National Green Tribunal
Rajesh Kumar Singh S/O Sh. Ramjanam ... vs Union Of India on 9 March, 2022
Item No.4
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No.78/2021 (CZ)
Rajesh Kumar Singh Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 09.03.2022
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
Applicant (s) None
Respondent (s) Mr. Om Shankar Shrivastava, Adv
Dr. Sapna Aggarwal, Adv
Ms. Parul Bhadoria, Adv
Mr. Sachin K. Verma, Adv
Mr. Alok Jain, Regional Officer, Jabalpur
Mr. Pradeep Kumar Tiwari, Mining Officer Jabalpur
ORDER
1. Issues raised in this application are illegal mining, loading and storage of sand by some private contractors and sand mafias by deploying heavy machines for sand mining from the sanctioned quarries in the river Narmada causing environmental and ecological imbalance in violation of Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules.
2. The matter was taken up on 29th October, 2021, and a Committee was constituted with direction to submit the factual and Action Taken Report. The members of the Committee visited the site and submitted the report as follows:
"The Joint committee has visited the Sand Mines dated 30.11.2021 located at River Narmada. The committee first visit the sand mine at Village-Sagda Jhapni located at Khasra No. l/l Area2.023 Hect & Village-Saliwada located at Khasra No. 464 Area 4.0 Hect to verify the claims made by the applicant in the petition regarding the illegal Mining & use of heavy machineries' The day of inspection mine was found 1 closed and no heavy machineries such as poclain, or any other heavy machinery were being used.
The current status of 09 sand mines located at River Narmada is as follows:
Sr. no Name of the Quantity CTO Quantity EC Consent Status mines (M3) (M validity driving
3) filed visit 1 Dhartikachhar 40000 40000 25.10.2021 Not in Sand Mine operation Khasra No. 01 Area 4.0 Hect 2 Belkhedi Sand 60000 60000 31.01.2022 Not in Mine operation Khasra No. 339, Area 13.450 hect 3 Dharampura 45000 45000 31.08.2022 Not in Sand Mine operation Khasra No. 415, Area 3.0 hect 4 Kushali Sand 42862 42862 31.08.2022 Not in Mine operation Khasra No. 481, Area 10.890 hect 5 Malkachar 57000 57000 31.05.2022 Not in Sand Mine operation Khasra No. 152, Area 2.0 hect 6 Neemkheda 60000 60000 30.04.2022 Not in Sand Mine operation Khasra No. 326, Area 22.070 hect 7 New Chargawa 25000 25000 31.05.2022 Not in Sand Mine operation Khasra No. 414, Area 22.070 hect 8 Sagda Jhapni 23000 23000 31.05.2022 Not in Sand Mine operation Khasra No. 415, Area 3.0 hect 9 Saliwada Sand 60000 60000 31.05.2022 Not in Mine operation Khasra No. 464, Area 4.0 hect A brief on the mining lease in River Narmada M/s Aaradhya Logistic Solution Pvt. Ltd., 1967 Right Town Jabalpur District- Jabalpur was awarded Jabalpur district contract for sand mining as per the Madhya Pradesh Sand Mining Policy, 2019 in the 2 year 2020 as per the tendering process. There are 16 mining leases is allotted out of l6 sand mine 09 sand mine located at River Narmada, remanding sand mine is located at River Hiran.
Field observations of the Committee
1. M/s Aaradhya Logistic solution Pvt. Ltd. has granted EC at river Narmada out of 16 Sand Mine for manual operation.
2. The Joint committee has visited the Sand Mines dated 30.11.2021 located at River Narmada. The committee first visit the sand mine at Village Sagda Jhapni located at Khasra No. 1/1 Area 2.023 Hect & Village- Saliwada located at Khasra No. 464 Area 4.0 Hect to verify the claims made by the applicant in the petition regarding the illegal Mining & use of heavy machineries. The day of inspection mine was found closed and no heavy machineries such as poclain, or any other heavy machinery were being used.
3. The Joint committee has visited the Sand Mines dated 04.12.2021 located at River Narmada. The committee first visit the sand mine at Village- Dhartikachar located at Khasra No. 01 Area 4.0 Hect & Village- Neemkheda located at Khasra No. 326 Area 22.070 Hect to verify the claims made by the applicant in the petition regarding the illegal Mining & use of heavy machineries. The day of inspection mine was found closed and no heavy machineries such as poclain, or any other heavy machinery were being used.
4. The committee has also visited the sand mine located at River Nannada Bhadpura Khasra No. Area 13.240. The mine has not granted EC and Consent for the same. During inspection mine was found not in operation.
