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Judgment
In this application, Mr. Dyanesh Kisanrao Phadtare has raised a substantial issue relating to environmental degradation caused due to illegal sand mining carried out with the aid of suction pumps in the riverbed of River Bhima at Koregaon Bhima Village, Taluka: Shirur, District: Pune. The Applicant claims to hold 13 acres of sugarcane growing land along the bank of River Bhima at Gat No.12, 13, 14, 15, Village Koregaon Bhima Taluka: Shirur, District: Pune. The Applicant submits that this Application throws challenge to the breach of environmental laws and large scale harm being caused to the environment due to illegal sand mining using heavy suction pumps mounted on the moving boats, dredgers and Poklain machines in the riverine portion of River Bhima.
The Applicant submits that it is now a statutory requirement that all sand mining activities are required to have the environmental clearance and the terms and conditions prescribed for such environmental clearance need to be strictly complied with by the project proponent, and furthermore all the concerned authorities including State Environment Impact Assessment Authority (SEIAA), SEAC, Maharashtra Pollution Control Board (MPCB), Revenue Department are required to ensure the compliance of the same. The Applicant submits that he had submitted various representations to all these authorities, time and again, regarding the illegal sand mining in the riverbed of River Bhima using suction pumps and other heavy machineries. He alleges that the authorities like Groundwater Survey and Development Authority (GSDA) have given incorrect report regarding the depth of the sand mining in the riverbed. According to him, riverbed mining is known to have serious environmental degradation concerns particularly when the sand mining is carried out in the water stream. In these circumstances, he submits that adequate safeguards should have been put in place by authorities to arrest such adverse environmental impacts and furthermore, taken effective steps to enforce such safeguards. The Applicant further submits that the site in question allotted to the Respondent No.1 received the Environmental Clearance (EC) No. SEAC-2014/CR.330/TC-2 dated 21/1/2015, however sand mining activities were commenced well before such clearance was granted. It is his complaint that there is use of suction pumps, heavy machines, Poklain without any express permission of the SEIAA which is an authority for grant of EC. He also alleges excessive mining over and above the EC sanctioned capacity resulting into environmental damages, and claims that such excessive mining poses a serious threat of soil erosion and collapse of the river bank along his agricultural land. He has, therefore, prayed for following:
"(I) This Hon'ble Tribunal may kindly issue an appropriate order with respect to the interim prayers made above for the permanent solution of the sand excavation at Bhima River and also to stop further environmental exploitation of the Bhima River Bed. Illegal sand mining done using Poclain, JCB machines and suction pumps at both day and night-time may kindly be stopped with immediate effect.
(II) Directions may kindly be passed to prohibit any mechanical mining of sand in the absence of appropriate permissions from the relevant authorities.
(III) The State of Maharashtra and the Department of Revenue & Forests/ Collectors of the concerned district may be directed to prepare and submit reports providing details of all auction notices, licenses granted thereto whether for manual or mechanical excavation in areas falling particularly in Pune District in Maharashtra, including, quantities mined and steps taken to monitor the mining, excavation, dredging of sands from different Ghats, from the period of 2014 till date.
(IV) Compensation may also be kindly granted to the victim that is applicant for the loss of fertility in his agricultural land. His agricultural land where he is growing sugarcane is suffering constant damage because of the illegal activities of the Respondent No.1."
The Respondent No.1 filed affidavit dated 26th August, 2015 through Mr. Shashikant Eknath Dhamdhere and submitted that the Applicant has no locus standi and is misusing the provisions of the National Green Tribunal Act, 2010. He submits that after the sanction order received from Additional Collector, Pune dated 4th April, 2015, sanctioning his bid for extraction of the sand from Koregaon Bhima River, all the legal formalities were completed and the possession of the sand mining plot was handed over to him by the authorities only on 16th April, 2015. He denies any illegality, deficiency or omission in award of the sand mining contract to him. He further submits that the Applicant has failed to demonstrate any loss of property or degradation to environment due to the sand mining activities carried out by him with effect from 16th April, 2015. The Respondent No.1 further submits that the Applicant has raised certain issues relating to legality or otherwise of the EC granted to the sand mining activity dated 21st January, 2015 which cannot be challenged as part of this application proceedings and the Applicant should have filed a separate appeal challenging the EC granted therefor. The Respondent No.1 further submits that he has carried out the sand mining activity strictly in compliance with the terms and conditions of the EC and also the instructions of the Revenue Department issued from time to time.
