Vinayak Parihar And Ors vs State Of M.P. And Ors

These three Original Applications were filed under Section 14 and enabling provisions of the NGT Act wherein the common issue of illegal sand mining in the river Narmada in M.P was brought before this Tribunal. However, the locations in the three Original Applications were different. While in O.A. No. 134/2014 the issue pertains to illegal sand mining in the river Narmada at Jabalpur, in O.A. No. 39/2015 the issue primarily pertains to illegal sand mining at various locations in district Narsingpur of M.P and in O.A. No. 114/2015 of river sand mining at Gadarwara particularly for the construction of the thermal power plant by the NTPC for which the Central Government undertaking M/s Bridge and Roof Company was the supplier of river sand after procuring the same from various suppliers who were reportedly engaged in illegal sand mining.

Since, the issue was a common one of rampant illegal river sand mining in Narmada river, these three cases were taken up together. The issue of illegal sand mining raised two fold questions. The first being that of violations of the environmental norms and guidelines for carrying out river sand mining either without environmental clearances or in violation of the environmental clearance (EC) conditions by the leaseholders. Secondly, the issue pertains to illegal sand mining without any valid mining lease mining outside lease boundary and without demarcating lease boundary on the ground and violating the EC norms. At the same time in the second category of cases the loss to the revenue is also there which may or may not be so in the first category of cases.

The O.A No. 134/2014 pertains to the issue of illegal sand mining at Jabalpur. After issuance of notices the Learned Counsel for the Applicant chose not to appear before this Tribunal. On 10.09.2014 the Collector Jabalpur submitted an affidavit that the district level task force had been constituted with the district Collector as the Chairman and the SP, the District Forest Officer, the PCB representatives in the district, the District Transport Officer and the District Mining Officer as members. The work assigned to this task force was basically of checking illegal mining activities and for this purpose carrying out periodical reviews inter alia carrying out raids etc. It was stated that during April to June 2014 several raids were conducted and 18 cases were registered. It was also stated that in one of the cases of illegal sand mining fine of an amount of Rs. 3.4234 crores was imposed by way of penalty. Having noted the proceedings of the meeting of the said task force committee held on 09.06.2014 and the work carried out by the said task force committee the allegations with regard to illegal mining as well as illegal transportation of the river sand were amply proved. Two cases of illegal stocking of the river sand were also registered. The Tribunal also noted the fact that under Rule 53 of the Madhya Pradesh Minor Mineral Rules 1996 there are provisions for punishment including imprisonment and fine. However, it was not clear as to whether any cases had in fact been registered under the said rule and hence information regarding registration of cases was sought from the Respondents. Detailed directions were given which need not be repeated at this stage as after June 2016 the Sustainable Sand Mining Management Guidelines 2016 notified by the MoEF&CC Government of India have been brought into force. We may however, add that this Tribunal while considering this issue directed the MoEF as well as the Ministry of Urban Development and Administration to take certain steps including formation of a policy and guidelines looking at the huge demand particularly in the infrastructure and housing sector for river sand. It was directed that the impact assessment of the large scale river sand mining be carried out. Among others it was directed in the order dated 10.09.2014 that alternatives to river sand particularly utilisation of fly ash in lieu of river sand and utilisation of fly ash bricks must be examined as an option. On 29.10.2014 directions were also issued for carrying out the study with regard to the availability of sand in a particular leased area as well as issues of replenishment on the basis of available data before such mining leases are granted clearances and made operational.

In the two other matters in O.A No. 39/2015 filed by Mr. Vinayak Parihar as well as O.A No. 114/2015 also filed by Mr. Vinayak Parihar of alleged illegal mining without obtaining ECs and obtaining river sand from suppliers who have been either doing illegal sand mining without proper ECs also raised similar questions. In both these cases after hearing the parties and after notices were issued the Respondents had put in their appearances. Details of the number of persons engaged in illegal mining and the steps taken by the State after the filing of these Applications for controlling the same and ensuring that mining operations are conducted in accordance with the provisions of not only the mining regulations but also in accordance with the environmental requirements of obtaining EC were given out.

