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Judgment
Grievance in this application is against failure of the State authorities to take measures against illegal mining at Village Saidapur, Thana Madigaon, Tehsil Bakshi Ka Talab, Lucknow, in violation of environmental norms.
Vide order dated 15.12.2021, report was sought from District Magistrate, Lucknow in light of order of this Tribunal dated 26.02.2021 in OA No. 360/2015, NGT Bar Association v. Virender Singh (State of Gujarat) and other connected matters.
In pursuance of above, report has been filed on 30.09.2022 by the State PCB with following observations and particulars of action taken:-
“Observations-
The Question Site is located at Village-Saidapur, Thana-Madigaon, Tehsil-Bakshi Ka Talab, District- Lucknow with the Latitude and Longitude of 26.943023, 80.884786 and 26.950988, 80.886512
Mining work was done at Gata No. 216S, 217S, 218S and 298 Village-Saidapur, Thana-Madigaon, Tehsil-Bakshi Ka Talab, District-Lucknow
Mining work was not found at the time of inspection.
The Gata No. 298, Village-Saidapur, Thana-Madigaon, Tehsil-Bakshi Ka Talab, District-Lucknow 7000 cubic meters of ordinary soil mining permission was given to Shri Suresh Kumar from 07-01-2022 to 25-02-2022 by District Magistrate as Annexure No.-1
At the time of inspection did not found any mining work in excess of the prescribed standards on Said Gata No. 298 Village -Saidapur, Thana-Madigaon, Tehsil-Bakshi Ka Talab and District-Lucknow
For the 7992 cubic meters of normal soil mining permit in Gata No. 216 S, 217 S, 218 S, Village-Saidapur, Thana-Madigaon, Tehsil-Bakshi Ka Talab, and District-Lucknow, U.P. Transmission Corporation Limited to M/s Mishra Construction from 18-12-2021 to 26-01-2022 by District Magistrate, due to which mining has been done more than the prescribed quantity and contrary to the conditions of mining permission (depth more than standard) as Annexure No. 2.
During inspection, it was observed that the plotting is being done for residential purposes opposite side of said Gata numbers.
Action taken-
District Magistrate imposed fine of Rs. 500000.00 (Five Lakh) vide letter No. 1184/Sr. Assitt./Khanan/2022 dated-27-06-2022 to Miner Shri Banne S/o Maiku, Vill-Saidapur, Tesil-Bakshi Ka Talab, District-Lucknow, Shri Rizwan Kha S/o Sattar Kha, Vill-Muttakipur, Tehsil-Sadar, District-Lucknow-And M/s U.P. Transmission Corporation Ltd. By M/s Mishra Construction Shri Virendra Kumar, Address- H.No-78, Vikas Nagar, Lucknow regarding illegal mining (More than the prescribed quantity) in Gata No. 216S, 217S and 218S. Village-Saidapur, Thana-Madigaon, Tehsil-Bakshi Ka Talab, District-Lucknow. Letter dated 27.06.2022 as Annexure No.-3 and letter dated 11.04.2022 as Annexure No. 04.”
From the above it is seen that illegal mining was undertaken for which fine of Rs. 5 Lakhs has been levied under the provisions of the Mining Law. We find that action taken is not adequate as accountability for violation of environmental norms in the course of illegal mining has to be over and above mining laws as held inter alia in Goa Foundation, (2014) 6 SCC 590 and Common Cause (2017) 9 SCC 499 and order of this Tribunal dated 26.02.2021 in OA No. 360/2015, NGT Bar Association v. Virender Singh (State of Gujarat). Once illegal mining has been found, it was necessary to ascertain the extent of damage to the environment and take remedial action on that basis by the State PCB which has not been done. Though PCB is represented by Counsel, he is not in a position to provide any assistance.
Further, the waterbody in question needs to be duly protected. Though it is mentioned that plotting was being done in the area, remedial action is not mentioned. Apart from stopping illegal encroachments, it may be necessary to fence the area and undertake afforestation by the Forest Department. This Tribunal has dealt with the steps required to be taken under the law for protection of waterbodies inter-alia vide order dated 18.11.2020 in O.A. No. 325/2015, Lt. Col. Sarvadaman Singh Oberoi vs. Union of India & Ors. as follows:-
“16. We find that the steps taken so far can hardly be held to be adequate. As already noted, protection of water bodies serves great public purpose and is essential for protection of the environment. It helps not only aesthetics but also water availability, aquatic life, micro climate, recharge of ground water and maintaining e-flow of the rivers. Under the Public Trust Doctrine, the State has to act as trustee of the water bodies to protect them for the public use and enjoyment for current and future generations. We may note the observations of the Hon’ble Supreme Court on the subject which are as follows:
i. State of T.N. v. Hind Stone, (1981) 2 SCC 205, at page 212:
“6. Rivers, Forests, Minerals and such other resources constitute a nation’s natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation.”
ii. Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496, at page 500:
“13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature’s bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution.”
iii. T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606, at page 628:
“… … …
… As was observed by this Court in M.C. Mehta v. Kamal Nath our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.”
iv. Intellectuals Forum v. State of A.P., (2006) 3 SCC 549, at page 574:
“75. In M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388, Kuldip Singh, J., writing for the majority held:
“34. Our legal system … includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. … The State as a trustee is under a legal duty to protect the natural resources.”
