National Green Tribunal
M/S Pasupati Rice Mills Pvt. Ltd. ... vs The Union Of India Through Secretary ... on 12 December, 2019
Item Nos. 01 to 06
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 62/2019 (EZ)
(I.A. No. 49/2019, I.A. No. 61/2019 & I.A. No. 75/2019)
WITH
Original Application No. 63/2019 (EZ)
(I.A. No. 50/2019)
WITH
Original Application No. 64/2019 (EZ)
(I.A. No. 51/2019)
WITH
Original Application No. 65/2019 (EZ)
(I.A. No. 52/2019)
WITH
Original Application No. 66/2019 (EZ)
(I.A. No. 53/2019 & I.A. No. 64/2019)
WITH
Original Application No. 67/2019 (EZ)
[I.A. No. 56/2019 (EZ) & I.A. No. 62/2019 (EZ)]
Pasupati Rice Mill Pvt. Ltd. Applicant(s)
Versus
The Union of India & Ors. Respondent(s)
With
Maa Jagdambe Engicon LLP Applicant(s)
Versus
The Union of India &Ors. Respondent(s)
1
With
Krishna Kumar Applicant(s)
Versus
The Union of India &Ors. Respondent(s)
With
Sujit Kumar Applicant(s)
Versus
The Union of India &Ors. Respondent(s)
With
Pawan Kumar Applicant(s)
Versus
The Union of India &Ors. Respondent(s)
With
Ajab Singh Yadav Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing : 02.12.2019
Date of uploading : 12.12.2019
CORAM: HON'BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
Applicant(s): Mr. Pinaki Mishra, Senior Advocate, Mr. Gourab
Banarji, Senior Advocate, Mr. Brijender Chahar,
Senior, Mr. Pankaj Bhagat, Advocate, Mr. Suraj
Samdarshi, Ms. Vidya Pawar, Mr. Vinod
Chaurasia, Mr. Sunil Shukla, Mr. Alok Sangwan,
and Mr. Sadre Alam, Advocates (in Item No. 01-
05).
2
Mr. Sudhir Nandrajog, Senior Advocate, Mr.
Kripa Shankar Prasad, Mr. Prabodh Kumar
Singh and Mr. Sunil Shukla, Advocates (in Item
No. 6)
Respondent(s): Mr. Atmaram NS Nadkarni, ASG along with Mr.
Keshav Mohan, Mr. Rishi K. Awasthi, Mr.
Saluador Santosh Rebello, Ms. Shivikka
Aggarwal, Neeleshwar Pavani, Ms. Riya Sonia,
Mrs. Tarini Sinha and Ms. Arzu Paul, Advocates
for Respondent No. 2 (State of Bihar).
Mr. Puneet Bali, Senior Advocate along with Mr.
Aditya Soni, Mr. Malak Bhatt and Mr. Atreyo
Banerjee, Advocates for Petitioner (in item no. 6.
Mr. Gora Chand Roy Choudhury, Advocate for
Respondent No. 1.
Mr. Soumitra Mukherjee, Advocate for
Respondent No. 1 (in Item No. 3).
Mr. Debasish Ghosh, Advocate for Respondent
No. 1
Mr. Surendra Kumar Advocate for Respondent
Nos. 2 & 4-6.
Ms. Anamika Pandey, Advocate for Respondent
No. 3
ORDER
1. These Original Applications have been taken up together for disposal by a common order as common questions arise in all the cases. The Applicants in these cases have sought to assail clauses 5(i) and 5 (ii) and clause 6 of the Bihar Sand Mining Policy, 20191 (for short the '2019 Policy') as being in violation of the directions of the Hon'ble Supreme Court in the case of Deepak Kumar & Ors. v. State of Haryana & Ors.2, the 'Sustainable Sand Mining Management Guidelines, 2016' and 1 Bihar Gazette Notification dated 14.08.2019, Bihar Sand Mining Policy No.-2/M.M.(Ba) 227/18-2650/M 2 (2012) 4 SCC 629 3 orders of this Tribunal in Satendra Pandey v. Ministry of Environment, Forest and Climate Change & Anr.3.
