National Green Tribunal
Dinesh Bothra vs Union Of India on 24 November, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH AT BHOPAL (MADHYA PRADESH)
(Through Video Conferencing)
ORIGINAL APPLICATION NO.06/2023(CZ)
(I.A.NO.54/2023) (I.A.NO.55/2023)
IN THE MATTER OF:
DINESH BOTHRA
S/o Shri Nemi Chand Bothra,
aged about 42 years,
R/o, 126, Prem Nagar,
Kheme Ka Kuan Road,
Jodhpur-342008,
Rajasthan
...Applicant(s)
Versus
1. UNION OF INDIA
Through the Secretary,
Ministry of Environment, Forest and Climate Change,
Indira Paryavaran Bhavan,
Jorbagh Raod,
New Delhi-110003
2. STATE OF RAJASTHAN
Through Chief Secretary,
Secretariat, Government of Rajasthan,
Jaipur-302005
Rajasthan
3. DEPARTMENT OF MINES AND GEOLOGY,
Through Principal Secretary,
Secretariat
Jaipur-302005
4. THE STATE ENVIRONMENTAL IMPACT ASSESSMENT
AUTHORITY, SEIAA
Through Member Secretary,
Arawali Bhawan, Jhalana Doongri,
Jaipur-302004
Rajasthan
1
5. EASTERN RAJASTHAN CANAL PROJECT
CORPORATION LIMITED
Through its Managing Director
Cum Chief Engineer,
Sinchai Bhawan, JLN Marg,
Jaipur, Rajasthan
6. M/s. N.G. Gadhiya
A Sole Proprietary Firm
Through its Proprietor
Shri Nilesh Ghanshyam Bhai Gadhiya,
S/o Shri Ghanshyam Bhai Gadhiya
Lead Member of the Consortium of
(M/s. N.G. Gadhiya & Cleantec Infra
Pvt. Ltd. & Adapt Infra Pvt. Ltd.)
Having its office at 22-B-22, Opposite
NRI Colony, Haldighati Marg,
Pratap Nagar, Jaipur, Rajasthan
...Respondent(s)
Counsel for Applicant(s):
Mr. Sanjeet Purohit, Advocate with Ms. Ranu Purohit, Advocate
Counsel for Respondent(s):
Mr. Ajay Gupta, Senior Advocate with Mr. Siddhartha Singh, Advocate for
Intervener/R-6
Mr. Om Shankar Shrivastava, Advocate for MoEF&CC
Mr. Ravi Kant Patidar, Advocate for R-5
Mr. Nishant Kesharwani, Advocate for Mr. Shoeb Khan, Advocate for R-1
Mr. Sandeep Singh Baghel, Advocate for R-4
CORAM:
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
RESERVED ON: AUGUST 01, 2023
PRONOUNCED On: NOVEMBER 24, 2023
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. Dinesh Bothra, applicant has preferred this Original Application (hereinafter referred to as 'OA') under Section 14 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010'), challenging Notice Inviting Bid (hereinafter referred to as 'NIB/NIT') dated 2 21.11.2022 (annexure A-1 to OA) issued by Eastern Rajasthan Canal Project Corporation Limited (hereinafter referred to as 'ERCPCL') Jaipur inviting online bids for the work of reclamation of storage capacity of Bisalpur Dam by desilting, in District Tonk, Rajasthan on the ground that the said NIB/NIT, in fact, is not an exercise of desilting for maintenance of Bisalpur Dam but involves mining of sand and gravel etc. and without preparation of a final District Survey Report (hereinafter referred to as 'DSR'), no mining activity can be carried out, in view of the provisions of Environmental Impact Assessment Notification dated 14.09.2006 (hereinafter referred to as 'EIA 2006') read with Sustainable Sand Mining Management Guidelines, 2016 (hereinafter referred to as 'SSMMG-2016') and Enforcement and Monitoring Guidelines for Sand Mining-2020 (hereinafter referred to as 'EMGSM-2020'). It is also said that mining activities cannot be allowed to be carried out without prior Environmental Clearance (hereinafter referred to as 'EC') granted under EIA 2006 and, therefore, respondent 5 i.e., ERCPCL be restrained from allowing any removal/extension of mining activity of minor mineral without complying with environmental laws i.e., final DSR and prior EC.
2. Facts in brief, stated in OA, are that Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act, 1986') was enacted by Parliament in view to enforce resolutions taken at United Nations Conference on Human Environment held at Stockholm in June 1972 to which India was a signatory.
3. EIA 2006 was issued under Section 3 of EP Act, 1986 with an endeavor to provide a substantial legal framework and comprehensive procedural mechanism for evolution, assessment, monitoring and environmental impact on land, air and water due to various projects undertaken by persons in all sectors throughout the territory of India and 3 to regulate certain activities including mining of minor minerals, making provisions for prior EC mandatory for regulated and specific projects across all sectors mentioned in the Schedule to EIA 2006.
4. In Deepak Kumar vs. State of Haryana & Ors., (2012) 4 SCC 629, Supreme Court vide order dated 27.02.2012 has mandated prior EC for mining of minor minerals irrespective of the area of mining lease to regulate mining of minor minerals with a view to provide procedure and authority for grant of EC for sand mining.
5. MoEF&CC issued Notification dated 15.01.2016 amending EIA 2006 and introducing constitution and composition of District Level Environment Impact Assessment Authority (hereinafter referred to as 'DEIAA') as well as District Level Environment Appraisal Committee (hereinafter referred to as 'DEAC') as an authority for grant of EC. In the present case, DEIAA Jaipur and DEAC Jaipur were constituted.
6. Clause 7(3) of Notification dated 15.01.2016 made preparation of DSR for sand mining or river bed mining and mining of other minerals, mandatory.
7. MoEF&CC, in furtherance of its notification dated 15.01.2016 amending EIA 2006, issued Notification dated 20.01.2016 constituting DEIAA comprising 4 members and headed by District Magistrate and DEAC comprising 11 members mostly Government officers. To ensure sustainable sand mining and environment friendly management practices to restore and maintain ecology of river and other sand sources, MoEF&CC issued SSMMG-2016 with the objective to ensure that sand and gravel mining is done in environmentally sustainable and socially responsible manner, conservation of river equilibrium and natural environment by protection and restoration of ecological systems, to ensure that the rivers 4 are protected from bank and bed erosion beyond its stable profile and Streamlining process for grant of prior EC for sustainable mining.
8. SSMMG-2016 provides that rivers are required to be prudently managed and also says that preparation of DSR is an important initial step.
9. This Tribunal in OA No. 557/2017, Anjani Kumar vs. State of UP, judgment dated 08.12.2017 held that DSR is a pre-requisite and condition precedent for grant of mining lease for sand and bajri.
10. In OA No. 186/2016, Satendra Pandey vs. MOEF&CC and other connected matters, applicant challenged EIA Notification dated 15.01.2016, 20.01.2016 and 01.07.2016 on the ground that constitution of DEIAA and DEAC is not in consonance with the directions of Supreme Court in Deepak Kumar vs. State of Haryana (supra). This Tribunal vide judgment dated 13.09.2018 held that the notification dated 15.01.2016 dividing category B into category B1 and B2 and further category B into mining project of 0 to 5 hectares and 5 to 25 hectares; exempting 0 to 5 hectares and 5 to 25 hectares project for requirement of EIA/public consultation and evaluation by DEAC and DEIAA is not consistent with direction given by Supreme Court in Deepak Kumar vs. State of Haryana (supra) and spirit behind such direction. Tribunal said that by the impugned provision, mining area upto and from 5 hectare to 25 hectare has been completely exempted from EIA and Public Consultation. For areas of 5 hectare and below, apart from exemption, it has been made only subject to a separate procedure of preparing a DSR. These provisions quite apparently are more mine-centric rather than striving a balance between mining and environment especially with regard to Form-1M which needs to be made more adhering to environment related 5 aspects. Tribunal held that parameters for consideration while preparing District Mining Plan (hereinafter referred to as 'DMP') and DSR are only for the purpose of ascertaining whether an area is fit for mining which are quite different from the parameters laid down for EIA. Consideration of the view point of the public by keeping DSR in public domain is not a substitute of Public Hearing for consideration of the view point of the public for EIA.
11. Tribunal, therefore, issued directions in para 22 of the judgment that procedure laid down in the impugned notifications dated 15.01.2016, 20.01.2016 and 01.07.2016 amending EIA 2006 shall be brought in consonance and in accordance with directions given in Deepak Kumar vs. State of Haryana (supra) by (i) providing for EIA, EMP and, therefore, Public Consultation for all areas from 5 to 25 hectares falling under Category B-2 at par with Category B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided; (ii) Form-1M be made more comprehensive for areas of 0 to 5 hectares by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant of EC by SEIAA instead of DEAC/DEIAA; (iii) if a cluster or an individual lease size exceeds 5 hectares, EIA/EMP be made applicable in the process of grant of prior EC; (iv) EIA and/or EMP be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof; (v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and timeframe for replenishment after mining closure in an area and (vi) MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining. Ultimately, Tribunal issued following directions: 6
"25. The MoEF&CC shall, therefore, take appropriate steps to revise the procedure laid down in the impugned Notification dated 15th January, 2016 in terms of the above directions and observations so that it is conformity with the letter and spirit of the directions passed by the Hon'ble Supreme Court in Deepak Kumar (supra).
The applications stand disposed of."
12. Tribunal decided OA 520/2016, Vikrant Tongad vs. Union of India by the same judgment i.e., dated 13.09.2018 whereby Satendra Pandey vs. MOEF&CC (supra) was decided. An Execution Application No. 55/2018, Vikrant Tongad vs. Union of India was filed in OA 520/2016 (supra) wherein an order was passed by Tribunal on 11.12.2018 observing that DEAC comprised officers having no expertise or scientific knowledge to assess environmental implication. Permitting DEAC to make assessment was also not consistent with SSMMG-2016, hence MoEF&CC should comply with the order dated 13.09.2018 and take steps to revise procedure laid down in the notification dated 15.01.2016 and furnish a Compliance Report by 31.12.2018. Tribunal also made it clear that till fresh notification is issued, notification dated 15.01.2016 will not be acted upon.
13. Later, MoEF&CC issued EMGSM-2020 to fill the gaps and to provide a comprehensive system for sand mining to supplement and in addition to SSMG-2016. However, it was provided in EMGSM-2020 that in case of any ambiguity or variation between SSMG-2016 and EMGSM-2020, the later shall prevail. In para '1.0 Introduction' of EMGSM-2020, it is said, "Further, this document is supplemental to the existing "Sustainable Sand Mining Management Guideline-2016" (SSMG-2016), and these two guidelines viz. "Enforcement & Monitoring Guidelines for Sand Mining" (EMGSM-2020) and SSMG-2016 shall be read and implemented in sync with each other. In case, any ambiguity or variation between the provision of both the document arises, the provision made in "Enforcement & Monitoring Guidelines for Sand Mining-2020 "shall prevail."
7
14. The above Guidelines of 2016 and 2020 clearly provides preparation of DSR as a mandatory requirement before auction/e-auction/grant of mining lease.
15. In OA 40/2020(EZ), Pawan Kumar vs. State of Bihar & Others connected with OA 57/2020(EZ), Md. Rizwan vs. Union of India, Tribunal had an occasion to consider whether notice inviting tender auction without preparing DSR was valid or not. Tribunal referring to its judgment in Satendra Pandey vs. MoEF&CC (supra), Vikrant Tongad vs. Union of India (supra), held that preparation of final DSR is mandatory. In para 86 of the judgment, Tribunal said, "86. Issue with regard to the preparation of the DSR is not a mere technical one. It involves intricate study of riverine ecosystem and ecology which is undertaken in consonance with the Precautionary Principle and Principle of Sustainable Development which are considered to be part of Article 21 of the Constitution of India. Therefore, it cannot be taken lightly and as a mere formality."
16. Tribunal, in para 102, held as under:
"102. In the result, we allow the applications and hold that:
(a) DSR 2018 cannot be considered as a final DSR and is only an Interim report.
(b) The DSR 2019 incorporating the 14 Sand Ghats also cannot be considered as a final DSR and is hereby quashed.
(c) All actions taken pursuant to DSR 2018 and DSR 2019 referred to in (a) and (b) above are hereby held to be void and a nullity."
17. In para 103, Tribunal issued following directions:
"(i) Having regard to the findings at (a), (b) and (c) above, we direct the State to undertake further exercise for preparation of a fresh DSR for the Banka district.
(ii) As the DEIAA is not functioning as a consequence of the 8 decision of the Tribunal in Satendra Pandey (supra), the DSR shall be prepared through a consultant(s) accredited by the National Accreditation Board of Education and Training/ Quality Control Council of India in terms of O.M. of MoEF&CC dated 16.03.2010.
(iii) The DSR so prepared shall be submitted to the District Magistrate who shall verify the DSR only in respect of the relevant facts pertaining to the physical and geographical features of the district which shall be distinct from the scientific findings based on the parameters prescribed in the SSMMG- 2016. After such verification, the District Magistrate shall forward the DSR for examination and evaluation by the State Expert Appraisal Committee (SEAC) having regard to the fact that the SEIAA comprises of technical/scientific experts.
The SEAC after appraisal of the report shall forward it to the SEIAA for consideration and approval if it meets all scientific/technical requirements.
(iv) While preparing the DSR, the MoEF&CC Accredited Agency/Consultant shall scrupulously follow the procedure and the parameters laid down under the SSMMG-2016 and EMGSM-2020 read in sync with each other."
18. The above judgment dated 14.10.2020 passed in Pawan Kumar vs. State of Bihar (supra) was appealed before Supreme Court in Civil Appeal No. 3661-3662 of 2020, State of Bihar & Others vs. Pawan Kumar & Others. Keeping appeals pending, Supreme court noticed order dated 10.11.2021, referred to EMGSM-2020 Clause 4.1.1 (a), (o) and (p) of EMSGM-2020 and observed that in accordance with 2020 Guidelines, DSR is required to be prepared before the auction/e-auction/grant of mining lease by mining department or department dealing with mining activities in the respective States. It is further provided that the potential site for mining having its impact on the forest protected area habitation should be avoided. For this a sub-divisional committee is required to be formed which after the site visit, if required, would decide regarding suitability of the sites for mining, The sub-divisional committee is further 9 required to record its reasons for selecting mining lease in the patta land. Various details are required to be given in the annexures appended to the said policy. Thereafter in para 13 and 14 of the order, Supreme Court said:
"13. We further find that when the 2020 guidelines as well as the notification issued by MOEF and CC of 2016 itself provide for constitution of sub-divisional committees comprising of the officers of the State Government from various Departments for identification of the potential sites for mining, there would be no necessity of the DSRs being prepared through private consultants as directed by the Tribunal in the impugned order. The sub-divisional committee consists of various officers from Revenue Department, Irrigation Department, State Pollution Control Board. Forest Department and Geology Mining Department of the State Government. They are better equipped to visit the sites and prepare the draft DSR for the concerned district. Apart from that, preparation of DSR through private consultants would also unnecessarily burden the public exchequer. We are therefore of the view that the direction in that regard issued by the Tribunal requires to be modified. We are further of the considered view that until the DSRS are finalized and granted approval by SEAC and SEIAA, it is appropriate that certain necessary arrangements are permitted so that the State can continue with legal mining activities. This apart from preventing illegal mining activities, would also ensure that the public exchequer is not deprived of its share in legalized mining.
14. We therefore find it appropriate to substitute the directions issued by the Tribunal vide judgment and order dated 14th October 2020, with the following directions:
(i) The exercise of preparation of DSR for the purpose of mining in the State of Bihar in all the districts shall be undertaken afresh. The draft DSRs shall be prepared by the sub-divisional committees consisting of the Sub-Divisional Magistrate, Officers from Irrigation Department, State Pollution Control Board or Committee, Forest Department, Geological or mining officer. The same shall be prepared by undertaking site visits and also by using modern technology. The said draft DSRS shall be prepared within a period of 6 weeks from the date of this order. After the draft DSRS are prepared, the District Magistrate of the concerned District shall forward the same for examination and evaluation by the SEAC. The same shall be examined by the SEAC within a period of 6 weeks and its report shall be forwarded to the SEIAA within the aforesaid 10 period of 6 weeks from the receipt of it. The SEIAA will thereafter consider the grant of approval to such DSRs within a period of 6 weeks from the receipt thereon;
(ii) Needless to state that while preparing DSRs and the appraisal thereof by SEAC and SEIAA, it should be ensured that a strict adherence to the procedure and parameters laid down in the policy of January 2020 should be followed;
(iii) Until further orders, we permit the State Government to carry on mining activities through Bihar State Mining Corporation for which it may employ the services of the contractors. However, while doing so, the State Government shall ensure that all environmental concerns are taken care of and no damage is caused to the environment.
15. List the matter after 20 weeks."
19. Again, in a bunch of OAs led by OA 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat), issue relating to updating of enforcement and monitoring mechanism to control and regulate illegal sand mining (including river bed sand mining) in the light of Supreme Court's judgment in Deepak Kumar vs. State of Haryana (supra) and Goa Foundation vs. Union of India & Ors. (2014) 6 SCC 590 came up for consideration. Tribunal directed all States/UTs to strictly follow SSMMG-2016 and EMGSM-2020 reinforced by mechanism for preparation of DSRs and other relevant aspects. Para 27 of the judgment dated 26.02.2021 passed in National Green Tribunal Bar Association vs. Virender Singh (supra) is reproduced as under:
"27. We direct all the States/UTs to strictly follow the SSMG- 2016 read with EMGSM-2020 reinforced by mechanism for preparation of DSRs (in terms of directions of this Tribunal dated 14.10.2020 in Pawan Kumar, supra and 04.11.2020 in Rupesh Pethe, supra), Environment Management Plans, replenishment studies, mine closure plans, grant of EC (in terms of direction dated 13.09.2018 in Satendra Pandey, supra), assessment and recovery of compensation (as per discussion in Para 25), seizure and release of vehicles involved 11 in illegal mining (in terms of order dated 19.02.2020 in Mushtakeem, supra), other safeguards against violations, grievance redressal, accountability of the designated officers and periodical review at higher levels. As already noted, EMGSM-2020 contemplates extensive use of digital technology, including remote sensing."
