Suo Motu Action in Illegal Mining for Excavation of Morrum at No. 824 Kha (Khand 4) in Area 12.368 Hectare at Village Agori Khas Tehsil Obra District Sonbhadra vs Union of India

BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI

ORIGINAL APPLICATION NO. 818/2022 (I.A. No. 74/2023)

IN THE MATTER OF:

SUO MOTU ACTION IN ILLEGAL MINING FOR EXCAVATION OF MORRUM AT ARAJI NO. 824 KHA (KHAND 3 AND 4) IN AREA 16.194 AND 12.368 HECTARES, RESPECTIVELY AT

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VILLAGE AGORI KHAS, TEHSIL OBRA, DISTRICT SONBHADRA

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...Applicant

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Versus

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1. Union of India

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through Joint Secretary , Ministry of Environment Forest and Climate Change, Government of India, III^rd Floor, Prithivi Block, Indira Paryavaran Bhawan, Jor Bagh Road, New Delhi 110003

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2. State of Uttar Pradesh

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through Chief Secretary , Government of Uttar Pradesh, Lucknow, Bapu Bhawan, Vidhansabha Marg, Uttar Pradesh -226001

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3. Principal Secretary

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(Geology and Mining) , Govt. of Uttar Pradesh, Lucknow-226001

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4. Principal Secretary , Forest and Wild Life , Govt. of Uttar Pradesh, Lucknow-226001

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5. Principal Secretary , PWD ,

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Government of Uttar Pradesh, Lucknow, Lucknow-226001

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6. Member Secretary , Uttar Pradesh Pollution Control Board , TC 12, Vibhuti Khand, Gomti Nagar, Lucknow-226016

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7. Director, Geology and Mining, Uttar Pradesh Khanij Bhawan, 27/8 Rajaram Mohan Rai Marg, Lucknow-226001

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8. Deputy Director General of Forest (C) , Integrated Regional Office Ministry of Environment Forest and Climate Change Kendriya Bhawan, V^th floor, Sector H Aliganj, Lucknow-226020

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9. District Magistrate, Sonbhadra , Uttar Pradesh-231216

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10. District Mining Officer, Sonbhadra ,

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Uttar Pradesh-231216

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11. Divisional Forest Officer , Obra Forest Division ,

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Obra, Sonbhadra,

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Uttar Pradesh-231219

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12. Divisional Forest Officer ,

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Kaimur Wildlife Forest Division , Mirzapur-231001

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13. Sub Divisional Magistrate, Obra , District Sonbhadra-231219

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14. Sudhakar Pandey

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S/o Shri Doodhnath Pandey,

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Prop. M/s Sudhakar Pandey and Associates, R/o Civil Line Road Tehsil Robertsganj, District-Sonbhadra, Uttar Pradesh - 231216

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15. M/s New India Minerals

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Brahmpuri Colony, 28 Jugauli Crossing, Lucknow-226016, Prop. Mr. Surendra Tiwari, R/o Govindpur Ganeshpur, Akbarpur, District-Ambedkaragar, Uttar Pradesh

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...Respondent(s)

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Counsel for Applicant:

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Mr. Abhishek Kumar Chaubey, Advocate for applicant in IA No. 74/2023

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Counsel for Respondent(s):

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Mr. Mukesh Verma, Advocate for Mining Department, State of UP Mr. Vishwajit Singh, Senior Advocate with Mr. Utkarsh Sharma and Mr. Sharad Chauhan, Advocates for respondents 14 and 15

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CORAM:

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HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE PROF. A. SENTHIL VEL, EXPERT MEMBER

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Reserved on: March 13, 2023 Pronounced on: May 19, 2023

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SYNOPSIS

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Documents	Para No.	Page No.
Facts	3-13	4-12
Tribunal’s order dated 16.11.2022	14	12-13
Joint Committee Report dated 17.02.2023	15-16	13-18
Tribunal’s order dated 20.02.2023	17	18-19
IA No. 67/2023 dated 17.02.2023 filed on 20.02.2023 before	18	19
Tribunal by Ritisha D/o Gopal Gond
Objections dated 03.03.2023 filed on the same date by respondent	19	19-25
nos. 14 and 15 to Joint Committee Report dated 17.02.2023
IA No. 74/2023 dated 02.03.2023 filed on 06.03.2023	20	26
Additional Affidavit dated 17.03.2023 filed by respondent 14	21	26-27
Arguments	22-40	27-35
Issues	41	35
Discussion/Findings on Merits	42-260	35-135
Issues I and II	42-140	35-80
Kaimur Wild Life Sanctuary	47-56	36-40
River Son	57	40-41
Son Ghadiyal Wild Life Sanctuary and Eco-Sensitive Zone	58-67	41-46
Mining and Environment: In Vedic Scriptures	68-81	46-53
Earlier Violations of respondents 14 and 15	98-100	59-67
Violations noticed and observed by Joint Committee in its report	101-140	67-80
dated 17.02.2023
Issue III	141-216	80-115
Principle for computation of environmental compensation	144-214	80-114
Issue IV	217-261	115-136
The Criminal Liability - Offence under Prevention of Money	235-260	126-136
Laundering Act, 2002
Operative Part	262-264	136-138

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JUDGMENT

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BY HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER

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The substantial question relating to environment arising due to implementation of enactments mentioned in Schedule to National Green Tribunal Act, 2010 (hereinafter referred to as ‘ NGT Act, 2010 ’) raised herein is about mining of sand and morrum near Eco-Sensitive Zone (hereinafter referred to as ‘ ESZ ’) and protected reserved forest, in violation of various conditions of Environmental Clearance (hereinafter referred to as ‘ EC ’), consent orders and environmental laws, directly causing damage to environment, aquatic ecology, and in particular flora and fauna in the area under consideration.

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Original Application (hereinafter referred to as ‘ OA ’) under Sections

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14, 15, 16, 17 and 18(1) of NGT Act, 2010 has been preferred by Sandal Parveen D/o Meraj Akhtar resident of Ward No. 1, Babaphulchand Dalit Basti Robertsganj, District Sonbhadra, complaining about mining activities of M/s. Sudhakar Pandey and Associates i.e., respondent 14 and M/s. New India Minerals i.e., respondent 15, at araji no. 824 kha (khand 4), area 12.368 hectares and Araji no. 824 kha (khand no. 3), area 16.194 hectares, respectively, at village Agori Khas, Tehsil Obra, District Sonbhadra, Uttar Pradesh, in violation of environmental laws and norms as also the provisions of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as ‘ MMDR Act, 1957 ’).

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The facts in brief as stated in OA are that applicant is a member of the Trust namely ‘Birsa Munda Foundation and Research Institute’ bearing registration no. 35/2014 situated at behind Chapka Power House Robertganj, District Sonbhadra. Trust is working for betterment and welfare of the society, raising issues relating to environmental pollution in the area of District Sonbhadra, in particular, and State of UP as well as in the area of Singrauli region comprising both parts of State of Madhya Pradesh and Uttar Pradesh, in general. Concern of the applicant is illegal mining on and beyond leased area in River Son, restricted forest and wild life forest area, using heavy machines like JCBs, Poklane etc. and blocking of free flow of Son river at village Mitapur and Kargara, by constructing temporary bridge using hume pipes, causing environmental degradation such as loss of flora and fauna and also by transportation of morrums/sands on heavy trucks, trippers/trailers, heavily overloaded, causing damage of Mitapur Kargara Road-Robertsganj/Varanasi Shaktinagar Road (SH 5A) and also causing heavy dust emissions damaging and effecting air quality as also causing health hazardous to local people.

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Singrauli has been declared as ‘Critically Polluted Industrial Area’ vide Notification dated 13.01.2010 issued by Ministry of Environment and Forests (hereinafter referred to as ‘ MoEF ’) on the basis of Comprehensive Environment Pollution Index (hereinafter referred to as ‘ CEPI ’). Total area of Singrauli, State of Madhya Pradesh is 5672 m² . It consists of North East area of Madhya Pradesh and Southern part of District Sonbhadra of State of UP. It is emerging as energy hub of India and known as ‘Energy Capital’ due to availability of coal and water. Presently, approximately 12000 MW electricity per day is being generated by Thermal Power Plants in Singrauli (Madhya Pradesh). Coal mines and super thermal power plants situated in the area in Singrauli and Sonbhadra produce 83 million tonnes per annum of coal ash and 13200 million watts of thermal power. It is responsible for 16% and/or 10 tonnes per annum of total mercury pollution through power generation i.e., 720 kilograms of mercury per year. In entire Singrauli region (State of Madhya Pradesh and UP), a large number of thermal power plants are running like NTPC’s Vindhyanchal Super Thermal Power Station, Hindalco Industries Power Division, Renusagar, Kanoria Chemicals and Industries (Power Division) Renukoot, NTPC Rihand Nagar, NTPC Shakti Nagar, Obra Thermal Power Station Unit-A and Unit-B, Anpara Thermal Power Station-A, B and C, Hindalco Industries Limited Renukoot, Hi-Tech Carbon Renukoot, Aditya Birla Chemicals Industries, L&T Dalla Cement Dalla, Dalla Cement (Bhalua, Jugal and Padarach Mines), Orient Micro Abrasives Limited, Renukoot etc. These industrial units are creating acute pollution and continuously destroying environment in the area spreading in Singrauli region/area. According to Annual Health Survey of 2010-2011, two and a half times more cases of diarrhea, dysentery and respiratory infections were detected. Besides, maximum number of chronic illnesses such as diabetes, hypertension, tuberculosis, asthma and arthritis were also detected in the

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area. As declared by Environment Ministry, Singrauli is 9^th most critically polluted area in the country. Centre of Science and Environment, after investigation found that mercury, a deadly toxicant coal is slowly entering people’s homes, food, water and even blood. It is highly dangerous to life of peoples and animals. Due to unplanned illegal crusher units working in the area, small invisible dust particles are being emitted causing respiratory and other health adversities. Complaining about degradation of environment in Singrauli area, OA No. 276/2013, Ashwani Kumar Dubey vs. Union of India & Others and OA No. 20/2014, Jagat Narayan Viswakarma and Others vs. Union of India & Others were filed before Tribunal, which constituted a Committee for giving factual report. Interim report was submitted on 07.07.2014. For monitoring of potential hazards of industrial development in Singrauli area, vide order dated 25.08.2014, this Tribunal constituted a core Committee. Ultimately, report dated 20.08.2015 was considered and a detailed order was passed on 06.12.2017 with the following directions:

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“1. We accept the interim report dated 07-07-2014 and final report dated 20-08-2015 filed by the Core Committee before the Tribunal as there are no objections raised by any of the stakeholders before us to the acceptance to the said reports. Consequently, we accept the reports.

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2. Keeping in view of the facts and circumstances of the case, the Core Committee shall conduct a fresh inspection within four weeks from today and all the industries located in the area in question as well as localities around those industries. It will examine whether the recommendations made by the Core Committee already in its report dated 14-02-2014, 07-07-2014 and 20-08-2015 have been implemented or not and how they need to be. If any stakeholder is to be found deficient in compliance in taking action, what action should be taken against those industries or authorities or State Government for that default.

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3. We hereby constitute two separate committees for appropriate implementation of the recommendations made by the Core Committee in their reports and these committees in their respective States shall be responsible for implementation of those directions without any further delay. The Committee shall consist of the followings in each States:

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i.) Secretary Environment of the respective States

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ii.) Member Secretary of the Pollution Control Board of the concerned States

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iii.)District Magistrate of the concerned district who shall be conveners of the meeting.

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iv.)Zila Panchyat Adyayksh of the District in which the village falls inspection of which is being conducted by the Team.

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v.) Nominee of the Mayor in the case of Urban areas.

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vi.)Senior Officer from the Coal Mine Department of the States

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4. This Supervisory Committee shall perform dual functions. First, is with regard to supervision of the implementation and recommendations issued by the Core Committee. Secondly, would also suggest to the Core Committee such further steps that have to be taken in the interest of environment, ecology and public health.

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5. The Supervisory Committee shall submit a monthly report of the Core Committee and the Core Committee in turn shall submit the report to the Tribunal every three months.

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6. We direct that the Member Secretary of the respective State Pollution Control Boards, the District Magistrate of the concerned district and the Director/Partner/Executive Officer of the industry thermal plant shall ensure that every village in the region of Singrauli region including coal mining area, every village is provided with an RO plant and if the population of the village so demands at least two or even more plants shall be provided in that village to ensure that residents of the village get potable water for drinking purposes at any cost. All the industries shall be liable to bear the cost in discharge of their corporate social responsibility as well as on the fact that the existing pollution is attributable to them in one way or the other. The principle of polluter pays has to be invoked but we make it clear that at this stage we are not returning the findings that these industries are causing pollution, as of now. We will leave it to the inspection team to return their findings in that behalf with complete analysis report.

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7. Since this region falls both in the State of Uttar Pradesh and in the State of Madhya Pradesh, both the State Pollution Control Boards along with the Department of Environment of the State Government shall fix on-line air monitoring system. They shall also ensure that water quality monitoring system is also provided wherever the water body or the river is there near to village industrial complexes etc.

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8. We further order and direct that Core Committee upon recommendations of the Supervisory Committee may consider and providing of further time for compliance or directions provided that it is shown that effective steps have already been taken by the industries and they are in the process of compliance of the directions may be like installation of ETP or any other anti-pollution devises that has been recommended or directed.

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9. For installation of RO plant, land would be provided by the Government/Gram Panchayat and entire cost for installation or maintenance would be borne by the industries.

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10.The Supervisory Committee would be at liberty to take input/advise or opinion of any authority or body including Director General of Mines Safety.

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11. All the stone crushers which are operating in these regions without obtaining consent of the Board and permission from the competent authority shall be shut down without further notice. The stone crusher which are permitted to operate would also be responsible for installation of RO system at the place where there are number of stone crushers running and they would be guided by the same directions as we have afore-recorded in the case of industries.”

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Applicant has further pleaded that respondent 14 i.e., M/s. Sudhakar Pandey and Associates is proprietorship Firm of Sudhakar Pandey, resident of Civil Line Road, Tehsil Robertsganj, District Sonbhadra, UP. It was granted mining permit for mining of morrum at araji no. 824 kha (khand 4), village Agori Khas, Tehsil Obra, District Sonbhadra, area 12.368 hectares, with the conditions that no mining outside allotted area or on forest or wild life forest area harming wild life, flora, fauna and vegetation shall be carried out; there will be no mining in a way so that it may harm or block the road right of way, public place, public property, houses etc.; the lessee will not use machines such as JCB or Poklane in the mining activity and will also not block free flow of Son River. However, violating all the norms and conditions, respondent 14 has conducted mining illegally, outside the allotted lease area that is at village Mitapur, on the forest land/wild life forest habitat which is within buffer zone of Kaimur Wild Life Sanctuary; due to continued mining activities carried out illegally, the lessee i.e., respondent 14 has endangered flora, fauna and vegetation along with wild animals such as Black Bucks, Sambhar, Snoth Bears, Wild Boards, Indian Fox, Jackals, Spotted Deer, Striped Hyena, Apes, Chinkara as well as number of water bodies including species of land and water birds, reptilians such as Monitor Lizard, Pythons etc.; lessee had also constructed illegal bridge of hume pipes over River Son, blocking free flow of river; the purpose of

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construction of bridge is for transporting sand by trucks; mining activities also involve mid river mining using heavy machines like JCBs and Poklanes; and it has also cut trees for making ways for transportation of mined mineral.

