National Green Tribunal
Gram Panchayat Imaliya vs Ministry Of Environment, Forest And ... on 8 December, 2017
Author: Swatanter Kumar
Bench: Swatanter Kumar
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
..............
ORIGINAL APPLICATION NO. 557/2017
(M.A. NO. 1120/2017 & M.A. NO. 1188/2017)
AND
ORIGINAL APPLICATION NO. 615 OF 2017
(M. A. NO. 1199/2017)
AND
ORIGINAL APPLICATION NO. 616 OF 2017
(M. A. NO. 1197/2017)
AND
ORIGINAL APPLICATION NO. 624/2017
(M.A. NO. 1205/2017)
AND
ORIGINAL APPLICATION NO. 631 OF 2017
(M.A. NO. 1210/2017)
AND
ORIGINAL APPLICATION NO. 633 OF 2017
AND
ORIGINAL APPLICATION NO. 625/2017
AND
ORIGINAL APPLICATION NO. 634 OF 2017
(M.A. NO. 1217 OF 2017 & 1218 OF 2017)
AND
ORIGINAL APPLICATION NO. 636/2017
(M. A. NO. 1229/2017 & M. A. NO. 1230/2017)
AND
ORIGINAL APPLICATION NO. 639 OF 2017
AND
ORIGINAL APPLICATION NO. 647 OF 2017
(M.A. NO. 1258 OF 2017 & M.A. NO. 1259 OF 2017)
AND
ORIGINAL APPLICATION NO. 648 OF 2017
(M. A. NO. 1260 OF 2017 AND M.A. NO. 1261 OF 2017)
AND
ORIGINAL APPLICATION NO.326 OF 2017
(M. A. NO. 584 OF 2017)
IN THE MATTER OF:
Anjani Kumar
S/o Shivdeo Prasad Singh
R/o 23/24 Rohtas Enclave
Ravindra Palli Faizabad Road
Lucknow-226016
....APPLICANT
Versus
1
1. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Geology & Mining
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
2. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Environment & Forest
UP Secretariat
Lucknow-226001 (UP)
3. Department of Environment, U. P
Through its Principal Secretary
Government of Uttar Pradesh
Lucknow (UP)
4. Department of Mining & Geology, UP
Through its Principal Secretary
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
5. Directorate of Geology & Mining, UP
Through its Director
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
6. Ministry of Environment, Forest & Climate Change
Through its Secretary
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
7. The District Collector
(Mining Section), Collectorate
District Jhansi (U.P.) 284135
8. The District Collector
(Mining Section), Collectorate
District Jaloun (U.P.)
9. The District Collector
(Mining Section), Collectorate
District Unnao (U.P.)
10. The District Collector
(Mining Section), Collectorate
District Hamirpur (U.P.)
2
11. The District Collector
(Mining Section), Collectorate
District Sonbhadra (U.P.)
12. The District Collector
(Mining Section), Collectorate
District Fatehpur (U.P.)
13. The District Collector
(Mining Section), Collectorate
District Kanpur Dehat (U.P.)
14. The District Collector
(Mining Section), Collectorate
District Gonda (U.P.)
.......RESPONDENTS
And
Ram Pal Singh
S/o Kishun Prasad
R/o 297, Chikasi,
Hamirpur-210430
Uttar pradesh
....APPLICANT
Versus
1. Ministry of Environment, Forest & Climate Change
Through its Secretary
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
2. Govt. of Uttar Pradesh
Through Prinicpal Secretary, Environment
Room NO. 601, Bapu Bhawan, Secretariat,
Vidhan Sabha Marg,
Lucknow-226001
Uttar Pradesh
3. Department of Mining & Geology,
State of U.P.
Through its Additional Chief Secretary
Civil Secretariat
Lucknow-226001
Uttar Pradesh
4. The District Collector
(Mining Section), Collectorate
3
District Hamirpur -127001
Uttar Pradesh
5. Directorate of Geology & Mining,
State of Uttar Pradesh
Through its Director
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001
(UP)
.......RESPONDENTS
And
Devendra Singh Parmar
S/o Shri Birendra Singh Parmar,
R/o Indrapuri Colony
District Panna, Madhya Pradesh
....APPLICANT
Versus
1. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Geology & Mining
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
2. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Environment & Forest
UP Secretariat
Lucknow-226001 (UP)
3. Department of Environment, U. P
Through its Principal Secretary
Government of Uttar Pradesh
Lucknow (UP)
4. Department of Mining & Geology, UP
Through its Principal Secretary
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
5. Directorate of Geology & Mining, UP
Through its Director
Khanij Bhawan,
4
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
6. Ministry of Environment, Forest & Climate Change
Through its Secretary
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
7. The District Collector
(Mining Section), Collectorate
District Banda (U.P.) 284135
8. The District Collector
(Mining Section), Collectorate
District Kanpur Dehat (U.P.)
.......RESPONDENTS
And
Pawan Kumar Mishra, Aged about 48 years
S/o Sri Krishna Gopal Mishra,
R/o Moh. Naya Patel Nagar,
Post & Pargana Orai,
Dsitrict Orai
....APPLICANT
Versus
1. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Geology & Mining
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
2. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Environment & Forest
UP Secretariat
Lucknow-226001 (UP)
3. Department of Environment, U. P
Through its Principal Secretary
Government of Uttar Pradesh
Lucknow (UP)
4. Department of Mining & Geology, UP
Through its Principal Secretary
Khanij Bhawan,
5
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
5. Directorate of Geology & Mining, UP
Through its Director
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
6. Ministry of Environment, Forest & Climate Change
Through its Secretary
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
7. District Magistrate
Banda. (U.P.)
21001
8. District Magistrate
Kanpur Dehat, U.P.
208001
.......RESPONDENTS
And
Rakesh
Aged about 46 years
S/o Bheem,
R/o Panchayara, Mandola
Ghaziabad, Uttar Prades-201102
....APPLICANT
Versus
1. Union of India
Through its Secretary
Ministry of Environment, Forest & Climate Change
Indira Paryavaran Bhawan,
New Delhi-110001
2. State of Uttar Pradesh
Through the Chief Secretary
5th Floor, Secretariat,
Lucknow (UP)-226001
3. Directorate of Geology and Mining
6
U.P. Khanji Bhawan,
Lucknow-226001
4. District Magistrate
Ghaziabad District
Uttar Pradesh-226001
5. District Magistrate
Baghpat District
Uttar Pradesh-250609
6. District Magistrate
GautamBudh Nagar District,
Uttar Pradesh-203201
.......RESPONDENTS
And
Gram Panchayat, Imaliya
Through the Sarpanch
Shrimati Ram Devi,
Gram Parricha,
Tehsil-Moth,
Jhansi-284306
....APPLICANT
Versus
1. Ministry of Environment, Forest & Climate Change
Through its Secretary
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
2. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Mining & Geology
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
3. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Environment & Forest
UP Secretariat
Lucknow-226001 (UP)
4. Department of Environment, U. P
Through its Principal Secretary
7
Government of Uttar Pradesh
Lucknow (UP)
5. Department of Mining & Geology, UP
Through its Principal Secretary
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
6. Directorate of Geology & Mining, UP
Through its Director
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
7. The District Collector
(Mining Section), Collectorate
District Jhansi (U.P.)
8. The District Collector
(Mining Section), Collectorate
District jaloun (U.P.)
9. The District Collector
(Mining Section), Collectorate
District Unnao (U.P.)-212601
10. The District Collector
(Mining Section), Collectorate
District Hamirpur (U.P.)
11. The District Collector
(Mining Section), Collectorate
District Sonbhadra (U.P.)
12. The District Collector
(Mining Section), Collectorate
District Fatehpur (U.P.)
13. The District Collector
(Mining Section), Collectorate
District Kanpur Dehat (U.P.)
14. The District Collector
(Mining Section), Collectorate
District Gonda (U.P.)
15. The District Collector
(Mining Section), Collectorate
District Sitapur (U.P.)
8
16. The District Collector
(Mining Section), Collectorate
District Pratapgarh (U.P.)
17. The District Collector
(Mining Section), Collectorate
District Bahraich (U.P.)
18. The District Collector
(Mining Section), Collectorate
District Etawah (U.P.)
19. The District Collector
(Mining Section), Collectorate
District Agra (U.P.)
20. The District Collector
(Mining Section), Collectorate
District Kaushambi (U.P.)
21. The District Collector
(Mining Section), Collectorate
District Auraiya (U.P.)
22. The District Collector
(Mining Section), Collectorate
District Allahabad(U.P.)
23. The District Collector
(Mining Section), Collectorate
District Gaziabad (U.P.)
24. The District Collector
(Mining Section), Collectorate
District Gazipur(U.P.)
25. The District Collector
(Mining Section), Collectorate
District Ambedkarnagar (U.P.)
26. The District Collector
(Mining Section), Collectorate
District Moradabad (U.P.)
27. The District Collector
(Mining Section), Collectorate
District Hardoi (U.P.)
28. The District Collector
(Mining Section), Collectorate
District Gautam Budh Nagar (U.P.)
9
29. The District Collector
(Mining Section), Collectorate
District Shamli (U.P.)
30. The District Collector
(Mining Section), Collectorate
District Shahjahanapur (U.P.)
31. The District Collector
(Mining Section), Collectorate
District Sultanpur (U.P.)
32. The District Collector
(Mining Section), Collectorate
District Raibareli(U.P.)
33. The District Collector
(Mining Section), Collectorate
District Chitrakoot (U.P.)