20. It is also said that in Civil Appeal No. 4593/2022, Mangal Singh Bundela vs. State of Madhya Pradesh & Others, Supreme Court in the interim order said that no mining shall be carried out in terms of e-auction dated 16.11.2021 without finalizing DSR.
21. Applicant has also referred to judgment dated 02.09.2022 of Southern Zone, Chennai Bench passed in OA 144/2020(SZ), Dr. Sarvabhoum Bagali vs. State of Karnataka & Others holding that in the guise of dredging and maintenance of lakes, sand mining cannot be permitted. It has to be strictly in accordance with guidelines issued by MoEF&CC i.e., SSMMG-2016 and EMGSM-2020.
22. After giving this brief resume of statutory provisions as also judicial authorities of this Tribunal and Supreme Court, applicant has said that before publishing impugned NIB/NIT, no DSR has been prepared and published in State of Rajasthan, particularly, in respect of District Tonk. Last DSR for District Tonk was issued by office of Superintendent Geologist, Department of Mines and Geology, Ajmer as per SSMMG-2016 while taking into account the rainfall of the year 2017 but thereafter, no fresh DSR has been prepared following the procedure of EMGSM-2020. The impugned NIB/NIT claims to be in respect of desilting but in fact is nothing but sand mining activity and, in a manner, intends to take advantage of exemption granted from the requirement of prior EC vide notification dated 28.03.2020 whereby EIA 2006 has been amended and appendix IX has been substituted wherein item 7 reads as under: 12
"APPENDIX-IX EXEMPTION OF CERTAIN CASES FROM REQUIREMENT OF ENVIRONMENTAL CLEARANCE The following cases shall not require Prior Environmental Clearance, namely:
xxx..........................................xxx....................xxxxx
7. Dredging and de-silting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management."
23. Tribunal considered the complaint of applicant on 03.02.2023 observing the contention of applicant that scope of work defined at page 73 of NIB/NIT, work is principally of sand mining i.e., Removal of silt/sand/ gravel mixed overburden deposited in the submergence of Bisalpur Dam, District Tonk, Rajasthan with mechanical means like dredgers, etc.; the contract is for a period of 240 months i.e., 20 years and thus, a tender for removal of excavation of minor mineral has been issued without first preparing DSR; and it is impermissible in law. Tribunal said that a substantial question of environment has arisen, hence issued notices to the respondents and also called for a factual Report from a joint Committee comprising District Collector, Tonk, Rajasthan, one representative from CPCB, Rajasthan, one representative from State PCB and one representative from Secretary, Irrigation, State of Rajasthan. JOINT COMMITTEE'S REPORT:
24. After visiting the site on 28.02.2023, Joint Committee has filed factual status on the following issues:
"1. Evaluation of the Scope of work defined on page number 73 of the Tender Document of M/s ERCPCL- Work principally as sand mining and worded as removal of silt/ sand/ gravel mixed overburden deposited in the submergence of Bisalpur Dam, District-Tonk, Rajasthan using mechanical dredgers.
2. Evaluation of the tender document of M/s ERCPCL, for removal of minor mineral from the Dam without preparing the DSR and 13 classifying the same as work of desilting.
3. Comments on compliances of the guidelines of Sustainable Sand Mining Management Guidelines, 2016 & Enforcement & Monitoring Guidelines for Sand Mining, 2020.
4. Comments on non- compliance on the provisions of DSR
5. Comments on substantial issue of environment.
6. Comments on Compliance of provisions of Rules, Regulations and Guidelines issued by MoEF &CC with respect to desilting of water reservoirs."
25. Thereafter, it has made its field observations, conclusions and recommendations, as under:
"Field Observations:
1. Field visit of the site viz. Bisalpur Dam, was conducted by the aforementioned committee on dated 28.02.23, it was observed that no work of desilting has been initiated by M/s ERCPCL and any other agency till date.
2. No installation of machinery for desilting purpose has been done so far.
3. The scope of the work mentioned in the Bid document for Reclamation of storage capacity of Bisalpur Dam by Desilting was studied and it was found that the proposal is fully focused on the reclamation of storage capacity of the reservoir which has been decreased to 1029.94 MCum from its initial storage capacity when impounded in the year 2004 i.e. 1095.84MCum. (source - CWC Report dated Feb., 2022) [Annexure-1].
4. The Parliamentary Standing Committee on Water Resources vide letter dated 09.10.2015, directed all the Chief Secretaries of State Governments of India, that any desilting operation that is not undertaken with objective of winning a mineral, would not be a mining operation and would not therefore, require an issue of permit under the MMDR Act, 1957 [Annexure-2].
Rajasthan State being Water Scarce State of India having Bisalpur Dam as a lifeline reservoir of drinking water for three Districts viz. Ajmer, Jaipur and Tonk and is in operations for the last 20 years, without any maintenance is losing its actual storage capacity leading to the loss of water due to 14 overflow. Thus, a substantial loss of fresh water is occurring due to decreasing storage capacity of the reservoir.
Due to the said loss of reservoir capacity, requirement of an additional reservoir in the downstream of Bisalpur Dam i.e. Isarda Dam has come in existence, which is under construction in the District Tonk, Rajasthan and the cost of which is more than 1000 crores. Further, to avoid any additional requirement of water reservoirs in downstream of the existing reservoirs and to mitigate the loss of fresh water due to overflows of run-offs, desilting of Bisalpur Dam would play a key role in conservation of natural resource, "Water".
5. MoEF & CC, GOI vide notification dated 15.01.2016 defines the requirement of preparation of District Survey Report (DSR) for sand mining or river bed mining and mining of other minor minerals [Annexure-3].
However, the Parliamentary Standing Committee on Water Resources vide letter dated 09.10.2015, directed all the Chief Secretaries of State Governments of India, that any desilting operation that is not undertaken with objective of winning a mineral, would not be a mining operation and would not therefore, require an issue of permit under the MMDR Act, 1957.
Although, the existing DSR of Tonk District is valid up to 31.03.2023 and has not covered the submergence area of Bisalpur Dam as its scope of study. It is pertinent to mention that the submergence area of the reservoir has not been considered as mining lease area and therefore, has not been included in DSR of Tonk district [Annexure-4].
Since, the reclamation work of Bisalpur dam is not a mining activity, DSR may not be required.
6. Sustainable Sand Mining Management Guidelines, 2016 clearly states that Dredging and de-silting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, up keep and disaster management are exempted from being considered as Mining project/activity for the purpose of requirement of Environmental Clearance [Annexure-5].
It has been mentioned in the Special Condition of the contract document that the contractor shall comply with all the prevailing Safety norms, Health and safety laws, Environmental laws, Labour laws, Fair Wages law and all other laws which are applicable for the execution of the work [Annexure-6]. 15
7. The facts mentioned in point no.5 above, clearly reveals that the provisions of DSR are not applicable for the reclamation of storage capacity and desilting of water reservoir.
8. The project of dredging and desilting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, up keep and disaster management possess exemption from requirement of Environmental Clearance as Notified vide Gazette of India Dated 15.01.2016.
The work of reclamation of storage capacity of reservoir shall utilize the machineries such as Dredgers, Hopper barges, Sand processing plant for desilting operations [Annexure-7]. The desilting operation shall not only increase the existing storage capacity of the reservoir but also preserve the overflowing of water through gates. The risk of flooding of the nearby areas may also be avoided thereof.
9. The project of dredging and desilting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, up keep and disaster management possess exemption from requirement of Environmental Clearance as Notified vide Gazette of India Dated 15.01.2016.
Conclusions:-
1. The work of reclamation of reservoir storage capacity is focused on conservation of water, meeting the drinking and irrigation purposes, which is utmost necessity for water scare state of Rajasthan. Since, no permit under MMDR, 1957 is required, so no query for DSR preparation should be considered.
2. All the conditions laid in special conditions of the bid documents regarding safeguarding the environment be strictly complied for by contractor under the supervision of ERCPCL.
3. The various provisions of Water (Prevention and Control of Pollution) Act, 1974 the Air (Prevention and Control of Pollution) Act, 1981 the Environment (Protection) Act, 1986 and its amendments shall be strictly complied by the bidder under the supervision of occupier of project i.e. ERCPCL. The half yearly compliances shall be submitted by ERCPCL to State PCB.
Recommendations:
Proper structural and Non-structural measures may be taken in upstream of reservoir so that future rate of siltation in the reservoir may be reduced."16
Preliminary reply dated 13.03.2023 filed by respondent 5 i.e., ERCPCL:
26. It has raised a preliminary objection that OA does not involve any issue of environment, hence not maintainable. Coming to the facts of the matter, it is said that Bisalpur Dam was constructed at Tehsil Deoli, district Tonk for primary purpose of supply of potable water to the residents of 3 Districts, i.e., Jaipur, Ajmer and Tonk; additional water is to be made available for irrigation purpose; Dam was constructed at the interflow of Banas River, Khari River and Dye River; primary source of these rivers is rain water; water flow in the dam commenced during 1993;
catchment area of Bisalpur Dam is 27641.4 km2 and reservoir storage capacity is 1095.84 Mcum at Full Tank Level (hereinafter referred to as 'FTL') 315.50m, which inter-alia include Reservoir Dead storage Capacity 56.62 Moum and Reservoir Live storage Capacity 1039.22 Mcum; Utilized filled capacity of dam is 33.15 Thousand Million Cubic Feet (hereinafter referred to as 'TMCF'), and 48.87% (i.e. 16.2 TMCF) is reserved for supply as potable water to the residents of Jaipur, Ajmer and Tonk Districts; there is evaporation loss of 8.95 TMCF i.e., about 27%; as per the "Jal Jeevan Mission" of Government of India, per person per day requirement of water has been prescribed as 55 Liters, as against 35 Liters; in the light of increased demand of per capita water demand, the proposal for additional requirement of 16.84 Mcum was raised for supply of water to the residents of rest Jaipur Rural Population; however, on account of deposition of silt/sand in the Bisalpur dam, the water filling and water storage capacity of the Dam has been drastically reduced; time and again, various studies were conducted regarding silting in the Bisalpur Dam, which included the following:
(i) Maharashtra Engineering Research Institute (hereinafter referred to as 'MERI') carried out sedimentation study of 17 Bisalpur Dam and it was found that from the year 1994 to the year 2009 (i.e., during 15 years), there is sediment deposit of 94.80 Mcum. Accordingly, on an average, 6.32 Mcum capacity of the dam is being reduced every year on account of silting and sedimentation. According to this survey, it is estimated that up to year 2022, there would have been sedimentation of 176.96 Mcum silt/sand in the dam.
(ii) Dredging Corporation of India Limited (hereinafter referred to as 'DCIL'), Vishakhapatnam (A Government of India Undertaking) carried out studies for dredging operation at Bisalpur Dam for Rajasthan State Mines and Minerals Limited, Jaipur (hereinafter referred to as 'RSMML') and submitted its final report on 07.02.2020. According to the said study of DCIL, there was sedimentation of 149 Mcum post rainy season of 2019. According to this survey, it is estimated that upto year 2022 there would have been sedimentation of 178.80 Mcum silt/sand in the dam.
(iii) Central Water Commission (hereinafter referred to as 'CWC') also carried out sedimentation studies under National Hydrology Project (hereinafter referred to as 'NHP') and the Sedimentation Study Report was finalized during February, 2022. According to this study conducted by CWC under NHP it was concluded that from year 2004 (year of impounding) till the year 2021 i.e., during 17 years, there was sedimentation at 65.90 Mcum and it was projected to be 69.84 Mcum sedimentation after the rains of 2022. Thus, on an average it was estimated to be 3.88 Mcum silt/sand deposition per year under the study conducted by CWC in NHP.
18
27. Last and latest sedimentation study conducted by CWC under NHP clearly shows that there is sedimentation of 69.84 Mcum, upto the year 2022, which is estimated to increase to 147.44 Mcum silt/sand after 20 years i.e. in 2042, resulting in reduction of the capacity of reservoir by 147.44 Mcum and it would be quite difficult to cater the demand of water supply for the population of Jaipur, Tonk and Ajmer even at the present status i.e., 1.25 Crore population. It is further estimated that if dredging/desilting is started in 2022 then only during next 20 years i.e. upto 2042, total 95.84 Mcum capacity can be reclaimed.
28. Due to emergent situation, respondent 5 undertook steps for dredging/de-silting of Dam by at least 95.84 Mcum for recovering Reservoir capacity by at least 95.84 Mcum. If any new Dam is to be constructed with water storage capacity of 95.84 Mcum, it would cost approximately Rs.1100 Crores to Government, in addition to large submergence areas and loss of tremendous agriculture land. This will require a large population to be rehabilitated losing their earning source i.e., agricultural lands. Since de-silting/dredging exercise being undertaken for maintenance, the provisions relating to mining are not attracted, hence there is no violation of provisions of SSMG-2016 and EMGSM-2020. Even SSMG-2016 deals with the issue of de-silting of Reservoir/Barrages/Annecuts/Lakes/Canals and it is said, "9...the Dams and Reservoirs can be a significant source of sand. Many such structures are silted and their water holding capacity has gone down considerably. In many instances to compensate for silted capacity raising of height of dam or construction of new structure is proposed which further leads to submergence of new areas of agriculture fields and forests. Taking up desilting of such projects can serve dual purpose of increasing the water holding capacity and making available the sand for other uses."
29. It is also said in SSMMG-2016 that 19 "...It has further been prescribed that "the de-silting of reservoir, dredging for upkeep and maintenance of structures, PUR channels and averting natural disasters will not be treated as Mining for the purpose of Environmental Clearance."
30. It is also said that dredging and desilting of Dams etc. for the purpose of maintenance, upkeep and disaster management were excluded vide Appendix-IX Serial No. 6 of Notification dated 15.01.2016, whereby EIA 2006 was amended; the same position has been reiterated in the notification dated 28.03.2020 whereby Appendix-IX has been substituted and now exemption in respect to dredging and de-silting of Dams etc. for purpose of maintenance is at Serial No. 7; respondent 5 invited tenders/bids on 22.11.2022 for "reclamation of storage capacity of Bisalpur Dam by de-silting in District Tonk, Rajasthan under Guaranteed Annual Return Contract; downloading of NIB started from 22.11.2022 and last date of submission of bid was 22.12.2022 upto 12:00 noon; in the bidding process, 4 bidders participated and ultimately all 4 bidders stood technically qualified; highest Bid at Rs. 130.27 per MT of dredged material was accepted; applicant has challenged NIB assuming that it is for mining of minor mineral sand, which is factually incorrect; tender pertains to desilting and dredging of Dam and not to win over any mineral; though no DSR is required for NIB/NIT in question but it is stated that DSR filed as annexure A-13 (pages 552 to 592) is valid till 31.03.2023 and a fresh DSR has been filed with IA 05/2023 in OA 6/2023 at annexure A-2 which was uploaded as a fresh DSR by Rajasthan Government on its website which takes effects from 13.12.2022.
31. OA is bad in law since it proceeds on the assumption that it is for mining of sand though in fact it pertains to de-silting of a Dam for maintenance purposes, for restoration of water storage capacity of Bisalpur Dam which has been reduced due to silting over years and the 20 purpose is not to win over any mineral.
Reply dated 17.05.2023 filed by respondent 5:
32. A detailed reply has been filed to OA but the basic facts are nothing but repetition of what has already been stated in the Preliminary Reply by respondent 5, hence we are not repeating the same.
Preliminary Reply dated 02.05.2023 by respondent 4 i.e., State Environment Impact Assessment Authority Rajasthan (hereinafter referred to as 'SEIAA Rajasthan'):
33. It is said that ERCPCL i.e., respondent 5 has floated bid for reclamation of storage capacity by de-silting of Bisalpur Dam in District Tonk, Rajasthan which cannot be considered as a mining lease for mining of sand/minor mineral, hence provisions of SSMMG-2016 and EMGSM- 2020 are not applicable; Reservoirs/Barrages/Annecuts/Lakes/Canals structures are generally in possession and maintenance of Irrigation Department/Minor Irrigation Department/PHED of State Governments; the Dams and Reservoirs can be a significant source of sand; many such structures are silted and their water holding capacity has gone down considerably; in some instances to compensate for silted capacity raising of height of dam or construction of new structures is proposed which further leads to submergence of new areas of agricultural field and forests; taking up de-silting of such projects can serve dual purpose of increasing the water holding capacity and making available the sand for other usage; in some States, Irrigation Department is permitted to use it for the departmental works free of charge and balance can be disposed of in market after paying the due royalty; a detailed study is required to be carried out to verify economic viability and environmental sustainability before contemplating dredging of storage reservoirs for sand/gravel mining; as per the provision of point (a) of Chapter 4.1 (Identification of possible sand mining sources and preparation of DSR) of EMGSM-2020, 21 de-siltation of Reservoir/Dam has been identified as sand source and DSR for sand mining is to be prepared before auction/e-auction/grant of mining lease/Letter of Intent (LoI) by Mining Department; as per the provision of 7(iii) - "Preparation of District survey report for sand Mining or River Bed Mining and Mining of other minor Minerals" of MoEF&CC Notification dated 15.01.2016 prescribes procedure for preparation of DSR for sand mining or river bed mining and mining of other minor minerals; however, as per point 6 of Appendix-IX of MoEF&CC Notification dated 15.01.2016, dredging and de-silting of dams, reservoir, weirs, barrages, river, and canals for the purpose of their maintenance, upkeep and disaster management are exempted from requirement of EC; as per MoEF&CC, Government of India's Notification dated 15.01.2016, main objective of the preparation of DSR (as per SSMMG-2016) is to ensure (i) Identification of areas of aggradations or deposition where mining can be allowed, (ii) Identification of areas of erosion and proximity to infrastructural structures and installations where mining should be prohibited, and (iii) Calculation of annual rate of replenishment and allowing time for replenishment after mining in that area; DSR is prepared for each minor mineral and it forms the basis of application for EC, preparation of Reports and appraisal of projects; Chapter 23 of SSMMG- 2016 issued by MoEF&CC, Government of India pertaining to de-silting of Reservoir/Barrages/Anicuts/Lakes/Canals, provides for de-silting of Reservoir dredging for upkeep and maintenance of structures channels and averting natural disasters and the same shall not be treated as mining for the purpose of EC.
