before the national green tribunal … application nos. 39/2015, 114/2015 & 134/2014 (cz) page 1...

Original Application Nos. 39/2015, 114/2015 & 134/2014 (CZ) of 19

BEFORE THE NATIONAL GREEN TRIBUNAL

CENTRAL ZONAL BENCH, BHOPAL

Original Application No. 39/2015 (CZ)



CORAM:

Hon’ble Mr. Justice Dalip Singh

(Judicial Member)

Hon’ble Dr. S.S. Garbyal

(Expert Member)

BETWEEN:

1. Vinayak Parihar

S/o Shri O.P Parihar

Age Near about 43 years,

Occupation – Social worker

R/o – Village Jowa, Tehsil – Kareli

District – Narsinghpur (MP)

2. Nityanand Mishra

S/o Shri Kanhaiyalal Mishra


Occupation – Research scholar student

In A.P.S. university Rewa

and Advocate, Present Address-

Damoh naka Jabalpur

…..Applicants

Versus

1. State of M.P.

through its Principal Secretary,

Forest and Environment Ministry

Vallab Bhawan Bhopal (M.P.)

2. M.P. Pollution Control Board,

Through its Secretary Bhopal,

3. Union of India

Through its Principal Secretary

Ministry of Environment and

Forest New Delhi


4. Central Pollution Control Board

through its Secretary

New Delhi.

5. Collector Narshingpur

District – Narshingpur (M.P)

6. District Mining Officer

District – Narshingpur (M.P)

7 M/S Shiva Corporation

District Jabalpur (M.P)

8. M/S Vanshika Construction

Deori Rajmarg, Tehsil –Tendukheda

District Narshinghpur (Madhya Pradesh)

9 M/S Mahant Constructions

C/o Shri Sandeep Mahant,

Jhansi Ghat, Tehsil Gotegaon,

District – Narshingpur, (M.P)

.....Respondents


BETWEEN:

1. Vinayak Parihar

S/o Shri O.P Parihar


Occupation – Social worker

R/o – Village Jowa, Tehsil – Kareli

District – Narsinghpur (MP)

…..Applicant

Versus

1. The State of M.P.,

through its Chief Secretary,

Vallabh Bhavan, Bhopal (MP

2. The District Collector,

Office of District – Collector

Narshingpur, (M.P)

3. M/s National Thermal Power

Corporation through its Chairman

Engineering office Complex, Plot

No-A-8, Sector, Noida (UP)


4. M/s Bridge & Roof Company

India through its Director O/o-

Village – Cheechli, Gadrwara,

Distt – Narsinghpur (MP) 487551

5. MP Pollution Control Board

Through its Member Secretary,

Paryavaran Parisar, E-5, Arera

Colony, Bhopal (M.P)

6. Ministry of Environment,

Forest& Climate Change, Govt. of

India, through the Secretary,

Indira Bhawan, Jorbagh Road,

New Delhi - 01

.....Respondents


BETWEEN:

1. Paryavaran Avam Manav Adhikar Sanrakshan Samiti

203, classic Apartment,

Wright Town, Jabalpur

Through its Executive Member,

Mr. Kaushlesh Pandey

S/o Shri M.P.Pandey,

Practicing Adv. M.P High Court, Jabalpur

R/o Near Suri Restaurant,

Gorakhpur Police Station,

Jabalpur, M.P

…..Applicant

Versus

1. Union of India.

through its Secretary

Ministry of Environment & Forest and Climate Change,

Delhi.

2. The State of M.P,

Through the Secretary, Mines and

Mineral Resources Department,

Vallabh Bhawan, Bhopal

3. The State of M.P.

Thr. Secretary House and Environment Deptt.,

Mantralaya, Bhopal.


4 . The State Environment Impact Assessment Authority,

M.P. Paryavaran Parisar,

E-5, Arera Colony,Bhopal. 462016

5. The M.P. Pollution Control Board,

Through its Secretary,

M.P. Paryavaran Parisar,

E-5, Arera Colony,Bhopal. 462016

6. The Regional Officer,

M.P. Pollution Control Board,

Vijay Nagar, Jabalpur.

7. The Mining Officer,

Jabalpur Zone,

District Jabalpur, M.P.

8. The Collector,

District Jabalpur, M.P.

