National Green Tribunal
Smt Geeta Alias Laxmi Meena vs State Of Madhya Pradesh Through ... on 23 August, 2022
Item No. 04
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 75/2021 (CZ)
(I.A. No. 25/2022)
Smt. Geeta @ Laxmi Meena. Applicant(s)
Versus
State of Madhya Pradesh & Ors Respondent(s)
Date of hearing: 23.08.2022
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Mr.Rohit Sharma, Adv.
For Respondent(s) : Mr. Sachin K Verma, Adv
Mr. Yadvendra Yadav, Adv
ORDER
1. It is undisputed that there is huge degradation of environment on account of unregulated sand mining which remains otherwise lucrative activity. It poses threat to bio-diversity, could destroy riverine vegetation, cause erosion, pollute water sources, badly affecting riparian ecology, damaging ecosystem of rivers, safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the riverbeds, affects fish breeding and migration, spell disaster for the conservation bird species, increase saline water in the rivers. It has direct impact on the physical habitat characteristics of the rivers such as bed elevation, substrate composition and stability, in-stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Increase in demand of sand has placed immense pressure in the supply of sand resource and mining activities were going on illegally as well as legally without requisite restrictions. Lack of proper planning and sand management disturbs marine ecosystem and upset the ability of natural marine processes to replenish the sand. The 1 Hon'ble Supreme Court (in Deepak Kumar, supra) noted that a core group was constituted by the MoEF&CC to examine the impact of minor minerals on riverbeds and ground waters. A draft report was prepared recommending mandatory preparation of mining plan on the pattern of mining plans for major minerals. Further recommendations are reclamation and rehabilitation of abandoned mines, proportion of hydro geo-logical balance for minerals below ground water table limiting depth of mining to water and identification of locations where mining should be permitted was required. There is need for identifying safety zones in the proximity of intendments. Thus, strict regulatory parameters were required for regulating mining of minor minerals. It was noted that in-stream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the stream bed causes deepening of rivers which may result in destruction of aquatic and riparian habitats. It has impact on stream's physical habitat characteristics.
2. In State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, at page 790, it was observed :
"32. The policy and object of the Mines and Minerals Act and Rules have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature. The Court cannot lose sight of the fact that adverse and destructive environmental impact of sand mining has been discussed in the UNEP Global Environmental Alert Service Report. As per the contents of the Report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in India, it was stated that sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our country."
"33. The mining of aggregates in rivers has led to severe damage to rivers, including pollution and changes in levels of 2 pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 cm a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion.
34. The Report also dealt with the astonishing impact of sand mining on the economy. It states that tourism may be affected through beach erosion. Fishing, both traditional and commercial, can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structures for water supply.
35. Sand is often removed from beaches to build hotels, roads and other tourism-related infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors--beaches themselves. Mining from, within or near a riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, instream roughness of the bed, flow velocity, discharge capacity, 3 sediment transportation capacity, turbidity, temperature, etc. Alteration or modification of the above attributes may cause hazardous impact on ecological equilibrium of riverine regime. This may also cause adverse impact on instreambiota and riparian habitats. This disturbance may also cause changes in channel configuration and flow paths.
.....Today, demand for sand and gravel continues to increase. Mining operators, instead of working in conjunction with cognizant resource agencies to ensure that sand mining is conducted in a responsible manner, are engaged in full-time profiteering. Excessive in-stream sand and gravel mining from riverbeds and like resources causes the degradation of rivers. In-stream mining lowers the stream bottom, which leads to bank erosion. Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river mouths and coastal inlets. It also leads to saline water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in-stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in-stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the streambed and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction of sand from riverbeds may also cause the entire stream-bed to degrade to the depth of excavation."
3. Mining within the State is required to be regulated not only by the Mining Department but also by the State Pollution Control Board under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981and by the MoEF& CC under the Environment (Protection) Act, 1986. The Environmental Laws override other laws and any 4 provision contrary in the Mines Act, 1952 will not stay in the way of enforcing environment norms. The Enforcement and Monitoring Guidelines for Sand Mining, 2020 (EMGSM-2020) seeks to provide effective enforcement and monitoring from the stage of identification of source to its dispatch and in use which requires environment of all stakeholders, Central Government, State Government, Lease Holders, Mine Owners, Distributors, Dealers, Transporters and Consumers. The guidelines issued from the MoEF&CC makes EC mandatory irrespective of the area of mining lease, followed by monitoring in terms of the Environment Management Plan, using IT and IT enabled services.
4. Dealing the similar matter in O.A. No. 173/2018(EZ) Sudarsan Das Vs State of West Bengal & Ors. vide order dated 04.09.2018 this Tribunal observed as follows :-
"18. We may note the salient features of the EMGSM- 2020, which are supplemental to existing SSMG-2016 and seek to provide effective enforcement and monitoring from the stage of identification of source to its dispatch and end use which requires involvement of all stakeholders viz. Central Government, State Government, Leaseholders/Mine Owners, Distributors, Dealers, Transporters and Consumers (bulk & retail). EMGSM refer to the judgment of the Hon'ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors.
(2012) 4 SCC 629 making EC mandatory
irrespective of the area of mining lease,
followed by monitoring in terms of the
Environment Management Plan, using IT
and IT enabled services. Monitoring has to be with reference to quantity of mined material, transportation with a view to promote environmental protection, limit negative physiological, hydrogeological and social 5 impacts underpinning sustainable economic growth. Observations in the order of this Tribunal dated 04.09.2018 in O.A. 173/2018 in Sudarsan Das vs. State of West Bengal & Ors. has also been referred to as follows:
"There can be no two views that an effective institutional monitoring mechanism is required not only at the stage when Environmental Clearance is granted but also at subsequent stages".
"The guidelines focus on the preparation of District Survey Report and the Management Plan"
...
