National Green Tribunal
Aravalli Bachao Citizens Movement vs Union Of India on 10 October, 2022
Item No.08 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
(By Video Conferencing)
Original Application No.362/2022
Aravalli Bachao Citizens Movement Applicant
Versus
Union of India & Ors. Respondents
Date of hearing: 10.10.2022
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant : Mr. Rahul Choudhary, Advocate.
Respondent: Mr. Rahul Khurana, Advocate for respondent
no.5.
Mr. Vikrant Pachnanda and Mr. Mukul Katyal for
CPCB.
Application has been filed under sections 14 and 15 of the National
Green Tribunal Act, 2010.
ORDER
1. The applicant, a non-partisan group of citizens from the National Capital Region and across India, has filed the present application under Sections14 and 15 of the National Green Tribunal Act, 2010 for issuance of directions to respondents no. 2 to 6 to take steps to stop illegal stone and sand mining, undertake restoration activities, take strict action against defaulting officials and constitute an independent Aravalli Protection Authority for protection of the entire Aravalli range from further degradation.
2. The applicant has submitted that the Aravalli serve as a natural barrier between the Thar Desert and the Northern part of the country thereby reducing chances of desertification. The green forest cover helps in regulating temperatures and maintaining rainfall patterns in and around the Aravallis. Destruction of the Aravallis will lead to decreased forest cover, increase in pollution level, temperatures and climate events in North India including the O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.
-2-National Capital Region of Delhi. With the environmental degradation of the Aravalli, the water security of Northern India will be threatened and there will be an increase in human-animal conflict. Hon'ble Supreme Court had vide order dated 8.05.2009 passed in I.A No. 1967 in I.A No. 1785 in Writ Petition (C) No. 4677 of 1985 titled as M.C. Mehta Vs. Union of India reported as (2009) 6 SCC 142 prohibited all mining operations in Aravalli Hill Range falling in Faridabad, Gurugram and Nuh districts (Mewat) in the State of Haryana within the area of approximately 480 sq. kilometers.
3. The applicant has further submitted that despite prohibition of mining in the area, illegal mining is taking place in the area. The members of the applicant undertook field visits to the illegal mining sites in the months of March-April, 2021, June- July, 2021 and November 2021 to March 2022. During the site visits, it was clearly found that the illegal mining is happening in 16 locations in contravention of above-mentioned judicial verdicts and environmental laws. In many locations, substantial portions of the hills have been mined and taken away and, in some instances, completely razed to the ground. The members of the applicant took photographs and made videos of the ongoing illegal mining and destruction caused to the Arvallis as a result thereof. Along with these, they have also taken GPS coordinates of the same locations. With the use of GIS technology, they have also prepared the Satellite images and toposheets of the areas where illegal mining is being done. The Satellite images and toposheets have also confirmed the ongoing illegal mining. The applicant made complaints dated 15.04.2021, 20.4.2021 and 31.05.2021 about illegal mining in 4 locations. The applicant also sent representation dated 07.03.2022 regarding illegal mining in 11 locations. However neither any response has been received nor any action has been taken to stop illegal mining till date.
O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.
-3-
4. Vide order dated 23.05.2022, this Tribunal constituted a Joint Committee comprising of the MOEF & CC, CPCB, State PCB, Principal Chief Conservator of Forest (HoFF), Director, Mining & Geology, Director General of Police and Commissioner, Gurugram Division, Government of Haryana and directed the same to submit factual and action taken report within three months and notices were also ordered to be issued to respondents.
5. As per office report notices have been duly served on respondents. The applicant has also filed affidavit as to due service of notices on the respondents.
6. In compliance of order dated 23.05.2022, Mrs. Vasvi Tyagi, Chief Conservator of Forests (South Circle), Gurugram has filed the Joint Committee Report vide letter dated 07.10.2022 through email dated 07.10.2022. The relevant part of the report is reproduced as under:-
"Report of the Joint Committee in the matter of O.A No. 362/2022 titles Aravali Bachao Citizens Movement Vs. Union of India and Ors.