9. The Sarpanch,

Lameti, Tehsil- Bargi,

District Jabalpur

10. The Sarpanch Silua,

Gram Panchayat Silua,

Tehsil and District Jabalpur, M.P.

11. Sarpanch – Jamtara Parawara,

Gram Panchayat – Jamtara,

Tehsil and District Jabalpur, M.P.

12. Sub-Inspector – Gaur,

Post- Guraiyaghat,

P.S. Barela, District- Jabalpur, M.P.

.....Respondents

Counsel for Applicant: Shri Vijay Sahni, Adv. with

Shri Vinayak Parihar

Counsel for CPCB : Shri Rohit Sharma, Adv. For

Shri Sandeep Singh, Adv.

Counsel for State & Mining Corp : Shri Sachin K. Verma, Adv.

Shri Rajesh Patel,

Shri O.P. Baghel, Asst. Mining Off.

Counsel for NTPC: Shri Sambhav Sogani, Adv.

Counsel for MPSEIAA: Ms. Parul Bhadoria, Adv.

Counsel for MoEF: Shri Aakash Ambedkar, Adv. for

Shri Om. Shankar Shrivastav, Adv.

Counsel for Respondent No. 4: Shri Quasim Ali, Adv.


J U D G E M E N T

Reserved on 24th

August , 2017

Pronounced on 14th

September, 2017

1) Whether the judgement is allowed to be published on the internet - yes / no

2) Whether the Judgement is to be published in the All India NGT Report - yes

/no

DELIVERED BY HON’BLE MR. JUSTICE DALIP SINGH, JM

1. These three Original Applications were filed under Section 14 and

enabling provisions of the NGT Act wherein the common issue of

illegal sand mining in the river Narmada in M.P was brought before

this Tribunal. However, the locations in the three Original

Applications were different. While in O.A. No. 134/2014 the issue

pertains to illegal sand mining in the river Narmada at Jabalpur, in

O.A. No. 39/2015 the issue primarily pertains to illegal sand mining

at various locations in district Narsingpur of M.P and in O.A. No.

114/2015 of river sand mining at Gadarwara particularly for the

construction of the thermal power plant by the NTPC for which the

Central Government undertaking M/s Bridge and Roof Company was

the supplier of river sand after procuring the same from various

suppliers who were reportedly engaged in illegal sand mining.

2. Since, the issue was a common one of rampant illegal river sand

mining in Narmada river, these three cases were taken up together.

The issue of illegal sand mining raised two fold questions. The first

being that of violations of the environmental norms and guidelines

for carrying out river sand mining either without environmental


clearances or in violation of the environmental clearance (EC)

conditions by the leaseholders. Secondly, the issue pertains to illegal

sand mining without any valid mining lease mining outside lease

boundary and without demarcating lease boundary on the ground and

violating the EC norms. At the same time in the second category of

cases the loss to the revenue is also there which may or may not be

so in the first category of cases.

3. The O.A No. 134/2014 pertains to the issue of illegal sand mining at

Jabalpur. After issuance of notices the Learned Counsel for the

Applicant chose not to appear before this Tribunal. On 10.09.2014

the Collector Jabalpur submitted an affidavit that the district level

task force had been constituted with the district Collector as the

Chairman and the SP, the District Forest Officer, the PCB

representatives in the district, the District Transport Officer and the

District Mining Officer as members. The work assigned to this task

force was basically of checking illegal mining activities and for this

purpose carrying out periodical reviews inter alia carrying out raids

etc. It was stated that during April to June 2014 several raids were

conducted and 18 cases were registered. It was also stated that in

one of the cases of illegal sand mining fine of an amount of Rs.

