Disposed

Prabhat Mohan Pandey S/O Shri Mohan Pandey v. State of Madhya Pradesh through District Collector

NGT16 Dec 2021Original Application No. 6/2021

Case brief

AI extract

What is this about?

The NGT disposed of an application challenging sand mining in Panna district. The court noted a joint committee report found no illegal mining as all quarries had statutory permissions, including for private land. The application was finally disposed of without specific directions in this order.

What the court decided

AI extract

Prabhat Mohan Pandey S/O Shri Mohan Pandey vs State of… — Mining and Natural Resources | NGT (2021)

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Item No. 3

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BEFORE THE NATIONAL GREEN TRIBUNAL CENTRAL ZONE BENCH, BHOPAL (Through Video Conferencing)

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Original Application No. 06/2021(CZ)

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Prabhat Mohan Pandey Applicant(s)

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Versus

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State of Madhya Pradesh & Ors. Respondent(s)

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Date of hearing: 16.12.2021

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CORAM: HON’BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER HON’BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER

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For Aplicant(s): Mr. Rohit Sharma, Adv. For Respondent(s) : Mr. Sachin K. Verma, Adv. Ms. Parul Bhadoria, Adv.

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ORDER

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The issue raised in the present application is mining in district Panna, Madhya Pradesh in violation of Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019. It is alleged that tender was granted for the mining for excavation of 27 numbers of Sand quarries in the district of Panna, Madhya Pradesh having following anomalies: i. Some of the Sand quarries are not mentioned in the Tender documents but despite of that EC has been given over the same and the contractor is carrying out mining activities over the same.

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ii. No District Survey Report has been prepared before starting the operations of the sand quarries in the District of Panna.

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iii. The scientific annual replenishment study which is mandatory as per the MOEF Guidelines as well as various judgments of the Hon'ble Apex Court and NGT has not been conducted by the Non-Applicant officials before starting the excavation of sand.

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iv. No response to the complaints filed by Applicant from the nonapplicant officials, which establishes the fact that various anomalies have been done as a result of which the Environmental loss is occurring tremendously on daily basis and the environmental norms are being violated at the threshold.

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The above highlighted issues have resulted in degradation of the environment as the river stretch of River Ken in the area in question is despoiled because of unauthorised and illegal mining of sand which is against environmental norms.

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Another issue that is raised in the present matter is regarding the sand mining excavation going over private lands belonging to farmers and the contractor is entering into agreement with the farmers stating specifically that the contractors shall be excavating sand from the private lands of these farmers.

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The matter was taken up on 13.04.2021 and a committee was constituted as

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follows :

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District Collector, Panna or Representative and

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Madhya Pradesh Pollution Control Board/representative and direct them to submit a factual and action taken report within 4 weeks.

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The report may be submitted in the matter by e-mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.

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In compliance thereof, the joint committee has submitted the report which is as follows :

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fcUnq Ø-1 esa mYysf[kr gS fd lacaf/kr Bsdsnkj dks 27 jsr [knkuksa dh Lohd`fr nh xbZ FkhA tcfd lacaf/kr Bsdsnkj }kjk iznku dh xbZ [knkuksa ds vfrfjDr LFkku ls jsr mR[kuu fd;k tk jgk gSA tks fd jsr fu;e 2019 dk Li"V mYya?ku gSA ftlds laca/k esa fuEufyf[kr fcUnqvksa ij tkap fjiksVZ pkgh xbZ gSA

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1- dqN jsr [knkuksa dk mYys[k Vs.Mj esa ugha gSA tcfd Bsdsnkj }kjk tkap

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mR[kuu dk;Z fd;k tk jgk gSA ogka dh i;kZoj.kh; ,u-vks-lh- Hkh izkIr ugha gSA

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2- ftyk Lrj ij Mh,lvkj ¼ftyk losZ{k.k fjiksVZ½ & [knku 'kq: djus ds

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iwoZ ugha rS;kj dh xbZ gSA

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3- MoEF ¼i;kZoj.k ,oa ou ea=ky; Hkkjr ljdkj½ dh xkbZM ykbZu ds vuqlkj fjIysfulesUV Iyku Hkh rs;kj ugha fd;k x;k gS tksfd [kuu dk;Z ds igys okafNr FkkA ekuuh; U;k;ky; NGT dh eq[; ihB }kjk iwoZ esa blds laca/k esa vkns'k tkjh fd;k tk pqdk gSA ftldk ikyu ugha djk;k tk jgk gSA

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4- lacaf/kr f'kdk;drkZ }kjk dh xbZ f'kdk;r ds ckotwn Hkh dksbZ izR;qRrj

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ugha fn;k tkrk gSA u gh dk;Zokgh dh xbZ gSA vr% mijksDr nf'kZr leL;kvksa ds ifj.kke Lo:i i;kZoj.k {kfr gks jgh gS tSl fd dsu unh ds fdukjs voS/k jsr [kuu ds dkj.k u"V gks jgs gSA

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fcUnq Ø- 2 esa mYys[k gS fd orZeku esa lacaf/kr Bsdsnkj }kjk futh Hkw&Lokfe;ksa dh Hkwfe ls jsr dk mR[kuu lacaf/kr fdlkuksa ls lk/kkj.k vuqca/k ds vk/kkj ij fd;k tk jgk gSA ftldh dksbZ i;kZoj.k ,u0vks0lh0 ugha yh xbZ gSA

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fcUnq Ø- 3 esa ekuuh; U;k;ky; }kjk ikfjr vkns'k esa funsZf'kr fd;k x;k gS fd] e/;izns'k iznw"k.k fu;a=.k cksMZ ,oa ftyk dysDVj@dysDVj ds izfrfuf/k }kjk fu/kkZfjr le; ij rF;kRed ,oa dk;Zokgh fjiksVZ izLrqr dh tk;saA

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mijksDr fcUnq Ø- 1] 2] 3 esa mYysf[kr eqn~nksa ij ekuuh; U;k;ky; }kjk ikfjr vkns'k ds ikyu esa pkgh xbZ rF;kRed ,oa dk;Zokgh fjiksVZ fcUnqokj fuEukfyf[kr gSA

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1- e/;izns'k ds iUuk ftys esa mPpre cksyhdrkZ Jh jlehr eYgks=k ds uke ls 27 jsr [knkuksa dks Lohd`r fd;k x;k FkkA ftldk lapkyu i;kZoj.k vuqefr ,oa iznw"k.k fu;a=.k cksMZ dh vuqefr izkIr djus ds mijkUr gh fd;k tkuk izLrkfor FkkA lacaf/kr Bsdsnkj }kjk orZeku esa 10 jsr [knkuksa ds vfrfjDr vU;= fdlh LFkku ij fdlh izdkj dk mR[kuu gksuk ugha ik;k gSA Bsdsnkj }kjk lapkfyr jsr [knkuksa dh lwph layXu gSA ih&1

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2- i;kZoj.k ou ,oa tyok;q ifjorZu ea=ky; Hkkjr ljdkj ds uksfVfQds'ku uEcj S.0141(E)New Delhi 15-01-2016 ds vuqlkj lHkh ftyks ds fy;s ftyk losZ{k.kfjiksZV cukuk vfuok;Z fd;k x;k FkkA mDr vkns'k ds ikyu esa ftyk iUuk dh ftyk losZ{K.k fjiksVZ 16 ekpZ 2016 dks lapkyuky; Hkksiky }kjk rS;kj dh x;h gSA tks fd layXu gSA ih&2

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3- MoEF ¼i;kZoj.k ,oa ou ea=ky; Hkkjr ljdkj½ dh xkbZM ykbZu ds vuqlkj fjIysfulesaV Iyku Hkh rS;kj fd;s tkus gsrq funsZf'kr fd;k x;k FkkA vr% mDr ds laca/k esa ys[k gS fd leLr lapkfr [knkuksa ds ekbfuax Iyku esa vuqeksfnr fd;s x;s gSaA tks fd layXu gSA ih&3

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4- vkosnd }kjk dh f'kdk;r ds iwoZ ls gh [kfut foHkkx }kjk le;≤ ij [kfut jsr ds voS/k mR[kuu] voS/k ifjogu rFkk voS/k Hk.Mkj.k ds izdj.k ntZ fd;s tkrs jgs gSA ftlds vUrxZr vkt fnukad rd jsr ds voS/k ifjogu ds 140 izdj.k] voS/ku mR[kuu ds 12 izdj.k rFkk voS/k Hk.Mkj.k 13 izdj.k ntZ fd;s x;s gSA blds lkFk gh foHkkx }kjk le; le; ij l?ku tkap vfHk;ku pykdj fu;fer :i ls voS/k mR[kuudrkZ] HkaMkj.kdrkZ ,oa ifjogudrkZ ij lDr dk;Zokgh dh tkrh gSA ih&4

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5- jsr fu;e 2019 ds varxZr futh Hkwfe;ksa ij Bsdsnkj }kjk mR[kuu gsrq izko/kku fd;s x;s gS ftlds rgr loZizFke futh Hkwfe;ksa ,oa jsr Bsdsnkj ds ek/;e vkilh lgefr ls vuqca/k fd;k tkrk gSA rRi'pkr oS/kkfud vuqefr;ka tSls ekbfuax Iyku] i;kZoj.k vuqefr ¼fl;k½ ,oa iznw"k.k fu;a=.k cksMZ ls tyok;q lEefr ¼lh-Vh-vks-½ izkIr djus ds mijkUr gh fd;k tkrk gSA BSdsnkj }kjk lHkh fu;eksa dk ikyu djrs gq;s gh Hkw&Lokfe;ksa dh vkilh lgefr ls mR[kuu dk;Z fd;k x;kA ftldh lwph layXu gSA ih&5

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The Joint committee has also attached Annexure-1 with regard to the units, who have been granted authority the Water (Prevention and Control of Pollution) Act, 1974 The Air (Prevention and Control of Pollution) Act, 1981

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& iznw"k.k fu;a=.k cksMZ ls izkIr lEefr dk fooj.k &

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|Ø-|jsr [knku dk uke@irk|ty ,oa ok;q vf/k- ds rgr~
iznRr lEefr dh oS|rk| |---|---|---| |1-|chjk jsr [knku xzke chjk rg- vt;x<+ ftyk
iUuk]jdck 1-05gsDVs-|31-10-2021| |2-|Hkkuiqj jsr [knku xzke Hkkuiqj rg- vt;x<+]
ftyk&iUuk]jdck 1-00gsDVs-|30-11-2021| |3-|pankSjk jsr [knku xzke& pankSjk rg- vt;x<+
ftyk& iUuk jdck 1-00gsDVS-|31-10-2021| |4-|ftxuh jsr [knku xzke& ftxuh rg- vt;x<+
ftyk& iUuk jdck 1-00gsDVS-|30-11-2021| |5-|jeubZ jsr [knku xzke& jeubZ rg- vt;x<+
ftyk& iUuk jdck 2-760gsDVS-|31-102021|

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6-	ftxuh jsr [knku xzke& ftxuh rg- vt;x<+ ftyk& iUuk jdck 3-075gsDVS-	15-03-2022
7-	jeubZ jsr [knku xzke& jeubZ rg- vt;x<+ ftyk& iUuk jdck 2-00gsDVS-	15-03-2022
8-	dVZjk jsr [knku xzke& dVZjk rg- vt;x<+ ftyk& iUuk jdck 2-69gsDVS-	15-03-2022
9-	eksgkuk jsr [knku xzke& eksgkuk rg- vt;x<+ ftyk& iUuk jdck 1-00gsDVS-	31-03-2022
10-	chjk jsr [knku xzke& chjk rg- vt;x<+ ftyk& iUuk [k-u-a01]jdck 6-00gsDVS-	31-03-2022

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The respondents no. 1 & 2 have filed the reply as follows :

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“ 4. It is also observed in the report that as a highest successful bidder in the auction total 27 sand quarry leases were sanctioned, out of 27 sanctioned sand quarry leases l0 sand quarry leases are actually found operational after obtaining prior Environmental Clearance from SEIAA and valid consent to operate from MPPCB and sand quarry leases, anywhere or any type of excavation u:as not found except these t0 sand quarry leases at the time of inspection.

