Disposed

Sandeep Kumar Singh v. State of Uttar Pradesh

NGT8 Sept 2021IA No. 7/2021 in Original Application No. 208/2019

Case brief

AI extract

What is this about?

The tribunal disposed of an IA filed by the State of UP seeking to modify an order mandating a replenishment study for mining. The court found no justification for the State delegating this statutory duty to the District level and directed SEIAA to conduct the study. Another execution application regarding illegal mining was listed for further consideration.

What did the court decide?

I.A. No. 07/2021 stands disposed of; direction to SEIAA to perform statutory duty of conducting replenishment study immediately; Execution Application listed for further consideration.

Sandeep Kumar Singh vs State of Uttar Pradesh — Constitutional and Fundamental Rights | NGT (2021)

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Item Nos. 02 to 05

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(Court No. 1)

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

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(By Video Conferencing)

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(I.A. No. 07/2021) in

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Original Application No. 208/2019

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Sandeep Kumar Singh Applicant Versus State of UP & Ors. Respondent

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WITH

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Original Application No. 299/2020 (I.A. No. 01/2021 & I.A. No. 02/2021)

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Surendra Singh Applicant Versus

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Ministry of Environment, Forests & Climate Change & Ors. Respondent(s) WITH Original Application No. 193/2020 (I.A. No. 297/2020 & I.A. No. 298/2020)

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Avinash Kumar Ray Applicant Versus Ministry of Environment, Forest & Climate Change & Ors. Respondent(s)

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WITH

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Execution Application No. 02/2021 IN O. A. No. 193/2020 (I.A. No. 20/2021) Avinash Kumar Ray Applicant Versus

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Ministry of Environment, Forest &

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Climate Change & Ors.

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Respondent(s)

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Date of hearing: 08.09.2021

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CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER HON’BLE DR. NAGIN NANDA, EXPERT MEMBER

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Applicant: Mr. Rohit Kumar Singh, Advocate in O.A. No. 299/2020 Mr. Atmaram N.S. Nadkarni, Senior Advocate with Ms. Pallavi Pratap, Advocate in O.A. No. 193/2020 & E.A. No. 02/2021

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Respondent: Mr. Amil Tiwari, Advocate for SEIAA, UP Mr. Pradeep Misra and Mr. Daleep Dhyani, Advocates for UPPCB

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ORDER

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By this order, we proceed to deal with IA 7/2021 filed by the State of UP and EA 2/2021 filed by the applicant in OA 193/2020.

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I.A. No. 07/2021

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This application has been filed on behalf of the State of UP in pending OA for modification of order dated 18.09.2020 passed by this Tribunal requiring the State to take steps to ascertain carrying capacity i.e. replenishment potential of the area before permitting mining, as per details mentioned in the said order to which reference will be made in later part of this order. Instead of complying with the direction, long after passing of the order, the State has come up with the present application showing unwilling to take ownership of such responsibility and proposing to delegate the same to outside agencies, without any valid reason. We have heard learned Counsel for the applicant.

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We may now refer to the order dated 18.09.2020 which is sought to be modified. The issue considered by this Tribunal is permissibility of mining activities without study of sustainability of an area for mining so as to determine the extent of mining which may be permissible. In continuation of earlier orders in the matter, the Tribunal held that

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replenishment potential must be assessed before permitting mining instead of going merely by claim of the Project Proponent about the replenishment potential. Even earlier, the State proposed to delegate such study to District level officer but the Tribunal did not approve the same and directed that such study should be conducted by SEIAA itself, along with SEAC, as the said body was entrusted the statutory functions of conducting impact assessment. This mandate flows from judgments of the Hon’ble Supreme Court inter-alia in M.C. Mehta vs UOI, (2004) 12 SCC 118, Deepak Kumar v. State of Haryana & Ors., (2012) 4 SCC 629, Samaj Parivartan Samudaya & Ors. v. State of Karnataka & Ors. (2013) 8 SCC 154, (2017) 5 SCC 434 Goa Foundation v. Union of India & Ors. (2014) 6 SCC 590, State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, and Common Cause v. Union of India & Ors. (2017) 9 SCC 499 and in the judgment of this Tribunal dated 13.09.2018 in O .A. No. 186/2016, Satender Pandey vs. MoEF&CC . The matter has also been examined recently by this Tribunal vide order dated 26.02.2021 in O.A. No. 360/2015, National Green Tribunal Bar Association v. Virender Singh (State of Gujarat) and other connected matters . The Tribunal directed that without replenishment studies mining may not be allowed. The Tribunal referred to the Notification dated 25.07.2018 issued by the MoEF&CC, under Section 3(2)(v) of the EP Act, 1986 r equiring preparation of District Survey Report (DSR) containing replenishment study, environment management plan and other safeguards with a view to consider the environment impact of mining. This requirement also flows from the judgements of the Hon’ble Supreme Court referred to above. The Tribunal also referred to the recommendations of the Oversight Committee for the State of UP constituted by it to look into certain environmental aspects, recommending that replenishment studies must