The Respondent No.6 has filed Affidavit through Tahsildar Shirur dated 25th August, 2015 and submitted that the Respondent No.1 was successful bidder in auction of sand mining rights in the identified sand plot from Bhima Riverbed Village Koregaon and the possession was given to him on 4th April, 2015. He also submitted that a proposal for use of suction pumps received from the Respondent No.1 was duly forwarded to the Government and reply from the Government was awaited. It is further submitted that number of complaints were received by Commissioner and Collector Office from the Applicant regarding illegal sand mining on Bhima Riverbed. Thereupon, the Collector Office had directed the Tahsildar on 18th February, 2015, and accordingly an inquiry was held and report was submitted on 1st April, 2015 stating that there is no sand mining done with the help of suction pumps. This report was submitted on the basis of spot panchnama done by the Circle Officer. It is also submitted that the Joint Committee also visited the spot on 24th April, 2015 and reported that there is no illegal mining done in the nearby area of riverbed and in Applicant's land. He further submits that necessary action is being taken by the Revenue Officers and Sub Divisional Officer who have powers to seize the suction pumps, if found illegally being used. The Respondent No.6, thus opposed the present Application.
Respondent Nos.2, 3, 4 and 5 did not file any affidavit in reply. However, learned Counsel for Respondent Nos.4 and 5 participated in the proceedings and submitted that they had granted the EC to the said sand mining activity and it was the responsibility of the Collector and District Mining Officer to take suitable action to ensure the compliance of the conditions prescribed for grant of EC. Learned Counsel further submitted that in compliance with the Orders of the Tribunal, the State Government has formulated the enforcement protocol for compliance of EC conditions vide GR dated 16th October, 2015 and the concerned authorities are required to strictly follow the procedure as given in the said GR in case of violation of the EC.
Considering the pleadings and submissions on record and also arguments advanced by learned Advocates, following issues need to be adjudicated.
ISSUES
(I) Whether the Applicant has any locus to file the present application and also whether any substantial question of environment as contemplated in Section 14 of the National Green Tribunal Act, 2010 has been raised by the Applicant in the present application?
(II) Whether the sand mining activities of Respondent No.1 were in compliance with the terms and conditions of the EC dated 21st January, 2015?
(III) If not, whether such mining operations have resulted in any environmental damages which requires restitution and restoration; nature, scale and cost thereof?
(IV) Whether the mechanical sand mining using suction pump, JCB and Poklain can be allowed by the State Government without the express appraisal and approval by SEIAA/SEAC?
(V) Whether adequate enforcement and compliance of EC and other environmental regulations have been exercised by the concerned authorities? Whether any specific directions are required to be issued by the Tribunal in ensuring the same?
Issue No.I:
The Applicant Mr. Dnyanesh Kisanrao Phadtare who has filed the present application under Section 14, 15 and 17 of the National Green Tribunal Act, 2010 claims to hold 13 acres of sugarcane land at Gat Nos.12, 13, 14 and 15 at village Koregaon Bhima, Taluka: Shirur which admittedly is located along the River Bhima. The Applicant claims that he had submitted several complaints to the authorities, particularly, the Collector, who has also caused investigations of his complaints and has taken action against Respondent No.1. Furthermore, the Applicant submits that the illegal sand mining with the help of heavy duty suction pumps in the standing/flowing waters of River Bhima is likely to cause adverse effect on the ground water availability in the area, besides collapse of the river banks, where his agricultural lands are located.
Sections 14, 15, 17 and 18 of the National Green Tribunal Act, 2010 spell the legal parameters for sustaining an appropriate application before the Tribunal. The law as far as locus of the Applicant in respect of Section 14 and 15 has been well settled through various judgments of the National Green Tribunal Rana Sengupta Vs. Union of India & Ors. [Appeal No.54/2012 cited in 2013 ALL (1) NGT Reporter (Delhi) 91].