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5. By issuance of notification of MoEF & CC dated 15.01.2016, it has become mandatory for each and every district to prepare the District Survey Report, hence in compliance to the same the report for Panna District was prepared by the Directorate of Geology and Mines, Madhya Pradesh Bhopal on 16.03.2016. The Project Proponent/Contractor was also duly instructed to comply with the guidelines framed by the MoEF &CC regarding the submission of replenishment and mining plan in view of the same the replenishment and mining plan were submitted by Project Proponent/Contractor which were duly approved by the competent Authority .

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6. The District Mining Branch has initiated drive against illegal mining and has registered 140 cases of illegal transportation, 12 cases of illegal mining and 13 cases of illegal storage and further the District Mining Branch all is specially keeping vigilant eye upon types of illegal sand mining activities.

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7 . As provided within the purview of rule 12 of the Sand Mining Rules 2019 the proponent/Contractor of the nearest group, on the basis consent from private land owners may obtain license for excavation of additional quantity of sand

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from private land thus, the Proponent/Group contractor of Panna District has executed agreements with mutual consent of private land owners.

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8. The approval of Mining plan, prior Environmental Clearance and valid Air/Water Consent are obtained by the Proponent/Contractor, therefore the Proponent/Contractor only after obtaining all the statutory permissions required under the rules of 2019 has proceed to carry out the mining activities on private lands.

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9. The Joint Committee has concluded in its factual cum Action Taken Report that committee during the spot inspection and has not found any mining activity at the subjective site and has also prepared the report, Panchanma and photographs along with G.P,S, reading. The relevant extract of factual cum Action Taken Report is marked and enclosed herewith as ANNEXURE-R1/1.”

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Learned counsel for the Madhya Pradesh State Environment Impact Assessment Authority (MPSEIAA) has argued that SEIAA is the authority constituted by the Central Government in exercise of the powers conferred by sub-section (3) of section 3 of the Environmental Protection Act 1986 and in pursuance of the Government of India Notification S.O. 1533 (E) dated 14^th September, 2006 to recommend and decide the applications filed by the project proponents for obtaining Environmental Clearance for their projects and that in the present application pertains to the mining in district Panna, Madhya Pradesh in violation of Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019. It is alleged that tender was granted for the mining for excavation of 27 numbers of Sand quarries in the district of Panna, Madhya Pradesh having various anomalies.

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It is further argued that NIT was floated for a total number of 27 Sand quarries in district Panna, and out of which Environmental Clearance was granted to a 11 Sand Quarries. That EC was also granted to 6 Sand Quarries which were mentioned in NIT, but was approved by the competent authority.

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Para 11 of the notification deals with the Transferability of Environmental Clearance (EC) and it read as under:

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“Transferability of Environmental Clearance (EC):

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A prior environmental clearance granted for a specific project or activity to an applicant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferor, or by the transferee with a written “no objection” by the transferor, to, and by the regulatory authority concerned, on the same terms and conditions under which the prior environmental clearance was initially granted, and for the same validity period. No reference to the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned is necessary in such cases.”

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And in cases pertaining to transfer of ECs the production capacity mentioned in the EC transferred by MPSEIAA and also the approved Mining Plan with replenishment plan, in compliance with the provisions laid down under aforementioned Para 11 of EIA Notification, 2006.

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It is further argued that Rule 12 (4) of the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019 as under: -

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Rule 12 (4) Permissible Quantity – The mining shall be permitted upto mineable quantity fixed in the mining plan, environmental clearance, water and air consent (whichever is less).

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This rule gives further clarity in the matter as the documents required to be relied upon for determining the permissible quantity are mining plan, EC and Air/Water consent. The tender document is not relevant document as per the Rule 12(4) while determining the permissible mineable quantity.

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The contention of the Learned counsel for the SEIAA is that MPSEIAA has considered the quantity of sand mentioned in the approved mining plan and replenishment Plan approved by the Competent Authority and not the Notice Inviting Tender (NIT), so there may be mismatch in the production capacity in the issued/transferred with the quantity of sand mentioned in the NIT. Here it is noteworthy that although the Production Capacity mentioned in the EC letter may be different from the quantity of sand mentioned in NIT, this does not stimulate illegal or additional excavation of sand and that the ECs granted to

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the sand quarries are on the basis of Lease granted by the District Collector/Mining Department and the mining plan approved by the competent department. Then further the case is put up before the State Environment Assessment Committee (SEAC), on whose recommendation EC is granted by MPSIEAA to the concerned sand quarry.

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It is further argued that in the present instance the same procedure has been duly followed by MPSEIAA, and the NIT is not the relevant document under Rule 12 (4) of the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019 as already established above. Hence due process of law was complied with while granting ECs to the 6 sand quarries not mentioned in the NIT and in all the fresh applications for EC appraised by MPSEIAA has the supporting documents including District Survey Report (DSR) as mandatory document in compliance of MoEF & CC Notification dated 15.01.2016 and Office Memorandum of MPSEIAA dated 14.10.2021. Also, no fresh applications for obtaining EC have been appraised by SEIAA without considering the DSR of Panna which was approved by the competent authority.

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Respondent No. 4 has submitted the reply and argued that the application is not maintainable under section 15 of the NGT Act, 2010. The applicant has filed the present petition claiming violation of provisions of Madhya Pradesh Sand (Mining Transportation and Storage of Trading) Rules, 2019 which are not prepared and enacted under any of the legislations specified in schedule-I of the NGT Act, 2010. It is further submitted that answering Respondent no. 4 has carried out the work of sand mining within district Panna after following the due procedure established by law. No illegality, whatsoever, has been committed in the process of sand mining by the answering Respondent. The fact of valid sand mining being done by the answering Respondent is recorded by the Joint Committee consisting Dist. Collector Panna and Regional Officer of MPPCB in their Inspection Report dated 24.06.2021. It is further submitted that:

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“ 10. That the contract for excavation of sand within district Panna was awarded to the Non-applicant no. 4. Since the Non-applicant no.

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4 has become the group contractor for the home district of Panna therefore the Non-applicant no. 4 is entitled to do sand mining in Panna after following the due procedure established by law, and nobody else. The Applicant has tried to mislead the Hon'ble Tribunal by misrepresenting that the six sand quarries mentioned in Annexure A-3 were not part of NIT therefore the same are illegal. The truth is that the said six quarries are not situated on the government land therefore they do not find place in the list of 27 sand quarries.

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11. That, the said six sand quarries mentioned in Annexure A-3 are khodu bharu khadan which are not situated on river banks and are situated on private land. The sand mining activity upon these lands have been carried out only after complying with the complete procedure, as established in law. The compliance of all the formalities before operating these sand quarries has been recorded in the Inspection Report dated 24.06.2021 prepared by the Joint Committee of Dist Collector and Regional Officer MPPCB. Rule 17 of Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019 permits excavation of additional quantity of sand on private land by valid contractor of any group. Thus statutory rules permit excavation of sand on private land after obtaining necessary permissions.

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12. The minutes of meeting dated 03.03.2020 are clear enough to show that the environment clearance has been granted for open cast manual method upon an area of only 2.00 hectares, and not upon 7 hectares. Similarly, the area upon which the environment clearance has been granted by SEIAA at village Beera is lesser than the alleged area of mining in the tender, which is not at all illegal, as it is the prerogative of the project proponent that upon how much area of the sanctioned lease he want to do the mining. The Joint Inspection Committee has in its Inspection Report dated 24.06.2021 has recorded the fact that no illegal mining or excavation has been done by the project proponent.

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14. That, the contents of para 3.9 of the O.A. are denied for want of knowledge, as the Non-applicant no. 4 is not privy to the said facts. It is again submitted at the cost of repetition, and that no illegal sand mining has been done by the Non-applicant no. 4, which is verified by the Joint Inspection Committee of Dist. Collector Panna and Regional Officer, MPPCB. The Hon'ble Tribunal vide order dated 13.04.2021 constituted a Joint Committee consisting Dist. Collector Panna and representative of MPPCB for submitting their factual and action taken report The Joint Committee so constituted has completed its physical inspection on 24.06.2021 and has submitted its detailed report

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wherein it is found that no illegal sand mining has been done by the Non-applicant no. 4.”

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It is further argued that the Applicant has made false, frivolous, vague and bald allegations that District Survey Report and Annual Replenishment Study has not been conducted by the Non-applicants. The Joint Inspection Committee has produced before this Hon'ble Tribunal a copy of District Survey Report as well as Annual Replenishment Study prepared for sand mining at district Panna. The factual cum inspection report dated 24.06.2021 prepared by the Joint Inspection Committee has submitted the fact that District Survey Report and Annual Replenishment Study have been conducted and no illegality has been committed in the same. It shall not be out of place to submit that no sand mining has been done without preparation of District Survey Report and Annual Replenishment Study.

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It is further argued that neither the Non-applicant no. 4, has engaged in illegal sand mining nor involved into illegal sand transportation. The Nonapplicant no. 4 has neither caused any damage, loss to the environment nor has caused any loss of revenue to the Government. The Non-applicant no. 4 has entered into a couple of contracts for excavation of sand from khodu bharu khadaan private situated over private land.

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The said khodu bharu khadaan have been duly declared as mine by the competent authority and all the necessary statutory permissions have been granted by the competent authorities before excavation of sand from the said quarry. The factual cum inspection report dated 24.06.2021 prepared by the Joint Inspection Committee has recorded the fact that the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019, permits sand excavation from private land, after obtaining all the statutory permissions. The said report dated 24.06.2021 further recorded the fact that the Non-applicant no. 4 contractor has complied with all the rules before excavating sand from the private land. Rule 17 of Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019 permits excavation of additional quantity of sand on private land by valid contractor of any group.

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Thus statutory rules permit excavation of sand on private land after obtaining necessary permissions. Hence no illegal sand mining has been done by the Non-applicant no. 4.

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It is argued that factual cum inspection report dated 24.06.2021 categorically records the fact that excavation of sand from private land is permitted under the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019. The said report dated 24.06.2021 further records the fact that the Non-applicant no. 4 contractor has done excavation of sand from private land after complying with all these statutory rules. Rule 17 of Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019 permits excavation of additional quantity of sand on private land by valid contractor of any group. Thus statutory rules permit excavation of sand on private land after obtaining necessary permissions.

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Learned Counsel for the State Pollution Control Board has argued that District Collector, Panna and the representative of MPPCB visited the site and submitted the report and since State PCB has not been arrayed in the list of the parties thus there is no allegation against the answering respondent i.e. State Pollution Control Board. It is further argued that the orders have been issued by the Competent Authorities in view of the sand mining rules and there are no violation of compliance of the rule. Learned Counsel appearing for the state and MPPCB further argued that the matter of illegal sand mining has been finally dealt with by the Principal Bench in O.A. No. 360/2015 titled as National Green Tribunal Bar Association vs. Virendra Singh & Ors . and issue against the vehicles involved in the illegal mining has been dealt with providing the regime of environmental compensation in the following words. The relevant paras are quoted as extracted below :

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Seizure and Release of vehicles involved in illegal mining

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“8.Another issue bearing on the enforcement mechanism is the action against the vehicles used in illegal sand mining. Seizure of such vehicles is required and release of seized vehicles lightly defeats the purpose of the

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coercive measures. Since the vehicles are in a way weapon of offence, the same cannot be dealt with in the manner disputed property is dealt with under section 451 Cr.PC. by releasing the same in favour of the ostensible owner by taking an entrustment/indemnity bond/sapurdginama. In Sujit Kumar Rana, (2004) 4 SCC 129 and order dated 26.03.2019 in Cr. A. 524/2019, State of Madhya Pradesh v. Uday Singh, it was held that special procedure for seizure and release of such vehicles prevails over the procedure under Section 451 Cr.P.C. This Tribunal earlier directed, in the case of illegal mining in Meghalaya that such vehicles should be released only on the payment of 50% of the showroom value. The same was affirmed by the Hon’ble Supreme Court in 2019 (8) SCC 177. Similar order was passed by the Tribunal on 05.04.2019 and dated 26.07.2019 in O.A. No. 670/2018, Atul Chouhan v. State of U.P., which stands affirmed by the Hon’ble Supreme Court vide order dated 07.05.2019 in C.A. No. 1590/2019. Thus, the procedure under Cr.P.C. for release of vehicles on superdari without stringent conditions would not apply in respect of action taken for enforcement of Sustainable Guidelines issued under the Environment (Protection) Act, 1986 (EP Act) and for enforcement of orders of this Tribunal under Section 15 of the National Green Tribunal Act, 2010 (NGT Act). However, having regard to the difficulty expressed by the State that requirement to pay 50% of the showroom value of the vehicle was resulting in vehicles not being released at all, the earlier order was modified on 19.02.2020 to the effect that following scale of amount be recovered for release of the seized vehicles:-

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*Sr.* *No.*	*Category of Vehicle*	*Penalty* *Amount*
1	Vehicles/Equipments/Excavators with showroomvalue more than Rs. 25 lacs and less than 5 yearsold.	Rs. 4 lacs
2	Vehicles/Equipments/Excavators withshowroom value more than Rs. 25 lacs and more than 5 yearsbut less than 10 years old.	Rs. 3 lacs

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3 For the remaining Vehicles older than 10 Rs. 2 lacs years/Equipments/ Excavators which are otherwise legally permissible to be operated and not covered by Serial No. 1 and 2.

