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Judgment
This matter arises out of the Writ Petition filed by the Applicant before the Hon‟ble High Court of M.P at the Principal Seat at Jabalpur. The Writ Petition has been filed by way of Public Interest Litigation by the Applicants. The Writ Petition was registered as Writ Petition No. 1260/2013 (WP No. 18183 / 2014).
The Hon‟ble High Court on 21.07.2015 framed two questions under its order dated 21.07.2015 and considered it appropriate that one of the issues be referred to this Tribunal. The order dated 21.07.2015 passed by the Hon‟ble High Court of M.P is reproduced below :
Ms. Medha Patkar, Petitioner in person.
Shri R.N. Singh, Learned Sr. Advocate with Shri Arpan J.
Pawar, Respondent No. 2.
Shri Samdarshi Tiwari, Additional Advocate General for the Respondent No. 6 and 7.
Shri R.S. Siddiqui, Learned Counsel appears for the Respondent No. 3.
Shri V.S. Shroti, Learned Sr. Adv. With Shri V.Jauhari, Learned Counsel for the Respondent No. 5.
Two issues are involved in this Public Interest Litigation filed by the Petitioners. The first issue is with regard to grant of lease by the State Government and its authorities in respect of the land which is already vested now in the Narmada Valley Development Authority and the question is as to whether State Government and its authorities can grant mining lease now in the area which is vested with the Narmada Valley Development Authority. The second issue is an environmental issue arising out of carrying out of mining activities particularly of the sand in the submerged area.
While hearing the matter on 26.03.2015, this Court found that prima facie there is force in the contention of the petitioner that if the land has already vested in the Narmada Valley Development Authority, State authorities on their own cannot issue mining lease or permission with respect of such land once the title and authority of the land is given to the Narmada Valley Development Authority. The question as to whether the lease could be granted by the State Government after vesting of the land in Narmada Valley Development Authority and what will be the effect of vesting of the land in Narmada Valley Development Authority of the right of the State Government to grant mining lease for such land has to be considered by this Court.
However, as far as second issue is concerned, we find that the same is and environmental issue pertaining to illegal mining and pollution created in the submerged area and the other areas connected to it as catchment area is due to illegal mining activities. Even though while hearing the matter on 22.04.2015 and thereafter on 06.05.2015, various orders were passed by us and finally on 01.07.2015, taking note of various illegalities and environmental issues raised by the petitioner, we had thought of constituting a committee to cause an enquiry into such matter, but during the course of hearing today, we find that the second issue involved in the Writ Petition pertains to environmental issue and issues pertaining to the sand mining in the submerged area, the catchment area and other issues pertaining to echo system, we are of the considered view that the issue pertaining to environment and mining which causes adverse effect on the river bank and the dam which has been constructed is subject to jurisdiction of the National Green Tribunal constituted under the National Green Tribunal Act 2010 and therefore, the second issue pertaining to permitting of mining in the submerged area and other catchment areas, the consequential pollution and effect on the environment and echo system, in our considered view, has to be taken note of and a decision is to be taken by the National Green Tribunal under the National Green Tribunal Act, 2010. Taking note of the aforesaid circumstance, we deem it appropriate to permit the parties to canvass the second contention before the National Green Tribunal and for the said purpose we would issue necessary directions to the office to forward the copies of the petition and other documents to the Registrar, National Green Tribunal, Bhopal with a request to place the matter before the Hon'ble Bench and the Hon'ble Bench may consider to proceed with the question of environmental issue and illegal mining in accordance with the provisions of the National Green Tribunal Act, 2010. We are constrained to pass such an order in the peculiar facts and circumstance of the case and make a humble request to the National Green Tribunal because we are told that the issues with regard to sand mining and environment in the State of M.P. is already sub-judice before the National Green Tribunal, Bhopal and yesterday the Learned Tribunal has taken cognizance of the same and a complete stay banning mining operation has been issued by the Tribunal. In view of the above, the National Green Tribunal having expertise in the matter and further in view of the Jurisdiction vested in the Tribunal to deal with such issue under the NGT Act 2010 we are constrained to pass the aforesaid order. As far as this petition is concerned, we will deal with the first question i.e right of the State Government and its authorities in granting the mining lease after vesting of the land in Narmada valley Development Authority.