5. On the day of field visit i.e.06112l?021, the sand mine Belkhedi located at Khasra No. 339 Area 13.450 Hect, Village-Kushli Khasra No. 481 Area 10.890 Hect & Village-New chargawa Khasra No. 414 Area 13.730 Hect. of Narmada river. The day of inspection mines was found closed and no heavy machineries such as poclain, or any other heavy machinery were being used.
6. No illegal pathway was found during the field visit in above sand mines.
7. The Plantation on the river bank was found poor for protection from soil erosion.
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8. During inspection mining in two meter depth was observed in the village Sagda Jhapni and Saliwada Sand Mine. However it was not possible to committee to comments whether mine was done illegally are by the contractor.
9. The demarcation mining lease area was done in some places by the stone ports (Munare) The Mining Department has filed 04 Cases for illegal mining, 20 Cases for illegal stock and 149 cases for illegal transportation from the river Narmada during 2020-21 against the accused. There is no case reported against M/s. Aaradhya Logistic Solution Pvt. Ltd for illegal mining.
Recommendations:
i. District administration needs to ensure the effective vigilance on sand mining with respect to the mid-stream mining, use of heavy machineries by installing CCTV cameras at strategic location. ii. To suppress the dust pollution during summer, and heavy vehicle transportation, contractor shall arrange regular water sprinkling, and ensure that the vehicle engaged in sand transportation and mining has valid PUC certificate. Contractor may also ensure that the transportation of the sand be done in covered vehicles. iii. District administration has to initiate strict action as stipulated in O.A. 360/2015 against illegal mining & transportation, if any. iv. The plantation on the river bank is to be done as per environmental management plan.
v. The demarcation of lease area should be visible from distance.
Mining department should ensure Stone post with Red flag, to make the lease area visible from distance.
vi. As per claims made by applicant in &e petition regarding the illegal Mining & use of heavy machineries along with photographs it is clear that the photographs & claims made by applicant which is mainly involved other than Jabalpur district. However some Sand Mine located at Narmada River Inspected by committee in compliance of NGT order dated 29.10.2021."
3. The matter was again taken up on 07th February, 2022, and this Tribunal observed the deficiencies as follows:
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i. On the day of inspection mine was found not in operation. ii. The committee submitted the status of 09 sand mines, which were found on the date of inspection as not in operation. 4 iii. All above 09 units have environment clearance with Consent to Operate (CTO) and quantity of sand as envisaged in environment clearance has been mentioned in the report.
iv. During inspection, mining in 2 meter depth was observed in the village. However, it was not possible for committee to comments whether mine was done illegally or by the contractor. v. The demarcation of mining lease area by the stone ports (Munare) was done in some places.
vi. The mining department has filed 04 cases for illegal mining, 20 cases for illegal stock and 149 cases for illegal transportation from the River Narmada.
2. The perusal of report reveals the contradictory views on the point that on the day of inspection, there was no mining or there was no use of machinery or units were not in operation, in-spite of that there were mining in 02 meters depth and there were cases registered for illegal mining and transportation. We further observe that the concerned department, State Pollution Control Board failed to perform the duties sincerely, fairly and honestly by non-issue of show-cause notice or calculation and realisation of environmental compensation according to the parameters laid-down by the CPCB or the NGT in the matter of O.A. No. 360/2015 and there are continuous loss to the exchequer.
3. Learned counsel appearing for the State and the Pollution Control Board suggested the method of surveillance by CCTV camera. There are provisions in the MoEF&CC Guidelines i.e. Sustainable Sand Mining Management Guidelines, 2016 & The Enforcement and Monitoring Guidelines for Sand Mining issued in 2020 and there are specific directions from the Courts and this Tribunal for monitoring mechanism but the authorities for the reasons best known to them are not enforcing the guidelines and also are not making any surveillance and control on the illegal sand mining or illegal transportation of sand mining. The guidelines issued by the MoEF&CC and the Rules framed thereunder in the Environment (Protection) Act, 1986 are required to be enforced strictly in letter and spirit by the authorities who are responsible to implement it. For the negligence of those to whom public duties have been entrusted, can never be allowed to cause public mischief. The report on the one hand that there is no mining and on the other hand there is a first information report for illegal mining and illegal transportation and mining up to the depth of 02 meters are the examples of gross violation of rules and failure of mechanism or enforcement agencies to enforce it, causing loss to the State revenue and promoting illegal sand mining.
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4. Accordingly, we are of the view to hear personally the Regional Officer and Mining Officer concerned with regard to the contradictory report, on the point of loss of revenue, non-enforcement of the Rules and Guidelines issued by the MoEF&CC and also on the point that if there is no mining then what is use of Environment Clearance.