2. The Applicants state that as a consequence of the directions passed by the Hon'ble Supreme Court in the case of Deepak Kumar (supra), the State of Bihar, Respondent No. 2, formulated and notified New Sand Policy, 2013 vide Notification No. 2214/M dated 27.08.2013, for regulating sand mining activities within the State. Accordingly, sand mining activities were being governed by the aforesaid statute, Rules and notifications made thereunder, from time to time.
3. In terms of the report of the Core Group constituted by the Ministry of Environment Forest and Climate Change (MoEF&CC) (Technical Experts) and the guidelines issued by the Hon'ble Supreme Court, Notification No. 2887 dated 22.07.2014 was issued whereby the entire stretch of the river falling within a district was considered to be a single unit and treated it as one ecological unit for the purpose of settlement. The period of settlement was fixed for five years. This was carried out by way of an amendment to Rule 11 of the Bihar Minor Mineral Concession Rules, 1972 that provided for the mode of settlement. The amendment was brought about by Notification No. 3085 dated 11.08.2014 by inserting Rule 11(A) thereto.
3 O.A. No. 186/2016 (M.A. No. 350/2016) and other connected matters 4
4. According to the Applicant, the rationale behind treating the entire river stretch as one unit was to ensure that exploitation of minor minerals such as sand is not done in an unrestricted and unorganized manner and that exploitation of the minor minerals was proportionate to the reclamation and replenishment. The 'Sustainable Sand Mining Management Guidelines, 2016' was published by the MoEF&CC to ensure a sustainable method of mining minerals which would be environmentally friendly. These Guidelines also prescribed that the stretch of the river was to be considered as one unit to prevent indiscriminate exploitation of the rivers and that the permits should be granted stretch wise so as to maximize safeguards. It is contended that in O.A. No. 186/2018, the Tribunal vide order dated 13.09.2018 had deprecated the practice of reducing these areas to overreach the object of the Notification issued by the Environmental Impact Assessment Authorities.
5. The Applicant further contends that contrary to the above principles, the State of Bihar came out with the '2019 Policy' without any consultative process and without citing any source of power under which the policy was promulgated. The Applicant contends that vide the said Policy the Respondent No. 2 have sought to artificially bifurcate identified units of the river in the garb of controlling exploitation imposing 5 unreasonable restrictions in permitting one individual or entity to have only two blocks in violation of Article 19 (1) (g) of the Constitution of India. The '2019 Policy' was bought in haste even without the comments of the SEIAA which, in fact, had objected to the artificial bifurcation of similar/homogenous stretches of the river bed. It is urged that the '2019 Policy' is in direct contravention of the judgments passed by the Hon'ble Supreme Court and the Tribunal.
6. The State Respondents, in their reply, have refuted all material allegations canvassed by the Applicants and contended that they have failed to make out a case which would amount to substantial question relating to environment and, therefore, the application was not maintainable under Section 14 and/or 18 of the National Green Tribunal (NGT) Act, 2010. It is stated that the Bihar Sand Mining Policy, 2019 has been devised in exercise of the powers under vested under Section 15 of the of the Mines & Minerals (Development and Regulation) Act, 1957 under which the States have been empowered to issue subordinate legislations. After careful consideration of a five years' experience of the Bihar Minor Miner Concession Rules, 1972 (since repealed), a new policy, namely, Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation and Storage) Rules, 2019 was framed with the object to curb manipulative activities in sand mining and to ensure 6 environmentally sustainable mining by repealing the 1972 rules. Thus, according to the State Respondents, the contention of the Applicant that the '2019 Policy' is in contravention of Rule 11(A) of the 1972 Rules which ceased to exist does not survive. The '2019 Policy' was in accord with the directions of the Hon'ble Supreme Court in Deepak Kumar (Supra) as the policy makes it mandatory to obtain EC for mining settlements. The direction was issued by the Hon'ble Supreme Court with the object of protecting environment and ecology of river as well as for the protection of soil, river banks, river beds, etc. by having a systematic and scientific mining plan and to settle homogenous river stretches. It is strongly urged that contrary to the contention of the Applicant, the '2019 Policy' is in strict compliance of the provisions of the 'Sustainable Sand Mining Guidelines, 2016' in line with the settled legal principles and does not contravene any of the directions/guidelines issued by the Hon'ble Supreme Court and is in accord with the 'Sustainable Sand Mining Management Guidelines, 2016' and published after obtaining necessary clearance from the SEIAA. Thus all relevant factors have been taken into consideration in framing the policy.