.......RESPONDENTS
And
Prem Chandra Agrahari
S/o Gopi Chandra,
124, Nagar Plika Parishad
Ashok Nagar, Fatehpur
District Fatehpur, U.P. 212601
....APPLICANT
Versus
1. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Mining & Geology
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
2. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Environment & Forest
UP Secretariat
Lucknow-226001 (UP)
3. Department of Environment, U. P
Through its Principal Secretary
Government of Uttar Pradesh
10
Lucknow (UP)
4. Department of Mining & Geology, UP
Through its Principal Secretary
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
5. Directorate of Geology & Mining, UP
Through its Director
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
6. Ministry of Environment, Forest & Climate Change
Through its Secretary
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
7. The District Collector
(Mining Section), Collectorate
District Kaushambi (U.P.) 212207
8. The District Collector
(Mining Section), Collectorate
District Banda (U.P.)-210001
9. The District Collector
(Mining Section), Collectorate
District Fatehpur (U.P.)-212601
.......RESPONDENTS
And
Brajbhushan Singh Yadav
S/o Hargovinda Singh Yadav,
R/o Sanjay Nagar,
Gangehi Talah, Badausa Road,
Atarra
District- Banda, U.P. 210201
....APPLICANT
Versus
1. Ministry of Environment, Forest & Climate Change
Through its Secretary
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
11
2. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Geology & Mining
Civil Secretariat,
Lucknow-226001 (UP)
3. Director,
Directorate of Geology and Mining
Kandji Bhawan,
Lucknow-226001 (UP)
4. The District Magistrate/District officer
District Banda
(U.P.) 210007
5. Mines Officer
District Banda
(U.P.)-210001
6. District level Environment Impact Assessment Authority
Through its Secretary, Collectorate Compound
District Banda
(U.P.)-212601
7. Shailendra Yadav, Son of Neapl Yadav,
Resident of 56A Damuwa,
Naintal, Uttarakhand-263001
8. Vir Singh, Son of Gajraj Singh,
Resident of 171/72, Civil Lines,
Tehsil and District, Banda -210001
9. Parth Constrcution and Supplier
Through it Proprietor Basant Chaturvedi,
Son of Shri Manohar Lal Chatruvedi,
Resident of 11, Shastri Marg, Civil Lines,
Jhansi-284001
10. M/s. Digiyana Industries Private Limited, Indore
Through its proprietor Tejinder Pal Singh Ghumma,
Son of Late Suchcha Singh Ghumman,
Resident of 233, Vishnupuri Annex,
District Indore, Madhya Pradesh - 452001
11. Vishwas Parmani,
S/o H. Parmani,
R/o Associated Commerce Piparia,
District Hoshangabad, Madhya Pradesh- 461001
12
.......RESPONDENTS
And
Sanjay Pratap Singh
S/o Shri Han Singh
R/o Village-Balipur,
Tehsil-Kunda
District-Pratapgarh-210430
....APPLICANT
Versus
1. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Geology & Mining
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
2. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Environment & Forest
UP Secretariat
Lucknow-226001 (UP)
3. Department of Environment, U. P
Through its Principal Secretary
Government of Uttar Pradesh
Lucknow (UP)
4. Department of Mining & Geology, UP
Through its Principal Secretary
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
5. Directorate of Geology & Mining, UP
Through its Director
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
6. The District Collector
(Mining Section), Collectorate
District-pratapgarh (U.P)
.......RESPONDENTS
And
13
Anil kumar
S/o Jabar Singh
Aged 40 years
R/o Village-Khindiya, Basera,
District-Mujafar Nagar -U.P.
....APPLICANT
Versus
1. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Geology & Mining
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
2. State of Uttar Pradesh
Through Additional Chief Secretary
Department of Environment & Forest
UP Secretariat
Lucknow-226001 (UP)
3. Department of Environment, U. P
Through its Principal Secretary
Government of Uttar Pradesh
Lucknow (UP)
4. Department of Mining & Geology, UP
Through its Principal Secretary
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
5. Directorate of Geology & Mining, UP
Through its Director
Khanij Bhawan,
27/8 Raja Ram Mohan Rai Marg
Lucknow-226001 (UP)
6. Ministry of Environment, Forest & Climate Change
Through its Secretary
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
7. The District Collector
(Mining Section), Collectorate
District-Shamali (U.P)
.......RESPONDENTS
14
And
Pragati Kumar, Aged about 32 years
S/o Sri Ramsanehi
R/o House No. 2028, New Rajender Nagar
Oral, District-Jalaun -U.P.
....APPLICANT
Versus
1. Ministry of Environment, Forest & Climate Change
Through its Secretary
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
2. State of Uttar Pradesh
Through its Principal Secretary
Department of Geology & Mining
Civil Secretariat,
Lucknow-226001 (UP)
3. Director,
Directorate of Geology and Mining,
Khanij Bhawan,
Lucknow-226001 (UP)
4. District Magistrate/District Officer
Banda,
Uttar Prapesh
5. Mines Officer,
Banda,
Uttar Pradesh-210201
6. District Level Environment Impact Assessmen Authority
Through its Secretary, Collectorate Compound,
District Banda,
Uttar Pradesh-210201
.......RESPONDENTS
Pravesh,
S/o Janeshvar,
R/o House No. 290,
Hasanpur Bhalsava,
Tehsil Behat
District- Saharanpur-U.P.-247001
....APPLICANT
Versus
1. Ministry of Environment, Forest & Climate Change
Through its Secretary
15
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
2. State of Uttar Pradesh
Through its Principal Secretary
Department of Geology & Mining
Civil Secretariat,
Lucknow-226001 (UP)
3. Director,
Directorate of Geology and Mining,
Khanij Bhawan,
Lucknow-226001 (UP)
4. District Magistrate/District Officer
Shamli,
Uttar Prapesh-210201
5. Mines Officer,
Shamli,
Uttar Pradesh-210201
6. District Level Environment Impact Assessmen Authority
Through its Secretary, Collectorate Compound,
District Banda,
Uttar Pradesh-210201
.......RESPONDENTS
Pravin Kumar Singh,
Aged about 34 years
R/o House No.120, Maghuwan P.S., Gosaiganj
Tehsil Mohanlal Ganj
Lucknow
Uttar Pradesh- 226501
....APPLICANT
Versus
1. Union of India
Through its Secretary
Ministry of Environment, Forest & Climate Change
Indira Paryavaran Bhawan,
Jor Bagh Road
New Delhi-110003
2. State of Uttar Pradesh
Through its Cheif Secretary
5th Floor, Secretariat
Lucknow-226001 (UP)
3. Directorate of Geology and Mining,
16
U.P. Khanij Bhawan,
Lucknow-226001 (UP)
.......RESPONDENTS
COUNSEL FOR APPLICANTS:
Mr. Mayank Prasad, Adv.
Mr. Arjun Pant, Adv
Mr. Rahul Choudhary & Ms. Meera Gopal, Advs.
Mr. Ankur Mittal, Adv
Mr. Mayank Pandey, Adv
Mr. Mukesh Kumar Sharma, Adv
Mr. Suraj Prakash Singh, Adv.
Mr. Mana K. Rajvanshi and Mr. Amit Upadhyay, Mr. Anurag Kashayap and
Tajaswina Sagar Advs.
Mr. Pinaki Mishra, Mr. Anand Varma and Ms. Shubhangni Jain, Advs.
Mr. Arjun Pant, Advocates for applicants.
COUNSEL FOR RESPONDENTS :
Mr. Kailash Yadav, Sr. Adv Dr. Sandeep Singh, Adv.
and Mr. Vinay Pal Adv. for State of UP
Mr. Anil Grover, AAG, Haryana
Mr. Attin Shankar Rastogi, Mr. Prateek Yadav. Adv
Mr. Rajesh K. Singh & Ms. Ashita Chhibber, Adv.
Mr. Krishna Kumar Singh, Adv. and Mr. Anurag Kumar, Adv for MoEF
Mr. V.K. Shukla Advs for respondent no. 8
Mr. Pradeep Mishra and Mr. Daleep Dhyani, Adv for UPPCB
Mr. Ankit Verma Adv. for State of Uttar Pradesh
Mr. Om Prakash, Adv.
Mr. Deep Shikha Bharati, Adv.
JUDGMENT
PRESENT:
Hon'ble Mr. Justice Swatanter Kumar (Chairperson) Hon'ble Dr. Justice Jawad Rahim (Judicial Member) Hon'ble Mr. Bikram Singh Sajwan (Expert Member) Reserved on: 13th November, 2017 Pronounced on: 8th December, 2017
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?
DR. JUSTICE JAWAD RAHIM, (JUDICIAL MEMBER) 17
1. By this Judgment we are considering and disposing of the following applications Original Application No. 557/2017, Original Application No. 615 of 2017, Original Application No. 616 of 2017, Original Application No. 624/2017, Original Application No. 631 of 2017, Original Application No. 633 of 2017, Original Application No. 625/2017, Original Application No. 634 of 2017, Original Application No. 636/2017, Original Application No. 639 of 2017, Original Application No. 647 of 2017, Original Application No. 648 of 2017 and Original Application No.326 of 2017 as the factual matrix, grounds and the reliefs sought are same. Hence, to avoid repetition and bulking the records we shall refer to the pleadings in the lead case filed i.e. O.A. 557 of 2017: Anjali Kumar Vs. State of U.P & Ors. filed by Ms. Anjali Kumar and the defense of the respondents which is common.
2. The genesis of this action under Section 14 of the National Green Tribunal Act, 2010 initiated by Ms. Anjali Kumar is the framing of the "Sand Mining Policy dated 14th August, 2017 (Sand Mining Policy) by the State of UP and issuance of notice for invitation of E-tender-cum-E-Auction in respect of various districts like Jhansi, Unnao, Jalaun, Sonbhadra, Fatehpur, Kanpur, Bihar, Gonda for grand of mining lease for excavation of sand and gravel from various rivers passing through the aforesaid districts, issued by the State of UP.
3. The applicant has assailed the aforesaid Sand Mining Policy, 2017 and the notice for invitation of E-Tender-cum-E-Auction 18 on several grounds inter-alia contending that the Sand Mining Policy, 2017 and the notice for e-tender cum e-auction issued in utter violation of provisions of Environment (Protection) Act, 1986, Environment (Protection) Rules, 1986 and Notification dated 14th September, 2016 made by the Central Government under Section 3 of the Environment Protection Act, 1986 read with Rule 5 of the Environment Rules, 1986 and the "Sustainable Sand Mining Management Guidelines, 2016 issued by the Ministry of Environment Forest and Climate Change. Several grounds legal and factual are raised but we will refer only to substance of it which is relevant to be taken into consideration for decision, it is as follows:
i. The river sand and gravel mining is an important process which has serious and far reaching adverse impact upon the ecological balance and biological diversity of the flora and fauna existing on the river bank in view of principle of sustainable development. The river sand and gravel mining is permitted to be carried out but with certain checks and balances for the protection and safeguard of the environment. Such safeguards and checks are provided in Environment (Protection) Act, 1986 and the rules made thereunder in terms of the Notification dated 14th September, 2006 issued by Central Government under Section 3 of the Environment (Protection) Act read with Rule 5 of the 19 Environment (Protection) Rules, 1986 and the Sustainable Sand Mining Management Guidelines, 2016 o f the MoEF.
ii. The mandate in the decision of the Hon'ble Supreme
Court in the case of Deepak Kumar vs. State of
Haryana & ors. (2012) 4 SCC 629 while
acknowledging the adverse impact of illegal
river/sand mining going on in the state of Uttar Pradesh and Rajasthan, contains several guidelines for sand mining and requires all states to follow and adopt the same by framing appropriate rules in this regard. Despite the emphasis laid by the Hon'ble Supreme Court that it is highly necessary to have effective framework of mining plan which will take care of all environmental issues and also evolve a long term rational and sustainable use of resources, the State has acted to the contrary. The mandate to all the states to give due regard and implement the recommendations made by the MoEF has been flouted.
iii. That the MoEF in continuance of its recommendations in the Year 2010 formulated Sustainable Sand Mining Management Guidelines, 2016 after extensive consultation with the States and other stakeholders and therefore, is binding in nature upon all the States requiring it to frame Sand 20 Mining Policy whenever it intends to grant mining lease. It is alleged, State of UP has frustrated the said legal compulsion and framed the Sand Mining Policy, 2017 in utter violation thereto. The objective of the guidelines has been flouted. The objective of the guidelines prescribed by 'Sustainable Sand and Gravel Mining Guidelines' to provide detailed procedure and safeguards for sustainable sand mining but the same has been deleted while framing the Sand Mining Policy 2017 by the State of UP.
iv. It is contended that "Sustainable Sand Mining Guidelines, 2016"issued by MoEF requires preparation of DISTRICT SURVEY REPORT as an important initial step before formulating a mining policy. 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.