In the light of the subsequent events post 2014 and 2015 specially of coming into force of the Sustainable Sand Mining Management Guidelines 2016 of MoEF which are in operation as of now this Tribunal need not go into the various aspects as what was stated by us in various interim directions has been taken note of and incorporated in the guidelines of 2016. Under the said guidelines of 2016 the entire procedure, right from identifying the lease area available to be given for river sand mining to the methodology of carrying out such mining in accordance with these guidelines has been provided.

It is pertinent to mention here that we also had the occasion to extensively examine the 2016 Guidelines in the case of Medha Patkar v. Union of India in O.A. No. 78/2015. At this stage, the detailed directions need not be reiterated as the same guidelines as given in O.A. No. 78/2015 shall be applicable to the present case as well. However, in brief, page 14 of the booklet issued by the MoEF & CC following procedure has been prescribed:

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 these 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 channels 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) Layers of sand and gravel which could be removed from the river bed shall depend on the width of the river and sand & gravel 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) Segments of braided river system should be used preferably falling within the lateral migration area of the river regime that enhances the feasibility of sediment replenishment.

h) 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 km 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.

i) Sand and gravel could be extracted from the downstream of the sand bar at river bends. Retaining the upstream one to two thirds of the bar and riparian vegetation is accepted as a method to promote channel stability.

j) Flood discharge capacity of the river could be maintained in areas where there are significant flood hazard to existing structures or infrastructure. Sand and gravel mining may be allowed to maintain the natural flow capacity based on surveyed cross- section history.

k) Alternatively, off-channel or floodplain extraction is recommended to allow rivers to replenish the quantity taken out during mining.

l) The Piedmont Zone (Bhabhar area) particularly in the Himalayan foothills, where riverbed material is mined, this sandy-gravelly track constitutes excellent conduits and holds the greater potential for ground water recharge. Mining in such areas should be preferred in locations selected away from the channel bank stretches.

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 is less.

n) The borrow area should preferably be located on the river side of the proposed embankment, because they get silted up in course of time. For low embankment less than 6 m in height, borrow area should not be selected within 25 m from the toe/heel of the embankment. In case of higher embankment the distance should not be less than 50 m. In order to obviate development of flow parallel to embankment, cross bars of width eight times the depth of borrow pits spaced 50 to 60 meters centre-to-centre should be left in the borrow pits.

o) Demarcation of mining area with pillars and geo-referencing should be done prior to start of mining.

We may also add that after the judgment of the NGT Principal Bench at New Delhi in Himmat Singh's Case it has been now made clear that irrespective of the area of the lease for carrying out river sand mining the lessee / sub-lessee has to obtain ECs. For the aforesaid purpose a management plan has to be submitted by the lessee project proponent and based upon the same the assessing authority whether at the district level or the State level or at the level of the MoEF would take all the issues into consideration including the issues regarding the availability and the replenishment of the mineral. Thus, so far as all the mining lessees are concerned they all need to carry out that task in accordance with the Sustainable Sand Mining Management Guidelines 2016 notified by the MoEF & CC. However, the main challenge is now with respect to the implementation and ensuring compliance and observation of these guidelines. As we have already stated in the opening portion of our judgment that there are two aspects firstly the aspect of carrying out the mining operations by valid lease holders complying with the requirements of obtaining the EC and carrying out the mining operations in accordance with the EC conditions. At the same time, there is the major issue of preventing illegal mining by persons neither having valid leases and / or not observing any of norms or conditions provided in the EC.

The second category of persons, therefore, are to be brought within the framework of the law as the loss to the environment is more on account of such illegal activity in addition to the loss to the revenue.

With a view to restrain such persons engaged in any illegal activity this Tribunal has from time to time issued directions that persons found engaged in illegal transportation or excavation of the mineral must be prosecuted and their equipments, vehicles and boats along with the mineral be seized. We had noticed that there was some leniency in the existing laws and regulations with regard to release of the mineral and / or the vehicle and equipment after compounding the matter. After much insistence of this Tribunal and passing orders that equipments and vehicles not to be released without referring these cases to the Tribunal and also amending the laws and bringing into place the provisions of confiscation in the State of M.P the relevant provisions have been amended and Rule 53 now enables the State Government and its officials to confiscate not only the mineral but also the equipment / vehicle / boats that may be used for carrying out mining operations or transportation of the mineral. While, all these provision have been brought about, after dealing with these cases for nearly two years which include the framing of the guidelines by the Government of India and amendment of the various laws pertaining to the mining mineral at the level of the State Government, the major task now is ensuring the compliance of the 2016 guidelines issued by the MoEF & CC Government of India as well as the laws framed by the State Government.