Accordingly, we direct the Registry to prepare three photocopies of the entire set of documents including petition, documents, annexure, return, additional documents, interlocutory applications and forward the same to the Registrar of National Green Tribunal, Bhopal with a request to him to place the matter along with copy of this order before the Hon'ble Bench for proceeding in the matter in accordance with law. The parties may appear before the National Green Tribunal, Bhopal for proceeding in the matter in accordance with law.
As far as present petition is concerned, it shall proceed for considering the first issue as indicated hereinabove and the question of contempt involved in the matter. The question of contempt which is said to be committed during the pendency of this matter before this Court in pursuance to the interim order passed shall be considered in connected Contempt Case No. 843/2015.
List this matter after six weeks.
Office to comply with the aforesaid directions within one week.
After receipt of the record from the Hon‟ble High Court, notices were ordered to be issued to the parties and the matter came up for consideration before this Tribunal on 22.09.2015. This Tribunal after going through the order dated 21.07.2015 passed the order which reads as
follows :
Service is complete.
From the order dated 21.07.2015, we find that the Hon'ble High Court while dealing with the aforesaid issue framed two questions for consideration :
(i) With regard to grant of lease of the State Government and its authority in respect of the land which is already vested now with NVDA and whether the State Government and its authority can grant mining leases in the said mines vested with the NVDA.
(ii) Second issue pertains to the environmental issues arising out of carrying out the mining activities particularly of the sand in sub-merged area.
The Hon'ble High Court felt that, as far as the first question is concerned, the same shall be dealt with by the Hon'ble High Court and the second issue pertaining to environment was referred to this Tribunal taking cognizance of the fact that this Tribunal had already taken cognizance of similar issues and passed interim orders banning the mining operations.
The Applicant who is present in person also drew our attention to the fact that despite interim orders having been issued by the Hon'ble High Court, the injunction orders of the Hon'ble High Court were flouted and mining operations are going on without any restrictions or checking by the authorities. We also find that in the order of 21.07.2015, the issue with regard to contempt of the order of the Hon'ble High Court was noticed by the Hon'ble High Court and it has been observed "as far as the present petition is concerned, it shall proceed for considering the first issue as indicated hereinabove and the question of contempt involved in the matter. The question of contempt is said to be committed during the pendency of this matter before this court in pursuance of the interim orders passed shall be considered in connection with the contempt application No. 843/2015."
In that view of the matter as far as the grievance of the Applicant for non-compliance of the injunction order passed by the Hon'ble High Court is concerned, since the Hon'ble High Court has itself directed that the same shall be covered and dealt with in Contempt Application No. 843/2015, we are of the opinion that the Applicant is free to approach the Hon'ble High Court for the said purpose.
Be that as it may, this Tribunal has already in the case of Amarkant Mishra V/s State of MP & Ors. in Original Application No. 49/2015 passed an order restraining the river sand mining in terms of Condition No. 5 of the EC granted by SEIAA in 61 cases of mining leases of river sand and had made this condition applicable in the case of remaining 63 cases also thereby asking that all the 124 mining leases shall not operate during the monsoon period in terms of Condition No. 5 of the EC imposed by SEIAA between 1st June to 31st October. Learned Counsel appearing for the State assured us that the aforesaid directions contained in the Amarkant Mishra V/s State of MP & Ors. case are being implemented.
While dealing with the aforesaid, we brought it to the notice of the Applicant that the MoEF&CC, Government of India has itself on 15.09.2015 circulated draft guidelines by way of policy documents for mining which includes issues of river sand mining and invited suggestions / objections by putting the same in public domain from all interested persons. The proposed guidelines for the river sand mining may take care of the issues involved in river sand mining and its environmental impact which is the issue referred to this Tribunal by the Hon'ble High Court. We would expect the Applicant and all parties to go through the said guidelines so as to make their valuable contribution by way of suggestion / objections before the MoEF&CC which is considering the same.
