National Green Tribunal
Bhumi Adhigrahan Visthapan Avam ... vs State Of Jharkhand on 5 September, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 54/2022 /EZ
IN THE MATTER OF:
Bhumi Adhigrahan Visthapan Avam Punarvas Kisan Samiti,
Through President Gaurav Singh,
Office at:-Belwatikar, P.O.& P.S.-Daltonganj,
District-Palamu,
....Applicant(s)
Versus
1. State of Jharkhand,
Through Chief Secretary,
Govt. of Jharkhand,
1ST Floor, Project Building, Dhurwa,
Ranchi - 834004,
2. Department of Mines and Geology, Govt. of Jharkhand,
Through Secretar,
Yojna Bhawan, Doranda, Ranchi,
Pin - 834002,
3. Jharkhand State Mineral Development Corporation Ltd.
(JSMDC), A Govt. of Jharkhand Undertaking,
Through Managing Director,
Khanij Nigam Bhawan, Doranda, Ranchi,
Pin - 834002,
4. State Level Environment Impact Assessment Authority
(SEIAA), Jharkhand,
Through Member Secretary,.
Nursery Complex, Near Dhurwa Bus Stand, Dhurwa,
Ranchi - 834004,
1
5. Jharkhand State Pollution Control Board,
Through Member Secretary,
H.E.C. Dhurwa, Ranchi,
Pin - 834004,
6. Ministry of Environment, Forests and Climate Change,
Govt. of India,
Through Deputy Director General of Forests,
Integrated Regional Office, 2nd Floor, Jharkhand State
Housing Board, Ranchi,
Pin - 834002,
....Respondent(s)
COUNSEL FOR APPLICANT:
Ms. Paushali Banerjee, Advocate
COUNSEL FOR RESPONDENTS :
Mr. Sachin Kumar, Addl. Advocate General a/w Mr. Manoj Kumar,
Advocate & Ms. Aishwarya Rajyashree, Advocate for R-1 to 3,
Mr. Ashok Prasad, Advocate for R-4,
Mr. Surendra Kumar, Advocate for R-5,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- August 25th, 2022 Pronounce On:- September 05th, 2022 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes 2 JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. This Original Application has been filed by the Applicant, seeking quashing of the Notice inviting Expression of Interest dated 30.09.2021 published by the Jharkhand State Mineral Development Corporation Limited ('JSMDC' for short), Respondent No.3, with a further prayer that the District Survey Report ('DSR' for short) be prepared in conformity with the Sustainable Sand Mining Management Guidelines, 2016 and Enforcement & Monitoring Guidelines for Sand Mining, 2020. Learned Counsel for the Applicant submits that by the impugned Notification dated 30.09.2021, the JSMDC, (Respondent No.3) has invited Expression of Interest for Empanelment of Mine-Developer-cum-Operator ('MDO' for short) for obtaining statutory clearances, excavation and transportation of sand from sand ghats to stockyards, setting up and maintenance of stockyards, loading sand on the vehicle and sale of sand to end customer.
3. The contention of the Applicant is that the DSR has been prepared by District Level Environment Impact Assessment Authority (DEIAA) whereas it is required to be approved by State Level Environment Impact Assessment Authority (SEIAA) as per the directions given by the Hon'ble Supreme Court in Civil Appeal Nos.3661-3662/2020 (State of Bihar & Ors. Vs. Pawan Kumar & 3 Ors.) vide order dated 10.11.2021. The directions given by the Hon'ble Supreme Court are extracted herein below: -
"The directions issued by the Tribunal vide judgment and order dated 14th October 2020, are substituted as follows:-
(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 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 4 environmental concerns are taken care of and no damage is caused to the environment."
4. The learned Counsel for the Applicant further submits that even though the directions of the Hon'ble Supreme Court were given with regard to sand mining operations in the State of Bihar but the directions therein would be applicable universally in all the States where sand mining activity is to be carried on and the directions of the Hon'ble Supreme Court cannot be applied selectively by different States. Further, directions/guidelines have also been issued by Ministry of Environment, Forests and Climate Change which lays down the procedure for preparation of District Survey Report (DSR).
5. A further submission of the learned Counsel is that the Notice inviting Expression of Interest provides for empanelment of MDOs. The submission is that this procedure does away completely with the guidelines laid down for inviting open tenders through public auction of sand mine areas. Learned Counsel, therefore, submits that under the garb of the Notice dated 30.09.2021, the Respondent No.3, JSMDC, is trying to create a cartel of sand miners of its own choice, meaning thereby, creating vested interests.
