National Green Tribunal
Udaya Suvarna vs The Deputy Commissioner / Chairman ... on 18 May, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 252 of 2017(SZ)
IN THE MATTER OF:
Udaya Suvarna
S/o Late Mahabala Bangera,
Badhragiri,
Balkady Village, Brahmavar Post,
Udupi Taluk and Distirct,
Karnataka -576213 and Anr.
...Applicants
WITH
The Deputy Commissioner/Chairman
Udupi District Sand Monitoring Committee,
Office of the Deputy Commissioner,
"Rajathadri", Manipal,
Udupi - 576104 and Ors.
...Respondents
For Applicant(s) Mr. Ranjan Shetty
For Respondent(s): Mr. Darpan K.M. along with
Mr. Rajat Jonathan Shaw for R1, R2 & R4.
Mr. Vasanth H.K. for R3 & R6.
Mr. G.M. Syed Nurullah Sheriff for R5.
Mr. B. Thilaknarayanan for R7.
Judgment Pronounced on: 18th May 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Page 1 of 57
ORDER
Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, J.M. Sd/-
Dr. Satyagopal Korlapati, E.M. O.A. No. 252 of 2017 (SZ) 18th May, 2022. SE.
Page 2 of 57 Item No.1 BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI (Through Video Conference) Original Application No. 252 of 2017(SZ) IN THE MATTER OF:
1. Udaya Suvarna S/o Late Mahabala Bangera, Badhragiri, Balkady Village, Brahmavar Post, Udupi Taluk and Distirct, Karnataka -576213
2. Dinesh Kunder S/o Naranappa Thingalaya, Mill Road, Kallianpura, Moodu Thonce Village Post Kallianpura - 576114.
...Applicants WITH
1. The Deputy Commissioner/Chairman Udupi District Sand Monitoring Committee, Office of the Deputy Commissioner, "Rajathadri", Manipal, Udupi - 576104
2. The Member Secretary Udupi District Sand Monitoring Committee, And Senior Geologist, Department of Mines and Geology, 1st Floor, A, Block, "Rajathadri", Manipal, Udupi - 576104
3. The Member Secretary State Level Environment Impact Assessment Authority - Karnataka 7th Floor, 4th Gate, M.S. Building, Bangalore-560001
4. The Chairman Karnataka State Coastal Zone Management Authority 4th Floor, M.S. Building, Bangalore Page 3 of 57
5. The Secretary Ministry of Environment, Forests and Climate Change, Indira Paryavaran Bhavan, Jor Bagh Road, Aliganj, New Delhi - 110003.
6. Head of the Department Department of Applied Mechanics and Hydraulics, National Institute of Technology, Suratkal, Srinivasanagara, Mangalore, Karnataka - 575025
7. Udupi Jilla Holge Dhoni Karmikara Sangha (R.) Ramgopal Arcade, LVT Temple, Opp. PutturSanthekatte, Udupi District - 576 105 Represented by Lokesh Mendon, President
8. Karnataka Coastal District Traditional Sand Lifter's Association, 1st Floor, Mahakali Encalve, AdiUdupi, Udupi District, Karnataka-579210.
Represented by Dinesh Suvarna
Gen Secretary
...Respondents
For Applicant(s) Mr. Ranjan Shetty
For Respondent(s): Mr. Darpan K.M. along with
Mr. Rajat Jonathan Shaw for R1, R2 & R4.
Mr. Vasanth H.K. for R3 & R6.
Mr. G.M. Syed Nurullah Sheriff for R5.
Mr. B. Thilaknarayanan for R7.
Judgment Reserved on: 30th March 2022.
Judgment Pronounced on: 18th May 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No Page 4 of 57 JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The grievance in this application is that sand mining is being done in Coastal Regulatory Zone in the guise of removing sand bar. On an earlier occasion, when such things were found in Udupi District, another application was filed as O.A. No. 111/2016 and this Tribunal by order dated 27.02.2017 set aside all the 74 permits issued and also directed the seven member committee to regulate issuance of licence in respect of removal of sand bar in coastal regulator zone to avoid exploitation of the same by miscreants. Further in a similar issue, the Principal Bench of National Green Tribunal New Delhi in O.A. No. 171 of 2013 also issued certain directions by order dated 05.08.2013 as to how such things will have to be regulated. But in spite of the same, the authorities were permitting removal of sand in the guise of removal of sand bar without getting necessary clearances and in the Coastal Regulation Zone where sand mining is prohibited.
2. It is mentioned in the application that as per clause 3(iv) of the CRZ Notification 2011, land reclamation bunding or disturbing the natural course of river or sea and mining Sand are prohibited activities. Certain activities can be carried out if it is a measure to prevent formation of sand bars, for installing tidal regulators, for laying storm water drains or for structures for prevention of salinity ingress and fresh water recharge based on study carried out by any agency to be specified by Ministry of Environment, Forest and Climate Change.
3. The Karnataka State Government made a request to the Ministry of Environment and Forest, New Delhi for relaxation to sand Page 5 of 57 mining in CRZ area vide their letter No.FEE 31 CRZ 2010 dated 28.03.2011 inter-alia stating that sand deposits in the rivers are causing obstruction to navigation and fishing boats and also river is silted up and resulting in inundation of neighbouring agricultural land. It was also mentioned in the letter that sand extraction will give employment to local people and sand will be supplied for local consumption. Copy of the letter was produced as Annexure-2 along with the application.
4. In furtherance to the CRZ Notification dated 06.01.2011, Ministry of Environment and Forest, New Delhi, vide Office Memorandum dated 24.02.2011, 09.06.2011 and 08.11.2011, issued detailed instructions/conditions to manage the sand bars in the CRZ area of rivers and estuaries. The important conditions imposed by the Ministry of managing/removal of sand bars through the said Memorandum are as follows:
(i) a. Sand bars which pose danger to fishing boats and vessels to be identified by the concerned departments of the state.
b. State Government in consultation with state agencies may formulate a policy for management of sand bars including its removal.
c. The proposal shall be examined by any of the six institutions identified in OM date 24.02.2011 of MOEF (NITK, Surathkal).
d. Based on the suggestions o the above said institution, recommendations from State / UT, Coastal Zone Management Authority (KSCZMA) to be obtained. e. Based on the recommendations of Coastal Zone Management Authority (KSCZMA) the Environment Department of the State / UT shall take final decision on the proposal with valid justifications.
(ii) a. Only traditional communities to remove the sand from sandbars. b. Sand to be collected in non - mechanised dinghies or small boats using baskets / buckets by manual method.
c. District Collector shall chair a seven member committee consisting of concerned officials as also at least one representative each from scientific or technical institute, the local communities like fisher folk and the local civil society. Page 6 of 57 d. Based on the recommendations of above said seven member committee, District Collector may permit removal of sand in specified time, area and quantity subject to the condition that registration of local community persons permitted to remove the sand manually.
e. Environmental officer of the district to monitor the removal of sand, Sand mining permits should not be given in eco-sensitive zones, fish migratory and breeding grounds. Permit shall be given taking into consideration the local circumstances and ecological settings. Permit renewal on yearly basis. These office Memorandums were produced as Annexures 3 to 5.
5. In the last decade with the active involvement of local politicians, district administration and sand businessmen, large scale sand mining is taking place in the CRZ Rivers of Udupi District. Villagers have made number of complaints to Village Panchayat, Tahsildar, Local Police Station, Deputy Commissioner, Superintendent of Police, Ministers in charge of the Districts and also to the Chief Minister of Karnataka but no action has been taken. These aspects have been reflected in the media both electronic and print media. This issue was even debated in Karnataka Assembly but no action has been taken in this regard.
6. The applicant also enumerated the illegal sand mining in the name of sand bar removal as follows:
a. It is estimated that over 200 loads of sand being extracted and transported from a village per day from CRZ Rivers. Thus due to constant movement of Trucks inside the village pertaining to contractors the atmosphere of the village is polluted and roads are damaged beyond repair.
b. The migrant workers numbering over 200 in a village connected to any CRZ River are housed in temporary sheds / tents without any facility of toilet / bathrooms are using the fields for nature calls, creating unhygienic environment. c. Most of the migrant workers under the influence of liquor resort to petty quarrels during evening / night disturbing the peace and also security of women and children in the village.
d. Sand has been extracted to such an extent that the depth of the flora and funna of the river. Natural habitats of the river such as shellfish, crabs etc. are totally not available in the rivers. It has become difficult to judge the depth of the river because of the sand mining, so the people are scared and find it risky to enter the waters to collect shells and fish and for all other requirement. Page 7 of 57 e. On account of excessive sand mining, fish breeding and also nesting of birds in the area has totally stopped.
f. On account of sand mining the natural filtration of salt water has stopped as such village wells and ponds have now become salty and are unsafe to use for irrigation as well as for consumption.
g. There is systematic erosion taking place in the banks of the river due to increase in depth of the river and removal of sand protection to the Banks of the river.
7. The project proponent, for sand bar removal being the Deputy Commissioner, was supposed to obtain environmental clearance as head of the District. The object of the proposal is to remove sand bars which are causing obstruction to fishing boat navigation and he is required to entrust this work of sand removal by hand in buckets/baskets using small non mechanised dinghies/Boats to local traditional community people, after duly identifying the eligibility in terms of MoEF & CC notification. When the registered traditional community persons remove the sand from sand bar, to facilitate smooth navigation, they will not be paid in cash for their labour. Alternately, they were permitted to sell their mined sand in the local market after paying the nominal royalty to the State to the extent of Rs.60 per metric tonne. If it is seen from any angle it is clear that it is not a business proposal, it is only a state sponsored public utility activity providing employment to local communities as well as facilitating smooth navigation of fishing boats.