7. Emphasizing on the object of the '2019 Policy', it is stated that it was with the object to ensure that sand mining in the State of Bihar was carried out in an environmentally sustainable 7 manner to ensure availability of adequate quantity of sand for construction at a reasonable price and to increase the number of settlees thereby generate employment.
8. It is further contented that the State Government has prepared survey reports of each district and the settlee/project proponent has carried out replenishment study of Sand Ghats of both the pre monsoon and post monsoon periods of the districts falling in the southern part of Bihar by appointing independent agencies.
9. Mr. Pinaki Mishra, learned Senior Advocate appearing on behalf of the Applicant, in O.A. No. 62/2019/EZ and O.A. No. 67/2019/EZ which were the lead cases taken up for hearing, submitted that sub-clauses (i) and (ii) of Clause 5 of the Bihar Sand Mining Policy, 2019 was in conflict with the 'Sustainable Sand Mining Guidelines, 2016' and the decision of the Hon'ble Supreme Court in the case of Deepak Kumar (supra) as it permitted division of river stretches in a district into contiguous blocks. As per the comments of the SEIAA, Bihar dated 19.08.2019 as the 'Sustainable Sand Mining Management Guidelines, 2016' strictly prohibits artificial breaking of homogenous stretches of river bed for granting leases for sand mining, the policy was required to be revisited to fit into the framework of the Hon'ble Supreme Court's order. Reference was also made to Sand Policy, 2013 of the State of 8 Bihar and Notification dated 22.07.2014 regarding settlement of Sand Ghats under the Sand Policy, 2013, which inter alia also prescribed the entire river bed lying in one district to be treated as one stretch.
10. Supplementing the submissions of Mr. Mishra, Mr. Gourab Banerji, learned Senior Advocate appearing in O.A. No. 66/2019/EZ, emphasized that the primary requirement under the 'Sustainable Sand Mining Management Guidelines, 2016' for preparation of District Survey Report (DSR) and to undertake replenishment studies, have not been fulfilled and the State had chosen to go ahead with the '2019 Policy' in a hurry making the bonafides of the State suspect. No DSR had been prepared and, if prepared, it had not been uploaded on the website as required under the guidelines.
11. Similarly, Mr. Brijender Chahar, learned Senior Advocate appearing in O.A. No. 65/2019/EZ, in his submissions pointed out that the object of the '2019 Policy' stated to be to ensure availability of adequate quantity of sand for construction at reasonable price and to generate employment appear to be belied by Clause 7 of the Policy which permitted registered companies, partnership firms, societies including co-operative societies, sole proprietorships, individuals and consortia of up to two such entities to be eligible to bid for the leases and that, under Clause 12 sale price of sand to the end 9 user or the public would be decided by the market force. According to the learned Senior Counsel, the policy suffered from inherent contradictions.
12. Upon hearing the learned Counsels for the parties and after examining the various pleadings and the records, we find that the Applicants have not been successful in making out any case for our interference with the Guidelines, 2019.