We are of the view that all the safeguards which are suggested in sustainable sand mining guidelines as well as notification dated 15.01.2016 ought to be scrupulously followed." ...
It is a known fact that in spite of the above- suggested guidelines being in existence, on the ground level, illegal mining is still going on. The existing mechanism has not been successful and effective in remedying the situation." ...
Since there is an utter failure in the current monitoring mechanism followed by the State Boards, SEIAAs and DEIAAs, it is required to be revised for effective monitoring of sand and gravel mining and a dedicated monitoring mechanism be set up."
Further reference has been made to the directions in the order dated 05.04.2019 requiring the 17 States, which were party before the Tribunal viz. West Bengal, Gujarat, Karnataka, Maharashtra, Punjab, Uttar Pradesh, Haryana, Madhya Pradesh, Andhra Pradesh, Bihar, Uttarakhand, Jammu and Kashmir, Goa, Kerala, Telangana and Tamil Nadu and Himachal Pradesh, to follow the revised Guidelines and to 6 review their respective monitoring mechanism. It is then stated that with the object of regulating the mining, the sources of sand and steps required are mentioned which provide for District Survey Report (DSR), Mining Plan, replenishment study, consideration of environment impact while granting EC, laying down conditions for EC, monitoring of transportation to the end user to ensure that only legally mined material is transported. There is need to balance between deposition and extraction of sand as per replenishment study, maintaining surveillance, using Unmanned Artificial Vehicles (UAVs)/Drone for reserves estimation, quantity estimation, land use monitoring. Details about all these aspects have been mentioned in the said Guidelines. With regard to post EC monitoring, there is a provision for environment audit, monitoring of sale and purchase by developing online portal and laying down the levels of monitoring i.e. Level 1- Reach/ Stockyard level monitoring, Level 2 -
Transportation monitoring, Level 3 - End consumer monitoring/ bulk consumer, Level 4 - Indirect monitoring.
Reference has then been made to the High-
Powered Committee incorporating safeguards to be adopted by the project proponents. There is also provision for assessment of compensation for the ecological damage by the State/ PCB/ any other Authority. Inter District and Inter State boundaries are separately dealt with. The uniform monitoring mechanism stipulates:
" 9.4. Monitoring Mechanism xxx....xxx....xxx......
1. All precaution shall be taken to ensure that the water stream flows unhindered and process of Natural river meandering doesn't get affected due to mining activity.
2. River mining from outside shall not affect rivers, no mining shall be permitted in an area up to a width of 100 meters from the 7 active edge of embankments or distance prescribed by the Irrigation department.
3. The mining from the area outside river bed shall be permitted subject to the condition that a safety margin of two meters (2 m) shall be maintained above the groundwater table while undertaking mining and no mining operation shall be permissible below this level unless specific permission is obtained from the Competent Authority. Further, the mining should not exceed nine-meter (9 m) at any point in time.
4. Survey shall be carried out for identifying the stretches having habitation of freshwater turtles or turtle nesting zones. Similarly, stretches shall be identified for other species of significant importance to the river ecosystem. Such stretch with adequate buffer distance shall be declared as no-mining zone and no mining shall be permitted. The regulatory authority as defined for granting Environmental Clearance, while considering the application of issuance of ToR and/or EC for the adjacent block (to non- mining zone) of mining shall take due precaution and impose requisite conditions to safeguard the interest of such species of importance.
5. District administration shall provide detailed information on its website about the sand mines in its district for public information, with an objective to extend all information in public domain so that the citizens are aware of the mining activities and can also report to the district administration on any deviation observed. Appropriate feedback and its redressal mechanism shall also be made operational. The details shall include, but not limited to, lease area, geo- coordinates of lease area and mineable area, transport routes, permitted capacity, regulatory conditions for operation including mining, environmental and social commitments etc.
6. A website needs to be maintain to track the movement of centralised sand mining and a Centralised server system should be made to manage the data related to sand mining across India.
7. The mineral concession holders shall maintain electronic weighbridges at the appropriate location identified by the district mining officer, in order to ensure that all mined minerals from that particular mine are accounted for before the material is dispatched from the mine. The weighing bridge shall have the provision of CCTV camera and all dispatch from the mine shall be accounted for.
8. The mineral movement shall be monitored and controlled through the use of transit permit with security features like printing on IBA approved 8 MICR papers, Unique bar/QR, fugitive ink background, invisible ink mark, void pantographs and watermarks papers or through use of RFID tagged transit permits and IT /IT-enabled services. Such monitoring system shall be created and made operationalised by State Mining department and district level mining officer shall be responsible for ensuring that all legal and operational mines are connected and providing the requisite information on the system. Regular check and associated report shall be submitted to DLTF and uploaded on the website.
9. State Government shall constitute a District Level Task Force (DLTF) under the Chairmanship of Deputy Commissioner/ District Magistrate/ Collector with Superintendents of Police and other related senior functionaries (District Forest Officer, District transport officer, Regional officer- SPCBs, Senior Officer of Irrigation Department, District Mining Officer) with one/two independent member nominated by the Commissioner concerned. The independent member shall be retired government officials/teacher or ex- serviceman or ex-judiciary member.
The DLTF shall keep regular watch
over the mining activities and
movement of minerals in the
district. The DLTF shall have its
regular meeting, preferably every
month to reconcile the information
from the mining activity, and other
observations made during the
month and take appropriate
corrective and remedial action,
which may include a
recommendation for revoking
mining lease or environmental
clearance. The DLTF may constitute
an independent committee of the
expert to assess the environmental or
ecological damage caused due to
illegal mining and recommend
recovery of environmental
compensation from the miner's
concern. The
recommendation may also include
action under the provision of E(P)
Act, 1986.