We may add that while the guidelines framed by the MoEF take care of environmental friendly river sand mining the steps taken by the State of M.P with regard to checking of illegal mining and its transportation and stocking must also be implemented with equal rigor. Implementation of the MoEF & CC guidelines 2016 is not only the responsibility of the State Mining Department but also that of the PCBs. We may add that in every district there are only one mining officer and two inspectors and the area under their jurisdiction runs into hundreds of kilometres. In that view of the matter in case the State actually wants to carry out the task under the guidelines and its amended provisions of law to protect the environment it has to strengthen the mining department and for this purpose the State must give adequate protections to its mining and forest officials who have to otherwise face the wrath and violations from persons engaged in illegal mining operations and its transportation and stocking. There are innumerable cases where persons engaged in the duty of checking the illegal mining and transportation have suffered physical harm and there have even been cases of murder. As such the first requirement for the State to undertake is to give protection to the Mining Department and Forest Department staff and officials of the PCB who go for periodical inspections.

In the State of M.P., the system of issuance of e-challans is being introduced for every vehicle carrying mineral in place of manual paper chits (Transit passes). With the introduction of the Electronic Transit Pass (ETP) and the requirement of the vehicles to have a GPS, we are of the view that the issue of illegal mining and transportation of the mineral would be controlled to a large extent. At the same time the amendment to Rule 53 carried out on 18.05.2017 making the provisions more stringent and including confiscation of the vehicle and the mineral along with imposition of penalty in our opinion should act as a deterrent. In this case in so far as the above is concerned the mining officials would need to impress upon the courts for insisting upon the confiscation and justifying their action on the ground of protection of the environment which is not only a fundamental duty of every citizen under Article 51A(g) of the constitution but also the endeavour of the State of framing a policy under the directives principles under part (IV) as contained in Article 48A of the Constitution of India. With that object in mind the concerned law official of the State must also keep themselves abreast with the latest development and emergence of laws pertaining to the protection of the environment so as to assist the courts in this behalf.

We have been informed that these provisions brought into force by the MoEF & CC and the amendments in the State Laws, the River Sand Mining Policy 2015 of the State of M.P. would be fully operational with effect from 01.10.2017. We hope and expect that the State in the meanwhile, would take all necessary steps which are necessary for the same.

Having said so we are also conscious of the various measures that the State intends to take and the same are as follows:

To implement the Sand Mining Guidelines 2016 in its entirety across the state including e-auction/ e-tendering of the sand mines. No mining shall be allowed unless the successful bidder obtains the necessary environmental clearances and the mining plan has been duly approved. Demarcation of the possible sand mining lease areas shall also be carried out. Periodical and frequent inspections would be a must

In cases of default, including unauthorized extraction or illegal transportation or stocking action must be taken against the responsible persons under Rule 53 of the Madhya Pradesh Minor Minerals Rules, 1996, as amended on 18th May 2017. The state must ensure that no mineral that has been seized by the concerned authorities shall be discharged unless the penalty under Rule 53 is paid. The entire stock of forfeited minerals, if any, shall be disposed of according to the manner provided under the State Sand Mining Guidelines 2015. Quarterly return of cases registered vehicles and equipment and quantity of mineral seized amount recovered after confiscation shall be filed district wise before the Tribunal by District Collectors.

No vehicle without a GPS and an Electronic Transit Pass shall be permitted to transport sand and in cases of default, any such transportation shall amount to illegal mining and subject to liability under Rule 53 of the Madhya Pradesh Minor Mineral Rules 1996.

To Map and Geo-tag all the rivers that are subject to sand mining. The Geo-tagging must also include all the tributaries, braided streams of those rivers, the deposit areas of the extracted sand. It shall be ensured that sufficient measures are taken to keep a check on the mining activity especially during night. Flood lights shall be installed and for surveillance purpose motor boats shall be deputed for patrolling.

To establish geo-fenced sand depots according to the proposed Sand Marketing system and setting up e-trading portals. The portals must provide information including availability, dispatch of sand, registration of vehicles and traders.

Efforts must be made to earmark the routes for transportation of sand from the mine to the sand depots.

