Awadhesh Dikshit vs Union of India & Ors

Grievance in this application is against illegal mining of soil and sand on the bank of river Ganga with the help of Pokeland and JCB Machine from Assi Ghat to Raj Ghat. It is alleged that illegal mining of sand and soil is continuing without any District Survey report (DSR) and Environmental Impact Assessment (EIA) in violation of Hon’ble Supreme Court order in Deepak Kumar Vs. State of Haryana & Ors., (2012) 4 SCC 629 and NGT order in O.A No. 173/2018 in the case of Sudarshan Das V. State of West Bengal & Ors.

Vide order dated 17.02.2022, the Tribunal constituted a joint Committee of the National Mission for Clean Ganga (NMCG), State PCB, SEIAA, UP and District Magistrate, Varanasi to ascertain the factual position. The joint Committee filed its report to the effect that only dredging was done under a project of Ministry of Jal Shakti (MoJS) from Assi Ghat to Rajghat on the left bank of river Ganga. Considering the same, the Tribunal found it necessary to seek a response from Secretary, Ministry of Jal Shakti vide order dated 18.07.2023.

In response to above, report dated 05.01.2023 has been filed by the NMCG, apart from report dated 20.02.2023 filed by Principal Secretary, Irrigation Department, UP.

According to the report of NMCG, it was informed by the Department of Irrigation UP that the project was undertaken to control flooding in the area and its impact on left bank of Varanasi and other Ghats without approval of NMCG. The UP Project Corporation undertook dredging and UP Government received Rs. 2.52 Crores towards sale of dredged material. Work of dredging is routinely done by UP Project Corporation since 2017 in different river reaches. Impact of dredging was studied by a technical Committee in January 2021. Turtle sanctuary was de-notified. Thereafter, flow of Ganga affected left bank and ghats. By-pass channel was constructed on the right bank and dredging was done to protect left bank and ghats. According to Inland Waterways Authority of India, Ministry of Shipping, only maintenance dredging was proposed by them and dredged material was to be put on the river bed. Minor dredging was for navigational channel only. Environmental Clearance (EC) is required for mining and not for dredging for maintenance, upkeep and disaster management. NMCG approval is required as per River Ganga (Rejuvenation, Protection and Management) Authorities Order, 2016 for activities mentioned therein as per para 42 of the said Notification. National framework for sediment management has been developed by Central Water Commission (CWC) for appraisal of proposals for sediment management in October, 2022.

According to the report of Principal Secretary, Irrigation Department, UP, sedimentation was taking place on the right bank which resulted in increased flow along the left bank on the ghat side causing erosion and putting pressure on ghats on the west bank of river Ganga which were sinking. Ministry of Water Resources, GoI, conducted studies in October, 2015 and recommended reduction of pressure on the left bank by removal of sand on the right bank. In the light of report dated 16.10.2015 of the Ganga Flood Control Commission, remedial measures were planned after study by IIT Roorkee which included erosion control system and dredging of silt to decongest flooding impact on the left bank. Kachhua Wildlife Sanctuary was de-notified and shifted as per Notification dated 17.03.2020, based on Study by Wildlife Institute of India (WII) which is subject to decision of Hon’ble Supreme Court in IA No. 117425 and 117429 of 2019 in Writ Petition Civil No. 337/2019. Since the dredging did not fall in six categories mentioned in para 42 of the Ganga Order, 2016, permission of NMCG was not taken. Requirement of permission has been added only from 28.03.2020 while the project was already prepared which was approved on 14.12.2020. Project was allotted to M/s. Ocean Sparkle Limited, Hyderabad on 6.3.2021 so as to complete the process before monsoon. However, due to Covid-19, the process of dredging could not be completed till 30.06.2021. Dredged material was disposed of as per guidelines dated 19.05.2020 of the Secretary, Mining, UP by tenders dt. 1.6.2021 and 19.7.2021. Impact study was undertaken as per bathymetric report dated 17.09.2021 showing that sedimentation had taken place and dredging exercise was useful. In April 2022, impact study of dredged channel was conducted by Department of Civil Engineering, S.V. National Institute of Technology, Surat, Gujarat which found that the objective was achieved.

The above reports have been contested by the applicant by filing objections on 13.02.2023 to the effect that in the garb of dredging illegal mining was undertaken and in the process loss of Rs. 9.43 crores was caused. Against expenditure of Rs. 12 crores, revenue received was Rs. 2.52 crores. In flood between August to September 2021, dredged material was washed away. There is violation of judgment of Hon’ble Supreme Court in Deepak Kumar, supra. Requisite approval of NMCG was not taken.

We have heard learned Counsel for the parties and considered the matter.

It is submitted by learned Counsel for the applicant that material on record clearly shows that there was illegal mining of soil and sand on the bank of the river and in river bed/flood plain with the help of JCB machines without requisite DSR, EIA and EC which resulted in damage to the environment. NMCG approval has not been taken. Further, norms for sediment management have not been followed as per National Framework for Sediment Management issued by MoJS, Department of Water Resources, River Development & Ganga Rejuvenation in October, 2022. Dredging has to be as per laid down safeguards and disposal of dredged material should be in construction works, embankment and land reclamation activities and cannot be sold. NOC has to be taken from State PCB even for dredging. Ongoing monitoring program is essential for optimum sediment management for which laid down procedure for sustainable sand mining has to be followed. Sediment in the rivers, which is the soil, is a resource. It is mineral rich and also rich in biodiversity. It should be put to best possible use such as habitat development, stable and biologically productive plants, raised platforms for flood proofing, shore protection activities etc. NMCG has also undertaken study of the impact of dredged channel and its findings are as follows:

“Following findings can be summarized from the impact study of the dredged channel:

The length of the dredged channel completed before onset of monsoon 2021 as per the site record was 5.30 km.

The dredged channel was working well initially in monsoon 2021. But the dredged material which was excavated during dredging was not disposed off. Due to non-lifting of dredged material from site, the same dredged material fallen back in the channel. Subsequently the dredged channel got silted.

Due to dredged channel. it is found that depth of river near Assi Ghat, Samne Ghat., and Raj Ghat is reduced that reduced water pressure on the Ghats. Therefore, the objective of the project was achieved.

The deposition of sediment in the dredged channel is recurring phenomenon for Rivers carrying high amount of silt and having small bed slope like existing river reach. The process of de-silting is recurrent and required phenomenon to keep the channel effectively operative after every monsoon season.

The major desilting of dredged channel work is required to keep the channel operative for the monsoon 2022.”

As against above, stand of the State is that it acted under bonafide belief that NMCG approval is not required nor any other procedure is required to be followed. Sale of dredged material instead of its use for laid down purposes has taken place on account of erroneous belief.

On consideration of rival submissions, we find much to be desired in failure of the UP Irrigation Department in following laid down procedures and safeguards and also in not using the dredged material for laid down purpose and hope such lapses are not repeated. NMCG guidelines need to be strictly followed. Since siltation is a continuous process, an expert study on the subject may be undertaken in coordination with NMCG for future course of action at the earliest, preferably within three months.

MoJS may issue appropriate guidelines for all rivers in the country on the pattern of its guidelines referred to above. The same may be placed on the website of MoJS within one month, with such modification as necessary.

The application is disposed of.

I.A. No. 03/2023 will also stand disposed of.

A copy of this order be forwarded to NMCG, MoJS and Chief Secretary, UP by e-mail for compliance.