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be conducted before grant of mining lease. The Tribunal accordingly directed:

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“Enforcement of Monitoring Mechanism and review by the Chief Secretary at State level and Secretary MoEF&CC at National level

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27. We direct all the States/UTs to strictly follow the SSMG2016 read with E MGSM-2020 reinforced by mechanism for preparation of DSRs (in terms of directions of this Tribunal dated 14.10.2020 in Pawan Kumar, supra and 04.11.2020 in Rupesh Pethe, supra), Environment Management Plans, replenishment studies, mine closure plans, grant of EC (in terms of direction dated 13.09.2018 in Satendra Pandey, supra), assessment and recovery of compensation (as per discussion in Para 25), seizure and release of vehicles involved in illegal mining (in terms of order dated 19.02.2020 in Mushtakeem, supra), other safeguards against violations, grievance redressal, accountability of the designated officers and periodical review at higher levels. As already noted, EMGSM-2020 contemplates extensive use of digital technology, including remote sensing.

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28. We further direct that periodic inspection be conducted by a five-members Committee, headed and coordinated by the SEIAA and comprising CPCB (wherever it has regional office), State PCB and two expert members of SEAC dealing with the subject. Where CPCB regional office is not available, if MoEF&CC regional office is available, its Regional Officer will be included in the Committee. Where neither CPCB nor MoEF&CC regional office exists, Chairman, SEIAA will tie up with the nearest institution of repute such as IIT to nominate an expert for being included in the Committee. Such inspection must be conducted at least thrice for each lease i.e. after expiry of 25% the lease period, then after 50% of the period and finally six months before expiry of the lease period for midway correction and assessment of damage, if any. The reports of such inspections be acted upon and placed on website of the SEIAA. Every lessee, undertaking mining, must have an environment professional to facilitate sustainable mining in terms of the mining plan and environmental norms. This be overseen by the SEIAA. Environment Departments may also develop an appropriate mobile App for receiving and redressing the grievances against the sand mining, including connivance of the authorities and also a mechanism to fix accountability of the concerned officers. Recommendations of the Oversight Committee for the State of UP quoted earlier may be duly taken into account.

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The mechanism must provide for review at the level of the Chief Secretary at least once in every quarter, in a meeting with all concerned Departments in the State. The Chief Secretary UP may ensure further action in the light of the report of the Oversight Committee.

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Similarly, at National level, such review needs to be conducted atleast once in a year by the Secretary, Environment in coordination with the Secretaries Mining and Jalshakti Ministries the CPCB.

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Publication of Annual Reports

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29. We further direct all the States/UTs to publish their annual reports on the subject and such annual reports may be furnished to MoEF&CC by 30th April every year giving status till 31^st March. First such report as on 31.03.2022 may be filed with the MoEF&CC by all the States/UTs on or before 30.04.2022. The report may also be simultaneously posted on the website of the Environment Department of the States/UTs. Based on such reports, MoEF&CC may consider supplementing its Guidelines from time to time. The MoEF&CC may prepare a consolidated report considering the reports from the States/UTs and publish its own report on the subject, preferably by 31^st May every year.

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Interaction at National Level

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30. We direct the Secretary MoEF&CC to convene a meeting in coordination with the CPCB and Mining and Jalshakti Ministries of Central Government and such other experts/individuals at National level and representatives of States within three months for inter-action on the subject which may be followed by such meetings being convened by the Chief Secretaries in all States in next three months. Holding of such meetings will provide clarity on enforcement strategies and help protection of environment.

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All the applications are disposed of. Individual issues may be gone into in accordance with the mechanism to be involved as above.”

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We note that the order dated 18.09.2020 was passed about one year back. It was expected that such study will be conducted within reasonable time by statutory authority taking responsibility but we regret to note that it has not happened. It is difficult to accept that such failure is bona fides. It may be noted that apart from the last order, the Tribunal has been passing such orders since 15.01.2020 as shown by reference to the said order which is reproduced below:-

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“2. The matter was considered by this Tribunal on 15.01.2020 in the light of report dated 07.01.2020 filed by the SEIAA, U.P. The Tribunal observed:

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“ 3. We find that the report does not mention any study of sustainability of the area for the extent of mining

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which is being allowed or proposed which is necessary in view of ‘Precautionary’ as well as ‘Sustainable Development’ principles inherent in the process of granting EC/CTE/CTO. A part of such study is the replenishment potential which has also not been mentioned in the report.