13. Clause 5(i) and 5(ii) of the '2019 Policy' impugned by the Applicants is read as under:
"5. The main objectives of the new Sand policy 2019, are threefold:-(i) to ensure that sand mining is done in an environmentally sustainable manner, (ii) to ensure availability of adequate quantity of sand for construction at a reasonable price and (iii) to increase the number of setlees to ensure generation of employment. The settlement of sand is proposed to be done in following manner:
Sand Ghat Units:-
(i) Every river in district, shall be considered as a different reach and major sand reaches like Sone, Kiul, Falgu, Morhar and Chanan shall be divided into sustainable contiguous blocks, wherever possible, keeping in mind the topography of the river for settlement.
(ii) Similarly other reaches within a district shall be divided as per requirement for the purpose of settlement."
14. As would appear from the above, Clause 5(i) inter alia provides that every river in a district shall be considered as a different stretch and the major sand reaches of districts would be 10 divided into sustainable contiguous blocks wherever possible and, Clause 5(ii) enables the State to divide reaches/stretches within a district for the purpose of settlement.
15. Thus, the contention of the Applicants that each river as a whole situated in each district should be considered as a single stretch appears to have been satisfied. If it is their contention that entire river stretches in a State should be treated as a single stretch then, it would not be in consonance with the 'Sustainable Sand Mining Management Guidelines, 2016' which lays down that every river stretch in a district shall be taken as an ecological unit as would be evident from the chapter on 'Sustainable Sand and Gravel Mining Management Guidelines, 2016'4 and 'The Structure of District Survey Report'5 contained therein.
16. The other contention of the Applicants is that sub-clauses (i) and (ii) of Clause 5 permitting the State to further divide reaches in a district into sustainable continuous blocks as per requirement for the purpose of settlement, would be in violation of and offending the directions of the Hon'ble Supreme Court in the case of Deepak Kumar (supra) where settlement of smaller lease areas has been severely deprecated. This contention also does not appear to have substance as in 4 Page 21 of the Sustainable Sand Mining Management Guidelines-2016 5 Page 24 of the Sustainable Sand Mining Management Guidelines-2016 11 the case of Deepak Kumar (supra), the Hon'ble Supreme Court accepted that the minimum size of the mine lease should be 5 ha and preparation of comprehensive mine plan for contiguous stretches of mineral deposits was encouraged. This was based on the recommendations of the Core Group constituted by the MoEF&CC under the Chairmanship of the Secretary (Environment & Forests) vide its order dated 24.03.2009. We may reproduce the relevant portion below:-
"4.2 Size of the Mine Lease:
Area for grant of mine lease varies from State to State. Maximum area which can be held under one or more mine lease is 2590 ha or 25.90 sq. miles in Jammu & Kashmir. Rajasthan prescribed a minimum limit of 1 ha for a lease. Maximum area prescribed for permit is 50x50 m. In most of the States area of permit is not specified in the rules. It has recently been observed by Punjab and Haryana High Court in its order dated 15.5.2009 that State Government are apparently granting short term permits by dividing the mining area into small zones in effect avoids environmental norms.
There is, thus a need to bring uniformity in the extent of area to be granted for mine lease so as to ensure that eco-friendly scientific mining practices can be adopted. It is recommended that the minimum size of mine lease should be 5 ha. Further, preparation of comprehensive mine plan for contiguous stretches of mineral deposits by the respective State Governments may also be encouraged. This may suitably be incorporated in the Mineral Concession Rules, 1960 by Ministry of Mines."
[Underlining supplied]
17. The report of the Core Group was considered while framing the 'Sustainable Sand Mining Management Guidelines, 2016' adopting the recommendations which even the Hon'ble Supreme Court had accepted in terms of paragraph 4.2 of the 12 recommendations of the Core Group in paragraph 196 of Deepak Kumar's case (supra) extracted above. The 'Sustainable Sand Mining Management Guidelines, 2016' also stipulates 5 ha as the minimum size of a lease area. Having regard to such provision, the Sand Mining Report of the Government of India published by the Ministry of Mines, 2008 states that "the average size of the mining lease in 14 States varies from minimum 5 ha to 40 ha or no maximum limit." As evident from the undisputed documents placed by the State, in majority of the States rivers have been divided and the average mining lease size is 5 to 50 ha. By the '2019 Policy', the State of Bihar has divided river stretches into sustainable contiguous blocks based on the topography of the river.