X X X X X X
3. In compliance of Hon'ble NGT's order, a Joint Committee of the following officers was constituted vide order dated 07.07.2022 of the Member Secretary, Haryana State Pollution Control Board.
S.N. Name of officer Department Designation in the Committee 1 Vasvi Tyagi, IFS, Forest Department, Chairperson Haryana Chief Conservator Forests 2 Kulwinder Singh, IPS. Joint Police Department, Member CP, Gurugram Haryana 3 V.K. Meena, IAS ADC, Gurugram Member 4 KK Garg, Scientist 'C' MOEF&CC Member 5 Sunil, Director CPCB, RD, Chandigarh Member 6 Anil Kumar, Mining Mines and Geology Member Officer, Gurugram Department, Haryana 7 Balram, Mining Officer, Mines and Geology Member Faridabad Department, Haryana 8 Kuldeep Singh, Regional HSPCB Member Convener Officer, Gurugram North O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.-4-
4. The committee held its first meeting on dated 11.07.2022. The committee deliberated on the issue preparation official report factual report to be submitted before the Hon'ble National Green Tribunal. In the deliberation of the committee it was decided that there are number of statutes which regulate the area covered by Aravalis which are enforced by different departments. Therefore, the concerned departments viz. Forest, Mining & Geology, Police and State Pollution Control Board shall submit reports on the action taken by their respective department on the mining incidence at the 16 locations mentioned in the Original Application.
5. It is worthwhile to mention that mining matters pertaining to Aravali Hill range in Haryana are pending consideration before Hon'ble Supreme Court of India. In this regard Hon'ble Supreme Court has passed various prohibitory orders from time to time. Copy of relevant orders that is order dated 06.05.2002, order dated 16.12.2002 and order dated 08.05.2009 are placed at Annexure VI.
6. At some locations extraction of ordinary clay was also observed by the Committee. Extraction of ordinary clay is regulated and Short Term Permits (STP) are issued by Mining department in accordance with guidelines issued by the Director, Mines and Geology vide memo no. GLG/HY/Ord. Clay/STP dated 09.01.2007 (Annexure VII). Extraction of clay without valid STP is illegal.
7. The joint committee also undertook field visits of the sites on 15.07.2022 and 06.08.2022. All 16 locations were visited by the joint committee to assess the extent of illegal mining and consequent environment degradation and loss to the State exchequer. Another meeting of the committee was held on 07.09.2022 for compilation of report.
8. Status Report with respect to site inspection by the joint committee of 16 locations is as under:-
The joint committee visited all the sites and the observation of the committee are as under-
Sr. Location GPS Date of Site Applicable Whether Signs of Quantum Cost to Remarks
No of Site Coordinates Visit Prohibitory Mining done Mining on the of excheque
Orders before or date of field mining* r*
after visit
prohibition
orders
1 Pandala 28.332487, 15.07.2022 Order dated After No fresh signs 756 MT 45,300 Illegal
Hills near 76.984989 16.12.2002 prohibition found of the (Royalty Mining in
Gairatpur orders mining. @ Rs. violation of
Bas 60/- Per Prohibitory
Village MT) order
(in front
of Rathee
Cafe)
O. A. No. 362/2022 Aravalli Bachao Citizens Movement
Vs. Union of India & Ors.