6. At the time of admission, the Tribunal also directed that till the counter-affidavit is filed by the State Respondents, no sand mining leases shall be awarded in pursuance of the impugned Notice inviting Expression of Interest dated 30.09.2021. 5
7. Ms. Paushali Banerjee, learned Counsel has placed before us a letter dated 05.07.2022 issued by the General Manager, JSMDC Respondent No.3, wherein it is mentioned that the process for selection of Category-B sand mining ghat has not yet been completed.
8. In response to the notices issued, the Respondent No.3, JSMDC, has filed its counter-affidavit dated 10.08.2022, stating therein that as per the Jharkhand State Sand Mining Policy, 2017, management of Category-II sand ghats shall be allocated to JSMDC for a minimum period of five years or more as decided by the State Government and the sand shall be sold by the JSMDC on a commercial basis. It is further stated that as per the Sand Policy, 2017, the JSMDC shall undertake scientific and sustainable sand mining after obtaining all statutory clearances from the respective competent authorities strictly as per rules. It is also stated that after the judgment of the Principal Bench of the Tribunal in Original Application No. 186 of 2016 (Satendra Pandey Vs. MoEF&CC & Ors.), revised guidelines for sand mining were issued by the Ministry of Environment, Forests and Climate Change known as 'Enforcement and Monitoring Guidelines for Sand Mining 2020' which provided that DSRs shall be prepared before auction/e- auction/grant of mining lease/Letter Of Intent (LoI) by the Mining Department or Department dealing with mining activities in the respective States. It is also stated that at present there is no proposal for auctioning the Category-II sand ghats in the State of Jharkhand. However, the process for preparation of DSR as per the 6 revised Guidelines of 2020 has been initiated by the Department of Mines & Geology, Jharkhand, through agencies accredited by the National Accreditation Board for Education and Training ('NABET' for short). It is further stated that Director (Geology), Department of Mines and Geology, Jharkhand, has empanelled agencies for preparation of DSR for sand ghats in Jharkhand.
9. In the affidavit of the JSMDC, it is further stated that the JSMDC has floated Expression of Interest ('EoI' for short) Notification to empanel the Mine-Developer-cum-Operators for those sand ghats which had been mentioned in the DSR as Category-II.
10. The Department of Mines and Geology, Respondent No.2, in its affidavit dated 20.08.2022 has stated that the sand ghats in the State of Jharkhand have been categorized into two categories, namely, Category-I and Category-II sand ghats. As per this policy, operation of Category-II sand ghats will be conducted by the JSMDC. So far as operation of Category-I sand ghats is concerned, it is stated that for operation of Category-I sand ghat, the Panchayat was empowered in this regard vide letter dated 24.01.2018 which was communicated to all the Deputy Commissioners of the State. It is further stated that the JSMDC is a 100% State owned company and development and management of sand ghats is the prime responsibility of the State. Hence, Notification of DMO as officers on special duty for facilitating the sand mining work for JSMDC is neither illegal nor does it amount to favour the JSMDC. It is also 7 stated that in the operations of sand mining within the State of Jharkhand, the directions given by the Hon'ble Supreme Court in (2012) 4 SCC 629 (Deepak Kumar Vs. State of Haryana,) and the Sustainable Sand Mining Management Guidelines, 2016 and the Enforcement and Monitoring Guidelines for Sand Mining, 2020 and the various directions issued by the National Green Tribunal from time to time for scientific management of sand ghats in an environmentally sustainable manner, shall be strictly followed.
11. The State Environment Impact Assessment Authority ('SEIAA' for short), Respondent No.4, has also filed its affidavit dated 16.08.2022, stating therein that the Hon'ble Supreme Court in Civil Appeal Nos. 3661-3662 of 2020 (State of Bihar & Ors. Vs. Pawan Kumar & Ors.) by its judgment dated 10.11.2021 has held that DSR is to be apprised by the State Level Expert Appraisal Committee ('SEAC' for short) and thereafter it is required to be approved by the SEIAA and it is only thereafter, that is, after final approval of DSR, application for grant of prior Environmental Clearance can be processed by SEIAA.