Calculation of annual rate of replenishment and allowing time for replenishment after mining area was to be recorded identification of ways of scientific and systematic mining; identifying measures for protection of environment and ecology and determining measures for protection of bank erosion 21 Where a bench mark (BM) with respect to mean Sea Level (MSL) should be made essential to inmining channel reaches (MCR) below which no mining shall be allowed. Identifying steps for conservation of mineral. The permanent gauging facilities for discharge and sediment both should be made compulsory. The river/stream/other sources of sand and aggregate are to be studied on following parameters like geomorphological studies, place of origin, catchment area, general profile of rive stream, annual deposition factor etc.
4. It is further case of the applicant that though the Government of India acknowledging importance of the District Survey Report to ensure formulation of safe sustainable mining plan incorporated that Sustainable Sand Mining Management Guidelines, 2016 in 2006 Notification vide amendment dated 15th January, 2016. In particular it recognised the importance of District Survey Report. He has quoted the amendment of the said notification dated 15th January, 2016 by which para 7 was added which reads as follows:
Para7 (iii) Preparation of District Survey Report for Sand Mining or River Mining and Mining of other Minor Minerals.
5. Thus, it is contended that the amendment of para 7(iii) requiring preparation of DSR had to be given due importance and credence. The procedure for preparation of District Survey Report has been detailed in Appendix-X which reiterates the solemn objective of preparation of District 22 Survey Report i.e. identification of the areas of aggradations or depositions where mining can be allowed and identification of the area of erosion and proximity to the infrastructural structures and installations where mining should be prohibited. Appendix-X provides that the survey shall be carried out by the District Level Environment Impact Assessment Authority (DEIAA) with the assistance of Geology Department or Irrigation Department or Forest Department or Public Works Department or Ground Water Boards or Remote sensing Department or Mining Department in the district. Appendix-X specifies that the District Survey Report shall be prepared for each minor mineral in the district separately and its draft shall be placed in the public domain by keeping its copy in Collectorate and posting it on district's website for 21 days. The comments received shall be considered and if found fit, shall be incorporated in the final report to be finalised within six months by the DEIAA.
6. The applicant has relied on the letter dated 28th June, 2017 issued by respondent no. 5 apprising all the District Collectors of State of UP of the 2016 amendment in the 2006 Notification of Union of India and directed them that the District Survey Report of the minor minerals, as required under the amendment of 2016 shall be prepared and kept in the public domain of collectorate, posting on the website of each district for 21 days. The said letter also records that e-tender of the minor-mineral is proposed to be done in near future. 23 Therefore, "District Survey Report" shall be prepared and posted on website mandatorily, as the "District Survey Report"
is to remain effective for 5 years. Placing reliance on the aforesaid process of amended 2006 notification of the MoEF and the Sustainable Sand Mining Guidelines, 2016 the applicant has impugned the "Sand Mining Policy, 2017"of the State of Up and the notice inviting tender issued thereunder to seek such relief he contends that the impugned sand mining policy, 2017 annexure A-5 is not in the spirit of para 7(iii) in Appendix-x which is of the amended 2006 Notification.
THE STAND OF STATE OF UP BY WAY OF REPLY TO THE GROUNDS IN THE APPLICANT:-
7. The application challenging the Mining Policy of 14.08.2017 issued vides order No. 1875/86-2017 57(sa) 2017 T is not maintainable. Such a challenge falls outside the jurisdictions set out on the NGT Act. It is stated that the said policy has been framed by the state in the economic/commercial interests and in the interest of protecting the environment and ecology. The said policy relates to the 42nd & 43rd Amendments to the U.P. Minor Mineral Concessions Rules. It is stated that the said Policy which protects both - commercial interests and the ecology has been framed by the first respondent in exercise of its Constitutional prerogatives and powers after taking into consideration relevant factors and material including the law laid down by the Hon'ble Supreme Court of India and the directions of this Hon'ble Tribunal for 24 protection the environment. The applicant's challenge to such a policy based on legislation and relevant considerations of public interest is not maintainable. It is now settled law that Courts would not interfere with matters dealing with economic policy/function of the State, or sit in judgement over such policies. The present application merits dismissal on this ground alone.
8. That the applicant assails the Government order of 14.08.2017 and notice for E-Auction/E-Tender issued by the respondent State in matters pertaining to the grant/concessions/leases under the U.P. Minor Mineral Concessions Rules 1963 as amended in 2017. It is stated that the said notices have been issued in accordance with the Rules which have been framed in exercise of legislative powers available to the first respondent. The order of 14.08.2017 is not open to challenge under the NGT Act or otherwise. The notice inviting E-Tender are in conformity with the Rules/Orders are not matters falling within the scope of challenge under the NGT Act.
9. It is denied that the policy on the Government order have been issued in violation and disregard of various orders and judgments of the Hon'ble Supreme Court or of this Hon'ble Tribunal. It is stated that the said Policy and legislative actions of the answering respondent are not the public interest.
10. That the contents of paragraph No. 4.18 & 4.19 are denied. The Applicant has wrongly termed the Government Order dated 25 14.08.2017 as a Mining Policy. The said Government order has been only been issued in compliance to the amendment made in the Uttar Pradesh Minor mineral (Concession) Rules-1963. The Government order dated 14.08.2017 and UPMMCR 1963 contain all provisions to ensure environmental safeguards. It has been stated in the para 18(7) of the Government order dated 14.08.2017 that prior Environmental Clearance certificate is necessary before granting of a Mining lease. There are provisions in Rule-34 and 41 (h) of the UPMMCR-1963 regarding environment issues and safe mining. It is stated that the applicant is raising issues contrary to the Rules and the Policy.
11. It is stated that the DSR is required for the issuance of the Environment Clearance and not at the time of invitation of bids under E-Tender Cum E-Auction. The Government order dated 14.08.2017 sets out that a Committee constituted by the District Magistrate comprising Additional District Magistrate/Sub Divisional Magistrate/Tehsildar and Senior Mines officer/ Mines officer/Mines Inspector of the concern District which to assess the quality and quantity of the Minerals in notified area. This is accordance with the MoEF Notification of Supra. All participants in the E-Tender Cum E- Auction are obliged to visit the area and verify the quality and quantity of the mineral, so that they can prepare their bid/tender.
STAND OF RESPONDENT NO. 5- MOEF&CC 26
12. The MoEF has filed a reply to the application but as we could see only following defense has been taken which is in the nature of furnishing factual information and has not seriously questioned the action initiated by the Applicant. Following are the relevant portions of their statement:-
13. That the applicant has challenged the Sand Mining Policy dated 14th August 2017 issued by the State of Uttar Pradesh as it does not incorporate the District Survey Report provided in the Sustainable Sand Mining Management Guidelines 2016 issued by the respondent Ministry.
14. That it is further submitted that respondent Ministry issued EIA Notification dated 14th September 2006 (hereinafter referred to as "EIA Notification 2006") which superseded the old EIA Notification dated 27th January, 1994.
15. That it is further submitted that the EIA Notification 2006 requires certain projects to obtain prior Environmental Clearance ("EC") before any construction work in case of new projects or expansion and modernization of existing projects or activities. The Schedule to the Notification details the categories or projects or activities which require poor environmental clearance.
16. That it is further submitted that all projects or activities included as Category 'A' in the Schedule, including expansion and modernization of existing projects or activities and change in product mix, shall require prior environmental clearance from the Central Government in the Ministry of Environment, 27 Forest and Climate (MoEF &CC) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of this notification.
17. That it is further submitted that all projects or activities included as Category 'B' in the Schedule, including expansion and modernization of existing projects or activities as specified in sub paragraph (ii)of paragraph 2, but excluding those which fulfill the General Conditions (CG) stipulated in the Schedule, will require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union territory Level Expert Appraisal Committee (SEAC) as to be constituted for in this notification. In the absence of a duly constituted SEIAA or SEAC, a Category 'B' project shall be treated as a Category 'A' project.
18. That the Respondent Ministry further issued Notification No. S.O. 141(E) dated 15th January, 2016 under which the procedure has been prescribed to prepare District Survey Report. The relevant portion of the Notification is reproduced as under:
"7 (iii) preparation of District Survey Report for Sand Mining or River Bed Mining and Mining of other Minor Minerals:
a) The prescribed procedure for preparation of District Survey Report for sand mining or river bed mining and mining of other minor minerals is given in appendix.
b) The prescribed procedure for environmental clearance for mining of minor minerals including cluster situation is given in appendix XI."
19. That the respondent Ministry has issued Sustainable Sand Mining Management Guidelines, 2016 to ensure inter-alia that 28 sand and gravel mining is done in environmentally sustainable and socially responsible manner, ensure conservation of the river equilibrium and its natural environment by protection and restoration of the ecological system, to ensure that rivers are protected from bank and bed erosion beyond its stable profile. The above mentioned Guidelines were issued with one of the objectives being that each lease holder should be given the opportunity to self-regulate to the extent that it can demonstrate compliance with legislation and regulations. That where self- regulation fails to deliver compliance with legislation and regulations, increased formal enforcement and monitoring should be implemented with punitive measures applied in line with the legal framework.
20. We have heard the Learned Counsel for the applicants and the respondents and perused the records in supplementation thereto. The Following points are formulated for consideration:
i) Whether the Sand Mining Policy, 2017 framed by the State of UP is inconsonance and in fulfillment of the directions of the Hon'ble Supreme Court in the case of Deepak Kumar Vs. State of Haryana & Others. the Sustainable Sand Mining Management Guidelines, 2016 issued by the MoEF.
ii) Whether the said Sand Mining Policy requires to be quashed.
iii) Whether this Tribunal has jurisdiction to decide
issue relating to Sand Mining Policy, 2017
applying the doctrine of segregation and severability.29
21. Our finding in the above issues are as under.
22. What emerges from the submissions and the Learned Counsel on behalf of the applicants and the State of Uttar Pradesh is a serious challenge posed by the applicants to the act of the State Government in issuing Sand Mining Policy dated 14.08.2017 captioned ("Sand Mining Policy") and simultaneous issue of notice inviting for tender e-auction for grant of mining lease to mine the sand and gravel from the various rivers in the State of UP.
23. The applicants have impugned the notice for invitation of E-Tender-cum-E-Auction dated 28.08.2017 for district Jhansi, notice for invitation of E-Tender-cum-E-Auction dated 30.08.2017 for district Unnao, notice for invitation of E- Tender-cum-E-Auction dated 31.08.2017 for district Jalaun, notice for invitation of E-Tender-cum-E-Auction dated 01.09.2017 for the district Hamirpur, notice for invitation of E- Tender-cum-E-Auction no. 911/Mineral/Khanij/E-Tender/2017 dated 01.09.2017 for district Sonbhadra, notice for invitation of E-Tender-cum-E-Auction dated 05.09.2017 for district Fatehpur, notice for invitation of E-Tender-cum-E- Auction no. 332/Khanij-Lipik-E-Notice and E-Auction/2017 dated 06.09.2017 for district Kanpur Dehat and notice for invitation of E-Tender-cum-E-Auction no. 06/Mining Department/ Advertisement Notice/ Balu/Mauram 17 dated 11.09.2017 for district Gonda herein 30 referred to collectively as "Notices for Invitation of E-Tender- cum-E-Auction" issued by the State Government of the Uttar Pradesh said to be in pursuant to the Sand Mining Policy.