3.4234 crores was imposed by way of penalty. Having noted the

proceedings of the meeting of the said task force committee held on

09.06.2014 and the work carried out by the said task force committee

the allegations with regard to illegal mining as well as illegal

transportation of the river sand were amply proved. Two cases of

illegal stocking of the river sand were also registered. The Tribunal


also noted the fact that under Rule 53 of the Madhya Pradesh Minor

Mineral Rules 1996 there are provisions for punishment including

imprisonment and fine. However, it was not clear as to whether any

cases had in fact been registered under the said rule and hence

information regarding registration of cases was sought from the

Respondents. Detailed directions were given which need not be

repeated at this stage as after June 2016 the Sustainable Sand Mining

Management Guidelines 2016 notified by the MoEF&CC

Government of India have been brought into force. We may

however, add that this Tribunal while considering this issue directed

the MoEF as well as the Ministry of Urban Development and

Administration to take certain steps including formation of a policy

and guidelines looking at the huge demand particularly in the

infrastructure and housing sector for river sand. It was directed that

the impact assessment of the large scale river sand mining be carried

out. Among others it was directed in the order dated 10.09.2014 that

alternatives to river sand particularly utilisation of fly ash in lieu of

river sand and utilisation of fly ash bricks must be examined as an

option. On 29.10.2014 directions were also issued for carrying out

the study with regard to the availability of sand in a particular leased

area as well as issues of replenishment on the basis of available data

before such mining leases are granted clearances and made

operational.

4. In the two other matters in O.A No. 39/2015 filed by Mr. Vinayak

Parihar as well as O.A No. 114/2015 also filed by Mr. Vinayak

Parihar of alleged illegal mining without obtaining ECs and


obtaining river sand from suppliers who have been either doing

illegal sand mining without proper ECs also raised similar questions.

In both these cases after hearing the parties and after notices were

issued the Respondents had put in their appearances. Details of the

number of persons engaged in illegal mining and the steps taken by

the State after the filing of these Applications for controlling the

same and ensuring that mining operations are conducted in

accordance with the provisions of not only the mining regulations

but also in accordance with the environmental requirements of

obtaining EC were given out.

5. In the light of the subsequent events post 2014 and 2015 specially of

coming into force of the Sustainable Sand Mining Management

Guidelines 2016 of MoEF which are in operation as of now this

Tribunal need not go into the various aspects as what was stated by

us in various interim directions has been taken note of and

incorporated in the guidelines of 2016. Under the said guidelines of

2016 the entire procedure, right from identifying the lease area

available to be given for river sand mining to the methodology of

carrying out such mining in accordance with these guidelines has

been provided.

6. It is pertinent to mention here that we also had the occasion to

extensively examine the 2016 Guidelines in the case of Medha

Patkar v. Union of India in O.A. No. 78/2015. At this stage, the

detailed directions need not be reiterated as the same guidelines as

given in O.A. No. 78/2015 shall be applicable to the present case as


well. However, in brief, page 14 of the booklet issued by the MoEF

& CC following procedure has been prescribed:

GENERAL APPROACH TO SUSTAINABLE SAND AND

GRAVEL MINING

Following considerations should be kept in mind for sand / gravel

mining:

a) Parts of the river reach that experience deposition or

aggradations shall be identified first. The Lease holder/

Environmental Clearance holder may be allowed to extract

the sand and gravel deposit in these locations to manage

aggradations problem.

b) The distance between sites for sand and gravel mining shall

depend on the replenishment rate of the river. Sediment rating

curve for the potential sites shall be developed and checked

against the extracted volumes of sand and gravel.

c) Sand and gravel may be extracted across the entire active

channel during the dry season.

d) Abandoned stream channels on terrace and inactive

floodplains be preferred rather than active channels and their

deltas and flood plains. Stream should not be diverted to form

inactive channel.

e) Layers of sand and gravel which could be removed from the

river bed shall depend on the width of the river and sand &

gravel replenishment rate of the river.

f) Sand and gravel shall not be allowed to be extracted where

erosion may occur, such as at the concave bank.

g) Segments of braided river system should be used preferably

falling within the lateral migration area of the river regime

that enhances the feasibility of sediment replenishment.

h) Sand and gravel shall not be extracted within 200 to 500

meter from any crucial hydraulic structure such as pumping

station, water intakes, and bridges. The exact distance should

be ascertained by the local authorities based on local

situation. The cross-section survey should cover a minimum

distance of 1.0 km upstream and 1.0 km downstream of the

potential reach for extraction. The sediment sampling should

include the bed material and bed material load before, during

and after extraction period. Develop a sediment rating curve

at the upstream end of the potential reach using the surveyed


cross- section. Using the historical or gauged flow rating

curve, determine the suitable period of high flow that can

replenish the extracted volume. Calculate the extraction

volume based on the sediment rating curve and high flow

period after determining the allowable mining depth.

i) Sand and gravel could be extracted from the downstream of

the sand bar at river bends. Retaining the upstream one to two

thirds of the bar and riparian vegetation is accepted as a

method to promote channel stability.

