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Judgment
The application is filed under Section 14 of the National Green Tribunal Act, 2010 (for short NGT Act) for a direction to the State of Uttrakhand and Ministry of Environment, Forest & Climate Change (for short MoEF) not to allow any mining on the river bed of River Ganga, to protect its ecology and also movement of wild animals, to take action against illegal miners and to recover the cost of damage done to the ecology on the basis of Polluter Pays Principle.
The applicant is an organization working in the field of environment protection and would contend that illegal mining is going on not only on the banks of River Ganga, but, also on its tributaries. The illegal mining of sand and boulders are happening in villages of Bishanpur, Goghpur and Kandabhagamal on the bank of river Ganga. The illegal mining is also going on in Sajjanpur Pilli Village. It is also pointed out that a team constituted on the directive of MoEF and the team was constituted to inspect on the points raised in the representations submitted by Swami Brahmachari Dayanand Maitri Sadan, Haridwar to the MoEF against the proposed mining of minor minerals in Dhobhighat, Misserpur, Ajeetpur, Bishanpur, Sajjanpur and Raighati Aithmal, visited the site of illegal mining on 23.02.2015. The visiting team comprising of Shri M.S Negi, DCF and Dr. S.C Katiyar, Scientist 'D' noticed large scale mining. The relevant finding was "large scale illegal mining of minor minerals was noticed along the river bed of Ganga in the proposed mining sites of Bishanpur and its adjoining areas. Hundreds of tractors were found engaged in transport of the minor mineral (sand, bajri and boulders). At places, mining was being carried out close to the spurs constructed to avoid flooding. No government official of the concerned State Government was found available in the area". The team recommended stopping of all illegal mining on river bank to avoid further adverse effect on the surrounding areas. The recommendation was forwarded to respondent no. 1 by letter dated 27.03.2015. No action was initiated and the illegal mining is continuing in the area. A copy of the report forwarded to the MoEF was produced along with the application. The applicant also contended that along with the report, the inspecting team had submitted photographs showing large scale of illegal mining of minor minerals. The copy of the photographs shows tractor trolley carrying mined minerals to the stone crushers, temporary settlements for laborers setup illegally for carrying out the illegal mining. It is contended that the Tribunal in O.A No. 279/2013 and O.A No. 343/2013 recorded the statements of Dr. V.P Upadhyay, Scientist-'F' (Director) and Dr. P.B Rastogi, Scientist- 'F'(Director) from the MoEF, that the Office Memorandum dated 24.12.2013 intends and it is now clarified and reiterated that no Environmental Clearance will be granted for extraction of Minor Minerals (sand mining) from any river bed/water body, where the area is less than 5 hectares and mining activity of minor minerals of less than 5 hectares is not permitted in the order dated 28.8.2014. Mr. Ramnath Singh, Revenue Inspector, area Nasheerpur Kala, District Haridwar on 10.02.2015 had written to the Special Divisional Magistrate about the illegal mining done by Mr. Rajender Kumar. In fact his lease area is only 0.7775 hectares, but he is mining hundreds of bhigas of land. It is contended that the mining is not only damaging the environment, ecology and river hydrology but is also affecting movement of wildlife. It is also contended that the mining is being carried out in violation of the orders and respondent shall be directed not to allow any mining on river Ganga.
Respondents 2 & 3 in their reply contended that mining leases are given for a specified period and for the same, regular checks is kept on the leaseholders by the concerned Department to ensure that there is no violation of the conditions. For mining/picking (chugan) leases have been sanctioned after obtaining EC in the private land near River Ganga and tributaries at District Haridwar. For violation of the term of the leases, SEIAA has suspended the license of the leaseholders from time to time. A list showing the suspended leases by SEIAA for violation of the terms of the ECs was produced along with the reply. It is contended that even the District Collector has also suspended the licenses of the leaseholders for violation of the terms of the lease. The list of leases suspended by the District Collector was also produced along with the reply. According to the respondents, in compliance to the order of Tribunal in Original Application No. 171/2013 titled NGT Bar Association Vs. MoEF & Ors dated 5.8.2013, mining leases in the District of Haridwar have been granted only after obtaining EC. It is contended that all possible steps have been taken by the respondents to secure the environment and to protect it from illegal mining.