8. But what was happening in Coastal Udupi District of Karnataka is different. The District Administration in collusion with sand miners are taking advantage of clause no. 3(iv)(d) of CRZ notification dated 06.01.2011 and permitting extraction of sand from CRZ Rivers in the guise of sand bar removal. The sand miners remit a paltry amount of Rs.60/- per metric tonne and sell the extracted sand at an exorbitant Page 8 of 57 amount in cities, specially outside the State to the total exclusion of local coastal communities. The non-existent sand bars are identified by few officials of District Administration on paper, which is technically perused by Prof. of NITK Suratkal and ECs are granted on these false reports by State Environment Impact Assessment Authority. Subsequently permits are granted to sand businessmen and not to the people of local community who themselves extract sand from sand bar using heavy machineries. Further important guidelines of the authorities such as monsoon period, registration of persons physically involved in sand removal and importantly marking of sand bar location on the river banks are violated while issuing the permits.
9. Once the sand removal permits were granted, the sand businessmen engage the services of migrant workers even from other States and extract sand from CRZ rivers at whichever location/whatever quantity, convenient to them including under the bridge using heavy mechanized boats and JCBs.
10. On an earlier occasion in OA 111/2016, this Tribunal has quashed the permits granted for such activity as the Tribunal found that it was not intended for sand removal but for mining purpose. The Tribunal also came to the conclusion after considering the request made by the Karnataka Government dated 28.03.2011 which was produced as Annexure 2 along with the application that the intention was very clear that they wanted to amend the CRZ notification which was not intended for protection of the livelihood of fishermen communities or for the smooth navigation but for removal of the sand. It was also mentioned in the letter that several representations have been received by the State Government to reconsider the prohibition of removal of sand mining in Page 9 of 57 CRZ area of the rivers as by the prohibition, mining of sea shell and sand, have come to a standstill.
11. The Tribunal came to the conclusion that sand mining can never be permitted in CRZ area of the rivers flowing in Udipi District. While disposing the matter, this Tribunal, in OA 111 of 2016 passed the following order:
"Therefore, the permits to be granted for removal of sandbars can never be to circumvent the prohibition of sand mining under the name of removal of sandbars. If any sandbar is to be removed, a proposal is to be submitted by the State Government, as provided in the OM, in consultation with the departments provided therein. Such a proposal should originate, on account of the existence of sandbars causing obstruction to the fishing or navigation. If no such obstruction is caused by any sandbars, no proposal for removal of such sandbars shall be made. If any such sandbars exist causing obstruction to the navigation or fishing, the proposal for their removal shall be made strictly, as provide in the OM. Thereafter, the proposal shall be examined by one of the institutions provided in the OM. It is for the said Institute and not a retired expert to consider the proposal and give the technical opinion. Based on that technical opinion, the proposal shall be examined by the Seven Member Committee headed by the District Collector as provided in the OM. The Monitoring Committee shall be constituted not in violation of the guidelines, but strictly in compliance with the guidelines including the representatives of the local fishermen community and the local civil society. It is based on the decision of the Monitoring Committee the proposal is to be examined by the KCZMA. It is thereafter, the Department of Environment, State of Karnataka to examine the proposals and decide whether the permission is to be granted or not. The order of granting such permission or rejecting such permission shall necessarily show the reasons for such permission or rejection as the case may be. We grant liberty to the State of Karnataka to decide the question of removal of sandbars from the coastal rivers of Karnataka strictly in compliance of the guidelines and conditions provided in the Office Memorandums of the MoEF & CC but making it clear that in any event it shall not be for sand mining in the name of removal of sandbars. We hold that based on the disputed permits granted for the period 2016 - 2017, no sand shall be extracted from the rivers of Udupi District."
But even now similar types of permits have been granted in total defiance of the orders passed by this Tribunal in O.A. 111 of 2016. Page 10 of 57
12. Further this Tribunal while allowing O.A.111 of 2016 issued further following directions in this regard.
".........It is thereafter, the Department of Environment, State of Karnataka to examine the proposals and decide whether the permission is to be granted or not. The order of granting such permission or rejecting such permission shall necessarily show the reasons for such permission or rejection as the case may be.":
Thus, it is mandatory to obtain Environment Clearance from Environment Department of the concerned State (SEIAA) for permitting removal of sand from sand bars from the CRZ Rivers.
h) It is noteworthy that in terms of in the Office Memorandum dated 9th June 2011 (annexure - 4) Item No.2 (d) It is stated based on the recommendations of the specified institution (in the present case it is NITK Surathkal) further process at KSCZMA has to be undertaken. Here it is important to note that while concluding the technical report NITK has made a special mention in this regard as follows:
"The above suggestions would address most of the technical issues related to sand removal. The final decision on this issue rests with the State Coastal Zone Management Authority and Environmental Department of the State."
The applicant also produced the report of the NITK dated 09.05.2017 as Annexure 9.
13. They are not following the procedures provided and it is being done in violation of the guidelines. The sand bar will be available in any river specially in CRZ area. The quantum of sand, the thickness of sand deposits vary from place to place and from river to river depending upon the meandering of the river and flow of water.
14. Mere deposit of some quantity of sand in the river cannot be termed as sand bar. Unless the sand bar has grown to such an extent that it is visible over the level of water in the sea or river, even if there exists a sand bar in a river grown above the water level still it need not obstruct the movement of fishing vessels/boats. It all depends on the length of the river as well as the size of the sand bar and number of fishing boats moving in the concerned river. It was given as example in the application Page 11 of 57 that if the breadth of the river is over 1 K.M. a sand bar of 200 300 meters, even it has grown a meter above the water level, it may not obstruct the movement of the boats. It is also mentioned in the application that in many CRZ rivers, there are quite a few kudrus (Island/islet) which are in existence for centuries without causing any obstruction to fishing boats or vessels.
15. In all Udupi District administration has identified 28 sand bars across six rivers. Average breadth of these sand bars is about 100 meters whereas the average breadth of the rivers is also more than the breadth of these sand bars.
16. Considering the breadth of the river and the existence of sand bar, there is no possibility of any obstruction being caused to the free navigation of fishing boats. Further they are not marking the boundary of the area of permission granted and there is no satellite location on the basis of latitude and longitude given and these are all against the report given by NITK, Suratkal. They are not registering the persons who are entitled to remove the sand as per the notification issued. This indirectly allows third parties to get the benefit of the notification in violation of the notification.
17. The applicant has also given some calculation as to the amount of sand that is being extracted by the persons who were permitted to remove sand bars manually but illegally doing sand mining in the guise of removing sand bar. Since the authority did not take any action, the applicant filed this application seeking the following reliefs:
(i) An order quashing all the 74 permits issued for sand bar removal in the Rivers (CRZ) of Udupi District listed in annexure-10.
(ii) An order quashing all the permits issued after 21.09.2017 for sand bar removal in the Rivers (CRZ) of Udupi district.
Page 12 of 57
(iii) To issue direction to the respondent No.1, requiring him to maintain the rivers of Udupi District which are in CRZ area in its present nature and character.
(iv) To issue direction the Respondent Authorities to formulate and place on record strategy/scheme to prevent illegal sand mining.
(v) And pass such other or further order or orders as to Your Lordships may seem fit and proper."
18. The 7th Respondent filed Counter Affidavit contending that the counter Affidavit was filed by the President of Udupi Jilla Hoige Dhoni Karmikara Sangha on behalf of the association. They denied the allegations made in the application. The applicant was not regularly attending the court continuously after attempted to obtain an interim order but no interim order was granted by this Tribunal. Respondents 1 to 6 were adopting the standard lawful procedure for issue of permits for removal of sand bars as per the Notifications/Regulations of the Government from time to time and also as per Guidelines issued by this Tribunal earlier. The applicants have not approached this Forum or any Authority raising any dispute in the subsequent years viz., 2018-19 and 2019-20. That shows that they have got vested interest in filing this application. The 7th Respondent Association was formed for the welfare of traditional community people and dedicated itself for the upliftment of the said community in the locality. All the members of the Association including the Office Bearers are traditional community people belonging to Coastal Udupi District and all possesses substantial knowledge regarding the coastal environment. The State Government with a view to provide employment and livelihood to the traditional communities has entrusted the work of removal of sand bars to ensure prevention of sandbar accumulation which poses danger to fishing boats and vessels, inundation of saline water into agricultural lands, preserving the ingress Page 13 of 57 of sea water into fresh water channels, etc. The entire removal of sand bars is being carried out by all the Permit Holders strictly as per the terms of permit and licenses for removal of sandbars and there were no deviation whatsoever. The allegations contra, to this were denied. Totally 170 permits were available for issuance. However, only 165 permits were been obtained for removal of sand bars. All the Permit Holders were traditional community people. Some of the Permit Holders and also belonging to Fishermen Community and they had also registered themselves with the concerned Department. So, the allegation that no Fishermen among the Permit Holders were involved in Sandbar removal, was not correct. The allegation that there was no fishing activity in that region, was also not correct. For the purpose of smooth navigation of fishing boats, it requires at least 4 feet depth and on many occasions, the fisherman concerned had given representation to the Fisheries Department requesting for removal of sand for smooth passage of fishing boats. There were about 12 Clauses/conditions stipulated in the Permits granted for removal of sandbars. Pursuant to the guidelines issued by this Tribunal, there were about 37 Clauses/conditions regulating the removal of sandbars. The Permit Holders were strictly complying with the said conditions in the permits. Their association was also ensuring the same. The allegation that permits were issued without joint inspection of the sandbars and relevant factors was not correct. Environment Clearance had been obtained by the State Government from the concerned Departments for issuance permits for removal of sandbars. Allegations contra were stoutly denied. The permits for removal of sandbars was issued for a period of one year from the month of September to August. The months of June and July were fish breeding season and during this Page 14 of 57 period, the Permit Holders will not venture into the waters for removal of sandbars. South West Monsoon set in from the month of June-July almost till the end of September and during this period removal of sandbar was almost impossible due to increase in flow of water and other force majure reasons. Though the Permit Holders possesses the permit to remove the sandbars for a year, each Permit Holder had to surrender their permits after removal of sandbars that were allocated to them. The period of sandbar removal depended upon the size of sandbar allotted to a particular Permit Holder. In most of the cases, the Permit Holders could use their permits for the entire year and they used to surrender the same within a few months after removing the sandbars. The nature of allegations regarding the quantum of sand bar removed enumerated in the application were denied. They were strictly following the conditions imposed. The transportation of sand was connected with GPS, T4U (Telemetric Port Ltd. Company). If sand is transported above 50 Metric Tonne Trip Sheet would not be issued. The boats measuring 4.5 feet breadth and 35 feet length were utilised for removal of sandbars. Even the said small boats were fitted with GPS, T4U. As per the clauses in the permit, removal of sandbars takes place between 6 A.M. to 6 P.M. and beyond the said time Permit Holders could not remove the sandbars. So the allegation that the removal of sandbar happened 24 hours, was not correct. The application was for setting aside 74 permits granted without impleading each Permit Holder and as such the application was bad for non-joinder of necessary parties. According to this Respondent, the allegations were not correct, made without any bona fides and prayed for dismissal of the application.