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Applicant has further said that Kaimur Wild Life Sanctuary including the area to the extent of one km or around the boundary of the said Sanctuary has been declared ‘Eco-Sensitive Zone’ by Government of India in exercise of power under Section 3(2)(v) and (xiv) and (1) of Environment (Protection) Act, 1986 (hereinafter referred to as ‘ EP Act, 1986 ’) read with Rule 5(3) of Environment (Protection) Rules, 1986 (hereinafter referred to as ‘ EP Rules, 1986 ’) vide Notification dated 20.03.2017, copy whereof has been placed on record at page 84 of the paper book. Respondent 14 was issued a Term of Reference (hereinafter referred to as ‘ ToR ’) for the aforesaid mining activity by State Level Environment Impact Assessment Authority, UP (hereinafter referred to as ‘ SEIAA UP ’) vide letter dated 02.11.2021. Standard ToR is also given in the said letter along with additional ToR, copy whereof has been filed as annexure-2 at page 75 to the paper book.

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Similarly, respondent 15, M/s. New India Minerals, a proprietorship Firm, owned by Surendra Tiwari resident of 190, Govind Pur, Ganeshpur, Akbarpur District Ambedkar Nagar, UP, was issued Environmental Clearance (hereinafter referred to as ‘ EC ’) vide letter dated 01.12.2021 by SEIAA UP for carrying out river bed morrum mining (Son River) at Araji No. 824 kha (khand no. 3), area 16.194 hectares at village Agori Khas, Tehsil Obra, District Sonbhadra; copy of EC dated 01.12.2021 is on record at page 109 of paper book. EC allowed collection of 259102 m³ per annum mineral for one year; various conditions i.e., General and Specific, subject whereto EC was granted, are also mentioned in the said EC and we

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propose to refer the relevant conditions as and when it is required.

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Respondent 15, however, in violation of the conditions of EC has proceeded with illegal mining of morrum on and outside the allotted lease area at village Kargara, on the forest land/wild life forest habitat which is within buffer zone of Kaimur Wild Life Sanctuary; illegal mining carried out by respondent 15 has endangered flora-fauna and vegetation along with wild animals such as Black Bucks, Sambhar, Snoth Bears, Wild Boars, Indian Fox, Jackals, Spotted Deer, Striped Hyena, Apes, Chinkara as well as number of water bodies including species of land and water birds, reptilian such as Monitor Lizard, Pythons etc.; respondent 15 had also constructed illegally, bridge of hume pipes over River Son, blocking free flow of river for transporting its sands by trucks; and is also carrying out mining illegally using heavy machines like JCBs and Poklanes.

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Applicant has also filed some photographs showing mining with use of heavy machines by both respondents 14 and 15. Applicant has also made a complaint to District Magistrate, Sonbhadra against illegal mining carried out by respondents 14 and 15. District Magistrate constituted a five members Committee under Sub-division Magistrate, Obra to enquire into the complaint. The Committee submitted report on 06.05.2022 finding illegal mining by both the respondents as a result whereof, a fine of Rs. 3,46,98,500/- was imposed upon respondent 14 for illegal mining of 36615 m³ of morrum at Mitapur while fine of Rs. 2,69,12,500/- was imposed upon respondent 15 for illegal mining of 27590 m³ morrum at village Kargara .

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Since illegal mining continued, a complaint was made on 12.08.2022 by Ritisha, copy whereof has been filed as annexure 4, page 130 of paper book. On the said complaint, Shri Manoj Kumar, Mining

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Inspector submitted report dated 24.08.2022 to Officer Incharge, Collectorate, Sonbhadra stating that as per Enquiry Report dated 06.05.2022, both the respondents were found guilty of illegal mining beyond the leased area and for that reason, penalty of Rs. 3,46,98,500/and Rs. 2,69,12,500/- was imposed upon respondents 14 and 15, respectively, which has been deposited by them . Presently, due to monsoon season, mining activities of morrum and its transportation is completely closed.

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It is also said that National Board of Wild Life (hereinafter referred to as ‘ NBWL ’) adopted ‘The Wild Life Conservation Strategy, 2002’ and took a decision in its meeting held on 21.01.2002 under the Chairmanship of Prime Minister to notify areas within 10 kms from the boundaries of National Parks and Sanctuaries as ‘Eco-fragile Zones’ under Section 3(V) of EP Act, 1986 and Rule 5(1)(viii)(x) of EP Rules, 1986.

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It is said that in grant of EC, there is violation of the said decision of NBWL, in as much as, mining activities have been allowed within 10 kms of National Parks, Sanctuaries and Protected Forest Areas. Mining and related activities, on the principle of sustainable development comes within the concept of ‘balancing’ whereas mining and related operations beyond the principle of sustainable development comes within the concept of banning. It is a matter of degree. Balancing of mining activity with environment protection and banning such activity are two sides of same principles of sustainable development. They are part of precautionary principle. Environment and ecology are national assets. They are subject to inter-generational equity, sustainable development principle and part of Article 21, 48-A and 51-A(g) of Constitution of India. Information under Right to Information Act, 2005 (hereinafter referred to as ‘ RTI Act, 2005 ’) was also sought by the members of Trust of which applicant is also

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member and in reply thereof, illegal mining activities beyond leased area by respondents 14 and 15 were confirmed. One of such information given by Senior Mine Officer, Public Information Officer, Sonbhadra vide letter dated 16.08.2022 to Shri Mehfooz, a member of Birsa Munda Foundation and Research Institute is on record at page 141 which in reply to items 1 and 2, has said that respondents 14 and 15 were found conducting mining illegally, beyond their leased area and imposed penalty of Rs.

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3,93,10,500/- and Rs. 2,86,56,000/- respectively which was deposited by them through challan.

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In the above factual backdrop, applicant has prayed that mining leases granted to respondents 14 and 15 be immediately cancelled; and heavy penalty be imposed upon them as per law of restitution of environment; they should be directed to restrain from using heavy machines and after making survey of damages and losses caused to the local people, suitable compensation be determined and awarded under Section 15 of NGT Act, 2010, also for restitution of ecology and environment and the officer(s) responsible for failure of statutory duties should be identified and proceeded against, in accordance with law. It is also said that for causing loss to environment due to construction of illegal bridges over Son River, appropriate compensation should be assessed and imposed upon proponents i.e., respondents 14 and 15.

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Tribunal’s order dated 16.11.2022:

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OA was taken up for admission on 16.11.2022 and after considering the facts stated in OA, Tribunal found it appropriate to constitute a fact-finding Committee comprising Regional Officer, Ministry of Environment, Forest and Climate Change (hereinafter referred to as ‘ MoEF&CC ’), Lucknow, (Chief Conservator of Forest); Member Secretary, UP Pollution Control Board (hereinafter referred to as ‘ UPPCB ’) and District

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Magistrate, Sonbhadra. The said Committee was directed to submit a factual report. It was also mentioned in the order dated 16.11.2022 that Committee may put the identified violators to the notice of the proceedings and a copy of report be furnished simultaneously to them so that they may also have an opportunity of filing their response before Tribunal.

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Joint Committee Report dated 17.02.2023:

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Pursuant to Tribunal’s order dated 16.11.2022, Joint Committee was nominated comprising following:

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(i) Dr. A.K. Gupta, Additional Director, nominee of Regional Officer (Chief Conservator of Forest), Integrated Regional Office, MoEF&CC, Lucknow.

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(ii) Shri Sahdeo Kumar Mishra, ADM (F/R), Sonbhadra, nominee of District Magistrate, Sonbhadra.

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(iii) Dr. T.N. Singh, Regional Officer, Sonbhadra, nominee of UPPCB, Lucknow.

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Committee visited the site on 09.12.2022, collected factual information and submitted report with its observations and

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recommendations as under:

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“1. M/s Sudhakar Pandey and Associates R/o of Civil Line Road, Robertsganj, Sonbhadra for Morrum Mining at Arazi 824 Kha (Khand -04), Village- Aghori Khas, Teh.Obra, District-Sonbhadra.

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a) The details of the above project & permissions obtained are as follows:

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Sanctioned lease area 12.368 ha, in bench of River Sone

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Lease holder obtained Environmental clearance vide letter no. EC21B001UP144167-File No.-6748/6321 dated 22.12.2021 for sand/morrum mining in the lease area of 12.368 ha.

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Lease holder obtained consent to operate vide letter no.148535/UPPCB/Sonebhadra(UPPCBRO)/CTO/ water/Sonbhadra/2022 dated 25.01.2022, which is valid from 24.01.2022 to 31.12.2024 and 148529/UPPCB/Sonebhadra(UPPCBRO)/CTO/air/ Sonbhadra/2022 dated 25.01.2022, which is valid

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from 24.01.2022 to 31.12.2024 for 197,888 cubic meter/year mining of sand/morrum.

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b) Major observation:

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As per the specific condition of EC no. 1, it is clearly stated that “In absence of the replenishment study keeping in mind of various orders issued by Hon’ble NGT and the developmental work in the state, EC is granted for period of one year” i.e., up to 21.12.2022.

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SEIAA-UP vide MoM of 685^th meeting held on dated 31.12.2022 extended the validity of EC for further one year. (MoM attached as Annexure B)

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Committee has been observed that the lease holder doing significant mining outside of the lease area (towards main stream of river) , committee unable to visit the outside of the lease area (towards main stream of river), where mining is being conducted by lease holder, due to creation of heavy trench, committee could not visit the illegal patch of the land, which seems be created by lease holder before visit of the committee.

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Significant mining outside of the lease area is also evident from the Google satellite image dated March, 2022. (Google satellite image attached as Annexure C)

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Satellite image also depicted that the area of mining outside of the lease is about 5.44 ha

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As mentioned above, illegal mining is being done by the lease holder in the main stream of the river (outside of the lease area), may certainly be change the course of river flow & its velocity and its quality, which is contradictory to EC General Condition no. 13.

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It has also been observed that the lease holder setup weigh bridge, borewell, office outside of the lease area, etc.

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Boundary pillars is not properly erected on each corner of the lease.

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No plantation has been done so far .

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Sufficient evidences has been observed by committee, which shows that the lease holder are using various machine for river bed mining in lease and outside of the lease area.

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Lease holder has not made motorable approach road with both side plantation .

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It has also been observed that the mining activity is also going on the main stream of river Sone, i.e., outside of the lease area.

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Google satellite images taken on various time intervals clearly reflected that the illegal mining status beyond the lease area before start of mining and in between the mining.

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One borewell is found in running condition without statuary approvals .

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Depth of the pit seems more as specify in the EC.

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The weighing bridges have been installed by these mines and the data is transmitted into the server.

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2. M/s New India Minerals Village- Aghori Khas, Teh.Obra, District-Sonbhadra.

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a) The details of the above project & permission obtained are as follows:

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Sanctioned lease area 16.194 ha, in bench of River Sone.

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Lease holder obtained Environmental clearance vide letter no. EC21B001UP196497-File No. 6257 dated 01.12.2021 for sand/morrum mining in the lease area of 12.368 ha.

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Lease holder obtained consent to operate vide letter no. 143269/UPPCB/Sonebhadra (UPPCBRO)/CTO/air/Sonbhadra/2021 dated 08.12.2021, which is valid from 08.12.2021 to 31.12.2022. And 143270/UPPCB/ Sonebhadra (UPPCBRO)/CTO/water/Sonbhadra/2021 dated 08.12.2021, which is valid from 08.12.2021 to 31.12.2022 for 259104 cubic meter/year mining of sand/morrum.

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Latest consent to operate (CTO) vide letter 170202/UPPCB/Sonebhadra (UPPCBRO)/CTO/both/Sonbhadra/2022 dated 13.01.2023, which is valid from 01.01.2023 to 31.12.2024 for mining of sand and morrum with 259104 cubic meter/year.

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b) Major observation:

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As per the specific condition of EC no. 1, it is clearly stated that “In absence of the replenishment study keeping in mind of various orders issued by Hon’ble NGT and the developmental work in the state, EC is granted for period of one year”.

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SEIAA-UP vide MoM of 685^th meeting held on dated 31.12.2022 extended the validity of EC for further one year. (MoM attached as Annexure B)

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Committee has been observed that the lease holder doing significant mining outside of the lease area (towards main stream of river), committee unable to visit the outside of the lease area (towards main stream of river), where mining is being conducted by lease holder, due to creation of heavy trench committee could not went in that patch of land, which seems be created by lease holder before visit of the committee.

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Significant mining outside of the lease area is also evident from the Google satellite image taken of dated. (Google satellite image attached as Annexure D)

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Significant mining outside of the lease area is also evident from the Google satellite image dated March, 2022.

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Satellite image also depicted that the area of mining outside of the lease is about 4.72 ha towards main stream.

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As mentioned above, illegal mining is being done by the lease holder in the main stream of the river (outside of the lease area), may certainly be change the course of river flow & its velocity and its quality, which is contradictory to EC General Condition no. 13.

¶145

Lease holder has also not made motorable approach road with both side planation in area .

¶146

It has also been observed that the lease holder setup weight bridge, borewell, DG sets, office outside of the lease area, etc and it seems that the above facilities has been setup on the government land,

¶147

Borewell is found in running condition without statuary approvals .

¶148

The weighing bridges have been installed by these mines and the data is transmitted into the server.

¶149

It has been found that the compliance of Environmental clearance condition and CTO condition are pathetic.

¶150

None of the statuary permission (EC, CTO, production, compliance report, lease document, mining plane etc) available with the representative of lease holder.

¶151

3. Other observation

¶152

At the time of inspection, it was found that the Kachha path constructed by the mines lease holders for transportation of the sand from the lease area has been disturbed by keeping overburdens on the road in a such a way that the Committee may not reach to the illegal mining lease site outside the co-ordinates of the lease area . However, the committee member tried to see the factual situation and accordingly it was visible that 03 mines pit are operational outside the lease boundary . The illegal mining area could not be measured; however, it is visible on the Google earth and Google satellite image is attached as Annexure C, D & E .

¶153

As per Google earth images, there are three illegal pits visible near the mine of M/s Sudhakar Pandey and Associates, the area of these illegal pits is 5.44 ha. Similarly, three illegal pits of 4.72 Ha area have existed near the mine area of M/s New India Minerals.

¶154

The illegal mining pits are located towards the center of the river course which can severely affect the river economy .

¶155

Temporary bridge structure is also visible across the river course which can interrupt the flow of the river .

¶156

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It has been found that the compliance of Environmental clearance condition and CTO condition are pathetic in both the mining lease.

¶158

4. Environmental compensation (EC) imposed due to mining in outside of the lease and over production

¶159

Committee vide letter no. G000081/OA No.818/2023 dated 28.01.2023 requested to Senior mining officer, Sonbhadra to provide various information including production details, any illegal mining reported to M/s New India mineral and M/s Sudhakar Pandey & associate of above mentioned lease. No reply has been received so far .