18. Thus, we do not find any infraction having been committed by the State in publishing the impugned policy which would enable division of sand reaches in a district into sustainable contiguous blocks so long as the minimum size of such blocks is 5 ha. This also appears to have been taken care of by Rule 14 of the Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019 as will appear from its reproduction below:
"14. Maximum and Minimum area for a Mining lease/Settlement.-
6 Page 636 of (2012) 4 SCC 13
(a) No person shall acquire in the State in respect of any minor mineral one or more mineral concessions covering a total area of more than 200 (Two hundred) hectares.
Provided that in case of settlement of sand this limit shall be applicable only for rivers mentioned in clause 5(i) of Bihar Sand Mining Policy, 2019.
(b) The minimum area for grant of a mineral concession shall be 5 (five) hectares."
19. The submission of Mr. Banerji, learned Senior Counsel also appear to be belied in view of the categorical stand of the State that DSR have been prepared for each district and the concerned settlee/project proponent had carried out replenishment studies of Sand Ghats of both the pre and post monsoon seasons of the district falling in the Southern part of Bihar by appointing independent agencies. We may reproduce below paragraphs 22 and 23 of the reply of the State as being relevant:
"22. It is further submitted that the State Govt.
has prepared District Survey Reports of each District and concerned Settlee/Project Proponent has carried out Replenishment Study of Sand Ghats of both the pre monsoon and post monsoon period of districts falling in Southern part of Bihar by appointing independent agencies such as M/s. Institute of Environment & Eco Development etc. As per the summary record of 11th meeting of the reconstituted committee of the Expert appraisal committee for environmental appraisal of mining projects constituted under EIA Notification, 2006, dated 24.10.2016, clearly records that the sand mining proposal from the States like Bihar, wherein there are perennial rivers and are therefore replenished during monsoon and such annual replenishments raises the river bed at certain places along the river and need to be mined to avoid threats of flood during subsequent monsoon season. The Expert 14 Appraisal Committee was of the view that the States like Bihar, replenishment study is not required at the time of EC application and PP shall submit the replenishment study after 02 years of grant of EC.
23. The State Govt. ensured that the District Survey Report of minor minerals are prepared as per the guidelines laid down in appendix - X of the MoEF&CC notification dated 15.01.2016 and accordingly the District Survey Report of minor minerals have been prepared for and has been duly uploaded in departmental website (www.mines.bih.nic.in). However, this Hon'ble Tribunal vide its Order dated 11.12.2018 passed in the matter of 'Vikrant Tongad vs. Union of India', in Executive Application No. 55 of 2018 in O.A. No. 520 of 2016 has stayed the operation of the said notification dated 15.01.2016 issued by the MoEF & CC."
20. During the course of his arguments, Mr. Atmaram NS Nadkarni, learned ASG placed before us the original copy of the DSR prepared by the State, the replenishment studies undertaken by the settlee in respect of the stretches in question and the minutes of the 11th meeting of the Expert Appraisal Committee (EAC) dated 24-25.10.2016. We may reproduce the relevant portion of the minutes which reads as follows:
"The Committee deliberated the issues w.r.t. replenishment study for the sand/bajari mining projects from the various States. The Committee recommended the following:-
a) In case of Sand/Bajri mining projects from the State of Rajasthan, Project Proponents shall first conduct a scientific replenishment study and submit the report before the EAC for further consideration of amount of production for mining of sand/bajari on yearly basis. Therefore, the Committee deferred all such sand/bajari mining proposals of State of Rajasthan..15
b) The Sand Mining proposal from the other state namely Uttarakhand, Himachal Pradesh, Uttar Pradesh, Jammu and Kashmir, Haryana and Bihar wherein there are perennial river and are, therefore, replenished during monsoons. Such annual replenishments raise the river bed at certain place along the river and need to be mined to avoid thereat of floods during subsequent monsoon season. The Committee is of the view that such state like Uttarakhand, Uttar Pradesh, Himachal Pradesh, Jammu & Kashmir, Haryana and Bihar the replenishment study is not required at the time of EC application and PP shall submit the replenishment study after 02 years of grant of EC."