In the instant case, the Applicant grieves that the sand mining carried on with the suction pumps and such other mechanical equipment has caused soil erosion along the bank of River Bhima and environmental degradation caused thereby has affected his agricultural lands situate along the bank of River Bhima. Section 18(2)(b) and (e) of the National Green Tribunal Act, 2010 entitles the Applicant being aggrieved person due to the damage caused to his agricultural lands as aforesaid to initiate an action under Section 14 of the National Green Tribunal Act, 2010 and raise a substantial question relating to environment including enforcement of his legal rights relating to environment and arising out of the implementation of Environment Clearance Regulations, 2006 framed under the Environment (Protection) Act, 1986. Without repeating the propositions upheld by us in Rana Sen Gupta Vs. Union of India & Ors. [Appeal No.54/2012], we are of the considered opinion that the Applicant has a locus to file the present Application.
The sand mining activities are known to have severe adverse environmental impacts and considering the seriousness and importance of environmental aspects of such mining activities, Hon'ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors has directed that all mining activities, even less than 5 hectares of area, shall require environmental clearance. The Hon'ble Apex Court also observed:
"We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a river bed has an impact on the rivers physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that the extraction is in blocks of less than 5 hectares, separated by 1 kilo meter, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan".
Furthermore, the MoEF has also come out with Sustainable Sand Mining Management Guidelines, 2016 which elaborately describe environmental consequences of sand mining activities including the riverbed mining. The Applicant has contended that the unauthorized and illegal use of heavy duty suction pumps has resulted into excessive mining and associated environmental damage. Considering the above, we are of the considered opinion that the present Application has raised a substantial question of environment as defined in Section 2(m) of the National Green Tribunal Act, 2010.
The Issue No.I is accordingly answered in affirmative.
Issue Nos.II and III
The Applicant has alleged that the sand mining activities carried out by the Respondent No.1 in the riverine bed of River Bhima at Village Koregaon Bhima is in violation of the EC conditions and has caused severe environmental damages. It would, therefore, be necessary to outline the legal and factual aspects as related to this sand mining activity. Respondent No.6 - Collector has filed written submissions and also affidavits to place on record the compliance status from time to time. The Respondent No.6 submitted that the e-auction was conducted by the District Collector, Pune and after following the necessary procedure of e-auction of 1753 brass sand from Bhima Riverbed Village Koregaon Bhima Taluka: Shirur, the Respondent No.1 was declared successful bidder in the said auction for the highest price of Rs.28,50,000/-. The Respondent No.1 was given the possession of the sand plots on 4th April, 2015. The Respondent No.6 further submits that the SEIAA, Maharashtra has accorded environmental clearance for the sand extraction proposal for the year 2014-2015 vide communication dated 21st January, 2015. The said EC reveals that the area of the sand block in question is 330 mtrs x 15 mtrs with the total depth of the sand block as per GSDA as 3.8 mtrs, though the total depth recommended by GSDA for excavation was only 1mtr and total permitted sand resources as approved in the EC was 1753 brass. Perusal of this EC reveals following aspects:
(i) The EC was granted on 21st January, 2015 to Collector Pune for total 139 sand mining plots in the district including the sand plot No.94 at Koregaon Bhima - the subject matter of the present application.
(ii) Use of suction pumps for sand mining can be allowed by the State Government only in exceptional cases in the public interest and this provision shall not be used liberally as recommended by SEAC-I.
(iii) No mining shall be carried out in streams (General condition No.4).
(iv) It shall be ensured that the mining does not disturb the turbidity, velocity and flow pattern of the river (Specific condition-23).