Along these routes, weight bridges and barriers with control rooms must be established so as to check any over-loading and illegal transportation. The control rooms must be equipped with all the information especially with respect to the information of the vehicles involved in the transportation of sand. Any deviation from the route should be considered as a violation and attract provisions of Rule 53 of the 1996 Rules.

The practice of giving mining lease based on the average of past three years mining must be given up. This is unscientific and unsustainable. It has to be made mandatory to keep a safe distance between the river banks to the lease boundary. Under no circumstances mining in the middle of river should not be permitted as it affects the flow of the river which ultimately affects the aquatic life.

Based upon the above after having GPS system in place it would be easy to identify any vehicle not having GPS and movement of vehicles in river beds or lease areas or whether it is within the leased area or proceeding for transportation of the mineral or any equipment engaged in the mining operations which may include boats etc. which are commonly used by unauthorised and illegal miners and action initiated under Rule 53.

The above measures required to be taken up and are only a sample of what the elaborate provisions contained in the policy framed by the State and the Centre. This must be given utmost priority. All offenders must be made to suffer economically and recovered amount used for restoration of the environment

While, we have already stated that confiscation of the mineral and recovery of the proceeds by the State including imposition of penalty must be strict. The recovery of the amount should be kept in a separate account and the said amount be utilised for restoration of the environment wherever required including with priority along the river banks. We have had the occasion to deal with the issue of illegal mining and in such cases we have already directed SEIAA as  well as DEIAA to quantify in consultation with the PCB officials the loss caused to the environment and suggest restoration measures. While, we are aware of the fact that no clear guidelines are available for quantification of the aforesaid amount regarding loss caused to the environment, however, we would direct both the MoEF as well as the State Government to lay down the guidelines in this behalf. As an interim measure MPSEIAA is directed to frame guidelines and issue the same to all district authorities. In the light of the decision contained in T.N Godavarman Vs. Union of India [Supreme Court Judgment dtd. September 26'2005 in IA No. 826 in Writ Petition (Civil) 202 of 1995] case of the Hon'ble Supreme Court on consideration similar to determining the NPV (Net Present Value) coupled with the cost of the mineral as well as the cost that is likely to be incurred for restoration of the area as well as the loss caused to the bio-diversity and the aquatic life. At the same time, the loss to be quantified caused to the environment must also in our opinion should be severe so as to act as a deterrent so as to prevent and make illegal operations uneconomical. Both the MoEF & CC as well as the State authorities in the light of the decision of the Hon'ble Supreme Court in Vellore Citizens Welfare Forum (AIR 1996 SC 2715) case consider creation of an agency like the assessment of Loss to Ecology (Prevention and Payment of Compensation) Authority in this case particularly for determining the aforesaid loss in respect of ecologically affected areas and considerations.

In addition to the above, we have also found that in the name of rivers sand mining river banks are being mined for the mineral which brings the river banks into total erosion. With a view to protect these river banks both from erosion as well as from illegal mining, we direct that a comprehensive programme of afforestation on the river banks be carried out.

We further direct that in accordance with the notification issued by the MoEF on fly ash utilisation as well as the Sustainable River Sand Mining Management Guidelines 2016 or real estate developers and building organisations and of government construction contracts must mandatorily carry clauses for compulsory utilisation of alternate resources of fixed minimum percentage of their material requirement for utilisation of fly ash, fly ash bricks and stone dust in lieu of river sand. The Urban Development Department, the local authorities and the T&CP Department as well as the PCB & SEIAA must have specific conditions in this behalf while granting the consents / permissions. Such developers or builders or construction agencies must also be directed to furnish details by way of supporting documents to show what quantity in terms of percentage of alternate material they are utilising in the construction process which is already a requirement under both the river sand mining guidelines as well as under the fly ash utilisation notification issued by the MoEF. Thus, on the principle of reduction in the utilisation of the resources such as river sand as also re-use of the waste material such as fly ash and stone crusher dust which are the components among the two Rs. out of three under environmental jurisprudence must be ensured.

The other directions which have been issued from time to time in our interim orders shall nonetheless operate.

The three Original Applications accordingly stand disposed of with all pending M.As. The action taken shall be reported to the Tribunal on 3rd October, 2017. The matter may be listed for showing compliance on 3rd October, 2017.