National Green Tribunal
Gaurav Ashok Dhote vs Mining Officer Nagpur on 19 October, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
Original Application No.30/2022(WZ)
I.A. No. 54/2022(WZ)
IN THE MATTER OF:
Gaurav Ashok Dhote,
S/o Ashok Dhote, Plot No. 16,
Koradi Road, Indoor Stadium,
Gadgebaba Society, Mankapur,
Nagpur- 440 030.
.....Applicant
Versus
1. Mining Officer, Nagpur
District Mining Officer,
Collector Office, Ravindra Nath Tagore
Marg, Civil Lines, Nagpur
Maharashtra- 440 001.
2. District Collector, Nagpur
RavindraNath Tagore Marg,
Civil Lines, Nagpur, Maharashtra- 440 001.
3. Director, Directorate of Geology and Mining
Government of Maharashtra
"Khanij Bhawan, Plot No. 27,
Shivaji Nagar, Cement Road, Nagpur- 440 010.
.....Respondent(s)
Counsel for the Applicant(s):
Appellant(s) : Mr. Sanjay Upadhyay, Advocate along-with
Mr. Shubhendu Anand, Mr. Ayush Anand, Saumitra J.
and Mr. Ajay Dhawle, Advocates
Counsel for the Respondent(s):
Respondent(s) : Ms. Subhangi Deshmukh, Advocate for R-1 & 2
Mr. Aniruddha Kulkarni, Advocate for MPCB/SEIAA
PRESENT:
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
---------------------------------------------------------------------------------------------------------
Reserved on : 19.09.2022
Pronounced on : 19.10.2022
Page 1 of 24
JUDGMENT
1. This Original Application has been moved under Section 14, 15 read with Section 18 of the National Green Tribunal Act, 2010, seeking quashing of tendering notice dated 04.02.2022 in the District Nagpur issued by Respondent No. 2/District Collector, Nagpur on the ground that the quantity mentioned for excavation of sands has no scientific basis, as there is no replenishment study conducted with respect to 8 mines out of 10, invited for auction. The sand mining activities are being carried out on the strength of faulty DSR, 2021 for Nagpur District for sand mining, which has been prepared in violation of the Central Guidelines of 2016 & 2020.
2. It is further prayed that inspection should be carried out by a national agency for studying replenishment pattern and quantity available, without disturbing ecological balance in the District Nagpur and the Respondent Nos. 1 to 3 be instructed to ensure that no sand excavation takes place in the District Nagpur unless the DSR and replenishment study are conducted of the area in accordance with law.
3. In the body of the application, it is submitted that vide tender dated 04.02.2022, auction of 10 sand mines of the District is done, out of which only 2 sand mines have the replenishment study regarding quantification available sand thickness and excavatable sand thickness of the respective sand Ghats. The proposal of auction has no details or record for the District Survey Report of Nagpur prepared in the year 2021 and at page 42-43 of the report, it enlists the mines where replenishment study was not complete. Therefore, it is Page 2 of 24 impossible to ascertain excavatable amount of sand, pricing of the tender and other details mentioned in the tender. All these appear to be based on speculation which might be harmful to the environment.
Reference is made of the law laid down in the case of Deepak Kumar vs. State of Haryana, (2012) 4 SCC 629 and the Judgment of this Tribunal in Prabhat Mohan Pandey vs. MP, SEIAA, in Appeal Nos. 25- 27, 29-65, 67-72 of 2021 (CZ) dated 22.02.2022 which provide that in absence of proper study for annual replenishment of sand for any sand mines, any mining operation is not only dangerous for the river bed eco-system but also to the environment.
4. He has also submitted that as per the earlier sand policy of the State of Maharashtra as given under Maharashtra Minor Mineral Extraction (Development and Regulation) Rule, 2013 (to be referred in short as Rule, 2013), a provision was made for survey of the area for the purpose of ascertaining the environmental impact and it was stipulated that unless the clearance was obtained from the Ministry of Environment, sand could not be excavated and that the Officer who had submitted the proposal before the environmental authority, would be treated to be the Project Proponent, in whose name the environmental clearance was to be issued. As per the new policy dated 28.01.2022, the impugned auction process would be conducted without such clearance and burden has been placed on the shoulder of successful bidder to apply for the clearance. This new policy is also in conflict with the Sand Mining Guidelines, 2016 because the studies ought to have been conducted prior to initiation of auction process or issuing tender in this regard so that clear amount of excavatable sand Page 3 of 24 can be incorporated in tender having least impact on environment.
Because of this policy not being adopted, enormous degradation of the environment has happened in the river stretch of River Kanhan, Pench and Kolar of Nagpur District. The tendering of sand mines without annual replenishment study as clearly reflected in the DSR will have enormous detrimental effect on the river ecology and environment.
Hence the above prayers are made.
5. After hearing this matter on 12.04.2022, this Tribunal had constituted a joint committee which has submitted its report which was found to be defective on account of SEIAA not having participated in it.