The Applicant has pointed out that in response to the complaints filed, there was a joint inspection on 24 th April, 2015 at the site in question. The said Panchnama revealed that sand mining activities have been carried out from the Bhima Riverbed and sand stocks were observed near Gat No.12 & 14. However, during the said visit the Respondent No.1 had submitted that this sand stock was not mined by him and has existed at the site since last year. The Committee has also inspected the area and found that the agricultural lands of the Applicant are cultivable lands having standing crop of the sugarcane. The Committee did not observe any damage to these standing crops. The Applicant alleges exposure of the roots of standing trees on the river bank and claims that such exposure of the roots was due to the soil erosion caused by illegal sand mining. However, the Committee could not observe the same due to standing water in the river. The Committee also could not find any sand mining activity during the visit. The Committee also observed that the mechanical boat and JCB was found near the sand mining plot, though the sand mining was not in progress. The Committee also issued necessary instructions to Respondent No.1 not to use the suction pumps without specific permission of the government and also no sand mining be carried out 100mts from the existing bridge on both downstream and upstream side.
During the proceedings, the Tribunal has considered the various inspection reports of the Revenue Department in particular and has taken a serious note of the fact that though Revenue Department had located the presence of mechanical equipment like suction pumps at the site to be used for sand mining activities in contravention with the EC conditions no action of seizure of such machinery was taken. The Tribunal has also directed the Respondent No.1 to tentatively deposit amount of Rs.6 Lakhs in the Escrow Account of the Collector Pune for environmental compensation and restoration. The Respondent No.6 - Collectorate Pune was tentatively held responsible for liability of Rs.2 Lakhs by Order dated 26th August, 2015.
The Applicant has relied on the Government GR dated 12th March, 2013 which sets out the procedure for the sand mining activities. He, therefore, complained that though the regulations are in place and more particularly, EC clearly stipulates that the Collector and the District Mining Officer are required to strictly enforce the conditions of the EC, it was incumbent for them to ensure that the sand mining activities was carried out in strict compliance with the EC regulations. He submits that the presence of mechanical equipment, particularly, suction pumps would clearly indicate that there was violation of the EC conditions, there being reason to believe that Respondent No.1 has used the suction pumps without any specific permission. The learned Counsel Mr. Asim Sarode appearing on behalf of the Applicant further submits that though the EC stipulates the condition that the suction pump can be used only with the permission of the State Government, he strongly contested such a condition claiming that the SEIAA cannot delegate such powers to the State Government, more particularly, without apprising the environmental impacts caused due to rapid excavation of sand with the use of suction pumps at a particular sand mining location. He, therefore, claims that such a condition is bad in law and has been stipulated by SEIAA without any specific powers available with SEIAA under the EIA Notification. He, therefore, submits that though SEIAA has stipulated such condition, the same cannot be considered as legal and needs to be quashed by the Tribunal.
We have also considered the report of Tahsildar, Shirur dated 1st April, 2015 (page -342) which records that at Gat Nos.1, 9 and 11 which are adjoining the River Bhima, there seems to be certain deposits of sand bags which apparently is for facilitating use of suction pumps.
However, during the inspection, no sand mining with suction pumps or suction pumps and other machineries were found at the site.
It is manifest from the environmental clearance granted to the sand mining plots in District Pune by SEIAA vide EC dated 21st January, 2015 that the SEIAA has not appraised the need and the justification for the use of suction pumps at any of the 139 sand mining plots referred in the EC and has merely left the discretion to the State Government with a recommendation that the use of suction pump can be allowed by the State Government only in exceptional cases in public interest and this provision shall not be used liberally. The Applicant has expressed serious concern about this specific liberty granted to the State Government.
It is a well-documented fact that the sand mining has an adverse impact on the environment but at the same time the sand is an important natural resource which is required for various construction and infrastructure development necessary for sustainable development and, therefore, considering exhortation of 'precautionary principle' and need of sustainable development the Hon'ble Apex Court in Deepak Kumar Vs State of Haryana and Ors directed that all mining activities, even less than 5 hectare, are required to obtain environmental clearance from the MoEF/SEIAA under the EIA Notification, 2006.
The Principal Bench of the National Green Tribunal has also considered this aspect in O.A. No. 174/2013 [National Green Tribunal Bar Association Vs. Ministry of Environment & Forests & Ors] and emphasized the need of strict enforcement and compliance of the environmental conditions stipulated for the sand mining operations.