12. The Applicant in the Original Application has sought quashing of the Notice inviting Expression of Interest dated 30.09.2021 published by the JSMDC, Respondent No.3, vide order No. 20/M dated 07.03.2022. It is also prayed that the existing Environmental Clearance be reviewed by SEIAA, Jharkhand, to comply the mandate of revised DSR.
8
13. The consistent case of the State Respondents is that Expression of Interest has been issued only for empanelment of Mine-Developer-cum-Operators (MDOs) for obtaining statutory clearances. It is also stated that the preparation of DSR with respect to Category-II sand ghats in Jharkhand is already underway and the Department of Mines and Geology, Jharkhand, has also commenced the preparation of DSR through accredited agencies accredited by NABET, as per the directions given by the Hon'ble Supreme Court and the National Green Tribunal and the Sand Mining Guidelines of 2016 and 2020 and also the directions issued from time to time in this regard.
14. The Respondent No.2, JSMDC, in para 14 of its affidavit has stated that the directions given by the Hon'ble Supreme Court in the case of Pawan Kumar (Supra) were with regard to State of Bihar need not necessarily apply to other sand mining States.
15. In our opinion, the stand taken by the Respondents is not correct and is contrary to the intent and spirit of the directions given by the Hon'ble Supreme Court in the case of Pawan Kumar (Supra).
16. We are, therefore, of the firm view that the directions issued by the Apex Court in Pawan Kumar (Supra) cannot be said to be confined only to the State of Bihar, but for the fact that controversy arose in a matter related to sand mining in the State of Bihar. However, the Sand Mining Guidelines of 2016 and 2020 contemplate preparation of DSRs in all the States for purposes of 9 sand mining operations and, therefore, the directions given by the Hon'ble Supreme Court in Pawan Kumar (Supra) for preparation of DSRs would be universally applicable in all the States where sand mining operations are to be carried on.
17. So far as impugned Notification inviting Expression of Interest is concerned, it cannot be said that a monopoly is being created in favour of JSMDC since the Notice dated 30.09.2021 inviting Expression of Interest is only for empanelment of Mine-Developer- cum-Operator (MDO) but the empanelled MDO would have to obtain all statutory clearances required under the law before commencing sand mining operations.
18. The 'Scope of Work of MDO' is outlined in Para C of the Notice dated 30.09.2021 which reads as under:-
"C. Scope of Work of MDO:
i. MDO shall (by itself or through some other party as per applicable laws) prepare required documents line Mine Plan and obtain Mine Plan approval, prepare EIA/EMP as required and obtain environment clearance, organize public hearing (if applicable) , prepare required documents & procure CTO, CTE and any other statutory approval from respective Authority for the Sand Ghat and the Stockyard on behalf and in the name of JSMDC as applicable. ii. MDO shall make all the statutory payments for obtaining statutory approvals such statutory payments made by MDO shall be reimbursed by JSMDC on submission of original receipts by the MDO.
iii. MDO shall (by itself or through some other party as per applicable laws) prepare any required regulatory 10 documents including half-yearly air-water monitoring report etc. throughout the Contract Period for compliance with the requirements of EC and CTO/CTE or any other statutory clearance. iv. MDO shall procure CTE as applicable and CTO for a period of 5 years in the name of JSMDC for operating the sand ghat and sand stockyard.
v. MDO shall arrange and facilitate for identification of land/area for stockyard. In case the stockyard has to be hired on rent, the rent agreement shall be entered into by JSMDC with the land owner, and MDO shall facilitate the process of execution of such rent agreement.
vi. MDO shall undertaken the excavation of sand from the Sand Ghats, transportation of sand from Sand Ghats to stock-yards, setting up and maintenance of stock-yards, loading of sand in the vehicle and sale of sand to end-consumer in a scientific, environmentally sustainable and socially responsible manner, so as to prevent damage to the riverine system and to prevent pollution, ground water depletion and flooding.
vii. MDO shall undertake the excavation of sand from the Sand Ghats, transportation of sand from Sand Ghats to stock, setting up and maintenance of stock- yards, loading of sand in the vehicle and sale of sand to end-consumer in accordance with the Approved Mining Plan, Environmental Clearances and other permits, approvals, and licenses, as may be applicable.
