National Green Tribunal
Saral Kumar Parida vs State Of Odisha on 13 October, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No.09/2021/EZ
IN THE MATTER OF:
Saral Kumar Parida
S/o Kali Charan Parida,
At/PO - Baunsamukha,
PS - Basta, Dist.: Balasore,
Pin - 756029
.... Applicant(s)
Versus
1. District Collector, Balasore
At/Po/Dist - Balasore,
Odisha - 758001
2. Tahasildar, Basta
At/Po/PS - Basta - 756032
3. Principal Secretary,
Water Resource Department,
Government of Odisha,
Lokaseba Bhawan,
Bhubaneswar,
Odisha - 751001
4. Asst. Executive Engineer,
Irrigation Department,
Jaleswar - 756032,
Dist.: Balasore
5. Member Secretary
Odisha State Pollution Control Board,
A/118, Unit-VII, Nilakantha Nagar,
Bhubaneswar,
Pin - 751012
6. Member Secretary,
State Environment Impact Assessment Authority (SEIAA),
Odisha,
5RF-2/1, Acharya Vihar, Unit-IX,
Bhubaneswar,
1
Odisha - 751022
7. Mining Officer,
Baripada Circle,
Baripada - 757001
8. Superintendent of Police
At/Po/Dist - Balasore,
Pin - 756001,
Odisha
9. Divisional Railway Manager,
South Eastern Railway,
Kharagpur,
WB
10. Rajesh Khatua
At - Nayabazar,
Po/PS - Jaleswar,
Dist.- Balasore,
Odisha - 758022
11. Secretary,
Ministry of Environment, Forests & Climate Change
(MoEF&CC)
.... Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Sankar Prasad Pani, Advocate
COUNSEL FOR RESPONDENTS :
Mr. Janmejaya Katikia, AGA for R-1,2,3,4,7 & 8,
Mr. Gora Chand Roy Chowdhury, Advocate for R-6,
Mr. Somnath Roy Chowdhury, Advocate a/w Ms. Arpita Chowdhury,
Advocate for R-10,
Ms. Papiya Banerjee Bihani, Advocate for R-5,
Mr. Soumitra Mukherjee, Advocate for R-11
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:-28th September, 2022 Pronounced On:-13th October, 2022 __________________________________________________________________ 2
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. This Original Application has been filed by the Applicant, alleging that the Respondent No. 10, Private Respondent, is carrying on illegal mining of sand in the Subarnarekha River, Benapur-Mouza, Basta Tehsil of Balasore District, in violation of the Mining Plan, Environmental Clearance conditions, Consent to Operate conditions, Sustainable Sand Mining Management Guideline 2016 and Enforcement and Monitoring Guidelines for Sand Mining, 2020, Environmental Impact Assessment (EIA) Notification as well as Supreme Court Orders.
3. The allegation further is that the Respondent No. 10 is using five machines (excavators) whereas only manual mining is permitted. The allegation also is that they are carrying out in-
stream mining whereas permission is only for Dry Pit Sand Mining.
Besides, there is no pillar posting and demarcation of the lease area.
4. The allegation also is that the Respondent No. 10 is carrying out mining in excess of the permissible 8 Cubic Meter per day and also that the mining is being carried out beyond the Mining Plan 3 Area 0.8 ha. and designated lease area of 12.82 acres and is also obstructing free flow of river water by creating artificial sand bars/bunds/diversion and approach road in the river etc.
5. Notices were issued to the Respondents and responses have been filed.
6. Considering the allegations made in the Original Application, the Tribunal at the time of admission also constituted a Committee comprising of the following Members :-
1) District Magistrate/District Collector, Balasore,
2) Member Secretary, State Environment Impact Assessment Authority (SEIAA), Odisha,
3) Senior Scientist of Odisha State Pollution Control Board, and
4) Mining Officer, Baripada Circle, Baripada.
The State Environment Impact Assessment Authority (SEIAA), Odisha, was directed to be the Nodal Office for all logistic purposes.
7. The Committee was required to submit its Report with regard to illegal sand mining in the Subarnarekha River, Balasore, as well as diversion of river and construction of sand bars/bunds/diversion or road in the river and other violations as alleged in this Original Application.
8. The Committee was also required to determine if mining was being carried out in excess of the Mining Plan/Lease Area and loss 4 caused to the State Revenue thereby and compute the same accordingly including the cost/damages to the environment.
9. In the affidavit of SEIAA dated 06.07.2021, the observations and the recommendations of the Joint Verification Report have been noted which read as under :-
a. "The committee members observed the following at the time of inspection :
i. The lease period of the said sand bed has been expired since 01.05.2021 and at present the river is full of water. ii. No mining activity was going on and there is no machine found in the mine lease area.
iii. From the photographs submitted by the petitioner and Tahasil record it reveals that during the lease period the lessee was used JCB for excavation of river sand and created a sand bundh in river for which the Tahasildar, Basta has seized the JCB, removed the sand bondh and collected the fine amount of Rs. 1,30,000/- from lessee for such illegal activity.
iv. There was proper pucca pillar stone making has been fixed for the demarcated boundary of lease hold area was observed and no damage of river embankment also found. v. It has been observed that some sand stock piling was done near the NH for which the fine has been realized from the lessee of Rs. 25,000/- on dated 30.04.2021.
vi. Presently transportation route for transporting sand from Benapura river sand bed was blocked by the Railway Authority after getting allegation and also lease period has already been expired and no further operation will be made from the said bed as ensured by Tahasildar, Basta. 5 b. Recommendations:
i. Although the lease period has already been expired and no mining activity is carried on the Tahasildar, Basta is directed to ensure no further extraction of sand from the said source."
10. Copy of the Joint Verification Report has also been filed with the affidavit. The issues and present status noted by the Committee are extracted herein under :-
Sl.No. Issues Present Status 1 That the Benapura Sand Quarry on Agreed plot no.282, 284 in Subarnarekha River with an area of 12.82 Acres has been lease out in favour of Rajesh Kumar Khatua on 22.06.2015 for a period of five years that ends on 31.03.2020. the Mining plan was approved on 29.09.2015 for production capacity of 7500 Cm for the entire lease period of five years and Environmental Clearance (EC) granted on 30.01.2016. the revised approved mining plan if for 1500 cum for the current year.
2 That being concerned about the 1. During the joint visit it ecology of the area and the impact was found that the river of illegal sand mining by the Subarnarekha is full of private respondent operating the water, no mining Benapura lease area by disturbing activities was going on the Subarnarekha River Ecology, and it is ascertained from endangering the safety of local the Tahasildar, Basta villagers, changing the course of that the mining activities the river and obstructing the has already been natural flow by making artificial stopped earlier as lease sand bars/bunds with in river period expired on 6 have complained before the 01.05.2021.