-5-
Sr. Location GPS Date of Site Applicable Whether Signs of Quantum Cost to Remarks
No of Site Coordinates Visit Prohibitory Mining done Mining on the of excheque
Orders before or date of field mining* r*
after visit
prohibition
orders
2 Pandala 28.404198, 15.07.2022 Order dated After Some tractor 864 MT 51,840 Illegal
Hills near 77.173108 16.12.2002 prohibition tracks were (Royalty Mining in
Gairatpur orders noticed @ Rs. violation of
Bas 60/- per Prohibitory
Village MT) order
(behind
Rathee
Café &
Jungle
Cafe)
3 Aravalli 28.309623, 15.07.2022 Order dated Before and Some tractor 289 MT 28,900 /- Illegal
area near 77.000607 16.12.2002 after tracks were (royalty Mining in
Tikli prohibition noticed @ 100/- violation of
Village orders Per MT Prohibitory
(Ansal order
Retreat
area)
4 Aravalli 28.297888, 15.07.2022 Order dated Before and Signs of 871 MT 43,550/- Illegal
near 77.00233 16.12.2002 after excavation (royalty Mining in
Jalalpur prohibition with heavy @ 50/- violation of
Sohna 28.300366, orders machinery Per MT Prohibitory
Village 77.002921 and tractor order
close to tracks were
ITC noticed
Grand
Bharat
hotel
(location
1& 2 in
the same
area )
5 Aravalli 28.326132, 15.07.2022 No Stone mining Yes 1980 MT 6,930 Extraction
near Kota 76.973253 Prohibitory lease was (royalty of ordinary
Khandew Orders as is operational in @ 3.50/- clay
la Village applicable on village Kota Per MT without
near extraction of Khandewala required
Manesar clay. in period necessary
Police before permission
Lines prohibitory (STP) from
Complex orders dated the Mining
16.12.2002 Departmen
t
Extraction of
ordinary clay
without
required
necessary
permission
(STP) from
the Mining
Department
6 Sand 28.33309, 15.07.2022 No No illegal No --- -- A STP was
mining 76.974744 Prohibitory Mining granted
location- Orders as vide Permit
1 near mention in No. 3844
Manesar para is dt.
Police applicable 01.02.2022
Lines to
Complex 15.03.2022
in Private
Land of
village Bar
Gujjar
Tehsil
Manesar,
GGN after
deposit of
the royalty
of Rs.
29150/-.
O. A. No. 362/2022 Aravalli Bachao Citizens Movement
Vs. Union of India & Ors.
-6-
Sr. Location GPS Date of Site Applicable Whether Signs of Quantum Cost to Remarks
No of Site Coordinates Visit Prohibitory Mining done Mining on the of excheque
Orders before or date of field mining* r*
after visit
prohibition
orders
7 Sand 28.326116, 15.07.2022 No After There were --- -- Ord. earth
mining 76.973234 Prohibitory prohibition some signs of has been
location- Orders as orders lifting of extracted
2 near mention in sand/ earth without
Manesar para 5 is necessary
Police applicable permission
Lines (STP) from
Complex the Mining
Departmen
t.
8 Sand 28.350935, 15.07.2022 No No illegal No --- ----- A STP was
mining 76.994209 Prohibitory mining found granted
location- Orders as vide Permit
3 ahead mention in No. 3957
of para 5 is dt.
Manesar applicable 17.03.2022
Police to
Lines 15.04.2022
Complex in Private
on the Land of
same village Bar
side of Gujjar
Tauru Tehsil
road Manesar,
GGN after
deposit of
the royalty
of Rs.
15765/-.
9 Aravalli 28.218806, 06.08.2022 Order dated After No 1017 MT Rs.50,85 Illegal
hills near 76.995616 16.12.2002 prohibition 0/- Mining in
Tauru orders (royalty violation of
Police @Rs 50/- Prohibitory
Station per MT) order
Tauru
block
10 Aravalli 28.303038, 06.08.2022 No Stone mining -- 15750 55,125 Extraction
hills near 76.912626 Prohibitory lease was MT (Ord. Royalty of ordinary
Bissar Orders as operational in Earth) @ Rs. clay
Akbarpur mention in village Bissar 3.50/- without
Vill. para 5 is Akbarpur in required
Tauru applicable period before necessary
block prohibitory permission
orders dated (STP) from
16.12.2002 the Mining
Departmen
Extraction of t
ordinary clay
without
required
necessary
permission
(STP) from
the Mining
Department
11 Aravalli 28.119195, 06.08.2022 Order dated Before and Yes 3618 MT 1,80,900/ Illegal
hills near 76.990408 16.12.2002 after (stone) - royalty Mining in
Palla prohibition @ violation of
Village in orders Rs.50/- Prohibitory
Nuh per MT order
Block Mining lease
was
(a) illegal operational in
stone village Palla
mining in period
location before
prohibitory
order
11 (b) illegal 28.119815, 06.08.2022 No Extraction of Yes 13500 31,500 Ord. earth
(b) sand 76.978168 Prohibitory ordinary clay MT royalty @ has been
mining Orders as without (Ord. Rs. 3.50/- extracted
location mention in required earth) per MT without
para 5 is necessary necessary
applicable permission permission
(STP) from (STP) from
the Mining the Mining
Department Departmen
t
O. A. No. 362/2022 Aravalli Bachao Citizens Movement
Vs. Union of India & Ors.