6. Thereafter, vide order dated 06.07.2022, this Tribunal having noticed the above defect, had passed an order to the effect that a revised joint inspection report be submitted with an explanation of the Member Secretary of SEIAA.
7. In pursuance of said Tribunal's order, joint committee submitted its report, the relevant part is quoted here-in below:
"3.0 OBSERVATIONS AND FINDINGS There are two rivers i.e. Kanhan River and Pench River where sand mining (retighats) were proposed. The Kanhan River is an important right bank tributary of the Wainganga River draining a large area lying south of Satpura range in Central India. Along its 275 km run through the Indian States of Maharashtra & Madhya Pradesh. The Pench River is an left bank tributary of the Kanhan River. It originates in the Chhindwara District of Madhya Pradesh and flows across Pench National Park, which is a reserve for the Tiger Project of India.
3.1 The chronology of events from Field Survey by Taluka Level Monitoring Committee (TLMC), Approval/permission for DSR, Mining Plans, Public Page 4 of 24 Hearing, Environmental Clearance, Tendering/ Auction, Allotment and operational status related to the Sand Ghats are provided as below-
MPCB had vide letter no. MPCB/SCN/738/2022 dtd. 15/07/2022 sought urgent point wise clarification from DMO, Nagpur regarding issues raised by applicant in this Original Application. DMO, Nagpur vide letter No. Mining- 3/Desk/21/WS-Q/2022 dtd. 15/07/2022. The point wise clarification have also been incorporated in this report. 3.1.1 BACKGROUND INFORMATION:
The District Survey Report (Draft) for the year 2021-2022 was prepared as per Notification of Ministry of Environment Forest and Climate Change (MoEF&CC) 25th July, 2018. Procedure for preparation of District Survey Report as per Sustainable Sand Mining Guidelines 2016, Sand Mining Framework 2018, Enforcement & Monitorin8 Guidelines for Sand Mining 2020 of Ministry of Environment Forest and Climate Change (MoEF&CC) (Chapter No 4- Requirements for Monitoring & Enforcement, Sub point 4.1 Identification of possible sand mining sources and preparation of District Survey Report (DSR), Point No- P Public Consultation, Page No-19), Government of India as well as Maharashtra Sand Mining Rules 2019 and was Published on Public Domain as per the directives given in above mentioned rules/guidelines on 9th November 2021. 1.1 A notice was given in local Newspapers on 03.11.2022 regarding availability of Draft DSR on website- https:// Nagpur.nic.in for information comments/ suggestions on Draft DSR for application to be made to SEAC/ SEIAA for permission for sand mining. Draft DSR was published on public portal on 09.11.2021 by the Mining Department for 30 days.
1.2 No objections/suggestions were received on the draft DSR for a period of one month.
1.3 The DSR was finalized by adding some information as:
Previously there were 34 sand ghats were incorporated, after receiving feasibility report based on the TLMC 28 Sand Ghats have been finalized and incorporated in final DSR.
Replenishment studies has been also revised. 1.4 Draft DSR was finalized by Collector on 12.01.2022.
2. Sustainable Sand Mining Guidelines 2016 (SSMG-2016) as well as Enforcement and Monitoring Guidelines for Sand Mining, 2020 (EMGSM 2020) Government of Maharashtra, Sand Mining Rules 2019 clause no VII (a) Mining plan mandatory. And for obtaining Environmental Clearance Mining Plan, EMP, Pre-feasibility Report are mandatory. 28 mining plans for 28 Sand Ghats were approved by Directorate of Geology and Mining (DGM), Nagpur viz 14 Page 5 of 24 sand ghats were approved on 20.12.2021 and 12 mining plans were approved on 24.12.2021 and remaining 2 were approved on 19.01.2021.
3. Replenishment Plan for Kanhan and Pench Rivers have been included in Chapter-8 of Final DSR approved by Collector Nagpur on dated 20/01/2022.
4. Sand ghats were auctioned on 18.05.2022 for the year 2021-22 with prior EC which is valid till 30th September, 2022.
3.1.1 Field Survey - Taluka Level Monitoring Committee (TLMC) The tender for appointment of consultant for preparation of Mining Plan, District Survey Report and Environment Clearance was floated on 01.09.2021 and last date of opening of financial bid of shortlisted consultants was 15.09.2021.
After opening of the financial bid Open Arch Design & Enviro Solutions, Vashi, Navi Mumbai firm was the lowest and Consultant had submitted letter dated 14.10.2020 as acceptance of negotiated rates further was granted with the work order dated 20.10.2021 in the month of November 2021.