34. It is further said that though Co-ordinate Bench of Tribunal (Southern Zone Bench) in Dr. Sarvabhoum Bagali vs. State of Karnataka & Ors. (supra) has held that dredging and de-silting must be 22 done strictly in accordance with Guidelines provided by Central Government through SSMMG-2016 and EMGSM-2020 but the case in hand is not the case of sand mining and activity (dredging and de-silting of Bisalpur Dam); it does not require prior EC being exempted under MoEF&CC Notification dated 15.01.2016; the case in hand is of reclamation of storage capacity of Bisalpur Dam by de-silting, not a regular mining lease/proposed mining lease as projected by applicant herein; a study to verify economic viability and environmental sustainability is required before contemplating the dredging of storage Reservoir for sand/gravel mining and the same is being carried out; even otherwise, DSR has been prepared in the instance case and has been submitted to SEIAA; DSR for River Bed Mining of Tonk District is with SEAC pending for appraisal; as per the provision of point (a) of Chapter 4.1 (Identification of possible sand mining sources and preparation of DSR) of EMGSM-2020, de-siltation of Reservoir/Dam has been identified as sand source and DSR for sand Mining is to be prepared before auction/e-auction/grant of mining lease/Department's Letter of Intent (LoI) by Mining Department. Counter Affidavit dated 25.04.2023 filed by Union of India (MoEF&CC) i.e., respondent1:
35. The stand taken by respondent 1 is that if dredging of canals is done for the purpose of maintenance of canal, it would not require EC. However, if mining is done for earning profit and is undertaken as a commercial venture as it involves dredging and de-silting, then all the provisions of EIA 2006 and the subsequent amendments shall be applicable. On this aspect, judgment of High court of Uttarakhand at Nainital in WP (PIL) No. 93/2015, Jai Prakash Badoni vs. UoI & Others and connected WP (PIL) No. 95/2015, Shakti Sangh Priya vs. State of Uttarakhand & Others (annexure-R1/3 at page 1224) is relied on.
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36. Various judgments and other provisions of EIA 2006 are also referred to but no specific stand has been taken as to whether in the present case activity of dredging and desilting of Bisalpur Dam will amount to sand mining or it is only an exercise of de-silting/dredging of Dam for its maintenance purposes.
37. The stand of respondent 1 is not clear on the issue in question but it only refers to nature of exception that if de-silting and dredging is for maintenance purposes, then it is exempted and not otherwise. Reply dated 20.05.2023 filed to OA as also Joint Committee Report by respondent 6 along with IA No.30/2023:
38. Preliminary objections has been regarding locus-standi of applicant stating that e-tender notice relating to storage capacity of Bisalpur Dam by desilting situated in District Tonk (Rajasthan) was issued while applicant is resident of Jodhpur which is about 350 kms from Tonk, therefore, applicant cannot be said to a person aggrieved within the meaning of Section 18 of NGT Act, 2010. It is further said that respondent 5 is concerned with maintenance and upkeep of the dam and reservoir which is recognized in SSMG-2016. At page 61, under the heading "Desilting of Reservoirs/Barrages/Annecuts/Lakes/Canals, it is said that these structures are generally in possession and maintenance of Irrigation Department/Minor Irrigation Department/PHED of State Governments; Dams and Reservoirs can be a significant source of sand; many such structures are silted and their water holding capacity has gone down considerably; in some instances, to compensate for silted capacity raising of height of Dam or construction of new structure is proposed which further leads to submergence of agriculture field and forests; taking up de- silting of such projects can serve dual purpose of increasing water holding capacity and making available the sand for other usage; in some States, 24 Irrigation Department is permitted to use it for departmental works free of charge and balance can be disposed of in market after paying due royalty; it is also clarified in the said heading that de-silting of reservoir, dredging for up-keep and maintenance of structures, channels and averting natural disasters will not be treated as mining for the purpose of EC; thus, SSMG- 2016 has recognized need for dredging and de-silting of Dams and Reservoirs for/to restore water holding capacity of the Dam; scope of work prescribed in the impugned tender pertains to removal of silt/sand/gravel mixed over-burdened deposited in the submergence of Bisalpur Dam to reclaim its storage capacity; it is also prescribed that in case farmers would be willing to use silt for their fields, then it would have to be provided free of cost at stock yard; nowhere excavation of sand has been prescribed in the scope of work; averments and contentions of applicant pertaining to sand mining are based upon assumptions, presumptions, surmises and conjectures; Government of India, Ministry of Jal Shakti, Department of Water Resources, River Development and Ganga Rejuvenation, Central Water Commission has carried out Reservoir Sedimentation Studies using Hydrographic Survey of Reservoirs in India under National Hydrology Project for Bisalpur Dam, wherein it is concluded that the incremental loss in reservoir capacity till 2021 was worked out 65.90 MCM in initial 17 years and loss between 2004 and 2021 below MDDL (Dead Storage) works out to 32% of total loss; thus, there is a significant loss of 68% in Live Storage; it is also concluded that Effective Annual Rate of Siltation during past 17 years works out to 0.14 mm/year and Reservoir is using gross capacity at the rate of 00.5% per annum; annual loss in Dead Storage Capacity and Live Storage Capacity works out to 2.17% and 0.25% respectively; study conducted by CWC shows loss of dead storage capacity and live storage capacity of the Dam, which has necessitated carrying out dredging and de-siltation operations to reclaim its storage capacity; SSMG- 25 2016 has also recognized need to carry out dredging operation of Dams and Reservoirs; Southern Bench decision in R. Nallakannu vs. Secretary to Government of India, 2021 SCC OnLine NGT 1268 has distinguished de-silting, dredging and sand mining; reliance placed by applicant on the decision in OA 935/2018(PB), Anumolu Gandhi vs. State of Andhra Pradesh decided by Principal Bench vide order dated 24.08.2020 is mis- placed in as much as therein, Tribunal has allowed dredging and de- silting; there is no requirement of DSR for carrying out dredging and de- silting operations in Dams and Reservoirs being not mining activities within meaning of MMDR Act, 1957; in any case, DSR was already available as DSR valid upto 31.03.2023 has been annexed by applicant with OA and DSR effective from 13.12.2022 has been filed as annexure A/2 to IA; applicant has mis-appreciated the facts in order to file the present OA; in State of Rajasthan, Rajasthan Minor Mineral Concession Rules, 2017 (hereinafter referred to as 'RMMC Rules, 2017') have been notified in exercise of powers under Section 15 of MMDR Act, 1957 and the Rules do not travel beyond the principle Act; de-silting and dredging activity is not a one-time measure but has to be carried out regularly; this is what has been said by Southern Zone Bench, Chennai in R. Nallakannu vs. Secretary to Government of India (supra); since in the present case, for the last 17 years, no de-silting and dredging operations have been carried out in the Dam, the process now will take longer time and, that is why, 20 years' time has been allowed in e-tender notice; disposal of dredged material, per se, would not render the activity of desilting and dredging as a mining activity and the impression given by applicant otherwise is incorrect; proper disposal of dredged material is mandatory and also in the interest of environment else large area of land would convert into barren on account of dumping and storage of dredged material; it would be an environmental hazard for ecological flora and 26 fauna in case proper recourse is not undertaken for disposal of dredged material; if dredging and its disposal is not done regularly, undisposed dredged material would flow with rain water in the Dam increasing sedimentation and would be a great hazard to the Dam safety; applicant has wrongly placed reliance on the Southern Bench judgment in Sarvabhoum Bagali vs. State of Karnataka & Others (supra) as the same is not applicable to the facts of the present case; de-silting and dredging of Dam for the purpose of maintenance is outside the provisions applicable to mining activities and the contentions advanced by applicant otherwise are incorrect.
Rejoinder dated 25.07.2023 to the reply filed by respondent 3:
39. It is said that in order to ascertain true nature of the work as sought to be assigned under e-tender notice impugned in OA are three-fold; (i) whether purpose of activity is sand mining, (ii) whether activity under the contract would be covered under sand mining and the purpose is winning of material and (iii) whether nature of contract is commercial involving sale of mined mineral.
40. Applicant has referred to the various clauses of e-tender notice including title condition no. 20 of special condition of contract, condition no. 33 to 35, condition no. 37, 38, 45 and 54, condition no. 50 and condition no. 74 and 75 to show that the contract in question is for mining activity and not de-siltation and dredging only for maintenance purpose.
41. We propose to refer to these conditions while discussing the matter on merits in later part of the order.
42. With regard to exemption from EC, it is said that reclamation of storage capacity does not fall under maintenance or upkeep of Dam and for this purpose, para 4.2.2.2 of 'Routine Maintenance of the Guidelines 27 for Preparing, Operation and Maintenance Manual for Dams' issued by CWC in January 2018 is referred; DSR is not in accordance with SSMMG-
2016 and EMGSM-2020 and cannot be based for permitting any sand mining under the impugned e-tender notice; though fresh DSR ought to be prepared as per EMGSM-2020 as directed by Supreme Court in State of Bihar & Others vs. Pawan Kumar & Others; the law laid down by this Tribunal in R. Nallakannu vs. Secretary to Government of India (supra) squarely covers the issue and render the activity in question to be that of mining which in the absence of any EC and DSR is illegal and cannot be allowed to be carried out.
Objections dated 24.07.2023 filed by applicant to Joint Committee Report:
43. With regard to observations made in the Joint Committee that no DSR was required to be prepared since e-tender notice only permits desilting and dredging for maintenance purposes, has been challenged on the ground that it is contrary to the law laid down by Tribunal in Sarvabhoum Bagali vs. State of Karnataka & Others (supra) and Supreme Court's judgment in Deepak Kumar vs. State of Haryana (supra).
IA Nos. 54/2023 and 55/2023 filed on behalf of respondent 6:
44. Some documents have been placed on record by above IAs. Copy of OM dated 12.07.2023 issued by MoEF&CC on the subject of clarification on the exemption from EC provided vide Notification dated 28.03.2020 for dredging and de-silting of Dams, Reservoirs, Rivers, Barrages, Rivers and Canals for the purpose of their maintenance, upkeep and disaster management has been placed on record along with IA 54/2023 and copies of some orders of this Tribunal passed in Anumolu Gandhi vs. State of Andhra Pradesh (supra), Awadesh Dikshit vs. Union of India, OA 28 107/2022, Jai Prakash Badoni vs. Union of India, 2015 SCC OnLine Utt 2176 and R. Nallakannu vs. Secretary to Government of India and Others (supra) have been placed on record vide IA 55/2023.
ARGUMENTS:
45. Learned Counsel for applicant argued that the tender though apparently shown as for desiltation for maintenance of dam but in effect is a mining activity by mining out the sand and other inorganic material from the river bed at Bisalpur Dam and, therefore, without preparation of DSR and obtaining EC by complying with the provisions of SSMMG-2016 and EMGSM-2020 read with EIA 2006, the mining activity is illegal and in violation of environmental laws. He drew our attention to various documents to buttress his arguments that the contract in hand, in fact, is a mining contract and not a mere maintenance of Dam by desiltation. We propose to refer various documents placed before us by Learned Counsel for applicant while dealing with the issues on merits in detail.
46. Per-contra, Learned Counsels appearing for respondents 5 and 6 contended that collection of minerals is an incidental and ancillary activity but the object of the leasing body is to award for maintenance of Bisalpur Dam where its storage capacity has gone down substantially due to sedimentation and deposit of silt which is required to be removed in the process of desiltation. Here also, our attention has been drawn to various documents which we propose to refer when we discuss the issue on merits.
47. Learned Counsel appearing for MoEF&CC and SEIAA Rajasthan, i.e., respondents 1 and 4 respectively, submitted that EIA 2006 as amended clearly exempts the process of desiltation and dredging of dams and reservoirs for maintenance purposes but do not clearly state whether in the present case the contract would fall in the exempted category or not.29
They said that the Tribunal may examine this aspect on the basis of record and form its opinion which shall be abided by respondents 1 and 4. ISSUES:
48. In substance, as is evident from rival submissions of contesting parties, the only question up for consideration in this OA is "whether NIT/NIB dated 21.11.2022 and its further proceedings amount to grant of a contract for carrying out mining activities or it is a process of desiltation adopted and followed for maintenance of Bisalpur Dam".
CONSIDERATION/DISCUSSION ON MERITS:
49. In order to answer the above question, we have to understand what is desiltation and dredging. Since both the above terms deal with silt which when deposited is called sedimentation or siltation and, therefore, all these terminology need to be examined as to how are understood in common parlance.
50. Silt is granular material of a size between sand and clay and composed mostly of broken grains of quartz. Silt may occur as a soil or as sediment mixed in suspension with water. Silt usually has a floury feel when dry, and lacks plasticity when wet.
51. Dictionary meaning of silt is 'loose sedimentary material with rock particles usually 1/20 millimeter or less in diameter; soil contained 80% or more of such silt and less than 12% of clay; a deposit of sediment. As per Collins Dictionary, silt is fine sand, soil, or mud which is carried along by a river. As per Cambridge Dictionary, silt is sand or soil that is carried along by flowing water and then dropped. Dictionary.com defines silt as a sedimentary material consisting of grains or particles of disintegrated rock, smaller than sand and larger than clay.30
52. There are several advantage of the silt which includes retention moisture without becoming waterlogged, rich in plant nutrients and it is often used in gardening since helps a lot with retention in the ground where plants are growing. Silt is more fertile compared to 3 types of soil like sand, loam and clay.
53. What sedimentation is: All rivers and streams flowing in alluvial plains tends towards a stable flow condition maintaining a balance between the silt load carried, silt load deposited and the resulting volume and velocities achieved. This is generally called a stable sediment regime for the river. When underlined parameters of volume and velocities are disturbed, either due to lower gradient (entering into plain reaches) or encroachment in flood plain, widening of the channel (braiding of river streams), suspended silt particles in the river water settle down, and this is called 'siltation'. This phenomenon is normally called 'sedimentation' when it occurs in a reservoir.
54. Sedimentation in rivers: Rivers are natural channels to drain water from highlands to low-lands/seas. 'Erosion' and 'Aggradations' are the most important geological processes which have brought down large amounts of sediments from the higher elevations to the plains and have formed large fertile plains, which were adopted by the hominoid races for their development and sustenance. Big towns were located on the banks of rivers to meet needs of water and navigation. These sediments are responsible for formation of delta of a river and providing sand to sea beaches. Further, flora and fauna (for example Mangrove forest) depend on water and sediment supply from rivers. Fishes and other aquatic organisms choose specific sediment types of river environments for feeding, breeding and spawning. Over time, the high lands of an area get worn down. The material thus eroded is utilized further downstream to 31 build banks and flood plains. Sediment carrying capacity of a river is directly proportional to the kinetic energy of water. With more kinetic energy water is capable of carrying larger amount of sediment and of bigger size. However, due to human interventions on rivers (for example Dams, bund, barrages etc.), natural regime of river is disturbed. Traditional flood plains remain no longer available for off-loading the excess sediments and river is forced to deposit sediment in its channel or nearby. Further, as the river flows from high gradient to low gradient, momentum of the flow is reduced progressively by consumption of the kinetic energy in overcoming the flow resistance and consequently reducing its capacity to carry the sediments by tractive forces along the bed and suspension of coarser particles through turbulence, inducing thereby silt deposition en-route.
55. Government of India, Ministry of Water Resources (ER Wing) vide Office Memorandum dated 08.10.2001 set up a Committee to study the problem of silting in rivers. Dr. B.K. Mittal, Former Chairman, CWC was appointed as Chairman and there were 13 other members which included Chairman and Chief Engineer (P&D), CWC, New Delhi as Member Secretary (hereinafter referred to as 'Mittal Committee'). The Terms of Reference read as under:
"3. Terms of Reference
1. To identify cause and extent of siltation in rivers.
2. To suggest measures to minimize siltation.
3. To examine whether desilting is a technically feasible means to minimize magnitude of floods in rivers.
4. To suggest appropriate technology/methods of desilting of rivers if found technically feasible.
5. To find economic viability of desilting of rivers.
6. To propose a realistic operational programme in a time bound manner.
7. Any other related aspect."32
56. Committee submitted its Report in December 2002. In the Executive Summary of the report it was pointed out that siltation process is subject to several factors including physiography, geology, meteorology, hydrology and flow characteristics of the particular river. In general, there is erosion in the upper reach and deposition in the lower reach on account whereof morphological changes are manifest in middle and lower reaches of a river. Silt deposition is accentuated in lower reaches of alluvial and coastal rivers. Considering the remedial coastal measures vis-a-vis siltation of rivers in India, it was observed that dredging operation is a mechanical method which may be carried out in tandem with water shed management and other flood control schemes. Dredging may be appropriate for tributaries as their silt load add to the overall silt load of the main river. However, report says that while carrying out dredging operation, environmental aspects should be taken care of. The report said:
"The dredging operation disturb the upper layers of the river bed which house dwelling places of aquatic plants and animals. The turbidity caused by the dredging operation reduces photosynthesis effect of the sunlight, thereby depriving food supply to the plant and animal in the river bed. Dredging operation does cause water pollution because of huge fuel consumption. So, environmental impact assessment in respect of dredging operation should be done in order to ward off adverse environmental effect."
57. Committee Report in para 9.3 of executive summary also recognized problem of silting in the river and said:
"Aggradation is a process in which the bed of a river rises as a consequence of deposition of sediment Continuous aggradation in a river may lead to reduction of carrying capacity and hence overtopping."