-7-
Sr. Location GPS Date of Site Applicable Whether Signs of Quantum Cost to Remarks
No of Site Coordinates Visit Prohibitory Mining done Mining on the of excheque
Orders before or date of field mining* r*
after visit
prohibition
orders
12 Aravalli 28.05214, 06.08.2022 Order dated After No 63 MT 3155/- Sand/ Ord.
hills near 76.9608 16.12.2002 prohibition royalty @ earth has
Meoli orders Rs. 50/- been lifted
village in per MT without
Nuh necessary
block permission
(STP) from
the Mining
Departmen
t.
It is case of
extension
of field.
Field has
been
extended
by removal
of ord.
clay/ malba
13 Aravalli 27.774321, 06.08.2022 Order dated Before and No 3240 MT 162500/- Illegal
hills near 77.013061 16.12.2002 after stone royalty @ Mining in
Hirwari prohibition Rs. 50/- violation of
Bamathe orders per MT Prohibitory
ri village order
in
Ferozepu
r Jhirka
block
14 Aravalli 27.7733, 06.08.2022 Order dated Before and No 100 m3 Rs 5000/- Illegal
hills near 77.012508 16.12.2002 after stone (royalty Mining in
Bhagola prohibition @ Rs. violation of
village in orders 50/- per Prohibitory
Ferozepu MT) order
r Jhirka
block
15 Aravalli 28.447075, 06.08.2022 Order dated The Area was No --- Nil No Illegal
near 77.25006389 06.05.2002 under mining Mining in
Bharadw lease since violation of
aj lake 16.01.1984 to Prohibitory
area 06.05.2002 order
period before
prohibitory
orders
Currently
there is no
mining
activity in the
area.
16 Aravalli 28.32493, 06.08.2022 Order dated This area was No -- Nil Mining
near Kot 77.17415278 08.05.2009 under mining lease was
village in lease under operational
Dhauj 06.02.2002 to in this area
area 05.02.2009 between
period before 06.02.2002
prohibitory to
orders. 05.02.2009,
Currently
there is no
mining
activity in the
area.
"
The Committee's observation is that as per the list provided by the applicant there are instances mining activity despite prohibition orders against any mining related activity as directed by Hon'ble Supreme Court. The Committee has also observed that at some sites trenches were formed due to excavating the materials and at some sites shaving of bushes and plantation was also noticed. However, O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.-8-
the magnitude of environment loss for such degradation could not be assessed due to non-existence of standard formulae or practice. The drone images of all sites visited are placed at Annexure lfor reference. The images display the extent of excavation done at the sites. Satellite lmages of the sites at different points in time as accessed from "Google Earth" are placed at Annexure ll for reference. These images display the progression/extent of mining activities at these sites with time. Mining, Forest and Police Departments have submitted that they have been vigilant and have taken appropriate action against the violators as per the rules. The Action Taken Report Of Mining department on the 16 locations is placed at Annexure lll. At two locations permit for lifting ordinary earth has been issued by the concerned authority. At 4 locations, ordinary earth has been lifted without necessary permission from the concerned authority. The action taken report of police department on the aforesaid location is placed at Annexure lV.