Mining office Nagpur informed that there is total 66 sand ghats in District Nagpur proposed for year 2021- 2022. Out of which in the year 2020 -- 2021 application for Environment Clearance for 22 sand ghats was done out of which 20 sand ghats were granted Environment Clearance which was valid till 30.09.Z021. And auctioned for 3 years (2020-2021, 2021-2022, 2022-2023) with prior Environmental Clearance as per Sand Mining Policy, 2019. TLMC consist of Tahsildar, Deputy Engineer- Dept. of water Resource, Jr. geologist- Directorate of geology & Mining (DGM), Jr. geologist of Groundwater Survey & Development Agency (GSDA) and Representative of MPCB Field Survey Started on 20.10.2021 by TLMC as per letter from Additional Collector dated 18.10.2021. TLMC and Accredited Consultant surveyed 66 Sand Ghats for year 2021-2022 viz 29 Sand Ghat in Saoner Taluka, 16 Sand Ghat in Parseoni, 13 Sand Ghat in Mauda Taluka and 8 Sand Ghat in Kamptee & Kuhi Taluka in Nagpur District and survey completed on 15.11.2021.
After completion of field survey of 66 sand ghat, only 28 sand ghats were proposed for Environmental Clearance by TLMC.
Page 6 of 24 Replenishment Plan for Kanhan and Pench Rivers have been included in Chapter-8 of Final DSR approved by Collector Nagpur on dated 20/01/2022.
Sand ghats were auctioned on 18.05.2022 for the year 2021-22 with prior EC which is valid till 30th September 2022.
3.1.2. Methodology of Field Survey Field Survey is carried on the basis of Proposal of Taluka Level Monitoring Committee, Talathi Maps, details of adjoining survey numbers, GPS Coordinates of the area at the time of field survey by Taluka Level Monitoring Committee and representative of appointed agency. The Mineable depth has been finalized by concerned GSDA Jr. Geologist by checking total depth of sand.
After completion of field survey of 66 sand ghat, only 28 sand ghats were Feasible and proposed for Environmental Clearance by TLMC by finalizing individual Sand Ghat length width and Mineable depth (The Mineable depth has been finalized by concerned GSDA Jr. Geologist by checking total depth of sand.) The details of 28 sand ghats are provided at. 3.1.3 District Survey Report (DSR) A notice was given in local newspapers on 03.11.2022 regarding availability of Draft DSR on website - https://Nagpur.nic.in for information comments/suggestions on Draft DSR for application to be made to SEAC/SEIAA for permission for sand mining. Draft DSR was published on public portal on 09.11.2021 by the Mining Department for 30 days. No objections/suggestions were received on the draft DSR.
Draft DSR was finalized by Collector on 12.01.2022. Replenishment Plan for Kanhan and Pench Rivers have been included in Chapter-8 of DSR which needs to be verified by concerned departments (GSDA & DGM).
3.1.4 Mining Plans 28 mining plans for 28 Sand Ghats were approved by Directorate of Geology and Mining (DGM), Nagpur viz 14 sand ghats were approved on 20.12.2021 and 12 mining plans were approved on 24.12.2021 and remaining 2 were approved on 19.01.2021. 3.1.5 Public Hearing Public hearing documents as per the format of MPCB were submitted on 22.12.2021 to MPCB with copies of documents made available District Mining Officer, Page 7 of 24 Nagpur, Gram Panchayat, Tehsildar, Talathi Office, SDO Office etc. Public Hearing was conducted on 21.01.2022 through video conferencing and physical attendance by the stake holders at Bachat Bhawan, Collector Office, Nagpur and Minutes of Meeting were received from MPCB on 25.01.2022.
Objections and responses in the public hearing Mohmmad Junnaid- Objections were taken by Mohd Junaid resident of Nagpuron complete process of selection sand ghats and environment clearance-
Mohd Junaid had major objection on proceedings of Public Hearing and Replenishment Studies. His objection was that the MPCB has not covered his points completely in minutes of meeting of public hearing.
He also said that the DSR was not published on public portal as well as replenishment study of each sand ghat should be conducted.
Consultant along with the District Mining Officer prepared reply to the Queries of Mohd.Junaid and submitted to the SEAC on 25.02.2022.
3.1.6 Environment Clearance Application for Environment Clearance (EC) for all 28 sand ghats were submitted on 27.01.2022. State Level Expert Appraisal Committee -1 (SEAC 1) published agenda of 217th meeting for grant of Environment Clearance including all 28 sand ghats between 17th to 18th February, 2022.
Second SEAC 1 220th Meeting held on 11.04.2022 and MoM of 220th meeting uploaded on Portal on 25.04.2022. In MoM, Out of 28 Sand ghat SEAC 1 Defer 1 Sand Ghat i.e. Bawangaon B Taluka Saoner, District Nagpur as it was pointed out there is bridge in 600m.
SEIAA 242nd Meeting held on 27.04.2022 and MoM of 242nd meeting, uploaded on Portal on 10.05.2022. SEIAA uploaded Environmental Clearance (EC) letter for 27 Sand Ghats in Nagpur District on 11.05.2022. 3.1.7 Auction Status -
Out of 27 sand ghats which got EC, 18 sand ghats were already auctioned for three years in the year 2020 (2020-21, 2021-22 & 2022-23), and remaining 09 sand ghats were auctioned on 18.05.2022 for the year 2021-22, as informed. Initially the e- tendering was planned on 21.02.2022 vide public notice dated Page 8 of 24 05.02.2022. However, the date of e-auction was postponed to 18.05.2022 due to order of Hon'ble High Court (Nagpur Bench).