10. The area not identified for mining due to restriction or otherwise are also to be monitored on a regular basis by the DLTF. Any observations of mining activity from the restricted area shall be reported and corrective measures shall be initiated on an urgent basis by the DLTF.
11. The dispatch routes shall be defined in the Environmental Clearance and shall be avoided through densely habituated area and the increase in the number of vehicle movement on the road shall be in 9 agreement with the IRC guidelines / carrying capacity of the road. The alternate and dedicated route shall be explored and preferred for movement of mining to avoid inconvenience to the local habitat. The mining production capacity, by volume/weight, shall be governed by total permissible dispatch calculated based on the carrying capacity of dispatch link roads and accordingly, the production should be regulated.
12. The movement of minerals shall be reconciled with the data collected from the mines and various Naka/check posts. Other measures may also include a general survey of the potential mineable area in the district which has not been leased/auctioned or permitted for mining due to regulatory or other reasons.
13. The location and number of check post requirement shall be reviewed by DLTF on a regular basis so that appropriate changes in location/number could be made as per the requirement. Such review shall be carried out on a regular basis for the district on inter-state boundary or district providing multiple passages between two districts of different states.
14. The district administration shall compile the information from their district of the permitted and legal mined out minerals and other details and share such information and intelligence with the officials of the adjoining district (Inter or/and Intra State) for reconciliation. The information shall include the area of operation, permissible quantity, mined out minerals (production) the permitted route etc., and other observations, especially where the mine lease boundary is congruent with the district boundary. Such coordination meeting shall be held on a quarterly basis, alternatively in two district headquarters or any other site in two districts decided mutually by the District Magistrate.
15. The mining department shall include submission of an annual environmental audit report as one of the conditions in the mining lease agreement. The annual audit for each river bed mining lease shall be carried out and the audit report shall be uploaded on the website of district administration. The audit shall be carried out by an independent team of 3 members nominated by District Collector/Magistrate/Commissioner comprising of Ex- Serviceman, Ex-
Government officials of repute,
Professor or Person having
experience of
mining/environment. The
guidelines and method of the audit
shall reflect adequately the
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monitor-able parameters and
output and reflect the compliance
status with respect to the
conditions imposed by the
regulatory authorities including
conditions of Environmental
clearance.
16. The in-situ and ex-situ environmental mitigative measures stipulated as EMP, CER, CSR and other environmental and safety conditions in mines including the welfare of labours shall properly reflect in the audit report.
9.5 Suggestive additional requirements are-
i. The requirement at the Mine Lease Site:
a. Small Size Plot (Up to 5 hectares):
Android Based Smart Phone.
b. Large Size Plots (More than 5 hectares): CCTV camera, Personal Computer (PC), Internet Connection, Power Back up.
c. Access control of mine lease site.
d. Arrangement for weight or approximation of the weight of mined out mineral on the basis of the volume of the trailer of vehicle used.
ii. Scanning of Transport Permit or Receipt and Uploading on Server:
a. Website: Scanning of receipt on mining site can be done through barcode scanner and computer using the software;
b. Android Application: Scanning on mining site can be done using Android Application using a smartphone. It will require internet availability on SIM card;
c. SMS: Transport Permit or Receipt shall be uploaded on the server even by sending SMS through mobile. Once Transport Permit or Receipt get uploaded, a unique invoice code gets generated with its validity period. iii. Proposed working of the system:
The State Mining Department should print the Transport Permit or Receipt with security features and issue them to the mining leaseholder through the District Collector. Once these Transport Permits or Receipts are issued, they would be uploaded on the server against that mine lease area. Each receipt should be preferable with pre-fixed quantity, so the total quantity gets determined for the receipts issued. When the Transport Permit or Receipt barcode gets scanned and invoice is generated, that particular barcode gets used and its validity time is recorded on the server. So all the details of transporting of mined out material can be captured on the server and the 11 Transport Permit or Receipt cannot be reused.
iv. Checking On Route:
The staff deployed for the purpose of checking of vehicles carrying mined mineral should be in a position to check the validity of Transport Permit or Receipt by scanning them using the website, Android Application and SMS.
v. Breakdown of Vehicle:
In case the vehicle break-down, the validity of Transport Permit or Receipt shall be extended by sending SMS by the driver in specific format to report the breakdown of the vehicle. The server will register this information and register the breakdown. The State can also establish a call center, which can register breakdowns of such vehicles and extend the validity period. The subsequent restart of the vehicle also should be similarly reported to the server or call center.
vi. Tracking of Vehicles:
The route of the vehicle from source to destination can be tracked through the system using checkpoints, RFID Tags, and GPS tracking.
vii. Alerts or Report Generation and
Action Review:
The system will enable the authorities to develop a periodic report on different parameters like daily lifting report, vehicle log or history, lifting against allocation, and total lifting. The system can be used to generate auto mails or SMS. This will enable the District Collector or District Magistrate to get all the relevant details and shall enable the authority to block the scanning facility of any site found to be indulged in irregularity. Whenever any authority intercepts any vehicle transporting illegal sand, it shall get registered on the server and shall be mandatory for the officer to fill in the report on action taken. Every intercepted vehicle shall be tracked.
The monitoring of mined out mineral, environmental clearance conditions and enforcement of Environment Management Plan will be ensured by the regulatory authority and the State Pollution Control Board or Committee. The monitoring arrangements envisaged above shall be put in place. The monitoring of enforcement of environmental clearance conditions shall be done by the Central Pollution Control Board, Ministry of Environment, Forest and Climate Change and the agency nominated by the Ministry for the purpose.
12 Some of the State has followed the SSMMG-2016 and has also improvised or customized on the provisions given therein, and are successfully in operation. Salient provision adopted at different stages of sand mining in the state of Tamil Nadu is given as Annexure VIII.
9.6 Actions against illegal excavation and transport Solapur district administration in Maharashtra had adopted a multi-
pronged strategy to penalize the persons involved in illegal excavation and transport which resulted in a significant increase in revenue earned by the state.