viii. MDO shall deploy the necessary machinery and manpower to ensure that the excavation of sand from the Sand Ghats, transportation of sand from Sand Ghats to stock-yards, setting up and maintenance of stock-yards, loading of sand in the vehicle and sale of sand to end-consumer is in accordance with inter alia the terms and conditions contained in this Notice inviting EoI, as well as 11 Request for Proposal Document and the draft contract for selection of the MDO for each ghat/cluster of ghats.
ix. MDO shall maintain a stock level of at-least 15 days sand stock (i.e. half of monthly production capacity of the Ghat as per Environment Clearance/CTE/CTO) during Non-Monsoon months and a sand stock level of 4 months of production capacity of the Ghat as per Environment Clearance/CTE/CTO during Monsoon period. (monsoon period will be considered as per Normal Date of Onset and Withdrawal of South-West Monsoon for Jharkhand as mentioned in Sustainable Sand Mining Management Guidelines, 2016.) x. MDO shall sell sand from the stockyards as agent and strictly as per the procedure laid down by JSMDC.
xi. MDO shall deploy adequate resources to protect the property/sand stock or JSMDC or other property of any contractor appointed by JSMDC for smooth sand mining operation and allied activities installed in stockyard or in the working area of MDO. xii. MDO shall ensure that the excavation of sand from the Sand Ghats, and transportation of sand from Sand Ghats to stock-yards is done only during such hours of the day as specified by JSMDC. xiii. MDO shall deploy machinery/manpower to excavate sand in accordance with the approved Mine Plan and conditions of Environmental Clearance and CTO/CTE.
xiv. MDO shall create suitable identification marks/specific colour/indications in all of its vehicles transporting sand in such pattern, indication and colour as directed by JSMDC. xv. MDO shall be responsible for setting up and maintenance of ramps, haulage and/or access roads to and from Sand Ghats/Stock yards, as directed.12
xvi. MDO must maintain digital registers of daily excavation, transportation, loading, sale and stock availability of sand at the Sand Ghat and at the Stock-yards as may be applicable.
xvii. MDO shall procure and install AIS 140 certified GPS tracking device/RFID devices in all the vehicles used to transport sand from SAND Ghats to stockyards, as directed by JSMDC/Department of Mines and Geology, Government of Jharkhand. MDO shall be responsible for upkeep and maintenance of such GPS/RFID devices installed in their vehicles. xviii. MDO just set up a display board at prominent place in the Sand Ghats and stock-yards, as may be applicable, clearly mentioning name and Category of Sand Ghat, area of the Sand Ghat, total deposit of sand, name of MDO, name along with contact numbers of manager and supervisor etc. xix. MDO must maintain digital visitor register with respect to the Sand Ghats and/or stockyards, as may be applicable.
xx. MDO shall comply with all orders and judgments of judicial authorities including Hon'ble National Green Tribunal, Honb'ble High Court at Ranch, and Hon'ble Supreme Court of India, and applicable laws, rules, regulations, notifications, government orders, policies etc. xxi. MDO shall make all arrangements for ensuring safety standards and prevention of occupational health hazards as required by orders and judgments of judicial authorities including Hon'ble National Green Tribunals, Hon'ble High Court at Ranchi, and Hon'ble Supreme Court of India, applicable laws, rules, regulations, notifications, government orders, policies, etc. and best industry practices and standards.
xxii. MDO shall be responsible for the completion and supervision of the entire Scope of Work in accordance with inter alia the terms and conditions 13 contained in the Notice Inviting EoI for selection of the MDO for each ghat/cluster of ghats. xxiii. MDO shall be responsible for upkeep and maintenance of the ghat/cluster of ghats and safeguarding the ghat/cluster of ghats from any loss or damage caused or likely to be cause due to any reason whatsoever such as illegal mining or pilferage, at all times, as its own expense. xxiv. MDO shall secure perimeter of the dedicated sand bearing area to restrict illegal mining and shall be held responsible in case any illegal sand mining takes place at the designated Sand Ghat. xxv. MDO shall take necessary measures at own cost for creation/maintenance/upkeep infrastructure such as connecting roads from sand ghats to stockyard and from stockyard upto motorable road, temporary/portable staff office, guard cabins, etc. with power backup and net connectivity. xxvi. MDO may be asked to develop stockyard near Sand Ghats/urban centers, development of stockyards includes lighting of stockyard and all such acts required for proper operation, maintenance and security of stockyards.
xxvii. MDO shall strictly adhere to the instructions given by JSMDC with the approval of GoJ from time to time including for information technology related works and interventions.