Tahasildar time again but all in
vain. 2. Since no mining activity
was going on and the
leased out area is
submerged in flood
water, the assessment of
damage could not be
done on the basis of
allegation at the time of
joint inspection but it
revealed from the Official
records/documents from
the Tahasil Office, Basta
that in some extent, the
Project Proponent has
operated the source
obstructing the natural
flow of water by making
artificial sand
bars/bunds in the river
and made mechanical
mining by using JCB.
3. After receipt of allegation
on such violation of Rules
by the Project Proponent,
the Tahasildar, Basta
has seized JCB, removed
the temporary sand
bunds and collected fine
amount of Rs.1,30,000/-
from him. (Copy attached)
3 It is further submitted that the During the time of
indiscriminate sand mining in the inspection, the Committee
river has already threatened the observed that river has a river bank and changed the course mild flood like situation, the of river flow. It is further submitted leased out area was that Sand mining in submerged and water was "Subarnarekha river bed in Basta flowing in its natural way.
7and Jaleswar Tahasil has caused The river has not changed serious environmental degradation its course at all. The natural and ecological impact, over the water flow in river years river Riparian ecology have Subarnarekha gives a clear been badly affected by the indication that the Project alarming rate of unrestricted Sand Proponent has operated Mining which damage the river source abiding by the Rules ecosystem, weakening of river and Regulations. The Expert ecosystem, weakening of river Team of Indian Council of bank, destruction of natural Forestry Research and habitats of organisms living on Education (ICFRE) river beds, affects fish breeding Hyderabad have visited and migration, the associated river Subarnarekha on 3rd riparian habitat. and 4th December, 2019 to assess and to prepare the final eco-restoration plan on assessment of ecological damage. But the Final Report from the above Team has not been received at the end of District Administration. It can only be ascertained damage of the river ecosystem, weakening of river bank, destruction of natural habitats of organisms living on river beds, affects fish breeding and migration, the associated riparian habitat after receipt of the above report.
4 The villagers and applicant have The District Administration complained before the Tahasildar was aware of the complain Basta and District Collector, petition of the villages. The Balasore time and gain about the District Collector asked the illegal sand mining and Tahasildar, Basta over transportation by cutting the phone to go to the spot Subarnarekha River Embankment immediately and take and around 1km on river bank for drastic action as per 8 which the embankment is already provisions of law against threatened. It is further submitted the defaulter if illegality is that on 14th December 2020, the found there. Accordingly, villagers have again complained to the Tahasildar, Basta Tahasildar, Basta but no action moved the spot and took has been taken as on date. Copy of appropriate action as the complained petition dated mentioned at point No.2. 14.12.2020 is annexed here unto as Annexure-1. Further, it is to mention here that three tier Squad like District Level Squad, Sub-
Division Level Squad and Tahasil Level Squad are visiting the Minor Mineral sairat sources regularly and reporting to the District Administration time to time.
So, there is less scope for the Project Proponent to do such illegal activities.
5 That on 6th, 7th, 8th Jan 2021, The Tahasildar, Basta has Tahasildar Basta was informed of stated that keeping in view the illegal sand mining at of the WhatsApp message Benapura in violation of the mining received from plan and EC conditions in his no.933753042 & from WhatsApp no.933753042 from 2437279278 he visited the 9437279278. The message was spot confidentially read by the Tahasildar but no anticipating the lessee might action was taken and the lessee have violated the mining was allowed to continue with plan and EC conditions as illegalities. the lease period was about to complete. But found no such things happened. On interaction with some other people present there was ascertained that due to personal grouse the message might have been sent.
6 It is submitted that as per the Govt. Already taken action as 9 of Odisha revenue Disaster and mentioned above.
Management Dept. letter dated
26.04.2019, the illegal sand
extraction are required to be
enquired by the Sub-
Collector/Tahasildar within 72
hours of the complaint and same
has not been followed here
indicating the connivance of the
authorities with the lessee.
7 That Tipper, Hyva, Tractors use to After getting allegation the ply on River Bank illegally and for Tahasildar has taken action this purpose the lessee have to remove the temporary constructed diversion road on the sand bundh from river and river flow by raising the sand bar railway Authority has filled with Sandbags, Morrum and blocked transportation road. broken bricks are laid on it so that heavy vehicles can move over it.
Further the road in there is in violation of the mining plan.
8 That the irrigation dept, Jaleswar During inspection it was Sub-division has already raised observed that there was no objection to the Tahasildar, Basta permanent road for the said and sought action against the sand bed and the PP has illegal mining resulted in damaging used a temporary road the left side of the river bank of which was closed to river Subarnarekha near Chalanti embankment passing under Railway Over Bridge and further railway bridge pillar and diverting the water stream and now it is closed permanently transportation heavy vehicles after received allegation and without permission of irrigation the Tahasildar, Basta dept. through the letter dated reported that the source will 18.03.2020, but no action has been not be leased out for taken as on date. Copy of the letter operation for further period from Irrigation Dept. dated or lease period will not be 18.03.2020 is annexed here unto extended as the Railway as Annexure-2. Dept. has blocked the road due to safety hazards under bridge no.215 and there is no alternative route to 10 operate the source.
9 Mining is being carried out without As mentioned in point no.02 any annual replenishment study.
The sand extraction is only allowed in the deposition area and dry pit mining method, however the lessee is carrying the in-stream mining from the deep water using machine which in violation of mining plan and EC condition. As such the lease area granted in now in water flow and the lessee is mining from the stream randomly beyond the lease area. The lessee is also illegally lifting the sand from the Bandhamundi Mouza in Rasagobindpur Tahasil, Mayurbhanj District as the same is adjoining the Benapura lease area.
10 The railway bridge is also As mentioned in point no. 08 threatened by the plying of hundreds of heavy vehicles next to the Railway bridge Pillar and same is not permissible.
11 It is submitted that the Sr. As mentioned in point no. 08 Divisional Security Commissioner, Railway Protection Force, South Eastern railway, Kharagpur has written a letter to Railway Protection Force Balasore on 16.05.2016 saying "It is to inform that unauthorized road construction is going on by outsiders carrying sand by cutting the riverbed under the bridge no.
215, Subarnarekha which endanger the pier and girder of the bridge causing unsafe for the track. In view of the above you are advised to take necessary 11 action to stop the above unauthorized work and arrest the culprit under Railway act in coordination with concerned SSE and local police and submit action taken report immediately". Copy of the letter of South Eastern Railway Kharagpur dated 16.05.2016 is annexed here unto as Annexure-3.