Following rules and procedures as mentioned in these guidelines will add to the costs of PP. Those involved in illegal activities are not required to bear these costs and this will make their supply in the market cheaper (though illegal). This will put the players running their business by following rules and procedures laid down by the government to disadvantage as far as the selling price is considered. Therefore, it is necessary to come down heavily on those involved in illegal excavation/transport, so that there is no incentive for players to abide by the rules.
The following action may be taken to achieve this deterrence against illegal business:
1. The action should be taken under all legal options available simultaneously.
Thus, after identifying the case of illegal excavation, storage and/or transport of minor minerals (including sand), fine should be levied as per the land revenue laws/code(s) of the state. In addition, FIR should be lodged in the police station under relevant sections of law including sec 379 IPC. In addition, action under the Motor Vehicle Act, 1989 and relevant rules should initiate to cancel/suspend the driving license of the driver and permit of the vehicle.
Further, action should be initiated under provisions in the Income Tax Act, 1961 for unaccounted income and under the Central Goods and Services Act, 2017 for nonpayment of GST. (Earlier this was done under the state act pertaining to Value Added Tax/Sales Tax). Habitual offenders should also be taken up under local state laws for externment and/or preventive action. It is clarified that as per law, it is possible to take all actions under various laws simultaneously for one offence. What is prohibited in law is an action under the same law for the same act more than once.
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2. The action should be taken against all persons responsible. Often, there is a tendency to penalize only the drivers of the vehicles. The mafia of illegal mining and transport is much bigger and drivers are only one part of the system. It is necessary to identify all those involved in the offence. It is usually not possible to reach the place of excavation without creating a motorable pathway up to the same through land which may be private land. Such role of such landowners needs to be looked into for each offence and proceeded against simultaneously. Further, the role of vehicle owners needs to be probed.
Role of the person who allowed his land to be used for illegal excavation and storage should also be examined.
Lastly, the person who purchases such sand should also be probed. The legal proceedings stated above needs to be initiated against all of these together. An attempt should be made to fix the financial responsibility in joint and several ways so that recovery is easier.
3. There may be discretion available in law about the extent of the penalty to be levied. If such discretion is very wide, then it is advisable that guidelines may be laid down to reduce such discretion in law for levying penalties. For example, in Maharashtra, Land Revenue Code, fine of any amount of penalty up to thrice the value of the sand can be levied. Solapur district administration had instructed Tahsildars and SDMs not to use discretion and levy the fine of three times the value. Availability of discretion makes junior level functionaries susceptible to pressures and it may also lead to corrupt practices.
4. It is emphasized that actions, as stated above, are most important to ensure that the IT-based system works. If these exemplary actions are not taken against everyone, it shall create a strong disincentive to those involved in legal excavation and transportation. For IT-based (or any other) legal system to work, it is necessary to ensure that illegal system stops working altogether."
5. Issue raised in this application is illegal sand mining being carried out in the village Chipaner & Chouraskhedi, Tehsil Nasrullganj of District Sehore by means of tractors, dumpers & trollies along side of the River Narmada during night hours, mining through means of pandubbies and causing damage to the environment.
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6. It is further alleged that the Sub-Divisional Magistrate carried out a drive and seized more than 13 vehicles, which were involved in the illegal sand mining and transportation. The contractor i.e. M/s Power Mech has established 04 separate Ghats at Village Chipaner and continuously excavating sand and transporting the same through these 04 Ghats without any declared or demarcated, auctioned sand quarries enabling the entire sand extraction as illegal.
7. The matter was taken up by this Tribunal on 28.09.2021 and a committee was constituted as follows :
"5. We deem it just and proper to call a report on the matter in issue, in present Original Application, from a Joint Committee consisting of:-
(i) Collector, Sehore (M.P.)
(ii) District Mining Officer, Sehore (M.P.)
(iii) A representative of Madhya Pradesh Pollution Control Board
(iv) A representative of Central Pollution Control Board.
6. The Committee is directed to visit the place and submit the factual and action taken report within six weeks. The State PCB will be the nodal agency for coordination and logistic support.
7. The Collector, Sehore is directed to ensure that the compliance of guidelines of the Sustainable Sand Mining Management Guidelines, 2016 & The Enforcement and Monitoring Guidelines for Sand Mining, 2020 and also to ensure that there shall not be any illegal mining and/or any illegal transportation of the sand mining from Itarsipata, Sehore connecting roads."
8. In compliance thereof, the Joint Committee submitted the report, which is as follows :
"In compliance to the above order, the joint committee consisting of following officials of the concerned departments visited the Village Chhipaner and Chouraskhedi, Tehsil Nasrullaganj, District Sehore on 27/10/2021:15
1. Shri Chandra Mohan Thakur (IAS), Collector and District Magistrate, Sehore
2. Shri Rajendra Parmar, Mining Officer, Sehore.
3. Shri Brajesh Sharma, Regional Officer, MPPCB, Bhopal
4. Shri Anoop Chaturvedi, Scientist B, CPCB, RD Bhopal;
Along with the joint committee Shri Dinesh Singh Tomar, Sub- Divisional Magistrate, Nasrullaganj, Ms. Paulomi C. Patil, SSA, CPCB, Shri Santosh Suryavanshi, Mining Inspector and Shri Adarsh Malviya, Assistant Engineer (C), MPPCB Bhopal were also present during the inspection.
During the joint committee visit, the geographical location, photographs and other relevant information related to the petition were collected and are incorporated in the report. The observations recorded during the joint inspection are presented as follows:
1. GPS location of the ghat near Chhipaner and Chouraskhedi on River Narmada has been recorded using a mobile-based GPS application. The google map of the site and photographs taken during the inspection are enclosed herewith. (Annexure-1)
2. River Narmada flows from east to west direction and continuous flow of water in the river was observed during inspection.