xxviii. MDO (including its employees, contractor, vendors, agencies, consultants and any other party appointed by MDO related to this work shall comply with the Applicable Laws, order from Government Authorities, NGT, government departments, bodies committees, agencies etc. and comply with the guidelines/policy issued from time to time including Sand Mining Policy of Jharkhand, 2017; Sustainable Sand Mining Management Guidelines, 2016; Enforcement and Monitoring Guidelines for Sand Mining, 2020 and any other guidelines as issued from time to time.14
xxix. MDO shall install adequate fencing of the lease area, CCTV cameras Personal Computer (PC) or laptops, internet connection, power back up, access control of mine lease site as per requirements and instructions from JSMDC at sand ghats and stockyard and shall provide connectivity for monitoring of sand ghats and stockyards.
xxx. The MDO shall establish a local office in Jharkhand for co-ordination and correspondence. xxxi. The documentary proof of Manpower and machinery/vehicles (owned/hired) deployed by MDO at sand ghat, and stockyard shall be submitted to JSMDC along with supporting document. xxxii. Any other activity incidental to Sand Mining apart from the indicated list provided above."
19. The 'Role of the Jharkhand State Mineral Development Corporation (JSMDC)' is outlined in Para D of this impugned notice which reads as under:-
"D. Role of JSMDC:
JSMDC shall have the right for:
i. The overall monitoring and supervision of the
excavation of sand form the Sand Ghats,
transportation of sand from Sand Ghats to stock- yards, setting up of stock-yards for storage of sand, loading of and in the vehicle and sale of sand to end- consumer.
ii. Supervise and monitor the system of checks and balances applied by MDO to prevent illegal sand mining and/or pilferage of sand form the Sand Ghats and issue direction in this regard. iii. Issuing directions for ensuring proper operation, maintenance and security of stockyards including directions on installation f CCTV cameras, lighting of 15 stockyard and maintenance of approach route up to nearest access road.
iv. Specifying the hours of the day during which the excavation of sand from the Sand Ghats, and transportation of sand form Sand Ghats to stock- yards shall be done by the MDOs.
v. Issuing directions in relation to transportation of and including directions for colour coding the vehicles transporting the sand and installation of GPS/RFID devices in such vehicles.
vi. JSMDC will develop an online portal/website/webpage to maintain record of all its sand ghats viz. sand production, sand dispatch, sand booking, purchase enquiries, pending orders, customer queries etc. such information shall be made available in public domain.
vii. Nothing contain herein in this section shall be interpreted or construed as waiver of any of the conditions as given in Section A of Chapter 2 (Eligibility Criteria) above neither shall it in any way absolve the MDO in fulfillment of its responsibilities as specified in section C of this Chapter (Scope of Work)."
20. Para E of the Notice contemplates 'Change in Scope of Work' and clarifies that:-
"E. Change in Scope of Work:
It is hereby clarified that the indicative Scope of Work mentioned in Section C above is for the purpose empanelment of the MDO only. At the time of issuance of bid documents for selection of the MDO for a specific ghat/cluster of ghats under Category A and/or Category B, JSMDC may at its sole discretion modify, alter, reduce or extend the Scope of Work, as mentioned in section C above. Accordingly, in such bid documents the scope of work mentioned therein may include all the components of; (a) excavation and transportation of sand from Sand 16 Ghats to stock-yards, (b) setting up and maintenance of stock-yards, (c) loading sand on the vehicle of the end- consumer, and (d) sale of sand, or it may include any one or more of such components in any combination that JSMDC may deem it fit and proper at its sole discretion."
21. Hence, on a complete examination of the true import of the impugned Notice dated 30.09.2021, we find no illegality and infirmity with the same except to observe that the directions given by the Hon'ble Supreme Court in Pawan Kumar (Supra) for preparation of DSRs and the Guidelines issued by the Ministry of Environment, Forests and Climate Change, pertaining to sand mining, viz., Sustainable Sand Mining Management Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining, 2020, shall be strictly followed in the State of Jharkhand also.
22. With the aforesaid directions, the Original Application No. 54/2022/EZ is accordingly disposed of.
23. There shall be no order as to costs.
........................................ B. AMIT STHALEKAR, JM ......................................
SAIBAL DASGUPTA, EM Kolkata, September 05th, 2022, Original Application No.54/2022/EZ AK 17