3.1.8 Operational Status of Sand Mining at Sand Ghats-
Though, there is auction of 27 sand ghats (18 sand ghats in 202O for three year & 9 sand ghats in 2022 for one year), only one sand ghat is allotted for sand mining i.e. Gosewadi- A on Kanhan River at TalukaSaoner, Dist Nagpur. It is informed the other sand ghats were not taken.
3.2 OBSERVATIONS DURING SITE VISITS OF RETI GHATS 3.2.1 Gosewadi Reti Ghat (A), Taluka Saoner, District Nagpur.
This sand ghat is located on right bank of Kanhan river while traversing the river from North to South direction. The details of sand ghat wrt location, dimension, (area, depth), quantity, status of EC, Auction etc. is given in the Sr. No. 1 of Table.
The EC is obtained for the sand ghat, which is attached.
The sand mining for this sand ghat is allotted to M/s Ashtha Associates (Shri Ayush Trivedi) as per Allotment Letter dated 27.05.2022 and started mining from 31.05.2022 to 10.06.2022 as per Mahakhanij ETP Report as provided by DMO, Nagpur. The total excavated sand is 7420 Brass as against the allotted quantity for sand mining as per EC.
Sand mining was found not in operation during the day of visit. The photographs. It is informed that the sand mining is not permitted from 10.06.2022 as per Sand Mining Policy 2019 which is further revised in 2022. As per EC, the area dimensions permitted is (length) 420 mx (Width) 100 mx (depth) 0.5m. the length of sand Mining was measured and it was observed that the sand is mined before and after the demarked pole (120 m on each side) indicating the mining carried out about Total 660 m. Further, depth of excavation at number of location is also measured and it is found that sand mining was carried out behind 0.5 m depth as permitted. The average depth was found about 2.0 meter. It may inferred that the PP has mined excess quantity of sand. This is the violation of specific condition A SEAC no. 08, General Condition Sr. No. XII. There is need to properly measure the over excavated area and excess excavated quantum of sand by the concerned departments (GSDA & DGM).
Page 9 of 24 As per EC specific condition SEAC no. 16, mining should be carried out by manual method. It is observed that mining was carried out by Poclain machine/JCB as the signs of wheels on sand & of scratches in sand pits were found, and also quantum of sand mined. It is not possible to mined 7420 brass sand in about 10 days by manual method. This is violation of EC conditions.
As per EC Specific condition SEAC no. 11, Buffer zone was not earmarked at a distance of 10 % of width of River i.e.7.5 m. Sand mining carried out along the bank in buffer Zone, also. Red flags marking was in riverbed.
It was observed that about3500 Brass of sand stored on the right bank of river near approach road as informed by Tahsildar Saoner vide letter dated 01.07.2022 to DMO Nagpur.
Register is maintained at location mentioning details of officials visited to sand ghat. However, no record of no. of vehicles which carried sand, quantity of sand excavated, details of transit pass, and weigh bridge found at the site.
No check post at entry/exit of ghat, also there was kaccha road to sand ghat.
Tree plantation was carried out along roadside at some places.
It is informed that water sprinkling was carried out though water tankers.
Piezometers wells are not provided around sand ghat and ground water quality not carried out around the sand ghat showing violation of EC conditions. Measures for prevention and control of soil erosion were not taken.
In the second site visit on 15/07/2022 the River was flowing in its full spate and no portion of the sand ghat was visible, however a large storage depot of sand was seen on the Bank.
3.2.2 Saholi Reti Ghat (A), Taluka Parseoni, District Nagpur.
This ghat is located on left bank of kanhan river while traversing the river from Northto South direction. The details of sand ghat wrt location, dimension, (area, depth), quantity, status of EC, Auction etc. is given in the Sr. No. 5 of Table.
The EC is obtained for the sand ghat which is attached.
Page 10 of 24 Sand Ghat was not operational during the visit as the ghat is auctioned but not allotted to project proponent. However, there was illegal manual excavation of sand was observed.
In the second site visit on 15/07/2022 the River was flowing in its full spate and no portion of the sand ghat was visible.
3.2.3 Saholi Reti Ghat (B), Taluka Parseoni, District Nagpur.
This ghat is located on left bank of Kanhan River while traversing the river from North to South direction. The details of sand gha wrt location, dimension, (area, depth quantity, status of EC, Auction etc. is given in the Sr. No. 6 of Table.
The EC is obtained for the sand ghat, which is attached.
Sand Ghat was not operational during the visit as the ghat is auctioned but not allotted to project proponent. However, there was illegal manual excavation of sand an transport as per the information fine imposed and recovered by Tahsildar Parseoni as per letter dated 30.06.2022.