12 It is submitted that after issuing The allegation made against the letter the Railway Authority did the Railway Authority is nothing to stop the lessee from completely baseless and using the way under the Railway imaginary. The Railway Bridge and the applicant believes Authority has taken there has been a nexus between immediate action in the the lessee and the Railway matter. They have posted Security Officials for which the permanent iron pillars on illegal use of road under bridge has the connecting road to the not been reported to the Head sairat source and there is no office and the unauthorized road alternative road connectivity was put to use by the lessee in to the source. The terms of playing of hundred of photograph is annexed to loaded vehicles endangering the the report for better safety of bridge. In this regard the cognition of Hon'ble applicant has also brought to the Tribunal. By alleging knowledge of the Railway against the Railway Authority vide letter dated Authority, the petitioner has 18.12.2020 and 09.01.2021 and crossed his limits of taking same is annexed here unto as shelter of lies. Annexure-4 13 No river bed rehabilitation plan No such activity was found submitted as per the EC condition. during joint visit due to full of water in the River Subarnarekha.
14 EC condition no.27 and 28 clearly It was found from Tahasil specified that non satisfactory record that the lease period implementation of the conditions and validity of EC is expired and failure to comply any of the since 01.05.2021 so, it is conditions will lead to suspension not applicable in this case.
of EC letter, 12 Revocation/Withdrawal of EC letter and proceedings under EP Act, 1986.
15 The mechanical mining in stream Not observed as no mining mining diversion of river flow and activity was going on and vehicles carrying the sand are not no transportation of vehicles covered with tarpaulin and being plying during joint visit.
overloaded and nearby causing air/dust pollution. It is humbly submitted that the local people have to face many inconvenience because of uncovered vehicles carrying the sand from the mining site.
16 It is further submitted that there During the joint inspection, has been no plantation activity some natural vegetations carried out by the Private are found in the river bank Respondent along the roadside and the Project Proponent where their vehicles are plying. has also planted some trees on the bank of river.
17 That after issuing EC and CTO, the The SPCB, Balasore has state pollution control board did inspected the site and nothing to ensure if the conditions verified the conditions in the Consent to Operate were stipulated in the CTO. complied in letter and spirit. The authorities have also not acted upon the complaint petition of the applicant. The violations continue unabated and no action has been taken by the pollution control board to revoke the consent to operate and ensure that the mining activity stops.
18 Further the water flow have been Not observed as no mining obstructed and diverted so as to activity was going on during facilitate the sand mining which is inspection and the river is not permissible as per the EC and full of water but the Mining Plan. Further the Tahasildar has taken action Environmental clearance to remove the sand bundh letter/Consent to Operate restricts from river and imposed fine 13 mechanical Sand Mining and in for mechanical mining stream mining but in the present based on the allegation case the private respondent is submitted by villagers as lifting the sand from in stream of reported by Tahasildar, river. Copy of the EC letter dated Basta. 30.01.2021 is annexed here unto as Annexure-5.
19 That mining plan prescribes for It was observed that there demarcation of Proper safety zone was a proper pillar posting along the river bank and from for the lease area and the bridge. No mining activity will be river embankment was not carried out in the safety zone. The damaged. mining activity will be carried out during daylight only. There will be no stockpiling of excavated sand on he river bed or river bank.
The excavated material will be transported to user agency as soon as possible. There will be minimum numbers of access roads to river bed, as cutting river banks should be avoided and ramps are to be maintained. However none of the above measures are being adopted and mining continuing in blatant violation of Mining Plan. That the photographs showing the mechanical mining, obstructing the river flow by creating diversion road with in river and plying of vehicles in adjoining the railway bridge by the private respondent. Photographs dated 16/12, 21/12, 26/12, 30/12.2020, 07.01.2021 and 08.01.2021 are annexed here unto as Annexure-6.
20 That the lessee use to stock pile the During the inspection it was sand near GT Restaurant, found the there was a sand Jaleswar bypass, Chalanti bypass stockpiling at NH bridge, 14 and in the space between the two Benapura and for which the NH bridge at Chalanti illegally as Tahasildar, Jaleswar has the Mining plan does not permit for collected a fine amount of Stock piling. Rs.25,000/- on dated 30.04.2021. (Copy attached) 21 It is humbly submitted that the During inspection it was present sand mining at Benapura observed that the river has not maintained the safe embankment has not distance from embankment and as damage through sand required the mining should be in mining and the distance river leaving apart 1/5th of the total from sand bed to river width of river from the embankment has not assess embankment. In the present case for presently as there is full the sand mining is taking place of water in the within 50 meter from the Subarnarekha River. embankment using excavators and heavy vehicle. This has threatened the Riverbank as well as Railway Bridge.
22 It is humbly submitted that During inspection, the approved mining plan is over an leased out area was area of 5.1Ha (12 acres), however submerged in flood water. the private respondent is extracting So Pillars for the the sand beyond the lease area demarcated area could not from a larger area than the be traced out. It was permitted. Also there are no pillars observed that there was a so as to demarcate the area leased permanent pillar posted out in favour of the private near the river embankment respondent. to identify the sairat source.
Neither the Mining Deptt.
Nor the Tahasildar have records on excavation of sand beyond the lease area.
23 Area under excavation is only Agreed 0.897 ha with length of 30 meter and width of 29.9 meter and average thickness of 1 meter with total reserve of 8965 Cum and minable reserve of 7500 cum for entire 5 years lease period.
1524 Though the sand is meant for Not observed the domestic use only but the lessee transportations activity of use to transport to the river sand and no neighbouring state WB which is not record/prove that the lessee permitted in the mining plan. has transport the sand to the neighbouring State WB.
25 Mining should be restricted to Not observed as mining single shift only that is for 8 hours activity was stopped (7am to 12 noon and 2 pm to 5pm) permanently and the lease however it takes place all period expired.
throughout day and night alternative excavators.
26 Mining is not permitted from 200 The lessee was operating meter of railway Bridge and 1/5th the sand bed abiding the of river from bank and 7.5 meter of OMMC Rule 2004 safety zone of the lease area. subsequent amendment However, there are blatant therein.
violations of the conditions. No qualified mining manager, Foreman and Mate with certificate of competency as per mines act.
27 No plantation work taken as There are some natural promised 50 sapling (acacia and vegetation in river bank and Suabubul) every year in the Mining the also planted some trees Plan. on the bank of river.
28 Lessee undertook to As above implementation Mining Plan and will be strictly held responsibility for any deviation but blatantly violation in day light with full impunity. Copy of the Mining Plan is Annexed here unto as Annexure-
7 and Google earth Image dated 13.12.2017 as Annexure-8.
29 That around 50 Trips of 6 wheeler During the course of visit, no Tripper load having capacity of 12 mining activity was found cm. 20 Trips of 10 sheeler due to expiry of lease period Hyva/Dumper each having and heavy water flow in the capacity of 18 cum and 30 Trips of river. Tractor load having capacity of 16 each 2 Cum and in total around 1050 cubic meter of sand are excavated and transported from the Sand Sairat while the daily permit is only for 8 cum/day and 1500 cum for entire year. It is pertinent to mention here that Mechanical sand mining is not permitted and same is in violation of the mining plan as well as Environmental Clearance letter.
