, minimum distance prescribed by states such as Rajasthan, Madhya Pradesh, Punjab, Tamil Nadu, Orissa, Bihar, Uttar Pradesh, Himachal Pradesh, West Bengal, Sikkim, Meghalaya and Manipur are:
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In the range of 45 - 200 m from any reservoir, canal, public works such as public roads and buildings In the range of 45 -100 m from any railway line / area In the range of 60 - 100 m from National Highway, State Highway and other roads and 10 m from village roads Various states have further prescribed minimum distance based on the use of blasting in mining operation of minor mineral, as follow:
Kerala:
When blasting is involved, no mining within a range of 50 -- 100 m from the boundary line of any railway line, bridges, reservoirs, tanks, residential buildings, Government protected monuments, canals, rivers, public roads having vehicular traffic, any other public works or the boundary walls of places of worship whereas, when no blasting is involved, range of 50¬75 m is prescribed as minimum distance.
Karnataka, Maharashtra, Goa, Gujarat:
When blasting is involved, no mining within a distance of 200 m from the boundary line of any railway line reservoir, tank bund, canal, or other public works and public structures or any public road or building whereas, when no blasting is involved, minimum distance of 50 m is defined.
Jammu & Kashmir:
When blasting is involved, no mining within a distance of 500 m from the outer periphery of the defined limits of a National Highway, Railway line, State Highway, Major District Roads (MDR) and Other District Road (ODRs) whereas, when no blasting is involved, minimum distance of 150 m is defined.
Assam:
When blasting is involved, no mining within a distance of 250 m from the outer periphery of the defined limits of any village habitation, National Highway, State Highway and other roads whereas, when no blasting is involved, minimum distance of 50 m is defined.
Note: Distance criteria defined by various states, has been defined from the outer edge of the cutting or outer edge of the bank, as the case may be and in the case of a building horizontally from the plinth thereof.
4.0 Criteria of Danger Zone: Directorate General of Mines Safety 73 As per Directorate General of Mines Safety circular no. - DGMS (SOMA)/ (Tech) Cir No. 2 of 2003 Dt. 31/01/2003, on subject of Dangers due to blasting projectiles, all places within the radius of 500 m from the place of firing to be treated as danger zone and accordingly, all person in danger zone to take protection in substantially built shelter at the time of blasting. Further, mine manager to control the throw and to prevent ejection of flying fragments within a safe distance with the use of refined blasting practices as well as developed explosives and accessories such as controlled blasting Technique with milli-second delay detonators/ electric shock tubes/ cord relays or use of sequential blasting machines or by adequately muffling of holes etc. 5.0 Criteria of no blasting distance around blast sites:
Indiana Department of Natural Resource, USA (Source: Citizen Guide to Coal Mine Blasting in Indiana) Indiana Department of Natural Resource, USA has stated that the blasting not to be conducted within 300 feet (~91 m) of an occupied dwelling or school, church or hospital, public building, community or institutional building.
6.0 Conclusion:
In view of available information, following minimum distance criteria may be considered for permitting stone quarrying by SPCBs:
In view of available information, following minimum distance criteria may be considered for permitting stone quarrying by SPCBs:
Mining Type Minimum Locations
Distance
A. When 100 m
Blasting is Residential/Public buildings, Inhabited sites,
not involved Protected monuments, Heritage sites, National /
State Highway, District roads, Public roads, Railway line/area, Ropeway or Ropeway trestle When Blasting 200 m ** or station, Bridges, Dams, Reservoirs, River, is involved Canals, or Lakes or Tanks, or any other B. locations to be considered by States.
**Note: The regulations for danger zone (500 m) prescribed by Directorate General of Mines Safety also have to be complied compulsorily and necessary measures should be taken to minimise the impact on environment.74
However, if any states is already having stringent criteria than the above for minor mineral mining (i.e. more prescribed distances than the above), the same shall be applicable."
84. Learned counsel appearing for the State/SEIAA has argued that the similar matter was raised before the Hon'ble High Court and direction has been issued with regard to the parameter of distance of sand mining. Be as it may be, the policy as laid down by the Principal Bench of this Tribunal was based on an expert's report submitted by CPCB and it was discussed with the States and opinion has been obtained from all the States in a particular for and it was collected, discussed and decided by the Expert Committee and CPCB has directed and intimated to the States to follow the guidelines with regard to the minimum distance while issuing the mining lease near human habitation. It is for the State to adopt the policy which has been formulated on the basis of the Expert Report and circulated by the CPCB and had been approved by the Principal Bench of this Tribunal having jurisdiction to pass an order and order has been issued that the per se must be complied with throughout India. Accordingly, we leave it to SEIAA to decide and dispose of the application in accordance with the parameter laid down with the Tribunal, CPCB and the other competent authority in this regard.
85. Accordingly, we dispose of all the appeals with following directions:
1. Appeals are allowed and the orders impugned are set aside.
The matter is remanded back to the SEIAA to consider the matter afresh and after giving opportunity of hearing to the aggrieved, dispose of the application in accordance with law. The policy as laid down by the CPCB and approved by this 75 Tribunal referred above are taken to be account and be adopted.
2. The Environmental Clearance issued for mining of sand should contain the following mandatory conditions:-
(i) The Licensee must use minimum number of poclains and it should not be more than two in the project site.
(ii) The District Administration should assess the site for Environmental impact at the end of first year to permit the continuation of the operation.
(iii) The Annual replenishment report certified by the authorised agency must be submitted to the prescribed authority. In case, the replenishment is low, the mining activity/production levels shall accordingly be decreased/stopped.
(iv) The ultimate working depth shall be 1 m from the present natural river bed level and the thickness of the sand available shall be more than 3 m in the proposed quarry site.
(v) The sand quarrying shall not be carried out below the ground water table under any circumstances. In case, the ground water table occurs within the permitted depth at 1 meter, quarrying operation shall be stopped immediately.
(vi) The sand mining should not disturb in any way the turbidity, velocity and flow pattern of the river water.76
(vii) The mining activity shall be monitored by the Taluk level Force once in a month by conducting physical verification.
(viii) After closure of the mining, the licensee shall immediately remove all the sheds put up in the quarry and all the equipments used for operation of sand quarry. The roads/pathways shall be levelled to let the river resume its normal course without any artificial obstruction to the extent possible.
(ix) The mined out pits to be backfilled where warranted and area should be suitably landscaped to prevent environmental degradation.
3. There must be an institutional framework and enforcement mechanism to prevent illegal and excess quarrying.
4. The mining should be undertaken by the State without any adverse impact on the environment.
5. The State must ensure that the sand quarries would adhere to the norms regarding extent and depth. The boundary of the quarry shall be demarcated by following the procedure set-out under Clause 2 (ii) of the conditions imposed by the environmental authority.
86. All the appeals are decided accordingly as no order to cost. A copy of the order be sent to the Chief Secretary Gujarat and Member Secretary, Gujarat State Pollution Control Board by e-mail for compliance.
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87. Appeal No. 03/2020 (WZ), Appeal No. 04/2020 (WZ), Appeal No. 05/2020 (WZ,) Appeal No. 06/2020 (WZ) and Appeal No. 07/2020 (WZ) and all pending I.A.s are disposed of accordingly.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM September 30, 2020 Appeal No. 03/2020 (WZ) & connected matters R 78