24. The first ground of challenge is that Sand Mining Policy, 2017 and the notices for invitation of E-Tender-cum-E-Auction are in conflict and violation of the provisions of the Environment (Protection) Act, 1986, Environment (Protection) Rules, 1986, Notification dated 14.09.2006 issued by the Central Government under Section 3 of the Environment (Protection) Act, 1986 r/w Rule 5 of the Environment (Protection) Rules, 1986 and Sustainable Sand Mining Management Guidelines, 2016 issued by the Ministry of Environment, Forest and Climate Change.
25. In support thereof the applicants have averred that the river and sand gravel mining is an important process which is serious and has far reaching adverse impact upon the ecological balance and biological diversity of the flora and fauna existing on the river banks. Mining of sand and gravel is legally permissible in view of 'principle of sustainable development' from the river but it has to be with several checks balances and for protection and safeguard primarily the environment. The checks and safeguards are enumerated in Environment (Protection) Act, 1986 and Environment (Protection) Rules, 1986 made thereunder as also the Notification dated 14.09.2006 issued by the Central Government under Section 3 of the Environment (Protection) Act, 1986 r/w Rule 5 of the Environment (Protection) Rules, 1986 made thereunder and Sustainable Sand Mining 31 Management Guidelines, 2016 issued by Ministry of Environment, Forest and Climate Change.
26. Emphasis is also laid on decision of the Hon'ble Apex Court and directions issued thereunder in the case of Deepak Kumar Vs. State of Haryana & Others (2012) 4 SCC 629. The Hon'ble Supreme Court of India noticing the adverse impact of illegal river/sand mining rampantly indulged into the interest for economic benefits in the State of Uttar Pradesh and Rajasthan, issued guidelines spelling out the stringent conditions for sand mining and required all the States to follow and adopt the Guidelines issued by the Central Government by framing appropriate rules in this regard.
27. It is appropriate that the directions issued by the Hon'ble Supreme Court of India in the aforesaid decision are incorporated herein as a ready reference and for clarity. The following paragraphs of the Judgment are extracted from the decision in the case of Deepak Kumar Vs. State of Haryana & Others (2012) 4 SCC 629:
"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 in-stream sand and gravel mining causes the degradation of rivers. In-stream 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.
26. We are of the considered view that it 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 32 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 effect various species, flora and fauna and it may also destabilize the soil structure of river banks and often leaves isolated islands. We find that, taking note of those technical, scientific and environmental matters, MoEF, Government of India, issued various recommendations in March 2010 followed by the Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, inculcating the spirit of Article 48A, Article 51A(g) read with Article 21 of the Constitution.
The State of Haryana and various other States have not so far implemented the above recommendations of MoEF or the guidelines issued by the Ministry of Mines before issuing auction notices granting short-term permits by way of auction of minor minerals boulders, gravel, sand, etc. in the riverbeds and elsewhere of less than 5 ha. We, therefore, direct all the States, Union Territories, MoEF and the Ministry of Mines to give effect to the recommendations made by MoEF in its Report of March 2010 and the model guidelines framed by the Ministry of Mines, within a period of six months from today and submit their compliance reports."
28. It is not disputed before us and it is pertinent to notice the Hon'ble Supreme Court of India had emphasized that it is absolutely necessary and imperative for the State to formulate an effective framework of mining plan which will take care of all environmental issues and also evolve the long term rational and workable protective scheme to protect natural resources applying with principal law sustainable development. It is evident from the dictum of the Hon'ble Apex Court that the State was required to evolve a long term workable scheme for practical and sustainable views for use of natural resources while keeping in mind the protection of rivers and oceans which contain his natural wealth. Consequent to such directions of the Hon'ble Supreme Court, all the States had to give regard and implement the recommendations made by the Ministry of Environment, Forest and Climate Change in its Sustainable Sand Mining 33 Management Guidelines, 2016 and to frame guidelines in terms thereof of the extensive consultation and dispassionate but serious approach to the issue in question to protect the natural resources. It is not in dispute that the Central Government- Ministry of Environment, Forest and Climate Change had, after thorough and extensive consultation, the State Governments had issued the aforesaid Guidelines and no stakeholder could take a plea different from this factual aspect. For the purpose of decision in this case, it is appropriate that we refer to certain excerpt from the guidelines which are relevant and we may take into consideration. However, to avoid bulking this judgment by extracting the said Rules we may choose to refer to only such of it which will be most appropriate and applicable. Thus, following is extracted from the Sustainable Sand Mining Management Guidelines, 2016 which forms part of Annexure A- I:
"The process under the guidelines:
(a) Identification of areas of aggradations/deposition where mining can be allowed; and identification of areas of erosion and proximity to infrastructural structures and installations where mining should be prohibited. Use of satellite imagery for identifying areas of sand deposit and quantity be done.
(b) Calculation of annual rate of replenishment and allowing time for replenishment after mining in area.
(c) Identifying ways of scientific and systematic mining.
(d) Identifying measures for protection of environment and ecology.
(e) Determining measures for protection of bank erosion.
(f) A bench mark (BM) with respect to mean seal level (MSL) should be made essential to in mining channel reaches (MCR). Below which no mining shall be allowed.
(g) Identifying steps for conservation of mineral.
(h) Permanent gauging facilities (for discharge and sediment both) should be made compulsory for the sites having excessive mining 34 in consultation with Central Water Commission or any competent State Agency.
(i) Implementing safeguards for checking illegal and indiscrete mining."
The broad principle on which any sustainable sand mining Guidelines/policy can be based is that river/ natural resources must be utilized for the benefit of the present and future generation, so river resources should be prudently managed and developed. The preparation of District Survey Report is an important initial step.
29. Thus, it could be seen the greater emphasis is on preparation of District Survey Report which shall be the harbinger for further action.
The guidelines prescribe the following processes:
"(a) Identification of areas of aggradations/deposition where mining can be allowed; and identification of areas of erosion and proximity to infrastructural structures and installations where mining should be prohibited. Use of satellite imagery for identifying areas of sand deposit and quantity be done.
(b) Calculation of annual rate of replenishment and allowing time for replenishment after mining in area.
(c) Identifying ways of scientific and systematic mining.
(d) Identifying measures for protection of environment and ecology.
(e) Determining measures for protection of bank erosion.
(f) A bench mark (BM) with respect to mean seal level (MSL) should be made essential to in mining channel reaches (MCR). Below which no mining shall be allowed.
(g) Identifying steps for conservation of mineral.
(h) Permanent gauging facilities (for discharge and sediment both) should be made compulsory for the sites having excessive mining in consultation with Central Water Commission or any competent State Agency.
(i) Implementing safeguards for checking illegal and indiscrete mining.
Following the above processes, to begin with it is important to prepare a survey document mapping the status of sand sources in a district. This survey should be conducted and report be prepared for each district. Though it is an acceptable fact that rivers cut across districts and States and every river is an ecosystem in itself. But, keeping in view the fact that the district is the most established unit of administration at which this kind of survey, planning and monitoring can be ensured effectively, it is proposed that every district will this document taking the river stretch in that district as an ecological unit and inventorying other sources of sand in the district.
35 Besides, the production of aggregate in a particular area is a function of availability of natural resources, the size of the population, the economy of the area and various developmental and infrastructural works being undertaken in the area."
30. From the extracted portion, it could well be understood that to begin with the process prescribed for preparing of survey document mapping the status of the sand sources in a District is an integral but an essential part. The Survey has to be conducted and report be prepared for each District. It must also be noticed that while taking into consideration the fact that rivers cut across districts and States and every river is an eco- system in itself but keeping in mind the fact that district is a most established unit of administration conduct of survey, planning and monitoring can be ensured effectively, the scheme proposed that every district will prepare this document (District Survey Report) taking river stretch in that district as an ecological and inventorising other sources of sand in the district. Besides the object of insisting upon preparation of District Survey Report as a first important initial step is to take into account the production of aggregate in a particular area of sand and gravel is relatable to availability of natural resources, the size of population, the economy of the area and various developmental and infrastructural works being undertaken in that area. There is a clear mandate that the natural resources must be utilized in environment friendly manner "in scientific and systematic way and with the objective of sustainable development the policy on the subject should have provisions for 36 protection of environment and ecology". It had to be accounted for in a most efficient manner at a district level itself.
31. The sustainable mining plan must be dynamic and for this purpose, survey should be carried out by the District Environment Impact Assessment Authority (DEIAA) with the assistance of Geology Department, Irrigation Department, Forest Department, Public Works Department, Ground Water Boards, Remote Sensing Department and Mining Department etc. in the district at regular intervals.
32. The State Government was required to incorporate in the Survey Report:
a) District wise detail of the river or stream and other sand source.
b) District wise availability of sand or gravel or aggregate resources.
c) District wise detail of existing mining leases of sand and aggregates.
33. Based on the Survey Report relating in collection of the data, from the above points the survey document has to be prepared which must be the basis for action plan and divide the river/stream/other sources of the District into 2 categories namely-
a) River/Stream beds sections/other sources suitable for extraction of sand and aggregates.
b) River/Stream beds sections/other sources prohibited for extraction of sand and aggregates.
37
34. There is a clear requirement that the geomorphological study must also form the integral part of this exercise regarding place of origin, catchment area, general profile of the river stream, annual deposition factor, replenishment and total potential of minor mineral in the river bed. Geological study should contain lithology of catchment area and tectonics and structural behavior of rocks and climate factors like rainfall, climate zone and temperature variation.
The river/stream for mining be considered/selected following parameters in the said Guidelines which are as under:
i).A stable river is able to constantly transport the flow of sediments produced by watershed such that it's dimensions (width and depth) pattern and vertical profile are maintained without aggrading (building up) or degrading (scouring down).
ii).The amount of boulders, cobbles, pebbles, and sand deposited in river bed equals to the amount delivered to the river from catchment area and from bank erosion minus amount transported downstream each year.
iii).It is compulsive nature of river to meander in their beds and therefore, they will have to be provided with adequate corridor for meandering without hindrance. Any attempt to diminish the width of the corridor (flood way) and curb the freedom to meander would prove counterproductive.
iv).Erosion and deposition is law of nature. The river stream has to complete its geomorphological cycles from youth, mature to old age.
v).River capturing is unavoidable.
vi).Fundamentally the lowest point of any stream is fixed by sea level.
This survey document should be prepared in the district based on direct and indirect benefits of mining and identification of the potential threats to the river/stream beds in the district. Besides, calculating the carrying capacity of the river/stream beds/other sources to find out maximum quantity available to be allowed for removal each year from the sources, it should also provide various measures to regulate sand and aggregate mining in a systemic way.