30 That the State Government is No such complaints have losing huge revenue because of the been received by unaccounted illegal mining. At Tahasildar, Basta regarding present one tractor load of sand is this.
sold around Rs.800, while Tripper load sand is sold at Rs.4000 and 10 wheeler load is sold at Rs.6000 in the market. Accordingly the lessee use to make profit of around 3.5 lakh per day sand is sold in market while the Government is getting revenue of only Rs.10,000 per day and losing in lakhs per day.
31 That the excess mining and mining No excess mining was made beyond lease area and permitted by lessee as per the Y-form quantity is ongoing but no action is submitted to the Tahasil taken by the Tahasildar. The daily Office by the lessee. During quantity sand lifted are more than the joint visit it not possible 1050 Cum and by that way the to assess the excess mining entire annual limit of sand as the river if full of water extraction is being done in 2 days. and no mining activity was As such the lessee does not going on and the lease maintain the daily register and period is already expired. sand transported without transit pass. The Tahasildar being hand in glove with the lessee allows the illegalities and thereby failed to discharge his responsibilities. The 17 lessee is supposed to file monthly return and same requires to be verified on ground but the same has not been followed by Tahasildar thereby giving license to loot beyond the approved quantity.
32 This clearly indicates that the As mentioned above
private respondent has mined out
more sand than the permitted
quantity. This excess mining
without prior approval is violation
of the Consent letter, Lease
agreement, Mining Plan and
environmental clearance condition.
This also clearly indicates there is
an unholy nexus of the Tahasildar,
Basta with the private respondent
in allowing the illegalities to
continue on day to day basis.
33 That Hon'ble Tribunal in OA In compliance to the Orders
173/2018/PB, has restrained the dt.04.09.2018 of Hon'ble
mechanical sand mining in NGT in connection with O.A.
Subarnarekha River and the No.173/2018, the Expert
present case is of same River at a Team of Indian Council of different site. In order dated Forestry Research and 04.09.2018, Hon'ble Tribunal Education (ICFRE) directed the Committee to get the Hyderabad have visited assessment done through Indian River Subarnarekha on 3rd Council of Forestry research and and 4th December, 2019 to Education, Dehradun of the assess the to prepare the ecological damage on account of final eco-restoration plan on illegal mining by incorporating the assessment of ecological following components: a) Cost of damage. But the Final river bed material, b) Cost of Report from the above Team ecological restoration, c) Net has not been received at the present value of the future end of District ecosystem service foregone. Administration. As soon as the final report is received at this end, the District Administration will act upon 18 pro-actively for its timely compliance.
34 That the sustainable sand mining As lease period is over and guideline 2016 suggests the due to full flow of water no following measures to be adopted mining activity was to check illegal mining, however observed on the day of visit. none of the measures have been Approach road was totally adopted such as "(i) Project sealed.
Proponent must ensure that the security features of Transport Permission viz. (a) Printed on Indian Bank Association (IBA) (b) approved Magnetic Ink Character Recognition Code (MICR) paper, (c) Unique Barcode; (d) Unique Quick Response Code (QR); (e) Fugitive Ink Background; (f) Invisible Ink Mark; (g) Void Pantograph (h) Watermark. (ii) Project Proponent must ensure that the CCGTV camera, Personal Computer (PC), Internet Connection, Power Back up access control of mine lease site; and arrangement for weight or approximation of weight of mined out mineral on basis of volume of the trailer of vehicle used at mine lease site are available. (iii) Project Proponent must ensure the Scanning of Transport Permit or Receipt and uploading on Server.
(iv) The State mines and Geology Department should print the transport Permit/receipt with security feature enumerated at Paragraph (i) above and issue them to the mine lease holder through the District Collector. Once these Transport Permits or Receipts are issued, they would be uploaded on 19 the server against that mine lease area. Each receipt should be preferably with pre-fixed quantity, so the total quantity gets determined for the receipts issued.
When the Transport Permit or receipt barcode get scanned and invoice is granted, the particular barcode gets used and its validity time is recorded on the server. So, all the details of transporting of mined out material can be captured on the server and the Transport Permit or Receipt cannot be reused.
(v) The staff deployed for the purpose of checking of vehicles carrying mined mineral should be in a position to check the validity of Transport Permit or Receipt by scanning them using website, Android Application and SMS. (vi) in case the Vehicle breakdown, the validity of Transport Permit or Receipt shall be extended by sending SMS by driver in specific format to report breakdown of vehicles. The server will register this information and register breakdown. The State can also establish a call center, which can register breakdowns of such vehicles and extend the validity period. The subsequent restart of the vehicle also should be similarly reported to the server/call centre.
(vii) the route of vehicle from source to destination should be tracked through the system using check points, Radio-frequency identification (RFID) Tags, and 20 Global positioning System (GPS) tracking. (viii) the system shall enable the Authorities to develop periodic report on different parameters like daily lifting report, vehicle log/history, lifting against allocation, and total lifting. The system can be used to generate auto mails/SMS. This will enable the District Collector/Magistrate to get all the relevant details and will enable the Authority to block the scanning facility of any site found to be indulged in irregularity to block. Whenever any Authority intercepts any vehicle transporting illegal sand, it shall get registered on the server and shall be mandatory for the officer to fill in the report on action taken. Every intercepted vehicle should be tracked.
35 The Hon'ble Apex Court in Deepak Agreed Kumar Case has observed that "We are of the considered view that is highly necessary to have an effective framework of Mining plan which will take care of all environmental issues and also evolve a long term rational and sustainable use of natural resource base and also the bio-assessment protocol. Sand Mining, it may be noted, may have an adverse effect on bio-diversity as loss of habitat caused by sand mining will affect various species, flora and fauna and it may also destabilize the soil structure of river banks and often leaves isolated islands. We find 21 that, taking note of those technical, scientific and environmental matters, MoEF & CC, Govt. of India, issued various recommendations in March 2010 followed by Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, including the spirit of Article 48A, Article 51A(g) read with Article 21 of the Constitution.
36 It is further observed by the Agreed
Hon'ble Apex Court in the same
case and directed for strict
compliance of Ministry of
Environment and Forest
recommendation in regard to River
Bed Mining which are reproduced
as follows:
"River Bed Mining 4.9.1
Environment damage being caused
by unregulated river bed Mining of
sand, bazari and boulders is
attracting considerable attention
including in the courts. The
following recommendations are
therefore made for the river bed
Mining.
(a) In the case of Mining lease
for riverbed sand mining
specific river stretches
should be identified and
mining permits/lease should
be granted stretch wise, so
that the requisite safeguard
measures are duly
implemented and are
effectively monitored by the
respective Regulatory
Authorities.