3. Committee visited the village Chhipaner & Chouraskhedi, these villages are located on the right bank of River Narmada and sufficient flow of water is observed in the river during visit. The geographical coordinates of Chhipaner are 22.57964°N, 77.1509°E and Chouraskhedi are 22.58419°N, 77.1702°E and marked on google map.
4. Small pacca ghat is constructed on the right bank of river Narmada at the Village Chhipaner. The width of the river at the said location is approximately 500 m.
5. Committee observed that there is no sand stock available naturally on the right bank of the River Narmada especially along the bank of village Chouraskhedi and Village Chhipaner. The river 16 Narmada is flowing with water filled up to the boundary of right bank.
6. District Mining officer, Sehore informed that no sand mining leases are allotted on the right side bank of river Narmada in village Chhipaner & Chouraskhedi Tehsil Nasrullaganj District Sehore.
7. No tractors, dumpers, trollies, pandubbies and sand excavation are observed in the right bank of river during the visit. The left bank of the river falls under the jurisdiction of District Harda
8. Committee observed some small heaps of sand collected on the right bank of village Chhipaner & Chouraskhedi. District Mining Department informed the committee that the sand is brought from the left bank of the river manually and ferried to the right bank of the river using small boats by the locals of the nearby villages, stocked there in the form of small heaps and transported thereafter.
9. During inspection no illegal sand mining and illegal transportation of sand was observed by the committee, also no visible impact on the course of the river has been observed by the committee near Village Chhipaner & Chouraskhedi.
10. Committee visited the area on the right bank of river Narmada near Village Chhipaner & Chouraskhedi and no stock of sand was found.
Action taken:
11. As per the records of District Mining Office, following actions have been taken by the department to check the illegal transportation of sand in this area:
i. In last two years, 92 cases of illegal transportation were registered in village Chhipaner, Choraskhedi and Ranipur and a sum of Rs. 3689000/- were collected as a penalty. ii. In last two years, 09 cases of illegal sand stocking were registered in village Gopalpur, Chhipaner, Choraskhedi and Ranipura. 5915 17 cum. of sand was seized, imposing a penalty of Rs. 1,53,87,500/- on the defaulters of which Rs. 1,00,000/- has been recovered. iii. During the joint inspection of SDM, Nasrullaganj and District Mining Officer illegal sand stock of 1250 cum. was seized on dated 01.08.2020.
iv. During inspection dated 04.11.2020 at two different locations on Hoshangabad to Budhni route, 300 cum. of sand was seized. v. At village Chhipaner, a temporary bridge has been demolished twice which was being used for illegal mining.
12. In reference to Hon'ble NGT order dated 28.09.2021, District Collector, Sehore issued order no 2822 dated 11/10/2021 for the installation of two check posts at Village Chhipaner & Chouraskhedi to check / to prevent illegal transportation of sand. (Annexure-2)
13. To prevent the four wheeler movement from the village Chhipaner Ghat, metal barricading has been installed by the District Administration.
Recommendations:
1. Warning boards intimating the penalty for illegal mining and transportation of sand should be placed by the Mining Department at Village Chhipaner & Chouraskhedi.
2. The mining department should ensure the compliance of sustainable sand mining guidelines 2016 and Enforcement and Monitoring guidelines for sand mining 2020.
3. CCTV cameras should be installed at the check -posts. "
9. The matter was again taken up on 21.12.2021 by this Tribunal and CPCB was directed to submit the mechanism to control the illegal sand mining in consultation with the representative of the State Pollution Control Board, (M.P) before the next date of hearing for consideration. 18
10. In compliance thereof, the Central Pollution Control Board has submitted the recommendations as follows:
"In compliance of the same, Respondent No. 4 i.e. Central Pollution Control Board had consultation with Madhya Pradesh Pollution Control Board and Mining Department, Govt. of Madhya Pradesh to prepare a mechanism to control the i11ega1 sand mining in light of the illegal sand mining reported in the above NGT matter along with the illegality in sand mining reported all over the Madhya Pradesh State in various NGT matters.
1. Problem Statement The committee constituted in NGT O.A. 75 of 2O2l has. observed that mining department hasn't demarcated and declared any sand query on the right bank of Narmada River where villages Chipaner and Choursakhedi of Sehore district is situated. The committee observed many boats on the right bank of the river and found a good quantity of stored sand. The number of boats and storage of sand in non demarcated area reveals that illegal mining is being practiced by nearby villagers and others through boats. The illegal mining may be practiced from the river stream or from the demarcated mine lease on the left bank of river Narmada, district Harda. This kind of illegal mining and transportation are results of non-availability of the declared mine queries on the particular right bank of Narmada and availability of sand on left bank in declared mine.
Further, in Madhya Pradesh state illegal sand mining w.r.t. excavation of sand cases have been observed w.r.t. excavation of sand in excess quantity, excavation from non-demarcated area, improper District Survey report, unavailability of Annual Replenishment Studies, Environmental Clearance transfer without field verification of authorities etc. These issues were also discussed and included for finalizing the mechanism on the control of illegal sand mining.
2. Methodology adopted for the preparation of mechanism 19 To prepare a mechanism to control the illegal sand mining, Central Pollution Control Board had discussion with Madhya Pradesh Pollution Control Board and Mining Department, Govt. of Madhya Pradesh. The status of sand mining in light of sustainable sand mining guideline, 2016 (Annexure-R4-I) was explained by mining department. It was informed that mining is majorly operating inline of the guideline however there are several instances reported of illegal excavation of sand from the allotted quarries as well as from the areas which are not yet identified or allotted to anyone by mining department. It was also informed that no permission is granted for underwater sand mining, further it was informed that local habitat of village Chipaner and Choursakhedi of Sehore district are traditionally engaged in such underwater mining for livelihood.