¶160

As mentioned above both the lease holder doing significant mining in outside of their lease area (illegal mining), as the data of production is not available with committee, therefore, committee is in opinion to impose Environmental compensation (EC) based on the area covered under illegal mining as mentioned above.

¶161

As per Google earth images, there are three illegal pits visible near the mine of M/s Sudhakar Pandey and Associates, the area of these illegal pits is 5.44 ha and three illegal pits of 4.72 Ha area have existed near the mine area of M/s New India Minerals. The depth of the pits couldn't be verified because the way of the pits were not approachable . As per environmental clearance of SEIAA-UP granted to this project, the maximum depth of the pits shouldn't be more than 3 Meters. Hence, taking the average depth of 1.5 meter, the volume of extracted illegal sand can be calculated. Hence the volume of the sand shall be equal to area * depth.

¶162

The depth of the illegal mining pits mentioned above is not measurable. And hence, the excavated quantity could not be estimated accurately. The EC calculated above is approximation. The accuracy can be verified by measuring the depth employing drone mapping or Google satellite mapping.

¶163

As per CPCB guidelines, the environmental compensation has been calculated as follows :

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Environmental Compensation charge (In Rs.) = D × (1+RF+DF)

¶165

Where, D = Z x Market Value of the material per MT or m3 DF= 0.3, if Z/X=0.11 to 0.40

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0.6, if Z/X=0.41 to 0.70

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1, if Z/X>=0.71

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RF=0.25, 0.50, 0.75, 1.00 as per risk level mentioned below: Risk Level 1 2 3 4 Risk Factor 0.25 0.50 0.75 1

¶169

The details of Environmental Compensation/Charge are tabulated below:

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*S.N.*	*Lease holder*	*Environmental* *Compensation/charge* *(in Rs.)*
1.	M/s Sudhakar Pandey and Associates Aghori Khas, Teh.- Obra, District-Sonbhadra (Lease area 12.36 ha)	Rs.*8,16,00,000.00* (Rupees Eight Crores Sixteen lakhs Only)
2.	M/s New India Minerals Village- Aghori Khas, Teh.- Obra, District- Sonbhadra (Lease area 16.194 ha)	Rs.*7,08,00,000.00* (Rupees Seven Crores Eight lakhs Only)

¶172

5. Recommendations:

¶173

The amount collected under Environmental compensation by lease holder can be utilize for betterment of the local area including construction of motorable road with both side tree planation, dragging of main course of River Sone and protection of Agroi kahs kila.

¶174

State mining department can be strengthened by drone survey/mapping tools, for controlling of illegal mining in the main stream of the river Sone etc in near future,

¶175

State mining department can be strengthened by drone survey/mapping tools, for controlling of illegal mining in the main stream of the river Sone etc in near future,

¶176

Production capacity of each mine in area in question can re-assess based on the replenishment study conducted by Mining Department.

¶177

It has come to noticed that the established weight bridge, DG sets, borewell, hutment cum office, of both the lease holder arc either in government land or other land, which need to be verified by local administration and initiate further legal action, if found false.

¶178

For betterment of the compliance status in mining lease area regular monitoring can be ensure by local mining department, Regional Office of UPPCB etc.”

¶179

Tribunal’s order dated 20.02.2023:

¶180

The report of Joint Committee was considered by Tribunal on 20.02.2023. On this date, two IAs i.e., 55/2023 and 56/2023 were filed on behalf of applicant Sandal Parveen whereby permission to change counsel was sought and it was also stated that applicant be permitted to withdraw OA. Tribunal deprecated and condemned the conduct of applicant but disposed of both the applications holding that the applicant may withdraw herself from the matter but the proceedings will continue as suo-moto action by Tribunal with the change of cause title. Thereafter,

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report was considered. It was found that the copy of the report, despite order was not supplied to the identified violators i.e., respondents 14 and 15. Hence they did not have any opportunity to file their objections, if any. Consequently, Tribunal issued notices and granted them time to file their response/objections to the report as well as to the averments made in OA.

¶183

IA No. 67/2023 dated 17.02.2023 filed on 20.02.2023 before Tribunal by Ritisha D/o Gopal Gond:

¶184

Ritisha is also member of Birsa Munda Foundation and Research Institute and making similar allegations as made in OA, this IA has been filed with similar prayer as made in OA. The additional facts are that some more areas have been mentioned and reference of some more mining lease holders has been given namely M/s. Veera Construction under the proprietorship of Rameshwar Prasad besides respondents 14 and 15. It is also said that some more mining leases have been granted for mining activities in Son River running through different villages. It is also said that an area of 200 kms of river Son starting from Sidhi District, Madhya Pradesh to Chopan District Sonbhadra was declared as ‘Son Ghadiyal Sanctuary’, a Protected Area , in 1981. It is reserved for alligators, crocodiles, tortoises and other reptiles, found in the said river. Mining activities in river Son are adversely affecting aquatic animals in the river which is already part of protected area having been declared as ‘Son Ghadiyal Wild Life Sanctuary’. She was allowed to address Tribunal in support of OA.

¶185

Objections dated 03.03.2023 filed on the same date by respondents 14 and 15 to Joint Committee Report dated 17.02.2023:

¶186

Respondents 14 and 15 have filed jointly the said objections to the report. Since it is the only document filed in support/defense of respondents 14 and 15, we find it appropriate to reproduce defense taken by them in the said objections from para 4 to para 26 as under:

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“ 4. That is respectfully submitted that four blocks of land were carved out of Khasra No. 824 Kha, situated in Village Aghori Khas, Tehsil Obra, District Sonbhadra by the State Government, after obtaining No Objection Certificates from the Divisonal Forest Officer, Obra Forest Division, Sonbhadra as well as from the Divisional Forest Officer, Kaimur Wildfile Sanctuary Division, with the Answering Respondents in no manner being involved in the process of earmarking of the blocks of land for grant of mining leases . Since a detailed survey had been done by the State Government before carving out the blocks and NOC’s had been obtained from the concerned authorities, there is no question of the blocks of land being within the forest land or within the Eco Sensitive Zone of the Kaimur Wildlife Sanctuary.

¶189

5. That after carving out of the blocks of land, auction proceedings were initiated and a public advertisement was published by the office of the District Magistrate, Sonbhadra informing the public at large about the grant of mining leases in the four blocks of land, through the process of e-tender cum e-auction. The Answering Respondents participated in the auction proceedings and emerged as the successful bidders in respect of two out of the four blocks , with Respondent No. 14 being the successful bidder in respect of Khand-4, measuring 12.368 Hectares, and Respondent No. 15 being the successful bidder in respect of Khand-3 [16.194 Hectares].

¶190

6. That subsequently, after the deposit of the tender security amount, Letter of Intent dated 18.03.2021 was issued in favor of Respondent No. 14 and after sanction of the Mining Plan and issuance of the Environmental Clearance on 02.11.2021 and completion of other formalities, including deposit of forty five percent of the royalty payable in the first year of the lease deed [Rs. 4,59,49,594/-], Lease Deed dated 01.01.2022 was registered in favor of Respondent No. 14, with a stamp duty of Rs. 2,49,35,800/- being paid by Respondent No. 14 at the time of registration of the Lease Deed and Rs. 62,50,000/- as registration charges.

¶191

7. That similarly, Letter of Intent dated 08.01.2021 was issued in favor of Respondent No. 15 and after sanction of the Mining Plan, issuance of Environmental Clearance on 01.12.2021 and deposit of fifty percent of the royalty amount payable for the first year [Rs. 5,51,89,152/-], Lease Deed dated 13.12.2021 was registered in favor of Respondent No. 15, with an amount of Rs. 2,69,55,000/being paid by Respondent No. 15 towards stamp duty and Rs. 66,33,000/- towards registration charges.

¶192

Copies of Lease Deeds of the Answering Respondents are annexed and marked as ANNEXURE-1 [COLLY].

¶193

8. That subsequent to the registration of the Lease Deeds, when the Answering Respondents commenced their mining operations, they realized that large-scale illegal mining is being done by the local inhabitants/ landowners of the area in close vicinity to the lease areas of the Answering Respondents, with attempts also being made to infiltrate the lease areas of the Answering Respondents. The

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Answering Respondents also came to know that such illegal mining, on the part of the local landowners, whose lands were situated all along the river bed of River Sone, had been going on since before the commencement of the mining leases of the Answering Respondents and due to insufficient replenishment in the area, there were pits present within the lease areas of the Answering Respondents even before their mining operations had commenced.

¶196

9. That when the Answering Respondents brought the same to the attention of the local authorities, they were surprisingly informed that this menace has been going on for some time and that they should be concerned about their operations and it is their responsibility to demarcate their area and ensure that the local landowners are not able to infiltrate into their area. Copies of Maps, showing the layout of the area in the vicinity of the lease areas of the Answering Respondents, are annexed and marked as ANNEXURE-2 [COLLY].

¶197

10.That the Answering Respondents were also informed that under the Ret Khet Scheme, mining permissions, for short periods of three months, were also granted by the State Government to the local landowners, permitting them to mine the sand found in their land. However, the local inhabitants never confined themselves to their land and did large scale illegal mining in the entire area near the river bed . Some of the short-term mining permissions, granted in favor of the local landowners by the State Government, are annexed and marked as ANNEXURE-3 [COLLY].

¶198

11.That even though the access road to the lease areas of the Answering Respondents passed through the land of the local landowners and the Answering Respondents had already been threatened with dire consequences in case they tried to pose hurdles in the illegal mining being done by the local inhabitants, who were large in number and wielded great influence and were fully capable of resorting to violence, the Answering Respondents still mustered courage and brought this menace of large scale illegal mining, being done by the local landowners, to the attention of the authorities on several occasions, through letters and representations . The menace of illegal mining being done by the local landowners was also highlighted by the local media through several news reports. However, the local authorities lent a deaf ear to all such complaints made by the Answering Respondents and to the news articles and it is then that the Answering Respondents came to know through sources that the local authorities work in collusion with the landowners and secure illegal gains from them, in return for not impeding their illegal operations. Copies of the letters written by the Answering Respondents, along with the newspaper clippings, highlighting the rampant illegal mining being done by the local landowners, are annexed and marked as ANNEXURE-4 [COLLY].

¶199

12.That due to the patronage enjoyed by them from the authorities, the pace of the illegal mining being done by the local landowners increased drastically after the commencement of the mining leases of the Answering Respondents, because the local inhabitants realized that once the leaseholders of the other two blocks, which

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had been auctioned and which, together with the blocks of the Answering Respondents, encompassed the majority 12 303 of the area in the river bed of River Sone, completed their formalities and commenced their mining operations, then it will be very difficult for them to undertake illegal mining operations along the river bed.

¶202

13.That is respectfully submitted that even in the replies submitted by the Answering Respondents to the authorities, in response to the Show Cause Notices dated 08.02.2022, 22.03.2022 and 10.05.2022 issued to them for mining outside their lease area, it had been categorically mentioned by the Answering Respondents that they had not done any mining outside their lease area and that the illegal mining, noticed during the inspections, was being done by the local inhabitants and the same had already been informed to the authorities by the Answering Respondents . However, the authorities, without considering the replies of the Answering Respondents, proceeded in a predetermined manner and imposed penalties on the Answering Respondents for mining outside their lease area, in order to safeguard themselves and cover the fact that illegal mining was being done by the local landowners with the patronage of the authorities. Copies of the Replies to the Show Cause Notices, submitted by the Answering Respondents, along with the show causes notices are annexed and marked as ANNEXURE-5 [COLLY].

¶203

14.That the Answering Respondents were contesting the penalties imposed on them but in the meantime, the authorities threatened that in case the penalties imposed on the Answering Respondents are not deposited, they shall stop their mining operations and block the issuance of their OTP’s, which are required by the Answering Respondents for generation of the MM-11 Forms. The authorities, acting on the said threat, once even blocked the issuance of the OTP’s in the case of both the Answering Respondents. Because of the said situation, the Answering Respondents were constrained to deposit the penalties, amounting to Rs. 3,93,10,500/- in the case of Respondent No. 14 and Rs. 2,69,12,500/- in the case of Respondent No. 15, to the authorities. The said deposit was made under protest by the Answering Respondents without prejudice to their contentions on the issue .

¶204

15.That it is categorically stated that no mining is being done by the Answering Respondents outside their lease area and even within their area, the Answering Respondents have been undertaking mining after ensuring strict compliance of the applicable norms, while also complying with the conditions contained in their Environmental Clearances. Contrary to the observations contained in the Inspection Report submitted to this Hon’ble Tribunal by the Joint Committee, the Answering Respondents have ensured that a motorable approach road is present from their lease areas to the main road and adequate plantation has also been done by the Answering Respondents. Copies of documents, evidencing the plantation done by the

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Answering Respondents, are annexed and marked as ANNEXURE-6 [COLLY].

¶207

16.That it is also pertinent to highlight that a huge sum of money, amounting to 10% of the total sum of royalty paid by the Answering Respondents to the State Government [the total royalty was Rs. 10,21,10,208/- in the first year in the case of Respondent No. 14 and Rs. 11,03,78,304 in the case of Respondent No. 15], has been deposited by the Answering Respondents in the Uttar Pradesh District Mineral Foundation Trust, which, as per the mandate of Rule 17 of the Uttar Pradesh District Mineral Foundation Trust Rules, 2017 [amended in 2020], is to be utilized for creating basic infrastructure in the area, inter-alia including construction and maintenance of approach road, electricity, sanitation and providing drinking water supply and for undertaking environment preservation and pollution control measures in the mining areas, inter-alia including common plantation in/around area affected by mining operations and measures to prevent illegal mining. However, not a single penny out of the said amount has been spent by the State Government till date in either providing any facilities around the lease areas of the Answering Respondents or in undertaking measures to prevent illegal mining being done by the local landowners, which could have drastically improved the situation in the area . Presumably, this has not been done by the authorities because the same would have caused disruption in their designs to abet the illegal mining being done by the local landowners. Copy of Rule 17 of the Uttar Pradesh District Mineral Foundation Trust Rules, 2017 [amended in 2020] is annexed and marked as ANNEXURE-7.

¶208

17.That it is submitted that the Answering Respondents are operating with valid permissions required by them under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, with the latest consents being valid till 31.12.2026 in the case of Respondent No. 14 and till 31.12.2024 in the case of Respondent No. 15.

¶209

Copies of the consents, granted to the Answering Respondents under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, are annexed and granted as ANNEXURE-8 [COLLY].

¶210

18.That it is pertinent to mention that Respondent No. 15 has also got the No Objection Certificate [Valid from 20.12.2021 to 19.12.2026] issued from the Uttar Pradesh Ground Water Department, in respect of the borewell present in its lease area . In so far as Respondent No. 14 is concerned, contrary to what has been stated in the Report of the Joint Committee, it is respectfully submitted that there is no borewell situated inside the lease area of Respondent No. 14 and the water required for drinking and other activities is procured by Respondent No. 14 from external sources at its own cost. Hence, there is no question of any permission being required in respect of any borewell by Respondent No. 14. The said position can be easily verified through an inspection of the lease area of Respondent No. 14. Copy of the NOC dated 26.12.2021, issued by the Uttar

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Pradesh Ground Water Department in favor of Respondent No. 15, is annexed and marked as ANNEXURE-9.