22
(b) The depth of Mining may be
restricted to 3m/water level,
whichever is less.
(c) For carrying out Mining in
proximity to any bridge
and/or embankment,
appropriate safety zone
should be worked out on
case to case basis, taking
into account the structural
parameters, locational
aspects, flow rate etc. and
no Mining should be carried
out in the safety zone so
worked out".
37 It has been further submitted that The Tahasildar, Basta has
there has been no monitoring by monitored the conditions
any of the respondents where the stipulated in EC and CTO as conditions are being complied or informed by Tahasildar, not and that allows the private Basta. respondent to violate the norms in broad day light. Further, it is to mention here that three tier Squad like District Level Squad, Sub-
Division Level Squad and Tahasil Level Squad are visiting the Minor Mineral sairat sources regularly and reporting to the District Administration time to time.
So, there is less scope for the Project Proponent to do such illegal activities.
3.0 Over all observations :
The committee members observed the following at the time of inspection:
i. The lease period of the said sand bed has been expired since 01.05.2021 and at present the river is full of water 23 ii. No mining activity was going on and there is no machine found in the mine lease area.
iii. From the photographs submitted by the petitioner and Tahasil record it reveals that during the lease period the lessee was used JCB for excavation of river sand and created a sand bundh in river for which the Tahasildar, Basta has seized the JCB, removed the sand bondh and collected the fine amount of Rs.1,30,000/- from lessee for such illegal activity.
iv. There was proper pucca pillar stone marking has been fixed for the demarcated boundary of lease hold area was observed and no damage of river embankment also found. v. It has been observed that some sand stock piling was done near the NH for which the fine has been realized from the lessee of Rs.25,000/- on dated 30.04.2021. vi. Presently transportation route for transporting sand from Benapura river sand bed was blocked by the Railway Authority after getting allegation and also lease period has already been expired and no further operation will be made from the said bed as ensured by Tahasildar, Basta. 4.0 Recommendations :
i. Although the lease period has already been expired and no mining activity is carried on the Tahasildar Basta is directed to ensure no further extraction of sand from the said source.
11. Since the Joint Verification Report noted that the river Subarnarekha was in flood and no mining activity was going on, but it is also mentioned that it was ascertained by the Tahsildar, Basta, that mining activities had already been stopped earlier as the lease had expired on 01.05.2021 the Tribunal, therefore, observed 24 that in the Report it was not mentioned why the Committee did not take assistance of Satellite Images at least six months prior to the onset of monsoon and upto the date of expiry of the lease i.e. on 01.05.2021 in order to determine the depth level of sand in the riverbed or the amount of sand mined and whether heavy vehicles were used in the operation, contrary to Sustainable Sand Mining Management Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining, 2020. The Tribunal, therefore, directed the Committee to conduct another spot inspection and submit its report in a proper scientific manner, determining the amount of sand mined in excess of the mining lease; the damage caused to the river bank of Subarnarekha River; assessment of Environmental Compensation due to damage caused to the river bank; the monetary value of the excess sand mined illegally and its royalty as well as penalty to be fixed upon the Respondent No.10, on the principle of 'Polluter Pays' and if violations are found, the Committee will also indicate what criminal action has been taken.
12. State Level Environment Impact Assessment Authority (SEIAA), Odisha, thereafter has filed affidavit dated 24.11.2021 stating that the Committee again visited the site on 24.11.2021 and made the following observations which are extracted herein below :-
a. "The lease period of the said sand bed has been expired since 01.05.2021.
b. No mining activity was going on and there is no machine found in the mining lease area.
25c. From the photographs submitted by the petitioner and Tahasil record it reveals that during the lease period the lessee has used JCB for excavation of river sand and created a sand bundh in river for which the Tahasildar, Basta has seized the JCB, removed the sand bondh and collected the fine amount of Rs.1,30,000/- from lessee for such illegal activity.
d. There was proper pucca pillar stone marking has been fixed for the demarcated boundary of lease hold area, was observed and no damage of river embankment also found.
e. It has been observed that some sand stock piling was done near the NH for which the fine has been realized from the lessee of Rs.25,000/-
on dated 30.04.2021.
f. Presently transportation route for transporting sand from Benapura river sand bed was blocked by the Railway Authority after getting allegation and also lease period has already been expired and no further operation should be made from the said bed as ensured by Tahasildar, Basta.
g. As the Chief Executive of Odisha Remote-sensing and Space Application Centre (ORSAC) have informed that the satellite data of Benapura sand mining area for the period from 2016 to 2020 is not available and as per order dt.28.09.2021 of Hon'ble NGT/EZ, Kolkata, the Committee took the help of Google Earth Image and Basta Tahasil records for making assessment of excess mining of sand and damage thereon, there was excavation of sand beyond lease area and the depth of mining varies between 0.5 meter to 1.5 meter, predominating the mining depth of 1.0 meter. Therefore, assuming an average depth of dry pit mining to be 1.0 meter from the available Google Images for different year, it is found that there was excess mining in the year 2017 and 26 February, 2021 going beyond the lease area. The calculation of which comes approximately to 20,000 sq.m. The details of calculation of excess mining and causing to environmental damage is given below:
Compensation Charge (Scenario II-explicit accounting of NPV) Total Permitted Quantity in Environmental Clearance (EC)in m2(x) 7500 = Total Permitted Area in EC in m2 = 51880 Total Permitted Depth in EC in meter(m) as per the mining plan 1 Total area of mined out mineral in m2(lease area approved by 71880 Tahasildar + Area beyond the lease area) = Average depth of mined out material beyond lease area in 1 meter(m) = Total volume of mined out material in m2 =71880 x 1(the average 71880 depth of sand deposition assuming 1 m) = As per the Tahasil office record and Y-form issued by Tahasildar, 4644 Benapura the actual sand excavation during 5 years period (in Cum) is Market Value of illegally Mined Material (D) = 20000*1103/-
= Rs.2,20,60,000 Annual Value of Foregone Ecological Values = D*RF(2,20,60,000*0.5)=1,10,30,000 The sand mining beyond the lease area on Feb, 2017 and April 20000 2021 as per Google map record is Excess extraction (Z) in m2=(20000x1) (i.e. 20,000 cum sand 20000 excavated beyond the lease area) Exceedance Factor (Z/X) = 20000/7500 = 2.66 Market Value of illegally Mined Material (D) = 20000x1103/- (i.e. 2,20,60,000 assuming average market value of sand per Cum as the auction value was 1103/- per Cum at the time of bidding) = Risk Factor (RF) 0.5 Deterrence Factor (DF) i.e. Z/X>=0.71 1 Quarry Name Market Value of Sand Compensation or NPV Permitted Quantity in Total Amount as per Excess Extraction Total Extraction Present Value Discount rate market value Risk Factor per Cum 2nd Year 3rd Year 4th Year 5th Year 1st Year Cum Benapura River 7500 24644 20000 1103 11030000 0.5 0.07 10308411 9634029 9040983 8419847 7867332 45270602 2,32,10,602 Sand Bed Net Present Value (after netting out market value of illegally mined material) i.e., Total Compensation to be levied=NPV=PV(Rs.45270602/-)-D(Rs.2,20,60,000/-) = Rs.2,32,10,602/-
In view of the above the committee has recommended the above amount of Rs.2,32,10,602/- for excess mining and causing environmental damage in the Benapura River sand Bed as mining activity was done beyond the lease area."