By order dated April 15, 2015 while issuing notice to the respondents, they were directed "to ensure that no illegal, unauthorized and unscientific mining is permitted to be carried on in the area in question and without taking EC." Notice was also issued to M/s Garhwal Mandal Vikas Nigam Ltd. through its Managing Director, as the photographs produced reveal that, the tractor trolleys belong to the Nigam.
The learned counsel appearing for the applicant, the Learned Advocate General for the State of Uttrakhand and the learned counsel appearing for the MoEF were heard.
The illegal mining as well as the unscientific mining on the river bed and in the river itself, causes unavoidable degradation on the environment and ecology. The report submitted to the Director, and MoEF by Shri M.S Negi, DCF and Dr. S.C Katiyar, Scientist
'D', reveals that illegal mining is being carried on in Haridwar as contended by the applicant. The observations of the team as disclosed in the said report reads:
i. "The proposed minor mineral sites of Dhobighat, Misserpur, Ajeetpur, Bishanpur, Sajjanpur Pilli, Raighati Aithmal and Raighati Mustkam of M/S Garhwal Mandal Vikas Nigam Ltd, Uttrakhand are located on River Ganga 2-7 km downstream from Bhimgoda Barrage. Barring some small tributaries, namely Banganga, Rawasan Nadi, Pilli Nadi, Sidh Sot and Ranipur Rao, no major stream joins River Ganga along this stretch of proposed mining sites.
ii. Chandi Reserve Forest, Ghori Reserve Forest, Siwalik Reserve Forest, Pathri Reserve Forest, Bishanpur Reserve Forest, Amost Reserve Forest and Sabagarh Reserve Forest are located close to the proposed minor mineral sites of M/s Garhwal Mandal Vikas Nigam Limited
iii. The main source of minor minerals in River Ganga is from Sivalik Hill Range that is comprised of tertiary group of rocks like boulders, pebbles, sand and clay. Due to construction of Bhim goda barrage on the upstream of the proposed minor mineral sites on River Ganga and considering the fact that no major stream meets River Ganga along the proposed mining stretch, the possibility of rolling down of boulders into the river in monsoon season to replenish the mined boulders appears unlikely. The Environment Impact Assessment and Envrionment Management Plan Report prepared by M/s Grass Roots Research and Creation India (P) Ltd., NOIDA, UP for the minor mineral proposals of M/s Garhwal Mandal Vikas Nigam Ltd. also mentions that "of the quantum of minerals which will be excavated only sand and bajri is replenishable. The extractable quantum beyond first year may depend on amount/rate of actual replenishment which is to be monitored by the expert agencies every year." Thus, as per M/s Grass Roots Research and Creation India (P) Ltd., NOIDA, UP mined boulders may not be replenished while monitoring the quantity of replenishment of the sand and bajri shall be required to be done every year, if the mining is permitted.
Considering above, it is recommended that a study by reputed National Agency be carried out to assess the type and quantity of replenishable minor minerals on proposed mining sites of M/s Garhwal Mandal Vikas Nigam Ltd. The impact of elimination/deterioration of river islands due to mining, which sometimes thrive rich biological diversity, wild animal corridors should also be a part of the study before grant of any clearance for the mining.
iv. To the utter surprise of the inspecting team, large scale illegal mining of minor minerals was noticed along the river bed of Ganga in the proposed mining sites of Bishanpur and its adjoining areas. Hundreds of tractors were found engaged in transport of the minor mineral (sand, bajri and boulders). At places, mining was being carried out close to the spurs constructed to avoid flooding. No government official of the concerned State Government was found available in the area. "
The photographs shown in the report reveal temporary settlements erected for laboures near the site for the mining activities at Bishanpur, tractor trolley carrying mined minerals and other forest produce, and even copy of a challan carried by a tractor trolley showing mined mineral by M/s Rajendera Kumar near Bishanpur.