58. In para 9.5 of executive summary, report said:
"Silt flow is an inherent part of river flow. The flow from steep gradient to low gradient is always accompanied by erosion in upper reach and deposition in the lower reach."33
59. Report dealt with efficacy of desilting of river bed and flood problem and said that desilting in general is not feasible technically, due to several reasons like non-sustainability, non-availability of vast land required and disposal of dredged material etc.
60. Sedimentation in Reservoirs: Reservoirs are generally a part of the river system and quantity of sediment entering in the reservoir is dependent on the catchment area, type of soil, vegetation cover and gradient of river upstream of the reservoir. The river water entering the reservoir carries sediments which settle at various reaches in the reservoir. River systems erode material from the ground they flow over; these sediments are then transported downstream. When a river is dammed, the velocity of the water is slowed down and thus its ability to transport these sediments is reduced. When the velocity is too low, the sediments in the river water will begin to settle down. The largest particle will settle first, near the upstream end of the reservoir, and often cause what is known as backwater delta. The finer suspended colloidal material (silts and clays) will settle down close to the dam where velocities are even lower. Some of the finer particles will remain in suspension and will flow through/over the outlet structures. The backwater delta will move forward towards the dam wall as time progresses. Depending on the shape, density, viscosity, size of the particle and flow, sediment settles in a reservoir in different patterns. The layer of water containing fine particles travel further down towards the dam as density current and may deposit there or near the rim of the reservoir. A major secondary effect is the downstream degradation of the river channel caused by the release of clearer water. Siltation in rivers may or may not be accumulative; whereas sedimentation in reservoirs is generally accumulative.
61. Sedimentation processes in a reservoir are quite complex because of 34 the wide variation of many influencing factors, the most important being,
(i) hydrological fluctuations in water and sediment inflow, (ii) sediment particle size variation, (iii) reservoir operation fluctuations, and (iv) physical controls or size and shape of the reservoir. Other factors, for some reservoirs, may be quite important are; vegetative growth in upper reaches, turbulence and/or density currents, erosion of deposited sediments and/or shoreline deposits, and operation for sluicing of sediment through the dam.
62. In other words, it can be said in respect of reservoir that due to reduction of velocity of water in reservoirs, part of incoming sediment gets trapped. Sedimentation in reservoir results in loss of capacity, impacts dam safety, risk to downstream habitation etc. as sedimentation in reservoirs is generally accumulative. By removal of sediment, the capacity and life of a reservoir can be extended, planned operational benefits can be ensured, and minimise the risk to downstream stakeholders. Sedimentation in reservoirs is a natural process. Sediment is a socio- economic, environmental and geo-morphological resource, as well as a tool of nature. However, changes in sediment quantity and quality can have a significant impact both in rivers and reservoirs and prove to be resource as well as menace in its own manner.
63. When there is movement of organic (humus, decomposing material such as algae, leaves etc.) and inorganic particles by water, it is called 'sediment transport'. Transported sediment may include mineral matter, chemicals, pollutants and organic material. Reservoirs have been used worldwide to provide reliable water supply for irrigation, domestic, industrial, hydro power generation and flood management etc. Dams have contributed significantly towards economic development, food production security, resilience building against natural disaster (droughts and floods) 35 and mitigation of ill effects of climate changes. Old dams have traditionally been designed with a certain 'design life', typically 50 or 100 years, which were determined by sedimentation rate, trap efficiency, provision of sediment storage pool volume (dead storage). Most reservoirs are, therefore, gradually being filled up.
Desiltation/Dredging:
64. Ordinarily desilting involves removal of accumulation of silts and sediments in order to restore capacity of the channel or reservoir as the case may be. It does not involve widening or deepening the channel. Dredging however, goes further and includes enlargement of channel through deepening and widening. Therefore, both the processes include removal of silt and sediment but dredging goes further and includes within its ambit the activities undertaken for deepening the water way or widening the channel or for extracting resources.
65. It is said that normally for the purpose of desilting, smaller equipments are used and the activities are conducted in shallower water while dredging often requires larger equipments and can be undertaken in deeper waters leaving greater impact on environment.
66. In a report titled as 'National Framework for Sediment Management' published by Ministry of Jal Shakti, Department of Water Resources, River Development and Ganga Rejuvenation' from New Delhi in October 2022, it is observed that the annual reservoir storage loss globally due to sedimentation is around 0.5 to 1 % in average but varies easily between 0 and 5% depending on the location. Half of the dams in India are more than 25 years old. As the ageing dams approach the end of their original design lives and depletion of their storage capacity due to sedimentation, water scarcity will be more widespread. This condition requires an urgent need 36 to update policies and guidelines for exploring all options for alleviating the impact of reservoir sedimentation.
67. In the above report, vide annexure-I thereof, the main factors responsible for siltation/sedimentation are given as under:
(i) Physical and hydrological characters of the catchment, such as slope, geology and structures, land use, land cover, urbanisation, agricultural practices, deforestation and forest degradation etc.,
(ii) Intensity of erosion in the catchment (sheet, rill, gully and stream channel erosion) including over-exploitation of minerals,
(iii) Occurrence of landslides/landslips especially in hilly areas with heavy rainfall,
(iv) Construction of Roads, Houses etc. in the flood plain.
(v) Quality, quantity and concentration of the sediment brought down by the river,
(vi) Size, shape and length of the reservoir and operation strategies impacting trap efficiency of the reservoir,
(vii) Some additional sources of silt generation are as follows:
a) In rural areas, the erosion source is typically soil degradation due to intensive or inadequate agricultural practice thereby resulting in an increased amount of silt and clay in the water bodies that drain the area.
b) In urban areas, the additional siltation sources are construction activities and seepage and sewage sludge discharged from household/business establishments with no septic tanks/wastewater treatment facilities.
c) In water, the main pollution source is sediment from dredging, and the deposited dredged material near water shore.37
68. Report also shows that 'sediment management' is a necessary element of sustainable and climate-resilient plan that includes reservoir storage and hydro-power generation. Further, the life cycle of dams and reservoirs consists of operation and maintenance, continued and regular implementation of reservoir sediment management approaches, and regular refurbishment of the dam and its appurtenant structures. Reservoir sediment management and refurbishment of the dam and its appurtenant structures allow for continued use of the dam and its reservoir, ideally in perpetuity. In principle, the approach does not include the element of disposal. A major difference between the life-cycle management approach and the design life approach is the focus on preventing storage loss caused by reservoir sedimentation. It eliminates the threat of losing the reservoir's ability to store water over the very long term and promotes continued use of the dam and reservoir, providing utility to both current and future generations.
69. The report also lays down certain basic principles which should be followed in de-silting of reservoirs at page 9/10 and says:
i. Regular monitoring of sediment deposition in reservoir should be carried out. Integrated Bathymetry survey with sub-profiling sampling needs to be done to determine the actual quantity of sedimentation in reservoirs and estimation of the rate of sedimentation.
ii. For reservoirs selected for potential intervention, it is necessary to perform a diagnosis of the sedimentation problem, formulate and select the most viable management alternative, prior to implementing the selected measures.
iii. In case, if it is not possible to utilise sediment removed by dredging/de-silting/flushing from reservoirs; a proper 38 utilisation/disposal plan needs to be prepared, with the consideration that it does not create any environmental, ecological and social issues.
iv. Desiltation for restoring the lost capacity of the reservoirs may be carried out by comparative analysis of revenue and non-revenue models. For reservoirs, which are constructed for providing drinking water supply as well as other strategic services, desilting may be done on need basis including non-revenue model. Also for safety of dam, it requires the de-silting; this may be preceded to other concern keeping in view associated disaster consequences.
v. Desiltation/Dredging/Flushing in the cascade of reservoirs depends on the natural sediment load and may be shared between reservoirs. Appropriate monitoring mechanism along with institutional strengthening provision shall be inbuilt items in any programme of sedimentation management of reservoirs especially once the reservoir located in a lower riparian State is affected, when carried out in the reservoir, due care should be taken so that it does not affect downstream reservoirs. Proper consultation, with the reservoir authorities of downstream projects should be done.
In case of hydropower plants, each project or cascade projects should have coordinated Standard Operating Procedure (SOP), so that to the extent possible, sediment concentration may follow normal river regime during flushing.
vi. Desiltation/dredging work shall not affect any existing structures/ facilities. Desiltation, especially in reservoirs shall be done in such a manner that it does not induce any 39 landslides and slip circle failure in case of quick drawdown conditions. Restriction details for de-siltation/dredging are placed at Annexure-III.
vii. In financing for new facilities, sediment management measures are considered to be an integral part of the facility cost. A life-cycle management approach shall always be recommended. For desilting existing reservoirs, recurrent measures are financed through O&M budget. Reclamation of live storage is to be considered as like creating a new facility. Also, de-silting for reinstating safe operation is financed like other rehabilitation works (for example DRIP).
viii. Financing de-silting in cascades of reservoirs depends on the natural sediment load and may be shared between the reservoirs. Appropriate monitoring mechanism along with institutional strengthening provision shall be inbuilt items in any program of sedimentation management. Also, in case de-
silted material is discharged or dumped in the downstream of dam, impacting immediate downstream reservoir located in lower riparian State, proposed Plan may also be shared with lower riparian State. In case of a reservoir having interstate implications, the downstream states should have a member in the State/Central TAC.
ix. The dredged material is a resource and the beneficial
reuse in convergence with various concern
organisation/agencies will not only bring direct
economic values, but also social and environmental merits. Hence its end use should be part of comprehensive action plan. The possible major use of dredged material includes land reclamation, improvement and filling, 40 construction and protection materials (for highways, railways, flood protection embankment etc.), top soil enhancement and agricultural use, habitat creation and restoration, beach nourishment and shore protection, river management (for example sand plug for channel closure) etc. x. A Feasibility Report should be prepared considering various techniques of removal of sediment. The economic analysis of long term benefits owing to consideration of removed sediment as a resource should be an important part of the feasibility report. Restored capacity of reservoir should be considered equivalent to creation of new live storage and apart from the intended benefits in terms of various uses of reservoir water (irrigation, drinking water, industrial water, hydro power, fisheries, tourism etc.), the benefits from selling of sand for construction purpose, silt and clay for pottery and tiling industries in the open market by the contractor should also be considered for cost benefit analysis. The use of revenue model shall be invariably explored. However, in case of strategic restoration of lost capacity (like drinking water, trans-boundary rivers etc.), even the non-revenue model may be considered. In order to ensure credible and bankable competitive bidding, the bid document shall be supported in terms of proposed volume and composition of dredged sediment through a latest close interval sub-bed profiling data of reservoir. The details about the measures that can be adopted for sediment management of reservoir are listed in Annexure-V.
70. Report also considers the statutory provisions relating to 41 environment and social safeguards and also refers to the exemption granted from EC vide amendment Notification dated 15.01.2016 whereby EIA 2006 was amended which says as under:
"APPENDIX - IX [See paragraph 7(i) (B)] EXEMPTION OF CERTAIN CASES FROM REQUIREMENT OF ENVIRONMENTAL CLEARANCE The following cases shall not require prior environmental clearance, namely:-
1. Extraction of ordinary clay or sand, manually, by the Kumhars (Potter) to prepare earthen pots, lamp, toys, etc. as per their customs.
2. Extraction of ordinary clay or sand, manually, by earthen tile makers who prepare earthen tiles.
3. Removal of sand deposits on agricultural field after flood by farmers.
4. Customary extraction of sand and ordinary earth from sources situated in Gram Panchayat for personal use or community work in village.
5. Community works like de-silting of village ponds or tanks, construction of village roads, ponds, bunds undertaken in Mahatama Gandhi National Rural Employment and Guarantee Schemes, other Government sponsored schemes, and community efforts.
6. Dredging and de-silting of dams, reservoirs, weirs, barrages, river, and canals for the purpose of their maintenance, upkeep and disaster management.
7. Traditional occupational work of sand by Vanjara and Oads in Gujarat vide notification number GU/90(16)/ MCR-2189(68)/5-
CHH, dated the 14th February, 1990 of the Government of Gujarat.
8. Digging of well for irrigation or drinking water.
9. Digging of foundation for buildings not requiring prior environmental clearance.
10. Excavation of ordinary earth or clay for plugging of any breach caused in canal, nala, drain, water body, etc., to deal with any disaster or flood like situation upon orders of District Collector or District Magistrate.
11. Activities declared by State Government under legislations or rules as non-mining activity with concurrence of the Ministry of Environment, Forest and Climate Change, Government of India." 42
71. Para 5 of report dealt with disposal of dredged/desilted materials, para 6 with evaluation of sediment management projects and para 7 considered appraisal of proposal. The contents of the above throw light on the purpose and intent behind limited exemption granted to the activities of dredging and desilting of reservoirs and not to exempt every activity of dredging and desilting conducted in a reservoir as a whole. It would be useful to reproduce para 5.0, 6.0 and 7.0 of the report as under:
"5.0 DISPOSAL OF DREDGED / DESILTED MATERIALS
a) The proposal for de-siltation/ dredging activities shall be prepared as per applicable guidelines and prior approval may be taken from concerned agencies to ensure hassle free implementation. River gravels/sands/silts are valuable resource and could be used gainfully in construction works, including housing, roads, embankment and land reclamation activities.
b) Appropriate sediment disposal plan shall be a part of Feasibility Report along with applicable Environment and Social safeguards. Dredged material shall be disposed as per the approved Environmental Management Plan. It should not contaminate any water body, adverse impact to the flora and fauna existing adjacent to the disposal site(s) etc.
c) Desilted material should not be used for filling up of wetlands and water bodies including oxbow lakes, as these are important for recharging ground water and providing base flow in rivers during lean season.
d) In the case of de-silting of reservoirs, regarding applicability and procedures for Environment Clearance, Forest Clearance and Wildlife Clearance, activity listed at Sl. No.18, Table 2.2, can be referred in the "Operational Procedures for Assessing and Managing Environmental Impacts in Existing Dam Projects" CWC, November, 2020. This referred guideline has the competent level approval of MoEF&CC.
e) NOC from State Pollution Control Board (SPCB)/Union Territory Pollution Control Committee (UTPCC) as well as concerned local authorities is required in advance for disposal site for disposal of dredged materials. Requirement of NOC from State/Union Territory Pollution Control Board and from local authorities for disposal of dredged material is exempted for dredging carried out for navigation purpose by Inland Waterways Authority of India.43
6.0 EVALUATION OF SEDIMENT MANAGEMENT PROJECTS Dredging/de-silting projects including all components and their techno-economic performances need to be evaluated. An ongoing monitoring program is essential for optimizing sediment management. Short and long-term monitoring plans should be developed as an integral aspect of the Sustainable Management Plan.
7.0 APPRAISAL OF THE PROPOSAL 7.1 Regarding Environmental Clearance of project other than de-
silting of reservoirs, "Procedure for Environmental Clearance for Mining of Minor Mineral including Cluster", as enumerated in appendix XI of MOEF&CC Gazette notification no. S.O. 141 (E) dated 15.01.2016 (as amended from time to time) may be followed; including the exemptions. The exemption given in Appendix XI of MOEF&CC Gazette notification regarding dredging and de-silting of dams, reservoirs, weirs, barrages, river and canals will be applicable for purpose of annual/routine maintenance/upkeep and disaster management only.
7.2 There are instances of sediment removal from dams/rivers for different purposes and activities like for commercial purposes, restoration of storage capacity of reservoirs, channelization of rivers, etc. Such activities generally do not fall under regular maintenance/ upkeep or disaster management and will be governed by this national framework for sediment management.
7.3 The detailed procedure for appraisal, environmental & other clearances and monitoring of the proposals of sand and gravel mining has been described in the "Sustainable Sand Mining Management Guidelines, 2016" of MoEF&CC". Further, the detailed Guidelines for de-silting of reservoirs, its applicability and procedures for Environment Clearance, Forest Clearance, and Wildlife Clearance, activity listed at Sl. No.18, Table 2.2, in the "Operational Procedures for Assessing and Managing Environmental Impacts in Existing Dam Projects" CWC, November, 2020 may also be referred.
7.4 For de-silting/ dredging of sediment from rivers/ reservoirs;
comprehensive DPR may be prepared by the State Authority/ Project authority/ PSU/private company etc. A Technical Advisory Committee (TAC) may be constituted by concerned State for appraisal and approval of the DPR for the techno- economic viability. Concerned regional Chief Engineer of CWC or his representative should be included as one of members of 44 the State TAC. Suggested composition of State TAC is enclosed at Annexure-VI.
72. The problem in the present case has to be examined in the light of the fact that in the major water reservoir which is receiving Banas River water, whether activity of desiltation, besides may constitute a mining activity, is only an exercise for maintenance of the reservoir and also as to whether the operation of de-silting water would have such impact on the environment so as to require environmental impact assessment attracting the provisions of EIA 2006.
73. Bisalpur is a village situated in District Tonk of State of Rajasthan. It is famous for ancient temple of Lord Gokarneswara. Bisalpur Dam was constructed in 1990 by Rajasthan Government. It is 574 meters long and 39.5 meters height. It is built on Banas River. It supplies irrigation water to Sawai Modhopur and Tonk Districts and drinking water to Ajmer, Jaipur and Tonk districts. Bandh height of the dam is 39.5 meter (130 feet). It is a gravity type of dam. Gravity dam is a dam constructed from concrete or stone masonry and designed to hold back water by using only weight of the material and its resistance against the foundation to oppose the horizontal pressure of water pushing against it. The dam was completed in 1999.
74. River Banas over which dam is constructed, originates in Khamnor Hills of Aravalli Range near Kumbhalgarh in Rajsamand district. It is a tributary of Chambal River and approximately 512 meters in length. It is also known as "Van Ki Aasha" (Hope of the Forest). It ultimately discharge in Chambal River near Rameshwar in Sawai Madhopur District.
75. The river has its religious importance also. It is said that Sage Vashishth did intense meditation and got the river down from Swarg Lok 45 (Heaven). The Sage, concerned about its future, asked Lord Shiv how she will survive without water from glaciers. Lord Shiv blessed her saying, "The forests will protect you and you in turn will nourish the forests. I will appear at various places on your banks to increase your influence". Hence, the river got the name "Van ki Aasha" (Hope of the Forest) which later became Banas.