2713. Along with this affidavit, Google Maps have also been filed in support of the averments made.
14. A Joint Verification Report has also been filed along with the affidavit which has already been extracted herein above.
15. The Ministry of Environment, Forests and Climate Change (MoEF&CC) has filed affidavit dated 07.04.2022, stating therein that the State Level Environment Impact Assessment Authority (SEIAA), Odisha, is the Nodal authority responsible for awarding Environmental Clearance to Category 'B' projects under the EIA Notification 2006.
16. The Respondent No.10, Private Respondent, has filed its affidavit dated 18.04.2022, stating therein that between 2016-17, there was no excess mining; between 2017-2018, Environmental Compensation has been assessed but excess mining was observed only in December 2017. Again in 2018-2019, Environmental Compensation has been determined but no excess mining has been found. For 2019-2020, Environmental Compensation has been determined but no excess mining has been found. For 2020-2021, Environmental Compensation has been determined but excess mining has been found only in the month of April 2021.
17. The contention of the Respondent No.10 further is that the SEIAA, Odisha, while computing Environmental Compensation, has taken Rs.1103/- as the market value per cubic meter of sand which is highly excessive.
2818. Mr. Somnath Roy Chowdhury, learned Counsel for Respondent No.10 has referred to the Joint Verification Report in another case namely O.A. 99/2020/EZ (Bholanath Padhi & Ors. -
Versus- State of Odisha) wherein Joint Verification Report noted that the market value of sand was Rs.140/- per cubic meter.
Learned Counsel, therefore, submitted that this sand belt is the same as in the present case and, therefore, the value of sand in any case could not have been Rs.1103/- per cubic meter.
19. Learned Counsel has also referred to the Google Maps and submitted that the excess mining has been shown in February 2017 and December 2017 but thereafter no excess mining has been shown for the year 2018, 2019 and 2020 and thereafter, the excess mining has been shown in the month of April 2021 and, therefore, the entire period of five years could not have been taken into account for determining excess mining by the Respondent No.10 and, therefore, any computation made by SEIAA, Odisha in this regard was absolutely incorrect.
20. The Collector & District Magistrate, Balasore has filed his affidavit dated 18.07.2022 reiterating the contents of the Joint Verification Report and also stated that the lease period had expired on 01.05.2021 and because of Covid-19, periodical enforcement activities could not be ensured at the sand lease site. It is also reiterated that the authority had conducted raids on several occasions and seized machinery used for illegal mining and fine of 29 Rs.1,30,000/- (Rupees one lakh thirty thousand only) has also been imposed.
21. Another affidavit dated 19.09.2022 has been filed by the Collector & District Magistrate, Balasore, reiterating the contents of its previous affidavit but he has also stated that the Tahasildar has taken action to remove the temporary sand bundh from the river and the Railway Authority has blocked the transportation road due to road safety hazards under bridge no.215 but during inspection it was observed that the river bank had not been damaged due to sand mining and the distance from the sand bed to the river embankments was found to be more than 50 meters.
22. The Respondent No.10 has filed further affidavit dated 26.09.2022 disputing the computation of Environmental Compensation made by SEIAA, Odisha.
23. Mr. Sankar Prasad Pani, learned Counsel for the Applicant however referring to his rejoinder affidavit dated 18.07.2022, has disputed the computation of Environmental Compensation on various grounds :
i) First, it is stated that the SEIAA has made a total mix up of excavated area with lease area.
ii) Mr. Sankar Prasad Pani has referred his rejoinder-
affidavit and submitted that as per mining plan, the thickness of Sand Bed is shown to be 1 meter in 2020- 2021 and surface area of sand is 1500 m2 and volume of 30 sand is shown as 1500 m3. Thus, the approved excavated area is only 0.15 Ha (1500 m2) while the designated lease area is shown is 12.82 acres i.e. 5.188 Ha. i.e. 51880 sqm. as shown in the Report of SEIAA.
24. The learned Counsel also referred to the Mining Plan filed with the Original Application and referred to page 55 of the Original Application, showing the Output Per Man Shift (O.M.S.). The relevant extract of the Output Per Man Shift is as under :-
"Average production of sand/annum : 1500m2 Total working days in the year : 210 days (in and average) Production per day : 1500/210=7.1 m3 i.e. 7 Output per man shift (O.M.S.) : 2m3 Therefore, assuming the O.M.S. as 2m3, the man power requirement will be 7m3/2m3 = 3.5 nos. or 4 labours."
25. Mr. Sankar Prasad Pani, learned Counsel for the Applicant has also referred to the affidavit of SEIAA and submitted that the total area of mined out mineral in cubic meters is shown as 71880 m3 and, therefore, if the mining area is taken as 70380 m3 as illegally mined area since the excavation area is 1500 m3, the quantity of sand mined should have been 70380 m3 and the cost of sand taking 1 m3 to be of Rs.1103/- would be Rs.7.76 crores and adding the ecological services, the same would amount to Rs.11.6 crores for one year.
3126. Mr. Sankar Prasad Pani, learned Counsel further submitted that the submission of the Respondent No.10 that previously in the case of Bholanath Padhi -Versus- State of Odisha and others in the same sand area market value was Rs.140/- per cubic meter cannot be accepted since the Respondent No.10 in the auction process had himself quoted the price of Rs.1103/- per cubic metre. Therefore, for purposes of determining compensation for illegally mined excess sand, the monetary value per cubic metre in any case could not have been less than Rs.1103/-.
27. We have considered this aspect of the matter and we are in agreement with the submission of the learned Counsel for the Applicant that when the Respondent No.10 has himself quoted the price of Rs1103/- per cubic metre in the auction process, then in such a situation for purposes of determination of compensation for illegally extracted sand, the cost of sand per cubic metre cannot be below Rs.1103/-.