3. Illegal Sand Mining 3.1 Definition The Hon'ble Supreme Court in its Judgment dated 02.08.2017 in W.P ll4 of 2014 in the matter of Common Cause Vs Union of India & Ors., defined the illegal mining as:
".....the holder of a mining lease is required to adhere to the terms of the mining scheme, the mining plan and the mining lease as well as the statutes such as the EPA, the FCA, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. If any mining operation is conducted in violation of any of these requirements, then that mining operation is illegal or unlawful. Any extraction of a mineral through on illegal or unlawful mining operation should become illegal or unlawfully extracted mineral."
3.2 Ways of Illegal Sand Mining There are various ways adopted by the miners to excavate, transport, and sell the sand illegally by violating the 1aw and by-passing the system. Following are the few reported / observed ways by which illegal sand mining takes place:
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i. Inadequate survey of available minable minerals ii. Excavation of sand outside the defined lease boundary and at deeper depth (>3m) iii. In-stream sand mining with heavy machineries and water boats and construction of permanent pathway in river iv. Excess loading of sand, transportation without ETP and time delay in transportation to the destination v. Transportation through alternative route vi. Continue excavation after the expiry of statutory permissions viz. Environmental Clearance, Consent to Operate
4.0 Recommended control mechanism to stop illegal mining i. Case: Inadequate survey of available minable minerals District Survey Report (DSR) is required for proper identification and quantification of available mineral resources. DSR is an important initial step before grant of mining lease/LOI (Letter of intent). The MoEF & CC has issued notification S.O. 3611(E) dated 25.O7.2018, wherein, the procedure of preparation of DSR is mentioned. Since sand deposition is a dynamic process, the DSR needs to be regularly updated i.e. every 5 year. Such kind of survey needs to be conducted by the committee comprising of Revenue department, Irrigation department, State Pollution Control Board (SPCB), Forest department and Geology & Mining department of the State Government through extensive field verification to quantify the minable minerals more authentically. Any third party survey report prepared without field visit and using secondary data/ satellite data sha1l results in improper quantification. Such kind of unauthentic minable sand data provides opportunities to the sand miners to excavate in excess or excavate from outside the boundaries to earn profit. Further, the Annual Replenishment Study (ARS) need to be carried out as per the procedure elaborated under the Enforcement & Monitoring Guidelines for Sand Mining, 2O2O to have the authentic quantification of the available mineable mineral after the mansoon and accordingly the 21 permitted quantity of sand excavation may be revised to avoid illegal mining.
ii. Case; Excavation of sand outside the defined lease boundary and at deeper depth then permitted The mining department need to ensure the geo-referencing of the declared mine lease to audit the ongoing mining activity w.r.t. illegal quantity of the mined sand. The provision of erecting permanent pillars is not followed at most of the mine lease site. The reason provided by mining department that it's not possible to erect the pillars as the base is not stable. To resolve this issue, tractor-mounted drillers can be used to fix the permanent pillar with flexible plastic rod that can bear the water pressure during rivers flow also the positioning of the pillars needs to be re-verified after the mansoon period to replace them as per the geo-referencing.
The mining department may schedule periodic visit of the ongoing mining followed by annual audit to check for its operation as per mine plan, excavated quantity, depth, pillars positions etc. The area not identified for mining due to restriction or otherwise is also to be monitored on a regular basis by the District Level Task Force (DLTF). Any observations of mining activity from the restricted area shall be reported and corrective measures shall be initiated on an urgent basis by the D.L.T.F. Mostly illegal sand mining occurs in the buffer zone area of bridge, highway, ESZ etc. to control it, help of local police and local administration is required with cordial coordination of local authorities and awareness among the peoples who are associated in it.
The local habitants, who are involved in the illegal excavation of sand, may be trained for other work or enrolled in MG-NREGA or similar type of government schemes of employment. The State Mining Department is already in progress of the same for the site related to the case i.e. Chhipaner and other nearby villages. On illegal sand mine, the mining department shall impose compensation for violation 22 of norms for mining on polluter pays principle. The assessment of the compensation needs to be computed based on the NET PRESENT VALUE (NPV) of ecological damage. The NPV is worked out in a site specific manner to account for all (or at least the major) ecological damages, a simplified NPV; proxies on the market value of the illegally extracted amount may be computed. In this NPV approach would imply that the total benefits from the activity of sand mining (as represented by the market value of the extracted amount) be deducted from the total ecological costs imposed by the activity. As per the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rule 2019 and according to Rule 20, the penal provision for illegal mining, Transportation and Storage of Sand has been provided viz. Penalty and Compounding of cases of Illegal Mining Penalty and compounding of cases of illegal transportation Compounding and Penalty in cases of Illegal Storage These penal provisions needs to be exercised in letter and spirit and deterrent penalty may be work out for repeated violator. A heavy penalty and seizer of vehicle will result in good control on the illegal sand mining.
iii. Case: In-stream sand mining with heavy machineries & water boats and construction of permanent pathway in river It was reported that sand miners are excavating the sand by using heavy machineries viz. JCB, Dumper etc in place of manual mining. In- stream sand mining by using heavy machineries and through water boats was also reported. In present matter, large number of the water boats was found on the right bank of the river Narmada near Chipaner and Choursakhedi village of Sehore district. Such kind of in- stream mining damages the eco-system of the river bed. The placing of the High definition Pan-Tilt-Zoom (PTZ) camera with internet connectivity at strategic location may help in strict vigilance by the mining department. The frequently used path needs to be restricted for heavy machineries by placing barricades. As done in this matter, by 23 placing the barricades at strategic location the movement of boats and other vehicles was restricted for the illegal sand transportation. Further the mining department may take strict action on the violation as per the Madhya Pradesh Mines and Minerals (Development and Regulation) Rules, 20 19 Chapter -X which deals with penalty and compounding of cases of illegal mining, transportation and storage of sand.