It has to provide for environmentally safe depth of mining and safeguards of banks by prescribing safe distance from banks. IT is required that there should be a Sub-Divisional Committee 38 which should visit each site and make recommendation. The Committee should comprise of Sub-Divisional Magistrate, Officers from Irrigation department. State pollution Control Board or Committee, Forest department, Geology or mining officer shall visit each site for which environmental clearance has been applied for and make recommendation on suitability of site for mining or prohibition thereof.
35. Among other information, the District Survey Report has to record details of the protection of sand or bajiri or minor minerals in the last 3 years, process of deposition of sediments in the rivers of District, general profile of the District. Whether the river is stable and able to constantly transport the flow of sediments produced by watershed such that its dimensions- width and depth pattern and vertical profile are maintained without aggrading- building up or degrading- scouring down?
36. What should be the content of District Survey Report is spelled out and a method to be adopted for calculating the mineral potential is also prescribed?
37. Applying the Sustainable Sand Mining Management Guidelines, 2016, the State Government having selected the area for removal of mineral from the river or stream must also restrict the mining activity considering all factors on a different percentage. It can be 50% or 60% of the area of particular river for example in Himachal Pradesh, the mineral constituents like boulders, river born bajari, sand up to a depth of one meter as a source of mineral. Other constituents like clay and silt are excluded as waste while calculating the mineral potential of a particular river. The State can permit mining volume based on measured annual replenishment. 39 Therefore, it is a material replenishment activity which is relevant factor before deciding the grant of sand mining leases.
38. This issue relating to jurisdiction of this Tribunal is no longer Res-integrata. By the detailed judgment in the case of Wilfred J. O.A. No. 74 of 2014 and S.P. Muthuraman- O.A. No. 37 of 2014 it has been well settled.
39. We have perused the said guidelines issued by the State of U.P and letter from Mr. Raj Pratap Singh, Additional Chief Secretary, Government of U.P to all the District Magistrates, Geology and Mining Section dated 14th August, 2017 informing them that in compliance of the order dated 01.05.2017 passed by the Hon'ble High Court of Judicature at Allahabad in Writ Petition No. 1498/2015 Gulab Chandra Mishra Vs. State of U.P & Ors. by omitting Rule 9A of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963, and by making amendment in Chapter-IV through 43rd Amendment in Rules it is provided to grant the areas on concession through E-Tender/E-Auction/E- Tender-Cum-E-Auction. In this regard the Additional Chief Secretary has conveyed to all the District Magistrates that for the purpose of granting mining lease on the vacant areas of sand, morrum, bajri available in the river bed of the State of UP through E-Tender Cum E-Auction under Chapter-IV of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 as amended from time to time and the prescribed procedure as indicated thereunder shall be followed.
40
40. Learned Sr. Counsel Shri Vasudev appearing for State of UP referring to said details in the letter of the additional chief Secretary dated 14.08.2017 submitted that it has to be construed as subordinate legislature prescribed by the Government of State of UP for the purpose of granting mining leases for mining sand, morram and bagri following the procedure detailed therein. This according to him, is exercise of state sovereign power to prescribe such procedure and guidelines in exercise of powers conferred by and under Uttar Pradesh Minor Minerals (Concession) Rules, 1963 and is thus comes in the category of subordinate legislation for which this Tribunal has no jurisdiction to adjudicate upon.
41. Similar question was posed in a proceeding before this Tribunal in O.A. No 74 of 2014 filed by One Mr. Wilfred & Ors. questioning the correctness or legality of the guidelines and rules made by the State of Kerala, similar challenge was posed by the State questioning the jurisdiction of this Tribunal. But after a serious contest and thorough examination of legal and factual aspects a view has been taken by this Tribunal that it enjoys the benefit of Judicial Review on administrative decision of the Government which may tend to be in the nature of subordinate legislature as long as such impugned rules, regulations, guidelines raise issue relating to environment. In short it is held that this Tribunal has unbridle power and wide jurisdiction to decide issue relating to environment, if the provision contained in such guidelines, memorandums or rules 41 directly impact or tend to impact the Environment by its implementation.
42. Similar issues were raised in the two decision that we have stated above.
43. Mr. S. P. Muthuraman had questioned this Tribunal the validity and legality of two office memorandums dated 16th November, 2010 and 12th December, 2012 issued by MoEF, superseded Office Memorandum dated 6th November, 2010 to grant concession so such of the project proponent who had proceeded with project without obtaining prior Environment Clearance as mandated under the provision of Environmental Clearance Regulation 2006 and in contravention of Environment Protection 1986
44. It was urged by him that by virtue of Notification dated 14 th November 2006 titled as Environmental Clearance Regulation 2006 issued by Union of India obtaining of prior Environmental Clearance for project activity in respect of project falling under Category 'A' of the schedule and also project falling under category 'B' of the Schedule required prior permission from the State Environmental Impact Assessment Authority. Whereas, by virtue of these subsequent two office memorandums such of the violators who have not obtained prior Environmental Clearances were given benefit. The office memorandum dated 16 th November, 2010 for consideration of proposals involving violation of the Environmental Protection Act, 1986 and the Environmental Clearance Regulation of 2006. Again on 12th 42 December, 2012 the Ministry of Environment, Forests and Climate Change issued another office Memorandum and superseded the office memorandum dated 6th November, 2010, In this office memorandum as soon as any case of violation with respect to the Notification of 2006 is brought to the notice of the MoEF, it will proceed to verify the veracity of the compliant through the regional offices and upon such verification the explanation of project proponent will be asked. If the ministry is satisfied that it is a case of violation, then before proceeding any further, the authorities would require the Project Proponent to submit its environment related policy, plan of action and a written commitment to ensure that the violation will not be repeated within 60 days in terms of the Office Memorandum dated 12th December, 2012 and would delist the project in the meanwhile, other detailed consequences were also provided in the office memorandum dated 12th December, 2012 which was further amended by the office memorandum dated 27th June, 2013. Besides two more office memorandum were issued on 12th December, 2012 and 27th June, 2013.
45. This Tribunal accepted contentions and discounted all objections questioning jurisdiction of this Tribunal to test the legality of the said office memorandums quashed it.
46. Following is the relevant information in the S.P. Muthuraman's case:-
90. Except the intervener Applicants namely M/s SPR and RG Constructions and M/s Dugar, none of the Respondents have raised any objection to the jurisdiction of the Tribunal and competence of the Tribunal to deal with impugned Office Memoranda in accordance with law. According to these Project 43 Proponents, this Tribunal has no power or jurisdiction to quash the Office Memoranda; they having been issued in exercise of the Executive Power of the Union and forming a part of a policy decision. In support of their contention, they relied upon the judgment of the Supreme Court in the case of Madras Bar Association v. Union of India, (2014) 10 SCC 1 and Union of India (UOI) v. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1. On the other hand, the Applicants have primarily contended in the main application that the impugned Office Memoranda are administrative orders and would be subject to merit review by the Tribunal and such a situation would not alter even if it was in exercise of Executive Power of the Union/State. This Tribunal has been vested with Original, Appellate and Special jurisdiction in regard to directing payment of compensation for damage to and for restitution and restoration of the environment. The legislature in its wisdom worded the provisions relating to the jurisdiction of the Tribunal (Sections 14 to 17 of the Act of 2010) very widely, and with a clear intent to provide this Tribunal with jurisdiction of a very wide magnitude. Upon reading the various provisions of the Act of 112 2010 cumulatively and in light of the underlying scheme of the Act of 2010, including the definition of 'environment' in terms of Section 2(c) of the Act of 2010, it is quite clear that this Tribunal is having all the trappings of a Court and is conferred with the twin powers of judicial as well as merit review. There is no provision in the Act of 2010 which curtails the jurisdiction of the Tribunal to examine the validity and correctness of a delegated legislation and/or administrative or executive order passed by the Government including any of its instrumentalities or authorities.
The fundamental principle for invoking the jurisdiction of this Tribunal is that, the question raised should be a substantial question relating to environment and should arise out of the implementation of the enactments specified in Schedule I of the Act of 2010. It could even relate to enforcement of any legal right relating to environment with regard to these enactments. Delegated or subordinate legislation, executive orders and/or administrative orders in so far as they relate to the implementation of the Scheduled Acts would be open to challenge before the Tribunal and hardly any argument can be raised that the documents like Office Memoranda would not be subject to judicial scrutiny before the Tribunal.
In fact, such an argument that this Tribunal would not have jurisdiction to examine legality and correctness of such Office Memorandum is without substance and in fact should not detain us any further, in view of the judgment of the five Member Bench of this Tribunal in the case of Wilfred J. and Anr. v. Ministry of Environment & Forests and Ors., 2014 ALL (I) NGT REPORTER (2) 113 (DELHI) 137, where this Tribunal was concerned with a question whether this Tribunal being a creation of a statute is not vested with the powers of judicial review, so as to examine the constitutional validity/vires of such instruments as it would be tantamount to enlarging the jurisdiction of this Tribunal. We may notice that the Tribunal deliberated on the issue at some length and also did a comparative study of the various Acts like Central Administrative Tribunal (CAT), TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL (TDSAT), Armed Forces Tribunal on the one hand and Act of 2010 on other hand. After referring to various judgments on the subject, Tribunal following the principles laid down by the Constitutional Bench of the Supreme Court in L. Chandra Kumar v. Union of India and others, (1997) 3 SCC 261 held as under:
44
"85.The Courts and Tribunals that are engaged in judicial functions dispensing justice to the public at large are expected to have powers which are necessary to perform its basic functions. As already noticed, unless there is a specific exclusion, such normal powers stated to be inherent in its functioning. The Supreme Court in the case of Grindlays Bank Ltd vs Central Government Industrial Tribunal And Ors. AIR 1981 SC 606 while dealing with the powers of the Tribunal in relation to setting aside ex parte award in absence of any such power and the award which has become enforceable as a result of its being published rejecting the contention that the Tribunal had become functus officio, Court held as under:
"We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well-known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice 114 between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary."
86. From the above, it is clear that ancillary or incidentally powers which are necessary to discharge its functions effectively for the purpose of doing justice between the parties should be considered to be endowed. If the power of judicial review in its limited scope is not expected to be endowed upon the Tribunal then majority of the cases wherein Orders, Circulars, Notifications issued in exercise of subordinate legislation are challenged could not be fully and completely decided by the Tribunal, though they exclusively fall in the domain of the Tribunal.
87. Another very important aspect that cannot be overlooked by the Tribunal is that Article 226 of the Constitution of India is a discretionary jurisdiction to be exercised by the High Courts. It does not give an absolute right to a person. For variety of reasons, the High Court may decline to entertain a petition in exercise of its powers under Article 226 of the Constitution, while the NGT Act gives a statutory right to an Applicant, aggrieved person or any person to approach the Tribunal in all matters relating to Acts specified in Schedule I of the NGT Act. It is not a discretionary jurisdiction like under Article 226 of the Constitution of India.