The Action Taken report of Forest department is placed at Annexure v."
7. Reports on behalf of the DGP, Haryana and the Director, Mines and Geology, Haryana have been filed vide email dated 07.10.2022 and 8.10.2022 respectively and the information furnished therein may be tabulated as under:-
The aspects Report submitted on behalf of Report regarding which DGP, Haryana submitted on the report was behalf of required to be Director submitted Mining and Geology, Haryana How many That in total 542 complaints were That in total complaints were received on web portal or by post or 368 complaints received on web otherwise regarding illegal mining were received portal or by post or during last five years in on web portal or otherwise regarding Commissionrates of Gurugram, by post or illegal mining in the Faridabad and District Nuh. otherwise area during last 5 regarding illegal years; mining during last five years in the office of Mining Office, Gurugram, Faridabad and Nuh.
What action was That after taken on such compilation of O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors. -9- complaints, in how data received many cases FIRs from office of were registered, in Sr. Particulars Nos. Mining No. how many cases 1. Complaints received 542 Officer, challans (charge- 2. FIRs registered 471 Gurugram, sheets) under (a) Final 424 Faridabad and Section 173 (2) of the Reports Nuh, out of total (challans) Code of Criminal submitted in 368 complaints, Procedure, Competent 109 converted 1973/complaints Court (s) into FIRs and (b) Cases still 33 under Section 22 of under fine has been the Mines and investigation recovered in 48 Mineral (c) FIRs 07 cases, whereas, Cancelled (Development and (d) Cases/FIRs 07 no illegal mining Regulation) Act, found was found in 65 1957 were filed and untraced cases and in 3. Complaints filed as no 13 in how many cases illegal mining was found remaining cases complaints were to have taken place. though closed/no action 4 Complaints which are still 14 complaints were under enquiry. was taken; 5 Complaints sent back to 44 forwarded to the the Mining department as concerned police no action was required by stations the Police Department regarding illegal mining, but complaints could not be converted into FIR. In how many cases vehicles were That 350 vehicles were impounded That as regard impounded and in by the Police Department in number of how many cases the Commissionraes Faridabad, vehicles vehicles were Gurugram and District Nuh during impounded and confiscated or last five years out of which 327 confiscate or released after vehicles were released after released after payment of the receiving superdari orders from payment of the amount in concerned Ld. Courts and 23 amount in accordance with vehicles are still lying in the various accordance with ordersdated Police Stations as per latest orders dated 05.09.2018 and information. It is pertinent to 05.09.2018 and 26.02.2021 passed mention here that amount in 26.02.2021 by this Tribunal in accordance with orders dated passed by this O.A No. 44/2016 05.09.2018 and 26.02.2021 Tribunal in O.A titled as passed by Hon'ble National Green No. 44./2016 Mushtakeem v. Tribunal in O.A No. 44/2016 and titled as MoEF&CC& Ors, O.A No. 360/2015 is being Mushtakeem andO.A No. deposited with the Department of v/s MoEF&CC& 360/2015 titled as Mines and Geology, Haryana as Ors, and O.A No. National Green such complete details of vehicles 360/2015 titled Tribunal Bar impounded and amount deposited as National Association vs. for release of those vehicles can be Green Tribunal Virender Singh (State provided by said Department. Bar Association of vs. Virender Gujarat)respectively; Singh (State of Gujarat) it is In how many cases That, this particular issue does not submitted that proceedings for relate to Police Department from August, O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors. -10- recovery of penalty 2019 onwards and environmental total 2110 compensation were vehicles were initiated; and impounded, out of which 838 vehicles were released after recovery of Rs. 24,74,37,329/- [Rs. Twenty Four Crores Seventy Four Lakhs Thirty Seven Thousand Three Hundred Twenty Nine only] as environmental compensation as per orders of this Hon'ble Tribune passed in above said cases. It is worth stating here that the cases as above includes the cases where mineral laden vehicles coming from the adjoining state of Rajasthan without valid transit pass/ bill. Out of 2110 vehicles impounded, 881 number of vehicles got released on supredari after recovery of Rs. 11,54,10,000/- [Rs. Eleven Crores Fifty Lakhs Ten Thousand only] as fine for environmental compensation as well as penalty, royalty and price of mineral. These cases of superdari includes the O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors. -11- cases where applications were filed by the Mining officers for seeking orders of the Hon'ble Court/s to get the vehicle confiscated where owners were not coming forward to deposit the amount and number of vehicles were increasing beyond the capacity of space available. It may be added here that 391 number of vehicles are still lying impounded and would be dealt as per law. What steps were That, this particular issue does not taken for relate to Police Department environmental Nil restoration in the areas of illegal mining.