Page 15 of 57
19. 5th Respondent filed Counter Affidavit in the form of an affidavit contending that in exercise of powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of rule 5 of Environment (Protection) Rules, 1986, Ministry of Environment and Forest had notified the Coastal Regulation Zone (CRZ) Notification, 1991 on 19th February 1991, which, inter alia, provided classification of Coastal Regulation Zone areas and norms for regulating developmental activities thereon. The same was subsequently superseded by CRZ Notification, 2011 issued vide S.O. No. 19(E) dated 06.01.2011. It was issued with an objective to conserve and protect the coastal stretches by regulation of developmental activities along the coastal stretches and to ensure livelihood security to the fishermen communities and other local communities, living in the coastal zone. The CRZ Notification was amended from time to time based on representations received and the need was felt overtime to undertake a comprehensive revision of the notification on the basis of number of representations from various Coastal States and Union Territory administrations, besides other stakeholders. As per Para 3(x) of the CRZ Notification, 2011, mining of sand, rock and other sub-strata materials are prohibited activities in CRZ areas. In terms of Para 3 (iv) d of CRZ Notification 2011, the Ministry vide its Official Memorandum 11-83/2005-1A III dated 24.02.2011, specified six institutes for examining proposals relating to measures to prevent sandbars, accumulation, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and freshwater recharge from technical angle. The Ministry vide O.M. dated 09.06.2011, issued guidelines for management of sandbars including their Page 16 of 57 removal. Further the Ministry vide another OM No.11-83/2005-1A-III (Vol. III) dated 08.11.2011, permitted the removal of sandbars in CRZ areas of rivers/estuaries by manual method by traditional communities subject to certain conditions evidenced by annexure-R5/1 produced along with the affidavit. The powers for enforcement of notification were delegated, which are available under the Environment (Protection) Act, 1986, with the State Government and the State Coastal Zone Management Authority (SCZMAs). The composition, tenure and mandate of State/UT CZMAs have been notified from time to time by the respondent ministry. The main function of these Authorities also include enquiring into the cases of alleged violation of provisions of CRZ Notification, 2011 and take appropriate decision under Section 5, 10 and 19 of Environment (Protection) Act, 1986. The CRZ regulations are to be implemented and monitored (including violations thereof) by the concerned State Coastal Zone Management Authority in accordance with the approved Coastal Zone Management Plan of the respective State. The 5th Respondent is only framing policies and the action in the ground level has to be implemented by the State and Union Territory Administrative Authority. So, they prayed for accepting their contentions and passing appropriate orders with liberty for them to file further Counter if any required.
20. As per order dated 25.02.2020, this Tribunal, after considering the pleadings and Official Memorandum expressed its displeasure on Karnataka Coastal Zone Management Authority, Deputy Commissioner, Chairman Udupi District Sand Monitoring Committee for not filing Statements as they are the authorities to supervise the violations and enforce the conditions in the CRZ Notification and the permits granted. The Tribunal also expressed the displeasure on the part of the MoEF & Page 17 of 57 CC in not taking any action relying on the decision of the Kerala High Court in Parishithi Samrakshana Sangham v State of Kerala (WPC 3128 of 2009(S) dated 30.03.2009) of High Court of Kerala wherein it was held that even if Coastal Regulation Zone is within the purview of state authorities, the Central Government will not be losing its power to regulate the same if there is any violation found and they can take action against the State Authorities, if they are violating their guidelines and notification in this regard. So, this Tribunal directed the Deputy Commissioner and Chairman, Udupi District Sand Monitoring Committee, Chairman, Karnataka State Coastal Zone Management Authority and Member Secretary, State Level Environmental Impact Assessment Authority, Karnataka to file their independent reports regarding the manner in which the sand bar removal is being carried out in their State and whether the guidelines issued by Ministry of Environment and Forest and Climate Change and Sustainable Sand Mining Management Guidelines of 2016 were being implemented in letter and spirit and whether the Office Memorandum issued by the MoEF & CC were being strictly complied with.
21. They were also directed to mention in the report as to whether any action was taken by them or whether the incident of illegal mining has been traced out by them and if so, what is the nature of action taken by them in this regard, whether any prosecution has been launched, vehicles have been seized, whether any penalty has been imposed, etc.
22. When the matter was taken up on 01.09.2020, this Tribunal considered the unsigned report submitted by the State Environmental Impact Assessment Authority, Karnataka extracted in Para 3 of the order which reads as follows:
Page 18 of 57
"Report incompliance to the orders of the Hon‟ble NGT (South Zone) in O.A. No.252 of 2017 (SZ) dated 25.02.2020 regarding the manner in which the sand bar removal is being carried out in the State of Karnataka from Respondent No.3, State Level Environment Impact Assessment Authority:
The procedure followed in the State of Karnataka while granting permission for removal of sand bar is submitted as follows:
Sand mining is a prohibited activity in the CRZ area as per para 3 (x) of CRZ Notification bearing No. S.O.19 (E), dated 6th January 2011 issued by MoEF & CC. However, the Ministry of Environment, Forest and Climate Change 4 vide Office Memorandum bearing No.11-83/2005-IA.III, dated 24th February 2011, 9th June 2011 and 8th November 2011 permitted removal of sand bards as pr the provisions under para3 (iv) (d) "Measures to prevent sand bars, installation of tidal regulators, laying of storm water drains for structures for prevention of salinity ingress and fresh water recharge based on carried out by any agency to be specified by MoEF". For this purpose the MoEF & CC have specified the following institutions:
(i) Central Water and Power Research Station (ii) IIT Chennai, IIT Bombay
(iii) Department of Erosion Directorate, Ministry of Water Resources
(iv) ICMAM
(v) National Centre for Sustainable Coastal Management
(vi) NIT, Suratkal.
Subsequently, the Ministry of Environment and Forest vide O.M. No.11-83/2005-IA.III (part-III), dated 9th June 2011 issued following guidelines in continuation to the O.M. dated 24th February 2011 for management of the sand bar including its removal.
a) Sand bars which pose danger to navigation of fishing boats and vessels shall be identified by the concerned Department in the State Government.
b) The State Government in consultation with the State agencies such as PWD, Water Resources Department, Fisheries Department, etc. may formulate a proposal for management of the sand bars including its removal.
c) The proposal shall be examined by any of the six institutions identified in the above Office Memorandum dated 24th February, 2011, namely, (a) Central Water and Power Research Station, Pune; (b) IIT, Chennai, IIT, Bombay; (c) Department of Erosion Directorate, Ministry of Water Resources; (d) Integrated Coastal and Marine Area Management, Chennai; (e) National Centre for Sustainable Coastal Management; and (f) National Institute of Technology, Surathkal.
d) Based on the suggestions/recommendations received from these institutions the concerned state government agency(s) shall obtain necessary recommendations from the State/Union Territory (Ut) Coastal Zone Management Authority.
e) Based on the recommendations of the State/Ut Coastal Zone Management Authority the Environment Department of the State/Ut shall take final decision on the proposal with valid justification.
f) The decision shall be put on the website of the concerned agency undertaking the project and also on the website of the State/Ut Coastal Zone Management Authority. Further, the Ministry of Environment and Forest vide O.M. No.11/832005-IA.III (Volume-iii) dated 8th November 2011 stipulated the following conditions for removal of sand bards by traditional coastal communities only by manual method.
(a) The District Collector shall chair a seven member committee consisting of, concerned officials as 6 also at least one representative of each from a scientific or technical Institute, the local communities, like fisher folk and the local civil society.
(b) Based on the recommendations of the above committee, the District Collector may permit such removal of sand in the specified time period in a particular area along with specific quality subject to such conditions, such as registration of local community persons permitted to remove the sand manually. Page 19 of 57
(c) The Environmental Official at district level shall monitor the removal of sand and submit report to the Collector as may be specified say quantity of sand removed in the period concerned.
(d) The above permit shall be renewed on yearly basis.
(e) The agenda and the minutes of the aforesaid committee, permits issued by Collector and monitoring reports of the removal of sand would be uploaded on the website of the collectorate and also made available hard copy to Zill Parishad etc. as may be directed by the Collector.