Learned Counsel appearing for Respondent No.1 submits that they have applied for use of suction pumps in terms of the conditions of the EC on 6th April, 2015. This application was filed with the Collector Pune, who had forwarded this proposal to the State Government for necessary approval with letter dated 24th April, 2015. During the entire proceedings, no documents were placed before the Tribunal regarding any permission granted by the State authorities for use of suction pumps at Village Koregaon Bhima. However on 6th July, 2016, it was revealed before us that the State Government had approved the use of suction pumps for mechanical extraction of the sand at the said disputed area vide letter dated 25th August, 2015 and such material information was not disclosed before the Tribunal. The learned Counsel appearing for the Respondent No.1 submits that in view of such permission given by the State Government for the use of suction pumps, the allegations made by the Applicant regarding the illegal use of suction pumps, without prejudice to his other contentions, stand negated and therefore the proceedings be closed.
We have carefully gone through the permission given by the Revenue and Forest Department, Government of Maharashtra for use of suction pump at Village Koregaon Bhima vide letter dated 25th August, 2015. The said communication addressed to Additional Collector, Pune reveals a condition - '(a)' which clearly stipulates that the Additional Collector shall personally verify whether there are exceptional circumstances in the public interest whereby such use of suction pump is required to be made, and only after such verification, the permission for use of suction pump shall be given at the level of Additional Collector. However, there is no material to suggest compliance of such condition by the Additional Collector and, therefore, we are of the opinion that in addition to the specific condition stipulating manual sand mining even the so called qualifying permission of Government dated 25th August, 2015 is no permission for use of suction pumps. We are inclined to hold, despite the observations made by the Joint Inspection Team dated 24th April, 2015 regarding the use of suction pump and other mechanical machineries but from the circumstances noted, that there was a violation of terms and conditions of the EC dated 21st January, 2015 at the site of sand mining activities carried out by the Respondent No.1 at Village Koregaon Bhima.
During the pendency of this Application, Respondent Nos.6 to 8 have taken action against Respondent No.1 for various non-compliances and have terminated sand mining contract of Respondent No.1 besides imposing penalty under Mining Regulations. However, we do not find any specific information and data on record to substantiate environmental damage caused to the agricultural property of Applicant in view of the observations in the Joint Committee report dated 24th April, 2015 for. It is an admitted fact that the Respondent No.1 was given possession of sand mining plot on 4th April, 2015 for manual sand mining and yet sand stocks were noticed nearby. Moreover, the Respondent No.1 was found to be not complying with the EC conditions and therefore, Respondent No.1 is required to be saddled with notional cost for environmental damages, which is approximately fixed at Rs.1,00,000/- (Rupees One Lakh only).
Issue Nos. II & III are accordingly answered.
ISSUE NO.IV
The use of suction pumps in the sand mining generally results in huge and rapid displacement of mixture of sand and large volume of water. Such use of suction pumps results in unwarranted turbulence in aquatic environment leading to increase in turbidity, loss of aquatic life and also uncontrolled mining, exceeding the depth specified in the EC. Use of suction pumps leads to uncontrolled lifting of bottom sand from water stream and large quantity of water resulting in significant environmental changes including loss of benthic habitat and disturbing the riverbed characteristics and, therefore the use of the suction pump cannot be said to be environmentally sustainable unless and until it is critically appraised and suitable safeguards and conditions specifically included in the environmental clearance. In the EC dated 21st January, 2015, we do not find any such appraisal or approval relatable to the use of suction pump at the particular site in question.
The Sustainable Sand Mining Management Guidelines, 2016 published by MoEF extensively describe the effects of sand mining on the environment. The Mining within or near riverbed has a direct impact on the river 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 Guidelines also mention that the process of in-stream mining produce fine sediments under all flow conditions resulting into loss of habitats and pollution of water in down-stream. The Guidelines elaborately lay down the general approach to the sustainable sand and gravel mining which clearly discourage the sand mining in the flowing stream channels of the river. The Management Plan in the Guidelines-2016 recommend limiting the riverbed extraction methods to the bar skimming and various measures to ensure that the sand mining is carried out strictly as per mining plan within the replenishment capacity of the riverine stretch.