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Note – I: On repetition of the offence by the same vehicle/ equipment, Order dated 05.04.2019 will be applicable.

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Note – II: The option of release may be available for a period of one month from the date of seizure and thereafter, the vehicles may be confiscated and auctioned.

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Following further directions were issued :-

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“6. The State may issue an appropriate Office Order/Rule to the above effect and publish the same. Needless to say that any private contract between a financer and a debtor cannot affect the States’ sovereign power to protect the environment and take incidental coercive measure for enforcement of rule of law. Lien of the State will override any private interest. The above compensation regime will be over and above any existing Rules or provisions. The amount collected may be remitted to the State PCBs/PCCs for being utilized for restoration of the environment.

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7 . The above course of action will be permissible to all the States at their option.”

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Scale of compensation for violations on Polluter Pays Principle

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10. Vide order dated 17.08.2020, the Tribunal considered the CPCB report dated 30.01.2020, in pursuance of earlier orders on scale of compensation to be recovered for violation of norms for mining on polluter pays principle and the matter was deferred for further consideration of such scale and further orders in the light of the EMGSM 2020. On the issue of scale of compensation for violations, the Tribunal held that the same has to be calculated having regard to the polluter pays principle and not mere loss of royalty. This requires taking into account value of the illegally mined material and cost of restoration of the environment. CPCB did the exercise by constituting an expert Committee. The Tribunal considered the report as follows:-

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“8. The Committee considered two approaches:

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(I) Approach 1: Direct Compensation based on the market value of extraction, adjusted for ecological damages.

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(II) Approach 2: Computing a Simplified NPV for ecological damages.

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9. In the first approach, the criteria adopted is:

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Exceedance Factor (EF).

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Risk Factor (RF).

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Deterrence Factor (DF).

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10. Approach 1 is demonstrated by Table 1 as follows:

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“

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		*Table No. 01*	*: Approach 1*
*Permitted* *Quantity* *(in MT or* m³)	*Total* *Extract* *ion (in* *MTor* m³)	*Excess* *Extraction* *(in MT or* m³)	*Exceedance* in *Extraction* :	*Compensation* *Charge(in Rs.)*
X	Y	Z = Y-X	Z/ X	D (1+RF + DF)* Where D = Z x Market Value-of- the-material-per-MT-or-m³
				DF = 0.3 if Z/X = 0.11 to 0.40 DF = 0.6 if Z/X = 0.41 to 0.70 DF = 1 if Z/X >= 0.71
				RF = 0.25, 0.50. 0.75, 1.00 (as per table 2)”

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11. Approach 2 is demonstrated by following formula:

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“Till such time as data and information for a comprehensive NPV is worked out in a site specific manner to account for all (or atleast the major) ecological damages, a simplified NPV, proxied on the market value of the illegally extracted amount may be computed. In this case the NPV approach would imply that the total benefits from the activity of sand mining (as represented by the market value of the extracted amount) be deducted from the total ecological costs imposed by the activity. In the absence of data on benefits and costs separately, we recommend a modification of the formula as shown below:

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Total Benefits(B) = Market Value of illegal extraction : D (refer Table 1)

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Total Ecological Costs = Market Value Adjusted for risk factor: D^✱ RF (refer Table1).

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For present purposes, it is assumed that the Benefits would accrue only in the first year (in which the extraction of the illegally mined material takes place), while the ecological costs would continue to be felt over a period of time. NPV is to be calculated for a period of 5 years on the net value, Σ ( C-B) , at a discount rate ranging from 8 %5% , varying in inverse with the risk factor. Thus, where the highest risk factor (say 1) is applicable, the discount rate applicable would be the lowest (say 5% in this case).”

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12. Final recommendation is as follows:

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“Thus, it is recommended that the annual net present value (NPV) of the amount arrived at after taking the difference between the costs and the benefits through the use of the above approach, maybe calculated for a period of 5 years at a discount rate of 5% for mining which is in a severe ecological damage risk zone. The rationale for levying this NPV is based on expert opinion that reversal and/or restoration of the ecological damages is usually not possible within a short period of time and rarely is it feasible to achieve 100% restoration, even if the sand deposition in the river basin is restored through flooding in subsequent years. The negative externalities of the mining activity are therefore to be accounted for in this manner. Ideally, the worth of all such damages, including costs of those which can be restored should be charged. However, till data on site-specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorization charged. However, till data on sitespecific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorisation is

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unavailable or pending calculation, the following Discount Rates may be considered:

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*Severity*	Mild	_Moderate _	Significant	Sever e
*Risk Level*	1	2	3	” 4
*Risk* *Factor*	0.2 5	0.50	0.75	1.0
*Discount*	8%	7%	6%	5%

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11. Annexure-A appended to the report gives the calculation as follows:

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“Compensation Charge (Scenario II - explicit accounting of

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NPV) Market Value of Illegally Mined Material (D)5000400 = 2000000/- Annual Value of Foregone Ecological ValuesDRF = 2000000/-

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Present Value of Foregone Ecological Values (@ 5% discount rate and over 5 years)

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PV =

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= Rs. 86,58,953/-  Net Present Value (after netting out market value of illegally mined material) - i.e., Total Compensation to be levied

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= NPV=PV-D

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= Rs. 66,58,953/-

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Compensation Charge in above case:

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*Approach 1* *(no explicit accounting of NPV)*	*Approach 2* *(explicit accounting of NPV)*
_D(1+RF+DF)_*	” *@ 5% discount rate and over 5years*
Rs. 46,00,000/-	Rs. 66,58,953/-

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12. The Tribunal directed undertaking of scenario analysis, as suggested on behalf of the applicant and to furnish a further report accordingly. Further report dated 12.10.2020 has been filed by the CPCB reiterating its earlier report. We propose to approve approach-2 in the report. Apart from the above, a report dated

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15.01.2021 has been filed by the Oversight Committee for the State of UP to which reference will be made later.”

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The procedure for DSR and EC has also been dealt with in para 13 to 17 which are as follows :

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Procedure for DSR/EC

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“13.Vide order dated 14.10.2020 in O.A. No. 40/2020, Pawan Kumar v. State of Bihar & Ors., the issue of preparation of District Survey Report (DSR) by Experts was considered. The DSR is crucial as it contains Environment Management plan, including the replenishment study and other safeguards and is the basis to consider the environment impact of mining based on which decision to grant the Environmental Clearance is taken. The Tribunal held that for such crucial exercise, the Experts should be out of those accredited by the National Accreditation Board of Education and Training/ Quality Control Council of India (NABT/QCCI) in terms of O.M. of MoEF&CC dated 16.03.2010. Verification by the District Magistrate and evaluation by the SEAC was also necessary. Accordingly, following directions were issued in relation to a matter arising from the State of Bihar:-

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“(ii) As the DEIAA is not functioning as a consequence of the decision of the Tribunal in Satendra Pandey (supra), the DSR shall be prepared through a consultant(s) accredited by the National Accreditation Board of Education and Training/ Quality Control Council of India in terms of O.M. of MoEF&CC dated 16.03.2010.

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(iii) The DSR so prepared shall be submitted to the District Magistrate who shall verify the DSR only in respect of the relevant facts pertaining to the physical and geographical features of the district which shall be distinct from the scientific findings based on the parameters prescribed in the SSMMG2016. After such verification, the District Magistrate shall forward the DSR for examination and evaluation by the State Expert Appraisal Committee (SEAC) having regarding to the fact that the SEIAA comprises of technical/scientific experts. The SEAC after appraisal of the report shall forward

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it to the SEIAA for consideration and approval if it meets all scientific/technical requirements.

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(iv) While preparing the DSR, the MoEF&CC Accredited Agency/Consultant shall scrupulously follow the procedure and the parameters laid down under the SSMMG-2016 and EMGSM- 2020 read in sync with each other .”

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“ 14 . Considering the above, vide order dated 04.11.2020 in O.A. No. 726 of 2018, Rupesh Pethe v. State of M.P. & Ors., the Tribunal directed that the above direction ought to be followed pan India, as follows:-

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“5. The above direction may be followed by the State of MP also for the sake of uniformity. Further information required to be furnished is about the extent of illegal mining, extent of action taken, including the compensation recovered, vehicles seized and other coercive measures and impact of such action. The State of M.P. may compile relevant directions on the subject including the binding order of any Courts or Tribunal. This exercise may be undertaken jointly by the Secretary Geology and Mining, Member Secretary State PCB and Member Secretary SEIAA. In light of above, the State may further revise its policy and exercise. Let further compliance status be furnished before the next date by e-mail at judicial- [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.

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6. We are of the view that the above directions need to be followed by all other States where the issue of mining is relevant.

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7. A copy of this order be forwarded to the Chief Secretaries of all the States and UTs by e-mail for compliance.”

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Adverse impact of unscientific/unregulated Sand Mining

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“15.It is undisputed that there is huge degradation of environment on account of unregulated sand mining remains which is

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otherwise lucrative activity. It poses threat to biodiversity, could destroy riverine vegetation, cause erosion, pollute water sources, badly affecting riparian ecology, damaging ecosystem of rivers, safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the riverbeds, affects fish breeding and migration, spell disaster for the conservation bird species, increase saline water in the rivers. It has direct impact on the physical habitat characteristics of the rivers such as bed elevation, substrate composition and stability, in-stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Increase in demand of sand has placed immense pressure in the supply of sand resource and mining activities were going on illegally as well as legally without requisite restrictions. Lack of proper planning and sand management disturbs marine ecosystem and upset the ability of natural marine processes to replenish the sand. The Hon’ble Supreme Court (in Dipak Kumar, supra) noted that core group was constituted by the MoEF&CC to examine the impact of minor minerals on riverbeds and ground waters. A draft report was prepared recommending mandatory preparation of mining plan on the pattern of mining plans for major minerals. Further recommendations are reclamation and rehabilitation of abandoned mines, proportion of hydro geo-logical balance for minerals below ground water table limiting depth of mining to 3 meter and identification on locations where mining should be permitted was required. There is need for identifying safety zones in the proximity of intendments. Thus, strict regulatory parameters were required for regulating mining of minor minerals. It was noted that in-stream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the stream bed causes deepening of rivers which may result in destruction of aquatic and riparian

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habitats. It has impact on stream’s physical habitat characteristics.”

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16. In State (NCT of Delhi) v. Sanjay, (2014)

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9 SCC 772, at page 790,it was observed :

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“32. The policy and object of the Mines and Minerals Act and Rules have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature. The Court cannot lose sight of the fact that adverse and destructive environmental impact of sand mining has been discussed in the UNEP Global Environmental Alert Service Report. As per the contents of the Report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in India, it was stated that sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our country.

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33. The mining of aggregates in rivers has led to severe damage to rivers, including pollution and changes in levels of pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year

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from Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 cm a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion.

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34. The Report also dealt with the astonishing impact of sand mining on the economy. It states that tourism may be affected through beach erosion. Fishing, both traditional and commercial, can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls

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and structures for water supply.