Based on the finding, the following recommendations were made:
i. "A study by reputed National Agency needs to be carried out to assess the type and quantum of replenishable minor minerals on proposed mining sites of M/s Garhwal Mandal Vikas Nigam Ltd., Uttrakhand. The impact of elimination/deterioration of river islands due to mining, which sometimes thrive rich biological diversity, wild animal corridors should also be a part of the study before grant of any clearance for the mining.
ii. State Government, Uttrkhand should be asked to stop all illegal mining on River Ganga immediately to avoid any further adverse impact on the surrounding environment.
iii. Clearance for installation of Stone Crushing Units should be linked to grant of captive mining lease for minor minerals, so as, to avoid illegal mining in the State."
In spite of the shocking facts stated in this report and the recommendations, no action was taken either to stop the illegal mining or to remedy the environmental degradation. It is thus clear and is an undisputed fact that there has been illegal, unregulated and unscientific mining on the river bed and even in the river Ganga. Even the reply submitted by respondent no. 2 and 3 establish that there was illegal mining. They only claim that some action has been taken by the SEIAA and also by the District Collector. Though the State of Uttrakhand was directed to explain the details of the actions taken and the proposed action for preventing such illegal mining, we are sorry to note that there was no plausible explanation. We strongly deprecate the action of the responsible officers of the State of Uttrakhand. The State has a duty to preserve the environment and prevent environmental degradation. Unfortunately, it has intentionally or by negligence ignored.
The question of mining on river bed of River Ganga and its tributaries were already settled by the judgment of this court in Original Application no. 10/2015 (Indian Council for Enviro-Legal Action Vs. National Ganga River Basin Authority, NBRA & Ors.) dated 10.12.2015. The following directions were issued in relation to river bed mining in River Ganga, including Haridwar:
A. "The river bed mining shall be carried on in a highly regulated manner and under strict supervision of the authorities concerned
B. No mechanized river bed mining would be permitted. No JCBs would be permitted to operate in the river bed.
C. No suction of the minerals from the river and the river bed would be permitted by the mechanical process like suction pumps etc.
D. The regulated mining would include the seasons during which such mining is permitted and which shall be strictly adhered to."
In Original Application No. 171 OF 2013 National Green Tribunal Bar Association the Tribunal Vs. Ministry of Environment and Forest (supra) the tribunal considered the adverse effects on the environment due to the sand mining in the river bed and held:
'The legislature is supreme in its own sphere under the Constitution subject to Parliamentary limitations provided in the Constitution itself. The legislature enacted the Act of 1957 as well 29 as the Act of 1986. In furtherance to the powers conferred by the latter enactment, the Notification of 2006 came into existence. All these are statutory documents and have to be given complete and full effect to. The extraction of minor minerals, like that of major minerals, can invite rigours of environmental law. The Supreme Court in the case of Deepak Kumar (supra), while noticing that quarrying of river sand is an important economic activity in the country with river sand forming a crucial raw material for the infrastructure development and for the construction industry; excessive in stream sand and gravel mining causes degradation of rivers. It lowers the stream bottom of rivers which may lead to bank erosion. Having noticed this aspect, the Court in para 20 of this judgment observed, with regard to the report submitted before it, that the report clearly indicated, that operation of mining of minor minerals needed to be subjected to strict regulatory parameters as that of mining of major minerals. The Court even suggested at expanding the definition of 'minor minerals'. In the current times, the minor mineral extraction activity has to be regulated to ensure that no degradation of environment is caused. This squarely means that the environmental laws are to be applied with all their rigours by the authorities stated under the provisions of the Act of 1986. The provisions of the Act of 1986, and the Notification of 2006 along with the judgment of the Supreme Court, clearly mandate that all activity of mining of minerals (sand) irrespective of the area would require environmental clearance from MoEF / SEIAA prior to operating the mining activity. Section 15 of the Act of 1957, as 30 already discussed at some length, gives limited power to the State Government to frame rules for regulating grant of lease or license for quarrying of mines or minerals in respect of minor minerals. It will be difficult to give a liberal or wider meaning to the language of Section 15 of the Act of 1957 on the principle of plain interpretation. It is particularly so in face of the specific legislations on the subject of environment i.e. the Act of 1986, the Rules of 1986 and the Notification of 2006. The Union Parliament is competent to legislate and has so enacted these laws. It is only by virtue of delegated legislation under Section 15 of the Act of 1957 that the State Government can frame rules, which thus, must be construed strictly and subject to the provisions of the Section. The competence of the State legislature to regulate mining activity in terms of Entry 23 of List II is subject to the law enacted by the Parliament under entry 54 of List I. Thus, in no way can the State enact a law which would be in conflict with or would change the very course of the law laid down by the Centre. This conflict between the provisions of the amended rules of 2013 and the Notification of 2006 may lead to the very fundamental attack as to the legislative competence of the provisions.'