(f) The accumulation of sand bar, its removal process etc. shall be studied by the State Government with the help of satellite imageries, GPS, etc. It shall be ensured that the permits are not accorded in such areas which are identified as eco-sensitive zones, fish migratory and breeding grounds. The permits shall be given taking into consideration the local circumstances and ecological settings. In the State of Karnataka the District administration have engaged National Institute of Technology, Suratkal for conducting study and examine the proposal regarding removal of identified sand bars which poses danger to navigation of fishing boats and vessels. The said institution have given report after duly examining the location, the size, height and length of the sand bar with due recommendations for removal. The committee headed by the Deputy Commissioner consisting of the representatives of the concerned departments will consider and send recommendation.
Pursuant to the recommendation of the committee, the District Administration submits proposal to the DCZMC headed by the D.C. for consideration of the proposal under the provisions of CRZ Notification, 2011 and send their recommendation to the KSCZMA. The KSCZMA examines the proposals and accord approval for removal of sand bar by the local Committees subject to strict compliance to the condition thereon.
The Principal Bench of the Hon‟ble NGT vide order dated 5th August 2013 in O.A. No.171/2013 and connected matters restrained carrying out any mining activity or removal of sand from river beds anywhere in the country without obtaining Environmental Clearance from MoEF/SEIAA and license from competent authorities. Accordingly such application, when submitted following due procedure of law were considered by the SEIAA, Karnataka and decided based on merit to grant Environmental Clearance with conditions.
When the O.A. No. 171/2013 was finally disposed off vide order dated 13.01.2015 by the Hon‟ble NGT, no specific direction regarding consideration of applications for grant EC for removal of sand bar were issued and management/removal of sand bar do not fall under the purview of mining of minerals as specified either under MMDR Act or under EIA Notification, 2006. Therefore, since then no applications were received seeking Environmental Clearance for removal of sand bar under EIA Notification, 2006."
23. This Tribunal also considered another report submitted by Special Director (Technical Cell), Department of Forest, Ecology and Environment extracted in Para 4 of the order which reads as follows:
"Report incompliance to the orders of the Hon‟ble NGT (South Zone) in O.A. No.252 of 2017 (SZ) dated 25.02.2020 regarding the manner in which the sand bar removal is being carried out in the State of Karnataka from Respondent No.3, State Level Environment Impact Assessment Authority: Page 20 of 57
The procedure followed in the State of Karnataka while granting permission for removal of sand bar is submitted as follows:
Sand mining is a prohibited activity in the CRZ area as per para 3 (x) of CRZ Notification bearing No. S.O.19 (E), dated 6th January 2011 issued by MoEF&CC. However, the Ministry of Environment, Forest and Climate Change vide Office Memorandum bearing No.11-83/2005-IA.III, dated 24th February 2011, 9th June 2011 and 8th November 2011 permitted removal of sand bards as pr the provisions under para3 (iv) (d) "Measures to prevent sand bars, installation of tidal regulators, laying of storm water drains for structures for prevention of salinity ingress and fresh water recharge based on carried out by any agency to be specified by MoEF". For this purpose the MoEF&CC have specified the following institutions:
(i) Central Water and Power Research Station (ii) IIT Chennai, IIT Bombay
(iii) Department of Erosion Directorate, Ministry of Water Resources
(iv) ICMAM
(v) National Centre for Sustainable Coastal Management
(vi) NIT, Suratkal.
Subsequently, the Ministry of Environment and Forest vide O.M. No.11- 83/2005-IA.III (part-III), dated 9th June 2011 issued following guidelines in continuation to the O.M. dated 24th February 2011 for management of the sand bar including its removal.
a) Sand bars which pose danger to navigation of fishing boats and vessels shall be identified by the concerned Department in the State Government.
b) The State Government in consultation with the State agencies such as PWD, Water Resources Department, Fisheries Department, etc. may formulate a proposal for management of the sand bars including its removal.
c) The proposal shall be examined by any of the six institutions identified in the above Office Memorandum dated 24th February, 2011, namely, (a) Central Water and Power Research Station, Pune; (b) IIT, Chennai, IIT, Bombay; (c) Department of Erosion Directorate, Ministry of Water Resources; (d) Integrated Coastal and Marine Area Management, Chennai; (e) National Centre for Sustainable Coastal Management; and (f) National Institute of Technology, Surathkal.
d) Based on the suggestions/recommendations received from these institutions the concerned state government agency(s) shall obtain necessary recommendations from the State/Union Territory (UT) Coastal Zone Management Authority.
e) Based on the recommendations of the State/UT Coastal Zone Management Authority the Environment Department of the State/UT shall take final decision on the proposal with valid justification.
Page 21 of 57
f) The decision shall be put on the website of the concerned agency undertaking the project and also on the website of the State/UT Coastal Zone Management Authority.
Further, the Ministry of Environment and Forest vide O.M. No.11/832005-IA.III (Volume-iii) dated 8th November 2011 stipulated the following conditions for removal of sand bards by traditional coastal communities only by manual method.
(a) The District Collector shall chair a seven member committee consisting of, concerned officials as also at least one representative of each from a scientific or technical Institute, the local communities, like fisher folk and the local civil society.
(b) Based on the recommendations of the above committee, the District Collector may permit such removal of sand in the specified time period in a particular area along with specific quality subject to such conditions, such as registration of local 11 community persons permitted to remove the sand manually.
(c) The Environmental Official at district level shall monitor the removal of sand and submit report to the Collector as may be specified say quantity of sand removed in the period concerned.
(d) The above permit shall be renewed on yearly basis.
(e) The agenda and the minutes of the aforesaid committee, permits issued by Collector and monitoring reports of the removal of sand would be uploaded on the website of the collectorate and also made available hard copy to Zill Parishad etc. as may be directed by the Collector.
(f) The accumulation of sand bar, its removal process etc. shall be studied by the State Government with the help of satellite imageries, GPS, etc. It shall be ensured that the permits are not accorded in such areas which are identified as eco- sensitive zones, fish migratory and breeding grounds. The permits shall be given taking into consideration the local circumstances and ecological settings.
In the State of Karnataka the District administration have engaged National Institute of Technology, Suratkal for conducting study and examine the proposal regarding removal of identified sand bars which poses danger to navigation of fishing boats and vessels. The said institution have given report after duly examining the location, the size, height and length of the sand bar with due recommendations for removal. The committee headed by the Deputy Commissioner consisting of the representatives of the concerned departments will consider and send recommendation to DCZMC.
Pursuant to the recommendation of the committee, the District Administration submits proposal to the DCZMC headed by the D.C. for consideration of the proposal under the provisions of CRZ Notification, 2011 and send their recommendation to the KSCZMA. The KSCZMA examines the proposals and accord approval for removal of sand bar by the local Committees subject to strict compliance to the condition thereon.
Page 22 of 57
The Principal Bench of the Hon‟ble NGT vide order dated 5th August 2013 in O.A. No.171/2013 and connected matters restrained carrying out any mining activity or removal of sand from river beds anywhere in the country without obtaining Environmental Clearance from MoEF/SEIAA and license from competent authorities. Accordingly such application, when submitted following due procedure of law were considered by the SEIAA, Karnataka and decided based on merit to grant E.C. with conditions.
When the O.A. No. 171/2013 was finally disposed off vide order dated 13.01.2015 by the Hon‟ble NGT, no specific direction regarding consideration of applications for grant EC for removal of sand bar was not forthcoming. Further management/removal of sand bar does not fall under the purview of mining of minerals as specified either under MMDR Act or under EIA Notification, 2006. Therefore, no applications were referred to SEIAA for Environmental Clearance under EIA Notification, 2006.
Now, therefore applications seeking clearance under CRZ Notification, 2011/2019 for the management of removal of sand bar are considered by the KSCZMA and clearance accorded based on merit as per the procedure 13 laid down in the O.M.s dated 24th February 2011, 9th June 2011 and 8th November 2011 issued by MoEF&CC.
Deviation and non-compliance of conditions if any will be dealt in accordance with law. Presently the term of KSCZMA is over and it is under reconstitution. Therefore, this information is furnished from the available records of the Secretariat of the erstwhile KSCZMA."
24. In this Order, this Tribunal expressed its displeasure that all the reports filed by the Authorities only mentioned about the mechanism that is provided for granting permission and regulating the same and procedure for taking action. But, nothing was mentioned about any violation noted and what is the nature of action taken.
25. This Tribunal also observed that 1st Respondent, being the Chairman of the committee constituted by this Tribunal in O.A. No.171/2013 alone can give details regarding the violations and action taken and also the allegations made in the application were true or not. But, quite unfortunately such details are not available in the report filed Page 23 of 57 by the so called regulators. So at the request of the officials, this Tribunal granted time to file further report as directed by this Tribunal.
26. When the matter was taken up on 06.10.2020, this Tribunal considered the submissions filed by the Counsel for the applicant to the reports submitted by the State Environment Impact Assessment Authority Karnataka and Special Director, (Technical Cell), Department of Forest, Ecology and Environment wherein after reiterating the various orders of this Tribunal in different matters dealing with this issue, and also referring to the Office Memorandums issued by MoEF & CC in this regard, they have reiterated that the process is being undertaken against the Technical Report given by NITK Suratkal and the recommendations of Karnataka Coastal Zone Management Authority and they are obtaining permission for removal of sand bar but in fact, sand mining is going on in that area, in the guise of removal of sand bar. So, this Tribunal directed the Deputy Commissioner and Chairman, Udupi Distirct Sand Monitoring Committee, the Chairman, Karnataka State Coastal Zone Management Authority and Member Secretary, State Environment Impact Assessment Authority, Karnataka to consider the submissions made by the Counsel for the applicant to the earlier report submitted by them and submit further report incorporating their views on the submissions made and also in compliance with the directions issued by this Tribunal in the earlier orders passed. Thereafter the matter has been adjourned from time to time by successive notifications as no reports were filed.