Further, on seizer of the vehicle used in illegal sand mining needs to be penalized as ordered on 19.2.2O2O in O.A. 44 12016 in the matter of Mushtakeem v. MoEF & CC & Ors. by Hon'ble NGT Sr. No Category of Vehicle Penalty amount 1 Vehicles / Equipments / Excavators with Rs. 4 lacs showroom value more than Rs. 25 lacs and less than 5 years old.
2 Vehicles/Equipments/Excavators with Rs. 3 lacs showroom value more than Rs. 25 lacs and more than 5 years but less than 10 years old.
3 For the remaining Vehicles older than 10 Rs. 2 lacs years/ Equipments / Excavators which are otherwise legally permissible to be operated and not covered by Serial No. 1 and 2.
Note: The option of release may be available for a period of one month from the date of seizure and thereafter, the vehicles may be confiscated and auctioned.
iv. Case: Excess loading of sand, transportation without ETP & time delay in transportation to the destination The capacity of vehicle used in transportation of the sand needs to be certified by the Regional Transport Office and no modification in vehicle to increase its carrying capacity needs to be allowed and action as per the MP sand Rule 2019 need to be initiated for recovering the cost and vehicle seizure action may be taken as deterrent step towards controlling illegal transportation. The vehicle which transports sand is only allowed with valid Electronic Transit Pass (eTP). Madhya Pradesh Government has provided a system to check the eTP online through vehicle number or eTP number. The link to verify the eTP is https://minigs.mp.gov.in/VerifyEtp 24 The eTP has details of vehicle registration number, Date & time of transportation, sand quantity, eTP validity etc. However in many cases it was observed that travelling time exceeded for many hours; this raises doubt as with one eTP vehicle is carrying multiple trips. To resolve this issue, the system needs to be updated for re-scheduling the transportation time with authentic reasoning from the driver through SMS or mobile application. Further on repeated events of delay, penalty as per the MP Sand Rule 2Ol9 may be imposed. v. Case: Transportation through alternative route As per the Enforcement & Monitoring Guidelines for Sand Mining (EMGSM, 2020) guideline, the transportation route need to be decided by the district authority to have vigilance; however the vehicles travel through different ways or either from one bank to other bank of river through temporary/permanent path. To control such kind of practices District administration must identify the check post at road junctures to have check over the vehicles transporting the mineral without valid eTP. Numbers of check posts are not sufficient in numbers and needs to be identified at significant locations viz. circle, T-point etc. Also, the manpower posted at check posts need to be equipped with mobile devices to verify the vehicle registration status with mining department and report the illegality accordingly to senior officers immediately. The placement of the CCTV camera at check post also minimizes the illegal transportation. Mobile app based reporting system may be developed for illegal mining/ transportation by making a video of the same. A round-the clock complaint cell must be set up at the Collectorate Control Room for the public to register complaints regarding illegal sand mining in the district. vi. Case: Continue excavation after the expiry of statutory permissions viz. Environmental Clearance, Consent to Operate The Environmental Clearance (EC) issued by SEIAA and the Consent to Operate (CTO) issued by SPCBs are the two statutory requirement under which compliance of environmental rules are ensured. The 25 permission depends on the documents viz. mining plan, Letter of Intent and quantity of sand available for excavation. In the absence of proper DSR, the quantity of available sand in few cases of fresh EC or in case of EC transfer varies a lot from the DSR value to allotted lease area. To avoid such discrepancies that attract illegal mining, the DSR need to be more authentic and based on the survey and field investigation rather based on secondary data. Further, the miner is bound to submit six monthly EC compliance report to SEIAA; the compliance verification mechanism need to be framed by SEIAA to ensure verification by engaging SPCB, Mining Department, Third-Party Agency (NIT/ State Eng. College etc.).
The Regional Office, State Pollution Control Board before issuing the CTO may verify the site in light of the approved DSR and statutory provisions under Water Act 7974, Air Act 1981 & EPA, Act 1986. Further SPCB need to verify the compliance of consent condition on the renewal of the CTO and ensure that no mine operates without valid CTO. On non-compliance the Environmental compensation may be assessed and imposed as per Tribunal order dated 26.2.2021 in NGT O.A. 360/2015 in the matter of National Green Tribunal Bar Association Vs Virender Singh (State of Gujarat).
5. Conclusion:
By adopting the provisions of Sustainable Sand Mining Management Guidelines (SSMM, 2016l, Enforcement & Monitoring Guidelines for Sand Mining, 2O2O and the above control mechanism the illegal sand mining may be checked effectively and effective action may be initiated for minimizing the illegal mining.
11. The matter was taken up again on 04.04.2022 and the State Pollution Control Board was directed to submit Action Taken Report in light of the recommendations submitted by the CPCB.
12. Learned counsel for the applicant has relied on the order dated 26.02.2021 passed by Principal Bench of this Tribunal in O.A No. 26 360/2015 in National Green Tribunal Bar Association vs Virender Singh and Ors., and submitted that the guidelines issued by the Tribunal with regard to scale of compensation for violation of Polluter Pay Principle should apply and State Pollution Control Board should be directed to take action in accordance with the parameters laid down in this case.