j) Flood discharge capacity of the river could be maintained in

areas where there are significant flood hazard to existing

structures or infrastructure. Sand and gravel mining may be

allowed to maintain the natural flow capacity based on

surveyed cross- section history.

k) Alternatively, off-channel or floodplain extraction is

recommended to allow rivers to replenish the quantity taken

out during mining.

l) The Piedmont Zone (Bhabhar area) particularly in the

Himalayan foothills, where riverbed material is mined, this

sandy-gravelly track constitutes excellent conduits and holds

the greater potential for ground water recharge. Mining in

such areas should be preferred in locations selected away

from the channel bank stretches.

m) Mining depth should be restricted to 3 meter and distance

from the bank should be 3 meter or 10 percent of the river

width whichever is less.

n) The borrow area should preferably be located on the river side

of the proposed embankment, because they get silted up in

course of time. For low embankment less than 6 m in height,

borrow area should not be selected within 25 m from the

toe/heel of the embankment. In case of higher embankment the

distance should not be less than 50 m. In order to obviate

development of flow parallel to embankment, cross bars of

width eight times the depth of borrow pits spaced 50 to 60

meters centre-to-centre should be left in the borrow pits.

o) Demarcation of mining area with pillars and geo-referencing

should be done prior to start of mining.

7. We may also add that after the judgment of the NGT Principal Bench

at New Delhi in Himmat Singh’s Case it has been now made clear


that irrespective of the area of the lease for carrying out river sand

mining the lessee / sub-lessee has to obtain ECs. For the aforesaid

purpose a management plan has to be submitted by the lessee project

proponent and based upon the same the assessing authority whether

at the district level or the State level or at the level of the MoEF

would take all the issues into consideration including the issues

regarding the availability and the replenishment of the mineral.

Thus, so far as all the mining lessees are concerned they all need to

carry out that task in accordance with the Sustainable Sand Mining

Management Guidelines 2016 notified by the MoEF & CC.

However, the main challenge is now with respect to the

implementation and ensuring compliance and observation of these

guidelines. As we have already stated in the opening portion of our

judgment that there are two aspects firstly the aspect of carrying out

the mining operations by valid lease holders complying with the

requirements of obtaining the EC and carrying out the mining

operations in accordance with the EC conditions. At the same time,

there is the major issue of preventing illegal mining by persons

neither having valid leases and / or not observing any of norms or

conditions provided in the EC.

8. The second category of persons, therefore, are to be brought within

the framework of the law as the loss to the environment is more on

account of such illegal activity in addition to the loss to the revenue.

9. With a view to restrain such persons engaged in any illegal activity

this Tribunal has from time to time issued directions that persons

found engaged in illegal transportation or excavation of the mineral


must be prosecuted and their equipments, vehicles and boats along

with the mineral be seized. We had noticed that there was some

leniency in the existing laws and regulations with regard to release of

the mineral and / or the vehicle and equipment after compounding

the matter. After much insistence of this Tribunal and passing orders

that equipments and vehicles not to be released without referring

these cases to the Tribunal and also amending the laws and bringing

into place the provisions of confiscation in the State of M.P the

relevant provisions have been amended and Rule 53 now enables the

State Government and its officials to confiscate not only the mineral

but also the equipment / vehicle / boats that may be used for carrying

out mining operations or transportation of the mineral. While, all

these provision have been brought about, after dealing with these

cases for nearly two years which include the framing of the

guidelines by the Government of India and amendment of the

various laws pertaining to the mining mineral at the level of the State

Government, the major task now is ensuring the compliance of the

2016 guidelines issued by the MoEF & CC Government of India as

well as the laws framed by the State Government.

10. We may add that while the guidelines framed by the MoEF take care

of environmental friendly river sand mining the steps taken by the

State of M.P with regard to checking of illegal mining and its

transportation and stocking must also be implemented with equal

rigor. Implementation of the MoEF & CC guidelines 2016 is not

only the responsibility of the State Mining Department but also that

of the PCBs. We may add that in every district there are only one


mining officer and two inspectors and the area under their

jurisdiction runs into hundreds of kilometres. In that view of the

matter in case the State actually wants to carry out the task under the

guidelines and its amended provisions of law to protect the

environment it has to strengthen the mining department and for this

purpose the State must give adequate protections to its mining and

forest officials who have to otherwise face the wrath and violations

from persons engaged in illegal mining operations and its

transportation and stocking. There are innumerable cases where

persons engaged in the duty of checking the illegal mining and

transportation have suffered physical harm and there have even been

cases of murder. As such the first requirement for the State to

undertake is to give protection to the Mining Department and Forest

Department staff and officials of the PCB who go for periodical

inspections.