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35. Sand is often removed from beaches to build hotels, roads and other tourismrelated infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors— beaches themselves . Mining from, within or near a riverbed has a direct impact

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on the stream’s physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, instream roughness of the bed, flow velocity, discharge capacity, sediment transportation 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 instream biota and riparian habitats. This disturbance may also cause changes in channel configuration and flow paths

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….. Today, demand for sand and gravel continues to increase . Mining operators, instead of working in conjunction with cognizant resource agencies to ensure that sand mining is conducted in a responsible manner, are engaged in full-time profiteering. Excessive instream sand and gravel mining from riverbeds and like resources causes the degradation of rivers. In-stream mining lowers the stream bottom, which leads to bank erosion. Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river

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mouths and coastal inlets. It also leads to saline water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in-stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in- stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the stream-bed and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction of sand from riverbeds may also cause the entire stream-bed to degrade to the depth of excavation.”

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Need for regulation under the Water, Air and EP Acts apart from Mining law

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“17. Again, in Goa Foundation, supra (prs 74-76) it was observed that mining was required to be regulated not only by the Mining department but also by the PCBs under the Water and Air Act and by the MoEF under the EP Act. It is made clear that the environment laws override other laws and any provision to the contrary in the Mines Act will not stay in the way of enforcing the environment norms. In this regard reference may also be made to report of the Ministry of Mines entitled “Sand Mining Framework” which will not stand in the way of

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modified mechanism in accordance with this

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order.”

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In the case of NGT Bar Association vs. Virendra Sing (Supra) the compliance of the Enforcement and Monitoring Guidelines for Sand Mining, 2020 are discussed as follows :

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“18. We may note the salient features of the EMGSM2020, which are supplemental to existing SSMG-2016 and seek to provide effective enforcement and monitoring from the stage of identification of source to its dispatch and end use which requires involvement of all stakeholders viz. Central Government, State Government, Leaseholders/Mine Owners, Distributors, Dealers, Transporters and Consumers (bulk & retail) .

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EMGSM refer to the judgment of the Hon’ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors. (2012) 4 SCC 629 making EC mandatory irrespective of the area of mining lease, followed by monitoring in terms of the Environment Management Plan, using IT and IT enabled services. Monitoring has to be with reference to quantity of mined material, transportation with a view to promote environmental protection, limit negative physiological, hydrogeological and social impacts underpinning sustainable economic growth. Observations in the order of this Tribunal dated 04.09.2018 in O.A. 173/2018 in Sudarsan Das vs. State of West Bengal & Ors. has also been referred to as follows:

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“There can be no two views that an effective institutional monitoring mechanism is required not only at the stage when Environmental Clearance is granted but also at subsequent stages”.

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“The guidelines focus on the preparation of District Survey Report and the Management Plan” …

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We are of the view that all the safeguards which are suggested in sustainable sand mining guidelines as well as notification dated 15.01.2016 ought to be scrupulously followed.” … It is a known fact that in spite of the abovesuggested guidelines being in existence, on the

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ground level, illegal mining is still going on. The existing mechanism has not been successful and effective in remedying the situation.” …

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Since there is an utter failure in the current monitoring mechanism followed by the State Boards, SEIAAs and DEIAAs, it is required to be revised for effective monitoring of sand and gravel mining and a dedicated monitoring mechanism be set up.”

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Further reference has been made to the directions in the order dated 05.04.2019 requiring the 17 States, which were party before the Tribunal viz. West Bengal, Gujarat, Karnataka, Maharashtra, Punjab, Uttar Pradesh, Haryana, Madhya Pradesh, Andhra Pradesh, Bihar, Uttarakhand, Jammu and Kashmir, Goa, Kerala, Telangana and Tamil Nadu and Himachal Pradesh, to follow the revised Guidelines and to review their respective monitoring mechanism. It is then stated that with the object of regulating the mining, the sources of sand and steps required are mentioned which provide for District Survey Report (DSR), Mining Plan, replenishment study, consideration of environment impact while granting EC, laying down conditions for EC, monitoring of transportation to the end user to ensure that only legally mined material is transported. There is need to balance between deposition and extraction of sand as per replenishment study, maintaining surveillance, using Unmanned Artificial Vehicles (UAVs)/Drone for reserves estimation, quantity estimation, land use monitoring. Details about all these aspects have been mentioned in the said Guidelines. With regard to post EC monitoring, there is a provision for environment audit, monitoring of sale and purchase by developing online portal and laying down the levels of monitoring i.e. Level 1- Reach/ Stockyard level monitoring, Level 2 - Transportation monitoring, Level 3 - End consumer monitoring/ bulk consumer, Level 4 – Indirect monitoring.

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Reference has then been made to the HighPowered Committee incorporating safeguards to be adopted by the project proponents. There is also provision for assessment of compensation for the ecological damage by the State/ PCB/ any other Authority. Inter District and Inter State boundaries are separately dealt with. The uniform monitoring mechanism stipulates:

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“ 9.4. Monitoring Mechanism

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xxx………………………….xxx…………………..xx

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1. All precaution shall be taken to ensure that the water stream flows unhindered and process of Natural river meandering doesn’t get affected due to mining activity.

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2. River mining from outside shall not affect rivers, no mining shall be permitted in an area up to a width of 100 meters from the active edge of embankments or distance prescribed by the Irrigation department.

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3. The mining from the area outside river bed shall be permitted subject to the condition that a safety margin of two meters (2 m) shall be maintained above the groundwater table while undertaking mining and no mining operation shall be permissible below this level unless specific permission is obtained from the Competent Authority. Further, the mining should not exceed nine-meter (9 m) at any point in time.

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4. Survey shall be carried out for identifying the stretches having habitation of freshwater turtles or turtle nesting zones. Similarly, stretches shall be identified for other species of significant importance to the river ecosystem. Such stretch with adequate buffer distance shall be declared as no-mining zone and no mining shall be permitted. The regulatory authority as defined for granting Environmental Clearance, while considering the application of issuance of ToR and/or EC for the adjacent block (to

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non- mining zone) of mining shall take due precaution and impose requisite conditions to safeguard the interest of such species of importance.

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5. District administration shall provide detailed information on its website about the sand mines in its district for public information, with an objective to extend all information in public domain so that the citizens are aware of the mining activities and can also report to the district administration on any deviation observed. Appropriate feedback and its redressal mechanism shall also be made operational. The details shall include, but not limited to, lease area, geo- coordinates of lease area and mineable area, transport routes, permitted capacity, regulatory conditions for operation including mining, environmental and social commitments etc.

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6. A website needs to be maintain to track the movement of centralised sand mining and a Centralised server system should be made to manage the data related to sand mining across India.

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7. The mineral concession holders shall maintain electronic weighbridges at the appropriate location identified by the district mining officer, in order to ensure that all mined minerals from that particular mine are accounted for before the material is dispatched from the mine. The weighing bridge shall have the provision of CCTV camera and all dispatch from the mine shall be accounted for.

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8. The mineral movement shall be monitored and controlled through the use of transit permit with security features like printing on IBA approved MICR papers, Unique bar/QR, fugitive ink background, invisible ink mark, void pantographs and watermarks papers or through use of RFID tagged transit permits and IT /IT-enabled services. Such monitoring system shall be created and made operationalised by State

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Mining department and district level mining officer shall be responsible for ensuring that all legal and operational mines are connected and providing the requisite information on the system. Regular check and associated report shall be submitted to DLTF and uploaded on the website.

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9. State Government shall constitute a District Level Task Force (DLTF) under the Chairmanship of Deputy Commissioner/District Magistrate/Collector with Superintendents of Police and other related senior functionaries (District Forest Officer, District transport officer, Regional officer- SPCBs, Senior Officer of Irrigation Department, District Mining Officer) with one/two independent member nominated by the Commissioner concerned. The independent member shall be retired government officials/teacher or exserviceman or ex-judiciary member.

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The DLTF shall keep regular watch over the mining activities and movement of minerals in the district. The DLTF shall have its regular meeting, preferably every month to reconcile the information from the mining activity, and other observations made during the month and take appropriate corrective and remedial action, which may include a recommendation for revoking mining lease or environmental clearance. The DLTF may constitute an independent committee of the expert to assess the environmental or ecological damage caused due to illegal mining and recommend recovery of environmental compensation from the miner's concern. The recommendation may also include action under the provision of E(P) Act, 1986.

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10. The area not identified for mining due to restriction or otherwise are also to be monitored on a regular basis by the DLTF. Any observations of mining activity from the restricted area shall be reported and corrective measures shall be initiated on an urgent basis

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by the DLTF.

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11. The dispatch routes shall be defined in the Environmental Clearance and shall be avoided through densely habituated area and the increase in the number of vehicle movement on the road shall be in agreement with the IRC guidelines / carrying capacity of the road. The alternate and dedicated route shall be explored and preferred for movement of mining to avoid inconvenience to the local habitat. The mining production capacity, by volume/weight, shall be governed by total permissible dispatch calculated based on the carrying capacity of dispatch link roads and accordingly, the production should be regulated.

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12. The movement of minerals shall be reconciled with the data collected from the mines and various Naka/check posts. Other measures may also include a general survey of the potential mineable area in the district which has not been leased/auctioned or permitted for mining due to regulatory or other reasons.

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13. The location and number of check post requirement shall be reviewed by DLTF on a regular basis so that appropriate changes in location/number could be made as per the requirement. Such review shall be carried out on a regular basis for the district on inter-state boundary or district providing multiple passages between two districts of different states.

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14. The district administration shall compile the information from their district of the permitted and legal mined out minerals and other details and share such information and intelligence with the officials of the adjoining district (Inter or/and Intra State) for reconciliation. The information shall include the area of operation, permissible quantity, mined out minerals (production) the permitted route etc., and other observations, especially where the mine lease boundary is congruent with the district boundary. Such coordination meeting shall be held on a quarterly basis, alternatively in two district headquarters or any other site in two districts decided mutually by the District Magistrate.

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15. The mining department shall include submission of an annual environmental audit report as one of the conditions in the mining lease agreement. The annual audit for each river bed mining lease shall be carried out and the audit report shall be uploaded on the website of district administration. The audit shall be carried out by an independent team of 3 members nominated by District Collector/Magistrate/Commissioner comprising of ExServiceman, Ex-Government officials of repute, Professor or Person having experience of mining/environment. The guidelines and method of the audit shall reflect adequately the monitorable parameters and output and reflect the compliance status with respect to the conditions imposed by the regulatory authorities including conditions of Environmental clearance.

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16. The in-situ and ex-situ environmental mitigative measures stipulated as EMP, CER, CSR and other environmental and safety conditions in mines including the welfare of labours shall properly reflect in the audit report.

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9.5 Suggestive additional requirements are

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i. The requirement at the Mine Lease Site:

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a. Small Size Plot (Up to 5 hectares): Android Based Smart Phone.

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b. Large Size Plots (More than 5 hectares): CCTV camera, Personal Computer (PC), Internet Connection, Power Back up.

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c. Access control of mine lease site.

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d. Arrangement for weight or approximation of the weight of mined out mineral on the basis of the volume of the trailer of vehicle used.

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ii. Scanning of Transport Permit or Receipt and Uploading on Server:

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a. Website: Scanning of receipt on mining site can be done through barcode scanner and computer using the software;

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b. Android Application: Scanning on mining site can be done using Android Application using a smartphone. It will require internet availability on SIM card;

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c. SMS: Transport Permit or Receipt shall be uploaded on the server even by sending SMS through mobile. Once Transport Permit or Receipt get uploaded, a unique invoice code gets generated with its validity period.

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iii. Proposed working of the system:

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The State Mining Department should print the Transport Permit or Receipt with security features and issue them to the mining leaseholder through the District Collector. Once these Transport Permits or Receipts are issued, they would be uploaded on the server against that mine lease area. Each receipt should be preferable with pre-fixed quantity, so the total quantity gets determined for the receipts issued. When the Transport Permit or Receipt barcode gets scanned and invoice is generated, that particular barcode gets used and its validity time is recorded on the server. So all the details of transporting of mined out material can be captured on the server and the Transport Permit or Receipt cannot be reused.

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iv. Checking On Route :

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The staff deployed for the purpose of checking of vehicles carrying mined mineral should be in a position to check the validity of Transport Permit or Receipt by scanning them using the website, Android Application and SMS.

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Breakdown of Vehicle :

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In case the vehicle break-down, the validity of Transport Permit or Receipt shall be extended by sending SMS by the driver in specific format to report the breakdown of the vehicle. The server will register this information and register the breakdown. The State can also establish a call center, which can register breakdowns of such vehicles and extend the validity period. The subsequent restart of the vehicle also should be similarly reported to the server or call

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center.