Considering the significant environmental impacts associated with sand mining with suction pumps and other mechanical equipment, we are of the considered opinion that the suction pumps and other mechanical machineries cannot be used in the sand mining activities without express permission of the State Impact Assessment Authority based on the appraisal of the nature and extent of such activities by SEIAA/SEAC or MoEF and its specific inclusion in the environmental clearance.
We are inclined to partially accept the argument of Respondent No.1 that though the State Government has given permission vide letter dated 25th August, 2015 to the Additional Collector to consider and approve the use of suction pump, neither the District Collector nor the Mining Officer has disclosed this communication either to the Tribunal or Respondent No.1. We are surprised with such a conduct of the government authorities, particularly, the Tahsildar and the District Mining Officer in withholding such important document from the Tribunal as well as Respondent No.1. If such document had been disclosed in time, the proceedings could have been expedited effectively and without delay. We do not find any fault with the Respondent No.1 for such delay in the proceeding on this count. We deprecate the conduct of the concerned Officers who have filed affidavits for such non-disclosure of information.
Issue No. IV is accordingly answered in affirmative.
Issue No.V
The sand mining activity particularly in the riverbed is known to be an activity causing significant environmental damages. This Tribunal has already in Application No.44/2014 [Mr. Paramjit Singh Kalsi Vs. MoEF & Ors] has dealt with the need of effective enforcement of the environmental clearance conditions in the sand mining activities. The relevant paragraphs which also address the issues raised in the present controversy are reproduced below:
"18. In the present case, the District Administration and Mining Authorities have found numerous violations of mining lease agreement and accordingly, they have proceeded with certain legal action against the violators under the provisions of Bombay Mining and Minerals Rules. All these violations would finally be leading to unauthorised and excessive sand mining, may be even outside the approved area/location in the Environmental Clearance. Obviously, such non-compliances need to be examined in view of the conditions stipulated in the environmental clearance granted by SEIAA for the sand mining activities. During the final hearing, the Environment Department would submit that the department do not have sufficient man- power to enforce the conditions of the EC. It was the stand of the Environment Department that as per the conditions of the EC, Collector and Mining Officer are responsible for the enforcement and compliance of the EC conditions. Such submission has put forth contradictory stand, as the environmental clearance for the sand mines is granted to the Collector of the District and at the same time the responsibility of enforcement is also entrusted to him. It is a settled principle of Law that the project proponent itself cannot be the enforcement or regulatory agency. The role of the enforcement agency is different and separate than that of project proponent. In case of any violation, the enforcement agency is expected to take suitable legal action against the project proponent. In the instant case, the violation of EC will amount to violation of Environment (Protection) Act, 1986 and therefore, the offender will be liable for legal action which may include penal action under Section 15 of the Environment (Protection) Act, which prescribe imprisonment as well as fine. Under these circumstances, the stand of the Environment Department that the Collector and the Mining Officer are required to enforce the conditions of the EC cannot be accepted, if the Collector is deemed as a project proponent. The District Mining Officer would submit that the Collector in the present case is coordinating sand mining activity for sustainable mining as sand is required for various developmental purposes and role of Collector as well as District Mining Officer cannot be deemed as of project proponent. Any violation of EC condition should be construed as violation or offence by the respective mine lease holder. We are inclined to accept such an argument advanced by the learned DGP that violation of the EC conditions in case of a particular sand mining lease need to be attributed to the respective mine lease holder who is actually carrying out the sand mining for commercial purposes and is responsible to adhere to the conditions of the mining lease as well as Environment Clearance.
Considering these difficulties, the next point which is to be considered is the enforcement mechanism. The MoEF has published a report of the Committee constituted for development of criteria and formulation of guidelines for categorisation for non compliance into the category of serious and not so serious in September 2011. The report includes such classification for the mining project also. Needless to say that there is a significant policy gap for setting up a mechanism for enforcement and for ensuring compliance of the EC conditions as far as sand mining is concerned.
In view of above discussions, we are of the opinion that both these issues are answered in NEGATIVE.