[Underlining supplied]
21. It is also the specific stand of the State Government that no mining would be permitted without mining plan being submitted by the lease holders and EC obtained as required under the EIA Notification, 2006.
22. In so far as the contention as regards the objection to the policies raised by the SEIAA with reference to letter dated 19.08.2019 written by the Chairman SEIAA to the Principal Secretary, Department of Environment & Forests, Government of Bihar, is concerned, it was submitted that the letter clarifies that the '2019 Policy' was signed by him on 17.08.2019 and, had enclosed the comments of the SEIAA according to which it had suggested that the policy formulated by the State Government may be revisited to fit within the frame of the Hon'ble Apex Court and that river stretches in a district may not be fragmented or broken to accommodate maximum number of ghats and for breaking monopoly as because a river is an ecological unit and more of its fragmentation may kill its 16 ecological significance, eco-stability as well as its resilience value for environmental control and various other factors quickly.
23. Mr. Atmaram NS Nadkarni, learned ASG strongly urges that letter dated 19.08.2019 was an internal communication between the State Government and the SEIAA. According to learned ASG, the comments were duly considered by the State Government. The '2019 Policy' was discussed and finalized in consultation with the Law and Finance Department of the State as per the established procedure.
24. Upon consideration of the submissions, we find that the '2019 Policy' is in conformity with the directions of the Hon'ble Supreme Court and the 'Sustainable Sand Mining Management Guidelines, 2016'. The reliance on the decision to the case of Deepak Kumar (supra) by the Applicants, appears to be misplaced as it only barred the States from splitting homogenous areas into small plots of less than 5 ha to avoid the rigors of the EIA procedure under the EIA Notification, 2016. In the '2019 Policy', this requirement is found to have been complied with as the minimum size of leases is 5 ha.
25. Letter dated 20.08.2019 addressed to the Principal Secretary, Department of Environment & Forest, Government of Bihar, 17 relates to the Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019 suggesting changes in some of the provisions of the rules. We are, however, not concerned with this in the present proceedings.
26. The Applicants have also contended that while framing the '2019 Policy' the State has not stated the source of power under which it was published. This contention appears to have been made overlooking the obvious power of the State to make policies, pass orders, issue administrative rules, circulars, instructions etc. in exercise of its executive powers so long as those are not violative of the constitutional and statutory provisions. However, in this proceeding we are not examining the constitutional vires of the policy being beyond our jurisdiction but only examining it strictly on the anvil of the environmental laws.
27. For all the aforesaid reasons, we find that the '2019 Policy' does not appear to suffer from any inadequacy or infirmity as pointed out by the Applicants.
28. So far as the grievance made out on behalf of the Applicants in restricting grant of leases only upto two to an individual in the '2019 Policy' as being in violation of the provisions of Article 19 (1) (g) of the Constitution of India as urged by Mr. Mishra, the Applicants have the remedy elsewhere as this question is also 18 not within the jurisdiction of the Tribunal to consider. Similar is the matter relating to the submission of Mr. Brijender Chahar regarding the inherent contradictions of the provisions pointed out by him.
29. In the result, the original applications stand dismissed alongwith connected I.As.
30. No order as to costs.
S.P. Wangdi, JM Dr. Satyawan Singh Garbyal, EM 12th December, 2019 O.A. Nos. 62/2019 (EZ) with other connected matters avt 19