In the light of these directions which are applicable to the present case also, no further directions are necessary. The remaining prayer in the application which is to be considered is the action to be taken against the illegal miners and recovery of cost of damages for degradation of environment and the ecology on the basis of Polluter Pays Principle. From the records it is absolutely clear that irrespective of the laws in force, or the directions of the courts, including that of the Hon'ble Supreme Court and the directions of the Tribunal, illegal mining is being carried on in the State of Uttrakhand. The report prepared by Shri M.S Negi, DCF and Dr. S.C Katiyar, Scientist 'D' of Regional Office, Dehradun, to the MoEF by itself is sufficient to establish the violations of the directions and the extent of illegal mining. We are shocked to see the conduct of even the public authority namely M/s s Garhwal Mandal Vikas Nigam Ltd., to whom mining right was granted in respect of the mining sites at Dhobhighat, Misserpur, Ajeetpur, Bishanpur, Sajjanpur and Raighati Aithmal. The report shows that illegal mining is being carried on even in these properties also. It is thus clear that the officers who are expected to safeguard the flood area and prevent any degradation to the ecology and environment are either active participants or mute spectators to the illegal mining. Otherwise the illegal mining to such an extent could not have been possible. In such circumstances, we are constrained to appoint a committee to inspect the site and find out the extent of illegal mining and assess the loss sustained by the environment and ecology and to suggest remedial measures including realization of the loss from the persons responsible, both illegal miners and the officers who assisted the illegal mining either by their positive action or by passive inaction.
We therefore, constitute the following committee:
i. The Member Secretary of the State Pollution Control Board, Uttarakhand
ii. Senior scientist to be nominated by Wild Life Institute of India, Dehradun
iii. A representative to be nominated by the Member Secretary of the Central Pollution Control Board
iv. A senior scientist from Central Soil and Water Conservation Research and Training Institute, Kaulagarh Road, Dehradun, Uttrakhand
v. The representative to be nominated by the Secretary of Ministry of Environment and Forest Climate Change, who shall be the Chairman of the committee.
The committee shall inspect the area stated in the application and submit a report to the Tribunal within three months from the date of pronouncement of the judgment on the following aspects:
i. The extent of the illegal mining.
ii. The persons responsible for the illegal mining including identity of the Officers and the role played by them.
iii. The extent of damage caused to the environment and ecology.
iv. Remedial measures to restore the degraded environment.
v. The committee shall also suggest any modification on the conditions of environmental clearance if any granted in respect of the area.
vi. Specific measures for operation of mining leases falling in wildlife corridors.
The application is disposed of accordingly, but without any order as to cost.
M.A No. 924/2015
This is an application to exempt respondent no.5 from filing official translation and to accept the translated copy produced. Application is allowed subject to just exceptions. M.A No. 924/2015 is disposed of accordingly.
M.A No. 339/2015
The application is disposed of as the original application itself is disposed of.