¶213

19.That it is also apposite to mention that without conducting a fact finding exercise and without studying the role of the local inhabitants/landowners, a blatant and partisan attempt has been made by the Joint Committee, comprising of members of the local authorities, who are fully aware of the real ground situation, to safeguard themselves and mask their collusion with the local landowners, by attributing all mining done in the entire area, adjacent to the river bed of River Son in Village Aghori Khas, to the Answering Respondents and recommending imposition of Environmental Compensation on the Answering Respondents, without any fault on their part. The various complaints given to the authorities by the Answering Respondents, as well as the various news reports, highlighting illegal mining being done by the local landowners, have been deliberately concealed by the Joint Committee from this Hon’ble Tribunal, in order to unfairly and unjustifiably lay the blame on the Answering Respondents.

¶214

20.That the Joint Committee , acting contrary to the directions of this Hon’ble Tribunal, contained in order dated 16.11.2022, also neither interacted with the Answering Respondents at the time of the inspection nor did it provide any intimation of the inspection to the Answering Respondents, which would have enabled the Answering Respondents to apprise the Committee member, who had come from outside, about the correct position . The Joint Committee conducted the inspection in a superficial manner and without applying its mind or seeking to ascertain the correct position or make a proper assessment of the quantum of illegal mining, resorted to assumptions and conjectures in attributing the entire fault to the Answering Respondents and recommending imposition of an exorbitant amount as environmental compensation on them.

¶215

21.That it is humbly submitted that if the Answering Respondents had to undertake illegal mining like the local landowners, then they could have done the same without subjecting themselves to the regulatory framework and without spending huge sums of money, amounting to several crores, in taking part in the auction proceedings, getting their lease deeds registered and paying royalty to the State Government, apart from GST@18% and contribution into the District Mineral Foundation Trust@10%. It is very unnatural that the Answering Respondents will be willing to put at risk such substantial investments and the future of their Lease Deeds, which are for a duration of five years, by indulging in illegal mining from the first year of their lease itself and getting some little gains through the same.

¶216

22.That the fact of the matter is that the Answering Respondents are themselves the victims in the present case, as they have first been threatened with dire consequences by the local landowners , have not received any help or support from the authorities, who are hand in gloves with the local landowners, and now it is the Answering Respondents who are sought to be made the scapegoats by the authorities for the illegal mining done in the

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area, despite the authorities being fully aware that the Answering Respondents have got absolutely nothing to do with the same.

¶219

23.That it is respectfully submitted that a fair, impartial and a proper fact-finding investigation by an independent agency, shall reveal the truth behind the matter and shall help in uncovering the collusion of the authorities with the local landowners, because of which large scale illegal mining has taken place on the river bed of River Sone and which has also caused a lot of harassment and inconvenience to the Answering Respondents. It is humbly prayed that this Hon’ble Tribunal may kindly order such an inquiry so as to safeguard the environment and also to find the real perpetrators behind the illegal mining.

¶220

24.That it is again reiterated that the Answering Respondents have always done mining within their area and within the limits specified in their Environmental Clearance. The same can be evidenced from the MM-11 Forms generated in respect of the lease areas of the Answering Respondents. Further, the trucks of the Answering Respondents, carrying the mined material from the lease areas, are also regulated by the mining department so there is no question of the Answering Respondents indulging in any illegal mining or transporting illegally mined material. Further, the JCB machines, reference to which has been made in the Joint Committee Report, are used by the Answering Respondents within their lease areas for lifting the mined material but the same are not used outside the lease areas by the Answering Respondents for any purpose, leave alone for river bed mining . It is submitted that the local landowners have been using machines during their illegal mining operations and information regarding the same has been given to the authorities by the Answering Respondents.

¶221

25.That as is evident from the above submissions, the illegal mining in the area around the lease areas of the Answering Respondents is being undertaken by the local landowners, with the collusion and support of the authorities, with an attempt being made to lay the blame for the same on the Answering Respondents . In such circumstances, it is respectfully prayed that this Hon’ble Tribunal may direct for a fair, impartial and independent inquiry and investigation to be conducted, with a fair opportunity to the Answering Respondents to participate in the same, which shall unravel the truth and unmask the real perpetrators of the illegal mining. The Answering Respondents undertake to render full assistance and cooperation in any such inquiry which may be held pursuant to the directions of this Hon’ble Tribunal.

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26.That it is also prayed that since no illegal mining is being done by the Answering Respondents, this Hon’ble Tribunal may kindly be pleased to vacate its order dated 20.02.2023 and while dismissing the present Original Application qua the Answering Respondents, permit the Answering Respondents, premised on them being subjected to the strictest regulatory supervision and oversight while undertaking their mining operations, to resume their mining operations, in consonance with their lease deeds.”

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IA No. 74/2023 dated 02.03.2023 filed on 06.03.2023:

¶225

This IA has been filed by Chaudhary Yashwant Singh S/o Late Ratiram Singh claiming himself to be President of Bhartiya Samajik Nyay Trust. He has also come with the same allegations as made in OA as also IA No. 67/2023. We do not find any reason to give details/contents of this IA which are similar to the facts already stated in respect of OA and IA No. 67/2023. He was allowed to address Tribunal in support of OA.

¶226

Additional Affidavit dated 17.03.2023 filed by respondent 14:

¶227

It is said that District Survey Report (hereinafter referred to as ‘ DSR ’) in respect of excavation of mineral in District Sonbhadra was prepared jointly by Directorate of Geology and Mining, State of UP and District Environment Impact Assessment Authority (hereinafter referred to as ‘ DEIAA ’) and approved on 28.11.2018, subsequent to which several blocks of land, including four blocks in khasra no. 824 kha, were carved out by State Government for grant of mining leases, through auction. Copy of the said DSR, approved on 28.11.2018 by DEIAA and District Level Assessment Committee (hereinafter referred to as ‘ DEAC ’), has been filed as Annexure A-1. It is also said that Sand Replacement/Replenishment Study, in respect of River Sone in District Sonbhadra was also conducted by Central Mines Planning and Design Institute Limited, Ranchi (hereinafter referred to as ‘ CMPDIL Ranchi ’), State of Jharkhand. Report was submitted to District Magistrate, Sonbhadra vide letter dated 30.12.2022 which is filed as annexure A-02 to Additional Affidavit. In para 7, it is said that since mining operations have been stopped pursuant to Tribunal’s order dated 20.02.2023, respondent 14 is willing to resume mining operations at the earliest after curing deficiencies indicated in Joint Committee Report and to put a quietus to issue, he is willing to deposit environmental compensation of Rs. 8.16 Crores, as recommended by

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Committee, but he may be allowed to pay in installments. Hence, he may be allowed to pay the said environmental compensation over a period of six months. Further, it is said that on submission of Compliance Report by respondent 14 to the authorities, it may be allowed to resume mining operations subject to adherence to applicable norms and conditions stipulated in EC.

¶230

ARGUMENTS:

¶231

The case set up in OA and as is evident from Joint Committee’s report is that mining activities are being carried out by respondents 14 and 15 in utter violation of environmental laws and norms; it is degrading and damaging not only ecology of eco-sensitive zones but also environment in general; Araji no. 824 kha (khand 4), area 12.368 hectares and Araji no. 824 kha (khand 3), area 16.194 hectares are within the buffer zone of protected wild life sanctuaries where mining activities are not permissible; mining activities are being carried in the river bed by obstructing free flow of River Son and such mining activities are illegal and impermissible as it degrade not only aquatic ecology of river but also cause serious damage to environment; and that illegal mining is evident from the fact that mining authorities imposed penalty on account of illegal mining upon respondents 14 and 15 to the extent of Rs. 3,93,10,500/- and Rs. 2,86,56,000/respectively, which has been paid by both the proponents. District Magistrate’s letter dated 16.08.2022, annexure 6 at page 141 of the paper book, replying to questions 1 and 2, states that penalty of Rs. 3,93,10,500/- was imposed on account of illegal mining beyond sanctioned area upon respondent 14 and penalty of Rs. 2,86,56,000/- was imposed upon respondent 15 which has been paid by both the parties in Government treasury. The above penalties were under Mining Statutes. That being so, it is urged by interveners that both proponents are liable to

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pay environmental compensation also for having indulged in illegal mining causing damage to environment. The complaints of illegal mining by respondents 14 and 15 have been found correct by Joint Committee constituted by this Tribunal and its report shows that respondents 14 and 15 are conducting illegal mining and, therefore liable to pay not only environmental compensation but also should face other legal actions including prosecution etc.

¶234

Learned interveners also contended that ‘Son Ghadiyal Sanctuary’ is being damaged on account of illegal mining in river bed of Son River which has also resulted in substantial decrease in the strength of aquatic animals like ghadiyals, tortoises and alligators etc. Our attention is drawn to newspaper reports placed on record along with IA 67/2023, where it is reported that in the month of January 2023, some ghadiyals were found dead in mining pits .

¶235

It is also evident from record that respondents 14 and 15 have constructed temporary bridges of hume pipes, obstructing free flow of River Son and causing degradation to flora and fauna in the river. Damage is also being caused to flora and fauna due to mining activities, being carried out with the help of heavy machines like JCBs, Poklanes etc., and use of heavy vehicles for transportation like Trucks, Trippers/Trailers etc.

¶236

It is said by interveners that their main concern is about illegal mining in ‘Son Ghadiyal Wild Life Sanctuary Area’ in River Son and Buffer Area of Kaimur Wild Life Sanctuary. Mining in Son river from Village Shilpi to Gurdah 20.288 KM, Patwadh Anshik to Chikra (Kanhuara) 14 KM and in between them at Village Kargara, Mitapur , Bandhwa, Rediya and Village Bhagwa, Gothani, Badgawa, Sinduriya, Ghoriya, Kurcha, Newari, Agori Khas , Sasnai, Barahmori and Chopan District Sonbhadra endanger

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the life and habitat of alligators found in Sone Ghadiyal Sanctuary stretch, situated in District Sidhi, Madhya Pradesh, neighboring District to Sonbhadra which expands upto 200 KM stretch in River Son starting from Sidhi District, M.P. to Chopan, District Sonbhadra which has been reserved for alligators, crocodiles, tortoises and other reptiles found in Rivers Sone, Gopadh and Banas. Further, 161 KM in River Son, in District Sidhi, Madhya Pradesh has been reserved for alligators, crocodiles, tortoises and other reptiles for their conservation and from Sidhi (M.P.) to Dehari on Son (Bihar) including District Sonbhadra of Uttar Pradesh, the whole stretch of River Son is corridor where these reptiles frequently move being their habitat but allotment of mining lease in the area of Son river between Shilpi to Gurdah 20.288 KM and Patwadh Anshik to Chikra (Kanhaura) 14.812 KM, in between this in Village Kargara (3136 Mtr. from Kaimur Wild Life Sanctuary), Mitapur (2280 Mtr. from Kaimur Wild Life Sanctuary), Bandhwa (1388 Mtr. from Kaimur Wild Life Sanctuary), Rediya (2288 Mtr. from Kaimur Wild Life Sanctuary), and Patwadh Anshik (2260 Mtr. from Kaimur Wild Life Sanctuary) is causing huge damage to these animals. Mining leases have been allotted on the pretext that area is more than 1 KM away from Kaimur Wild life Sanctuary area which is totally incorrect. Mining leases have been allotted in village Gothani on Araji no. 142 in Son river in area 10.10 acre (Block 1 to Block 4), Village Bhagwa in Son river Araji no. 21 Mi in area 10.10 acre (Block 1 to Block 4), Village Badgawa in River Son in Araji no. 1 in area 10.10 acre (Block 1 to Block 4), village Sinduriya in River Son in Araji no. 756 in area 10.10 acre (Block 1 to Block 7), village Ghoriya in River Son Araji no. 1 in area 10.10 acre (Block 1 to Block 10), village Kurcha in Son river Araji no. 1 in area 10.10 acre (Block 1 to Block 3), village Newari in Son river Araji no. 1 in area 10.10 acre (Block 1), village Agori khas in Son river Araji no. 824 kha in area 10.10 acre (Block 1 to Block 4), village Sasnai in Son river Araji

¶239

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no. 221 Cha in area 10.10 acre (Block 7 to 9) village Barahmori in Son river Araji no. 185 in area 10.10 acre (Block 1 to 17) and village Khebandha in river Renu Araji no. 246 in area 10.10 acre (Block 1 to 13) to various lease holders.

¶241

M/s. Veera Construction Prop. Rameshwar Prasad, S/o Shyma Prasad, R/o S 3/36-B Ordely Bazar Varanasi has been allotted mining lease on Araji no. 21 mi village Bhagwa in River Son.

¶242

M/s. New India Minerals, 28 Brahpuri Colony Jugali Crossing Faizabad Road Lucknow, Prop. Sri Surendra Tiwari, S/o Atma Ram Tiwari, R/o 190 Govindpur Ganeshpur, Akbarpur District Ambedkarnagar has been allotted mining lease on Araji no. 824 kha village Agori Khas in River Son and M/s. Sudhakar Pandey and Associates Prop. Sri Sudhakar Pandey, S/o late Doodnath Pandey, R/o Civil lines Road Robertsanj District Sonbhadra has also been allotted mining lease for excavation of sand in River Son at village Agori Khas, Araji no. 824 kha (block 4).

¶243

These leases have been allotted in prohibited areas and to cause damage to aquatic animals which are protected and to aquatic ecology.

¶244

Supporting the application, Learned Counsel appearing on behalf of State of UP contended that Joint Committee has found several violations of environmental laws and norms in the course of mining by respondents 14 and 15 and has proposed environmental compensation of Rs. 8.16 Crores upon respondent 14 and Rs. 7.08 Crores upon respondent 15. It is also pointed out that District Magistrate, Sonbhadra has already restrained mining and transportation of minerals in the mining projects in question, carried out by respondents 14 and 15 and further action by Regulators shall be taken as per the direction of this Tribunal.

¶245

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¶246

Per contra, Learned Counsel appearing for respondents 14 and 15 contented that the proponents have not carried out mining activities in any area beyond the area sanctioned and approved by the concerned authorities. In fact, there are some local land owners who have carried out such illegal mining and they have also threatened respondents 14 and 15 and created obstructions in mining. Our attention is drawn to annexure4 (page 365 of paper book) (collectively), making complaint of illegal mining by other parties and threats extended to the representatives of the Lease holders. It is also said that respondents 14 and 15 protested against imposition of penalty by mining authorities for alleged illegal mining but since OTP required for generation of e-MM-11 permit for transportation of mineral was stopped by District Mining Officer, hence under protest, penalty amount was paid. Learned Counsel for respondents 14 and 15 placed reliance on letter dated 31.05.2022 (page 380 of the paper book) which was submitted by respondent 15 to District Magistrate, Sonbhadra stating that under protest and without prejudice to the stand taken by respondent 15, it has deposited Rs. One Crore through RTGS with a request to resume OTP at the earliest.