11. In the State of M.P., the system of issuance of e-challans is being

introduced for every vehicle carrying mineral in place of manual

paper chits (Transit passes). With the introduction of the Electronic

Transit Pass (ETP) and the requirement of the vehicles to have a

GPS, we are of the view that the issue of illegal mining and

transportation of the mineral would be controlled to a large extent.

At the same time the amendment to Rule 53 carried out on

18.05.2017 making the provisions more stringent and including

confiscation of the vehicle and the mineral along with imposition of

penalty in our opinion should act as a deterrent. In this case in so far

as the above is concerned the mining officials would need to impress


upon the courts for insisting upon the confiscation and justifying

their action on the ground of protection of the environment which is

not only a fundamental duty of every citizen under Article 51A(g) of

the constitution but also the endeavour of the State of framing a

policy under the directives principles under part (IV) as contained in

Article 48A of the Constitution of India. With that object in mind

the concerned law official of the State must also keep themselves

abreast with the latest development and emergence of laws

pertaining to the protection of the environment so as to assist the

courts in this behalf.

12. We have been informed that these provisions brought into force by

the MoEF & CC and the amendments in the State Laws, the River

Sand Mining Policy 2015 of the State of M.P. would be fully

operational with effect from 01.10.2017. We hope and expect that

the State in the meanwhile, would take all necessary steps which are

necessary for the same.

13. Having said so we are also conscious of the various measures that

the State intends to take and the same are as follows:

1. To implement the Sand Mining Guidelines 2016 in its

entirety across the state including e-auction/ e-tendering of

the sand mines. No mining shall be allowed unless the

successful bidder obtains the necessary environmental

clearances and the mining plan has been duly approved.

Demarcation of the possible sand mining lease areas shall

also be carried out. Periodical and frequent inspections

would be a must

2. In cases of default, including unauthorized extraction or

illegal transportation or stocking action must be taken

against the responsible persons under Rule 53 of the


Madhya Pradesh Minor Minerals Rules, 1996, as amended

on 18th May 2017. The state must ensure that no mineral

that has been seized by the concerned authorities shall be

discharged unless the penalty under Rule 53 is paid. The

entire stock of forfeited minerals, if any, shall be disposed

of according to the manner provided under the State Sand

Mining Guidelines 2015. Quarterly return of cases

registered vehicles and equipment and quantity of mineral

seized amount recovered after confiscation shall be filed

district wise before the Tribunal by District Collectors.

3. No vehicle without a GPS and an Electronic Transit Pass

shall be permitted to transport sand and in cases of

default, any such transportation shall amount to illegal

mining and subject to liability under Rule 53 of the

Madhya Pradesh Minor Mineral Rules 1996.

4. To Map and Geo-tag all the rivers that are subject to sand

mining. The Geo-tagging must also include all the

tributaries, braided streams of those rivers, the deposit

areas of the extracted sand. It shall be ensured that

sufficient measures are taken to keep a check on the

mining activity especially during night. Flood lights shall

be installed and for surveillance purpose motor boats shall

be deputed for patrolling.

5. To establish geo-fenced sand depots according to the

proposed Sand Marketing system and setting up e-trading

portals. The portals must provide information including

availability, dispatch of sand, registration of vehicles and

traders.

6. Efforts must be made to earmark the routes for

transportation of sand from the mine to the sand depots.

Along these routes, weight bridges and barriers with

control rooms must be established so as to check any over-

loading and illegal transportation. The control rooms must

be equipped with all the information especially with

respect to the information of the vehicles involved in the


transportation of sand. Any deviation from the route

should be considered as a violation and attract provisions

of Rule 53 of the 1996 Rules.

7. The practice of giving mining lease based on the average

of past three years mining must be given up. This is

unscientific and unsustainable. It has to be made

mandatory to keep a safe distance between the river banks

to the lease boundary. Under no circumstances mining in

the middle of river should not be permitted as it affects the

flow of the river which ultimately affects the aquatic life.