We also direct the Respondents to file the affidavit with regard to the steps taken by the Respondents for implementation of the directions issued by the Hon'ble High Court for restraining the river sand mining as also in terms of the compliance of the directions issued by this Tribunal in Amarkant Mishra V/s State of MP & Ors.
The aforesaid affidavit be filed on behalf of the Secretary (Mines), Government of MP.
As would be noticed from the order dated 22.09.2015 this Tribunal was of the view that the matter pertaining to rivers sand mining and also with regard to illegal mining in the rivers in M.P., the matter titled Amarkant Mishra Vs. State of M.P is pending before this Tribunal in O.A. No. 49/2015 and is under consideration as such the entire issue at the request of the parties pertaining to rivers sand mining and also illegal mining in the four districts for which the Applicant had raised the issue before this Tribunal were considered by the Tribunal.
On 12.10.2015 after hearing the parties the Learned Counsel for the State submitted an affidavit stating steps taken by the State Government for checking the illegal sand mining in the four districts namely Dhar, Badwani, Alirajpur and Khargone. The Applicant, however, was not satisfied and submitted that illegal mining is still rampant and particularly in the "submergence area". The information that was submitted before the Tribunal was that, in fact so far as these four districts of Dhar, Badwani, Alirajpur and Khargone are concerned the position with regard to mining leases and environmental clearances was as follows:
In Alirajpur 33 leases for rivers sand mining had been granted out of which 22 had necessary consents from SEIAA but did not possess the consent to operate by MPPCB. In so far as District Khargone is concerned it was submitted that no consent had been granted by SEIAA for any of the mining leases to be allowed to operate in Khargone District.
Subsequently on 11.12.2015 it was submitted before this Tribunal that SEIAA had granted 30 Environmental Clearances (EC) to the mining leases out of 33 which have been sanctioned in the area. It was however, submitted that no mining lease has been granted in the submergence area. This however, was contested by the Applicants and as such it was considered proper to appoint commissioners from this Tribunal and accordingly Learned Counsels Shri Ajay Gupta, Adovcate and Shri Dharamvir Sharma Advocate were appointed as Court Commissioners to visit the Districts of Dhar, Alirajpur, Badwani and Khargone. It may further be stated that as far as any illegal activity of mining was concerned the State authorities were directed to take appropriate action in accordance with law. In the meanwhile, the Commissioners submitted their report. The State also filed its response with regard to action taken, giving details of number of FIRs against the various persons having been filed and the seizure of the property and other issues which were relevant. To this the Applicant filed a counter for all the four districts.
Since, the issue involved was based upon the reference made by the Hon‟ble High Court on the second issue namely whether mining activities particularly of rivers sand mining could be permitted in the submerged area, there was still such time as "Sustainable Sand Mining Management Guidelines 2016 had not been framed by Ministry of Environment and Forest & CC, Govt. of India, a gray area in that behalf and it all depended upon the Environment Clearance (EC) and the terms and conditions imposed therein by the State Environment Impact Assessment Authority (SEIAA).
We may also add that till January 2016 cases for grant of EC of areas up to 5 hectares were being brought before SEIAA. Subsequently, in the light of the judgment of the Principal Bench NGT, New Delhi in Himmat Singh's Case such ECs were required to be obtained for all mining leases notwithstanding the extent of their area and for all minerals including rivers sand mining. This obviously resulted in all mining leaseholders in all the States including M.P to apply for the EC before SEIAA. This flood of applications could not be dealt with by SEIAA and several applications requesting for grant of extension of the time by the Tribunal for obtaining the ECs were filed. Realising the aforesaid difficulty, the MoEF, Govt. of India decided to delegate the powers for grant of ECs to District Environment Assessment Authority (DEIAA) and for appraisal to the District Environment Appraisal Committee (DEAC) under their notification particularly of mining leases which were less than 5 hectares. This considerably reduced the pressure upon the SEIAA and several applications which were pending before SEIAA were transferred to the DEIAA and fresh applications, therefore, in the light of the notification came to be submitted before DEIAA itself directly.