¶247

On behalf of respondents 14 and 15, it is contended that Joint Committee did not conduct enquiry properly; proponents were not taken in confidence since they were not given prior notice and had no occasion to participate with the enquiry conducted by Joint Committee; Joint Committee conducted inspection in a superficial manner and without applying its mind or seeking view point of proponents to ascertain correct position; and Committee had submitted report on conjecture and surmises. It is further argued that respondents 14 and 15 had never indulged in any illegal mining or transportation of mined minerals illegally.

¶248

Giving background facts of allotment of mining lease to proponents,

¶249

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¶250

Learned Counsel appearing for respondents 14 and 15 said that 4 blocks of land were carved out of khasra no. 824 kha situated in village Agori Khas, Tehsil Obra, District Sonbhadra, by State Government after obtaining No Objection Certificate (hereinafter referred to as ‘ NOC ’) from Divisional Forest Officer, Obra Forest Division, Sonbhadra and Divisional Forest Officer, Kaimur Wild Life Sanctuary Division. NOCs issued by Forest Officers show that the blocks were not within forest land or within ESZ of Kaimur Wild Life Sanctuary. District Magistrate, Sonbhadra initiated steps for e-tenders cum e-auction in which respondent 14 was successful bidder in respect of khasra no. 824 kha (khand 4), area 12.368 hectares and respondent 15 was successful bidder in respect of Araji 824 kha (khand 3), area 16.194 hectares.

¶251

After deposit of tender security amount, Letter of Intent dated 18.03.2021 was issued in favour of respondent 14; and EC was issued on 02.11.2021. After deposit of 5% of royalty payable in the first year of lease deed i.e., Rs. 4,59,49,594/-, lease deed dated 01.01.2022 was executed in favour of respondent 14, on payment of stamp duty of Rs. 2,49,35,800/-. Respondent 14 also paid registration charges of Rs. 62,50,000/-. However, we may place on record that EC is dated 22.12.2021 and CTO was issued on 25.01.2022.

¶252

Similarly, Letter of Intent dated 08.01.2021 was issued in favour of respondent 15. After sanction of mini ng plan, EC was granted on 01.12.2021. Respondent 15 deposited 50% of royalty amount payable for the first year of Rs. 5,51,89,152/- whereafter lease deed was executed on 13.12.2021. Respondent 15 paid stamp duty of Rs. 2,69,55,000/- besides registration charges of Rs. 66,33,000/-. CTO was issued on 08.12.2021. UP Ground Water Department (hereinafter referred to as ‘ UPGWD ’) issued NOC permitting extraction of ground water on 26.12.2021 as is evident

¶253

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¶254

from para 18 (page 310 of paper book) of objections dated 03.03.2023 filed by respondents 14 and 15.

¶255

Respondents 14 and 15 claim that number of local inhabitants/land owners were indulged in illegal mining on land situated all along the river bed of River Son. It was responsibility of the authorities to demarcate the lease area which they did not. Instead, they colluded with the local inhabitants to encourage illegal mining in the river bed. Some land owners were also issued short term mining permissions under ‘Ret-Khet Scheme’. A few notices were issued against illegal mining by mining licensees which included notice dated 26.02.2022 (page 350 of paper book) issued to Shankar , s/o Khannu, resident of village Agori Khas, Tehsil Obra, District Sonbhadra; notice dated 22.02.2022 (page 355 of paper book) issued to Smt. Soni Devi w/o Shri Rajkumar, resident of village Agori Khas, Tehsil Obra, District Sonbhadra; notice dated 25.03.2022 (page 361 of paper book) issued to Tapeshi s/o Shri Sadan, resident of village Chora Badgawa, Tehsil Obra, District Sonbhadra and notice dated 26.02.2022 (page 364 of paper book) issued to Lal Mani s/o Dangar, resident of village Agori Khas, Tehsil Obra, District Sonbhadra.

¶256

It is also argued that respondents 14 and 15 made complaints about such illegal mining by local land owners on several occasions through letters and representations but local land owners were so resourceful and powerful that neither local authorities acted to prevent such illegal mining by the local land owners nor took any appropriate action for stopping such illegal mining. This inaction on the part of authorities shows their apparent patronage to local land owners.

¶257

Deposit of Rs. 3,93,10,500/- by respondent 14 and Rs. 2,69,12,500/- by respondent 15, is admitted in para 14 of the objections

¶258

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¶259

dated 03.03.2023, filed jointly by respondents 14 and 15, but it is said that the same was under protest.

¶260

Respondents 14 and 15 claim that a huge sum towards royalty was deposited by them i.e., Rs. 10,21,10,208/- by respondents 14 and Rs. 11,03,78,304/- by respondent 15, which, as per the mandate of Rule 17 of UP District Mineral Foundation Trust Rules, 2017 (as amended in 2020), ought to be utilised for creating basic infrastructure in the area inter-alia including construction and maintenance of approached road, electricity, sanitation, providing drinking water supply etc. but not a single penny of the said amount has been spent by State Government till date by providing requisite facilities around the lease area of proponents.

¶261

Respondent 14 has permissions/consents under Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as ‘ Water Act, 1974 ’) and Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as ‘ Air Act, 1981 ’) which is valid upto 31.12.2026. Respondent 15 had such permissions valid upto 31.12.2024. Respondent 15 has also got NOC from UPGWD, valid from 20.12.2021 to 19.12.2026, filed as annexure-9 at page 413 to the paper book and, therefore, borewell installed by respondent 15 is not illegal. So far as respondent 14 is concerned, it has not installed any borewell inside the leased area and is procuring water for drinking and other purposes from external sources at its own cost. It is said that there are no illegal mining activities by respondents 14 and 15 and, therefore, the applications may be dismissed.

¶262

On the question whether there was any preparation of DSR and replenishment study before mining leases were granted to respondents 14 and 15, in the Additional Affidavit dated 17.03.2023, it is said that DSR was prepared and approved on 28.11.2018 and sand

¶263

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¶264

replacement/replenishment study was conducted by CMPDIL Ranchi (State of Jharkhand) on 30.12.2022.

¶265

ISSUES:

¶266

After hearing Learned Counsel for the parties and on perusal of record, we find that the following issues have arisen which require adjudication by this Tribunal:

¶267

(i) Whether mining leases granted to respondents 14 and 15 were/are valid and follow all the requisites of law necessary for grant of sand mining leases.

¶268

(ii) Whether respondents 14 and 15 have violated environmental laws and norms in carrying out mining activities under the mining leases in question?

¶269

(iii) Whether respondents 14 and 15 are liable for payment of environmental compensation and other civil or criminal action, as per law, if the questions raised above, both or any of them, are/is answered against respondents 14 and 15?

¶270

(iv) What order/further order and/or direction/action is required to be passed or taken in this matter, considering entire facts and circumstances of this case?

¶271

DISCUSSION/FINDINGS ON MERITS:

¶272

We propose to answer issues I and II together.

¶273

It is not in dispute that mining activities and mining leases in question, being proceeded by respondents 14 and 15, are in District Sonbhadra of State of UP.

¶274

Sonbhadra is a district, rich with minerals like bauxide, limestone, coal, gold etc. It is also called as ‘Energy Capital of India’ since a large number of power plants are established in this area. District Sonbhadra

¶275

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¶276

lies in the extreme south-east of State of UP. It is bounded by district Mirzapur to the north-west, district Chandauli to the north, Kaimur and Rohtas districts of Bihar State to the north-east, district Garwah of Jharkhand to the east, Koriya and Surguja districts of Chhattisgarh to the south and Singrauli district of Madhya Pradesh to the west. It is second largest district of State of UP. District Sonbhadra has an area of 6788 km² and population of 1,862,559 as per 2011 census. Population density is 270 persons per km² . Robertsganj is district headquarter town. Main rivers running through district are Son, Karmanasha and Belan.

¶277

District Sonbhadra lies on a plateau, north of Kaimur range and drained by tributaries of Ganges including Belan and Karmanasa river. South of the steep escarpment of Kaimur Range is the valley of Son River, which flows through the district from west to east. Southern portion of the district is hilly, interspersed with fertile stream valleys. Rihand river which rises to south in the highlands of Surguja district of Chhattisgarh, flows north to join river Son in center of district. Govind Ballabh Pant Sagar, a reservoir on Rihand, lies partly in the district and partly in Madhya Pradesh. East of Rihand, Kanhar River, which originates in Chhattisgarh, flows north to join Son River.

¶278

It has been pointed out that the disputed area of mining is near Kaimur Wild Life Sanctuary . Further substantial part of Son River, falling in State of MP is declared as “ Son Ghadiyal Wild Life Sanctuary ”.

¶279

KAIMUR WILD LIFE SANCTUARY:

¶280

Area of Kaimur Wild Life Sanctuary as also its ESZ falls in State of UP as well as Bihar.

¶281

IN STATE OF BIHAR:

¶282

Vide notification no. S.O. 1160 dated 20.07.1979 issued by Forest

¶283

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¶284

Department, Government of Bihar, under the provisions of Wild Life (Protection) Act, 1972 (hereinafter referred to as ‘ WLP Act, 1972 ’), Kaimur Wild Life Sanctuary situated in the then Shahabad district, lying between Latitudes 24°3′ and 25°0′ N and Longitude 83°25′ and 85°0′ E, in State of Bihar, extending over an area of 1504.96 km² was notified as ‘Wild Life Sanctuary’.

¶285

The then part of Shahabad district is presently, part of districts Rohtas and Kaimur. The declared Kaimur Wild Life Sanctuary in State of Bihar was rich in different species of fauna like Leopard, Hyena, Jackal, Wolf, Wild Boar, Sloth Bear, Cheetal, Sambhar, Black Buck, Chinkara, Chausingha (four horned antelope), Nilgai, Jungle Fowl, Python, Mugger, Langur, Monkey. More than 100 bird species are the species of vital importance in Kaimur Wildlife Sanctuary. The area also included endangered species like Leopard, Black buck, Chinkara and Four horned antelope (Chausingha).

¶286

Further, Sanctuary in the part of Bihar is rich in the following types of forests:

¶287

(i) Northern Tropical Dry Deciduous Forests and Dry Sal Forests having common associates of Sal such as Asan, Kend, Sidha, Piar, Dhaura, Amla, Harre, Bahera, Bija, Karamand occasional Gamhar and Jamun;

¶288

(ii) Open and scrub forests having Ber, Kanaudaa, Capparis spp., Randiaspp., etc. with very occasional stems of Kend, Sidha, Harre, and Mahua;

¶289

(iii) Open miscellaneous forests having Asan, Kend, Kusum, Karam, Piar, Dhaura, Bharkad, Gamhar, Ber, Salai, Amla, Harre, Bahera, Dudh Koraya and occasional Mahua and Bija with Khair also being an important associate of this type of forests.

¶290

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¶291

(iv) Miscellaneous forests with Bamboo (Dendrocalamus strictus); and

¶292

(v) Salai forests.

¶293

Forests of the Sanctuary also intercept rainfall and help recharge ground water aquifer, protect rivers and streams against siltation by minimizing soil erosion; Durgawati and Karmnasha are the main perennial rivers originating from the sanctuary. The Sanctuary is located in eastern extremity of Vindhyan hill ranges and its plateau landforms are unique in State of Bihar. The plateau tract in Sanctuary is inhabited by Chero, Oraon and Kharwar tribes with sociological significance.

¶294

Later on, a draft Notification was published on 28.01.2015, inviting objections and suggestions from persons likely to be affected to declare the area mentioned in the said notification as ‘ESZ’. Final Notification in exercise of powers under sub-section (1), clauses (v) and (xiv) of subsection (2) and sub-section (3) of Section 3 of EP Act, 1986 (29 of 1986) read with sub-rule (3) of Rule 5 of EP Rules, 1986 was issued by Central Government vide Notification no. 3549(E) dated 30.12.2015 published in Gazette of India (Extraordinary), of the same date. ESZ is spread over an area of 459.12 km² with an extent up to 2 km around Kaimur Wild Life Sanctuary excluding south-eastern and southern side of the Sanctuary and also western side of the Sanctuary which shares boundary with State of Uttar Pradesh. The boundary of ESZ mentioned in para 1 and 2 of Notification dated 30.12.2015 reads as under:

¶295

“1. Extent and boundaries of Eco-sensitive Zone – (1) The Ecosensitive Zone is spread over an area of 459.12 square kilometers with an extent up to two kilometers around the Kaimur Wildlife Sanctuary excluding south-eastern and southern side of the Sanctuary and also the western side of the Sanctuary which shares boundary with State of Uttar Pradesh.

¶296

(2) The Eco-sensitive Zone is bounded as under:

¶297

(i) Towards West - 24º57/43.980" N latitude and 83º20′43.554″E longitude (Reference Global Positioning System point No.52 of Annexure I map)

¶298

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(ii) Towards West North - 25º0/42.763"N latitude and 83º21′3.310″E longitude (Reference Global Positioning System point No.1 of Annexure I map);

¶300

(iii) Towards North - 25º1′18.311″N latitude and 83º 31′43.377″E longitude (Reference Global Positioning System point No.4 of Annexure I map);

¶301

(iv) Towards East and East North- 24º53/46.061″N latitude and 84º6′17.194″E longitude (Reference Global Positioning System point No.21 of Annexure I map);

¶302

(v) Towards East South - 24º44′34.356″N latitude and 84º3 50.259″E longitude (Reference Global Positioning System point No.26 of Annexure I map)

¶303

(vi) Towards South East - 24º40′21.942″N latitude and 84º1/18.474″E longitude (Reference Global Positioning System point No.27 of Annexure I map).

¶304

IN STATE OF UP:

¶305

In State of UP, Kaimur Wild Life Sanctuary is situated in districts Mirzapur and Sonbhadra. The area lying between 24°27′51″N to 24°52′0.9″N and 24°38′19.11″N to 24°39′9.05″N latitudes and 82°20′15.30″E to 83°08′23.3″E and 82°44′59.9″E to 82°45′0.07″E longitudes, spread over an area of 500.73 km² in State of UP was declared ‘Kaimur Wild Life Sanctuary’ vide notification dated 10.08.1982.

¶306

Kaimur Wild Life Sanctuary which is part of State of UP offers natural habitat for Black Bucks (Antilope cervicapra), Sloth Bears (Melursus ursinus), Wild Boars (Sus scrofa), Striped Hyena (Hyaena hyaena), Sambhar (Rusa unicolor), Pangolin (Manis crassicaudata), Indian Fox (Vulpes bengalensis), Jackals (Canis aureus), Apes, Spotted Deer (Axis axis) and Chinkara (Gazella bennettii). There are a number of water bodies and a number of species of land and water birds. All the major orders of Reptilia are represented in this Sanctuary. These include Monitor Lizard (Varanus sp.), Cobra (Ophiophagus Hannah), Common Krait (Bungarus caeruleus), Russell’s Viper (Daboia), Rat Snake (Panthrophis obsoletus) and Pythons (Python sp.). Fresh water crocodiles are found in Belan and Bakhar rivers.