88. On a comparative analysis of various provisions of the different Acts afore-stated, it is evident that power, jurisdiction, judicial independence, exclusion of jurisdiction and other determinative factors prescribed under the NGT Act are of wide connotation and are free of restrictions. Sections 14, 15 and 16 read co-jointly give three different jurisdictions to the Tribunal over all disputes and appeals relating to various fields of environment. The jurisdiction is exercisable in relation to the matters arising from any or all of the Scheduled Acts. Examined 45 objectively, the provisions of the NGT Act are more akin to the provisions of the CAT Act, in contradistinction to the provisions of the TDSAT. The various features and aspects of the NGT Act that we have discussed above would bring the case before the Tribunal within the ambit of L. Chandra Kumar case (supra), as opposed to the case being covered by BSNL case (supra). We have already dealt above, in some 115 elaboration, the aspect as to how the cases relied upon by the Respondents do not apply to the facts of the present case, keeping in view the provisions and the legislative scheme of the referred Acts and various judicial pronouncements. At the cost of repetition, we may record here that the language of the various provisions of the NGT Act by necessary implication gives power of judicial review to the Tribunal. There is no specific or even by necessary implication exclusion of such power indicated in any of the provisions. Furthermore, in the scheme of various environmental acts and if the object and purpose of such acts are to be achieved then the power of judicial review would have to be read into the provisions of the NGT Act. If the notifications issued under any of the Scheduled Acts, by virtue of the powers vested by subordinate or delegated legislation, are ultra vires the Act itself or are unconstitutional as they violate Articles 14 or 19 of the Constitution of India, then it has to be construed that the Tribunal is vested with the power of examining such notifications so as to completely and comprehensively decide the disputes, applications, appeals before it. Of course, the powers of the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution of India have not been excluded under the provisions of the NGT Act, thus ensuring that the Tribunal performs supplemental functions and does not supplant the Higher Courts.
89. The Supreme Court in the case of K.S. Venkatraman and Co. v. State of Madras, (1966) 2 SCR 229, has stated the proposition that an authority or Tribunal constituted under an Act cannot, unless expressly so authorised, question the validity of the Act or any provisions thereof under which it is constituted. This is a sound principle and has been followed consistently. To put it in other words, a Tribunal or an authority constituted under an Act can even examine the validity of the provisions of the Act which created it, provided it is so expressly authorized by the Act itself. This Tribunal is not travelling into that realm of law, but is concerned with the validity of the notifications issued under the Acts other than the Act that created the National Green Tribunal. For this proposition, we have referred to various judgments above.
95. Reverting to the present case the CRZ Notification dated 19th February, 1991, which has been amended on 3rd of October, 2001, was issued in exercise of the powers conferred under Section 3(1) and Section (2) (v) of the Act of 1986 and Rule 5(3) (d) of the Rules of 1986, in declaring coastal stretches as coastal 116 regulation zone and for regulating activities in the coastal regulation zone. The legislature has delegated legislative power to the Central Government to take all measures as it deems necessary or expedient for the purposes of protecting and improving quality of the environment and preventing controlling and abating environmental pollution. This is a very wide power, which has been vested in the Central Government by delegated legislation under these provisions. In the exercise of its powers and with the object of satisfying the stated purpose, the 46 Notification of 2011 has been issued under the power of delegated/subordinate legislation. Thus, there cannot be any doubt that the Notification of 2011 in the case before us, is a piece of delegated legislation and its legality, correctness or otherwise can be questioned only on the limited grounds afore- stated.
96. To bring out this distinction illustratively and more clearly, we may refer to the power of the MoEF (Central Government) to issue Environmental Clearance in terms of the provisions of the Act of 1986 read with the Regulations of 2006. The order granting or refusing Environmental Clearance to a Project Proponent, is not an act of subordinate or delegated legislation but clearly is an executive act. The Central Government in exercise of its executive powers, passes an order whether or not a given project should be granted Environmental Clearance for commencing its operation. In passing such orders, the Central Government does not act in furtherance to the powers vested in it by virtue of delegated legislation. It is merely an executive act relatable to the statutory powers vested in the Central Government. The CRZ Notification issued by the Central Government is therefore an act of delegated legislation while passing of an order of Environmental Clearance is an executive order. This view finds support from the judgment of the Delhi High Court in the case of Utkarsh Mandal vs. Union of India, Writ Petition (civil) no. 9340/2009 which held that "grant of environmental clearance is an executive order which involves application of mind by the executive."
92. We may also refer to another larger Bench Judgment of the Tribunal in the case of Himmat Singh Shekhawat v. State of Rajasthan and Ors. (supra), where the Tribunal was dealing with a case challenging the validity of the Office Memoranda dated 9th September, 2013 and 24th December, 2013 issued by MoEF and other similar Office Memoranda issued the State of Rajasthan as well as other states as being violative of the provisions of the Act of 1986 and being in teeth of the Judgment of the Supreme Court in the case of Deepak Kumar v. State of Haryana, (2012) 4 SCC 629. As stated above, the Tribunal had quashed the Notifications which were in violation to the Notification of 2006 and in teeth of the Judgment of the Supreme Court. It was held that the Notification of 2006 being a statutory law cannot be diluted, varied and frustrated in the name of supplying of gaps and/or framing the policy in interest of a group of people. 118 The Notification or orders whether issued by the principle or delegated authority, the principle that delegated legislation cannot be beyond the principle legislation equally applies to both. As discussed above, the body to whom the power is delegated is required to act strictly within the framework of such delegated powers. It is incidental to the exercise of all powers in as much as it is necessary to delegate for the proper discharge of all the public duties. It is because the body constituted should act in the manner indicated in law and should exercise its discretion by following the procedure therein itself, it has to be ensured by the delegate authority that it exercises such power for carrying out the purpose and object of the Act and does not interferes with or offends the substantive provisions of the Act. The discipline and protocol prescribed in a statutory instrument ought not to be altered much less defeated.
94. Before the Tribunal, no contention of this dimension has been raised. As already stated, the Tribunal has been created by a statute 47 with all requisite safeguards and has been vested with complete adjudicatory powers as required under the mainstream justice delivery system in our country. The impugned Office Memoranda have been issued in exercise of administrative power which is presumably exercised in furtherance to the powers vested in the Ministry under the Act of 1986 and /or Notification of 2006. These Office Memoranda have been issued for the purposes of 'implementation of Acts mentioned in the Schedule' (emphasis supplied). Thus, we see no reason for accepting the contention that this Tribunal has no jurisdiction to examine the legality or correctness of these Office Memoranda. Furthermore, except these two Respondents, none of the other parties to the lis has even touched upon this objection.
47. The above two decision of the Tribunal rendered in the case of Wilfred and S.P. Muthuraman were assailed before the Hon'ble Supreme Court but the Hon'ble Supreme Court declined to set aside the decision of this Tribunal except that on other issues the case of Wilfred was referred back to this Tribunal and in the case of S.P. Muthuraman the stay has been granted only in respect of few of the parties staying the imposition of compensation by this Tribunal as could be seen from the orders of the Hon'ble Supreme Court.
48. For the aforesaid reasons we could examine the validity of the Sand mining Policy, 2017 and the E-Notice, inviting E-Tender for E-Biding for grant of mining lease which are impugned in this case issued by the State of UP, on the anvil of settled legal principles referred to above and decisions of the Hon'ble Supreme Court but we refrain.
49. It could safely be observed that even if, we technically hold that this Tribunal does not enjoy the writ jurisdiction conferred upon the constitutional courts to quash rules, regulation and guidelines but we would emphasis that the jurisdiction of this Tribunal to examine all administrative and executive action of 48 the Government and Statutory Authorities, which if implemented in its nakedness, is likely to effect and impact adversely on the environment or even remotely are of the nature that it will in future catalyze into destructive action leading to destruction of environment affecting air and water then the Tribunal would be justified in restraining enforcement of such directive administrative and executive actions and may be justified in supplying the deficit applying doctrine segregation and severability to ensure protection of the environment in furtherance to the constitutional mandate to ensure that right to life granted by Article 21 is not frustrated. In the instant case the applicant have brought in question the E-Notice inviting E- Tender for grant of mining lease to mine sand, gravels and bagri from various rivers in the State of UP in respect of each district which we have already referred to above.
50. The impugned E-Notices inviting E-Tender detailed in the applications are purporting to have been issued by the State of Up by virtue of the following procedure it has prescribed under the rules captioned as "sand mining guidelines 2017".
51. We have perused the provisions of the Uttar Pradesh Miner Mineral (Concession) 43rd Amendment Rules, 2017. The Rule 23 has been amended with new rule which reads as follows:-
52. This amended rule prescribes procedure for grant of mining lease only through E-Tender cum E-Auction and sub clause 4 of Rule 23 is relevant which was not in the repeal rule it reads as under:
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23(4). The district officer shall get the area or area declare under sub-rule 1 evaluated for quality and quantity of mineral for fixing minimum bid or offer by the Director, Geology & Mining, UP or by an officer authorised by him before the date fixed for E-Tender Cum E- Auction.
53. According to the applicant this rule mandates prior survey of the Rivers of the areas declared under sub-rule 1 for grant of mining lease evaluated for "quality" & "quantity" of the minerals for fixing the mining bid or offer by the Director, Geology & Mining, UP. They contended that prior to issuing E-Notice for E- Tender for grant of Lease the exercise of conducting district of survey for evaluating quality and quantity of the mineral is essential and should be treated as a pre-condition.
54. The State of UP has seriously refuted this contention on the plea that evaluation for quality and quantity of mineral for fixing minimum bid is part of the entire procedure for grant of lease and is not a condition precedent or prior condition for issuing E- Notice for E-Tender. In other words they contend that the states sovereign domain saves its right to frame its rules under the provision of Section 3 of the MMRD, Act and the present rule is made in exercise of that power. It has framed under UP Miner Mineral (Concession) 43rd Amendment Rules, 2017. Conducting of survey for evaluating quality and quantity of the minerals in the river for issuing E-Notice for E-Tender is not prior but that will be taken care of before allowing the lease operation.
55. It is further contended that Rule 27 of the said amended rules prescribes a detailed procedure. After following the detailed procedure as prescribed therein, Rule 34 of the amended rule would apply. The selected applicant, before execution of the 50 mining lease under the provision of the chapter 2, 4 & 9 or issuing mining permit under chapter 6 of those rules shall get prepared a mining plan by a person recognized and registered by the Director having the qualification and experience as detailed in the said rules.
56. It is further urged that the lessee on fulfilling all the conditions stated in Rule 34(1), 34(2) & 34(4) shall start the mining operation only after obtaining environment clearance if required under the provisions of Environment Impact Assessment Notification dated 14th September, 2006 issued by MoEF which is in force. Besides, the mining lease will be executed only after approval of the mining plan by the director after which the lessee shall commence mining operation within the 6 months from the date of execution of lease deed and shall thereafter conduct such operation without deliberate intermissions in the skillful.