14. Based upon the above after having GPS system in place it would be

easy to identify any vehicle not having GPS and movement of

vehicles in river beds or lease areas or whether it is within the leased

area or proceeding for transportation of the mineral or any equipment

engaged in the mining operations which may include boats etc.

which are commonly used by unauthorised and illegal miners and

action initiated under Rule 53.

15. The above measures required to be taken up and are only a sample of

what the elaborate provisions contained in the policy framed by the

State and the Centre. This must be given utmost priority. All

offenders must be made to suffer economically and recovered

amount used for restoration of the environment

16. While, we have already stated that confiscation of the mineral and

recovery of the proceeds by the State including imposition of penalty

must be strict. The recovery of the amount should be kept in a

separate account and the said amount be utilised for restoration of the

environment wherever required including with priority along the

river banks. We have had the occasion to deal with the issue of

illegal mining and in such cases we have already directed SEIAA as


well as DEIAA to quantify in consultation with the PCB officials the

loss caused to the environment and suggest restoration measures.

While, we are aware of the fact that no clear guidelines are available

for quantification of the aforesaid amount regarding loss caused to

the environment, however, we would direct both the MoEF as well

as the State Government to lay down the guidelines in this behalf.

As an interim measure MPSEIAA is directed to frame guidelines and

issue the same to all district authorities. In the light of the decision

contained in T.N Godavarman Vs. Union of India [Supreme Court

Judgment dtd. September 26’2005 in IA No. 826 in Writ Petition

(Civil) 202 of 1995] case of the Hon’ble Supreme Court on

consideration similar to determining the NPV (Net Present Value)

coupled with the cost of the mineral as well as the cost that is likely

to be incurred for restoration of the area as well as the loss caused to

the bio-diversity and the aquatic life. At the same time, the loss to be

quantified caused to the environment must also in our opinion should

be severe so as to act as a deterrent so as to prevent and make illegal

operations uneconomical. Both the MoEF & CC as well as the State

authorities in the light of the decision of the Hon’ble Supreme Court

in Vellore Citizens Welfare Forum (AIR 1996 SC 2715) case

consider creation of an agency like the assessment of Loss to

Ecology (Prevention and Payment of Compensation) Authority in

this case particularly for determining the aforesaid loss in respect of

ecologically affected areas and considerations.

17. In addition to the above, we have also found that in the name of

rivers sand mining river banks are being mined for the mineral which


brings the river banks into total erosion. With a view to protect these

river banks both from erosion as well as from illegal mining, we

direct that a comprehensive programme of afforestation on the river

banks be carried out.

18. We further direct that in accordance with the notification issued by

the MoEF on fly ash utilisation as well as the Sustainable River Sand

Mining Management Guidelines 2016 or real estate developers and

building organisations and of government construction contracts

must mandatorily carry clauses for compulsory utilisation of

alternate resources of fixed minimum percentage of their material

requirement for utilisation of fly ash, fly ash bricks and stone dust in

lieu of river sand. The Urban Development Department, the local

authorities and the T&CP Department as well as the PCB & SEIAA

must have specific conditions in this behalf while granting the

consents / permissions. Such developers or builders or construction

agencies must also be directed to furnish details by way of

supporting documents to show what quantity in terms of percentage

of alternate material they are utilising in the construction process

which is already a requirement under both the river sand mining

guidelines as well as under the fly ash utilisation notification issued

by the MoEF. Thus, on the principle of reduction in the utilisation of

the resources such as river sand as also re-use of the waste material

such as fly ash and stone crusher dust which are the components

among the two Rs. out of three under environmental jurisprudence

must be ensured.


19. The other directions which have been issued from time to time in our

interim orders shall nonetheless operate.

20. The three Original Applications accordingly stand disposed of with

all pending M.As. The action taken shall be reported to the Tribunal

on 3rd

October, 2017. The matter may be listed for showing

compliance on 3rd

October, 2017.

(Mr. Justice Dalip Singh)

Judicial Member

(Dr. S.S. Garbyal)

Bhopal : Expert Member

14th

September, 2017

before the national green tribunal … application nos. 39/2015, 114/2015 & 134/2014 (cz) page 1...

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