In the second site visit on 15/07/2022 the River was flowing in its full spate and no portion of the sand ghat was visible.
4.0 CONCLUSION & RECOMMENDATIONS:
There is need to properly measure the over excavated area and excess mining of sand by the concerned departments (GSDA & DGM) as it was inferred based on the observation during the visit that PP has mined sand before and after the demarked pole and the average depth was found about 2.0 meter.
Replenishment Plan in relation with Sand Ghat - Gosewadi A at Kanhan Rivers shall be checked by the concerned departments (GSDA & DGM) as per Chapter- 8of DSR.
In view of violation of EC conditions, as enumerated in para 3.2.1 by the project proponent for Sand Ghat - Gosewadi A, SEIAA/ Env. Deptt., Govt. of Maharashtra may take appropriate action based on the Standard Operating Procedure (SOP) for dealing with violation cases were issued by the MoEF&CC vide Office Memorandum (OM) F. No. 22-21/2020-IA.III dated 07/07/2021 &OM F.No.22-21/2020-IA.III (138949) of MOEF&CC dated 28.01.2022.
MPCB has issued a Show Cause Notice to DMO, Nagpur vide letter No. MPCB/SCN/738/2022dtd. 15/07/2022 asking for clarification on violation of Page 11 of 24 Environmental Clearance conditions, i.e. EIA Notification 2006 & Environment (Protection) Act, 1986 the reply on the same shall be perused for further necessary action.
Collector office shall take appropriate action for all others sand ghats based on the information provided by respective Tahsildars/DMO on physical inspection the sites and initiate punitary provisions if required as observed in the illegal mining carried out at Saholi Reti Ghats.
Collector Office shall also seize and take possession of excess mined sand as also proceed with necessary action under MLRC, 1966."
8. The relevant study with respect to replenishment plan of Kanhan River which is included in chapter 8 of final DSR, is quoted here-in below:-
"Conclusion:
From the above calculations, annual replenishment rate for Kanhan River is estimated at 273106.78 M. tons/yr and that for Pench River is estimated at 183960.35 M. tons/yr for the year 2021. And annual replenishment rate for Kanhan river is estimated at 281567.64 M. tons/yr and that for Pench River is estimated at 189659.45 M. tons/yr. for the year 2020. Total Replenishment of sand in Kanhan River is 96.99 % and Total Replenishment of sand in Pench River is 96.99%.
Dendy -Boltan formula also says that actual sediments yield from individual drainage basins may vary 10-fold or even 100-fold from computed yields. The equations express the general relationships between sediment yield runoff and drainage area. They may provide a quick rough approximation of mean sediment yields on a regional basis for preliminary watershed planning. Because Dendy & Bolton have derived the equation from average values computed sediment yields normally would be low for highly erosive area and high for well stabilized drainage basins with high plant density.
Factors which have direct bearing on sediments yield & limitations of Dendy -Bolton equation: Sediment yield of a sediment basin has direct impact of local terrain, climate, vegetation, soils, agricultural practices & land use pattern of catchment area of the sediment basin aforesaid factors varies from basin to basin therefore, Dendy - Bolton has categorically stated that use of the equation to predict sediment yield for a Page 12 of 24 specific location would be unwise because of the wide variability caused by local factors not considered in the equation development. Actual sediment yield form individual drainage basins may vary 10-fold or even 100-fold from computed yields."
9. It would be pertinent for us to observe here that the replenishment study appears to have been done by methodology for replenishment study which is provided in "Enforcement and Monitoring Guidelines-2020 for Sand Mining" issued by MoEF&CC, the relevant para 5.2 of which is quoted here-in below:-
"5.2 Methodology for Replenishment Study The replenishment estimation is based on a theoretical empirical formula with the estimation of bed load transport comprising of analytical models to calculate the replenishment estimation. The iso-pluvial maps of IMD can be used for estimation of rainfall. Catchment yield is computed using different standard empirical formulas relevant to the geographical and channel attributes. eg. Strange's Monsoon runoff curves for runoff coefficient). Peak flood discharge for the study area can be calculated by using Dickens, Jarvis and Rational formula at 25, 50 and 100 years return period. The estimation of bed load transport using Ackers and White Equation or similar can be made. A simulation model is used with basic data generated from the field in the pre-study and post-study period (preferably pre-monsoon and post-monsoon) to estimate the volume of replenished material. The particle size distribution and bulk density of the deposited material are required to be assessed from a NABL recognized laboratory. Considering the bulk density and the volume, the estimation of replenishment in weight will be calculated after considering safeguards and stability of the slopes and riverine regime."