57. Responding to such contention Learned Sr. Counsel Sh. Pinaki Misra has drawn our attention to several other documents to bring home the point that preparation of district survey report as prescribed in the sustainable guidelines for mining 2016 is a prior action and not either simultaneous or post issuance of E-Tender notice.
58. We have perused the letter dated 28.06.2017 to which our attention is drawn. It is issued by the Director, Geology & Mining, State of UP to all collectors in the State regarding preparation of survey report regarding minerals. We prefer to 51 extract the entire text of the letter as ready reckoner and clarity. It reads:-
From Director Geology & Mining Directorate, UP Lucknow To All Collector Letter No. M/21 (Prcha) 2011 Sub: Regarding preparing Survey report regarding minerals Sir, This is to inform on the above subject that Minsitry of Environment Forest & Climate Change, has issued notification No. 125 dated 15th January, 2016 that survey report of the sub minerals available in each of the District should be prepare and put a copy thereof in the public domain and post for the website of the district for 21 days. Considering on the received remarks, in case same found appropriate then same should be include in the final report being given by the D.I.A.A within the period of six months. Preparing of District Survey Report, environmental no objection report and for evaluation of the projects, shall be the basis of application. Report shall be updated in each five years. In para 7 (iii) of the above notification and schedule 10, procedure has been mentioned in detailed. (copy enclosed). In order to above you are informed that in the near future the minerals present in the river level in the State, is proposed to be sanction on remission through e-tender/e-auction/e-bidding. Prior to sanction of remission mine survey report of the district should be prepare and necessary to upload in the website of the district.
It is therefore requested that pursuant to the notification issued by Govt. on 15th January, 2016 mineral survey report of the district be prepare and also made available to the Directorate.
Yours (Dr. Balkar singh) Director
59. By letter in question, dated 28.06.2017 which is in the nature of direction to all the District Collector on behalf of the Government addressed by the Director. It is seen from the letter that was referring to MoEF Notification No. 125 dated 15th January, 2016 requiring a survey report of the sub-minerals available in each of the districts should be prepared put copy thereof in the public domain and post on the website of the 52 District for 21 days inviting objection or response of the public. It also contains statement that on receipt of remarks and objection in case same is found appropriate then it should included in the final to be given by D.I.A.A within a period of six months. It is material to note that there is clear direction to the following effect:-
"Preparing of District Survey Report, Environmental or No Objection Report & evaluation of the project shall be basis of the Application"
The report shall be updated in each five years.
60. Quoting paragraph 7(iii) of the said notification and schedule 10 attention of all district collectors have been invited to follow the procedure to have been detailed therein.
61. Ultimately, from the extracted portion of the text it could also be seen that all the District Collectors have been informed that the State is proposing to sanction through E-Tender by E- Auction by E-biding the mining lease from the river and prior to sanction of remission mine survey report of the district shall be prepared and necessarily be uploaded in the website of the District.
62. Thus there is merit in the contention of the applicant that the District Survey Report is not only important act but it should be conducted prior sanctioning of the permission/concession.
63. Further it would be appropriate to note that the purpose of preparing District Survey Report is itself highlighted in the Mining Rules, 2017 which is in furtherance to Rule 23(4), Rule 27 and Rule 34, According to the submission of the State of UP E-Notice for E-Tender and E-Biding is issued after declaring the 53 area under Rule 23(1) and for such issuance for E-Notice or E- Tender a tentative evaluation is all that is required for approximates and based on that the State Government would proceed. This evaluation is to be done by the District Officer and not by DEIAA. We have examined this issue.
64. The District Survey Report being referred to by the applicant is a report to be prepared by a committee called District Environment Impact Assessment Authority DEIAA established by the District Magistrate Consisting of Upper District Magistrate/Sub Divisional Magistrate/Tehsildar and Senior Mining Officer/mining Officer/Food Inspector posted in the District. We have perused paragraph 6 of the said mining policy of 2017 which speaks of potential of mining by sub-minerals in the specified blocks which according to these provisions is to be determined by the committee referred to above.
65. Paragraph 6 also speaks of the fact that the District Survey Report shall contain distinct wise availability of the sand or gravels or aggregate resources and details of the mineral potential in a given area. As rightly contented the sand mining policy has left the said task to the committee to be constituted by the District Magistrate under the Sand Mining Policy. It is not disputed before us that on the date of filing of these applications before this Tribunal the District Committee was neither constituted nor a survey report was prepared for relevant area in respect of which the E-Notice for E-Tender have been issued by the State Government.
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66. It also apparent from the provisions of the sand mining policy that the bidder has to satisfy himself of the quantity of minor mineral by personally inspecting the site. No objection could be accepted at a later stage. As per the 2006 Notification of MoEF mineral potential is to be determined by DEIAA in the District Survey Report.
67. The another consequence highlighted before is impugned E- Notices for inviting E-Tender have been issued during the rainy season and due to heavy rains in Uttar Pradesh all sand mines in Uttar Pradesh were submerged in water consequent to which no process required to be undertaken for preparation of the District Survey Report could be completed.
68. In other words it is evident that absence of the factual District Survey Report after due inspection grant of mining lease will be in conflict of the environmental laws as sand mining lease could be granted in an area only when aspect of replenishment of miner mineral especially in river sand is clearly established.
69. Therefore the information provided by the District Collector with regard to availability of quantity and quality of mineral for issuance of E-Notice for E-Tender is thus described as hypothetical and not based on the actual.
70. Our attention was also drawn to the information furnished for inviting E-Notices for E-Tender in respect of each sand quarry, in the impugned NITs for the previous years has also shown to us were it is seen that similar information is repeated thereby questioning the authenticity of such information. We have 55 perused some of the survey numbers (Ghata numbers) the information is vague. Thereby, leading to presumption that it was not by physical inspection and proper evaluation but by hypothetical statements resulting in breach of the relevant rule which require proper evaluation by officers. In this backdrop we shall now consider whether the State Government has justified in proceeding with prescribed E-tender process. We have given serious consideration to ground so urged with both sides.
71. we are convinced when it comes to protection of environment and enforcement of other environmental laws relating to the protection of the environment we shall certainly examine by Judicial Review the consequence flowing from the Governmental actions though performed under the provision of MMRD Act and rules made thereunder. In other words we are not testing the virus and legality of the Uttar Pradesh Minor Mineral (Concession) Rules or the Minor Mineral Guidelines 2017 from the point of view of its legal sustainability but dispassionately we shall examine issue related to environment flowing therefrom.
72. Environment Protection Act, 1986 brings within its ambit all issues relating to environment and mandates its protection. Air and Water Act which contains supplemental provisions are in furtherance of object to protect environment.
73. Natural resources undoubtedly vest in the State. The public trust doctrine cast upon the state an onerous responsibility to be the trusty.
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74. The international conservation concern regarding natural wealth is a universal demand. Article 51(a) sub-section (G) of the constitution requires ever citizen of India to protect and improve the natural environment including forest, lakes, rivers, wildlife and to have compassion for the living creature.
75. The Hon'ble Supreme Court in the case of M.C. Mehta Vs. Kamal Nath (1997) 1 SCC 388 held that under Article of Indian Constitution incorporates the "Public Trust Doctrine" and as such extents to protection of all natural resources which includes protection of flora and fauna.
76. The Hon'ble Supreme Court in the case of Vellore Citizens Welfare Forum Vs. Union of India & Ors (1996) held that precautionary principle is part of the Environmental Law in India. It further stated that onus of proof is on the actor of the developer/industrialize to show that its actions are environmentally benign. The relevant extract of the aforesaid case reads hereunder.:-
"We are, however, of the view that "The precautionary Principle"and "The Polluter Pays Principle" are essential features of "Sustainable Development". The "Precautionary Principle"- in the context of the municipal law- means:
(i) Environment 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 certainly should not be used as the reason for postponing, measures to prevent environmental depredation.
(iii) The "Onus of proof" is on the actor or the developer/industrial to show that his action is environmentally benign."57
77. Besides, NGT, Act mandates this Tribunal to apply principle of Sustainable development, Precautionary Principle and the Polluter Pays Principle by virtue of Section 20 of the NGT Act.
78. The Sand Mining Policy 2017 dated 14.08.2017 issued by the State of UP is therefore to be tested keeping in mind the provisions of "Sustainable Sand and Gravel Mining Guidelines 2006 issued by the Central Government (MoEF) in the provision of Uttar Pradesh Minor Minerals(Concession) 43rd Amendment Rules, 2017. From both the provisions contained in the aforesaid guidelines and rules it is clearly provided that District Survey shall be conducted by Committee at the District Level which is nomenclatured as D.E.I.A.A has to prepare District Survey report in respect of each district and mode & manner of preparation is well prescribed. The whole object appears to be for ascertainment of the quality and quantity of the minor mineral, sand, gravel, maroon and bagri emphasis of its replenishment, such a District Survey Report is not important document but is required to be in a public domain for 21 days as per rules. This is a clear mandate which speaks volume that there should be meticulous examination and evaluation of quantity and quality of minor minerals and for which purpose physical inspection is must.
79. Before us was produced a set of DSRs in respect of few districts regarding which E-Notice or E-Tender has been issued. Shockingly we notice the fox-paux committed by the State in mentioning rivers so inspected which are in the State of Kerala 58 and Karnataka where reports are filed pertaining to Uttar Pradesh. However, the State Government hastened in its action to withdraw all such DSR and is now said to be in process of conducting fresh DSRs. Further we may notice that the Hon'ble Supreme Court in the case of Deepak Kumar & Ors Vs. State of Haryana & Ors (2012) 4 SCC 629 taking serious note of adverse impact of illegal river/sand mining going on in the State of UP and Rajasthan issued guidelines for sand mining and required the States to follow and adopt the same by framing appropriate rules in this regard. The Hon'ble Supreme Court observed thus is hereunder:-
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 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.
26. We are of the considered view that it 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 effect various species, flora and fauna and it may also destabilize the soil structure of river banks and often leaves isolated islands. We find that, taking note of those technical, scientific and environmental matters, MoEF, Government of India, issued various recommendations in March 2010 followed by the Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, inculcating the spirit of Article 48A, Article 51A(g) read with Article 21 of the Constitution. The State of Haryana and various other States have not so far implemented the above recommendations of MoEF or the guidelines issued by the Ministry of Mines before issuing auction notices granting short-term permits by way of auction of minor minerals boulders, gravel, sand, etc. in the riverbeds and elsewhere of less than 5 ha. We, therefore, direct all the States, 59 Union Territories, MoEf and the Ministry of Mines to give effect to the recommendations made by MoEF in its Report of March 2010 and the model guidelines framed by the Ministry of Mines, within a period of six months from today and submit their compliance reports."
80. It is evident that the Hon'ble Supreme Court emphasized the absolute necessity to have an effective framework of mining plan which will take care of environmental issues and also evolve a long term "rational and sustainable" use of sustainable use of natural resource base. In view of such clear mandate the State of UP was required to give due regard and implement the recommendations made by MoEF in continuation of its earlier recommendation issued in the year 2010. Consequently, the Sustainable Sand Mining Management Guidelines, 2016 of MoEF gain importance. We have referred to it which is at annexure A.