76. Lord Parshuram, an Incarnation of Lord Vishnu, is also linked strongly with Banas. Parshuram had killed his mother, Renukaji, on the command of his father. He went to several places seeking salvation. He saw that a calf, who had turned black on killing a man, turned white again after taking a dip in River Banas. Lord Parshuram did the same and was relieved of the sin. The place is now called "Matrikundya" and falls in Bhilwara District. It is also known as the 'Haridwar of Rajasthan'.
77. "Veeron ka Math" (Monastery of the Brave) is a holy place that abutts the origin point of Banas. It is said that here Parshuram gave arms training to Karan and Bhishm, the two heroes of Epic Mahabharata. Jargaji, an important pilgrimage, is located around 10 km from the origin point of River Banas. Jarga ji was a devotee of Baba Ramdev, Chief Deity of Meghwal community.
78. Triveni Dham near Mandalgarh in Bhilwara district where Berach and Menali rivers meet Banas also holds great value. Gokaran Mahadev or Gokaraneshwar temple in Tonk District is also of great significance as it is believed that Ravan, the anti-hero of Epic Ramayan, meditated and offered his head to Lord Shiv here. Rameshwaram Ghat is a famous pilgrimage spot where Banas merges into Chambal.
79. River Banas basin is confined to State of Rajasthan as its complete run and catchment area of about 45833 km2 in State of Rajasthan. Major 46 tributaries of Banas include right bank tributaries of Berach and Menali and left bank tributaries of Kothari, Khari, Dai, Dheel River, Sohadara, Morel and Kalisil.
80. There is another Banas river which is also called West Banas river originates from Aravali Hills and descends in a South western direction through Rajasthan State and travels through Banaskatha and Mehsana district of Gujarat before it drains in to little Rann of Kachchh. This is a different river and we are not concerned with it in the present case.
81. When river Banas comes in the reservoir area, due to reduction of its velocity, siltation takes place. In Mittal Committee Report, Chapter IV, 'Process of Sedimentation and Siltation', in para 6.0, it was observed that natural phenomenon of soil erosion is in the form of silt load in a river. The soil that is eroded finds its way in the flowing water of a river. River cross section is subjected to erosion and siltation by flowing fluid depending upon hydraulic and hydrologic characteristics covered under silt transport theory. Construction of dam reduces the velocity of water in upstream, thereby, causing siltation in the reservoir. The silt free water released through spillway, causes erosion downstream of the spillway along its length.
82. Siltation can be broadly divided into two parts: (i) Reservoir Siltation and (ii) River Bed Siltation.
83. Reservoir siltation is a natural process due to construction of dam etc.
84. Dredging is a process of excavation of all types of soil from below the surface of water by means of mechanical, hydraulic and numatic equipment and relocation of the same at the designated site as per the 47 requirement. Relocation of the dredged materials depends upon the utility of the same and availability of alternative area. Dredging is also adopted as a preventive measure for flood control. Dredging and desiltation activities, as already said, also causes environmental effects. When rivers flow for longer duration, they sustain life both to plant and animal due to natural phenomenon. Animals and plants die and settle at the bottom to be decomposed by bacteria. During this process, the decaying bio-mass liberates gases and substances like hydrogen sulphide, Methane and other toxic waste. These are generally kept in the top layers of sediments. When these layers are disturbed during dredging and affect the life supporting pattern of the water, the turbidity added to the water during dredging reduces the penetration of sun light which in turn reduces photosynthesis and shrinks the life supporting bio pyramid which causes further degradation of aqua life. The disturbance of sediments also causes these sediments to transport to nearby water sheds. Thus, aquatic life gets affected due to dredging up-streams.
85. Desiltation happens to involve extraction of sand, morrum, bajri etc., constitute mining operation. It is for this reason, under EIA 2006, the requirement of EC for mining activities is essential except of a narrow margin given to desiltation and dredging operations where the same are carried out for regular maintenance purposes.
86. The exemption granted under EIA 2006 shows that but for the said exemption, the activity is included with the principal clause i.e., mining. It thus, can be said that in normal course whenever desiltation and/or dredging activities are undertaken, it amounts to undertaking of mining activities and would attract the provisions of EIA 2006. The limited liberty granted for non-attracting the requirement of EC is to those dredging and desilting activities which are undertaken for maintenance of Dam etc. It is 48 not an exception clause but an exemption clause and, therefore, to a limited extent, exemption from the requirement of EC has been granted. Further, it cannot be doubted that sand mining of river, upstream and instream, causes environmental degradation.
87. In Deepak Kumar vs. State of Haryana (supra), Supreme Court observed that removal of minor mineral boulder, gravel, sand quarries etc. from river beds causes environmental degradation or threat to the bio- diversity, destroys riverine vegetation, causes erosion, pollutes water sources etc. Sand mining on either side of the rivers, upstream and in- stream, is one of the causes for environmental degradation and also a threat to the biodiversity. Over the years, India's rivers and Riparian ecology have been badly affected by the alarming rate of unrestricted sand mining which damage the ecosystem of rivers and the safety of bridges, weakening of river beds, destruction of natural habitats of organisms living on the river beds, affects fish breeding and migration, spells disaster for the conservation of many bird species, increases saline water in the rivers etc. Extraction of alluvial material from within or near a stream bed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, in-stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both in-stream biota and the associated riparian habitat.
88. Thus, there is no doubt that desiltation and dredging activities do constitute mining activity and the said activity affects environment adversely. The requirement of EC under EIA 2006 in respect to above activities is mandatory.
49
89. However, a limited type of desiltation and dredging activity has been granted exemption from the requirement of EC and it is provided that desiltation of reservoirs for upkeep and maintenance of structures, channels and management of natural disaster will not be treated as mining for the purpose of EC and to this limited extent, activity of desiltation or dredging would not require EC.
90. We have, thus, to examine, in the present case, as to whether the activity of desiltation contemplated herein, infact, is for the purpose of only maintenance and upkeep of the dam and, therefore, is exempted to be called as 'Mining Activity' and consequential requirement of EC or not. Here we will also examine whether increase of storage capacity by desiltation amounts to maintenance and upkeep of reservoir/dam.
91. To answer this question, we proceed to consider NIT/NIB dated 21.11.2022.
92. The heading of the document is "Reclamation of Storage Capacity by Desilting of Bisalpur Dam in District Tonk, Rajasthan". However, there is further mention that the contract is a 'Guaranteed Annual Return Contract' which means that by means of the contract, the agency or the person who shall be employed for undertaking reclamation of storage capacity by desiltation at Bisalpur Dam, would not be required to be paid by the Tenderer i.e., ERCPCL but the contract itself guarantees an annual return to such proponent who shall be allotted the contract.
93. The cost of the contract is mentioned as Rs. 258.54 Crores and contract period is 240 months i.e., 20 years. The cost of the bidding document itself is Rs. 50000.00 plus GST at the rate of 18% which has to be paid by the Tenderers to ERCPCL. Further, the bidders are also required to furnish Bid security (Earnest money) at half percent of the 50 contract amount i.e., Rs. 12,927,000/-.
94. NIT/NIB document further provides that the successful bidder will have to furnish a Performance Security/Security Deposit at the rate of 3% of the contract value i.e. Rs. 7.76 Crores before signing of agreement. The amount of Security however, shall be refundable after successful completion of agreement.
95. The Bid document also says that the pages and schedule appended to the Bid document, shall be part of the Bid document and all pages and schedule would have to be signed by the Bidder.
96. Now, we come to the 'Technical Bid Document Section-I' which provides instructions to the Bidder.
97. In the very first instruction under the head 'Scope of Bid', it is said that the Procuring Entity is indicated in 'Bid Data Sheet'. In para 6, under the head 'Award of Contract', sub-para 6.1 'Procuring Entity's Right to Vary Quantities', it is mentioned that the Procuring Entity, if does not procure any subject matter of procurement or procures less than the quantity specified in the Bidding Document due to change in the circumstances, Bidder shall not be entitled for any claim or compensation except otherwise provided in the Bidding document. In respect of grievance to procurement process raised by a bidder, grievance handling procedure is prescribed which is to be followed during procurement process and it is provided that an Appeal can be filed before First or Second Appellate Authority, as the case may be.
98. In para 8 and 9, bidding is made subject to the provisions of Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter referred to as 'RTPP Act, 2012') and Rajasthan Transparency in Public 51 Procurement Rules, 2013 (hereinafter referred to as 'RTPP Act, 2013'). RTPP Act, 2012 was published in Gazette of Rajasthan dated 22.05.2012 and Section 1(3) provides that the Act shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint. It is not in dispute that the aforesaid Act was in operation when NIT/NIB in question was issued. Procurement or public procurement, procurement contract, procurement process, procuring entity and Subject matter of Procurement are defined in Section 2 (xiii), (xiv), (xv), (xvi) and (xxi) which read as under:
"(xiii) "procurement" or "public procurement" means the acquisition by purchase, lease, licence or otherwise of works, goods or services, including award of Public Private Partnership projects, by a procuring entity whether directly or through an agency with which a contract for procurement services is entered into, but does not include any acquisition without consideration, and "procure" or "procured" shall be construed accordingly;
(xiv) "procurement contract" means a contract entered into between the procuring entity and a successful bidder concerning the subject matter of procurement;
(xv) "procurement process" means the process of procurement extending from the issue of invitation to pre-qualify or to register or to bid till the award of the procurement contract or cancellation of the procurement process, as the case may be;
(xvi) "procuring entity" means an entity referred to in subsection (2) of section 3;
(xxi) "subject matter of procurement" means any item of procurement whether in the form of goods, services or works;"
99. Section 3 says that Act shall apply to all procuring entities referred to in sub-section (2). Sub-section 2 of Section 3 enlist procuring entities as under:
"(2) For the purposes of this Act, "procuring entity" means, -
(a) any department of the State Government or its attached or subordinate office;
(b) any State Public Sector Enterprise owned or controlled by the 52 State Government;
(c) any body established or constituted by the Constitution whose expenditure is met from the Consolidated Fund of the State;
(d) any body or board or corporation or authority or society or trust or autonomous body (by whatever name called) established or constituted by an Act of the State Legislature or a body owned or controlled by the State Government;
(e) any other entity which the State Government may, by notification, specify to be a procuring entity for the purpose of this Act, being an entity that receives substantial financial assistance from the State Government in so far as the utilisation of such assistance towards procurement is concerned."
100. Section 5 says about determination of need for procurement and reads as under:
"5. Determination of need for procurement. - (1) In every case of a procurement made under this Act the procuring entity shall first determine the need for the subject matter of procurement.
(2) While assessing the need under sub-section (1), the procuring entity shall take into account the estimated cost of the procurement and also decide on the following matters, namely: -
(a) the scope or quantity of procurement, if determined;
(b) the method of procurement to be followed with justification thereof;
(c) need for pre-qualification, if any;
(d) limitation on participation of bidders in terms of section 6, if any applicable, and justification thereof; and
(e) any other matter as may be prescribed.
(3) The procuring entity shall maintain documents relating to the determination of the need for procurement under sub-section (1) and the assessment made under sub-section (2)."
101. 'Section-II Bid Data Sheet' of NIT/NIB states that 'procuring entity' is State Government through MD cum CE ERCPCL Jaipur.
102. Section-III of NIT/NIB deals with Evaluation and Eligibility Criteria of Bidder and in column 3.3.4, two necessary experience required for the 53 bidders are as under:
a) Dredging Experience- Bidders shall submit a certificate verified by Organization regarding having experience of dredging for at least 5,00,000 cum (7,50,000 lac ton) in last 7 years ending on March 2022.
b) Processing/extraction of sand from dredged material and treatment of residual water to make it reusable- Bidder shall have sound technical experience in sand processing/manufacturing of engineering sand/extraction and separation of river sand by Hydro cyclone method (Minimum feed capacity 70 TPH) along with residual water treatment plant for sludge management (minimum thickener capacity of 200 cubic meters per hour) and collectively shall have processed minimum quantity of more than 1,00,000 cum (1,50,000 lac ton) of sand/silt in a single year in last 7 years ending on March 2022.
103. Para 3.3.3 deals with equipment capabilities and says that bidder should own, or have assured access to (through hire/lease or purchase or rental agreement for a minimum period of 5 years), the following key items of equipment in full working order, and must demonstrate that, based on known commitments; they will be available for use in the proposed contract. The said equipment and characteristics are:
S. Name of Equipment and Minimum
No. characteristics Required
Numbers
1. Cutter suction type dredgers/inland 02
cutter suction type dredgers
2. Grab/Backhoe/Bucket type Dredgers 04
3. Hopper barges with hopper capacity of 04
at least 500 cubic meters
4. Sand Processing Plant enables with 1
54
Hydro cyclone Method having
minimum feed 70 TPH
104. Section-V 'Procuring Entity's Requirements' of NIT/NIB gives details of procurement under the head 'General Information', it is stated that Bisalpur Dam was constructed across River Banas in 1993 at the coordinates 250 55'29" North and 750 27'22" East, near Deoli city in Tonk District which is about 15 kms away from the Dam. Three main tributaries of Banas namely Banas, Khari and Die contribute to Bisalpur dam. However, partial storage started back in 1993 and full storage started since 2004. Catchment area of Bisalpur dam lies in the hills of Aravali Range. Very heavy silt load comes with the rainfall runoff and some part of it get deposited in the submergence area of the dam. This deposited material block the live as well dead storage capacity of the dam and thus, reduces water available for utilization. Day by day demand of water especially for drinking water is in rising trend. For this reason, it has become imperative to reclaim storage capacity of Bisalpur Dam so that some additional water may be stored and meet some part of drinking water demand. Reservoir data is mentioned as under:
"a) Maximum water level (MWL): 316.345 m
b) Full Reservoir Level: 315.50 m
c) Maximum Depth of water level at FRL: 32.50 m
d) Minimum Draw Down Level (MDDL): 304.60 m
e) Reservoir Capacity at M.W.L: 1271.55 Mm3
f) Reservoir Capacity at F.R.L: 1095.84 Mm3
g) Reservoir Live Capacity: 938.6 Mm3
h) Reservoir Dead Capacity: 54.89 Mm3
i) Water Spread Area at FRL: 212.30 Sq. km
j) Catchment Area: 27641.4sq km"55
105. Para 5.2 of Section-V gives details of Silt Load Assessment and it is said that a study was conducted under National Highway Project for assessment of silt deposited in the submergence area of Bisalpur Dam and it was estimated that 65.90 million cubic meters (hereinafter referred to as 'mcm') at the rate of 3.88 mcm per annum has been deposited in Bisalpur Dam from 2004-2021. Chart giving details of sand silt load assessment reads as under:
Sr. Particular Quantity Quantity
No. in MCM in Million
Metric
Tonne
1 Sand Silt load Assessment
A As per study conducted under NHP- 69.84 111.744
Silt load deposition from yr 2004
(Year of Dam impounding) to 2021;
projected up to 2022
B Average annual silt load rate 3.88 6.21
assessment as per CWC report
under NHP
C existing Silt load as per NHP 69.84 111.744
D Likely Silt deposition during 77.6 124.16
dredging period of 20 years @ 3.88
MCM
E Total Likely silt deposition up to 147.44 235.90
the end of dredging period
F Efficiency for dredging 65%
considered
G Targeted capacity to be reclaimed by 95.84 153.34
dredging quantity to be dredged in 20
year
H Dredging Project Duration (Based on 20
life cycle of Machines procured)
I Av. Silt load to be dredged per 4.79 7.67
annum
106. There is a note at the bottom of para 5.2 which says that the quantity mentioned in the chart is tentative and based on sedimentation study. Bidder was advised to make its own assessment and study sedimentation report. Para 5.3 deals with the scope of work and reads as under: 56
"5.3 Scope of work Proposals are invited for removal of silt/sand/gravel mixed overburden deposited in the submergence of Bisalpur Dam (Dist. Tonk) to reclaim its storage capacity with mechanical means like dredgers etc, and separation of sand from the silt recovered from Reservoir, putting back sand / silt free water back to reservoir, stocking sand & silt at bidders place. For this task employer shall not pay any amount but bidder will be free to make commercial use of the dredged material after paying requisite royalty charges, all type of taxes, duties, cess levies imposed by Central, State Government & Local bodies from time to time. If farmers would be willing to use dredged silt for their fields, than it would have to be provided free of cost at stock yard. Employer desires to share the benefit earned by bidder from sale of such processed sand against facilitating bidder to work in their jurisdiction.
This proposal is requested for reclaiming/restoring the storage capacity of Bisalpur dam, (95.84Mcum in 20 years without altering the existing salient features of the Bisalpur dam and bidding the per unit rate of processed sand, which will be payable by bidder to ERCPCL subject to minimum annual payment to ERCPCL as specified in special condition of Contract.
This work also includes getting permissions/ requisite clearances if applicable from state government agencies / Central Govt. agencies or any other statutory body."
107. Next document is 'Financial Bid' which contains Section-VI 'General Conditions of Contract and Section-VII contains 'Special Conditions of Contract'. General conditions of contract deal with adherence to execution of work within time, preparation of the programme and time schedule, recovery payment, measurement and compliance of Labour Laws etc. which we do not find of much assistance to point an issue.
108. Section-VII deals with special conditions of contract and have been heavily relied, therefore, we have to examine them minutely.
109. Item 4 says that all the approach/haul required, to reach material source, work site, camp etc. shall have to be constructed and maintained by the contractor, during the entire contract period, at his own risk and 57 cost, for which no extra payment shall be made to the bidder.
110. Item 5 says that the bidder shall provide one new 7 seater and two new 5 seater multi-utility vehicle to employer in its name for supervision/inspection and collection of soil/silt/sand sample during contract period at the disposal of Engineer in charge starting from 30 days from date of agreement. Cost of POL, driver and maintenance shall be borne by the bidder, for which no extra payment shall be made.