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vi. Tracking of Vehicles :

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The route of the vehicle from source to destination can be tracked through the system using checkpoints, RFID Tags, and GPS tracking.

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vii.

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Alerts or Report Generation and Action Review:

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The system will enable the authorities to develop a periodic report on different parameters like daily lifting report, vehicle log or history, lifting against allocation, and total lifting. The system can be used to generate auto mails or SMS. This will enable the District Collector or District Magistrate to get all the relevant details and shall enable the authority to block the scanning facility of any site found to be indulged in irregularity. Whenever any authority intercepts any vehicle transporting illegal sand, it shall get registered on the server and shall be mandatory for the officer to fill in the report on action taken. Every intercepted vehicle shall be tracked.

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The monitoring of mined out mineral, environmental clearance conditions and enforcement of Environment Management Plan will be ensured by the regulatory authority and the State Pollution Control Board or Committee. The monitoring arrangements envisaged above shall be put in place. The monitoring of enforcement of environmental clearance conditions shall be done by the Central Pollution Control Board, Ministry of Environment, Forest and Climate Change and the agency nominated by the Ministry for the purpose.

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Some of the State has followed the SSMMG-2016 and has also improvised or customized on the provisions given therein, and are successfully in operation. Salient provision adopted at different stages of sand mining in the state of Tamil Nadu.

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9.6 Actions against illegal excavation and transport

¶238

Solapur district administration in Maharashtra had adopted a multi-pronged strategy to penalize the

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persons involved in illegal excavation and transport which resulted in a significant increase in revenue earned by the state. Following rules and procedures as mentioned in these guidelines will add to the costs of PP. Those involved in illegal activities are not required to bear these costs and this will make their supply in the market cheaper (though illegal). This will put the players running their business by following rules and procedures laid down by the government to disadvantage as far as the selling price is considered. Therefore, it is necessary to come down heavily on those involved in illegal excavation/transport, so that there is no incentive for players to abide by the rules.

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The following action may be taken to achieve this deterrence against illegal business:

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1. The action should be taken under all legal options available simultaneously. Thus, after identifying the case of illegal excavation, storage and/or transport of minor minerals (including sand), fine should be levied as per the land revenue laws/code(s) of the state. In addition, FIR should be lodged in the police station under relevant sections of law including sec 379 IPC. In addition, action under the Motor Vehicle Act, 1989 and relevant rules should initiate to cancel/suspend the driving license of the driver and permit of the vehicle. Further, action should be initiated under provisions in the Income Tax Act, 1961 for unaccounted income and under the Central Goods and Services Act, 2017 for nonpayment of GST. (Earlier this was done under the state act pertaining to Value Added Tax/Sales Tax). Habitual offenders should also be taken up under local state laws for externment and/or preventive action. It is clarified that as per law, it is possible to take all actions under various laws simultaneously for one offence. What is prohibited in law is an action under the same law for the same act more than once.

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2. The action should be taken against all persons responsible. Often, there is a tendency to penalize only the drivers of the vehicles. The mafia of illegal mining and transport is much bigger and drivers are only one part of the system. It is necessary to identify all those involved in the offence. It is usually not possible to reach the place of excavation without creating a motorable pathway up to the same through land which may be private land. Such role of such landowners needs to be looked into for each offence and proceeded against simultaneously. Further, the role of vehicle owners needs to be probed. Role of the person who allowed his land to be used for illegal excavation and storage should also be examined. Lastly, the person who purchases such sand should also be probed. The legal proceedings stated above needs to be initiated against all of these together. An attempt should be made to fix the financial responsibility in joint and several ways so that recovery is easier.

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3. There may be discretion available in law about the extent of the penalty to be levied. If such discretion is very wide, then it is advisable that guidelines may be laid down to reduce such discretion in law for levying penalties. For example, in Maharashtra, Land Revenue Code, fine of any amount of penalty up to thrice the value of the sand can be levied. Solapur district administration had instructed Tahsildars and SDMs not to use discretion and levy the fine of three times the value. Availability of discretion makes junior level functionaries susceptible to pressures and it may also lead to corrupt practices.

¶246

4. It is emphasized that actions, as stated above, are most important to ensure that the IT-based system works. If these exemplary actions are not taken against everyone, it shall create a strong disincentive to those involved in legal excavation and transportation. For IT-based (or any other)

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legal system to work, it is necessary to ensure that illegal system stops working altogether.”

¶249

The right to development itself cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. It encompasses much more than economic well- being and includes within its definition the guarantee of fundamental human rights. It includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of people’s wellbeing and realisation of their full potential. It is an integral part of human rights. Of course, development is the essence of any pragmatic and progressive society. But essentially, development besides being inter-generational, must be balanced to its ecology and environment. Sustainable development means that the richness of the earth’s bio-diversity would be conserved for future generations by greatly slowing or if possible halting extinctions, habitat and ecosystem destruction, and also by not risking significant alterations of the global environment that might-by an increase in sea level or changing rainfall and vegetation patterns or increasing ultraviolet radiation-alter the opportunities available for future generations. Sustainable development has been defined in many ways but the most frequently quoted definition is from the Brundtland Report which states as follows:

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“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:

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The concept of needs, in particular the essential needs

¶252

of the world’s poor, to which overriding priority should be given; and

¶253

¶254

The idea of limitations imposed by the state of

¶255

technology and social organisation on the environment’s ability to meet present and future needs.”

¶256

Learned counsel appearing for the MoEF&CC has also raised the issue that the control of illegal mining is purely within the domain of the State Government. It is necessary to quote the relevant paragraphs with regard to rule making power of the State which is enshrined in the constitution as follows:

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“28. Entry-54 of List I-Union List of the Seventh Schedule of the Constitution of India deals with regulation of mines and mineral development under the control of the Union. Entry-54 of List-I reads as under:

¶258

“54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.”

¶259

Entry-23 of List II-State List of the Seventh Schedule of the Constitution provides as under:

¶260

“23. Regulation of mines and mineral development subject to the provisions of List-I with respect to regulation and development under the control of the Union.”

¶261

The Act, 1957 i.e. the Mines and Minerals (Development and Regulation) Act, 1957 is enacted by the Parliament to provide for the development and regulation of mines and minerals. Section 3(e) of the Act, 1957 defines ‘minor minerals’. It reads thus:

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“(e) “minor minerals” means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral;”

¶263

Sub-section (1-A) of Section 4 of the Act, 1957 prohibits transportation and storage of minerals in the following manner:

¶264

“4(1-A) No person shall transport or store or cause to

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be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.”

¶267

Section 15 of the Act, 1957 gives power to the State Government to make rules in respect of minor minerals. Section 15 is extracted below:

¶268

“15. Power of State Governments to make rules in respect of minor minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith.

¶269

(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

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(a) the person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions may be made and the fees to be paid therefor;

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(b) the time within which, and the form in which, acknowledgement of the receipt of any such applications may be sent;

¶272

(c) the matters which may be considered where applications in respect of the same land are received within the same day;

¶273

(d) the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concessions may be granted or renewed;

¶274

(e) the procedure for obtaining quarry leases, mining leases or other mineral concessions;

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(f) the facilities to be afforded by holders of quarry leases, mining leases or other mineral concessions to persons deputed by the Government for the purpose of undertaking research or training in matters relating to

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mining operations;

¶278

(g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable;

¶279

(h) the manner in which rights of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining operations;

¶280

(i) the manner in which rehabilitation of flora and other vegetation, such as trees, shrubs and the like destroyed by reason of any quarrying or mining operations shall be made in the same area or in any other area selected by the State Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease;

¶281

(j) the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred;

¶282

(k) the construction, maintenance and use of roads, power transmission lines, tramways, railways, aerial ropeways, pipelines and the making of passage for water for mining purposes on any land comprised in a quarry or mining lease or other mineral concession;

¶283

(l) the form of registers to be maintained under this Act;

¶284

(m) the reports and statements to be submitted by holders of quarry or mining leases or other mineral concessions and the authority to which such reports and

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statements shall be submitted;

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(n) the period within which and the manner in which and the authority to which applications for revision of any order passed by any authority under these rules may be made, the fees to be paid therefore, and the powers of the revisional authority; and

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(o) any other matter which is to be, or may be prescribed.

¶289

2) Until rules are made under sub-section (1), any rules made by a State Government regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force.

¶290

(3) The holder of a mining lease or any other mineral concession granted under any rule made under subsection (1) shall pay royalty or dead rent, whichever is more in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals:

¶291

Provided that the State Government shall not enhance the rate of royalty or dead rent in respect of any minor mineral for more than once during any period of three years.

¶292

4) Without prejudice to sub-sections (1), (2) and sub-section (3), the State Government may, by notification, make rules for regulating the provisions of this Act for the following, namely—

¶293

(a) the manner in which the District Mineral Foundation shall work for the interest and benefit of persons and areas affected by mining under sub-section (2) of Section 9B;

¶294

(b) the composition and functions of the District Mineral Foundation under sub-section (3) of Section 9B; and

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(c) the amount of payment to be made to the District Mineral Foundation by concession-holders of minor minerals under Section 15A.

¶297

“33. Section 23-C of the Act, 1957 gives power to the State Government to make rules for preventing illegal mining, transportation and storage of minerals. Section 23-C reads thus:

¶298

“23-C. Power of State Government to make rules for preventing illegal mining, transportation and storage of minerals.--(1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.

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(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

¶300

(a) establishment of check-posts for checking of minerals under transit;

¶301

(b) establishment of weigh-bridges to measure the quantity of mineral being transported;

¶302

(c) regulation of mineral being transported from the area granted under a prospecting licence or a mining lease or a quarrying licence or a permit, in whatever name the permission to excavate minerals, has been given;

¶303

(d) inspection, checking and search of minerals at the place of excavation or storage or during transit;

¶304

(e) maintenance of registers and forms for the purposes of these rules;

¶305

(f) the period within which and the authority to which applications for revision of any order passed by any authority be preferred under any rule made under this section and the fees to be paid therefore and powers of such authority for disposing of such applications; and

¶306

(g) any other matter which is required to be, or may be, prescribed for the purpose of prevention of illegal mining, transportation and storage of minerals.

¶307

(3) Notwithstanding anything contained in Section

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30, the Central Government shall have no power to revise any order passed by a State Government or any of its authorised officers or any authority under the rules made under sub-sections (1) and (2).”

¶310

Section 23 C of MMDR, Act 1957 empowered the State Government to make rules for preventing illegal mining, transportation and storage of minerals. But in the recent past, it has been observed that there was large number of illegal mining cases in the Country and in some cases, many of the officers lost their lives while executing their duties for curbing illegal mining incidence. The illegal and uncontrolled illegal mining leads to loss of revenue to the State and degradation of the environment.

¶311

India is developing at a faster pace and much technological advancement has already been taken place in the surveillance and remote monitoring in the field of mining. Thus, it is prudent to utilize the technological advancement for the effective monitoring of the mining activities particularly sand mining in the country.

¶312

It is relevant to quote certain provisions of the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rule, 2019 as follows:-

¶313

“3. Restrictions.—

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The following restrictions shall be applied with regard to mineral sand,-

¶315

(1) No vehicle shall cause to be transported the mineral sand from the sanctioned quarry or storage place without prescribed transit pass.

¶316

(2) No vehicle shall cause to be transported without substantial entry in Transit Pass (as quantity of mineral, date/time of transport, time to be taken to reach to destination place, etc.).

¶317

(3) No person, except the valid contractor, shall be permitted to store mineral sand for commercial purpose or for use in commercial construction, quantity more than the quantity specified in these rules.

¶318

(4) The vehicles engaged in sand transportation without GPS

¶319

or establishing of machine of equivalent technique as

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prescribed, shall be prohibited after the date of notification by the State Government.

¶322

(5) Extraction and removal of sand from the following area shall be prohibited as provided in sustainable sand mining guidelines, 2016 issued by Government of India,-

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(a) within 200 meters from any bridge;

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(b) within 200 meter upstream and downstream areas of any water supply scheme or water resources scheme;

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(c) within 100 meter from edge of national highway and Railway line;

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(d) within 50 meter from any canal, reservoir or building;

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(e) within 50 meter from edge of state highway and 10

¶328

meters from edge of other village road;

¶329

(f) within fixed distance from any areas which has been built to control the flood;

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(g) within 200 meter distance from the place of cultural, religious, historical, and archaeological importance or within the distance as provided in the Act/Rule;

¶331

(h) such areas which have been declared prohibited by

¶332

Collector due to environmental or other reasons: Provided that, on receipt of representation, permission to grant for mining within the limit of prohibited area may be considered, after getting NOC/Consent from the concerned administrative department.