¶307

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¶308

Later on, a draft Notification dated 22.09.2015 was published under the provisions of EP Act, 1986 inviting objections and suggestions from all persons likely to be affected in respect of the proposals to declare certain part around Kaimur Wild Life Sanctuary as ESZ in State of UP.

¶309

Final Notification dated 20.03.2017 was published by Central Government in the Gazette of India (Extraordinary), of the same date in exercise of powers under sub-section (1), clauses (v) and (xiv) of subsection (2) and sub-section (3) of Section 3 of EP Act, 1986 (29 of 1986) read with sub-rule (3) of Rule 5 of EP Rules, 1986, notifying an area to an extent of 1 km all around the boundary of Kaimur Wild Life Sanctuary in State of UP as Kaimur Wild Life Sanctuary ESZ (hereinafter referred to as ‘ KWSESZ, UP ’). The extent of boundaries of ESZ in State of UP in respect of Kaimur Wild Life Sanctuary declared in para 1 of the Notification dated 20.03.2017 stated as under:

¶310

“ 1. Extent and Boundaries of Eco-sensitive Zone- (1) The extent of Eco-sensitive zone shall be 1 km all around the boundary of Kaimur Wildlife Sanctuary, with an area of 475.102 Sq. Km.

¶311

(2) The map of the Eco-sensitive Zone along with latitudes and longitudes and GPS coordinates is appended as Annexure I.

¶312

(3) The details of GPS coordinates of the points along the boundary of the Kaimur Wildlife Sanctuary and its Eco-sensitive Zone are appended as Annexure-II.

¶313

(3) The list of 70 villages falling in Eco-sensitive Zone along with GPS coordinates is appended as Annexure-III.”

¶314

RIVER SON:

¶315

River Son originates at an elevation of 600 m at Sonbhadra in Maikala range in State of Madhya Pradesh. Total catchment area of the basin is 65,110 km² . Important tributaries of Son River are Sone, Mahanadi, Kanhar, Rihand, Gopad, Banas, north Koel and Ghaghar. Rihand dam has been constructed on the Rihand river. Total length of river Son is 784 km out of which about 500 km lies in State of MP, 82 km in

¶316

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¶317

State of UP and remaining 202 km in State of Bihar. It meets river Ganga, about 16 km upstream of Dinapur, in Patna district of State of Bihar.

¶318

SON GHARIYAL WILD LIFE SANCTUARY and ECO-SENSITIVE ZONE:

¶319

State of MP issued Notification dated 23.09.1981 published in Gazette of Madhya Pradesh, dated 13.11.1981 by exercising powers under WLP Act, 1972 declaring certain area as Son Ghadiyal Wild Life Sanctuary. As per original Notification, the said Sanctuary covered districts Sidhi, Shadhol and Satna and comprised of the length of Son river-160.93 km, river Gopad-25.75 km and river Banas-22.53 km. The details of the area mentioned in the Notification declaring Son Ghadiyal Wild Life Sanctuary is as under:

¶320

_“_िजला का नाम	नदी का नाम	नदी क लंबाई कलोमीटर	कहाँ से कहाँ तक	नदी के दोन कनारे के200 मीटर चौड़ी प ी क लंबाई के साथ
(1)	(2)	(3)	(4)	(5)
सीधी	सोन नदी	138.40	उ र देश के िमज़ा पुर	_270.80_क.मी
सीधी -शहडोल	सोन नदी	9.66	िजले क सीमा से देवल द ं	_19.32_क.मी
शहडोल -सतना	सोन नदी	12.87	(बाणसागर) बाध तक	_25.74_क.मी
सीधी	गोपद नदी	25.75	सोन नदी के संगम से उप ीम गोपद नदी पर रीवा बैढन ---पी. ड लू. डी सड़क के ॉ संग पर बने प े पुल तक	_51.50_क.मी
सीधी- शहडोल	बनास नदी	22.53	सोन नदी के संगम से उप ीम बनास नदी पर सीधी सहडोल पी. ड लू. डी सड़क के ॉ संग पर बने प े पुल तक	_45.06_क.मी
-	सोन नदी गोपद नदी बनास नदी	160.93 25.75 22.53	कनारे क दोन प ी क लंबाई कनारे क दोन प ी क लंबाई कनारे क दोन प ी क लंबाई	_321.86_क.मी _51.50_क.मी _45.06_क.मी
सोन घिड़याल मग क कुल लंबाई	र अ यार य	209.21 क.मी		_418.42_क.मी

¶321

टीप – (1) अ यारण क सीमाम नदी क चौड़ाई शािमल है िजसे अलग से दशा या नह गया है

¶322

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¶323

(2) इसम बगदरा अ यारण का सोन नदी कनारे का भाग भी शािमल है िजसे पूव म अ यारण पोिषत कया जा चुका है ”

¶324

English Translation by Tribunal-

¶325

Name of District	Name of River	Length of river in Kilometer	From where to where	Up to 200 meter breadth of both side of river
(1)	(2)	(3)	(4)	(5)
Sidhi	Son River	138.40	From the boundary of Utter Pradesh state to	270.80 _Kilometer _
Sidhi Shadol	Son River	9.66	Devanand (Bansagar) dam	19.32 _Kilometer _
Shadol Satna	Son River	12.87		25.74 _Kilometer _
Sidhi	Gopad River	25.75	From the meeting point of Son River to up stream of foot of Ravi River up to concrete bridge built over the crossing of P.W.D road.	51.50 Kilometer
Sidhi Shadol	Banas River	22.53	From the meeting point of Son River to up stream of foot of Banas River on the concrete bridge built over the crossing of P.W.D road at Sidhi Shadol.	45.00 Kilometer
-	Son River Gopad River Banas River	160.93 25.75 22.53	Length of both sides of bank Length of both sides of bank Length of both sides of bank	321.86 Kilometer 51.50 Kilometer 45.00 Kilometer
	Total Length of Son Ghadiyal Wild Life Sanctuary	209.21 Kilometer		418.30 Kilometer

¶326

The breadth of the river is covered under the sanctuary which has not been demarcated separately.

¶327

Under Bagdra Sanctuary the sides of Son River are also included which has been fostered by the Sanctuary for earlier. ”

¶328

Presently, Son Ghadiyal Wild Life Sanctuary in State of MP is spread

¶329

over 209 kilometer of length and 200 meters width on both river banks of

¶330

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¶331

Rivers Son, Gopad and Banas located in districts Sidhi, Singrauli, Satna and Shahdol of State of MP. Son Ghadiyal Wild Life Sanctuary falls in arid zone and supports many species of fishes, amphibians, reptiles and birds. Important aquatic fauna of the Sanctuary includes Gharial (Gavialis gangeticus), Mugger (Crocodylus palustris), and turtles (Testudines sp.).

¶332

Later, in exercise of powers under the provisions of EP Act, 1986, a draft Notification number S.O. 1780(E) dated 30.06.2015 was published by MoEF&CC, inviting objections and suggestions from all the persons likely to be affected thereby proposing to declare certain area as ESZ around Son Ghadiyal Wild Life Sanctuary.

¶333

Final Notification dated 13.12.2016 was published in Gazette of India, (Extraordinary) on 14.12.2016 declaring one km from the boundary of Son Ghadiyal Wild Life Sanctuary as ESZ in State of MP. This Notification was issued in exercise of powers under the provisions of subsection (1) read with clause (v) and clause (xiv) of subsection (2) of Section 3 of EP Act, 1986 (29 of 1986) and sub-rule (3) of Rule 5 of EP Rules, 1986. The extent of boundaries of Son Ghadiyal Wild Life Sanctuary ESZ in State of MP is given in para 1 of the Notification which reads as under:

¶334

“ 1. Extent and Boundaries of Eco-sensitive Zone- (1) The extent of Eco-sensitive Zone is one kilometer from the boundary of the Son Gharial Wildlife Sanctuary. The area of Eco-sensitive Zone is 424 square kilo meters.

¶335

(2) The map of Eco sensitive Zone, Co-ordinates of Wildlife Sanctuary and Eco-sensitive Zone along with latitudes and longitudes is appended as Annexure I.

¶336

(3) The list of 122 villages falling within Eco-sensitive Zone along with latitudes and longitudes is appended as Annexure II.”

¶337

Para 4 of the Notification contains list of activities, prohibited or to be regulated, within ESZ and item 1 prohibits commercial mining, stone quarrying and crushing units and reads as under:

¶338

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¶339

*S. No.*	*Activity*	*Remarks*
(1)	(2)	(3)
*Prohib*	*ited Activities*
1.	Commercial mining, stone quarrying and crushing units.	(a) All new and existing mining (minor and major minerals), stone quarrying and crushing units shall be prohibited effect except for the domestic needs of bona fide local residents including digging of earth for construction or repair of houses and for manufacture of country tiles or bricks for housing for personal consumption.
		(b) The mining operations shall strictly be in accordance with the interim order of the Hon’ble Supreme Court dated the 4^thAugust, 2006 in the matter of T.N. Godavarman Thirumulpad Vs. Union of India in Writ Petition (Civil) No.202 of 1995 and order of the Hon’ble Supreme Court dated the 21^stApril, 2014 in the matter of Goa Foundation Vs. Union of India in Writ Petition (Civil) No.435 of 2012.

¶340

River Karmanasam , tributary of Ganga originates at an elevation of 350 m near Sarodag on the northern face of Kaimur range in Mirzapur district of UP. It flows in a north-westerly direction through the plains of Mirzapur and joins Ganga River near Chanusa. The tributaries of Karamanasa are Durgawati, Chandraprabha, Karnauti, Nadi and Khajuri.

¶341

Belan river is central Indian river occupies a low-relief valley cut into Proterozoid quartzite of Vindhyan Group, about 80 km south-east of Allahabad. River runs westward, parallel to Kaimur hills. It originates from Kaimur hill series in MP and joins Tons River at Chakghat which flows northward to Ganga plains south of Allahabad of State of UP.

¶342

DSR approved on 28.11.2018, filed by respondents 14 and 15 as annexure A-1 to Additional Affidavit dated 17.03.2023, contains list of Protected Forests and Reserved Forests of district Sonbhadra as table

¶343

1.5 at page 533 which reads as under:

¶344

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¶345

“ Table 1.5 LIST OF FORESTS

¶346

*PROTECTED FOREST* *RESERVED FOREST*
_Jagamar _ Sermra
Barhar Tenduhar
Chainpur Parsauna
Khairdih _Shivdwar _
Ghagra Bisundhari
_Barwen _ Bhaiswari
Babhini Bishar
Devgarh
Silpi
Jamuna
Domkhari
Semiyan
Belwa
_Alaur _
Bijaura
Kargara
Robertsganj
Chakdiya
*Agori*
Chandauli
Dholki
Paunsila
Gurdah
Harsadand
Bharahari
Tapu
Garderwa Khorka Baherado
Dudhi
Singrauli
_Majith _
Bajia Sistola
Duba
Jaurahi
Mirgarani
Chakdahiya
Muirpur
Bhangia
Bairkhar
_Dhuman _

¶347

DSR also states that geomorphologically, the district can be divided into three distinct units:

¶348

(i) Residual hills

¶349

(ii) River and hills and

¶350

(iii) Valleys and ravines.

¶351

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¶352

Commenting on the mining activity in the district, DSR in para 7 says that district Sonbhadra is known for sand, morrum, limestone, dolomite and coal deposits. Mining of sand/morrum along the major river Son, Kanhar, Renu is the major source of revenue. These rivers generally run dry during hot weather but hold water during the greater part of the year and are utilized for irrigation. They contribute a major potentiality of sand mining along which potential area has been notified for e-tendering and given short term mining permits in these areas at different villages. Material like ordinary sand/morrum are also permitted for quarrying of material at number of places.

¶353

MINING AND ENVIRONMENT: IN VEDIC SCRIPTURES

¶354

Extraction of minerals from land or river bed or river plains and hills is claimed to be an age-old activity since minerals are useful for development of various civilization and the very mankind. It, however, cannot be disputed that the activities since affect the originality of nature, the same is bound to alter ecology and environment in various ways.

¶355

This was well-recognized by our fore-fathers even in Vedic era who had sufficient reasonable awareness about environment and its constituents. Vedic people desired to live life of hundred years which could have been possible only when environment remain unpolluted, clean and peaceful. Vedic vision was clear to live in harmony with environment, not merely physical but far wider and much comprehensive. Vedic message is clear that environment belongs to all living beings, so it needs protection by all, for the welfare of all. Vedic scriptures including Vedas regard nature as all-encompassing and hold an intimate relation with it. They refer to it as not only the highest reality but also to its various manifestations (son, moon, rivers, birds etc.) as mother, father, protector, friends, son etc.

¶356

46

¶357

In ancient India, universe was regarded as integrated form. All natural phenomenon were given divine origin. Prithivisukta in Atharvaveda is the oldest manifestation of environmental concern, “ matabhumih putroham Prithviyah ” (earth is my mother and I am herself). This rhyme speaks volume regarding allegiance of Vedic people with nature. It invokes and postulates divine intervention to bliss and protect the nature environment.

¶358

Rigveda, to protect environment, says,

¶359

(i) “मधु॒वाता॑ऋताय॒तेमधु॑ रि त॒िस ध॑वः।मा वी॑न ःस॒ वोष॑धीः ॥” (1.90.6)

¶360

Hindi Translation by Tribunal-

¶361

हे पढ़ाने वालो ! तुम और हम ऐसा अ छा य न कर क िजससे सृि ट के पदाथ से सम आन द के लये व या करके उपकार को हण कर सक ॥ ६ ॥

¶362

English Tribunal by Tribunal-

¶363

“ The winds bring sweet (rewards) to the sacrificer; the rivers bring sweet (waters); may the herbs yield sweetness to us. ”

¶364

(ii) “मधु॒न ॑मु॒तोषसो॒मधु॑म॒ पािथ ॑वं॒रजः॑।मधु॒ ौर॑ तुनःिप॒ता॥” (1.90.7)

¶365

Hindi Translation by Tribunal-

¶366

पढ़ानेवाले लोग से जैसे मनु य के लये पृ थवी थ पदाथ आन दायक ह , वैसे सब मनु य को गुण , ान , और ह त या से व या का उपयोग करना चा हए ॥ ७ ॥

¶367

English Tribunal by Tribunal-

¶368

“ May night and morning be sweet; may the region of the earth be full of sweetness; may the protecting heaven be sweet to us.”

¶369

(iii) “मधु॑मा नो॒वन॒ पित॒म धु॑माँअ तु॒सूय ः॑।मा वी॒गा वो॑भव तुनः॥” (1.90.8)

¶370

Hindi Translation by Tribunal-

¶371

हेिव ान्लोगो ! तुमऔरहमआओिमलकेऐसापु षाथ कर िकिजससे हमलोग केसबकामिस होव ॥८॥

¶372

English Tribunal by Tribunal-

¶373

“May Vanaspati be possessed of sweetness towards us; may the sun be imbued with sweetness; may the cattle be sweet to us.”