The position, therefore, that emerges is that the activity of rivers sand mining in all areas irrespective of their location or otherwise is now dependent upon the appraisals being made by DEAC / SEAC and the EC being granted by SEIAA / DEIAA after due appraisals and recommendations made by those bodies. While these applications were still pending, the Sustainable Sand Mining Management Guidelines 2016 were also notified by the MoEF & CC Govt. of India and, therefore, now so far as rivers sand mining is concerned the matter stands covered by the aforesaid Sustainable Sand Mining Management Guidelines 2016.
The issue which has been referred as to whether rivers sand mining be allowed in submerged area which the Applicant seeks to admit is in fact not submerged area but submergence area of the various projects on the river Narmada which in our view stands answered by the Sustainable Sand Mining Management Guidelines 2016 which apply to all cases of River Sand Mining notwithstanding their area of location.
The provisions in this behalf of the Sustainable Sand Mining Management Guidelines 2016 may be extracted for a ready reference. In the introduction it clearly been stated that : Sustainable Development is built on three pillars - environmental, social and economic. Sustainable development cannot be achieved if the environment is protected but poverty is prevalent in a significant part of the population. Similarly, sustainable development can not be achieved through inappropriate economic growth, if it undermines the environment in which people and businesses exists. These guidelines support that fundamental concept, promoting environmental protection, limiting negative, Physiological, hydrological and social impacts underpining sustainable economic growth.
Sand and gravel have long been used as aggregate for construction of roads and building. Today, the demand for these materials continues to rise. In India, the main sources of sand are river flood plain, coastal sand, paleo channel sand, and sand from agricultural fields.
River sand mining is a common practice as habitation concentrates along the rivers and the mining locations are preferred near the markets or along the transportation route, for reducing the transportation cost. River sand mining can damage private and public properties as well as aquatic habitats. Excessive removal of sand may significantly distort the natural equilibrium of a stream channel.
Removing sediment from the active channel bed in river interrupt the continuity of sediment transport through the river system, disrupting the sediment mass balance in the river downstream and induces channel adjustments (usually incision) extending considerable distances (commonly one kilometre or more) beyond the extraction site.
With this introduction under the heading of objectives of the guidelines it has been provided as follows :
OBJECTIVE OF THE GUIDELINES
The guidelines has been based on the following principles :
Uncontrolled sand mining is not sustainable.
Compliance with present and future legislation and regulations on the subject is mandatory and not voluntary.
Each lease holder should be given the opportunity to self regulate to the extent that it can demonstrate compliance with legislation and regulations.
Where self-regulation fails to deliver compliance with legislation and regulations, increased formal enforcement and monitoring should be implemented with punitive measures applied in line with the legal framework.
There is a need to protect the environment and the right of the population to live in clean and safe surroundings, with the need to use natural resources in a way that will make a positive and sustainable contribution to the economy.
The main objectives of the guideliens
To ensure that sand and gravel mining is done in environmentally sustainable and socially responsible manner.
To ensure availability of adequate quantity of aggregate in sustainable manner.
To improve the effectiveness of monitoring of mining and transportation of mined out material.
Ensure conservation of the river equilibrium and its natural environment by protection and restoration of the ecological system.
Avoid aggradation at the downstream reach especially those with hydraulic structures such as jetties, water intakes etc.
Ensure that the rivers are protected from bank and bed erosion beyond its stable profile.
No obstruction to the river flow, water transport and restoring the riparian rights and in-stream habitats.
Avoid pollution of river water leading to water quality deterioration.
To prevent depletion of ground water reserves due to excessive draining out of ground water.