¶333

(6) There shall be complete ban on mining, loading and storage of sand by machines from the sanctioned quarries in river Narmada. Sand mining, loading and storage from quarries having area up to 5.00 hectare situated on other rivers shall be done by the committee of local labourers and quarries having area more than 5.000 hectare, local labourers shall be given priority for sand mining, loading and storage. The use of machines for sand mining in other rivers may be given depending upon the requirement and approval in mining plan and environmental clearance.

¶334

5. (1) Demarcation of sand quarries

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The Collector, shall identify new sand bearing areas in rivers or on other places of the State. D.G.P.S. survey shall be carried out and its location on revenue map alongwith Latitude and Longitudes shall be marked:

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Provided that the sand quarries demarcated and declared prior to the commencement of these rules, may be amended by

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following the same procedure as required.

¶339

(2) Declaration of sand quarries

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The sand quarry identified as per sub-rule (1) above shall be declared by the Collector, after making such inquiry as he deems fit, on receipt of information/application/proposal. Prior to declaring sand quarry, opinion from the concerned Gram Panchayat/Urban Body shall be obtained and for this purpose a formal order shall be issued:

¶341

Provided, if no opinion/advise of the concerned Gram Panchayat/Urban Body is received within a period of 15 days, the Collector, by presuming that there is no objection, shall declare new sand quarries in non-scheduled areas only:

¶342

Provided further that, if any objection is received from concerned Gram Panchayat/Urban Body within stipulated period, the Collector by disposing off the objections on merit shall take appropriate decision regarding declaration of quarry: Provided further that, prior to declaration of sand quarry consent/no objection of Gram Sabha shall be mandatory in scheduled areas: Provided also that, the declaration of such sand bearing areas shall not be necessary separately which are operational or have been auctioned earlier.

¶343

(3) Making of group of the sand quarry.-

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(a) The Collector shall make the group of sand quarries and send proposal to the Director along with details of area, boundary, revenue map, Khasra-Panchsala, LatitudeLongitude for each quarry included in group.

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(b) The group shall be constituted on the basis of geographical location and revenue boundary (Tehsil, District) as for as possible.

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(c) While making the group, total area of sand quarries included in the group and approximate available quantity of sand shall be taken into consideration.

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(d) The proposal of constituted group sent by the Collector shall be finalised by Director.

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12. Statutory Permissions.—

¶349

The statutory permissions/formalities for each sand quarry of the group may be obtained/completed, as per rule. All the statutory permissions (e.g. Mining Plan, Environmental Clearance, Water and Air Consent etc.) required for the operation of the sand quarry shall be obtained by the successful tenderer. The successful tenderer may start mining

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operation only after obtaining the statutory permissions as per rule 14. Excavation without statutory permission or excavation in excess quantity than permitted quantity in statutory permission, in such condition 100% cost of the excavated mineral and amount of compensation towards environmental damage shall be recoverable from the contractor. The statutory permission are as follows:-

¶352

(1) Mining Plan-

¶353

(a) The successful tenderer shall submit mining plan for approval to the Collector within a period of one month from the date of issuance of letter of intent. The Mining Plan shall be prepared by the Recognised Qualified Person (R.Q.P.), authorised by the Director.

¶354

(b) The mining plan shall consist of the location (latitudelongitude) of the mines, quantity of mineable sand available in the sand quarry and other issues, as provided for in Madhya Pradesh Minor Mineral Rules 1996.

¶355

(c) The Collector shall approve the mining plan on the basis of recommendations of the technically qualified officer (Post Graduate Degree Holder in Geology/Applied Geology) of the department posted in the district and in case if in any district technically qualified officer is not posted, in such case concerned Regional head or Director shall approve the mining plans.

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(d) The mining plan shall be prepared only on the basis of actual quantity available/estimated and all the Mining operations shall be carried-out in accordance with the approved mining plan.

¶357

(2) Environmental Clearance- The successful tenderer after getting approved mining plan, within a maximum period of 15 days, shall submit application before the competent authority to obtain Environmental Clearance in accordance with notification issued by Ministry of Environment, Forest and Climate Changes.

¶358

(3) Water and Air Consent- The successful tenderer after getting environmental clearance within a maximum period of 7 days, shall submit application before the competent authority for obtaining the consent under the Water (Prevention of pollution and control) Act, 1974 and the Air (Prevention of Pollution and Control) Act 1981.

¶359

(4)Permissible Quantity-The mining shall be permitted up to mineable quantity fixed in mining plan, environmental clearance, water and air consent (whichever is less).

¶360

(5) The annual contract amount shall not be reduced in any case if there is reduction in mineable quantity in approved mining plan, environmental clearance, water and air Consent.

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(6) All the above statuary permissions shall be obtained within a time limit. The corporation shall supervise for the permissions being taken for each group by the group contractor. In case of any delay, carelessness or lack of interest.201 0proceedings for cancellation of letter of intent may be initiated.

¶363

14. Commencement of the Mining Operations.—

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(1) The successful tenderer, after execution of agreement and

¶365

registration but prior to commencement of the mining operation, shall inform to the Collector about such intention. After Commencement of the mining operation the objection regarding available quantity of mineral in quarry, approach road and other related issues shall not be acceptable.

¶366

(2) On the condition of depositing the contract amount of the group on the prescribed date as mentioned in the agreement, the mining operation of the quarry may be started as and when the statutory permission is received. It shall not be compulsory to obtain statutory permission for all the quarries of the group simultaneously.

¶367

26. Provisions for transition period.—

¶368

(1) After commencement of these rules, there may be delay in complete execution of these rules, and due to non-operation of sand quarries, deficiency in supply of sand may result, hence these provisions are being made. Some of the sand quarries which were auctioned previously and are in operation, the period of those quarries is up to March 2022. Besides this, some quarries which have been handed over/allotted to Gram Panchayat under provision of Madhya Pradesh Sand Rules 2018 are also in operation at present, the contractors of the group shall start immediately proceedings of transfer of permissions under environmental rules of such quarries.

¶369

(2) Other sand quarries transferred to panchayat in which operations have been started after the completion of formalities, all such quarries may remain date of start of operation be operated by Panchayat/Urban Bodies till 31st March 2020 or by the new group contractor from after execution of agreement, whichever is earlier.

¶370

(3) From the date of commencement of these rules, the contractors of the auction quarries, may surrender the quarries. Surrender of such sand quarries shall be accepted, giving exemption in condition of agreement and security amount shall be refunded as per eligibility.

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(4) Such quarries which have been surrendered or the period

¶372

has been expired, shall be deemed to be included in the group which have been identified at the time of inviting tender. The contractor of the group shall complete all the statutory

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formalities for operation of such included quarries. In respect of this new quarry included additionally in the group, the amount of royalty as calculated per cubic meter shall be paid on the basis of the highest tender amount received for that group. The period of new quarry included shall be up to the period of expiry of contract.

¶375

(5) If during the period of operation of contract, any proposal for new quarry is received to the Collector, the Collector after such enquiry, as deems fit may include quarry in the nearest suitable group. The period of new quarry shall be the period of expiry of contract. The contractor of the group for dispatch of sand from such new quarry shall deposit the amount on the basis of the highest tender amount received at the rate of per cubic meter for that group. Maximum of 25% of total permitted quantity for the group contract shall be allowed to be added in case of new quarry.

¶376

(6) The group or" quarries of the group remained vacant

¶377

temporarily under the provisions of this rule or due to other reasons may, in public interest, be operated by the department or by the corporation for ensuring availability of sand.”

¶378

Bare reading of the provisions contained under Section 26 of the Act provides that it is a transition period and since there may be delay in completion of execution of these rules, the provisions of sand quarries have been made by formulating the rules. Learned Counsel for the appellant has raised the question that in absence of lease there cannot be transfer of the EC and in reply thereof learned Counsel for the respondent had submitted that the word used in section 26 is sand quarries and it is stated that due to non-operation of sand quarries, deficiency in supply of sand may result, hence these provisions are being made. The intention of the legislature was to make the balance between the supply and demand of the sand which is essential part of the development of the building constructions. It is further argued that the legislative intent is beneficial and should be interpreted in this way.

¶379

The facts arising in the present petition is that on 30.08.2019 the state of Madhya Pradesh notified the Madhya Pradesh Sand Mining, Transportation, Storage and Trading Rules, 2019 whereby every district in the state of Madhya Pradesh shall have a separate contractor or a group of contractor and the

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entire sand quarries in the concerned district shall be operated by the appointed private contractor. Moreover, the sand quarries which were being operated by the concerned Panchayat were also to be transferred to the newly appointed contractor and accordingly on 07.10.2019 the notice inviting tender (hereinafter referred to as "NIT") for the district of Panna was floated by the State Mining Corporation and subsequently after acceptance of the technical and financial bid, the tender was opened for the Panna District and the contract for Sand excavation in the district of Panna was awarded in favor of the non-applicant no. 4, and 27 sand quarries were auctioned out by State Mining Corporation in District Panna for a total quantity of 12 lacs cubic meters of sand annually. It is argued that out of total these 27 sand quarries, in 11 Sand quarries, EC has been given by MPSEIAA to the Non- Applicant No. 4 vide its minutes of meeting No' 603, 605, and 639. It is submitted at this juncture that the quantity of sand for which these 11 ECs have been transferred/ accorded is 5, 18, 191 cubic meters of sand. There is huge mismatch in the Environment Clearance of the Sand quarries and the details of the sand quarries mentioned in the NIT.

¶382

On the basis of above facts, learned counsel for the applicant had submitted that there are certain anomalies and the six quarries which have been put on by mining purposes which is annexed as Annexure-3 were not included in the original tender process and the process which have been initiated with regard to the mining/sand quarries as Annexure-A3 are not in accordance with the provisions of law and Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019. Learned counsel for the Respondent (State and Pollution Control Board) has submitted that there are no legal bar for exercising the statutory power which has been given to the authorities for sand mining.

¶383

It is further contended that the District Survey Report and Annual replenishment Study not being conducted by the Non-Applicants before according Environment clearances to the Sand quarries. As per the MoEF & CC notification dated 25 July 2018, the procedure for preparation of District

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Survey Report for sand mining or river bed mining is envisaged under Appendix X and similarly the Enforcement and Monitoring Guidelines for Sand Mining introduced by MOEF&CC in the month of January 2020 visualises the significance and procedure for conducting Annual Replenishment Study. It is argued that in the district of Panna, neither the District Survey Report has been prepared in accordance with Appendix X nor has the scientific annual replenishment study been conducted by the NonApplicants before permitting the excavation of Sand and that perusal of the records suggest that out of a total 27 sand quarries for which tender was floated by the state government, the contractor - Non-Applicant No.4 has obtained genuine Environment Clearance over only 3 sand quarries and this is done purposely by the contractor as the contractor is engaging himself in extreme illegal excavation of sand by entering into agreement with local farmers and taking their farm land on rent in order to excavate sand, By doing so the contractor is not only excavating and transporting Sand illegally but is also causing huge loss to the environment as well as Revenue of the government by not paying royalty over the sand excavated from private lands. Learned counsel for the Respondent had submitted that the work of sand mining was carried out after following the due procedure established by law, and no illegality has been committed in the process of sand mining by the answering respondents.

¶386

It is further contended by the Respondent that since the non-Applicant no.4 has become the group contractor for the home district of Panna therefore the Non-applicant no. 4 is entitled to do sand mining in Panna after following the due procedure established by law, since six quarries were not situated on the government land thus they do not find place in the list of 27 sand quarries. The said six sand quarries mentioned in Annexure A-3 are khodu bharu khadan which are not situated on river banks and are situated on private land. The sand mining activity upon these lands have been carried out only after complying with the complete procedure, as established in law. The compliance of all the formalities before operating these sand quarries has

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¶388

been recorded in the Inspection Report dated 24.06.2021 prepared by the Joint Committee of District Collector and Regional Officer MPPCB. Rule 17 of Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019 permits excavation of additional quantity of sand on private land by valid contractor of any group. Thus statutory rules permit excavation of sand on private land after obtaining necessary permissions.