27. On 23.11.2021 this Tribunal considered the report submitted by Deputy Commissioner and Chairman Sand Monitoring Committee, Udupi District on behalf of State of Karnataka dated 07.10.2021 e-filed on Page 24 of 57 08.10.2021 filed in compliance with the order dated 25.02.2021, extracted in Para 2 of the order which reads as follows:
Page 25 of 57 Page 26 of 57 Page 27 of 57 Page 28 of 57
28. The Karnataka State Coastal Zone Management Authority also filed a report dated nil e-filed on 07.10.2021 extracted in Para 3 of the order which reads as follows:
"Report in compliance to the orders of the Hon`ble NGT (South Zone) in O.A. No. 252 of 2017 (SZ) dated 01.09.2020 regarding action taken on violation of sand bar removal by the Respondent No.4, Karnataka State Coastal Zone Management Authority:
On receipt of the proposals received from the Deputy Commissioner of t he Co ast al D i st ri ct s f o r K ar nat a ka f o r rem o val of san d b ars f or ea sy navi gation of fi shing boats vessels after havi ng been recommended b y DCZMC, the KSCZMA accords approval as per the guidelines of MOEF & CC, OM dated 24th February, 2011 and 9th June 2011 for removal of sand bars stipulating the following conditions namely:
Page 29 of 57
1. Sand should not be removed beyond the average bed level and the depth is limited to the depth required for free movement of fishing boats.
2. Sand should not be removed near any vegetation or mangroves growth. The sand deposits within the buffer zone of 50 meters from the existing mangrove shall not be disturbed.
3. Use of any mechanized/ mechanical methods for removal of sand is strictly prohibited.
4. Minimum distance of 2m should be maintained from river bank for stocking of sand.
5. Sand bars in the known breeding and spawning grounds shall not be disturbed. Removal of sand bars during the monsoon season which is generally the breeding season for the aquatic fauna shall be avoided.
Upon obtaining the approval from KSCZMA and as per the O.M. No. 11- 83 / 2 00 5 - I A.I I I ( Vol um - I I I ) dat e d 8 t h N o vem b er 201 1 of Mi ni st r y o f Environment and Forests, the Deputy Commissioner allows removal of a specified quantity of sand in specified time period in a particular area to local community persons permitted to remove the sand manually. It is ensured that the permits are not accorded i n such areas which are i dentified as eco sensitive zones, fish migratory and breeding grounds. The permits are given taking into consideration the local circumstances and ecological settings. If any violation in the process of removal of sand bars is noticed, the Deputy Commissioner initiates appropriate action against such persons permitted to remove the sand bars based on the grounds of violation as per Para 6 (c) of the CRZ Notification, 2011."
29. The matter was adjourned to enable the State Environment Impact Assessment Authority to file their statement.
30. The State Environment Impact Assessment Authority, Karnataka filed their report signed by the Officer on 23.03.2022 e-filed on the same date which reads as follows:
Page 30 of 57 Page 31 of 57
31. Applicant filed detailed submissions to the reports filed and also wanted this Tribunal to issue certain directions as follows:
(a) To issue direction the Respondent Authorities to formulate and place on record strategy/scheme to prevent illegal sand mining, by covering the following issues in tune with the spirit of Ministry of Environment and Forest, Office Memorandum dated 24th February 2011, 9th June 2011 and 8th November 2011 and to put on hold, the sand bar removal / sand mining activity, till such time;
1. Number of fishing boats that operate in these CRZ rivers.
2. The nature of hindrance the alleged sand bars poses to the movement of the fishing boats.
3. Length and breadth o the sand bars vis a vis length and breadth of the concerned River at relevant stretch.
4. Whether the permit holders employ other labourers‟ to remove the task of sand bar removal, instead of carrying out the work themselves, contrary to guidelines.
(b) And pass such other or further order or orders as to Your Lordships may deem fit and proper"
32. 7th Respondent filed Objection to the report submitted by Official Respondents and also submissions filed by the applicant, reiterating their contentions and denying the nature of calculation made by the applicant in their submissions. They further reiterated that they were strictly following the procedure provided and complying with the directions issued and conditions imposed. They also reiterated that the allegations made by the applicant regarding the formation of sand bars which were rightly answered by the Departments giving their scientific reasons and the necessity for removal of sand bars. They also reiterated the contention that the sand bar is being removed by members of the local community strictly in accordance with the conditions imposed by the Seven Member Committee and whenever incidents of committing violations were brought to their notice, authorities were taking Page 32 of 57 appropriate action. They prayed for rejecting the contention of the applicant and pass appropriate orders.
33. Heard the Counsel for the applicant Shri. Ranjan Shetty, Shri Darpan K.M. for Respondents 1, 2 and 4, Mr. Vasanth H.K. for Respondents 3 and 6, Mr. G.M. Syed Nurullah Sheriff for 5th Respondent and Mr. B. Thilaknarayanan for 7th Respondent.
34. The Counsel for the applicant submitted that even going by the report submitted by various officials, it is clear that there were violations of CRZ Notifications and in fact, large scale sand mining is being done in the guise of removal of sand bar.
35. Every authority is reiterating the fact that sand mining is a prohibited activity as per the CRZ Notification in rivers and ersturites which are covered by this Notification. They also admit that sand bar removal is a permitted activity so as to regulate the movement of fishing boats in order to ensure the livelihood of fishermen community. There are certain guidelines issued by this Tribunal in O.A.111/2016 and also in O.A.171/2016, but those guidelines were not being followed by the authorities. Further, the quantity of sand bar that has been removed as per the Report of the Committee will go to show that it is humanly impossible to remove such quantity within the time frame provided and in the manner in which it has to be done as per the guidelines issued. Further, there was no necessity to permit removal of sand bar from the entire stretch of the river in order to allow free flow of water or to ensure smooth navigation of fishing boats. So, it is highly necessary for this Tribunal to issue stringent directions and provide necessary guidelines as to how this will have to be regulated and action will have to be taken against persons who are involving in illegal sand mining. Page 33 of 57
36. The applicant also produced certain photographs showing the use of heavy machineries involved in the removal of alleged sand bars and also tents put up by the migrant labourers and the nature of vehicles that are being used for removal of sand bar.
37. On the other hand, the Learned Counsel appearing for MoEF & CC submitted that they are only policy makers and whenever necessity arises, they are issuing necessary Official Memorandums regulating the activities in the CRZ Zone for removal of sand bars and it is for the State Authorities to strictly implement the same and if there are any violations found, it is for them to take appropriate action.
38. As per the guidelines issued, the removal of sand bar can be done only after making proper study and the quantity available and that must be permitted to be carried out only through the local community people including fishermen and it can be removed only manually and no mechanised removal was permitted, in this regard. They were strictly issuing directions on the basis of the directions issued by this Tribunal and various Courts in this regard.
39. The Learned Counsel appearing for State of Karnataka submitted that the permits are being granted by the Committee appointed and it is being given only to those persons who have been registered that too, to the local fishermen community and the local community people to enable them to have their livelihood and the persons who are involved were not granted any remuneration but they have been permitted to sell the same after collecting some nominal amount as royalty, so that they can earn their livelihood. They are monitoring the implementation of conditions of the permits and if there are any violations found, they used to take appropriate action as well. Page 34 of 57 They never permit any instream sand mining in violation of the CRZ Notification from the rivers to which the CRZ Notification is applicable.
40. The Learned Counsel also submitted that the reports given by them will go to show that they are strictly following the procedure provided and taking action against the violators.
41. The Learned Counsel appearing for State Environment Impact Assessment Authority, Karnataka submitted that they are not granting any Environment Clearance in respect of removal of sandbars in CRZ areas and they will have to obtain permission from the Coastal Zone Management Authority for this purpose and only after obtaining the recommendations of the Coastal Zone Management Authority, the Chairman, Monitoring Committee is issuing permits to the persons who have applied for and acting strictly in compliance with the directions issued by this Tribunal and also the directions issued in the Office Memorandum issued by MoEF & CC in this regard.
42. The Environment Clearance is granted only in the areas outside the CRZ Notification, if the sand mining is permissible in that area strictly in accordance with law.
43. The Counsel appearing for the 7th Respondent submitted that the allegations made in the application are not correct. The submission made by the Counsel for the applicant are also imaginary and without any data. In fact, 7th Respondent is representing the Association of Fishermen Community who are involved in removal of sand bars as permitted by the directions of this Tribunal in OA 111/2016 and after obtaining necessary permit from the authorities. They are not using any machineries for this purpose, they are doing the work manually and using small boats for this purpose.Page 35 of 57
44. Further, the nature of calculation made by the Counsel for the applicant and also the manner in which the sand bar removal has to be regulated on the basis of the width of the river etc. are not practicable and those things will have to be decided by the authorities after conducting proper survey and the amount of sand bar to be removed for the purpose of smooth regulation of the flow of water and also the navigation of fishing boats to enable the fishermen community to earn their livelihood.
45. They strictly abide by the directions issued. Whenever any illegal activities are brought to their notice, they are informing the authorities and action is being taken by the authorities. To their knowledge, no illegal mining is going on in the guise of removal of sand bar. So he prayed for dismissal of the application.
46. Considered the pleadings, the submissions made by the Counsel for the parties and also the Written Submissions submitted by them.
47. The points that arise for consideration are:
(i) Whether any illegal mining is going on in the river bed area covered under the CRZ Notification in Udupi District?
(ii) What is the nature of direction that has to be given including imposition of compensation, considering the nature of violations if any proved?
(iii) What is the nature of directions to be given to regulate the sand bar removal in the area covered by CRZ Notification so as to avoid misuse of and over exploitation of natural resources, detriment to the Marine/River in ecology?