To prevent ground water pollution by prohibiting sand mining on fissures where is works as filter prior to ground water recharge.
To maintain the river equilibrium with the application of sediment transport principles in determining the locations, period and quantity to be extracted.
Streaming and simplifying the process for grant of environmental clearance (EC) for sustainable mining.
After giving the objectives of the guidelines under the head of effect of sand and gravel mining has been outlined in detail which are as follows:
THE EFFECT OF SAND AND GRAVEL MINING
Mining within or near riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, in-stream roughness of the bed, flow velocity, discharge capacity, sediment transport capacity, turbidity, temperature etc. Alteration or modification of the above attributes may cause hazardous impact on ecological equilibrium of riverine regime. This may also cause adverse impact on in-stream biota and riparian habitats. This disturbance may also cause changes in channel configuration and flow-paths.
The effects of sand and gravel mining are as follows :
a. Extraction of bed material in excess of replenishment by transport from upstream causes the bed to lower (degrade) upstream and downstream of the site of removal.
b. In-stream habitat is impacted by increase in river gradient, suspended load, sediment transport and sediment deposition. Excessive sediments deposition for replenishment increases turbidity which prevents penetration of light required for photosynthesis and reduces food availability of aquatic fauna.
c. Riparian habitat including vegetative cover on and adjacent to the river bank it controls erosion, provide nutrient inputs into the stream and prevents intrusion of pollutants in the stream through runoff. Bank erosion and change of morphology of the river can destroy the riparian vegetative cover.
d. Bed degradation are responsible for channel shifting, causing loss to properties and degradation of landscape, it can also undermine bridge supports, pipe lines or other structures.
e. Degradation may change the morphology of the river bed, which constitutes one aspect of the aquatic habitat.
f. Degradation can deplete the entire depth of gravelly bed material, exposing other substrates that may underlie the gravel, which could in turn affect the quality of aquatic habitat. Lowering of ground water table in the flood plain because of lowering of riverbed level as well as river water level takes place because of extraction and draining out of excessive ground water from the adjacent areas. So, if a flood plain aquifer drains to the stream, groundwater levels can be lowered as a result of bed degradation.
g. Lowering of the water table can destroy riparian vegetation.
h. Excessive pumping of ground water in the process of mining in abandoned channels depletes ground water causing scarcity of irrigation and drinking water. In extreme cases it may create ground fissures and subsidence in adjacent areas.
i. Flooding is reduced as bend elevations and flood heights decrease, reducing hazard for human occupancy of floodplains and the possibility of damage to engineering works.
j. The supply of overbank sediments to floodplains is reduces as flood heights decrease.
k. An un-scientific and unregulated sand and gravel mining tends to increase channel bank scouring and erosion. This causes a large degree of meandering of rivers and sometimes it could be in kms.
l. Rapid bed degradation may induce bank collapse and erosion by increasing the heights of banks.
m. Pollution ground water by reducing the thickness of the filter material especially if mining is taking place at top of recharge fissures.
n. Choking and sand layer which act as filter for ingress of ground water from river by dumping of finer material, compaction of filter zone due to movement of heavy vehicles. It also reduces the permeability and porosity of the filter material.
o. Removal of gravel from bars may cause downstream bars to erode if they subsequently receive bed material than is carried downstream from them by fluvial transport.
p. Ecological effects on bird nesting, fish migration, angling, etc.
q. Indiscrete mining activities lead to increased concentration of suspended sediment in the river which in turn causes siltation of water resources projects.
r. Un-scientific and unregulated sand and gravel mining leads to the severe health hazards like air quality degradation and dust fog.
s. Direct destruction from heavy equipment operation: discharges from equipment and refueling.
t. Biosecurity and pest risks.
u. Impact on coastal processes.