81. The main objective of the Guidelines is to ensure "sustainable sand mining and maintain the ecology of the river and other sand resource". The object would turn nugatory if due regard is not given. The Said Sand and Gravel Mining Guidelines provide a detailed procedure and safeguards for sustainable sand mining. It is material to note that great emphasis is laid in the guidelines for preparation of District Survey Report which is prescribed as an important initial step before formulating a mining policy. We have noticed that the State of UP is feeling comfortable for having issued Sand Mining Policy on 14.08.2017 prescribing certain guidelines and procedures even in those guidelines preparation of survey report documents, mapping, the 60 status of sand resources in district is an integral and essential part.
82. The process involved in the preparation of District Survey Report is detailed as hereunder:-
District Survey Report "The processes under the Guidelines:
(a) Identification of areas of aggradation/deposition where mining can be allowed; and identification of areas of erosion and proximity to infrastructural structures and installations where mining should be prohibited. Use of satellite imagery for identifying areas of sand deposit and quantity be done.
(b) Calculation of annual rate of replenishment and allowing time for replenishment after mining in area.
(c) Identifying ways of scientific and systematic mining.
(d) Identifying measures for protection of environment and ecology.
(e) Determining measures for protection of bank erosion.
(f) A bench mark (BM) with respect to mean sea level (MSL) should be made essential to inmining channel reaches (MCR). Below which no mining shall be allowed.
(g) Identifying steps for conservation of mineral.
(h) Permanent gauging facilities (for discharge and sediment both) should be made compulsory for the sites having excessive mining in consultation with Central Water Commission or any competent State Agency.
(i) Implementing safeguards for checking illegal and indiscrete mining."
"The river/stream/other sources of sand and aggregate are studied on following parameters:
a) Geomorphological Studies.
i) Place of origin
ii) Catchment area
iii) General profile of river stream.
iv) Annual deposition factor.
v) Replenishment.
vi) Total potential of minor mineral in the river bed.
b) Geological studies
i) Lithology of catchment area.
ii) Tectonics and structural behaviour of rocks.
c) Climate Zone.
i) Intensity of rainfall
ii) Climate zone.
iii) Temperature variation."
83. It is important to note that above process shall be
for preparing district report. We accept applicant's contention that it is so fundamental in nature that there must 61 be in its place the DSR before formulation of any mining policy in order to ensure safe and suitable sand mining.
84. We are clear in our mind that the Sand Mining Policy will be will be basically flawed if it permits tenders auction if it is issued before the identification of river/stream beds section/other sources which should be prohibited zones for extraction of sand and aggregates. Likewise the policy will defeat in its objective before identifying the measures for protection of environment and ecology in relevant districts while sand mining is carried on and safeguards for checking illegal and indiscrete mining in an area is preventive.
85. We can notice that the Government of India acknowledging the relevance of District Survey Report in ensuring formulation of safe sustainable mining plan has incorporated and amended to sand mining management guidelines, 2006 in 2006 notification vide amendment dated 15.01.2016 for recognizing the importance of a District Survey Report by the said amendment in para 7(iii) incorporated which reads "Preparation of District Survey Report for Sand Mining or River Bed Mining and Mining of other Minor Minerals" in 2006 Notification besides other amendments. Relevant portion of the amendment is at annexure 2.
86. While giving the procedure for preparation of District Survey Report in appendix-X, Central Government in 2006 Notification has reiterated the laudable objective and essentiality of preparation of District Survey Report i.e. to identify areas of aggradations or depositions where mining could be allowed and 62 identification of areas of erosion and proximity to infrastructural structure and installations where mining could be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining in that area.
87. Appendix-X is therefore relevant that requires survey report shall be carried out by the District Environment Impact Assessment Authority i.e. DEIAA with the assistance of Geology Department or Irrigation Department or Forest Department or Public Works Department or Ground Water Boards or Remote Sensing Department or Mining Department in the District. This bring to surface the un-doubtable importance of the District Survey Report and the onerous responsibility of DEIAA.
88. It is not in dispute, in the instance cases, the State of UP has not waited for the report of DEIAA while issuing E-Notice for E- Tender for E-Biding in respect of various rivers for grant of mining lease. It has proceeded on its own volition on the basis of so called survey reports given to it by District Magistrate regarding evaluation of quantity and quality of minerals said to have been done by the District Officer. In other words they have by their own mechanism collected the evaluation and used it as a prior material information for issuing E-Notice inviting E- Tender for E-Biding.
89. It is not in dispute that the said report was not in public domain for 21 days before issuing E-Tender/E-Notice because that is different report than the District Survey Report referred to in the aforesaid guidelines issued by MoEF and the mandate 63 of amended rules framed by the State Government under the provisions of MMRD Act. Therefore we are satisfied that the issuance of E-Notice by E-Tender on an in-sufficient material information of vital importance relating to environment when the State Government issues E-Notice inviting E-Tender for E-Biding for grant of mining lease. We may observe without expressing opinion on the competence of the State Government to issue E- Tender inviting E-Notice for E-Biding which is under the provisions of Rule made under the provisions of MMRD Act which is not a schedule statute in the NGT Act we have examined its ultimate effect and the basis on which it is issued for ascertainment of its effect on the environment. In this regard the material on the basis on which such mining policy 2017 was framed for grant of mining lease needs a thorough judicial scrutiny.
90. The State of UP has not disputed as on the date of issuance of impugned E-Notices inviting E-Tender for E-Biding the District Survey Report was not in existence and same was not prepared by the DEIAA and that only material at had was survey report of evaluation submitted by District Officer that to be survey conducted during rainy season were there could not have been a realistic evaluation of quality and quantity of the minerals the importance of District Survey Report which we have held is of significance.
91. MoEF&CC vide notification dated 15th January, 2016 had amended the regulation/notification dated 14th September, 2006 64 in relation to carrying on of mining activities as stated above in terms of the Judgment of the Hon'ble Supreme Court in the case of Deepak Kumar and Himmat Singh Sekhawat judgment of this Tribunal and even in terms of the Notification of 2006 obtaining the prior Environmental Clearance to the carrying on of mining activity is held to be mandatory. Even the Notification of 15th January, 2006 does not change that status. In fact the Mining Rules framed by the State of UP in terms of U.P.Minor Mineral Concessions Rules 2017 it is mandatory to obtain environment Clearance prior to carrying on of any mining activity under the lease granted to minor-mineral by the State Government. In that sense we are examining the Mining Policy 2017 of the State of UP and the E-Notice issued only from the point of view of environmental protection. Rule 34 of the said Rules mandates that there should be sufficient safeguards provided for environmental protection and in that sense DSR is initial step. Stricto senso we are not concerned with the tenders invited by the State Government under its mining policy which does not fall within the scope of jurisdiction of this Tribunal. However, the State in terms of its constitutional obligations contained in Article 48(A) read with the Principle of Sustainable Sand Mining, the very foundation of the Sand Mining Policy, 2017 of the State and the Judgment of the Tribunal, is obliged to provide due protection and safeguards for the environment protection before it can generate revenue by utilization of its natural resources. The State Government holds these assets in public interest. The Doctrine of Public Trust 65 requires the State Government to ensure that the natural resources including sand mining is not permitted to be wasted opposed to the Principle of intergenerational equity. The mining policy does have deficiencies and does not incorporate all the provisions of Environmental protection as contemplated in the minor mineral rules of the State of UP. We are not concerned whether the State ought or ought not have invited tenders on the basis of so called surveys conducted under the mining rules but we are certainly concerned with that no environmental degradation is permitted as a result of indiscrimate unregulated mining without compliance to the laws enforce. Obtaining prior Environmental Clearance is not optional therefore, all other laws in other fields than environment must tilt in favour of the environmental laws and non should be permitted to carry on the activity of extraction of minor minerals including sand unless the requirement of environmental laws are fully satisfied.
92. The E-tender cum E- Auction in terms of Rule 23(iv) does give the power to the District officer to get evaluated for quality and quantity of the minerals for fixing the minimum bid. This exercise squarely falls within the ambit of commercial policy of the State Government under the provisions of the Mining Policy and but cannot form an exception to compliance of the environmental laws as contemplated under the Mining Rules of 2017 as well as Appendix- x. Appendix-x while refereeing to Sustainable Sand Mining Guidelines also directs to ensure providing of the details as contemplated under the said 66 Appendix. 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.
93. It is true that under the Mining Policy/Rules the State is empowered to conduct survey for the purpose of inviting bids opine. The preparation of DSR and obtaining of Environmental Clearance is also a condition precedent to carrying on mining activity. It is for the State Government to ensure that there is no conflict between the two and they are balanced so as to ensure that neither there is scope for illegal mining nor there should environmental degradation.
94. The information or data collected by the authorized officer of the State Government under Mining Act for inviting tenders would not be and cannot be the base for compliance of Appendix- x as it is not a substitute for the District Survey Report referred to which must be prepared by District Environment Impact Assessment Authority the body in terms of Appendix-x. In light of the above discussion we pass the following orders and directions:
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1. we have already held that we are not concerned in deciding the merit or otherwise of the Mining Policy, 2017 framed by the State of UP and inviting of e-tender and e-auction as it falls beyond the jurisdiction of this Tribunal.
2. The data collection and declared for preparation of DSR shall take precedent over other data and would form the foundation for providing mining lease in terms of Appendix- x to the Notification dated 15th January, 2016 must be prepared by the statutory authority stated therein i.e. DEIAA prior to awarding of permits for carrying on mining activity in any part of the State of UP.
3. Upon finalization of the DSR in the manner prescribed 21 days notice shall be provided and objections if any file shall be considered in accordance with law.
4. Obtaining of Environmental Clearance shall be a condition precedent to the carrying on of the mining activity/execution of the lease. This be so for the environmental laws afore-
referred and even stipulated in the Rule 34(iv) of the Mining Rule, 2017
5. The State Government and all its agencies and instrumentalities would ensure that the protection and replenishment of natural resources including sand is duly provided for in the mining lease that would be granted by the State Government as required under Appendix-x to the notification dated 15th January, 2016.
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6. The State Government and its instrumentalities shall also ensure that the terms and conditions of the Mining Lease would contain all the relevant clauses as stated in Appendix-x and Notification dated 15th January, 2016 for carrying out sustainable mining.
95. With the above directions, Original Application No. 557/2017 is deposed of along with connected Original Application No. 615 of 2017, Original Application No. 616 of 2017, Original Application No. 624/2017, Original Application No. 631 of 2017, Original Application No. 633 of 2017, Original Application No. 625/2017, Original Application No. 634 of 2017, Original Application No. 636/2017, Original Application No. 639 of 2017, Original Application No. 647 of 2017, Original Application No. 648 of 2017 and Original Application No.326 of 2017with no order as to costs.
96. In view of the above all the miscellaneous applications are disposed of as the main applications stands disposed of.
Swatanter Kumar Chairperson Dr. Jawad Rahim Judicial Member Bikram Singh Sajwan Expert Member New Delhi 08th December, 2017 69