111. Items 6, 7 and 8 talk of facility of camp office with basic furniture to be provided by the bidder and land for establishment of site office etc. is to be arranged by the contractor at his own cost and read as under:
"6 The bidder shall provide facility of camp office with basic furniture (one table, four chairs) and basic facility (potable water with RO & water cooler, electricity and Toilets etc) during contract period at near site, for which no extra payment shall made to the bidder.
7 Contractor will maintain a PMU cell well equipped with CCTV arrangements of yard where dredged material will be stored before dispatching to Processing plant.
8 Land for establishment of site office, field laboratory, machineries, yards, dykes, carriageway, haulage roads and for all other requirements which is necessary for execution of work will be arranged by contractor at his own cost. The contractor shall arrange land which will be required for its operation under this agreement at his own cost and resources. However, Employer land/ govt land, if any, may be used only after its prior permission from competent authority at the rate prescribed by the employer. Any structure (residential or office building) except plant & processing units either temporary or permanent (built on Employer land after prior permission) shall be the property of Employer & contractor shall hand over the same to Employer after completion of the agreement term."
112. Item 11 prohibits use of explosive for the work strictly. Item 12 says that the contractor will make all necessary right of way, access roads etc. required for the work at his own cost. Item 14 says that contractor shall prepare a detailed Site Environment Plan for the work site, base camp 58 etc. showing arrangements for disposal/dumping of excavated earth and other waste, location of fuel, oil and lubricants depots, sheds for equipment, labour housing facilities, site office, etc. prior to the construction to the Engineer-in-charge. Item 16 requires a detailed survey indicating clearly positions and area where material will be stacked and sheds built, carriageway, haulage roads, dykes' area, separation plant area, pipeline etc. by the contractor at his own cost to be presented to Engineer-in-charge before actual commencement of work at site. Item 19 restrains contractor from changing existing natural course of rivers/streams/nallah falling into the river and reservoir. Then comes item 20 which requires contractor to assure minimum payment to procurement entity i.e., ERCPCL and reads as under:
"20 Minimum Assured Payment to the ERCPCL- This proposal is requested for reclaiming / restoring the storage capacity of Bisalpur dam, 95.84Mcum (153.34 Million Metric Ton) in 20 years without altering the existing salient features of the Bisalpur dam and bidding the per unit rate of dredged material, which will be payable by bidder to ERCPCL subject to minimum annual payment to ERCPCL as indicated below irrespective of quantity of dredged material. Additional payment beyond minimum assured annual payment shall be payable to ERCPCL as per computation shown in the table.
S. Minimum Rate Quoted Computation of
N. annual by Bidder in Additional Payment in
assured Rs Per Metric addition to Minimum
payment Tonne of assured Annual Payment
to be Dredged Actual Additional
deposited Material (the Quantity Payment against Year with the rate will be of the Quantity department increased by Dredged Dredged (Only if (in Lacs) 5% of Material amount previous year in computed is rate excluding metric more than the royalties, all Tonne minimum annual taxes, duties payment) in etc Lacs 1 2 3 4 5 6 1 I Year 225.25 R1 Q1 =(Q1*R1)/10^5- 225.25 59 2 II Year 473.03 R2=1.05*R1 Q2 =(Q2*R2)/10^5- 473.03 3 III Year 709.54 R3=1.05*R2 Q3 =(Q3*R3)/10^5- 709.54 4 IV Year 946.05 R4=1.05*R3 Q4 =(Q4*R4)/10^5- 946.05 5 V Year 993.35 R5=1.05*R4 Q5 =(Q5*R5)/10^5- 993.35 6 VI Year 1043.02 R6=1.05*R5 Q6 =(Q6*R6)/10^5- 1043.02 7 VII Year 1095.17 R7=1.05*R6 Q7 =(Q7*R7)/10^5- 1095.17 8 VIII Year 1149.93 R8=1.05*R7 Q8 =(Q8*R8)/10^5- 1149.93 9 IX Year 1207.43 R9=1.05*R8 Q9 =(Q9*R9)/10^5- 1207.43 10 X Year 1267.80 R10=1.05*R9 Q10 =(Q10*R10)/10^5
-1267.80 11 XI Year 1331.19 R11=1.05*R10 Q11 =(Q11*R11)/10^5
-1331.19 12 XII Year 1397.75 R12=1.05*R11 Q12 =(Q12*R12)/10^5
-1397.75 13 XIII Year 1467.63 R13=1.05*R12 Q13 =(Q13*R13)/10^5
-1467.63 14 XIV Year 1541.02 R14=1.05*R13 Q14 =(Q14*R14)/10^5
-1541.02 15 XV Year 1618.07 R15=1.05*R14 Q15 =(Q15*R15)/10^5
-1618.07 16 XVI Year 1698.97 R16=1.05*R15 Q16 =(Q16*R16)/10^5
-1698.97 17 XVII 1783.92 R17=1.05*R16 Q17 =(Q17*R17)/10^5 Year -1783.92 18 XVIII 1873.11 R18=1.05*R17 Q18 =(Q18*R18)/10^5 Year -1873.11 19 XIX Year 1966.77 R19=1.05*R18 Q19 =(Q19*R19)/10^5
-1966.77 20 XX Year 2065.11 R20-1.05*R19 Q20 =(Q20*R20)/10^5
-2065.11 60 The contractor shall submit monthly report of quantity dredged on 3rd day of every month wherein they will provide their dispatch data from previous month to the Engineer-in-Charge. On the basis of the report submitted by the contractor, Engineer-in-charge shall raise the bill on or before 7th day of the month. The contractor has to make payment to the department by 15th day of the month. Thereafter, if contractor is unable to pay the within prescribed time, the interest shall be charged on the bill amount at 15% per annum (simple interest) for delay payment. If in a month no dredging is done or quantity of lesser amount than the minimum assured per month (annual assured/12) is extracted, Engineer In charge will generate a bill of monthly assured payment (annual assured /12)."
113. Item 23 requires contractor to install web based SCADA system and CCTV network and reads as under:
"23. Contractor will install on its own cost web based SCADA system & CCTV network with its control at site to monitor activities and SCADA to automized quantification of the material excavated/taken out from reservoir, separately quantification of sand & silt. Web Based SCADA system must be provided to the plants, which are used for the work. Contractor will submit the SCADA plan and get it approved from Procuring Entity.
Separate panel for the SCADA system along with independent sensors other than sensors required for operation and controlling of the plant shall be installed at the plant site to facilitate the independent supervision by ERCPCL. The activities/progress can be seen online on web site. Data shall be directly accessible to ERCPCL at Jaipur office. All the sensors shall be calibrated properly and necessary calibration certificate along with validity period shall be produced by the concern to authority as and when required. Facility to display the location of plant on GIS map shall be provided."
114. Item 25 requires bidder to obtain any clearance, if required, from concerned organization at its own cost. Thereafter, the items relevant for our purposes and heavily relied by the parties are 26 to 30, 32 to 39, 41 to 51, 54, 56 to 59, 64 to 66, 68, 69, 71, 77 and 78 which read as under:
"26 Bidder to satisfy regarding availability of working days for extraction of material. No over extraction /below natural river bed shall be allowed.61
27 Bidder shall submit its extraction plan well in advance & any shifting of dredger/equipment etc shall be done with the prior approval of Engineer in charge.
28 For de-silting in dam reservoir, distance limit shall be prescribed by concerned Engineer -In Charge from dam body and intake points of PHED beyond which no desilting shall be allowed. Bidder shall strictly follow these limits. If there is violation of terms & conditions regarding safety of dams, desilting shall be immediately stopped. It is to be borne in mind by the Contractor that Dam / Project safety is of prime importance during extraction of silt and silt mixed sand from dam reservoir. All necessary precaution shall be taken by the Contractor not to cause any type of harm to the Dam / all structures/ Project during entire operation of extraction work. If it is observed that any type of harm is caused to the dam / structures/ project, then the contractor has to carry out repairing and restoration of damaged portion of dam / project at contractors' own cost as per the procedure laid down by the Government or to pay the amount as decided by the Department. It is sole responsibility of contractor if any sort of harm is caused to dam. Considering the dam safety, contractor is not allowed to award sub-contract to any person or society.
29 Bidder will assess silt load assessment every year during monsoon flow and intimate the results.
30 Bidder to ensure that siltation study shall be carried after 10 years and after completion of work of the desilting activity through some expert Agency like CSIR-NIO/CWPRS / MERI Nashik or equivalent institute as decided by the Employer to determine the de-siltation done and silt load so that there is no over exploitation of the material at any point of time. A copy of siltation study shall be submitted to the Department.
32 Measures for prevention & control of soil erosion and management of silt shall be undertaken. Protection of dumps against erosion, if any, shall be carried-out with geo textile matting or other suitable material. Bidder to ensure recovery of silt /sand free water back to reservoir after proper treatment.
33 Provisions stipulated in Rajasthan Mines and mineral policy and forest policy with all its amendment till date shall be followed/ observed.
34 It shall be ensured that desilting does not in any way disturb the turbidity, velocity and flow pattern of the river water.62
35 Bidder shall pay for the water used from reservoir for its entire operations for washing sand, commercial & non-commercial usage to the Dam owner as per prescribed rate.
36 All royalties/taxes etc are to be borne by Contractor as per prevailing law.
37 It shall be ensured that there is no danger /deterioration to flora &fauna around reservoir from any activity related to works under this contract.
38 Desilting in areas identified/demarcated/locally known for habitation of any creature is prohibited.
39 Farmers are allowed to use extracted silt for their farms free of royalty charges. However, farmers have to cart the extracted silt to their farm at their own cost. Therefore, the contractor has to stack the extracted silt at the approved locality and in the manner as directed by the Engineerin- Charge. The contractor will dispose off excess silt after taking approval from Engineer -in- Charge and shall submit silt disposal plan time to time. Contractor will follow the plan of temporary/ permanent storage/ utilization of the extracted silt. Failure of which will be liable for suitable action by the engineer in charge.
41 Contractor is solely responsible for the safety & security of the sand /silt removed from the extracted sand mixed silt. It is compulsory to the contractor to install CCTV cameras at contractors own cost at location & as directed by the Department so as to prohibit the theft of sand.
42 The land required for stacking extracted silt mixed sand as well as place for process unit shall be arranged by the contractor on its cost. The employer shall only assist the contractor to acquire necessary permission of usage of provided land or to acquire/lease the private land at its own cost. However, the responsibilities of arranging land required for operation, stacking etc lies with the contractor.
43 It is presumed that farmer shall cart silt from stacking yard at their own cost. However, in case if the farmer does not cart silt at his cost, then contractor will dispose excess silt as per directions of Engineer in charge before 1st June every year for previous year.
44 Transport of sand shall be governed in accordance with prevailing transport rules of mineral.
45 If the dam area where desilting is to be carried out comes under residence zone of bird species, it shall be the responsibility of the contractor to ensured that bird species will be protected in all 63 respect. Also care to be taken regarding cage culture and fisheries, shall not be disturb.
46 In case of reserved forest, it shall be ensured by the contractor that desilting shall be carried out with restoring surrounding forest around desilting area. Permission for desilting in any area of reserved forest /nearby shall be taken by bidder from concerned authorities at its own cost & any binding /condition imposed by such authority shall be binding to bidder including entire cost, if any. Discarded material shall not be thrown away in the forest area. Contractor shall be solely responsible for illegal dumping/ stacking etc. of the material on the area other than the area specified by the contractor in his plan and approved by the engineer in charge.
47 It shall be mandatory to the contractor to make appropriate measures after starting desilting operation at a location in the reservoir to avoid adverse effect on fish production.
49 Precise desilting area shall be demarcated at site by the Engineer- In charge prior to desilting operations for proposal under consideration. If the contractor is found extracting silt/ sand mixed with silt, beyond the area demarcated by engineer in charge, then such extraction will be treated as illegal and the contractor will be liable for the penal action and or termination of the contract by the Department.
50 All necessary statutory clearances including Environmental clearance (if required) shall be obtained by the contractor before start of desilting operations. Expenditure on account of such statutory clearances / permissions etc. shall solely be borne by the contractor and no such claim / reimbursement etc. if any shall be paid to the contractor. Also no claims / losses / damages etc. shall be paid to the contractor on account of time taken / required for such statutory clearances / permissions. If any clearance is to be issued in the name of Employer then Government will extend necessary help & support to the contractor for getting the same. However all charges/studies/actions/directions by authority etc, if required, shall be paid/done/complied by the contractor.
51 No desilting shall be carried out in the safety zone of any bridge and or dam embankment. No desilting shall be carried out in the vicinity of natural / manmade archaeological sites.
54 No wildlife habitat will be infringed.
55 The wildlife (protection) Act, 1972 with all its amendments till date shall not be violated.64
56 Transportation of materials shall be done by covering the trucks / tractors with tarpaulin or other suitable mechanism so that no spillage of mineral / dust takes place.
57 Appropriate mitigation measures shall be taken to prevent any kind of pollution in consultation with the Rajasthan Pollution Control Board. It shall be ensured that there is no leakage of oil and grease from the vehicles used for transportation.
58 Vehicular emissions shall be kept under control and regularly monitored. The silt/sand transportation shall be carried out through the covered trucks only and the vehicles carrying the silt / sand shall not be overloaded.
59 Special Measures shall be adopted to prevent the nearby settlements from the impacts of the desilting activities. Maintenance of roads through which transportation of silt / sand is to be undertaken shall be carried out regularly.
64 Measure shall be taken for control of noise level to the limits prescribed by Central Pollution Control Board. The Water (prevention and control of pollution) Act, 1974 the air (Prevention and control of pollution) Act, 1981 the environment (Protection) Act, 1986 and rules there under, Hazardous Wastes ( Management and Handling ) rules, 1989 and its amendments the public liability insurance Act, 1991 and its amendments shall be strictly followed by the bidder.
65 Priority of desilting in areas will be decided as per instruction from Engineer-In Charge.
66 Excavation shall not be carried out below natural ground levels. It is necessary to maintain daily register of total quantity of dredged material and sand quantity available from silt mixed sand extracted..
68 In cases of any illegal desilting/transportation is noticed than action shall be taken against person concerned as per prevailing rule. FIR shall be lodged under appropriate section of Indian Penal Code and vehicles as well as desilted sand shall be seized and taken into the custody of govt. and royalty charges, fine shall be recovered. If it is found there are incidences of attack on govt officers/ employees and incidences of an organised crime, action shall be taken against such crime under respective act.
69 No claim will be entertained on account of getting less sand proportion in the silt removal from the submergence area during the tender operation period.65
71 No payment shall be made by the Department for the above said work. Contractor has to deposit the amount worked out as per his quoted rate and as elaborated at condition 21 above.
77 However, period of silt removal shall be 20 years which may further be extended by 4 years based on mutual agreement between Employer and Contractor.
78 The rate offered by the bidder shall be increased annually by 5% of previous year rate. The bidder shall pay all royalty charges, all type of taxes, duties, cess levies imposed by central, State Govt. and Local bodies etc. prevailing from time to time."
115. The above clauses show that various terms and conditions in NIT/NIB lean more towards the aspects dealing with extraction and disposal of mineral and, therefore, major part of tender document has been devoted to minerals. It is also evident that a study conducted under National Highway Project shows deposition of 65.90 mcm silt in the sub- merged area of Bisalpur Dam during the period of 2004 to 2021 which has been computed to have deposited at the rate of 3.88 mcm per annum. This figure has been relied in preparation of NIT/NIB document and adding annual deposition for the year 2022, total silt deposited has been computed as 69.84 mcm upto 2022. NIT/NIB document proposes to give contract for a period of 20 years and allows extraction of silt to the extent of 4.79 mcm per annum. In the next 20 years, 77.6 mcm (3.88 mcm x 20 years) silt shall approximately be deposited at the rate, computed in the study conducted under National Highway Project. Against it, at the rate of 4.79 mcm per annum, total 95.8 mcm silt would be taken out/extracted by project proponent. It means that only 18.2 mcm silt against the already deposited quantity of silt upto the year 2022 would be extracted and thus, the already deposited silt upto the year 2022 would stand reduced only to 51.64 mcm. Substantial storage space of the Dam will still remain to be silted and, therefore, the purpose which is being highlighted for issue of NIT/NIB document in question, i.e., removal of silt/sand/gravel to reclaim 66 its storage capacity, would not be achieved as substantial quantity of silt will remain in the sub-merged area of Bisalpur Dam. This claim appears to be a formal label only and real objective, evidently is something else i.e., extraction and disposal of mineral (sand/gravel) in market, entering into a commercial contract, by sharing in the profits earned by sale of mineral.
116. In our view, this is clearly an indication to draw an inference that NIT/NIB document in question though apparently cloaked as an arrangement sought to be made to reclaim storage capacity of the Dam and part of maintenance of Dam but it is not so and in fact the dominating idea is extraction of mineral and its sale in the open market wherein the tenderer i.e., ERCPCL will also earn substantially by sharing the income out of the price of mineral in the form of cost/price, which is to be paid by proponent to ERCPCL.
117. We find strength in drawing the above inference from the fact that various provisions in NIT/NIB show compliance of Statues relating to mines and minerals, the process of bidding being made subject to provisions of RTPP Act, 2022 which deals with procurement i.e., acquisition by purchase, lease, license or otherwise of works, goods or services. Here, the arrangement sought to be made by NIT/NIB document is procurement of mineral by granting license to the proponent to extract the same from the sub-merged area of Bisalpur Dam and this process/contract is not without consideration but consideration is essence in the form of cost payable by proponent.
118. The NIT/NIB document shows that the proponent will not only carry out desiltation of the sub-merged area/river bed at Bisalpur Dam but it has also to separate sand from the silt recovered from reservoir, silt free water shall be reverted to reservoir and the amount/cost prescribed in the 67 NIT/NIB has to be paid by project proponent to ERCPCL, which would be amount obviously payable from the price of mineral which PP will earn with the sale of the mineral. Therefore, in the price of mineral, ERCPCL clearly has a share which is substantial amount.
