Amandeep vs State of Himachal Pradesh

The matter has been put up for considering the progress on the issue of remedial action against extensive unscientific and unregulated illegal mining at Som Bhadra River (Swan River) in District Una, Himachal Pradesh to the detriment of public revenue, public health and environment, as found vide order of this Tribunal dated 15.12.2021.

The Tribunal considered the issue of large-scale illegal mining in the light of five-member independent Committee constituted by this Tribunal, headed by Justice Jasbir Singh, former Judge of Punjab and Haryana High Court, and comprising Regional Officers of the CPCB, the MoEF&CC, the Central Soil and Water Conversation Research Institute, Dehradun and the Himalayan Forest Research Institute, Shimla. The Committee found extensive unregulated mining, amounting to ‘loot of resources’ of the State to  the  extent  of  ‘more  than  Rs.100  crore’,  in  the  assessment  of  the Committee and failure of the regulatory mechanism to check continuing serious violations. Prohibited mechanical machines were being deployed, mining areas were not demarcated, mining plan was not followed and there was extensive damage to the river bank. The vehicles and equipment used were not dealt with as required. After analysing the report of the Committee in detail and the action taken report filed on behalf of the State and the State PCB, the Tribunal held:-

“

We have duly considered the above reports and heard learned Advocate General appearing for the State. As already noted from the report of the Committee headed by Justice Jasbir Singh quoted earlier, and confirmed by the Committee appointed by the State itself, in its above report, there is large scale illegal mining to the detriment of environment, in violation of environmental norms. As per observations of the Committee headed by Justice Jasbir Singh quoted in para 5 above, there is organized loot to the detriment of public exchequer to the extent of more than Rs. 100 crores, apart from the damage to the environment. It is not shown as to how the said loss is proposed to be made up and persons making wrong gain are to be dealt with. Monitoring and remedial action is inadequate. The action taken report of the Chief Secretary merely mentions proposed steps in the light of report of the Committee but implementation of such steps is yet to be seen. The report itself may need review to determine effectiveness of measures proposed. In particular, we find that even after finding large scale violations, initiation of prosecution though directed is not shown to have been implemented. The Committee has given contradictory observations. On the one hand, it is observed that there are replenishment studies to show availability of minerals, on the other hand, it is stated that replenishment studies are required to nullify adverse impact of mining. The natural course of the river has changed which needs remedial action. There is also fall in level of the river due to mining towards Punjab side which needs to be verified. Even after finding unsustainable and unscientific mining in violation of law, compensation for damage to the environment has not been taken. Further, we have noted this aspect in para 8 to 10 of our order dated 30.07.2021, quoted above in para 3, need for compliance of directions of this Tribunal dated 26.02.2021 in O.A No. 360/2015, National Green Tribunal Bar Association v. Virender Singh (State of Gujarat). Action is required on the subject of strict enforcement of Sustainable Sand Mining Guidelines, issued by the MoEF, (which principles logically apply to mining of other minerals also) evaluation of environmental parameters while granting EC, including replenishment studies, assessment of compensation for illegal mining, and action against vehicles and equipments used for illegal mining. We may also note the observations of the Hon’ble Supreme Court in Common Cause Vs. U.O.I. & Ors., (2017) 9 SCC 499 to the effect that in case of illegal mining, the value of the entire mined material has to be recovered as compensation (asper mandate under section 21(5) od the MMDR Act, 1957, apart from compensation for the loss to the environment. These components are in addition to royalty. Relevant observations are extracted below:

“153. In our opinion, there can be no compromise on the quantum of compensation that should be recovered from any defaulting lessee - it should be 100%. If there has been illegal mining, the defaulting lessee must bear the consequences of the illegality and not be benefited by pocketing 70% of the illegally mined ore. It simply does not stand to reason why the State should be compelled to fore go what is its due from the exploitation of a natural resource and on the contrary be a party in filling the coffers of defaulting lessees in an ill gotten manner.

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…. We make it clear that mineral extracted either without an EC or without an FC or without both would attract the provisions of Section 21(5) of the MMDR Act and 100% of the price of the illegally or unlawfully mined mineral must be compensated by the mining lease holder. …”

No adequate compliance has been shown in respect of the above observations. Failure to take action against the law violators encourages lawlessness which a welfare State committed to Rule of Law cannot afford.