So far as instream mining is concerned under the head of fact of sand and gravel mining it has been stated as follows :
Furthermore, the process of in-stream mining and gravel washing produces fine sediments under all flow conditions, resulting in a deposition of fine sediment in riffles as well as other habitats at low discharge. Excess sediment is considered the greatest pollutant in waters and constitutes one of the major environmental factors in the degradation of stream fisheries.
However, in-stream mining may contribute additional sediment to downstream reaches due to the disruption of substrate stability. Once sediment enters the stream, it is best to let natural geomorphological and hydrological process reach a dynamic equilibrium, rather than further exacerbating the situation by additional disturbance.
All other things being equal :
(a) Extracting gravel from an excavation that does not penetrate the water table and is located away from an active stream channel should cause little or no change to the natural hydrological processes unless the stream captures the pit during periods of flooding.
(b) In-stream extraction of gravel from below the water level of a stream generally causes more changes to the natural hydrological processes than limiting extraction to a reference point above the water level.
(c) In-stream extraction of gravel below the deepest part of the channel (the thalweg) generally causes more changes to the natural hydrological processes than liming extraction to reference point above the thalweg.
(d) Excavating sand and gravel from a small straight channel with a narrow floodplain generally will have a greater impact on the natural hydrological processes than excavations on a braided channel with a wide floodplain.
(e) Extracting the sand and gravel from a large river or stream will generally create less impact than extracting the same amount of material from a smaller river or stream.
(f) Over-extraction of grave can destabilise channel and banks, and / or affect the ecologic functioning of rivers particularly if undertaken at the wrong time, or in the wrong place, or in a way that damages the river bed or margins.
Having given the aforesaid outlines the guidelines provide the general approach that has to be kept in mind by the appraisal authorities and the assessment authorities while recommending the case for granting ECs in this behalf under head of general approach to sustainable sand and gravel mining. At the cost of repetition we may add that no river sand mining is permissible unless the lessee obtains an EC in terms of these guidelines and the concerned authorities will consider each case on its merit in the light of the conditions mentioned in these guidelines.
The following consideration should be kept in mind which are as follows:
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 the 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 channel 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) Layer of sand and gravel which could be removed from the river bed shall depend on the width of the river and 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) 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 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.
(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 less.
(o) Demarcation of mining area with pillars and geo-referencing should be done prior to start of mining.
With the aforesaid considerations having spelt out the following points emerge as basic principals:-
The identification of the leased area based upon the quantum of deposits for this even use of satellite imageries has been recommended.
Collection of annual rate of replenishment of sand in the area identified.
Identifying ways of scientific and systematic mining.
Identifying measures for protection of environment and ecology.
Determining the measures for protections of bank erosion.
Establishing a benchmark (BM) below the aforesaid no mining shall be allowed.
Identifying the steps for conservation of the mineral.
Permanent catching facilities in consultation with the Central Ground Water Commission or such like State agency.
Implementing safeguards for checking illegal and indiscrete mining.
10.Provide for environmentally safe depth of mining and safeguards of banks by prescribing safe distances from banks.
With these salient features to be observed the District Authorities are required to prepare a survey document mapping the status of the sand resources in the district and also other considerations. The preparation of mining plan is also essential and the survey shall also be required to give details of the rivers or streams and the districts and other sand sources, district wise availability of sand and gravel and district wise details of existing mining leases. It has been provided that the rivers / stream / other sources of sand and aggravate are to be studied on the following parameters:
Place of origin
Catchment area
General profile of river stream
Annual deposition factor
Replenishment
Total potential of minor mineral in the river bed.