10. During the argument, the learned Counsel for the Applicant had hammered the point that the replenishment study was not conducted in accordance with the said guidelines and had pointed out para 5.1 of the above guidelines which is as follows:-
"5.1 Generic Structure of Replenishment Study Page 13 of 24 Initially replenishment study requires four surveys. The first survey needs to be carried out in the month of April for recording the level of mining lease before the monsoon. The second survey is at the time of closing of mines for monsoon season. This survey will provide the quantity of the material excavated before the offset of monsoon. The third survey needs to be carried out after the monsoon to know the quantum of material deposited/replenished in the mining lease. The fourth survey at the end of March to know the quantity of material excavated during the financial year. For the subsequent years, there will be a requirement of only three surveys. The results of year-wise surveys help the state government to establish the replenishment rate of the river. Based on the replenishment rate future auction may be planned.
The replenishment period may vary on nature of the channel and season of deposition arising due to variation in the flow. Such period and season may vary on the geographical and precipitation characteristic of the region and requires to be defined by the local agencies preferable with the help of the Central Water Commission and Indian Meteorological Department. The excavation will, therefore, be limited to estimated replenishment estimated with consideration of other regulatory provisions."
11. It is apparent from the said guidelines which are considered under the head "5.0 Replenishment Study" that both the kind of studies are approved as have been cited above, therefore, to say that the method which has been laid down under head "5.1 (Generic Structure of Replenishment Study) which provides for four surveys on different point of times not being adopted, would not force us to believe that the Guidelines of January, 2020 were not followed as it is apparent that the Guidelines provided under head "5.2 Methodology for Replenishment Study" as given above, appears to have been followed and according to the DSR, the Replenishment of sand in Kanhan River is found to be 96.99 % which is close to 100 %.
Therefore, we do not find any infirmity as regards the preparation of DSR being defective/faulty in terms of the replenishment study.
Page 14 of 2412. The stand of the Respondent Nos. 1 & 2/Project Proponent is as follows:-
(i). For the year 2021-2022, field survey was carried by Taluka Level Monitoring Committee on the basis of Talathi Maps.
The Mineable depth has been finalized by the concerned Groundwater Surveys & Development Agency (GSDA), Jr. Geologist by checking total depth of sand. After completion of field survey of 66 sand ghats, only 28 sand ghats were found feasible to be forwarded to the District Level Monitoring Committee for Environmental Clearance. The District Survey Report (Draft) for the year 2021-2022 was prepared as per Notification of Ministry of Environment Forest and Climate Change (MoEF&CC) dated 25th July 2018. Procedure for preparation of DSR was as per Sustainable Sand Mining Guidelines, 2016, Sand Mining Framework 2018, Enforcement & Monitoring Guidelines for Sand Mining, 2020 issued by Ministry of Environment Forest and Climate Change (MoEF&CC) (Chapter No 4) etc. Thereafter, the final DSR was approved by the District Collector, Nagpur on 20.01.2022.
(ii). Further, it is submitted that Application for Environment Clearance (EC) for all 28 sand ghats was submitted on 27.01.2022 before the State Level Expert Appraisal Committee-1 (SEAC 1). SEIAA after consideration uploaded Page 15 of 24 the EC later for 27 sand ghats in Nagpur District on 11.05.2022.
(iii). Further, it is submitted that though there was auction of 27 sand ghats, only one sand ghat was allotted for sand mining i.e. Gosewadi-A on Kanhan River at Taluka Saoner, District Nagpur because the sand ghats for others were not taken for allotment.
(iv). It is further submitted that the sole allotment was made in favour of M/s. Ashta Associates as per allotment letter dated 27.05.2022. The total quantity of sand allotted for excavation was 7420 brass. The period of excavation of sand from the sand ghat was up to 30th September, 2022 as per the EC which was also incorporated in the auction tender notice as well as in the agreement. The period of 10th June to 30th September is the period of mansoon hence excavation could not be permitted as per sand policy dated 28.01.2022. At present, no excavation activities is going on nor will take place till 30th September, 2022. The District Tahsildar, Saoner informed the District Mining Officer, Nagpur regarding illegality in the Gosewadi-A Sand Ghat, mentioning that the sand ghat owner excavated beyond the proposed area and depth. On the basis of that, Additional Collector, Nagpur issued show cause notice to the Project Proponent, asking as to why the sand ghat lease be not cancelled. In the meantime, the concerned Tahsildar has already seized the Page 16 of 24 sand stock having quantity of 2800 brass in order to ascertain the scale of violation. On the basis of report received from Tahsildar, the answering respondent's office had issued show cause notice to the Project Proponent regarding violation of EC condition on 18.07.2022 and the auction process is going on.
(v). It is also submitted that the e-auction process being carried out by the District Administration, was challenged before the Hon'ble High Court Bench at Nagpur vide Writ Petition No. 2757/2022 which too was dismissed.