¶389

The Applicant has raised the question of non preparation of District Survey Report and Annual Replenishment Study in reply thereof, it is argued that the Joint Inspection Committee has produced before this Hon'ble Tribunal a copy of District Survey Report as well as Annual Replenishment Study prepared for sand mining at district Panna. The factual cum inspection report dated 24.06.2021 prepared by the Joint Inspection Committee has submitted the fact that District Survey Report and Annual Replenishment Study has been conducted and no illegality has been committed in the same. 31. In reply to the question of sand quarries on the private land, it is stated that the said khodu bharu khadaan have been duly declared as mine by the competent authority and all the necessary statutory permissions have been granted by the competent authorities before excavation of sand from the said quarry. The factual cum inspection report dated 24.06.2021 prepared by the Joint Inspection Committee has recorded the fact that the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019, permits sand excavation from private land, after obtaining all the statutory permissions. The said report dated 24.06.2021 further recorded the fact that the Non-applicant no. 4 contractor has complied with all the rules before excavating sand from the private land. Rule 17 of Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019 permits excavation of additional quantity of sand on private land by valid contractor of any group. Thus statutory rules permit excavation of sand on private land after obtaining necessary permissions. Hence no illegal sand mining has been done by the Non-applicant no. 4.

¶390

Learned counsel for the state has submitted that District Mining branch is

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¶392

enforcing the conditions of sand Mining and has initiated drive against illegal mining and has registered 140 cases of illegal transportation, 12 cases of illegal mining and 13 cases of illegal storage and further the District Mining Branch is specially keeping vigilant eye upon all types of illegal sand mining activities. As provided within the purview of rule 12 of the Sand Mining Rules 2019 the proponent/Contractor of the nearest group, on the basis of consent from private land owners may obtain license for excavation of additional quantity of sand from private land thus, the Proponent Group contractor of Panna District has executed agreements with mutual consent of private land owners. The approval of Mining plan, prior Environmental Clearance and valid Air/Water Consent are obtained by the Proponent/contractor, therefore the Proponent/Contractor only after obtaining all the statutory permissions required under the rules of 2019 has proceed to carry out the mining activities on private lands. Lastly the learned counsel for the applicant has submitted that the permission of sand mining on private land which was not included in the original tender process or District Survey Plan is against the provision of law and intended to defeat the provisions of law. The District Survey Plan, includes all mining activities within the District, where mining is to be permitted in accordance with the Sustainable Development Guidelines, 2020 and 2016.

¶393

Learned Counsel appearing for the MoEF&CC has submitted that the Monitoring Guidelines as issued by the Ministry is required to be followed. It is to be noted that enforcement of Monitoring Guidelines for Sand Mining was issued in January, 2020 by the Ministry of Environment and Forest. The relevant paras are quoted below:

¶394

“a) Parts of the river reach that experience deposition or aggradation shall be identified. The Leaseholder/ Environmental Clearance holder may be allowed to extract the sand and gravel deposit in these locations to manage aggradation problem.

¶395

b) The distance between sites for sand and gravel mining shall depend on the replenishment rate of the river. Sediment rating curve

¶396

¶397

for the potential sites shall be developed and checked against the extracted volumes of sand and gravel.

¶398

c) Sand and gravel may be extracted across the entire active channel during the dry season.

¶399

d) Abandoned stream channels on the terrace and inactive floodplains be preferred rather than active channels and their deltas and flood plains. The stream should not be diverted to form the inactive channel.

¶400

e) Layers of sand and gravel which could be removed from the river bed shall depend on the width of the river and replenishment rate of the river.

¶401

f) Sand and gravel shall not be allowed to be extracted where erosion may occur, such as at the concave bank.

¶402

g) Segments of the braided river system should be used preferably falling within the lateral migration area of the river regime that enhances the feasibility of sediment replenishment.

¶403

h) Sand and gravel shall not be extracted up to a distance of 1 kilometre (1 km) from major bridges and highways on both sides, or five times (5x) of the span (x) of a bridge/public civil structure (including water intake points) on up-stream side and ten times (10x) the span of such bridge on down-stream side, subjected to a minimum of 250 meters on the upstream side and 500 meters on the downstream side.

¶404

i) The sediment sampling should include the bed material and bed material load before, during and after the 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

¶405

¶406

on the sediment rating curve and high flow period after determining the allowable mining depth.

¶407

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

¶408

k) The flood discharge capacity of the river could be maintained in areas where there is a 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. Alternatively, off-channel or floodplain extraction is recommended to allow rivers to replenish the quantity taken out during mining.

¶409

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 groundwater recharge. Mining in such areas should be preferred in locations selected away from the channel bank stretches.

¶410

m) Mining depth should be restricted to 3 meters and distance from the bank should be ¼th or river width and should not be less than 7.5 meters.

¶411

n) The borrow area should preferably be located on the riverside of the proposed embankment because they get silted in the 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 the case of the higher embankment, the distance should not be less than 50 m. In order to obviate the development of flow parallels to the embankment, crossbars of width eight times the depth of borrow pits spaced 50 to 60 meter center-to-center should be left in the borrow pits.

¶412

¶413

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

¶414

p) A buffer distance /un-mined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.

¶415

q) A buffer distance /unmined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.

¶416

r) River bed sand mining shall be restricted within the central 3/4th width of the river/rivulet or 7.5 meters (inward) from river banks but up to 10% of the width of the river, as the case may be and decided by regulatory authority while granting environmental clearance in consultation with irrigation department. Regulating authority while regulating the zone of river bed mining shall ensure that the objective to minimize the effects of riverbank erosion and consequential channel migration are achieved to the extent possible. In general, the area for removal of minerals shall not exceed 60% of the mine lease area, and any deviation or relaxation in this regard shall be adequately supported by the scientific report.

¶417

s) Mining Plan for the mining leases (non-government) on agricultural fields/Patta land shall only be approved if there is a possibility of replenishment of the mineral or when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market.”

¶418

4.1.1 Preparation of District Survey Report.

¶419

¶420

“Sustainable Sand Mining Guidelines, 2016” issued by MoEF&CC requires preparation of District Survey Report (DSR), which is an important initial step before grant of mining lease/LoI. The guidelines emphasize detailed procedure to be followed for the purpose of identification of areas of aggradation/ deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited. Calculation of annual rate of replenishment, allowing time for replenishment after mining, identification of ways of scientific and systematic mining; identifying measures for protection of environment and ecology and determining measures for protection of bank erosion, benchmark (BM) with respect to mean Sea Level (MSL) should be made essential in mining channel reaches (MCR) below which no mining shall be allowed.”

¶421

The NGT in its Judgment dated 08.12.2017 in the matter of Anjani Kumar vs State of Uttar Pradesh & Ors. inter-alia mentioned the following regarding sand mining in the Uttar Pradesh:

¶422

“It states that the main object of preparation of District Survey Report is to ensure identification of areas of aggradation/deposition where mining can be allowed and identification of areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining area. Thus, the environmental protection requires a strictly regulated mining in terms of area, quantity as well as most importantly replenishment thereof.”

¶423

“The data collection and declared for preparation of DSR shall take precedence over other data and would form the foundation for providing mining lease in terms of Appendix- 20 x to the

¶424

¶425

Notification dated 15th January 2016 must be prepared by the statutory authority stated therein i.e. DEIAA prior to awarding of permits for carrying on mining activity in any part of the State of UP.”

¶426

The Hon’ble High Court of Jharkhand at Ranchi in its orders dated the 11th April, 2018 and 19th June, 2018 in W.P. (PIL) No. 1806 of 2015, in the matter of Court on its Own Motion Versus the State of Jharkhand & Others with W.P. (PIL) No. 290 of 2013, in the matter of Hemant Kumar Shilkarwar Versus the State of Jharkhand & Others, has inter-alia directed the preparation of District Survey Report for minor minerals other than Sand and Bajri or delegation of the powers for preparation of format of District Survey Report of minor minerals other than sand and Bajri to the State Government and/or District Environment Impact Assessment Authority and District Expert Appraisal Committee. To comply with the direction of Hon’ble High Court the Ministry has issued S.O. 3611(E) dated 25.07.2018, wherein, the procedure of preparation of DSR is mentioned. But it is felt that still there is other information that needs to be reported in DSR to make it a comprehensive DSR. Therefore, preparation of District Survey Report is a very important step and sustainable sand mining in any part of the country will depends on the quality of District Survey Report. Considering the importance of district survey report, the Ministry of Environment Forest and climate change, after consultation with experts dealing with mining-related matters, formulated the following guidelines for the preparation of comprehensive District Survey Report for sand mining:

¶427

a) District Survey Report for sand mining shall be prepared before the auction/e-auction/grant of the mining lease/Letter of Intent (LoI) by Mining department or department dealing the mining activity in respective states.

¶428

¶429

b) The first step is to develop the inventory of the River Bed Material and Other sand sources in the District. In order to make the inventory of River Bed Material, a detailed survey of the district needs to be carried out, to identify the source of River Bed Material and alternative source of sand (MSand). The source will include rivers, de-siltation of reservoir/dams, Patta lands/Khatedari Land, M-sand etc.

¶430

The revenue department of Kerala already conducted river mapping and sand auditing of around 20 rivers of Kerala which is a good example wherein the profile of rivers was created at regular intervals and aggradation/deposition was identified along with water level. In the same study, benchmarks were also created at a prominent location at regular interval for future surveying. Such study helps the mining departments to identify the source of sand.

¶431

Thus, it is proposed that for preparation of district survey report, the auditing of rivers needs to be carried out. There is already a provision under MMDR Act 2015 for National Mineral Exploration Trust (MET) wherein a 2% of royalty amount to be deposited in the trust. This fund is used for mineral exploration in the country. The Sand Auditing is also a sort of identification of mineral and State Government may request Central Govt. for proving funds for river auditing. The Central Govt. (Ministry of Mines) may also explore the possibilities for providing the funds for river auditing. The other option is that State Govt. may conduct such studies by its own fund and the same may be recovered from the leaseholders to whom the mining lease will be allocated.

¶432

c) District Survey Report is to be prepared in such a way that it not only identifies the mineral-bearing area but also define the

¶433

¶434

mining and no mining zones considering various environmental and social factors.

¶435

d) Identification of the source of Sand & M-Sand. The sources may be from Rivers, Lakes, Ponds, Dams, Desilting locations, Patta land/Khtedari lands. The details in case of Rivers such as [name, length of river, type (Perennial or Non-Perennial ), Villages, Tehsil, District], in case of Lakes, Ponds, Dams, Desilting locations [Name, owned/maintained by (State Govt./PSU), area, Villages, Tehsil, District] in case of Patta land/Khtedari lands [ Owner Name, Sy No, Area, Agricultural/Non-Agricultural, Villages, Tehsil, District], in case of M-Sand Plant [Owner Name, Sy No, Area, Quantity/Annum, Villages, Tehsil, District], needs to be recorded as per format given in Annexure-I.

¶436

e) Defining the sources of Sand/M-Sand in the district is the next step for identification of the potential area of deposition/aggradation wherein mining lease could be granted. Detailed survey needs to be carried out for quantification of minerals. The purpose of mining in the river bed is for channelization of rivers so as to avoid the possibility of flooding and to maintain the flow of the rivers. For this, the entire river stretch needs to be surveyed and original ground level (OGL) to be recorded and area of aggradation/deposition needs to be ascertained by comparing the level difference between the outside riverbed OGL and water level. Once the area of aggradation/deposition are identified, then the quantity of River Bed Material available needs to be calculated. The next step is channelization of the river bed and for this central ¾th part of the river, width needs to be identified on a map. Out of the ¾th part area, where there is a deposition/aggradation of the material needs to be identified. The remaining ¼th area needs to be kept as no mining zone for the protection of banks. The

¶437

¶438

specific gravity of the material also needs to be ascertained by analyzing the sample from a NABL accredited lab. Thus, the quantity of material available in metric ton needs to be calculated for mining and no mining zone.

¶439

Note: As physical survey with conventional method is timeconsuming, use of unmanned aerial vehicle (UAV) may be explored to carry out the survey and finalizing the original ground level and for developing a 3D model of the area.