The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said:
“Thus, the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust.”
This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government, the courts must make a distinction between the Government’s general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources [Joseph L. Sax “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention”, Michigan Law Review, Vol. 68, No. 3 (Jan. 1970) pp. 471-566]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine [ibid]:
the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
the property may not be sold, even for fair cash equivalent;
the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources.”
v. Jitendra Singh v. Ministry of Environment & Ors., 2019 SCC Online 1510 pr 20
“…. …. …
…. Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.”
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We also note that the Ministry of Urban Development, Government of India, Central Public Health and Environmental Engineering Organization (CPHEEO) has issued an advisory on “Conservation and Restoration of Water Bodies in Urban Areas” http://mohua.gov.in/upload/uploadfiles/files/Advisory%20on%20Urban%20Water%20Bodies.pdf in August, 2013 which need to be followed. The matter was also considered by the Standing Committee on Water Resources (2015-16), Sixteenth Lok Sabha. Its Tenth Report has been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation under the heading “Repair, Renovation and Restoration of Water Bodies-Encroachment on Water Bodies and Steps Required to Remove the Encroachment and Restore the Water Bodies” http://164.100.47.193/lsscommittee/Water%20Resources/16_Water_Resources_10.pdf in August, 2016. Further, the “Guidelines for the Scheme on Repair, Renovation and Restoration (RRR) of Water Bodies under PMKSY (HKKP)” http://pmksy-mowr.nic.in/documents/RRR_PMKSY_Guidelines_2017.pdf have been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation, Govt. of India in June, 2017. The said report also provides useful material to be looked into by the enforcement agencies.
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As suggested by the CPCB, a single agency needs to be set up in every State/UTs within one month. This work may either be assigned to the Wetland Authority of the State or the River Rejuvenation Committee or to any other designated authority such as the Secretary, Irrigation and Public Health/Water Resources. It is made clear that if the State Wetland Authority is to be assigned the task of protection of all water bodies, this task will be in addition to the normal functioning of the State Wetland Authority under the Wetland (Conservation and Management) Rules, 2017. Such nodal agency must call a preliminary meeting on the subject with all the District Magistrates on or before 31.01.2021 to take stock of the situation and to plan further steps. Thereafter, a regular meeting may be held for periodic monitoring at the District level as well as the State level with the identified targets of proper and scientific identification and protection of all water bodies, assigning unique identification number, removing encroachments, preventing dumping of waste, maintaining water quality and restoration by taking other appropriate steps, involving the Panchayats and the community, utilizing the financial resources available from different sources. Steps taken need to be documented and compiled and reported to a central authority, preferably the CPCB. This Tribunal has already constituted a CMC to be headed by the Secretary, MoJS with the assistance of CPCB and other authorities to monitor remedial action for 351 polluted river stretches. Restoration of water bodies is also a connected issue which can be monitored by the same Committee atleast thrice a year at the national level.
Directions
Accordingly, we dispose of this application with following directions:
(i) All States/UTs may forthwith designate a nodal agency for restoration of water bodies, wherever no such agency has so far been so designated.
(ii) Under oversight of the Chief Secretaries of the States/UTs, the designated nodal agency may
a. Hold its meeting not later than 31.1.2021 to take stock of the situation and plan further steps, including directions to District authorities for further course of action upto Panchayat levels and to evolve further monitoring mechanism as well as Grievance Redressal Mechanism (GRM).
b. Submit periodical reports to the CPCB/Secretary Jal Shakti, Government of India. First such report may be furnished by 28.02.2021.
(iii) The CMC for monitoring remediation of 351 polluted river stretches, headed by the Secretary, MoJS may monitor the steps for restoration of water bodies by all the States periodically, atleast thrice in a year. First such monitoring may take place by 31.3.2021.
(iv) The CMC may give its action reports to this Tribunal in OA 673/2018 and first such report may be furnished preferably by 30.4.2021 by e-mail.”
In view of above, the statutory regulators may take further remedial measures which inter-alia to prevent illegal mining, assessing extent of damages to the waterbody (Bakshi ka Talab) and restoring it by way of taking necessary steps like fencing, preventing mining, encroachment and recharging of the Talab and recovering compensation for damage to the environment by illegal mining. The action taken may be overseen by the ACS Environment Department, Uttar Pradesh on continuous basis atleast for six months. First such review may be undertaken within one month in respect of remedial measures taken/planned by the concerned authorities.
The application is disposed of accordingly.
A copy of this order be forwarded to ACS Environment Department, Uttar Pradesh by e-mail for compliance.