119. For the expanses to be incurred by proponent in carrying out desiltation, no amount is payable by ERCPCL whose work of alleged maintenance i.e., reclamation of storage capacity would be performed by the proponent. On the contrary, it is the ERCPCL which will earn in the form of sharing benefit earned by bidder from sale of the processed sand. The intention of the employer i.e., ERCPCL is clearly mentioned in para 5.3 of the document where it is said that the employer desires to share the benefit earned by bidder from sale of such processed sand against facilitating bidder to work in their jurisdiction.
120. Ministry of Jal Shakti, as we have already pointed out, has published a Report i.e., National Framework for Sediment Management in October 2022, wherein it has observed that element of disposal of mineral is not proper approach for sediment management plan. It has also observed that dredged material is a resource and the beneficial reuse in convergence with various concern organisation/agencies will not only bring direct economic values, but also social and environmental merits. Where desiltation is proposed for reclamation of the storage capacity, restored capacity of reservoir should be considered equivalent to creation of new live storage and apart from the intended benefits in terms of various uses of reservoir water, the benefits from selling of sand in the open market by the contractor should also be considered for cost benefit analysis. Appendix-IX of EIA 2006 as amended by Notification dated 15.01.2016 is also referred to wherein it is provided that prior EC would not be required for dredging and desilting of dam, reservoirs, weirs, barrages, river and 68 canals for the purpose of their maintenance, up keep and disaster management possess. Ministry of Jal Shakti in the above Report i.e., National Framework for Sediment Management in para 7.1, has observed that the exemption given in Appendix-IX of EIA 2006 will be applicable for the purpose of annual/routine maintenance/upkeep and disaster management only. Thus it is clear that the kind of exemption provided in Appendix-IX is not for any dredging or desilting of Dam etc. but only where the same is resorted for the purpose of maintenance, upkeep and disaster management as a routine or annual exercise.
121. It is argued by Learned Counsel for respondents that NIT/NIB document proposes desilting/dredging for the purpose of maintenance of Bisalpur Dam i.e., reclamation of storage capacity which has reduced in the last almost 18 years substantially due to deposit of huge quantity of silt. However, in our view, it is not a case of regular or annual maintenance or upkeep since desilting is sought to be followed after a little lesser than two decades. Further, it is not a non-revenue operation but there is close eye and watch on the quantity of silt, including mineral in the form of sand etc. which will be available from the process of desiltation and there is a conscious decision for sharing benefit from such extraction by requiring the contractor to pay substantial amount to ERCPCL i.e., the tenderer.
122. Here, we may also refer to Ministry of Jal Shakti's above Report wherein, in para 7.2, it has been said that instances of sedimentation removal from dam/rivers for different purposes and activities like commercial purposes, restoration of storage capacity of reservoirs, channelization of rivers, etc. are the activities which generally do not fall under regular maintenance/ upkeep or disaster management and hence, will be governed by National Framework for Sediment Management. Since desilting/dredging activities in the sub-merged area of the Dam or the river 69 bed of the Dam affects environment, the appraisal of environmental impact in accordance with the applicable laws, is necessary. NIT/NIB document also in different clauses clearly says that the requisite clearances/NOCs/consents etc. under environmental laws, shall be obtained by the contractor.
123. Moreover, ERCPCL, on the one hand, has mentioned in the document that the exercise of desiltation is for reclamation of storage capacity by desilting of Bisalpur Dam but simultaneously, it also says that it is a 'Guaranteed Annual Return Contract'.
124. Desiltation is an activity which involves huge expanses but in the present case, from the very beginning ERCPCL has treated the tender document as a guaranteed annual return contract, which obviously does not reflect on reclamation of storage capacity. The intention of sharing benefit in the cost of the mineral, in substance, makes a serious diversion on the dominant object of NIT/NIB document. From the profit earned by contractor, an agreed part thereof, shall be departed to the tenderer i.e., ERCPCL making it a party, sharing in the profits.
125. The initial cost of the contract is Rs. 258.54 Crores. However, clause 78 of the document contemplates that rate offered by the bidder shall be increased annually by 5% of previous year rate. ERCPCL shall be sharing profit in the sale of the mineral with the contractor but the responsibility of payment of royalty, taxes, duties, cess etc. on the said mineral and compliance of mineral laws is totally upon the bidder/contractor.
126. In the entirety of the above facts and considering the entire document in detail, we find ourselves satisfied that the document in question is for mining and that is the dominate object, particularly, in view of the fact that the so called reclamation of storage capacity in the 70 next 20 years would be very nominal. The said objective is not going to be achieved substantially in the light of the terms of NIT/NIB which we have discussed above and it goes to show that the dominant, apparent and intended activity sought to be undertaken by means of NIT/NIB document, is extraction of mineral through a contractor and sharing profit in the sale of such mineral by ERCPCL i.e., tenderer.
127. This view is also supported from some other aspects of the document. Para 5.3 of Section-V of NIT/NIB contemplates bidding per unit rate of processed sand which will be payable by bidder to ERCPCL subject to minimum annual payment to ERCPCL as specified in special condition of Contract. There is a clear commercial interest of ERCPCL which has nothing to do with the desiltation work. Document also says, whether any desiltation activity is actually undertaken by the bidder/contractor and/or the extracted quantity is not desilted within the time prescribed, still annual payment to the extent of minimum provided in the document has to be made by bidder/contractor to ERCPCL. This fact also shows that the contract in question is for winning mineral, a commercial contract and not with dominant object of maintenance or upkeep of the dam. The minimum assured payment to ERCPCL is provided in Section-VII item 20 and this we have already quoted above. Detailed terms and conditions have been provided with regard to extraction of material which include silt and silt mix sand. Item 33 clearly says that Rajasthan Mines and mineral policy and forest policy shall be followed in the process of extraction, transportation and disposal of mineral by bidder/contractor. So far as the extracted silt is concerned, the document says that the same can be allowed to be used by farmers free of cost provided transportation is arranged by the farmers at their own cost. However, if the farmers do not lift the silt or the entire silt is not lifted by 71 them, the remaining silt will also be disposed of by the contractor after taking approval from Engineer In-charge.
128. Since the document primarily intends to be a commercial one dealing with extraction and disposal of mineral, item 50 provides that all necessary statutory clearances including EC (if required) shall be obtained by the contractor before start of desilting operations. In the circumstances, we are inclined to accept contention of the applicant that desiltation operation, herein, is a mining operation and without obtaining prior EC and complying other environmental laws,it cannot proceed.
129. We find that a similar issue came up before Southern Zonal Bench (Chennai) of this Tribunal in OA 142/2022(SZ), Sarvabhoum Bagali vs. State of Karnataka & Ors. decided vide judgment dated 23.03.2023. Therein also, the issue considered by Tribunal was, whether exemption granted under EIA 2006 to dredging and de-silting of dams is applicable when it involves sand/silt mining i.e., when sand/silt is sold for commercial purpose/use of Government agencies, instead of limiting the dredging/desilting for maintenance, upkeep and disaster management. The facts in brief, as evident from the above judgment, are that a Work Order dated 27.11.2020 was issued by District Sand Monitoring Committee to Karnataka State Mineral Corporation Ltd. for de-siltation work, involving extraction of 14,51,680 MT of sand from backwaters of Adhyapadi Dam on Phalguni River In Managluru Taluka and Shamburu Dam on Nethravathi River in Bantwal Taluka, located in Dakshin Kannada District, Karnataka.
130. The said Work Order and de-siltation activity sought to be undertaken by Karnataka State Mineral Corporation Ltd. was challenged on the grounds that without obtaining prior EC under EIA 2006, the above 72 Work Order cannot be acted upon since it involves not only dredging and de-silting of dam but also involves commercial sand mining and, therefore, excluded from the exemption granted Appendix-IX of EIA 2006 as amended by Notification dated 15.01.2016; the exemption under Appendix-IX has to be read with SSMMG-2016.
131. The defense taken by State of Karnataka through Director, Mines and Geology was that need for dredging and de-silting of dams has arisen on account of gathering of silt/sand in the reservoir area of the dam which has reduced carrying capacity of the dam. After ascertaining the quantity, it was identified that a fixed area has gathered silt/sand; experts assessed through Google Image about deposit of silt/sand in Adyapady Dam, measuring 2000 meters in length, 100 meters in width and one meter depth; there was collection of 3.44 lakhs MT of silt/sand; in Shamburu Dam, assessment of experts about collection of silt/sand was to the extent of 2800 meters in length, 230 meters in width and one meter depth; in order to remove silt/sand so accumulated, Work Order dated 27.11.2020 was issued and the purpose of the said Work Order was removal of silt/sand deposited in the dam and not for sand mining in the river; de- siltation has to be done using machines and if they are not removed, again there will be silt deposits during the rainy seasons; deposit of silt being a continuous process using scientific and technical methods to remove silt without violation of terms and conditions of Work Order without violation of environmental laws, the Work Order dated 27.11.2020 was issued. It was distinctly defended that the Work Order was not for removal of sand blocks but for removal of silt and that de-siltation cannot be construed as sand mining. It was also said that the Work Order was issued in favour of a State Government owned Corporation and no private interest is involved and the Work Order complies the requirement of SSMMG-2016. The 73 requirement of prior EC was exempted in case of dredging and de-silting of dams etc. for the purpose of maintenance, upkeep and disaster management and reliance was placed on Appendix-IX of EIA 2006 to contend that the Work Order is perfectly valid and did not involve any specific sand mining, hence, no prior EC was required.
132. The defense taken by Deputy Commissioner, Dakshina Kannada District, impleaded as respondent 4, was also similar in line with the stand of State of Karnataka through Director, Mines and Geology.
133. Karnataka State Mineral Corporation Ltd. as respondent 5, besides taking same line of defense as was taken by other official respondents, also said that State of Karnataka adopted a new Sand Policy, 2020 issued on 09.05.2020 and Rule 3A(a) of Karnataka Minor Mineral Concession Rules, 1994 (hereinafter referred to as 'KMMC Rules, 1994'), exempted de-silting of ponds or tanks and disposal of minor minerals extracted thereof (other than sand) from obtaining prior EC and therefore, extraction of sand by dredging and desilting does not tantamount to extraction of sand blocks warranting prior EC. It also took the defense that dredging and de-silting is being done for reclaiming water storage capacity of two dams which amounts to maintenance and upkeep. Tribunal formulated following two questions:
"(i) Whether prior Environmental Clearance is mandatory for desiltation of dams when extraction of sand for commercial use is envisaged as per Karnataka Minor Mineral Concession Rules, 1994?
(ii) Whether the exemption granted under EIA Notification, 2006 to dredging and de-silting of dam is applicable when it involves mining of sand or silt intended for commercial purpose/Government use?"
134. From the terms of Work Order, Tribunal found that Work Order was issued for two purposes i.e., (i) increase the capacity of the water storage 74 and (ii) sell the sand available at the rate fixed by Government by storing the same in the stockyard.
135. Tribunal refers to para 6 of Appendix-IX of EIA 2006 and observed that exemption under Appendix-IX in para 6 is only for dredging and de- silting of dams when it is for the purpose of maintenance upkeep and disaster management. If the activity also involves commercial sand mining, then exemption is not attracted. Tribunal refers to SSMMG-2016 wherein Standing Committee observed that mining operation means any operation undertaking for the purpose of winning any mineral.
136. Tribunal held that "if desilting is undertaken per se with the objective of winning a mineral then it will be construed as a mining operation." It also observed that if desilting is undertaken not for winning any mineral, it will not be construed as mining operation and farmer can remove the sand from the land without requiring the requisite permits. It also refers to SSMMG-2016 which discusses desilting of reservoirs, barrages, annecuts, lakes and canals and in para 21 of the judgment, Tribunal said as under:
"21. Admittedly in the given case the desilting is done not only for the upkeep and maintenance of the dams but to extract the sand from the silt to be sold at the rate fixed by the Government which is admittedly a commercial activity. As mentioned above, the mining operation means any operation undertaken for the purpose of winning any mineral. Here along with the silt, the sand which is available is extracted which is also quantified as 11,07,680 metric tons in Nethravathi River Bantwal Taluka, and 3,44,000 metric tons in Phalguni River Managluru Taluka, and in an extent of 64.4 and 20 ha. respectively. As it involves the commercial activity by any stretch of imagination, it cannot be stated that the dredging activity is exempted as provide in Clause 6 of Appendix IX of EIA Notification, 2006. Therefore, the said impugned work order dated 27.11.2020 is contrary to the EIA Notification, 2006 for not having obtained the Environmental Clearance."75
137. Tribunal further said that if the Work Order involves winning of mineral and constitutes mining operation, requirement of prior EC is attracted and in such a case, all other requirements as defined in clause 7 of EIA 2006 has to be followed which included preparation of District Survey Report before granting mining lease. Tribunal also refers to a condition of the Work Order that since silt mixed with sand is available, the same can be extracted from the sand and, thereafter, sand made available can be sold. The above condition was read by Tribunal to hold that in the garb of dredging and desilting, sand mining is being done and where sand mining is involved for commercial purposes, requirement of prior EC is attracted and no mining activity can be allowed without obtaining prior EC. Tribunal disposed of OA giving following directions:
"32. In the above circumstances, we are of the view that:
(i) The work order issued on 27.11.2020 in favour of the 5th respondent is in violation of EIA Notification, 2006 as the said activity requires prior Environmental Clearance.
(ii) Dredging and desilting of dams is not exempted from obtaining prior Environmental Clearance as the sand is being extracted for commercial purpose.
(iii) It is open to the 1st respondent to apply for a prior Environmental Clearance as contemplated under EIA Notification, 2006 for sand mining while involving in the dredging and de-silting activities by following the procedure.
(iv) The respondents can proceed with their activity only after obtaining proper Environmental Clearance for the dredging and de-silting in Adhyapadi and Shamburu Dams.
(v) Till such time Environmental Clearance is obtained the 5th respondent is restrained from carrying on the activity pursuant to the work order dated 27.11.2020.
(vi) The de-siltation/extraction of sand from silt for sale undertaken is held as illegal.76
(vii) A penalty of Rs.50 crores is to be paid by the Irrigation Department, Government of Karnataka to Central Pollution Control Board and the said amount will be utilised for pollution abatement in river stretches with priority to stretches in and around Bengaluru.
(viii) In spite of the orders of the National Green Tribunal holding repeatedly that Environmental Clearance is required when de-silted material is used for commercial purpose, the current orders of the District Collector is in gross violation of the same for which the Chief Secretary is directed to issue orders to Collectors to follow all the rules and regulations scrupulously and strictly instruct them that desilting/dredging of water bodies/rivers/reservoirs/waterways shall not be permitted without the prior Environmental Clearance when the de-silted/dredged material be it silt, sand or any other mineral is sold either to the public or for Government projects."
138. In the present case also as we have noted that in the Scope of Work in para 5.3 of NIT/NIB document, the task to be performed are mentioned as under:
(i) Removal of silt/sand/gravel mixed overburden deposited in the submergence of Bisalpur Dam to reclaim its storage capacity with mechanical means like dredgers etc.,
(ii) Separation of sand from the silt recovered from reservoir,
(iii) Putting back sand/silt free water back to reservoir,
(iv) Stocking sand and silt at bidders place.
(v) No amount is payable by the employer i.e., the tenderer to bidder/contractor,
(vi) Bidder/contractor will be free to make commercial use of dredged material after paying requisite royalty charges, all type of taxes, duties, cess levies imposed by Central, State Government and Local bodies from time to time.
(vii) Lifting of dredged silt (not the sand or gravel which is 77 separated from dredged silt) by farmers free of cost shall be allowed,
(viii) Employer would share the benefit earned by bidder/contractor from sale of such processed sand against facilitating bidder to work in their jurisdiction.
(ix) Bidding shall be per unit rate of processed sand, which will be payable by bidder to ERCPCL subject to minimum annual payment.
139. The contract, in our case also, is not confined to mere desiltation/dredging of silt but entire process for obtaining sand by separating from silt and thereafter, its disposal in the market after payment of agreed amount to ERCPCL is an integral part of the contract and in fact is the substance/essence of the NIT/NIB document.
140. In our view, the above judgment is fully attracted in the case in hand, and hence here also desilting/dredging activities in the garb of extraction of mineral by undergoing mining operations cannot be allowed without following environmental laws including prior EC under EIA 2006 and other requisite clearance/permission under law as also compliance with the conditions of SSMMG-2016 and EMGSM-2020.
141. There are some other authorities also wherein desilting whether constitute mining operation, has been considered which are relied by respondents, particularly, the tenderer and contractor. We find it necessary to consider the same and to find out whether any benefit of these judgments is available to them.
142. Anumolu Gandhi vs. State of Andhra Pradesh (supra) was decided vide judgment dated 24.08.2020 by a four Members' Bench of 78 Principal Bench of this Tribunal. An issue was raised, whether activity termed as desilting is in fact illegal mining in Krishna River (Andhra Pradesh). Tribunal sought Reports on the subject but got conflicting versions, accordingly, it constituted an Expert Committee which submitted a report dated 20.07.2020. The Committee gave its concluding remarks as under:
"Overall concluding remarks of the Committee Members i. Water Resource Department, Government of Andhra Pradesh has carried out bathymetric survey in conformity with the established and recommended practices. As per the Bathymetric survey carried out during December, 2019 to January, 2020 present storage capacity of Prakasam barrage is 2.982 TMC. There is loss in storage capacity of 0.089 TMC as compared to the design capacity of 3.071 TMC.
ii. The report submitted by Water Resource Department, Govt. of Andhra Pradesh to Hon'ble NGT is satisfactory.
iii. From the Ecological assessment report it can be inferred that the cautious use of dredgers & mechanised boats and judicious desilting activity may not have serious impacts on flora and fauna in Prakasam barrage.
iv. Overall the Ecological assessment report is satisfactory excepting the section on Water quality."
143. Without deciding the issue on merits, Tribunal observed that since no damage to the environment has been found by Committee, no further order is required and disposed the matter. This judgment, therefore, does not adjudicate the issue and of no assistance to the respondents.