Having provided all these guidelines under the Sustainable Sand Mining guidelines of 2016 issued by the MoEF instructions have also been issued wherein inter-alia for river bed mining it is provided that "An ideal situation would require that quarrying should be restricted to unsaturated zone only above the phreatic water table and should not intersect the groundwater table at any point of time". It has further provided under the heading of river bed mining which is as follows: (emphasis supplied) River Bed Mining
Environment damage being caused by unregulated river bed mining of sand, bajri and boulders is attracting considerable attention including in the courts. The following recommendations are therefore made for the river bed mining.
a. In the case of mining leases for riverbed sand mining, specific river stretches should be identified and mining permits/lease should be granted stretch wise, so that the requisite safeguard measures are duly implemented and are effectively monitored by the respective Regulatory Authorities.
b. The depth of mining may be restricted to 3m / water level, whichever is less.
c. For carrying out mining in proximity to any bridge and / or embankment, appropriate safety zone should be worked out on case to case bases, taking into account the structural parameters, locational aspects, flow rate etc. and no mining should be carried out in the safety zone so worked out. (emphasis supplied)
In so far as issue which has been referred to this Tribunal is concerned, after framing of the Sustainable Sand Mining Guidelines of 2016 which also provides for the requirement of "monitoring system for sustainable sand mining from page 64 onwards of the guidelines takes a comprehensive measure commencing from the survey of the deposits, availability of the quality of mineral to the annual replenishment, as well as precautionary aspects in terms of appraisals and assessments and recommendations to either grant or refuse EC since no such activity can be permitted without a valid EC. It also takes into account the safety measures requires to be undertaken including those of the location and the requirement of a monitoring system to be carried out by the impact assessment authorities of the State and the districts.
In the light of the above the issue as to whether sand mining can be permitted within the submergence‟ area as contented by the Applicant we are of the view that the issue stands answered with the provisions having been made on the principal of precautionary approach as well as sustainable development in the guidelines of 2016 extract of which quoted hereinabove. Alternatively, since in the order of the Hon‟ble High Court dated 21.07.2015 the term used is "Environment issue arising out of carrying out mining activities particularly of sand in submerged area" is concerned the Sustainable Sand Mining Guidelines 2016 clearly prohibit any instream mining and further that rivers sand mining can be carried out only up to a depth of 3 meters / till water level is reached whichever is less. Therefore, clearly in accordance with the guidelines which was required to be considered as the guiding factor before any EC or consent can be granted no river sand mining can be carried out in any area notwithstanding the same being part of the leased area in case it is submerged‟, or lies within the submerged area.
We have noticed several ECs which have been subject matter of litigation before us and in which EC has been granted but the conditions specifically provides that no instream mining will be allowed and further that no removal of sand below a depth of 3 meters or the water channel whichever is earlier shall be carried out.
In the light of the above, we answer the question that has been referred to us that no river sand mining is permitted in the submerged area in accordance with the Sustainable Sand Mining Guidelines 2016 alternatively in so far as the issue whether it can be permitted in the submergence areas is concerned our answer to the same is that in submergence area which may be a wider area than the one actually submerged as a submergence area would encompass the full reservoir level of the river or the high flood level of the river recorded but in any case where the mineral is exposed and not instream such sand mining in accordance with the Sand Mining Guidelines 2016 and the conditions imposed in the environmental clearance may be carried out.
With the aforesaid answer we would return the record, of the case to the Hon‟ble High Court. We may state here that the delay that has occurred is on account of the fact that several ancillary issues had been raised by the parties which were required to be heard and adjudicated. The issue of rampant illegal sand mining was also one of them for which a team of court commissioners were appointed who inspected the areas and submitted their report, however, all this happened prior to this Tribunal having had the occasion to finally deal with the case in Amarkant Mishra Vs State of M.P in O.A. No. 49/2015 which later on was transferred to Principal Bench NGT, New Delhi and in accordance with decision therein the MoEF Government of India framed the Sustainable Sand Mining Guidelines 2016 which in our view answers the issue that has been raised before us and referred to us.
While we were still seized of this matter, only recently on 16.05.2017for curbing the issue of illegal sand mining the State Government also has amended the Madhya Pradesh Minor Mineral Rules 1996 by substituting Rule 53 providing more stringent penalties and confiscation of vehicles and equipment which may lead to some kind of deterrence. However, the actual working would determine whether these measures have proved adequate or have fallen short since trading in the mineral of river sand particularly on account of the demand in the real estate sector as also several projects in the infrastructure sector. Again on 22.05.2017 the State Government has announced a total ban on river sand mining in the River Narmada. A specimen of conditions imposed in EC for River Sand Mining may also be seen. The same are extracted below :
The PP shall not start mining activity before execution of leases agreement.