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4. Let the relevant data showing compliance of the above parameters be furnished before the next date by email at [email protected].”

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3. The matter was last considered on 19.03.2020 in the light of the report filed by the State PCB on 04.02.2020 the Tribunal observed:-

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“ 3. A ccordingly, a further report has been filed on 04.02.2020 by the U.P State PCB mentioning the procedure adopted for grant of E.C for ‘B1’ category projects. The procedure involves EIA study with reference to the ToR. Such study is undertaken by the project proponent and thereafter the same is appraised by the State Level Expert Appraisal Committee for grant of EC.

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4. W e find that in the above process, study is limited to the impact of an individual project. It is desirable that such study is preceded by macro assessment of the area in terms of replenishment and carrying capacity for sustaining mines. Based on such steps, in grant of mining leases and clearance of EC should be undertaken for different parcels of the area. With reference to mining leases already granted, such study may now be undertaken within two months. If it becomes necessary to modify the existing leases, the State may take necessary steps, to give effect to the sustainable development and environmental law . ”

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4. Accordingly, further report has been filed on 11.08.2020 by SEIAA, UP inter-alia stating as follows:-

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“ 3. I n compliance to the direction of Hon'ble NGT the State Environment Impact Assessment Authority, UP (SEIAA, UP) has reviewed the matter in the 386th Meeting held on 14.07.2020 wherein, SEIAA noted that as per the sub rule of 23(4) of the UP Minor Minerals (Concession)( Forty Seventh Amendment) Rules 2019 a technical committee at District level has been constituted under the Chairmanship of District Magistrate, for replenishment and carrying capacity of the lease areas in the district by Geology and Mining Department UP and a letter has been issued by Mining Department UP in this regard vide letter no. 22/2020/1955/86-2019-57(Sa)/2017 dated 30.08.2019. Hence, decided to issue the directions to the District Magistrate, Banda, under Section 5 of Environment Protection Act 1986, and EIA Notification SO 637E dated 28.02.2014 for ensuring strict compliance of the orders of Hon'ble NGT dated 19-03-2020.”

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5. The above report shows that there is non compliance of the direction as the task has been assigned to the Technical Committee at the District level which does not comprise of experts. The micro assessment of the area is required to be done with the involvement of experts.

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6. Accordingly, such study may be conducted by the SEIAA itself along with SEAC. The State authorities may also ensure that no mining is allowed without statutory consent under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.This Tribunal has already dealt with this vide order dated 13.09.2018 in O.A. No. 186/2016, Satendra Pandey v. MoEF&CC and it has been held that consistent with the directions of the Hon’ble Supreme Court, the issue has to be dealt with by SEIAA and SEAC .”

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In view of settled law that to give effect to ‘Precautionary’ and ‘Sustainable Development’ principles, replenishment potential must be assessed, we see no justification for SEIAA along with SEAC undertaking such study based on the available data, with the assistance of any other Expert/Institution. What is required is that the ownership of study must be taken by the statutory body. The effort appears to be otherwise to disown such responsibility which cannot be appreciated. SEIAA, UP along with SEAC may perform its statutory duty to comply with directions of this Tribunal at the earliest.

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I.A. No. 07/2021 stands disposed of accordingly.

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Execution Application No. 02/2021 in O.A. No. 193/2020, Avinash Kumar Ray v. Ministry of Environment, Forest & Climate Change & Ors.

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Learned Counsel for some of the applicants submitted that because of inaction of the State, illegal mining is continuing. Reference has been made to the averments in Execution Application No. 02/2021 in O.A. No. 193/2020, Avinash Kumar Ray v. Ministry of Environment, Forest & Climate Change & Ors. stating as follows:

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“9. That despite the admitted position in the case of the lease area granted in favour of the Respondent No.6, the area is in the midst of the bifurcated stream of the river Ken and there is no access to the lease area except by making a bridge over the river, and that the mineral quantity is not available, yet the Respondent No.6 has been permitted to undertake mining activities. The applicant has already filed the satellite data of 7^th June 2020 showing that the lease area is submerged in water (Annexure No. A-9 Pg186) yet the Respondent Nos. 3 and 4 have not taken any action for stoppage of mining or for re-evaluation of area, as directed by this Hon’ble Tribunal vide order dated 19.03.2020 .