The sand mining for that matter, other minor mineral exploration activities, are spread over the entire District and the number of such mine leases is also significant. It may not be therefore, feasible for the state level authority, for that matter the Regional Office of the MoEF which is located in Bhopal to enforce the EC condition in the field. However, there is a need of setting up an enforcement mechanism for such sand mining project as large scale violations are reported in the present matter, which may be the case in the other Districts of the state also. Therefore, considering this urgent need for formulating an enforcement mechanism in order to protect the environment based on precautionary principle, we are inclined to partly allow this Application with following directions, which are issued under the powers conferred by Section 20 of the National Green Tribunal Act.
Secretary, Environment Department, Government of Maharashtra and SEIAA shall formulate enforcement mechanism for compliance of Environment Clearance conditions in respect of sand and other minor mineral mining activities within a time frame of two (2) months.
Such enforcement mechanism shall clearly outline the enforcement protocol including the criteria for assessment of compliance and/or violations, the department, officers and their roles and responsibility including taking legal action under the Environment (Protection) Act, along with required delegation of powers; and also guidelines for assessment of damages and restoration costs.
Secretary, Environment Department shall submit a copy of such enforcement mechanism to the Registry of Tribunal by 31-7-2015.
In the meantime, the District Collector and Mining Officers shall send monthly information on compliance and also, actions taken against sand mining lease holders to SEIAA and Environment
Department on monthly basis for further action."
In light with these directions, Government of Maharashtra has formulated such protocol as notified in GR dated 16th October, 2015. This Tribunal has considered the effectiveness of such protocol in the Show Cause Proceedings in Application No.10/2016 [Praful Shivrao Kadam Vs. Department of Environment & Ors.] which is also being disposed of by separate Judgment today itself and specific directions are issued to the SEIAA to revisit the entire enforcement protocol in order to utilize the powers vested with SEIAA by the Government of India in order to ensure immediate and effective intervention in the case of non-compliance of EC conditions as well as suitable action for restitution and restoration of environment. These directions will also hold good in the present Application.
MoEF has already delegated powers under Section 5 and 15 read with Section 19 of the Environment (Protection) Act, 1986 to SEIAA, Maharashtra for expeditious and effective legal actions for enforcement of the EC conditions and also taking action against non-compliance of the provisions of the Environmental Act vide Notifications dated 28th February, 2014. However, in the present case though the Tahsildar has observed certain non-compliance, we do find any such documents to indicate that the non-compliance has been brought to the notice of SEIAA for necessary legal action. Neither, there is any enforcement by the SEIAA to ensure compliance of EC conditions.
Summing up the above, we are of the considered opinion that the present Application can be disposed of with following directions:
(1) The use of suction pumps and mechanical equipment in the riverbed for sand mining are strictly prohibited unless and until there is a specific approval by SEIAA/DEIAA as per the provisions of EIA Notification, 2006 is issued after elaborate appraisal of such proposals on case to case basis including its extent and scale of operation.
(2) The Secretary, Environment Department, Government of Maharashtra and SEIAA shall bring these directions to the notice of all the Collectors of the State for their information and immediate compliance.
(3) The Respondent No.1 - Balaji Enterprises shall pay an amount of Rs.1,00,000/-(Rupees One Lakh only) as environmental damage cost which shall be deposited with Maharashtra Pollution Control Board (MPCB) within 04 weeks. The interim order dated 26th August, 2015 of depositing Rs.6 Lakhs by Respondent No.1 stands superseded with these directions.
(4) SEIAA shall revisit the enforcement protocol as prescribed in GR dated 16th October 2015 in order to expedite timely interventions by issuance of directions under Section 5 of the Environment (Protection) Act, 1986 in case of non-compliance and also to cover the restoration and restitution aspects in view of the delegation of powers by the Government of India vide Notification Nos. S.O. 637(E) and S.O. 638(E) dated 28th February, 2014 within one month.
(5) We impose cost of Rs.10,000/- on the Mining Department, Collector Office Pune for non-disclosure of the information of permission given by State Government for suction pumps which shall be paid to the Applicant within two (02) weeks.
Application No.63/2015 stands disposed of accordingly.