28. Mr. Sankar Prasad Pani, learned Counsel also drew the attention of the Tribunal to the letter of the Assistant Executive Engineer, Jaleswar, Irrigation Sub-Division, dated 18.03.2020 which is addressed to the Tahasildar, Basta, wherein it is mentioned that during the inspection carried out by the Assistant Executive Engineer, he found that one sand lease holder of Benapura KA Sand Sairat had diverted the original flow of the water of river Subarnarekha at Chalanti (near Railway bridge) by artificially blocking it and also damaged the left side of the river 32 bank of river Subarnarekha near village Chalanti railway over-
bridge from middle of the NH bridge by making a road for transportation of heavy vehicles without taking any prior permission from the department.
29. Learned Counsel submitted that this letter should have been taken by the SEIAA into consideration while determining Environmental Compensation and the damage caused to the railway over-bridge as well as to the left side embankment of river Subarnarekha due to artificially blocking near Chalanti railway over-bridge while computing damages.
30. We find that the SEIAA has not taken into consideration this letter dated 18.03.2020 of the Assistant Executive Engineer, Jaleswar Irrigation Sub-Division, Jaleswar.
31. The learned Counsel for the Applicant further submitted that the Consent To Operate (CTO) was granted to the Benapura Sand Quarry of the Respondent No.10 valid upto 31.03.2020 and thereafter there is no valid Consent To Operate but mining continued, therefore, any such mining beyond the period of Consent To Operate was illegal and the Respondent No.10 was not only liable to pay the cost and royalty for this excess mined sand thereby causing loss to the State exchequer but he was also liable to pay environmental compensation for causing damage to the environment due to illegal mining of sand beyond the period prescribed in the Consent to Operate.
3332. Learned Counsel Sri Sankar Prasad Pani further submitted that the Odisha State PCB in its affidavit has stated that vide letter dated 03.03.2021 Consent To Operate (CTO) was extended upto 01.05.2021 but nothing is stated with regard to extension of Consent To Operate (CTO) from 31.03.2020 upto issuance of the letter dated 03.03.2021.
33. We have perused the affidavit of the Odisha State Pollution Control Board wherein it is stated that the Regional Office of Balasore of Pollution Control Board has granted Consent To Operate (CTO) to the Respondent No.10 valid upto 01.05.2021 vide letter No.440 dated 03.03.2021 but the affidavit is silent with regard to the period from 31.03.2020 up to the date of issuance of the letter dated 03.03.2021. This shows that any excavation or extraction of sand beyond 31.03.2020 up to 03.03.2021 was wholly illegal for which the Respondent No.10 is liable for payment of Environmental Compensation as well as penalty and royalty for causing loss of revenue to the State Exchequer.
34. Mr. Sankar Prasad Pani, learned Counsel further submitted that the Respondent No.10 is in complete violations of the Sand Mining Guidelines 2020 but no criminal action has been taken against him and even otherwise, the Environment Clearance has been issued by SEIAA, Odisha in the name of Tahasildar, Basta, Balasore and therefore if the Respondent No.10, sand lease holder has extracted sand in violation and in excess of the mining plan and in violation of the Sand Mining Guidelines, 2016 and 2020, the 34 Tahasildar, Basta, District Balasore would be fully responsible for criminal action.
35. The Environmental Clearance copy of which has been filed as Annexure-5 to the Original Application, shows that it has been granted in the name of Tahasildar, Tahasil: Basta, District:
Balasore for the sand Quarry of Sri Rajesh Kumar Khatua, Respondent No.10 at Village- Benapura, Tahasil- Basta, District- Balasore over a sand area of 12.82 acres i.e. 5.188 Ha.
36. The Enforcement and Monitoring Guidelines for Sand Mining, 2020 (EMGSM) issued by the Ministry of Environment, Forests and Climate Change (MoEF&CC) has laid down the procedure for monitoring mechanism to check environmental damage due to illegal mining.
37. The Guidelines provide for establishment of a Task Force to be headed by an officer not below the rank of Additional District Magistrate who shall submit quarterly reports to the district administration.
38. In the present case, none of the affidavits of the State Pollution Control Board nor of the Collector & District Magistrate disclose whether any Task Force has been set in motion for checking and prevention of illegal sand mining. The Hon'ble Supreme Court in Common Cause -Vs- Union of India & Ors. in judgment dated 02.08.2017 passed in Writ Petition (Civil) No.114 of 2014 in para 128 has held as under :-
35"128. The simple reason for not accepting this interpretation is that Rule 2 (iia) of the MCR was inserted by a notification dated 26th July, 2012 while we are concerned with an earlier period. That apart, as mentioned above, the holder of a mining lease is required to adhere to the terms of the mining scheme, the mining plan and the mining lease as well as the statutes such as the EPA, the FCA, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. If any mining operation is conducted in violation of any of these requirements, then that mining operation is illegal or unlawful. Any extraction of a mineral through an illegal or unlawful mining operation would become illegally or unlawfully extracted mineral."
39. The Guidelines further provide for lodging of F.I.R. against persons involved in illegal excavation, storage and/or transportation of minor minerals including sand and imposition of fine as also initiation of actions under the provisions of the Income Tax Act, 1961 for unaccounted income and under the Central Goods and Services Act, 2017 for non-payment of GST as well as action under the provisions of the Motor Vehicles Act, 1989 against the driver and permit holder of the vehicle.
40. The affidavit of the Collector & District Magistrate is silent regarding the action taken in this regard.
41. Be that as it may, the Tahasildar, Basta, within whose jurisdiction the sand quarry exists, is the representative of the district administration, who is responsible for ensuring that no illegal sand mining is being carried out within his Tahasil and if he 36 finds that illegal sand mining is going on, it is his duty to report the matter to the District Magistrate concerned immediately.
42. In the present case, we find that the letter of the Assistant Executive Engineer, Jaleswar Irrigation Sub-Division, Jaleswar, dated 18.03.2020 (Annexure-2 to the Original Application) was addressed to the Tahasildar, Basta, alleging the artificially blocking of water flow of river Subarnarekha at Chalanti (near Railway bridge) and also causing damage to the left side of the embankment of river Subarnarekha by the sand lease holder of Benapura KA Sand Sairat, but the two affidavits filed by the Collector & District Magistrate, Balasore, do not refer to this letter which only implies that no follow up action was taken by the Tahasildar on the letter of the Assistant Executive Engineer, Jaleswar Irrigation Sub-Division and the matter was never reported by him to the Collector & District Magistrate, Balasore.
43. So far as the computation of Environmental Compensation is concerned, Mr. Somnath Roy Chowdhury, learned Counsel for Respondent No.10 as well as Mr. Sankar Prasad Pani, learned Counsel for the Applicant have both disputed the same and we are also of the view that for the reasons recorded herein above the computation of Environmental Compensation is not correct and must be determined again having strict regard to the terms and conditions of the Mining Plan.