13. From the side of Member Secretary, SEIAA has submitted formal affidavit which is not related to the present dispute.
14. We have heard the arguments of the Learned Counsels for the parties and perused the record.
15. In this matter, it is apparent that the tendering notice dated 04.02.2022 for auction of sand mines is prayed to be quashed, issued in respect of sand mining in 10 sand blocks which are reproduced here-in below as given in the said notice at page no. 516 to 519 of the paper book:-
" Sr. Taluka Name of Name Nearest Total Estimated The upset 25 % No. the sand of the adjoining extent Sand priced Earnest Block river/ Plot No. in Stock in fixed for money canan located (Hectar Brass the year Deposi.
beside e-Are) available 2021-
the sand for the 2022. (EMD)
block current
year
2021-22
1 2 3 4 5 6 7 8 9
Page 17 of 24
1. Savner Gosewadi Kanhan 285, 4.20 7420 4452000 1113000
286, &
-A part of
287
2. Savner Bavangao Kanhan 203, 2.70 5724 3434400 858600
n 204, 208
-B
3. Parshiv Saholi-A. Kanhan 15, 16, 2.50 7067 4240200 1060050
ni 17, 18,
19
4. Parshiv Saholi-B Kanhan 115/2, 3.60 12720 7632000 1908000
ni 112/2,
136/2,
141/2
5. Parshiv Pardi-C Kanhan 153 4.50 12720 7632000 1908000
ni
6. Parshiv Old Kanhan 230, 2.00 5653 3391800 847950
ni Kamthee 241/2
(Gadeghat)
B.
7. Mauda Kirnapur Kanhan 103, 104, 4.95 14021 8412600 2103150
105, 107,
109, 110,
111, 113,
115, 116,
117, 118,
119, 4, 5.
8. Mauda Mohkheri Kanhan 117, 4.90 12120 7272000 1818000
118, 119
9. Koohee Chichghat Kanhan 43 3.00 5300 3180000 795000
10. Kamthe NeriGhat Kanhan 217/2/3, 4.85 25754 15452400 3863100
e 219,
220,
221/1,
223 &
Part of
224/1.
"
16. The main emphasis in the argument made by the Learned Counsel for the Applicant is that DSR has not been prepared in accordance with the Enforcement and Monitoring Guidelines-2020 for sand mining cited above. Therefore, according to the law which has been interpreted by Hon'ble Apex Court Deepak Kumar's case and other cases cited by him, no mining could be permitted.Page 18 of 24
17. We have already noted at the relevant place above that the DSR will be taken to have been prepared in accordance with the said guidelines for the reasons mentioned above, therefore, that cannot be the ground to quash the environmental clearances/mining leases.
18. The Learned Counsel for the Applicant has vehemently pointed towards page no. 134 of the paper book which is a public notice by the District Collector, Nagpur, in connection with holding e-tendering and e-auction of Gravel/sand blocks for the independent Auction Years of 2020-2021, 2021-2022 and 2022-2023 and stated that this notice is for three years which is illegal as the auctioning is required to be done from year to year, to which the Learned Counsel for the Respondent Nos. 1 & 2 states that it related to only one year i.e. 2020-2021 which is apparent from the perusal of table given at page no. 135/B at Column 6.
19. In this regard, our opinion is that this public notice has not been challenged by the Applicant as the challenge is made to the notice dated 04.02.2022, therefore, this argument does not hold good.
20. He has drawn attention to page no. 151 of the paper book where-
on, the relevant portion of the sand mining guidelines are issued by MoEF&CC in January, 2020 and he pointed out that based on that the District Survey Report for sand mining shall be prepared before the auction/e-auction/grant of the mining lease/ Letter of Intent (LoI) by Mining Department or department dealing the mining activity in respective States.Page 19 of 24
21. Thereafter, he has drawn attention to page 163 of the paper book which relates to replenishment study regarding which we have already expressed our opinion.
22. Then, he has pointed out to para 41 at page 535 of the paper book where-in it is recorded that it is the duty of the auction bidder applicant to find out that whether enough sand stock is available or not and argued that it is wrong because it is the responsibility of the authority to find out whether enough sand stock is available or not.
23. Then, he drew attention to para 48 at page 539 of the paper book where-in it is record that no excavation activity can be indulged in by the bidder unless he ensures that the water level in the water wells of the surrounding area also not get depleted. Regarding this, necessary precaution should be taken. We do not find these arguments to be relevance in the present context.
24. We find that the DSR was finalised by the District Collector, Nagpur on 12.01.2022 where-as impugned auction notice was issued on 04.02.2022 which establishes that DSR was finalised before the e-
auction notice. Therefore in this regard, there does not appear to be any lacuna.
25. Now, we would consider the Environmental Clearance, granted to the Project Proponent. In this regard, we would rely upon the EIA Notification, 2006 as amended by S.O. 141(E) dated 15th January, 2016. The relevant para of which is quoted here-in below:-
"APPENDIX - XI [See paragraph 7 (iii) (b)] Page 20 of 24 PROCEDURE FOR ENVIRONMENTAL CLEARANCE FOR MINING OF MINOR MINERALS INCLUDING CLUSTER The following policy shall be followed for environmental clearance of mining of minor minerals including cluster situation: -
.....