(iv) Relief and Costs.Page 36 of 57
Points:
48. The grievance in this application was that the 7th Respondent and others were doing illegal mining in the guise of removal of sand bars in the river beds of Udupi District, where CRZ Notification is applicable.
According to the applicant, instream river mining is prohibited and in CRZ area sand mining is also prohibited. Only removal of sand bar is permissible to the extent which is required for ensuring free flow of water and also for navigation for fishing boats. No heavy machinery is also expected to be used for that purpose, but contrary to the same, heavy machineries are being used and in the guise of sandbar removal, illegal sand mining is going on. The same was denied by the respondents including the 7th respondent, who is representing the Association of Local Community People, who are involved in lifting of sand from the sand bars said to be in traditional manner.
49. It is an admitted fact that the rivers mentioned in the application are having tidal effect and falling under the CRZ Zone to which CRZ Notification 2011 is applicable. It was also an admitted fact that earlier when certain sand bar removal permits were granted by Udupi District Administration during 2016, a case was filed by some applicant before this Tribunal as O.A.111/2016 and this Tribunal while disposing the matter set aside the permits granted and observed as follows.
(i) After the order dated 17.05.2016 there was no sand mining or removal of sand bars from CRZ areas of those rivers from that day onwards.
(ii) There cannot be any extraction of sand in the name of removal of sand bars unless valid permits are granted in accordance with the guidelines as provided by MoEF & CC.
(iii) The State of Karnataka is directed to grant permission for removal of sand bars which causes obstruction to the fishing and navigation in the coastal rivers coming within CRZ areas, only in strict compliance to the conditions and Page 37 of 57 guidelines provided in the Official Memorandum dated 24.02.2011, 09.06.2011 and 08.11.2011.
(iv) The permits to be granted for removal of sandbars can never be used to circumvent the prohibition of sand mining under the name of removal of sandbars, if any sandbar is to be removed, a proposal is to be submitted by the State Government as provided in the OM, in consultation with the Departments provided therein, such a proposal should originate on account of the existence of sandbars causing obstruction to the fishing navigation. If no such obstruction is caused by any sandbars, no proposal for removal of sandbars shall be made, if any such sandbars exists causing obstruction to the navigation or fishing a proposal for removal shall be made strictly as provided in the OM.
(v) The proposal shall be examined by one of the institutions authorized in OM. It is for the said institution and not a retired expert to consider the proposal and give technical opinion.
(vi) Based on that technical opinion, the proposal shall be examined by the seven member committee headed by the District Collector as provide in the OM.
(vii) The Monitoring Committee shall be constituted not in violation of the Guidelines, but strictly in compliance with the guidelines including the representatives of local fishermen community and the local civil society.
(viii) It is based on the decision of the monitoring committee, the proposal has to be examined by Karnataka Coastal Zone Management Authority. It is thereafter the Department of Environment, State of Karnataka to examine the proposals and decided whether permission is to be granted or not.
(ix) The order of granting such permission or rejecting such permission shall necessarily show the reasons for such permission or rejection as the case may be.
(x) Liberty was granted to State of Karnataka to decide the question of removal of sand bars from the coastal rivers of Karnataka strictly in compliance with the guidelines and conditions provided in the Official Memorandum of MoEF & CC, but making it clear that in any event, it shall not be for sand mining in the name of removal of sandbars.
(xi) Based on the disputed permits is granted for the year 2016-17, no sand shall be extracted from the rivers of Udupi District. With the above directions, the application was disposed of."
50. It is clear from the above decision that there was an attempt on the part of the Government to grant permits without complying with the guidelines issued by MoEF & CC in this regard and against the CRZ Notification without proper application of mind and with that permits, there was attempt for doing illegal sand mining in the area which was Page 38 of 57 prohibited and also using heavy machineries and that was prevented by this order.
51. Now the grievance of the applicant was that, in spite of such directions, the same is being repeated.
52. It is clear from Para 3(x) of CRZ Notification, 2011, sand mining is a prohibited activity but under Para (iv) removing sandbars from the river flowing in CRZ area is a permitted activity which reads as follows.
"(iii) Prohibited activities within CRZ the following are declared as Prohibited Activity within CRZ.
xxxxxxxx
(iv) Land reclamation, bunding or disturbing the natural course of seawater except those
(a) Required for setting up construction or modernisation or expansion of foreshore facilities like ports, harbours, jetties, wharves, quays, slipways, bridges, sealink, road on stilts, and such as meant for defence and security purpose and for other facilities that are essential for activities permissible under the notification;
(b) Measure for control of erosion, based on scientific including Environmental Impact Assessment [hereinafter referred to as "EIA"] Studies;
(c) Maintenance or clearing of waterways, channels and ports, based on EIA Studies;
(d) Measure to prevent sand bars, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and freshwater recharge based on carried out by any agency to be specified by Ministry of Environment, Forest and Climate Change.
XXXXXX XXXXXX
(x) Mining of sand, rocks and other sub-strata materials except:-
a. Those rare minerals not available outside the CRZ area (mining Atomic Minerals notified under Part B of the First Schedule of Mining as Minerals (Development) Act, 1957 (67 of 1957) occurring as such or association with one or other Mineral);
b. Exploration and exploitation of Oil and Natural Gas.
53. So, it is clear from the above notification that sand mining is strictly prohibited in CRZ area. Reclamation and bunding will be Page 39 of 57 permissible as a measure to prevent sand bars and installation of tidal regulators etc. on the basis of the study to be conducted in this regard.
54. When the State of Karnataka by Annexure-2 letter wanted relaxation of the same, the same was not permitted by the Ministry of Environment, Forest and Climate Change. Ministry of Environment, Forest and Climate Change had issued an Office Memorandum No.11- 83/2005-1A-III dated 24.02.2011 regarding the institutions which can be permitted to conduct the study which reads as follows:
"This has reference to the issue of the Coastal Regulation Zone (CRZ) Notification, 2011 vide S.O. No. 19(E) date 16th January, 2011. As pr para 3(iv)(d) "measures to prevent sand bars, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and freshwater recharge based on carried out by any agency to be specified by MoEF." In this regard, the Ministry specifies the following institutions who will be included for the above activities:
(i) Central Water and Power Research Station.
(ii) IIT Chennai, IIT Bombay
(iii) Department of Erosion Directorate, Ministry of Water Resources
(iv) ICMAM
(v) National Centre for Sustainable Coastal Management
(vi) NIT, Suratkal
All proposals relating to the projects indicated in the above Para of the Notification shall be examined by the institutions from technical angle and base on the recommendations made by these institutions, the project would be considered for clearance by the concerned authorities indicated in the Notification. This issues with the approval o Competent Authority."
55. Thereafter Ministry of Environment, Forest and Climate Change issued another notification regarding the guidelines to be followed for implementation of CRZ Notification vide OM No.11- 83/2005-IA-III(PLIII) dated 09.06.2011 which reads as follows:
"This is in continuation to our earlier Office Memorandum of even number dated 24th February, 2011 regarding removal of sand bar as indicated in para 3(iv)(d) of Coastal Regulation Zone Notification, 2011 dated 6th January, 2011, a copy of same is enclosed.
Page 40 of 57
2. A guideline for management of the sand bars including its removal which are as follows:
(a) Sand bars which pose danger to navigation of fishing boats and vessels shall be identified by the concerned Department in the State Government.
(b) The State Government in consultation with the State agencies such as PWD, Water Resources Department, Fisheries Department, etc., may formulate a proposal for management of the sand bars including its removal.
(c)The proposal shall be examined by any of the six institutions identified in the above Office Memorandum dated 24th February, 2011, namely (a) Central Water and Power Research Station, Pune, (b) IIT, Chennai, IIT, Bombay; (c) Department of Erosion Directorate, Ministry of Water Resources; (d) Integrated Coastal and Marine Area Management, Chennai; (e) National Centre for Sustainable Coastal Management, and (f) National Institute of Technology, Surathkal.
(d) Based on the suggestions/recommendations received from these institutions the concerned State Government agency(s) shall obtain necessary recommendations from the State/Union Territory (UT) Coastal Zone Management Authority.
(e) Based on the recommendations of the State/UT Coastal Zone Management Authority the Environment Department of the State/UT shall take final decision on the proposal with valid justification.
(f) The decision shall be put on the website of the concerned agency undertaking the project and also on the website of the State/UT Coastal Zone Management Authority."
56. The Seven Member District Committee sent a proposal for recommendation for removal of sandbar of 28 numbers in the river Sowparnika, Varahi, Papanashini, Swarna Nadi, Seetha Nadi and Yedamavina Hole rivers of the Udupi District with a technical report of NITK Suratkal with following recommendations:
(i) Depth of sand removal not to exceed prescribed 0.8m depth.
(ii) Sand removal to be carried out during the day i.e. 6 A.M. to 6 P.M.
(iii) No stream should be diverted for the purpose of sand removal. No natural water course and/or water resources obstructed due to sand removal operations.
(iv) Sand removal shall be undertaken only by manual method without the use of earth moving equipment such as JCB etc. Use of mechanized boats for sucking sand from in-stream area shall be strictly prohibited. This could cause water pollution during sand removal.
(v) Appropriate safety zones (a distance of 200m - 500m) shall be maintained in proximity to any bridge/and/or embankment and other permanent structures." Page 41 of 57
57. The report of NITK also reveals that in several locations that sufficient width is available on either side of the sandbar and the sand deposition is resulting in reduction of the flow velocity of the river. This shows that by and large the requirement of sand bar removal is not to facilitate navigation except in some stretches and the major problem identified is overflowing of the rivers into fertile agricultural lands and floods during monsoon season.