4. The Regional Officer, State Pollution Control Board and Mining Officer are present and attended the proceeding on video conference. During the course of hearing nothing was replied by both the officers with regard to control of illegal mining and how to save the state revenue. There are more than 149 cases for illegal transportation from the River Narmada and there are 04 cases for illegal mining and 20 cases for illegal stock Inspite of that the report says that there is no mining on the date of inspection. Both the reports are self-contradictory. There are issues of environmental clearance but the officers posted there are of the view that there is no mining at all. On the one hand they say there is no mining and on the other hand they say that there is illegal transportation. Permitting the illegal transportation and illegal mining are directly causing loss to state revenue and thus both the officers are working against the State interest and helping the persons who are involved in illegal mining. Not a single case has been reported by the Regional Officer, Pollution Control Board in which environmental compensation has been realised or assessed.
5. The concept of rule of law is that the State is governed by the law not by the man. The Constitution of India intended for India to be a country governed by the rule of law. It provides that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the Constitution. For the negligence of those to whom public duties have been entrusted, can never be allowed to cause public mischief.
6. Through the perusal of the report it reveals that there are guidelines issued by the CPCB and the guidelines under rule framed and issued by State Government but inspite of all these things due to inaction on the part of the officers concerned in the district of Jabalpur, the illegal mining are 6 continued, causing great loss to the state exchequer. The authorities at the district headquarter have permitted the illegal mining to be continued and not taken adequate action. The officers are the part and parcel of State machinery and the persons responsible to execute the law and ensure the existence of rule of law. The Mining Officer and the Regional Officer, Pollution Control Board have simply submitted the report and not taken any action.
7. When the law protector becomes the law violators, how law will be protected. The basic principle of rule of law is to follow rule/ law and not to break or violate it. For the negligence of those to whom public duties have been entrusted can never be allowed to cause public mischief. Public servants if committing wrong in discharge of statutory functions and later on if it was found not be in accordance with law within the knowledge of the officer concerned then it cannot be said to be the work and duty within the definition of State Act.
8. No action on illegal mining, transportation and storage is not only disregard to the law, but it is negation of the authority of the State by the public official doing the act and expending the budget in accordance with their wishes. An action specifically punitive action does lie for doing what the legislature has authorized if it is done negligently, carelessly and in violation of the law. Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law. Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. Any act by any officer in violation of the rules is abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury. The servants of the government are also the servants of the people and the 7 use of their power must always be subordinate to their duty of service. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty mala-fidely and not in accordance with the guidelines, when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook.
9. Absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The Rule of Law means that the decisions should be made by the application of known principles and rules, such decisions should be predictable and the citizens should know where he is. If decision is taken without any principle or without any rule, it is unpredictable and such decision is the anti-thesis of a decision taken in accordance with the Rule of Law. Even where there is no ministerial duty as above, and even where no recognised tort such as trespass, nuisance, or negligence is committed, public authorities or officers may be liable in damages for malicious, deliberate or injurious wrong-doing. There is thus a tort which has been called misfeasance in public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury.
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10. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power.
11. The perusal of the report submitted by the Committee reveals total violation of Sustainable Sand Mining Management Guidelines, 2016 and the Enforcement and Monitoring Guidelines for Sand Mining, 2020 and there is no scientific and sustainable sand mining.
12. In view of the above, we direct the Collector concerned to monitor personally and to direct the mining department and State Pollution Control Board to submit the report on the following points:
(a) The status of 09 sand mines located at river Narmada which is contained in the Joint Committee Report from Sr. no. 1 to 9 with regard to the quantity of EC permitted and the quantity of sand mines excavated and the revenue which has been deposited to the State Treasury.
(b) Total number of mining cases filed before the Court for prosecution.
(c) Total numbers with details of the mines permitted.
(d) List of the cases in which Show Cause Notice has been issued and the environmental compensation has been assessed and realised with details in the districts.
(e) Total number of cases and amount in which the penalty has been realised by the Mining Department and the amount has been deposited in the State Treasury with the Challan number.
(f) Total quantity excavated by the illegal mining, who have deposited the fund and the value of the illegal mining.
(g) Action taken by the State Pollution Control Board for illegal transportation and the seizure of the vehicle involved in the illegal transportation and the penalty of realese in accordance with the parameter laid down by the CPCB as mentioned in the case of O.A. No. 360 of 2015 decided by the Principal Bench of this Tribunal.
(h) Suggestions by the department to control the illegal mining.9
13. The further Action Taken by the State Pollution Control Board and the Mining Department must be submitted before the next date of hearing. List it on 10th May, 2022 Sheo Kumar Singh, JM Arun Kumar Verma, EM 09th March, 2022 O.A. No. 78/2021(CZ) PU 10