(4). Environmental clearance shall be applied for and issued to the individual project proponent. The individual lease holders in cluster can use the same Environment Impact Assessment or Environment Management Plan for application for environmental clearance. The cluster Environment Impact Assessment or Environment Management Plan shall be updated as per need keeping in view any significant change.
...
...
(8). The SEIAAs shall have supervisory jurisdiction over the DEIAAs and decisions of DEIAA shall be reviewed by the SEIAA without prejudice to any provisions under any existing law.
As per S.O. 141 (E), dated the 15th January, 2016 -
"4. District Level Environment Impact Assessment Authority: -
(1) A District Level Environment Impact Assessment Authority hereinafter referred to as the DEIAA shall be constituted by the Central Government under sub-section (3) of section 3 of the Environment (Protection) Act, 1986 comprising of four members including a Chairperson and a Member-Secretary.
(2) The District Magistrate or District Collector shall be the Chairperson of the DEIAA.
(3) The Sub-Divisional Magistrate or Sub-Divisional Officer of the district head quarter of the concerned district of the State shall be the Member-Secretary of the DEIAA. (4) The other two members of the DEIAA shall be the senior most Divisional Forest Officer and one expert. The expert shall be nominated by the Divisional Commissioner of the Division or Chief Conservator of Forest, as the case may be. The term and qualifications of the expert fulfilling the eligibility criteria are given in Appendix VII to this notification."
S.O. 141(E), dated the 15th January, 2016 has been suspended by NGT in EA No. 55/2018 in OA No. 520/2016 in the matter of Vikrant Tongad vs. UoI vide order dated 11 th December, 2018."
26. From the above provision, it is clear that EC was required to be issued in the name of individual Project Proponent but in the case at Page 21 of 24 hand, the EC has been issued in the name of District Mining Officer, Office of District Collector, Nagpur which is evident from the perusal of the EC dated 11.05.2022 in respect of project Saholi A Sand Mine (M L Area 2.50 ha) on Kanhan River at Survey No 15,16,17,18,19 Village Saholi A, Taluka Parseoni, District Nagpur which is annexed at page 1226 of the paper book. Therefore, there is clear violation in issuing the EC on the part of the SEIAA in favour of the said Officer. Hence, the EC deserves to be quashed.
27. It is also to be pointed out here that the policy adopted by the Government of Maharashtra vide Revised Policy in respect of Gravel/ Sand extraction issued on 28th January, 2022 which is annexed at page 393 to 567 of the paper book from which at page 424 to 425, following relevant part is extracted here-in below:-
"Environmental Permission for mining of Gravel / Sand for river bank:-
(a) In accordance with the directions given from time under the provisions made in the Notification issue by the Ministry of Environment, Forests and Climate Change, prior to the excavation of Miner Mineral, necessary Environmental Permission needs to be acquired in advance without which mining become illegal. For said purpose necessary action has to be taken and permission as necessary needs to be invariably procured prior to the commencement of mining.
(b) After the auction of the Sand Blocks in the District has been held, if the Sand Block has been approved in favour of the successful bidders, then a Letter of Interest (LoI) has to be issued to the successful bidder. Thereafter, on the basis of this LoI, it will become the responsibility of the successful bidder to procure necessary Environmental Permission."
28. It is apparent from the above that as per the policy of State Government in Maharashtra, after successful bidding, the bidder has to procure the environmental clearance and not the Government official on behalf of the State. In the case in hand, we see from the Page 22 of 24 perusal of the EC cited above that there is violation in this regard, hence EC deserves to be quashed on this count as well.
29. On the basis of above, we declare that the EC cited above stands quashed.
30. We find from the record that only one sand block was in the name of M/s. Ashtha Associates and only one lease regarding the sand mining was issued by the District Collector, Nagpur in the name of M/s. Ashtha Associates, which we find defective on account of in-
appropriate EC as the same is not found to be in his name rather the same is found to be in the name of District Mining Officer, it will be treated that he excavated the sand without any valid EC. Therefore, the total amount for which the sand has been excavated by him i.e. 2800 brass shall be recoverable from him.
31. We further direct the State Pollution Control Board to calculate the loss caused to the environment on account of this illegal excavation of sand by M/s. Ashtha Associates within a period of 02 (two) months after giving opportunity of hearing and the same shall be recovered from the Project Proponent and the amount so realised, shall be used for the purposes of District Environmental improvement.
32. Since the tendering notice which has been prayed to be quashed entails 10 mining leases of different blocks in Kanhan River out of which only one was finally allotted and not others, the said notice stands infructuous because of lapse of time, hence no order is required to be passed by us in regard to those tenders.
Page 23 of 2433. Accordingly, the Original Application No. 30/2022(WZ) stands disposed of.
34. I.A. No. 54/2022(WZ) also stands disposed of accordingly.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM October 19, 2022 Original Application No. 30/2022(WZ) I.A. No. 54/2022(WZ) P.kr Page 24 of 24