8. Copy of opinion given by the Public Prosecutor in one of the cases is also attached with the report submitted by the DGP, Haryana which reads as under
:-
"The case file has been perused. As per the record of case file as well as relevant Act, there is no dispute that an offence under- Sub- Section1 of Section 21 of the Act 1957 is cognizable as provided in Section 21(6) of the said Act, therefore in view of principles laid down by the Apex Court in case of Lalita Komori (Supra) , it is lawful for police to register the case and to investigate the same as per provisions of the Section 154 of Cr.P.C, If the act of the accused O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.-12-
constitutes exclusively an offence under the Act 1957, it goes without saying that the police officer on completing the investigation cannot lay a police report under Section 173 of The Code of Criminal Procedure, because Court cannot take cognizance in view of the bar contained in Section 22 of the Act. If the act of accused makes out a cognizable offence under Indian Penal Code as well as an offence under Section 21 of the MMDR Act 1957, the registration of FIR under both the enactments is not illegal and the police can further investigate into such cases and file a police report under Section 173 of The Code of Criminal Procedure confining to the offence under Indian Penal Code alone. So far as offence under Section 21 of the Act 1957 is concerned. It is for the authorized person to file a complaint after investigation before the magistrate concerned, upon which cognizance can be taken by the magistrate concerned, because Section 22 of the Act 1957 prohibits taking cognizance being taken except-upon a complaint in writing made by a person authorized either by the Central Govt. or the State Govt."
9. In State of NCT of Delhi v. Sanjay, (2014) 9 SCC 772, Hon'ble Supreme Court considered the question whether the provisions contained in Sections 21, 22 and other sections of Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) operate as bar against prosecution of a person who has been charged with allegation which constitutes offences under Section 379/114 and other provisions of the Indian Penal Code, 1860 (IPC). In other words, whether the provisions of Mines and Minerals Act explicitly or impliedly excludes the provisions of Indian Penal Code when the act of an accused is an offence both under the IPC and under the provisions of the MMDR Act. Since conflicting views had been taken by Gujarat High Court, Delhi High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court, Hon'ble Supreme Court proceeded to settle the question and on detailed analysis of the relevant statutory provisions and judicial precedents, Hon'ble Supreme Court observed as under:-
"66. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.-13-
and dishonestly committing theft of minerals including sand from the river bed.
67. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the eco-system of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels.
68. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code.
69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code.
O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.
-14-
70. From a close reading of the provisions of MMDR Act and the offence defined under Section 378, I.P.C., it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals from the river, which is the property of the State, out of State's possession without the consent, constitute an offence of theft.
71. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in section 190 (1)(d) of the Code of Criminal Procedure.
72. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-a-vis the Code of Criminal Procedure and the Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 Cr.P.C., on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMRD Act. Consequently the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled........"
O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.
-15-
10. The settled position of law which emerges there from is that in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in section 190 (1)(d) of the Code of Criminal Procedure. For the commission of offence under Section 378 Cr.P.C., on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act.