144. In OA 47/2016(SZ), Tirumalasetti Srinivas, Pattiseema vs. Government of India, MoEF&CC & Ors., the notification dated 15.01.2016, granting exemption with regard to requirement of prior EC for dredging and desilting of dams etc. for the purpose of maintenance, upkeep and disaster management was challenged on the ground that it is in violation of the directions of Supreme Court's order in Deepak Kumar 79 vs. State of Haryana, (2012) 4 SCC 429. It also challenged similar provisions made in SSMMG-2016 and EMGSM-2020.
145. In OA 177/2016(SZ), Devineni Rajasekhar vs. State of Andhra Pradesh & Ors., sand mining along river bed was challenged.
146. Both these matters were decided together by Tribunal's Southern Zonal Bench at Chennai vide judgment dated 14.12.2020. Tribunal formulated following two issues:
"(i)Whether the existing mechanism provided by the State of Andhra Pradesh in dealing with sand mining, especially in respect of dredging and desilting, require any modification?
(ii) What are all the further directions if any, required to be issued by this Tribunal to protect over exploitation of natural resources like sand in river stretches?"
147. Tribunal in the light of the terminology of exemption clause in Appendix-IX of EIA 2006 considered the matter and in para 44 observed that where the desilting/dredging exercise is undertaken as part of maintenance of water bodies, it cannot be said to be an act of mining and, therefore, the exemption granted cannot be said to be bad in law. The observations made in para 44 of the judgment read as under:
"44. If more quantity of silt carried during flow of surplus water is deposited in the river and ultimately if such silt carried, conserved and deposited in dams or barrages or river in large amount, then that will affect the free flow of water in the river and also the storing capacity of the water in reservoirs or dams. So in order to maintain free flow of water for a particular level to allow free navigation which is being done by the fishermen community for the purpose of fishing and also in order to preserve the water storage capacity of the reservoirs and dams and other water bodies, it is necessary to do dredging/desilting to the extent possible in lakes and to maintain the flow of water in the river to the extent of enabling free navigation and for the purpose of maintaining the storage capacity in the reservoirs or dams and other water bodies and it is being done as part of the maintenance of these water bodies and in fact it cannot be said to be an act of mining or illegal mining as defined under the Mines and Mines (Development & Regulation) Act, 1957 and the Rules framed thereunder. So that may be the reason the rule making authorities 80 thought of exempting this from the purview of obtaining Environment Clearance. Further, in order to avoid flood or other disaster during monsoon, periodical dredging or desilting has to be done, as part of maintenance and also part of preventive method of disaster like flood being caused, such things are necessary. If the necessary procedure of obtaining Environment Clearance is insisted for such purpose, then that will affect the very process of disaster management and that may also be one of the reasons for exempting this from the purview of obtaining the Environment Clearance. But at the same time, if it is not properly regulated or monitored, the possibility of the same being misused and in the guise of desilting, illegal mining without obtaining Environment Clearance being carried out cannot be ruled out and this will cause unlawful enrichment to those persons who are involved in such illegal or unauthorized activities and heavy loss to the exchequer."
148. Tribunal also observed that Notification dated 15.01.2016 amending EIA 2006 was challenged in OA 186/2016, Satendra Pandey vs. MoEF&CC & Others before Principal Bench and vide judgment dated 13.09.2018, validity of the notification in all other aspects was confirmed except to the extent of issue of prior EC by District Environmental Impact Assessment Authority and Appraisal of Environment Plan by District Level Environment Appraisal Committee and the said judgment of Principal Bench renders OA 47/2016(SZ)(supra) infructuous. Having said so, in para 25 and 26 of the judgment, Tribunal found that the connected OA 177/2016(SZ)(supra) involves the mining of river bed and therefore, instead of dismissing OA 47/2016(SZ)(supra) as infructuous, Tribunal proceeded to consider both the matters together and disposed of vide judgment dated 14.12.2020 by issuing following directions:
"51.So under these circumstances, considering the fact that necessary guidelines have been given by the MoEF & CC for maintaining sustainable sand mining and also for enforcing those things in view of the directions issued by this Tribunal and on the basis of the same and also on the basis of the directions issued by the Principal Bench recently in ANUMOLU GANDHI VS. STATE OF A.P (O.A.935/2018 dated 24.8.2020), these applications are disposed of by issuing the following directions:
(i) In the guise of desilting or dredging, no act of sand mining 81 can be carried out in the river beds or reservoirs, lakes or ponds etc.
(ii) The State of Andhra Pradesh is directed to conduct regular survey of sediment deposit in the rivers or reservoirs, anaicuts, lakes, ponds etc before undertaking the work of desilting or dredging as part of maintenance of these waterbodies.
(iii) The State of Andhra Pradesh must scrupulously follow the directions issued by the Principal Bench recently in ANUMOLU GANDHI VS. STATE OF A.P (O.A.935/2018 dated 24.8.2020) and also the guidelines provided by the MoEF & C in Sustainable Sand Mining Management Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining issued in January, 2020 while undertaking such process.
(iv) The State of Andhra Pradesh is also directed to have adequate control mechanism and monitoring mechanism of these activities for effective mining/desilting/dredging by providing all necessary infrastructure, including the technical assistance and technology available for this purpose. They must also provide necessary mechanism for monitoring the dredging/desilting and transport of the minerals extracted during dredging/desilting or in the process of sand mining from the point of dredging/desilting/mining and transportation of the same to the destination so as to avoid misuse of both minerals for unauthorised purpose or other purposes than the permission granted including registering the vehicles permitted for this purpose and providing GPS in these vehicles wherever it is possible.
(v) The State of Andhra Pradesh is also directed to instruct the enforcement authorities to take stringent action against the persons who are violating the norms and engaged in illegal sand mining or other exploitation of the mines/minerals than the permitted quantity, including the launching of prosecution and collecting environmental compensation apart from collecting penalty and royalty provided under the respective Mines & Minerals (Development & Regulation) Act, 1957 and Mineral Concession Rules and confiscating or taking action against the vehicles involved in such illegal activities in accordance with law.
(vi) The State of Andhra Pradesh is also directed to have a permanent Expert Appraisal Committee in each District for the purpose of carrying out the work of conducting replenishment study and for preparation of District Survey Report in this regard and directions be issued to them to carry out these things in regular manner well in advance before deciding to entrust the work of desilting or dredging or river sand mining to the concerned machinery.
(vii) They must also install CCTVs in the places allotted or identified 82 for dredging/desilting/mining so as to monitor the activities scientifically and also curb illegal mining and enabling identifying of the culprits effectively.
(viii) Any interim order passed by this Tribunal is vacated in view of the disposal of the matter with the direction."
149. For the purpose of the present case, we find that Tribunal reiterated that in the guise of desilting or dredging, no act of sand mining can be carried out and that too without complying the environmental statutes including SSMMG-2016 and EMGSM-2020. However, there was no issue of construction of a tender document to adjudicate whether it is desilting/dredging for maintenance or upkeep or in substance a document for winning of mineral. This judgement also does not benefit the respondents.
150. The issue of sand mining in guise of desilting was also raised in OA 259/2016(SZ), Sakeer vs. State of Kerala & Others before Tribunal, Southern Zonal Bench at Chennai. The matter was decided vide judgment dated 24.12.2020. Therein, dredging of sediments at a minor port of Malappuram District was allowed to be undertaken by some co-operative societies. It was said that in the garb of dredging, sand mining is being carried out without obtaining prior EC as per provisions of EIA 2006 and also in violation of Coastal Zone Regulation Notification 2011. The permission was granted for the year 2011-2012 by order dated 18.03.2010, for the year 2012-2013 by order dated 13.04.2012, for the year 2013-2014 vide order dated 16.08.2023 and again for the year 2014- 2015. Obviously, issue relating to period when Appendix-IX amendment granting exemption for dredging and desilting activities for maintenance and upkeep purposes was not available. The proponents who were granted permission for desilting/dredging applied for prior EC which was recommended but before grant of EC, the proponent was allowed to carry 83 out sand mining activities. Before Tribunal, reliance was placed on Principal Bench's order dated 17.01.2014 passed in OA 271/2013, Muhammed Saleem vs. State of Kerala & Others and OA 286/2013, Hassan M. vs. State of Kerala & Others clarifying that maintenance and dredging in ports are exempted from EC. Tribunal held that for maintenance purposes, prior EC is not required for undertaking dredging activities and in para 40 of the judgment observed as under:
"40 The question as to whether Environment Clearance is required for doing dredging as part of maintenance of the port area is no longer res integra, as the National Green Tribunal had later clarified the same that no Environment Clearance is required for that purpose. Further, in view of the EIA Notification, 2006 as amended by notification dated 15.1.2016, mandate of obtaining Environment Clearance for this purpose was exempted under the Schedule IX to the EIA Amended Notification and also the entry itself has been extracted by the Joint Committee in their report and also by the MoEF in their counter statement. Further, the Hon'ble High Court of Kerala while disposing the writ petition has also held that in view of the amended EIA Notification dated 15.1.2016, Environment Clearance is not required for that purpose. So the contention of the applicant that Environment Clearance is required for dredging is not sustainable and the same is liable to be rejected."
151. However, it has also held that the activities undertaken in the coastal zone, the approval/clearance from Coastal Zone Management Authority was necessary under CRZ Notification 2011. The aforesaid judgment only deals with a case where the activities were involved for maintenance purposes only and other aspects were neither considered and nor decided hence it does not help the respondents.
152. Southern Zonal Bench decision dated 20.05.2021 in OA 158/2015(SZ), R.Nallakannu vs. Secretary to Govt. of India, MoEF&CC & Ors., connected with OA 218/2015(SZ), Tamil Annai Thamirabarani Welfare Trust vs. Secretary to Govt. of India, MoEF&CC & Ors., OA 182/2016(SZ), M. Balasubramanian vs. 84 MoEF&CC and OA 261/2016(SZ), E. Natarajan vs. Union of India & Ors. has also been relied by respondent 6. All the above OAs were decided collectively.
153. Here also, in OA 158/2015(SZ) (supra), allegation was made that in the guise of desilting Srivaikundam dam, illegal mining causing damage to the dam is being carried out. In OA 218/2015(SZ) (supra), direction was sought for undertaking desilting activities in a particular manner. However, in OA 182/2016(SZ) (supra), it was alleged that illegal mining activity in the garb of desilting is going on in violation of EIA 2006 which is illegal. Tribunal formulated following issues in para 16 of the judgment which are as follow:
"(i) Whether dredging requires any prior environment clearance?
(ii) Whether total banning of dredging can be permitted in the dam sites as claimed by the some of the applicants?
(iii) If dredging has to be allowed, what are the precautions to be taken?
(iv) What all directions, if any, to be issued in this case considering the nature of allegations made?
v) Reliefs and costs."
154. Tribunal relied on its decision in OA 72/2015, S. Joel vs. The Secretary to Government of India observing that in the guise of dredging or de-silting, no illegal mining can be done at the dam site.
155. Tribunal also referred to its earlier decisions in OA 47/2016(SZ)(supra), OA 177/2016(SZ)(supra) and OA 935/2018(supra) and observed that it has been held that in the guise of desilting or dredging of dams or rivers , no illegal mining can be permitted. It also observed as under:
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34. .... Further, it is clear from the above decisions that de-silting or dredging of dams and rivers are required for the purpose of maintaining the ecology, free flow of water and also to maintain storing capacity of the tanks which will help the water recharge system and raise the ground water levels in those areas. If regular de-silting or dredging is not done, then it will have impact on ecology and also defeat the purpose of construction of dams and checkdams which was intended for the purpose of protecting ground water system applying the principle of conservation, preservation and protection as prevention of wastage of surplus water which is being obtained during rainy seasons. So total banning of de-silting or dredging cannot be possible. Further, in the guise of de-
silting, no illegal mining can also be permitted which will have greater impact on natural resources and affect the ecology adversely. So, regular maintenance and regular de- silting/dredging of river beds, dams and lakes etc are required for protecting environment as well."
156. OA, thereafter, was disposed of with certain directions as under:
"38. In the result, the applications are disposed of as follows:
1. No direction can be given for total banning of dredging or de-
silting of dams or river beds as contended by some of the applicants in some of the applications mentioned above.
2. No environment clearance is required for desilting of dams, reservoirs, rivers etc.
3. In the guise of de-silting or dredging of dam sites or lakes or river, no illegal mining should be permitted.
4. The dredging or de-silting can be done strictly in accordance with the guidelines given by the MoEF&CC in Sustainable Sand Mining Guidelines, 2016 and also Enforcement and Monitoring Guidelines for Sand Mining, 2020 and directions in Anumolu Gandhi vs. State of Andhra Pradesh O.A. No. 395 of 2018 (Supra) and also in O.A. 47 of 2016-Tirumalasetti Srinivas Vs. Government of India with O.A. No. 117 of 2016- Devineni Rajasekhar vs. State of Andhra Pradesh & Ors. and O.A. No. 259 of 2016-Mr. Sakeer vs. State of Kerala & Ors.
5. The State of Tamil Nadu is directed to conduct regular survey of sediment deposit in the rivers or reservoirs, anaicuts, lakes, pond etc before undertaking the work of desilting or dredging as part of maintenance of these water bodies.
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6. The State of Tamil Nadu is directed to permit riverbed sand mining strictly in accordance with the provisions of EIA Notification, 2006 as amended from time to time and also in compliance with Sustainable Sand Mining Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining, 2020.
7. The State of Tamil Nadu is also directed to have adequate control and monitoring mechanism of these activities for effective mining/desilting/dredging by providing all necessary infrastructure, including the technical assistance and technology available for this purpose. They must also provide necessary mechanism for monitoring the dredging/desilting and transport of the minerals extracted during dredging/desilting or in the process of sand mining from the point of dredging/desilting/mining and transportation of the same to the destination so as to avoid misuse of both minerals for unauthorised purpose or other purposes than the permission granted including registering the vehicles permitted for this purpose and providing GPS in these vehicles wherever it is possible.
8. The State of Tamil Nadu is also directed to instruct the enforcement authorities to take stringent action against the persons who are violating the norms and engaged in illegal sand mining or other exploitation of the mines/minerals than the permitted quantity, including launching of prosecution and collecting environmental compensation apart from collecting penalty and royalty provided under the respective Mines & Minerals (Development & Regulation) Act, 1957 and Mineral Concession Rules and confiscating or taking action against the vehicles involved in such illegal activities in accordance with law.
9. The State of Tamil Nadu is also directed to have a permanent Expert Appraisal Committee in each District under the Chairmanship of District Collector with experts from the Mining Geology Department, PWD, Irrigation Department and if necessary, an outside independent agency for the purpose of carrying out the work of conducting replenishment study and for preparation of District Survey Report in this regard and directions be issued to them to carry out these things in regular manner well in advance before deciding to entrust the work of desilting or dredging or river sand mining to the concerned machinery.
10. The State Government is also directed to take steps for installing CCTVs in the places allotted or identified for dredging/desilting/mining so as to monitor the activities scientifically and also curb illegal mining and enabling 87 identifying of the culprits effectively.
11. The report filed by the Joint Committee dated 14.12.2020 is recorded and accepted.
12. The directions given by this Tribunal are in addition to and not inderogation to any of the direction, if any, issued by the Hon'ble High Court of Madras in this regard.
13. Any interim order passed by this Tribunal is vacated in view of the disposal of the matter with the above directions.
14. Considering the Circumstances, the parties are directed to bear their respective costs in these applications.
15. The Registry is directed to communicate this order to the Chief Secretary, State of Tamil Nadu, Principal Secretary, Environment, Mining and Geology, State of Tamil Nadu and also to respective District Collectors for their information and strict implementation of directions of this Tribunal."
157. Here also, we find that mere desiltation or dredging for maintenance, upkeep or disaster management would not require prior EC as it is exempted in para 6, Appendix-IX of EIA 2006 but where the activity predominantly involves commercial activities of extraction of mineral and its disposal, the situation would be different. This judgement also does not help the respondents for deciding the issue raised in this OA.
158. In our view, the case in hand is squarely covered by judgment of Tribunal in OA 142/2022(SZ)(supra).
159. In the result, we are clearly of the view that no further activity pursuant to NIT/NIB dated 21.11.2022, impugned in the present OA, can be carried out without obtaining prior EC under EIA 2006. Since in the present case, the tendering activity has already been completed and respondent 6 has been allotted the contract, we do not find to quash the said activities but direct that no dredging and desilting activities for extraction of silt/mineral will be carried out unless prior EC under EIA 88 and other requisite statutory clearances/NOCs are obtained and the laws relating to environment are followed.
160. OA is accordingly partly allowed with the following directions:
(i) Respondent 5 i.e., ERCPCL is restrained from permitting/allowing respondent 6 i.e., project proponent, to proceed with desilting and dredging activities, extraction of mineral and its disposal pursuant to impugned NIT/NIB dated 21.11.2022 unless prior EC under EIA 2006 is obtained by respondent 6.
(ii) Respondent 6 is also restrained from carrying out any dredging/desilting activities, extraction silt/sand/gravel mixed silt from the sub-merged area of Bisalpur Dam and other mining activities until and unless prior EC under EIA 2006 after following the procedure laid down therein, is obtained.
(iii) Respondent 6 shall follow other environmental laws and obtain requisite Consents/NOCs/Clearances in accordance with law before proceeding for desiltation activities and strictly comply with the environmental laws.
(iv) In case environmental laws and directions above are not complied with, the Statutory Regulator i.e., Rajasthan State Pollution Control Board shall take appropriate preventive, prohibitive, punitive and remedial action against the defaulter(s).
161. All pending IAs stand disposed of.
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162. Copy of this order be forwarded to Chief Secretary, State of Rajasthan, Principal Secretary, Department of Mines and Geology, Member Secretary, SEIAA Rajasthan, ERCPCL and RSPCB by e-mail for information and compliance.
SUDHIR AGARWAL, JUDICIAL MEMBER DR. AFROZ AHMAD, EXPERT MEMBER November 24, 2023 Original Application No.06/2023(CZ) R 90