¶374

It is a misconception that environmental science and ecology is

¶375

knowledge and subject, gathered public awareness only in 19^th or 20^th

¶376

47

¶377

century. In Indian ancient scriptures, origin of environmental science and ecology can be traced long back in the Vedic and ancient Sanskrit literature. In Atharvveda, ‘ vritavrita’ , ‘ abhivarah’ , ‘ avritah’ , ‘ parivrita’ are the terms used for ‘Paryavaran’. Upanishads mention that the universe consist of five elements i.e., earth, water, land, air and ether. Existence of human being on earth planet blossom due to blessings of mother earth. She is the goddess of nature according to Hindu mythology. She is the Supreme elixir of our existence on earth. Change to the naturality of environment is nothing but an abuse to the earth endangering the very existence of mankind. Increasing natural hazards are result of atrocious acts of exploiting our earth by people.

¶378

Ancient Indian texts contain lot of material reflecting concern of Vedic people for environmental issues. They professed environmental protection in the form of mythology and traditions so as to give broader enforceability, acceptability and executabitlity of the wisdom and vision of Vedic sages. Some Sanskrit shalokas which we reproduce below, are selfevident to demonstrate how important nature and environment was for Vedic people and they left no stone un-turned for making it mandatory for the people to follow life stream which concentrates on protection of environment:

¶379

Hindi Translation by Tribunal -

¶380

पृ वी, जल, अि न, वायु और आकाश तथा मन, बुि और अहंकार - यह आठ कार से िवभ ह ई मेरी कृित है।।

¶381

English Translation by Tribunal -

¶382

Earth, water, fire, air, space, mind, intellect, and ego-these are eight components of my material energy.

¶383

(ii) “ स ं र त े ् दिषतोन या लोकःमानवजीवनम ू ् । नकोऽिपक यिचद ् नाश, ं कया ु दथ यिस य े ।। ”

¶384

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¶385

Hindi Translation by Tribunal -

¶386

संसार दूिषतनहो।मानवजीवनसुरि तरहे।धनक िसि केिलए (धन ाि केिलए) कोई भीिकसीका ( कृितका) नुकसाननकरे।

¶387

English Translation by Tribunal -

¶388

“Do not pollute the whole world. May god human life be safe. No one should harm anyone (of nature) for the accomplishment of wealth.”

¶389

(iii) “ पया वरणनाशेनन यि तसव ज तव: ।

¶390

पवन: दु तांयाित कृितिवकृतायते।। ”

¶391

Hindi Translation by Tribunal -

¶392

हमारे पया वरण के दूषण के कारण सभी ाणीन हो जातेह , हवाएं ख़राब हो जाती ह और कृितश ु तापूण हो जाती है।

¶393

English Translation by Tribunal -

¶394

“Due to pollution (destruction) of our environment, all beings are destroyed, the winds get vicious and the nature becomes hostile.”

¶395

(iv) अ व९ तरमृतम सुभेषजमपामुत श तये।देवाभवतवािजनः॥19॥

¶396

Hindi Translation by Tribunal –

¶397

जल म अमृत है, जल म औषिध है । हे ऋिष जन , ऐसे े जल क शंसा अथा त् तुित करने म शी ता बरत ।

¶398

English Translation by Tribunal -

¶399

“There is nectar in water, there is medicine in water, O sages, be quick to praise such elevated water.”

¶400

The concept of environment, since Vedic era till date is almost consistent. Vedic view of environment is well defined in one verse of Atharavaveda where three coverings of our surroundings are referred as Chandamsi. Wise utilize three elements variously which are varied, visible and full of qualities. These are water, air and plants or herbs. They exist in the world from the very beginning. They are called as Chandamsi meaning ‘coverings available everywhere.’ The Sanskrit Shloka reads as under:

¶401

“ ीिण छ दांिसकवयोिवयेितरेपु पंदश तंिव च णम। आपोवाताऔषधय ता येकि मन्भुवनआिप तािन।।” Ibid 18.1.17

¶402

Hindi Translation by Tribunal-

¶403

व वान् लोग अनेक कार उपकार जल , वायु , और ओष धय आ द के गुण को व वान म उपदेश करकेलाभ उठाव और उनके कता परमा मा क म हमा जानकर उ न त कर ॥

¶404

49

¶405

English Translation by Tribunal-

¶406

“Sages and scholars of Shastra and Vedas study and foster three joyous gifts of nature and divinity, versatile in form, sensitively satisfying and universally illuminative for body, sense and mind and the soul. For this purpose, they are: waters for taste and sweetness, winds for energy of prana, and herbs for strength and alleviation of pain. And all these three are vested and concentrated in the same one source, Nature.”

¶407

As already said, Upanishads talk of five basic elements constituting nature. Nature has maintained a status of balance between and among these constituents/elements and living creatures. A disturbance in percentage of any constituent of the environment beyond certain limits disturbs the natural balance and any change in the natural balance causes lots of problems to the living creatures in the universe. Different constituents of the environment exist with set relationships with one another.

¶408

Consistent with the Vedic concept of paryavaran/environment, broadly, we find definition of environment in Section 2(a) of EP Act, 1986, reads as under:

¶409

“2(a) “ environment ” includes water, air and land and the interrelationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;”

¶410

When we go through the concept of earth ( Prithvi ), water ( Apah ), air ( Vayu ), ether ( Akasha ) and fire ( Agni ), we realize that ancient Vedic intellectuals knew various aspects of environment, cosmic order and importance of co-ordination between all natural powers for universal peace and harmony. When they pray for peace at all levels in Shanti mantra, they side by side express their believe about the importance of coordination and inter-relationship among all natural powers and regions. The prayer says that not only regions, waters, plants trees, natural energies but all creatures should live in harmony and peace. Peace should

¶411

50

¶412

remain everywhere. Mantra takes about the concord with the universe“ peace of sky, peace of mid-region, peace of earth, peace of waters, peace of plants, peace of trees, peace of all-gods, peace of Brahman, peace of universe, peace of peace; May that peace come to me !” This mantra resounded United Nation when Union Minister, MoEF&CC started UNSC debate on climate change by reciting this verse which reads as under:

¶413

Hindi Translation by Tribunal-

¶414

युलोक म शां त हो , अंत र म शां त हो , पृ वी पर शां त ह , जल म शां त हो , औषध म शां त हो , वन प तय म शां त हो , व व म शां त हो , सभी देवतागण म शां त हो , म म शां त हो , सब म शां त हो , चार और शां त हो , शां त हो , शां त हो , शां त हो।

¶415

English Translation by Tribunal-

¶416

“May peace radiate there in the whole sky as well as in the vast ethereal space everywhere. May peace reign all over this earth, in water and all herbs, trees, and creepers. May peace flow over the whole universe. May peace be in the Supreme Being Brahman. And may there always exist in all peace and peace alone. Aum peace, peace, and peace to us and all beings!”

¶417

78. Yajurveda expressed its thought that animal should be safe,

¶418

protected and healthy. The Shlokas reads as under:

¶419

(i) “भूभु वः॒ वः सु ॒जाः ॒जा भः॑ या सु॒वीरो॑ वी॒रैः सु॒पोषः॒ पोषैः॑। नय ॑ ॒जां मे॑ पा ह॒ श य॑ प॒शून्मे॑पा॒ यथ॑य प॒तुंमे॑पा ह ॥३७॥” ( Yajurveda, 3/37)

¶420

Hindi Translation by Tribunal-

¶421

मनु य को ई वर क उपासना वउस क आ ा के पालन का आ य लेकर उ म-उ म नयम से वा उ म जा , शूरता , पुि ट आ द कारण से जा का पालन करके नर तर सुख को स ध करना चा हये॥३७॥

¶422

English Translation by Tribunal-

¶423

“O God, friendly to the wise, do Thou protect my offspring. O worthy of praise do Thou protect my cattle. O God, above all suspicion, protect my food. O God through Thy grace, in unison with the three life-winds, Pran, Apan and Vyan, may I be rich in offspring, well-manned with men, a hero with the heroes, and strong with wise and invigorating deeds.”

¶424

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¶425

(ii) “ यौः शाि त॑र॒ त र॑ ॒ शाि तः॑पृ थ॒वीशाि त॒रापः॒शाि त॒रोषध॑यः॒शाि तः॑।वन॒ पत॑यः॒ शाि त॒ व वे॑ दे॒वाः शाि त॒ म॒शाि तः॒सव ॒ शाि तः॒शाि त॑रे॒वशाि तः॒ सा मा॒ शाि त॑रे ध॥१७॥” (Sukla yajurveda 36-17)

¶426

Hindi Translation by Tribunal-

¶427

“हे मनु यो ! जो ( यौः , शाि तः) काशयु त पदाथ शाि तकारक (अ त र म्) दोन लोक के बीच का आकाश (शाि तः) शाि तकार (पृ थवी) भू म (शाि तः) सुखकार न प व (आपः) जल वा ाण (शाि तः) शाि तदायी (ओषधयः) सोमलता आ द ओष धयाँ (शाि तः) सुखदायी (वन पतयः) वट आ द वन प त (शाि तः) शाि तकारक ( व वे , देवाः) सब व वान् लोग (शाि तः) उप व नवारक ( म) परमे वर वा वेद (शाि तः) सुखदायी (सव म्) स पूण व तु (शाि तः) शाि तकारक (शाि तरेव) शाि त ह (शाि तः) शाि त (मा) मुझको (ए ध) ा त होवे (सा) वह (शाि तः) शाि त तुम लोग के लये भी ा त होवे ॥१७ ॥”

¶428

English Translation by Tribunal-

¶429

“May sky be peaceful. May atmosphere be peaceful. May Earth be peaceful. May waters be peaceful. May medicinal herbs be peaceful. May plants be peaceful. May all the learned persons be peaceful. May God and the Vedas be peaceful. May all the objects be peaceful; May peace itself be peaceful. May that peace come unto me.”

¶430

In Ishopanisad, it is said that environment belongs to all living beings so it needs protection by all for the welfare of all.

¶431

English Translation by Tribunal-

¶432

“May the earth who is to us in the nature of a mother, hold us, her sons, close to her life- endowing self, protect us, and may Parjanya (the rain-bearing clouds), in the nature of a father, tend our upbringing.”

¶433

In substance, what we find is that Indian sub-continent has a rich ancient literature dealing the issue of environment and its protection. It has a long cultural tradition of thousands and thousands of years. Vedas, Upanishad, Vedantas etc. are the oldest monumental scriptures and represent wisdom and knowledge of Vedic sages and intellectuals. Since the dawn of human civilization, mankind has been modifying and interfering with nature but never with an intention of destroying it completely. It is the western culture and understanding of development which has been pressed and passed upon India. The nature has become enemy and is being destroyed like anything. It is said that environment

¶434

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¶435

has been, is and will be, man’s permanent teacher. Adequate and appropriate understanding of environment is vital and indispensable knowledge to share. Ancient scriptures, Vedic scholars have not only explained usefulness of trees, plants, rivers, air, soil, etc. but depicted their beauty, charm and the manner in which they work like friends of mankind.

¶436

In this backdrop, we would look into the issues raised in this matter.

¶437

District Magistrate, Sonbhadra and other mining authorities proposed to allocate site in question for undertaking mining activities of morrum in the river bed of River Son, running in part of State of UP and in particular, Araji No. 824 kha (khand no. 04 and 03), village Agori Khas, Tehsil Obra, District Sonbhadra.

¶438

Village Agori Khas, Tehsil Obra, Araji no. 824 kha appears to be a big chunk of land being part of Son River bed and total area 60.950 hectares. The mining authorities made 4 parts of Araji no. 824 kha (khand 3) with the area as below:

¶439

(i) Araji 824 kha (khand 1) – 16.194 hectares

¶440

(ii) Araji 824 kha (khand 2) – 16.194 hectares

¶441

(iii) Araji 824 kha (khand 3) – 16.194 hectares

¶442

(iv) Araji 824 kha (khand 4) – 12.368 hectares

¶443

For undertaking mining activities at the above site, District Mining Officer, Sonbhadra issued a certificate dated 23.03.2021 giving details of 500 meters cluster map.

¶444

Proceedings were initiated for allotting mining lease by inviting e- tender cum auction after obtaining NOC from Forest Department on 24.05.2021. Approval of mining plan by Director, Geology and Mining,

¶445

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¶446

Lucknow, UP was granted vide letter dated 24.05.2021.

¶447

Respondent 14 was successful bidder in respect of Araji 824 kha (khand 4), area 12.368 hectares while respondent 15 was successful bidder in respect of Araji 824 kha (khand 3), area 16.194 hectares.

¶448

It appears that both applied for grant of EC. ToR was issued to respondent 14 vide letter dated 02.11.2021 while ToR was issued to respondent 15 on 11.06.2021.

¶449

EC was granted to respondent 14 on 22.12.2021. The copy of EC is available on the Parivesh Portal generated from Parivesh portal of Government of India, MoEF&CC which shows that public hearing was organized on 10.12.2021 and final EIA report was submitted by respondent 14 on 11.12.2021. ‘Minable area after leaving 7.5 meters buffer zone’, was mentioned as ‘9.844 hectares’. ‘Type of land’ was mentioned as ‘River Bed Government Land’. State Level Expert Appraisal Committee (hereinafter referred to as ‘ SEAC ’) made recommendation in its meeting dated 13.12.2021 and SEIAA in its meeting dated 17.12.2021 decided to grant EC. Some of the general and specific conditions mentioned in EC, relevant for the purpose of the case, are as under:

¶450

“ General Conditions:

¶451

4. Precise mining area will be jointly demarcated at site by project proponent and officials of Mining/Revenue department prior to starting of mining operations. Such site plan, duly verified by competent authority along-with copy of the Environmental Clearance letter will be displayed on a hoarding/board at the site. A copy of site plan will also be submitted to SEIAA within a period of 02 months.

¶452

12. It shall be ensured that excavation of minor mineral does not disturb or change the underlying soil characteristics of the river bed/basin, where mining is carried out.

¶453

13. It shall be ensured that mining operation of Sand/Moram will not in any way disturb the, velocity and flow pattern of the river water significantly.

¶454

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¶455

15. Primary survey of flora and fauna shall be carried out and data shall be submitted to the RO, PCB and SEAA within six months.

¶456

36. The proponent shall observe every 15 day for nesting of any turtle in the area. Based on the observations so made, if turtle nesting is observed, necessary safeguard measures shall be taken in consultation with the State Wildlife Department. For the purpose, awareness shall be created amongst the workers about the nesting sites so that such sites, if any, are identified by the workers during operations of the mine for taking required safeguard measures. In this regards the safety notified zone should be left so that the habitat/nesting area is undisturbed.

¶457

37. The project proponent shall undertake adequate safeguard measures during extraction of river bed material and ensure that due to this activity the hydro geological regime of the surrounding area shall not be affected.

¶458

45. The green cover development/tree plantation is to be done in an area equivalent to 20% of the total leased area either on river bank or along road side (Avenue Plantation ).

¶459

Specific Conditions:

¶460

1. In the absence of replenishment study keeping in mind various orders issued by Hon’ble NGT and development works in the State, EC is granted for a period of one year.