11. A comparative perusal of the reports submitted by the DGP, Haryana and the Director, Mines and Geology, Haryana shows that there is huge difference in total number of complaints received and FIRs registered on the basis thereof during the last five years. As per report submitted by the DGP, Haryana, 542 complaints were received on web portal or by post or otherwise regarding illegal mining during last five years in Commissionrates of Gurugram, Faridabad and District Nuh on which 471 FIRs were registered whereas as per report submitted by the Director, Mines and Geology, Haryana, 368 complaints were received on web portal or by post or otherwise regarding illegal mining during last five years in the Mining Office, Gurugram, Faridabad and Nuh on which 109 FIRs were registered. Whether the above quoted figures are mutually exclusive or inclusive is not clear.
12. In the report of the DGP Haryana, 44 complaints are mentioned to have been sent back by the police to the Mining Department as complaints were required to be filed by the Mining Officer but in the report submitted by the Director, Mining and Geology, there is no reference to complaints received from the Police for filing of complaints by the Mining Officer. In fact, there is no mention at all as to in how many cases complaints under Section 22 of the O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.
-16-MMDR Act have been filed and in how many cases the matter of filing of such complaints is under consideration.
13. In the report filed by the Director, Mining and Geology it has been mentioned that 146 complaints were forwarded to the concerned police stations regarding illegal mining which could not be converted into FIRs but the reasons as to why FIRs were not lodged on the above said complaints are not adverted to/mentioned.
14. In the report filed by the Director, Mining and Geology it has been mentioned that fine has been recovered in 48 cases but requisite details regarding amount of fine recovered have not been mentioned.
15. Neither the Police nor the Mining department seems to have given any information to HSPCB and no proceedings for imposition of environmental compensation and reclamation/rehabilitation of illegally mined land seem to have been taken. When environmental compensation is payable by mining lease holders for any illegal mining beyond/in violation of terms of lease and proceedings are taken for imposition of environmental compensation on them, how the aspects of imposition of environmental compensation on persons indulging in illegal mining and reclamation/rehabilitation of illegally mined sites can be ignored.
16. In view of the above referred deficiencies, we are constrained to direct the DGP, Haryana and Director, Mining and Geology to file detailed reports giving information by way of statements in the tabular form as to the aspects mentioned below:-
(a) Statement regarding all complaints received by the Police (i) date of receipt of complaint, (ii) name of the complainant, (iii) particulars of FIRs registered, (iv) final report filed and (v) order passed by the Court;
O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.
-17-
(b) Statement regarding complaints received by the Police from the Mining Department (i) date of receipt of complaint, (ii) action taken on complaint by the Police and (iii) information given to the Mining Department.
(c) Statement regarding complaints received by the Mining Department from the Police (i) date of receipt of complaint, (ii) action taken on complaint by the Mining Department and (iii) information given to the Police.
17. The PCCF (HoFF), Government of Haryana and Member Secretary, State PCB are also directed to file reports giving information regarding complaints in respect of illegal mining received by them and action taken on the same by way of statements in tabular form with reference to the aspects of (i) date of receipt of complaint, (ii) action taken on the complaint, and (iii) information given to the Police/Mining Department.
18. Reports be filed by the DGP, Haryana, Director, Mining and Geology, Government of Haryana, PCCF (HoFF), Government of Haryana and Member Secretary, State PCB within four weeks by e-mail at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
19. This Tribunal, vide order dated 23.05.202, had directed the Joint Committee, constituted vide order dated 23.05.2022, to undertake site visits including visits to all 16 locations for ascertaining whether any illegal mining has been done in the area; whether such mining has been done before or after prohibition orders, what is the quantum of such mining magnitude of the loss caused to the environment as well as the state exchequer. The Joint Committee undertook the field visits to all the 16 sites listed in the original application and has prepared the report accordingly. In view of the number of complaints received by the Police and Mining Department regarding illegal O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.