We expect specific compliance status in respect of the above directions against the law violators who have caused damage to the environment for their personal benefit. Till such remedial action and strong monitoring mechanism is in place and placed before this Tribunal, the State may not permit any mining. Monitoring Committee needs to meet at shorter intervals. To uphold rule of law, law violators need to be visited with serious consequences. Since violations have been found, violators should not be eligible for mining/crushing for specified appropriate duration in future and held fully accountable for past violations in terms of compensation and other punitive measures. Antecedents of the persons to whom mining permissions are given, in terms of past violations, must be duly verified.

Let further report of follow up action taken reports giving status as on 31.03.2022 be filed by the Chief Secretary and the State PCB separately by April 15, 2022 by e-mail at [email protected], preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.

List for further consideration on 27.04.2022.”

The matter was last considered on 27.04.2022 in the light of further report filed by the State PCB to the effect that compensation of Rs. 68,750/- was levied against Thakur Stone Crusher, Unit-I, VPO which was found operating without consent and without valid source of mined material. The Tribunal held that basis for calculation of compensation was not clear and compensation was not as per principles of law laid down by the Hon’ble Supreme Court in Common Cause Vs. U.O.I. & Ors., (2017) 9 SCC 499 and orders of this Tribunal. Accordingly, time was granted for filing further report. Operative part of the order is reproduced below:

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In pursuance of above, further reports have been filed by the State PCB and the State which are as disappointing as earlier action of the State. It appears that even highest authorities in the State are not willing to respect the law and protect resources of the State against law violators which we hope will be remedied lest coercive measures are taken by this Tribunal to uphold the rule of law. None has cared to appear for the State for interaction and to explain the disappointing state of affairs.

Counsel for the State PCB has entered appearance but he has nothing to say on behalf of the State. He fairly states that even the stand of the State PCB is disappointing. The report of the PCB is that Thakur Stone Crusher, Unit-I, VPO was found operating without consent and without valid source of mined material for which compensation of Rs. 68,750/- was levied. Nobody knows the basis of such calculation. Financial capacity of the violator, extent of violation, cost of restoration are not mentioned. It is further stated that the pollution control devices of four stone crusher units were found non functional for which total compensation of Rs. 6,75,000/-was assessed. This figure is also arbitrary without reference to relevant data. It is clear that the State PCB has not adopted responsible approach in acting action against violations. If the stone crusher was operating without consent or without requisite pollution control devices, deterrent action was called for having regard to their financial capacity, extent of damage and cost of restoration. Faced with the above, learned counsel for the State PCB stated that the issue will be re-visited and a fresh report filed.

The status report filed on behalf of the State is that a monitoring mechanism has been put in place without showing how the monitoring mechanism has functioned on the ground. It is stated that no adverse action has been recommended which may mean that no violation is found which is difficult to accept in the light of the past experience and even the current report of the State PCB showing violations.

In these circumstances, we direct the Chief Secretary, H.P. to file his personal affidavit, based on responsible verification about the compliance status as on 31st July, 2022, before the next date.”

In pursuance of above, further report has been filed by the State PCB on 20.08.2022 repeating the earlier stand but without showing the correct application of judgment of the Hon’ble Supreme Court requiring market value of the mineral extracted has been recovered for compensation in accordance with Section 21(5) of the MMDR Act, 1957, apart from compensation for damage to the environment with deterrence elements.

We have heard learned Counsel for the State PCB who is unable to show how the hypothetical value at pit mouth is treated as market value of the mineral. Thus, the approach adopted is resulting in violation of law laid down by the Hon’ble Supreme Court and this Tribunal to the detriment of environment and State revenue. Such approach is encouraging the law violators which needs to be changed. Accordingly, we direct the Chief Secretary, Himachal Pradesh to further look into the matter personally and ensure compliance of law.

The application is disposed of.

If any grievance survives, it will be open to the aggrieved party to take remedy in accordance with law.

A copy of this order be forwarded to the Chief Secretary, Himachal Pradesh by e-mail for compliance.