13. In compliance of the order dated 04.04.2022, State Pollution Control Board had submitted the reply as follows:
i. Actions against the illegal mining/transportation/storage of sand in the district, Sehore are being taken by the district Mining office, Sehore.
ii. In this regard in the financial year 2021-22 total 245 cases were registered and fine of Rs. 1,27,90,000/- is realized for illegal mining, transportation and storage of sand. In which 12 cases of illegal mining, 218 cases of illegal transportation and 15 cases of illegal storage are registered.
iii. In reference to the prevent illegal mining of sand in Village Chhipaner the transportation of sand through vehicles are completely banned in the Village Chhipaner and District Collector Sehore has issued an order in this regard on dated 29.10.2021. iv. Action has been taken against the complaints and total 37 vehicles are seized in Village Chhipaner for illegal transportation. v. In the financial year 2022-23 upto June 2022 total 37 cases are registered and Rs. 53,82,991 /- is realized as fine in which 04 cases of illegal mining and 33 cases of illegal transportation are registered.
vi. In financial year 2021-22 total 36 FIR, in financial year 2022-23 total 04 FIR are registered to against the illegal transportation and illegal mining of sand.
vii. The conditions are imposed on the legal sand mines to follow then guidelines as mentioned in sustainable sand mining guidelines 2016 and enforcement and monitoring guidelines for sand mining 2020.
27 viii. Presently there are 28 sand mines operating in District Sehore as per the provisions of sustainable sand mining guidelines 2016 and enforcement and monitoring guidelines for sand mining 2020 and all of obtained Environmental Clearance and consent.
ix. The District survey report (DSR) 2022 of District Sehore is prepared and it is approved by M. P. State Environmental Impact Assessment Authority (MPSEIAA).
14. Respondent No.1 has submitted the compliance of the order as follows:
(i) The District Mining Branch District Sehore is continuously taking action to prevent illegal Sand Excavation Transportation And Storage of sand and in this process during the financial year 2021-
2022 total 245 vehicles were seized and the sum of rupees 1,27,90,000/- penalty is recovered from the seized vehicles wherein 12 cases were registered for illegal excavation, 218 cases of illegal transportation and 15 cases of illegal stocking were registered.
(ii) The applicant in this present OA has raised its grievances pertaining to the illegal sand mining particularly regarding the sand block situated at village Chipaner and to curb and control illegal excavation from village Chipaner, the District Collector has imposed complete ban on plying and transportation of heavy vehicles transporting sand vide order dated 21/10/2021 and furthermore barricading is also done at Chipaner Ghat so that the sand mafia may not carry out any illegal excavation and transportation.
(iii) Further the district administration by taking joint action has also demolished the temporary bridge constructed by the sand mafia and furthermore a checkpost is established at Village Chipaner to keep vigil eye pertaining to the complaints of illegal mining from the area.
(iv) The District Mining Branch District Sehore has seized 37 vehicles from Village Chipaner during the Financial Year 2022-23 and has recovered the penalty of Rs 53,82,991/- wherein 4 cases are registered for illegal excavation, 33 for illegal transportation. The district mining branch is not leaving any stone unturned to curb and control illegal sand Excavation Transportation And Storage in District Sehore and has initiated penal action against the illegal sand transporters and excavators thereby in the financial year 28 2021-22 36 FIRs are lodged by the District Mining Branch District Sehore and during the current financial year 2022-23 till date 4 FIRs are already registered.
(v) At present for sand mining total 31 quarry leases are sanctioned in the favour of the contractor therein 28 quarry leases are having valid ECs and valid consents from the competent authorities.
(vi) The District Mining Branch District Sehore is also observant of the Sustainable Sand Mining Guidelines 2016 & 2018 and also Enforcement And Monitoring Guidelines For Sand Mining 2020 therefore, rainy season ban is imposed in the District Sehore and thus at present, the sand mining activities are completely banned in District Sehore.
15. The copy of the order passed by the Collector, Sehore, Mining Officer, Sehore has been attached with the compliance report.
16. Suggestion by CPCB to charge environmental damage on the basis of Net Present Value (NPV) can serve as good deterrant. CPCB should further work on the concept and develop practical value of NPV in terms of rupees to be enforced by State of Madhya Pradesh in consultation with MPPCB and Mining Department.
17. In view of the above submissions we direct the respondents to follow the guidelines issued in O.A. No. 360/2015 and orders passed in Appeal No. 25/2021 in Prabhat Mohan Pandey vs. MPSEIAA and Anr, the relevant portion are quoted below:
(I) We direct the State to follow the guidelines issued in Sustainable Sand Mining Guidelines 2016 (SSMG-2016) as well as Enforcement and Monitoring Guidelines for Sand Mining, 2020 (EMGSM-2020) and also enforce the mechanism for the preparation of DSR, Environment Management PlanReplenishment Studies, Mine Closure Plan, grant of EC, assessment and recovery of compensation, seizure and release of vehicles involved in illegal mining and other safeguards against violation, grievance redressal, accountability of the designated officers and periodical review at higher level of the State.
(II) A mechanism should be developed for periodic inspection by a five-
members Committee, headed and coordinated by the SEIAA and 29 comprising CPCB, State PCB and two expert members of SEAC dealing with the subject as directed by this Tribunal in O.A. No. 360/2015. (III) The Authority constituted/nominated under Section 3(3) of the Environment (Protection) Act, 1986 as envisaged by Hon'ble the Supreme Court in Goa Foundation Vs. Union of India & Ors. and in the matter of T.N. Godavarman Thirumulpad Vs. Union of India & Ors. (2014) 4 SSC 61 may take further action. The monitoring must be ensured through the Chief Secretary by holding a meeting and issue the necessary guidelines and actions in accordance with the order passed by this Tribunal in O.A. No. 360/2015.
18. We further direct the State Pollution Control Baord to take stringent action against the violation of law and in case any mining activity is found in contravention of the rules, the State Pollution Control Board has to take punitive action as well as prosecution in the matter.
19. The guidelines issued by the CPCB must be strictly observed. Mechanism to control illegal mining as suggested by the CPCB in the present matter should be considered and complied with in light of the SSMG, 2016 and EMGSM, 2022.
20. The Original Application No. 75/2021 is disposed of accordingly.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 23rd August, 2022 OA No. 75/2021(CZ) PU 30