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10. That the applicant states that the SEIAA is already seized with the matter of re-evaluation as is evident from the 383^r d minutes of meeting 07.07.2020 (Annexure No.10-A Pg No....) at serial no.13, but the instead of carrying out the reevaluation, SEIAA has shifted the burden upon the District Magistrate, Banda (who has wrongly prepared the DSR) to re-assess the quantity of mineral and replenishment of area, thus failing to carry out the its duty as directed by this Hon’ble Tribunal, time and again.

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11. That this Hon’ble Tribunal vide its orders dated 19.03.2020 and 18.09.2020 passed in OA No.208 of 2019 had directed that the reevaluation of the leases be carried out and if required the operational leases be modified in respect of quantity of mineral, however despite the specific direction of this Hon’ble Tribunal for last more than 9 months the reevaluation has not been done and SEIAA is shifting the burden on the District Administration as is evident from the earlier affidavit and now the State of Uttar Pradesh has even omitted the proviso of Rule 23 (4) of the Uttar Pradesh Minor Minerals (Concession) Rules, as 1963 vide its amendment dated 06.11.2020 thereby removing the exercise of reassessment of mineral after each monsoon season, thereby removing the scope of reassessment of quantity of mineral in the lease area, which is necessary as no replenishment study has been done by the State of Uttar Pradesh prior or after preparation of the District Survey Report . True translated copy of the amendment dated 06.11.2020 is attached herewith and marked as Annexure A-3.

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12. That from the aforesaid it is amply clear that the State of Uttar Pradesh and the SEIAA are deliberately delaying the implementation of the orders passed by this Hon’ble Tribunal.

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13. That it is submitted that the lease holder would have to indulge in illegal mining, as the SEIAA has not carried out the exercise of re-assessment of the quantity of mineral, thus giving the liberty to the lessee to

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commence mining operations and exploit the areas surrounding the lease area and damage the environment.

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14. That the applicant has also learnt that the lease holder has already been charged with illegal mining vide notice dated 19.06.2020 prior to the commencement of the monsoon season . True copy of the show cause notice dated 19.06.2020 issued for illegal mining to the Respondent No.6 is filed herewith as Annexure No. A-4 .

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15. That despite the aforesaid the Consent to Operate has been issued in favour of the lease holder by the U.P. Pollution Control Board in a mechanical manner, thus permitting further illegal mining.

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16. That looking into the facts of the case, the illegal mining activity of the Respondent No.6 should be stopped forthwith so that the Respondent No. 6 may not cause further environmental damage.

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17. That as such the applicant by means of present application is praying for execution of orders dated 19.03.2020 and 18.09.2020 passed by this hon’ble tribunal in O.A. No. 208 of 2019 and to direct an immediate closure of the illegal and unauthorized mining activity being carried out Respondent No. 6 in respect of River Bed of Ken River in (Gata No-Part of 1141, 1137, 1136, 1132/2, 1125, 1127, 1131 and 1132 located at Village Bhurendi, Khand No.2 Block No. 08, TehsilBanda, District- Banda, Uttar Pradesh spread over an Area of 37.00 ha, Annual Production-7,40,000 cum based on unscientific District Survey Report (in short, D.S.R) which is the foundation on which illegal mining activity has been carried out which is contrary to the Environmental norms and the competent authority has systematically tried to give a legal color to the illegal mining by bypassing the environmental obligation.

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18. That the applicant has a bonafide and prima facie case as unauthorized mining is being carried out till date by the Respondent No.6 in the area mentioned above which is in total violation of orders dated 19.03.2020 and 18.09.2020 in O.A. No. 208 of 2019.”

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We have considered the application. The applicants may serve a copy of the application to the concerned authorities/parties who may look into the matter and file their respective response, apart from taking such action as may be found necessary, as per law.

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The matter may now be listed for further consideration on 10.11.2021.

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A copy of this order be forwarded to the SEIAA, UP, UP State PCB, Secretaries of Mining, Forest, Irrigation, UP and Revenue Departments, UP and all District Magistrates of UP. The Member Secretary, SEIAA, UP may provide a copy of this order to the Chairman and Members of SEAC, UP.

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Adarsh Kumar Goel, CP

Sudhir Agarwal, JM

Brijesh Sethi, JM

Dr. Nagin Nanda, EM

September 08, 2021 Original Application No. 208/2019 (I.A. No. 07/2021) and other connected matters SN

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Sandeep Kumar Singh v. State of Uttar Pradesh

Case brief

What is this about?

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Sandeep Kumar Singh v. State of Uttar Pradesh

Case brief

What is this about?

What did the court decide?

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