-18-mining, we find that the same is spread over to the wider area and on diverse locations which aspect needs to be further explored/looked into by the Joint Committee. Besides, the aspects of closure of the mining pits and reclamation/rehabilitation of the land involved are also required to be considered by the Joint Committee. Therefore, the Joint Committee is directed to look into these aspects, verify the factual position on the basis of the complaints received, take/recommend taking of appropriate remedial action and submit its report within four weeks by e-mail at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
20. In the report of the Joint Committee, it has also been mentioned that permits were issued by the concerned authority for lifting of ordinary earth from two locations but the procedure adopted for issuance of said permits by the concerned authority and the reasons justifying the same have not been mentioned. It is not disputed that under the orders of Hon'ble Supreme Court there is complete prohibition of mining of major minerals in the Aravalli Hills area. There is no reference to any order of Hon'ble Supreme Court permitting mining of minor minerals in the area. We are of the view that excavation of ordinary earth also amounts to mining requiring environmental clearance and no permits for lifting of ordinary earth can be issued without such environmental clearance and Mining Plan. It has also to be borne in mind that such orders granting special temporary permits may be misused by unscrupulous persons as cover to camouflaged illegal mining in the area and remedial action based on precautionary principle is required to be taken.
21. We also find from the reports received that there is lack of proper communication and effective coordination between the Administrative agencies- the Police, the Mining Department, the Forest Department and the Revenue Department, which are required to deal with the complaints of illegal O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.
-19-mining, and also with the Statutory Authorities-CPCB and HSPCB. Lack of such communication and coordination by implication benefits/facilitates the persons indulging in illegal mining who inconsequence thereof escape payment of royalty/penalty and environmental compensation as well as prosecution for illegal mining in substantial number of cases. In the prevailing scenario, there appears to be an urgent need for constitution of Special Cell having Officers from the Police, Forest, Revenue and Mining besides Industries, Panchayti Raj/Rural Development, Water Resources, Agriculture and Animal Husbandry Departments as may be considered appropriate for ensuring coordination, evolving policy, planning and implementation of programmes for the protection and management of Aravalli Hills. The Government of Haryana may also consider the desirability of setting up an autonomous statutory authority "Aravallis Environment Management & Sustainable Development" for integrated environment management and sustainable development of the Aravalli range in the State of Haryana. The Chief Secretary, Government of Haryana may accordingly take requisite steps for consideration of the matter by Government of Haryana and file an affidavit in this regard within four weeks by e-mail at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
22. The applicant may also file objections if any to the report of the Joint Committee, if so desired, within four weeks by e-mail at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
23. List the matter for further consideration on 29.11.2022.
24. In view of precautionary principle and subject to orders of Hon'ble Supreme Court, it is directed that no STP be issued for mining of ordinary O. A. No. 362/2022 Aravalli Bachao Citizens Movement Vs. Union of India & Ors.
-20-earth/clay in the Aravalli Hills in Faridabad, Gurugram and Nuh till further orders to the contrary.
25. The Deputy Commissioners, Faridabad, Gurugram and Mewat, Commissioners of Police Faridabad and Gurugram and Superintendent of Police, Mewat are directed to take requisite steps in accordance with order dated 26.02.2021 passed by this Tribunal in O.A No. 360/2015 titled as NGT Bar Association Vs. Virender Singh for preventing illegal mining.
26. It may be mentioned here that non-compliance with the directions issued by this Tribunal is an offence punishable under section 26 of the National Green Tribunal Act, 2010 and any disobedience of directions of law regarding investigation of cognizable offences by any Police Officer/Official is also an offence punishable under Section 166 A of the Indian Penal Code, 1860 and action against the defaulting officers/officials be taken accordingly.
27. A copy of this order, along with a copy of the complaint, be forwarded to the Chief Secretary, Government of Haryana, MoEF & CC, CPCB, State PCB, Principal Chief Conservator of Forest (HoFF), Government of Haryana, Director, Mining and Geology, Director General of Police and Commissioner, Gurugram Division, Government of Haryana by email for compliance.
Arun Kumar Tyagi, JM Dr.Afroz Ahmad, EM October 10, 2022 AG