58. The Karnataka Coastal Zone Management Authority considered the same as Agenda Item No.19.2 dated 17.06.2017 granted permission for removal of sandbar with the following additional conditions:
(i) The deputy Commissioner may permit removal of sand bars in the specified time period in a particular area as given in the proposal with GPS latitude and longitude along with specific quantity subject to such conditions, such as to allow only registered local community persons with a condition to remove sand bar manually only by using local dinghies.
(ii) The Environment Official at the district level shall monitor the removal of sand bar and submit report to Deputy Commissioner, as may be specified, say depth of sand bar removed in the specified location and the quantity of sand obtained thereof.
(iii) The CRZ clearance for sand bar removal is valid only for one year from the date of issue of clearance.
(iv) The agenda and the minutes of the Seven Member Committee, permits issued by Deputy Commissioner and monitoring reports of removal of sand bar would be uploaded on the website of the Deputy Commissioner‟s office and also made available the hard copy to Zila Parishad etc., as may be directed by the Deputy Commissioner.
(v) The accumulation of sand bar, its removal process etc., shall be monitored by Deputy Commissioner with the help of satellite imageries, GPS etc. It shall be ensured that the permits are not accorded in such areas which are identified as eco-sensitive zones, fish migratory and breeding g rounds. The permits shall be given taking into consideration the local circumstances and ecological settings.
(vi) Deposit in the sand bars above the level of river bed only shall be removed by way of skimming and no pit excavation shall be permitted.
(vii) The sand deposits within the buffer zone of 50 meters from the existing mangrove shall not be permitted.
Page 42 of 57
(viii) Sand bars in the known breeding and spawning grounds shall not be disturbed.
Removal of sand bars during monsoon season which is generally the breeding season for equatic fauna shall be avoided.
(ix) No pits in the river bed shall be formed as it tends to alter the entire river dynamics.
(x) Sand bars at the vicinity of bridges and other engineering structures and the river banks shall not be disturbed.
(xi) The authorities shall ensure that removal sand bars do not disturb the habitants in order to conserve benthic flora and fauna that inhabit the sandy substrata.
(xii) The Authority reserves the right to cancel the NOC given under CRZ Notification for sand bar removal in case of any violation in the interest and conservation of coastal environment without giving any notice.
(xiii) The natural „kudrus‟ (Islands) should not be disturbed.
(xiv) As there is no involvement of sand mining and the present proposal is for removal of sand bar there is no need to obtain Environmental Clearance separately."
59. So, it is clear from this also that the deposit of sandbars above the level of riverbed only shall be removed by way of manually and no pit excavation shall be permitted. There are certain restrictions issued as to how this will have to be carried out as well.
60. They also specifically mentioned on the basis of the proposal made that there was no involvement of sand mining, they mentioned that there is no necessity to obtain environment clearance separately.
61. The photographs produced by the applicant show that there was involvement of heavy machineries in removing the sandbar and also in the guise of removal of sandbar instream river mining is being undertaken.
62. It is also seen from the photographs that heavy vehicles were also used for removal of sand bars from that area which was not permissible as per the guidelines issued by the Ministry of Environment, Forest and Climate Change referred to above.
63. It is also seen from the report submitted by the Deputy Commissioner and Chairman of Seven Member Sand Monitoring Page 43 of 57 Committee Udupi District that they found certain violations and certain cases have been filed and certain amounts have been realised as penalty as extracted below:
Details of Cases filed for illegal Sand Mining/Transportation:
Year Sand Removal Transportation Total 2017-18 08 03 11 2018-19 06 57 63 2019-20 15 111 126 2020-21 0 32 32 2021-22 9Upto 4 2 6 Sept. 2021) Details of Penalty Collected with respect to illegal Sand
Mining/Transportation & GPS Violation for transporting Vehicles & Boats Year Sand Penalty Transportation Penalty Total Removal Amount Amount 2017-18 78 4000000 44 1125000 5125000 2018-19 116 1990000 - 0 1990000 2019-20 118 7650000 36 450000 8100000 2020-21 64 1953723 128 3684020 5637743 2021-22 30 929128 43 1151976 2193464 (Upto Sept.
2021) Total 406 16522851 251 6410996 23046207
64. In fact, it is seen from the report that heavy vehicles were also permitted for the purpose of removal of sandbars on collection of certain amount depending on the carrying capacity of the vehicles which was in fact not permissible under the Office Memorandum issued.
65. Further, it is also clear from the Office Memorandum and the permission granted that the removal of sandbars must be restricted to the extent of enabling the free flow of water and also allowing navigation of fishing boats.
66. According to the applicant, no fishing boats are registered in that area. So there is no possibility of any fishing activity being carried out in that area. The permission for removal of sandbar by local Page 44 of 57 community people were permitted by traditional methods only for the purpose of enabling them to get some employment and not to exploit the natural resources for commercial exploitation.
67. There is some force in the submission made by the Counsel for the applicant that even if there is sandbar formation in the river having more width then it is not necessary to remove the entire sandbar from that area and the area required for the purpose of facilitating navigation of fishing boat alone need be permitted to be removed.
Further, there must be some mechanism to prevent benami transactions being undertaken through somebody else by employing other employees instead of the local community people for extracting the same as well.
68. It is seen from the documents produced by the applicant, the Official Respondents and also the nature of contentions raised by the parties, it is clear that the District Level Monitoring Committee is not strictly adhering to the directions issued by this Tribunal in OA. No.111/2016 and that in the guise of sandbar removal illegal mining is being carried out. The action taken report submitted by the District Monitoring Committee, clearly establishes the commercial nature of the mining which is prohibited and that illegal Sand Mining is being done in the guise of removal sandbar.
69. We cannot agree with the contention of the respondents that no illegal mining is happening in rivers to which CRZ Notification is made applicable. The fact that they are collecting royalty though nominal and permitting the permit holder to sell the same without any price limit at the discretion of permit holder outside will amount to nothing but sand mining which is a prohibited activity in Coastal Regulation Zone. Only if the sand is used for community purpose i.e. strengthening of river bunds Page 45 of 57 or any other permitted activity if any, then only it can be said that it is for the benefit of the community people or fishermen community. So the State of Karnataka is directed not to resort to this type of indirect sand mining in the guise of removal of sandbar from the rivers to which CRZ Notification is made applicable. Further, the Committee was also not constituted as directed by this Tribunal in OA 111/2016 with persons having integrity and having no interest in the proposals that are to be considered. This also will have to be taken note of by the District Collector while constituting the Seven Member Committee as directed in the Official Memorandum of the Ministry of Environment, Forest and Climate Change and also as directed by this Tribunal in OA 111/2016 of this Bench and OA 171/2013 of Principal Bench of National Green Tribunal. This must be strictly adhered to by the State of Karnataka and also by the District Monitoring Committee. We are not satisfied with the manner in which the sandbar removal is being undertaken from the river to which CRZ Notification is applicable. Further, while considering the sandbar removal, a study must be conducted regarding the width of the river, height of the sandbar, width and length of the sandbar what is the extent required for the purpose of free navigation of fishing boat and free flow of water at the relevant places and permission can be granted only to that extent not beyond that.
70. It is not possible for the Tribunal to go on monitoring these aspects perpetually. It is for the regulators namely Seven Member Monitoring Committee appointed as per the Office Memorandum of Ministry of Environment, Forest and Climate Change and the Coastal Zone Management Authority and State Environment Impact Assessment Authority to regulate and supervise these activities. If they are not taking Page 46 of 57 pro-active role in protecting the exploitation of natural resources, then it will cause irreparable degradation of riverine ecology and coastal ecology, which will have impact on the flora and fuana in that area apart from causing financial loss to the Government. So, it is highly necessary for the State Departments to be more careful in carrying out such activities and that must be done strictly in accordance with law. It is highly necessary to register the persons who are entitled to get permit as per the notification and only those persons can be permitted to carry out the removal of sand bar and permissions can be granted only to such persons. They should not further subcontract the same to third parties for the purpose of exploiting the permission granted to them to the detriment of environment and make unlawful enrichment with that illegal activity. The total extent of sand removed in the guise of sandbar removal shows that it is not humanly possible to remove so much sand by using the traditional method as permitted in the permits granted and also by making the methodology provided therein.
71. So, under such circumstances, it is necessary to identify those persons who have extracted more than the permission granted using heavy machineries apart from making them to pay the penalty provided must also realise the environment compensation for damage caused to environment on account of such activity and recover the value of the total sand illegally removed as compensation.
72. It is also seen from the documents produced by the applicant that one of the persons included in the Monitoring Committee is none other than the Secretary of the 7th Respondent Association who were permitted to lift sand from that area. So it cannot be said that the committee is constituted in such a way that there will not be any Page 47 of 57 interested persons in that committee to exploit the condition and get benefit out of the same. The District Collector/Deputy Commissioner, Chairman of Monitoring Committee must be careful in selecting the person from the local community and members of civil society of integrity and person who is not interested/involved in such activity, then only the appraisal can be said to be transparent and free from bias.
73. So under such circumstances, we feel that the application can be disposed of with the following directions:
(i) The present methodology adopted by the State of Karnataka of collecting nominal amount from the permit holder and permitting the permit holder to sell it outside without fixing any amount will amount to mining as it will amount to winning of mineral for commercial exploitation, which is not permissible under the CRZ Notification. This practice is deprecated and this should be stopped forthwith.
(ii) The District Monitoring Committee is directed to ensure that in the guise of removal of sand bar no illegal sand mining is carried out in that area in the CRZ Zone.
(iii) A study must be conducted independently regarding the width of the river and the width and breadth of the sandbar developed in that area and also study the extent of removal of sandbar which is required for the purpose of smooth flow of the river and ensure free navigation of fishing boats which are registered with the authorities.