44. We, therefore, direct the State Level Environment Impact Assessment Authority (SEIAA), Odisha to re-determine 37 Environmental Compensation for illegal extraction of sand by the Respondent No.10 for the five years period from 2017 (included) upto 2021 with the help of satellite imagery.
45. Such exercise i.e. determination of Environmental Compensation shall be completed by the SEIAA, Odisha, within two months and once Environmental Compensation is determined due notice of the same shall be given to the Respondent No.10 inviting its objections, if any, to such computation and after considering the representation submitted by the Respondent No.10, if any, the SEIAA, Odisha, shall determine the final Environmental Compensation against the Respondent No.10 pointing out the time limit within which the same has to be deposited by the Respondent No.10.
46. However, as an interim measure we direct Respondent No. 10 to deposit Rupees One Crore towards environmental compensation to Odisha PCB within a period of one month till final computation of Environmental Compensation is carried out by SEIAA, Odisha. The amount shall be utilized for restoration of the damaged embankment of Subarnarekha river and for other damages caused to the river.
47. We further direct the Collector & District Magistrate, Balasore to lodge F.I.R. against the Tahasildar, Basta who was the Tahasildar during the period 2017 to 2021 during which the illegal extraction of sand has occurred according to the SEIAA, Odisha and such F.I.R. shall thereafter be carried to its logical conclusion. The 38 Collector & District Magistrate shall also initiate departmental proceedings against the concerned Tahasildars in accordance with law.
48. Affidavit of compliance shall be filed by SEIAA, Odisha and District Magistrate, Balasore by 31.01.2023.
49. Mr. Somnath Roy Chowdhury, learned Counsel for the Respondent No.10 has placed reliance upon the judgment of the Hon'ble Supreme Court in I.A. No. 29984 of 2021 in Special Leave Petition (Civil) No.10587 of 2019 Bajri Lease Lol Holders Welfare Society -Versus- The State of Rajasthan and Ors. (as referred to para
18). Paragraph 18 of the judgment reads as under :-
"Section 21(5) of the MMDR Act empowers the State Government to recover the price of the illegally-mined mineral, in addition to recovery of rent, royalty or tax. The penalty recommended by the CEC for illegal sand mining is in addition to the penalty that can be imposed by the State Government in terms of Section 21(5) of the Act. However, the basis for imposition of exemplary penalty of Rs.10 lakh per vehicle and Rs.5 lakh per cubic metre of sand has not been stated by the CEC in its report. The CEC is directed to follow the directions given by the NGT in respect of imposition of penalty/determining scale of compensation for illegal mining and the provisions of the 2020 Sand Mining Guidelines and determine the penalty / compensation afresh and submit a report to this Court within a period of eight weeks from today."
39
50. Needless to say that since we have directed the SEIAA, Odisha to re-compute Environmental Compensation, the SEIAA shall take into consideration the directions given by the National Green Tribunal in Original Application No.360 of 2015) National Green Tribunal Bar Association - Versus - Virender Singh (State of Gujarat) vide its order dated 26.02.2021 as well as the Enforcement and Monitoring Guidelines for Sand Mining, 2020. The relevant portion of the order dated 26.02.2021 are extracted herein below :-
"27. We direct all the States/UTs to strictly follow the SSMG-2016 read with EMGSM-2020 reinforced by mechanism for preparation of DSRs (in terms of directions of this Tribunal dated 14.10.2020 in Pawan Kumar, supra and 04.11.2020 in Rupesh Pethe, supra), Environment Management Plans, replenishment studies, mine closure plans, grant of EC (in terms of direction dated 13.09.2018 in Satendra Pandey, supra), assessment and recovery of compensation (as per discussion in Para
25), seizure and release of vehicles involved in illegal mining (in terms of order dated 19.02.2020 in Mushtakeem, supra), other safeguards against violations, grievance redressal, accountability of the designated officers and periodical review at higher levels. As already noted, EMGSM-2020 contemplates extensive use of digital technology, including remote sensing.
28. We further direct that periodic inspection be conducted by a five-
members Committee, headed and coordinated by the SEIAA and comprising CPCB (wherever it has regional office), State PCB and two expert members of SEAC dealing with the subject. Where CPCB regional office is not available, if MoEF&CC regional office is available, its Regional Officer will be included in the Committee. Where neither CPCB nor MoEF&CC regional office exists, Chairman, SEIAA will tie up with 40 the nearest institution of repute such as IIT to nominate an expert for being included in the Committee. Such inspection must be conducted at least thrice for each lease i.e. after expiry of 25% the lease period, then after 50% of the period and finally six months before expiry of the lease period for midway correction and assessment of damage, if any. The reports of such inspections be acted upon and placed on website of the SEIAA. Every lessee, undertaking mining, must have an environment professional to facilitate sustainable mining in terms of the mining plan and environmental norms. This be overseen by the SEIAA. Environment Departments may also develop an appropriate mobile App for receiving and redressing the grievances against the sand mining, including connivance of the authorities and also a mechanism to fix accountability of the concerned officers. Recommendations of the Oversight Committee for the State of UP quoted earlier may be duly taken into account.
The mechanism must provide for review at the level of the Chief Secretary at least once in every quarter, in a meeting with all concerned Departments in the State. The Chief Secretary UP may ensure further action in the light of the report of the Oversight Committee.
Similarly, at National level, such review needs to be conducted at least once in a year by the Secretary, Environment in coordination with the Secretaries Mining and Jalshakti Ministries the CPCB.
29. We further direct all the States/UTs to publish their annual reports on the subject and such annual reports may be furnished to 39 MoEF&CC by 30th April every year giving status till 31st March. First such report as on 31.03.2022 may be filed with the MoEF&CC by all he States/UTs on or before 30.04.2022. The report may also be simultaneously posted on the website of the Environment Department of the States/UTs. Based on such reports, MoEF&CC may consider supplementing its Guidelines from time to time. The MoEF&CC may 41 prepare a consolidated report considering the reports from the States/UTs and publish its own report on the subject, preferably by 31st May every year.
30. We direct the Secretary MoEF to convene a meeting in coordination with the CPCB and Mining and Jalshakti Ministries of Central Government and such other experts/individuals at National level and representatives of States within three months for interaction on the subject which may be followed by such meetings being convened by the Chief Secretaries in all States in next three months. Holding of such meetings will provide clarity on enforcement strategies and help protection of environment."
51. SEIAA shall also bear in mind the judgment of the Hon'ble Supreme Court in 2012 4 SCC 629 Deepak Kumar Etc. -vs- State Of Haryana & Ors. Etc.
52. With the aforesaid directions, the Original Application No. 09/2021/EZ is accordingly disposed of.
53. There shall be no order as to costs.
........................................ B. AMIT STHALEKAR, JM ........................................ SAIBAL DASGUPTA, EM Kolkata, October 13, 2022, Original Application No.09/2021/EZ SKB 42