¶440

f) The permanent boundary pillars need to be erected after identification of an area of aggradation and deposition outside the bank of the river at a safe location for future surveying. The distance between boundary pillars on each side of the bank shall not be more than 100 meters.

¶441

g) Identifying the mining and no mining zone shall follow with defining the area of sensitivity by ascertaining the distance of the mining area from the protected area, forest, bridges, important structures, habitation etc. and based on the sensitivity the area needs to be defined in sensitive and non-sensitive area.

¶442

h) Demand and supply of the Riverbed Material through market survey needs to be carried out. In addition to this future demand for the next 5 years also needs to be considered.

¶443

i) It is suggested that as far as possible the sensitive areas should be avoided for mining, unless local safety condition arises. Such deviation shall be temporary & shall not be a permanent feature.

¶444

j) The final area selected for the mining should be then divided into mining lease as per the requirement of State Government. It is suggested the mining lease area should be so selected as to cover the entire deposition area. Dividing a large area of deposition/aggradation into smaller mining leases should be

¶445

¶446

avoided as it leads to loss of mineral and indirectly promote illegal mining.

¶447

k) Cluster situation shall be examined. A cluster is formed when one mining lease of homogenous mineral is within 500 meters of the other mining lease. In order to reduce the cluster formation mining lease size should be defined in such a way that distance between any two clusters preferably should not be less than 2.5 Km. Mining lease should be defined in such a way that the total area of the mining leases in a cluster should not be more than 10 Ha.

¶448

l) The number of a contiguous cluster needs to be ascertained. Contiguous cluster is formed when one cluster is at a distance of 2.5 Km from the other cluster.

¶449

m) The mining outside the riverbed on Patta land/Khatedari land be granted when there is possibility of replenishment of material. In case, there is no replenishment then mining lease shall only be granted when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects, mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market. Cluster situation as mentioned in para k above is also applicable for the mining in Patta land/Khatedari land.

¶450

n) The State Government should define the transportation route from the mining lease considering the maximum production from the mines as at this stage the size of mining leases, their location, the quantity of mineral that can be mined safely etc. is available with the State Government. It is suggested that the transportation route should be selected in such a way that the movement of trucks/tippers/tractors from the villages having

¶451

¶452

habitation should be avoided. The transportation route so selected should be verified by the State Government for its carrying capacity.

¶453

o) Potential site for mining having its impact on the forest, protected area, habitation, bridges etc, shall be avoided. For this, a sub-divisional committee may be formed which after the site visit shall decide its suitability for mining. The list of mining lease after the recommendation of the Committee needs to be defined in the following format given in as Annexure-II. The SubDivisional Committee after the site visit shall make a recommendation on the site for its suitability of mining and also records the reason for selecting the mining lease in the Patta land. The details regarding cluster and contiguous cluster needs to be provided as in Annexure-III.

¶454

p) Public consultation-The Comments of the various stakeholders may be sought on the list of mining lease to be auctioned. The State Government shall give an advertisement in the local and national newspaper for seeking comments of the general public on the list of mining lease included in the DSR. The DSR should be placed in the public domain for at least one month from the date of publication of the advertisement for obtaining comments of the general public. The comments so received shall be placed before the sub-divisional committee for active consideration. The final list of sand mining areas [leases to be granted on riverbed & Patta land/Khatedari land, desiltation location (ponds/lakes/dams), M-Sand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per AnnexureV. The details regarding cluster and contiguous cluster needs to be provided in Annexure-VI.

¶455

5.0 REPLENISHMENT STUDY

¶456

¶457

The need for replenishment study for river bed sand is required in order to nullify the adverse impacts arising due to excessing sand extraction. Mining within or near riverbed has a direct impact on the 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 an impact on the ecological equilibrium of the riverine regime, disturbance in channel configuration and flowpaths. This may also cause an adverse impact on instream biota and riparian habitats. It is assumed that the riparian habitat disturbance is minimum if the replenishment is equal to excavation for a given stretch. Therefore, to minimize the adverse impact arising out of sand mining in a given river stretch, it is imperative to have a study of replenishment of material during the defined period.

¶458

5.1 Generic Structure of Replenishment Study

¶459

Initially replenishment study requires four surveys. The first survey needs to be carried out in the month of April for recording the level of mining lease before the monsoon. The second survey is at the time of closing of mines for monsoon season. This survey will provide the quantity of the material excavated before the offset of monsoon. The third survey needs to be carried out after the monsoon to know the quantum of material deposited/replenished in the mining lease. The fourth survey at the end of March to know the quantity of material excavated during the financial year. For the subsequent years, there will be a requirement of only three surveys. The results of year-wise surveys help the state government to establish the replenishment rate of the river. Based on the replenishment rate future auction may be planned.

¶460

The replenishment period may vary on nature of the channel and season of deposition arising due to variation in the flow. Such

¶461

¶462

period and season may vary on the geographical and precipitation characteristic of the region and requires to be defined by the local agencies preferable with the help of the Central Water Commission and Indian Meteorological Department. The excavation will, therefore, be limited to estimated replenishment estimated with consideration of other regulatory provisions.

¶463

5.2 Methodology for Replenishment Study

¶464

The replenishment estimation is based on a theoretical empirical formula with the estimation of bedload transport comprising of analytical models to calculate the replenishment estimation. The isopluvial maps of IMD can be used for estimation of rainfall. Catchment yield is computed using different standard empirical formulas relevant to the geographical and channel attributes. eg. Strange’s Monsoon runoff curves for runoff coefficient). Peak flood discharge for the study area can be calculated by using Dickens, Jarvis and Rational formula at 25, 50 and 100 years return period. The estimation of bed load transport using Ackers and White Equation or similar can be made. A simulation model is used with basic data generated from the field in the pre-study and post-study period (preferably pre-monsoon and postmonsoon) to estimate the volume of replenished material. The particle size distribution and bulk density of the deposited material are required to be assessed from a NABL recognized laboratory. Considering the bulk density and the volume, the estimation of replenishment in weight will be calculated after considering safeguards and stability of the slopes and riverine regime. Some of the common methods used for field data acquisition for replenishment study.

¶465

5.2.1. Physical survey of the field by the conventional method

¶466

i. The conventional survey technical using DGPS and other survey tools are used to define the topography, contours and offsets of the

¶467

¶468

lease area. The survey should clearly depict the important attributes of the stretch of the river and its nearby important civil and other feature of importance. Such information will provide the eligible spatial area for mining. The contour and the elevation benchmarks will provide the baseline data for assessing the pre and post-study period scenario.

¶469

ii. Physical benchmarks are to be fixed at appropriate intervals (preferable 1 in 30 m) and the Reduced Level (RL) shall be validated from a nearby standard RL. These RL should be engraved on a steel plate (Bench Plate) and shall be fixed and placed at locations which are free from any damages and are available in pre and post-study period. The bench plates shall be available for use during the mining period as reference for all mining activity. Reference pillar may also be used in place of Bench Plates with visible and readable demarcation on the ground as common reference points to control the topographic survey and mining activity.

¶470

iii. Baseline data on elevation status for a grid of 10 m x 10 m is preferred to have accuracy in the assessment. It is expected that two consecutive cross-sections in longitudinal and lateral direction should not be more than 10-meter distance apart, however, the regulatory authority may fix these intervals depending on the geographical and site-specific conditions, only and after providing the scientific reason for such deviation.

¶471

iv. The changes observed in the elevation in per and post scenario at each node should be depicted in graphical forms with an appropriate scale to estimate the area of deposition and erosion. These graphical presentations should depict the active channel regime and the flow bed elevation with other important features required to be considered for estimation of the mining area. The area of deposition and erosion shall be calculated for each cross-section after giving due regard to the stability and safety of active channel banks, and other features of

¶472

¶473

importance. The elevation level shall be in reference to the nearest bench-plates established for the purpose.

¶474

v. The levels (MSL & RL) of the corner point of each grid should be identifiable and safety barriers (Non-Mining) demarcated as restricted in consensus with Mineral Concession Rules of respective State, and the provision mentioned in this Sustainable Sand Mining Management Guidelines.

¶475

vi A clear identification is required to be highlighted between grids under mineable and grids under the non-mineable area. These baseline data (pre and post) be subjected to stimulation with the help of data mine software to derive at the replenishment area and corresponding volume and estimated weight.

¶476

vii. The database should be structured in a tabulated form clearly depicting the nomenclature of the section lines, latitude and longitude of the starting point, chain-age and respective levels of all the points taken on that section line.

¶477

viii. Net area shall be derived after the summation of the area of deposition minus area of erosion for each cross-section. The volume will be estimated by multiplying the distance between two crosssections with the average of net area of these two consecutive crosssections.

¶478

ix. One sample per 900 square meters (30 m x 30 m) shall be preferred sample density for assessment of bulk density for estimation of deposition rate. Care should be taken that the sample for assessment of bulk density is taken from the deposition zone and not from erosion. However, depending on the site condition, river morphology and geographical condition, sample density may be adjusted. Reason for such deviation shall be appropriately highlighted in the report with supporting scientific data.

¶479

5.2.4 Replenishment study shall have the details of

¶480

¶481

 List of instruments

¶482

List of software

¶483

Establishment of Benchmark by putting No. of pillar points and

¶484

various Ground Control Points (GCP) at the site.

¶485

Ground Control Points (GCP) Collection: - Various GCPs were

¶486

observed by using DGPS for Permanent Benchmarks and for control points.

¶487

The summary of the elevation data from each section’s profile based

¶488

on the post-monsoon the survey should have mentioned in the table form.

¶489

The detail of post-monsoon survey data in the tabular form shall be

¶490

The detailed comparison of both pre-monsoon and postmonsoon

¶491

elevation data shall be attached

¶492

Cross-sectional depiction of deposition and erosion for each section

¶493

in pre and post-deposition season shall be given supported by relevant field study data and plan.

¶494

The effective enforcement and monitoring mechanism with publication of annual report has been discussed in Para no. 26, 27 and 28 in O.A. No. 360 of 2015 which is as follows:

¶495

“26. The above discussion shows that the problem has defied solution and unless tackled seriously, damage to the environment will continue. Clear road map is thus required with effective monitoring mechanism. Report of the Oversight Committee for UP and affidavit of the State of MP, the report from Rajasthan and some other States also show that effective mechanism is lacking. For clarity on all issues, periodic interaction of stake holders, particularly the enforcement authorities is required. This will also facilitate engagement of accredited agencies/experts for preparing DSRs/replenishment studies. In the Central Government, the concerned authorities include Mining Ministry, Environment Ministry,

¶496

¶497

Jalshakti Ministry and CPCB. In States, Departments of Mining, Environment, SEIAA, PCB and District Magistrates.

¶498

Enforcement of Monitoring Mechanism and review by the Chief Secretary at State level and Secretary MoEF&CC at National level 27. We direct all the States/UTs to strictly follow the SSMG-2016 read with EMGSM-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.

¶499

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.

¶500

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

¶501

¶502

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.

¶503

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. 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. Publication of Annual Reports

¶504

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 31st March. First such report as on 31.03.2022 may be filed with the MoEF&CC by all he 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 31st May every year.

¶505

¶506

Interaction at National Level

¶507

30. We direct the Secretary MoEF 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 interaction 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

¶508

In view of the above discussions, we are of the view that directions already issued in O.A. No. 360/2015 by this Tribunal must be strictly observed with and in case of non-compliance, the Secretary, Environment of the State must take necessary action.

¶509

We further direct the State Pollution Control Board, to periodically monitor the enforcement of the guidelines as discussed above and in case of violation of rules or guidelines, necessary legal action must be initiated in addition to imposition of environmental compensation. While preparing the DSR the guidelines issued from the MoEF & CC and the directions issued by this Tribunal in O.A. No. 360/2015 in the matter of NGT Bar Association vs. Virender Singh referred above must be strictly observed with.

¶510

The Original Application No. 06 of 2021 is finally disposed of accordingly.

¶511

Sheo Kumar Singh, JM

¶512

Arun Kumar Verma, EM

¶513

16^th December, 2021 O.A. No. 06/2021 (CZ) PU & K

¶514

Prabhat Mohan Pandey S/O Shri Mohan Pandey v. State of Madhya Pradesh through District Collector

Case brief

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What the court decided

Prabhat Mohan Pandey S/O Shri Mohan Pandey v. State of Madhya Pradesh through District Collector

Case brief

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