The average depth of the pit shall not exceed 3.0 mtr. or water level, whichever is less as the end of lease period.
No tree to be cut or damage from mining activity.
The amount towards reclamation of the land in MLA shall be carried out through the mining department the appropriate amount as estimated for the activity by mining department has to be deposited with the Collector to take up the activity after the mine is exhausted.
PP shall be responsible for discrepancy (if any) in the submission made by the PP to SEAC and SEIAA.
It was observed during the visit to Alirajpur by the sub-committee that the banks of the tributaries have been eroded due to floods hence as special condition PP shall use the rejects and soil for plantation on these eroded banks to prevent further damages of the banks.
Mining shall be carried only between Ist November to 31st May that is during non-monsoon period.
Transportation of sand shall not be carried out through forest area.
The mining activity shall be done manually.
Heavy vehicles shall not be allowed on the banks for loading of sand.
The sand shall be transported by small trolleys up to the main transport vehicle.
Transport vehicles will be covered with taurpoline to minimize dust / sand particle emission.
For carrying out mining in proximity to any bridge and / or embankment , appropriate safety zone of 1 km on upstream as well as on downstream from the periphery of the mining site shall be ensured taking into account the structural parameters, location aspects, flow rate, etc. and no mining shall be carried out in the safety zone.
No in stream mining shall be allowed.
The mining shall be carried out strictly as per the approved mining plan and ensure that the annual replenishment of sand in the mining lease area is sufficient to sustain the mining operations at levels prescribed in the mining plan.
Established water conveyance channel should not be relocated, strengthened or modified.
If the stream is dry the excavation must not proceed beyond the lowest undisturbed elevation of the stream bottom, which is a function of local hydrolics, hydrology and geo morphology.
After mining is complete the edge of the pit should be graded to a 2.5 : 1 slope in the direction of the flow.
PP shall take socio-economic activities in the region through the Gram Panchayat.
Thus we see that river sand mining, is being carried out in a systematic manner in accordance with the legal provision and procedure, taken into account the principle of sustainable development and is also based upon the Precautionary Principle.
We have also noticed that rivers sand mining along with mining of other minerals in all the districts covers a huge field but the staff to regularly inspect and check illegal mining is wholly inadequate with the Mining Department particularly in the Districts. Also this staff does not have the necessary means to check the illegal mining and stocking of the mineral and illegal transportation and the persons indulging in this activity are often those who have considerable power at their command. The need, therefore, for the State is to strengthen the mechanism for preventing the illegal mining and provide adequate manpower and force at the command of the mining officials which would include Armed guards to exercise restrain upon the illegal mining activity and also provide protection of the Mining Department officials and personnel.
A perusal of the rivers Sand Mining guidelines 2016 shows that a technological approach has been adopted for dealing with the issue. However, despite the guidelines having remained in force for about one year not much has been achieved in actual practice in terms of the modernization and technological approach to the problem of checking the illegal mining. We have been informed by the Learned Counsel appearing for the State that the State has now set the target for putting the Sustainable Sand Mining Guidelines of 2016 in operation in its totality including the measures for checking by electronic means by the end of this year. However, to what extent these measures actually work, including the impact of the recent amendment of providing correct details of powers of confiscation and deterrent penalties with a complete ban on sand mining in the river Narmada has to be seen. .
With the aforesaid answer to the question we would return the record of the case to the Hon‟ble High Court of MP at Jabalpur with all pending M.As. Nos. 1034/2016, 1036/2016, 02/2017, 03/2017, 04/2017, 104/2017, 105/2017 & 222/2017 pertaining to release of vehicles which may be decided by the Hon‟ble High Court of MP at Jabalpur.