Only if fishing boats are being used by the local community for undertaking their fishing activity, then only the question of removal of sandbar for ensuring free navigation of such fishing boats will arise. This aspect must be ensured by the authorities before Page 48 of 57 identifying the sandbars from where the sand will have to be removed.
(iv) The District Collector/Deputy Commissioner, the Chairman of the District Monitoring Committee, Udupi is directed to ensure while selecting persons from the local community and civil society as members of the committee in such a way that they must be independent and they are not involved in extraction of sand and apply for permission for this purpose so as to ensure transparency and independent unbiased appraisal while considering the proposal for issuing permission.
(v) The District Monitoring Committee is directed to ensure that no illegal sand mining is carried out in the guise of removal of sandbar in the permitted areas within the location provided and if there is any violation found, then they are directed to take appropriate action against those persons, including imposition of Environmental Compensation and realize the amount from them in accordance with law.
(vi) They must also ensure that there should not be any use of heavy machineries and heavy vehicles for transport of sand or removal of sandbar, which is permitted under CRZ Notification, against the guidelines issued by the MOF & CC in this regard, which clearly prohibits usage of heavy machineries and vehicles.
(vii) The District Monitoring Committee, Udupi District, the District Collector Udupi District, State Environment Impact Assessment Authority, Karnataka and Karnataka State Coastal Zone Management Authority and the Environment Department of State of Karnataka are directed to ensure implementation of guidelines Page 49 of 57 issued by Ministry of Environment, Forest and Climate Change by their Office Memorandum dated 24.02.2011, 09.06.2011 and 08.11.2011 and strictly adhere to the conditions imposed and timeline provided for removal of sandbar and methodology provided under the permissions granted by Karnataka State Coastal Zone Management Authority and also the accredited agency which was authorized to conduct the study in this regard.
(viii) The District Collector/Deputy Commissioner, Chairman of Monitoring Committee is directed to take steps to register fishing boats with the Fisheries Department that are likely to operate in the rivers covered by CRZ Notification.
(ix) Whenever study is being conducted by the District Monitoring Committee through the accredited agency, they must ascertain the nature of hindrance that is likely to be caused on account of the presence of sandbars for movement of fishing boat, the length and breadth of sandbar vis-a-vis, the length and breadth of the concerned river at the relevant stretch and the quantity and the width of the sandbar that is required to be removed for the purpose of achieving the aim of providing free flow of river and also free navigation of fishing boats or one of the same.
(x) The Committee must also ensure that the permit holders have to carry out the work by themselves and they should not be allowed to carry out the same by subcontracting the same to others. If the fishing community want to do the same with the help of their family members, then there must be some regulation to be made by the authority for registering the name of those persons also as helpers of the permit holders so as to avoid the natural resources being Page 50 of 57 exploited by persons other than the local community for whose interest such permissions have been granted.
(xi) The District Collector/Deputy Commissioner, the Chairman of District Monitoring Committee is directed to take steps to assess the Environmental Compensation for excess mining or transport of sand from the sandbar done against the permission granted apart from realization of the penalty as has been done and registering the cases and that amount will have to be used for the purpose of nourishment of sand in the riverbed area covered in the CRZ Notification. This amount will have to be calculated on the basis of the total extent of such illegal mining done against the permit granted applying the principles laid down in Common Cause v Union of India reported in 2017 (9) SCC 499.
(xii) The Officials must also ensure that the vessels, Boats, permissible Vehicle, as per the Office Memorandum that are being used must be registered with the authorities and are fitted with GPS so that their movements can be traced and action can be taken if there is any violation found.
(xiii) The State of Karnataka is directed to ensure an effective mechanism to Monitor these activities by forming State Level Task Force Committee under the Chairmanship of Principal Secretary Environment and Forests, the other members may be from Mining Department, State Environment Impact Assessment Authority, Karnataka Coastal Zone Management Authority, so that effective Monitoring of the same can be done and the violations can be dealt with effectively in accordance with law. Similar committee may be Page 51 of 57 constituted at District Level under the Chairmanship of the District Collector/Deputy Commissioner.
(xiv) The sand removed from sandbars, if permitted as per rules shall not be sold and it can be used only for levelling low lying areas of the river bed, sand nourishment in beaches and strengthening of the river bunds.
74. The points are answered accordingly.
75. In the result, the application is allowed in part and disposed of with the following directions:
(i) The present methodology adopted by the State of Karnataka of collecting nominal amount from the permit holder and permitting the permit holder to sell it outside without fixing any amount will amount to mining as it will amount to winning of mineral for commercial exploitation, which is not permissible under the CRZ Notification. This practice is be deprecated and this should be stopped forthwith.
(ii) The District Monitoring Committee is directed to ensure that in the guise of removal of sand bar no illegal sand mining is carried out in that area in the CRZ Zone.
(iii) A study must be conducted independently regarding the width of the river and the width and breadth of the sandbar developed in that area and also study the extent of removal of sandbar which is required for the purpose of smooth flow of Page 52 of 57 the river and ensure free navigation of fishing boats which are registered with the authorities. Only if fishing boats are being used by the local community for undertaking their fishing activity, then only the question of removal of sandbar for ensuring free navigation of such fishing boats will arise. This aspect must be ensured by the authorities before identifying the sandbars from where the sand will have to be removed.
(iv) The District Collector/Deputy Commissioner, the Chairman of the District Monitoring Committee, Udupi is directed to ensure while selecting persons from the local community and civil society as members of the committee in such a way that they must be independent and they are not involved in extraction of sand and apply for permission for this purpose so as to ensure transparency and independent unbiased appraisal while considering the proposal for issuing permission.
(v) The District Monitoring Committee is directed to ensure that no illegal sand mining is carried out in the guise of removal of sandbar in the permitted areas within the location provided and if there is any violation found, then they are directed to take appropriate action against those persons, including imposition of Environmental Compensation and realize the amount from them in accordance with law.
Page 53 of 57
(vi) They must also ensure that there should not be any use of heavy machineries and heavy vehicles for transport of sand or removal of sandbar which is permitted under CRZ Notification, against the guidelines issued by the MoEF & CC in this regard, which clearly prohibits usage of heavy machineries and vehicles.
(vii) The District Monitoring Committee, Udupi District, the District Collector/Deputy Commissioner, Udupi District, State Environment Impact Assessment Authority, Karnataka and Karnataka State Coastal Zone Management Authority and the Environment Department of State of Karnataka are directed to ensure implementation of guidelines issued by Ministry of Environment, Forest and Climate Change by their Office Memorandum dated 24.02.2011, 09.06.2011 and 08.11.2011 and strictly adhere to the conditions imposed and timeline provided for removal of sandbar and methodology provided under the permissions granted by Karnataka State Coastal Zone Management Authority and also the accredited agency which was authorized to conduct the study in this regard.
(viii) The District Collector/Deputy Commissioner is directed to take steps to register fishing boats with the Fisheries Department that are likely to operate in the rivers covered by CRZ Notification.
Page 54 of 57
(ix) Whenever study is being conducted by the District Monitoring Committee through the accredited agency, they must ascertain the nature of hindrance that is likely to be caused on account of the presence of sandbars for movement of fishing boat, the length and breadth of sandbar vis-a-vis, the length and breadth of the concerned river at the relevant stretch and the quantity and the width of the sandbar that is required to be removed for the purpose of achieving the aim of providing free flow of river and also free navigation of fishing boats either both or one of the same.
(x) The Committee must also ensure that the permit holders have to carry out the work by themselves and they should not be allowed to carry out the same by subcontracting the same to others. If the fishing community want to do the same with the help of their family members, then there must be some regulation to be made by the authority for registering the name of those persons also as helpers of the permit holders so as to avoid the natural resources being exploited by persons other than the local community for whose interest such permissions have been granted.
(xi) The District Collector/Deputy Commissioner, the Chairman of District Monitoring Committee is directed to take steps to assess the Environmental Compensation for excess mining or transport of sand from the sandbar done against the permission granted apart from realization of the penalty as Page 55 of 57 has been done and registering the cases and that amount will have to be used for the purpose of nourishment of sand in the riverbed area covered in the CRZ Notification. This amount will have to be calculated on the basis of the total extent of such illegal mining done against the permit granted applying the principles laid down in Common Cause Vs. Union of India reported in 2017 (9) SCC 499.
(xii) The Officials must also ensure that the vessels, Boats, permissible Vehicle, as per the Office Memorandum that are being used must be registered with the authorities and are fitted with GPS so that their movements can be traced and action can be taken if there is any violation found.
(xiii) The State of Karnataka is directed to ensure an effective mechanism to Monitor these activities by forming State Level Task Force Committee under the Chairmanship of Principal Secretary Environment and Forests, the other members may be from Mining Department, State Environment Impact Assessment Authority, Karnataka Coastal Zone Management Authority, so that effective Monitoring of the same can be done and the violations can be dealt with effectively in accordance with law. Similar Committee must be constituted at District Level under the Chairmanship of the District Collector/Deputy Commissioner.
Page 56 of 57
(xiv) The sand removed from sandbars, if permitted as per rules shall not be sold and it can be used only for levelling low lying areas of the river bed, sand nourishment in beaches and strengthening of the river bunds.
(xv) Considering the circumstances, parties are directed to bear respective cost in the application.
(xvi) The Registry is directed to communicate this order to the
Deputy Commissioner, Chairman of the Monitoring
Committee, Udupi District, the Principal Secretary for Environment, Department of Fisheries, State Environment Impact Assessment Authority, Karnataka Coastal Zone Management Authority, Chief Secretary, State of Karnataka for their information and compliance with the directions.
76. With the above directions and observations, the application is disposed of.
Sd/-
Justice K. Ramakrishnan, J.M. Sd/-
Dr. Satyagopal Korlapati, E.M. O.A. No. 252 of 2017 18th May, 2022. SE Page 57 of 57