¶461

3. For subsequent period, PP shall submit fresh annual replenishment study to SEIAA, UP for amendment in EC for mineable quantity and maximum permissible depth for mining based on scientific findings of replenishment study. Such study shall be placed before SEAC for appraisal for next three years to assess rate of deposition and accordingly, mineable production capacity and depth can be prescribed based on trends analysis, provided it is found scientifically satisfactory by the SEC. The placing of the study report SEAC is mandatory for Initial three years.

¶462

5. A certificate from Forest Department shall be obtained that no forest land is involved in mining or as a route and if forest land is involved the project proponent shall obtain forest clearance and permission of Central and State Government as per the provisions of Forest (conservation) Act, 1980 and submit before the start of work.

¶463

8. Project Proponent should submit action plan for carrying out plantation at least @1,000 plants/ha of lease area. In this case, PP should prepare a plan, duly approved either by Forest Department or Horticulture Department, for planting at least 13,000 plants, either on government land or community land, within a periphery of 5 km from the boundary of the lease area along with provision for maintenance for 5 years. Survival of plants should not be less than the survival rate notified by Uttar Pradesh Forest Department otherwise it will be treated as violation of EC conditions.

¶464

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¶465

18. No mining activity should be carried out in-stream channel as per SSMMG, 2016.

¶466

19. Pakka motorable haul road to be maintained by the project proponent.

¶467

35. The excavated mining material should be carried and transported in such a way that no obstruction to the free flow of water takes place. Suitable measure should be taken and details to be provided to concern Department.

¶468

37. The project proponent shall ensure that if the project area falls within the eco-sensitive zone of National Park/Sanctuary prior permission of statuary committee of National board for wild life under the provision of Wildlife (Protection) Act, 1972 shall be obtained before commencement of work.

¶469

39. Project falling within 10 KM area of Wild Life Sanctuary is to obtain a clearance from National Board Wild Life (NBWL) even if the eco-sensitive zone is not earmarked.

¶470

43. The mining work will be open-cast and manual/semi mechanized (subject to order of Hon’ble NGT/Hon’ble Courts (s)). Heavy machine such as excavator, scooper etc. should not be employed for mining purpose . No drilling/blasting should be involved at any stage.

¶471

44. Its be ensured that there shall be no mining of any type within 03 m or 10% of the width whichever is less, shall be left on both the banks of precise area to control and avoid erosion of river bank. The mining is confined to extraction of sand/moram from the river bank only.

¶472

45. The project proponent shall undertake adequate safeguard measures during extraction of river bank material and ensure that due to this activity the hydro-geological regime of the surrounding area shall not be affected.

¶473

61. Concealing factual data or submission of false/fabricated data and failure to comply with any of the conditions mentioned above may result in withdrawal of this clearance and attract action under the provisions of Environment (Protection) Act, 1986.

¶474

In respect of respondent 15, EC was granted on 01.12.2021. The conditions, general and specific, mentioned in the said EC, are similar to that as contained in EC of respondent 14. Copy of EC dated 01.12.2021 issued to respondent 15 is on record at page 110 of paper book.

¶475

EC dated 22.12.2021 issued to respondent 14 and dated 01.12.2021 issued to respondent 15 show that mining was permitted along Son River

¶476

56

¶477

bed at Araji No. 824 kha (khand 04 and 03), respectively, to respondents

¶478

14 and 15. Details of production etc. are given as under:

¶479

SN	Subject	Respondent 14	Respondent 15
1	TotalGeological Reserve	326850m³	485820m³
2	Total MineableReserves	204755 m³	259104 m³
3	Proposed annual production	197888 m³	259104 m³
4	Total Production in 5 years	989440 m³	1295520 m³
5	UltimateDepthof Mining	2.08 m(average)	3.0 m
6	Type of land	River bed Governmentland	River bed Governmentland
7	Number of trees to be planted	13000	7203
8	Water requirement (a) Drinking and others (b) Suppression of dust (c) Plantation Total	0.55 kld 2.40 kld 13.0 kld 15.95 kld	0.66 kld 0.55 kld 11.53 kld 12.74 kld

¶480

Respondent 14 got Consent to Operate (hereinafter referred to as ‘ CTO ’) under Water Act, 1974 and Air Act, 1981 from UPPCB on 25.01.2022 (page 410 of paper book) while CTO (as mentioned in para 2(a) at page 190 of Joint Committee Report) was granted to respondent 15 on 08.12.2021.

¶481

Lease deed, executed in favour of respondent 14 by District Magistrate, Sonbhadra on behalf of Government of UP on 31.12.2021 is at page 323 of paper book and boundaries of mining area are mentioned as under:

¶482

“उ र : नई इं डया मनर स के प म वीकृत खनन प टा े । द ण : आराजी सं या - 824 ख का शेष भाग। पूरब : आराजी सं या - 824 ख व सोन नद क धारा। पि चम - आराजी सं या : 824 ख का शेष भाग।”

¶483

Condition no. 21 and 23 of the lease deed read as under:

¶484

“ 21. प े दार वीकतप ा ृ क े े अ दरखननकाय कर े गा। वीकतप ा ृ े क े बाहरखननकाय िकयाजाताहआपाय े जान े परप दारक े े िव उ िनयमावली , 2021 तथाखानएव ं खिनज ( िवकासएव ं िविनयमन ) अिधिनयम , 1957 म उि लिखत ािवधान क े अधीनवधािनककाय ै वाहीक जायगी। े

¶485

57

¶486

23 . वनभिमअथवावन व पभ ू िमएव ू ं वन व पभिमक बाहरीसीमास ू े 100 मीटरक प रिध क े अ दरकोईखननकाय नह िकयाजायगा। े ”

¶487

English Translation by Tribunal -

¶488

“21. Lessee holder will do mining work within the approved lease area. If mining work is being found done beyond the approved lease area, legal action will be taken against the lessee under the provisions mentioned in the said Rules, 2021 and the Mines and Minerals (Development and Regulation) Act, 1957.

¶489

23.No mining work will be done within the radius of 100 meter from the outer boundary of forest land or forest related land.”

¶490

Lease deed in favour of respondent 15 was executed by District Magistrate, Sonbhadra on behalf of Government of UP on 04.12.2021, giving details of boundaries of the leased area as under:

¶491

“उ र : आराजी सं या - 824 ख का शेष भाग। द ण : आराजी सं या - 824 ख का शेष भाग। पूरब : आराजी सं या - 824 ख का शेष भाग। पि चम - आराजी सं या : 824 ख का शेष भाग।”

¶492

Conditions of both lease deeds are same.

¶493

An authorisation/NOC for sinking of new/existing well was granted by UPGWD under Section 14 of UP Ground Water (Management and Regulation) Act, 2019 (hereinafter referred to as ‘ UPGWMR Act, 2019 ’) on 26.12.2021 to respondent 15. NOC is annexure 9 to objections filed by respondents 14 and 15 at page 413 which shows date of construction/sinking of well as 01.12.2021. In the application for grant of NOC, submitted by respondent 15 on 01.09.2021, the maximum allowable rate of withdrawal of water is mentioned as 30 m³ per hour. As per the general conditions of NOC, respondent 15 was required to install one piezometer.

¶494

It is admitted case of respondent 14 that after completion of all formalities, it commenced mining activities on 06.01.2022. It is however on record that CTO was issued to respondent 14 on 25.01.2022. Thus,

¶495

58

¶496

initiation of mining by respondent 14 on 06.01.2022 was illegal and continued to be so till 24.01.2022.

¶497

EARLIER VIOLATIONS:

¶498

We find from record that both the proponents i.e., respondents 14 and 15, earlier also, were found to have indulged in violation of conditions of mining lease, EC and CTO etc. for which action under mining statutes was taken by Mining Authorities and demand of additional royalty, penalty etc. was raised which was satisfied by respondents 14 and 15. The details of these violations are as under:

¶499

99. VIOLATIONS BY RESPONDENT 14:

¶500

(i) On 07.02.2022 (page 381 of paper book), a joint inspection was made by Sub-divisional Magistrate, Obra, Sonbhadra when it was found that respondent 14 has carried out mining activities outside the sanctioned mining lease area on the north side in village Kargara in Son River and created two pits measuring 175m × 15m × 0.80m = 2100m³ and 70m × 15m × 0.80m = 840m³ and thereby, caused illegal mining of 2940 m³ of morrum. For the said violation, show cause notice dated 08.02.2022 was issued by District Magistrate, Sonbhadra proposing imposition of royalty of Rs. 4,41,000/- at the rate of Rs. 150 per m³ , cost of illegally mined mineral of Rs. 22,05,000/- and penalty under Rule 58 of Rs. 2 lakhs; total Rs. 28,46,000/-. Show cause notice was issued to respondent 14 under Section 4 and 21 of MMDR Act, 1957 read with Rule 3, 58 and 72 of UP Minor Mineral Concession Rules, 2021.

¶501

(ii) Thereafter, another inspection was made by Sub-divisional Magistrate, Obra on 20.03.2022 (page 384 of paper book) and

¶502

59

¶503

again it was found that respondent 14 has created a new pit outside the permitted mining lease area on the north side in Son River measuring 58m × 25m × 1.20m= 1740m³ and has caused illegal mining of morrum of the quantity of 1740 m³ . Consequently, vide show cause notice dated 22.03.2022, District Magistrate Sonbhadra proposed demand of Rs. 17,66,000/- as under:

¶504

Royalty @Rs.150 per m³	Rs.2,61,000/-
Cost of mineral	Rs.13,05,000/-
Penaltyfor violationunder Rule 58	Rs.2,00,000/-

¶505

(iii) Respondent 14 replied both the notices vide letter dated 26.03.2022, copy whereof is at page 385. In the reply he admitted violations and said that he has deposited the proposed amount towards royalty and penalty. However, he sought exemption from the cost of mineral pleading that he will not commit such violation in future. The relevant extract of the reply dated 26.03.2022 submitted by respondent 14

¶506

reads as under:

¶507

“ 3- खनन काय म योग क जाने वाल मशीन के संचालको वारा ु टवस अपनी सीमा से थोडा सा इतर जाकर काय कर लया गया है िजसे मै वीकार करता हूँ।

¶508

4- ाथ के खनन े क जाँच उपिजला धकार महोदय ओबरा वारा ग ठत स म त वारा दनांक 07/02/2022 को जाँच क गई एवं वयं क ु टय के लये मा ाथ ना मेरे वारा क गयी साथ है अना धकृत े से नकाल गई ख नज क राय ट राजक यकोष म जमा कये जाने का नवेदन भी कया गया।

¶509

5- उ त काय वाह के म म आपके काया लय के प सं या 6062 / ख नज / 2022 वारा मेरे व ध राय ट के साथ ह साथ ख नमुख मू य एवं अथ द ड भी अ धरो पत कर जमा कये जाने के आदेश ा त हुए है।

¶510

6- ाथ के खनन े क दुबारा जाँच उपिजला धकार महोदय ओबरा वारा वयं एवं खान वभाग एवं वन वभाग साथ ह पु लस े ा धकार महोदय ओबरा क उपि थ त म दनांक 20/03/22 को पुनः क गई।

¶511

7- खनन े क जाँच के दौरान नापी म लगे अ धका रय वारा पुनः उ ह ग ढ को नाप दया गया िजनक मापी पूव के जाँच दनांक 07/02/22 को भी जा चुक थी।

¶512

8- महोदय के काया लय से नग त दोनो प मुझे आज ह ा त हुए है िजसके म मे राय ट एवं अथ द डक धनरा श मेरे वारा राजक य कोष म जमा करा द गई है।

¶513

9- ख नमुख मू य का माफ के लए ाथ ना प े षत है महोदय क कृपा का आधार न नवत है।

¶514

60

¶515

( क) ाथ महोदय को इस बात के लए आ व त करता है क मेरे वारा कभी भी व ध व ध काय नह ं कये जाय गे।

¶516

( ख) ाथ वारा सम त राजक य देयताओं काभुगतान अब तक ससमय/अ म प से कया जा रहा है।

¶517

( ग) महोदय के आदेश ाि त के साथ ह राय ट एवं अथ दंड के प म नधा रत धनरा श मेरे वारा जमा क जा चुक है। अ तु महोदय से नवेदन है क कृपा पूव क ख नमुख मू य के प म अ धरो पत

¶518

धनरा श माफ करने क कृपा कर ।”

¶519

English Translation by Tribunal-

¶520

“3. The machines used in the mining work have mistakenly taken by the operators beyond their limits, which I accept.

¶521

4. Investigation of the applicant's mining area was carried by the committee constituted by the Deputy Collector Mr. Obra, on 07/02/2022 and apologized for my own errors, along with request to deposit royalty of mineral extracted from unauthorized area in state fund.

¶522

5. In order of the above action, orders have been received against me to deposit the royalty as well as mineral price value and penalty by your office's letter number 6062 / Mineral / 2022.

¶523

6. The mining area of the applicant was re-examined on 20/03/22 by the sub-collector, Obra himself and in the presence of Mines and Forest Department as well as the police jurisdictional officer, Obra.

¶524

7. During the investigation of the mining area by the officers engaged in measurement, the same pits were again measured which has already been submitted on 07.02.0222.

¶525

8. I have received both the letters issued from the office today, the amount of royalty and penalty has been deposited by me in the state treasury.

¶526

9. Application letter for forgiveness of mineral price is placed, for the kind grace of Sir which is as follows.

¶527

(a) The applicant assures that he will never do any illegal act.

¶528

(b) Till now all the government dues are being paid by the applicant on time / in advance.

¶529

(c) With the receipt of the order of the sir, the amount fixed as royalty and fine has been submitted by me .

¶530

Therefore, it is kindly requested to forgive the amount imposed as mineral price value .”

¶531

(iv) The third show cause notice was issued to respondent 14 on

¶532

10.05.2022 by District Magistrate, Sonbhadra stating that

¶533

61

¶534

mining lease site was inspected by Mining Officer, Sonbhadra, Inspector of Mines and Surveyor of Mining Department on 06.05.2022 who found that boundary pillars and sign boards were not fixed; positioning of 2 CCTV camera was not in order and recording was also not properly maintained; there was illegal mining by creating two new pits outside the mining lease area on north east side in village Mitapur and illegal mining was conducted with lifter/suction machines and excavator. The details of pits wherefrom illegal mining from Son River were conducted, mentioned in the show cause notice at page 382, are as under:

¶535

“ पट - 1. ल बाई 131 मी 0 x चौड़ाई 120 मी 0 x ऊँचाई 1.5 मी 0 = 23,580 घन मी० पट- 2. ल बाई 158 मी 0 x चौड़ाई 55 मी 0 x ऊँचाई 1.5 मी 0 = 13,035 घन मी०”

¶536

(v) Show cause notice proposed total penalty etc. of Rs. 3,46,98,500/- as per following details:

¶537

Royalty @Rs.150 per m³	Rs. 54,92,250/-
Cost of mineral	Rs. 2,74,61,250/-
Penaltyfor violationunder Rule 58	Rs.12,20,000/-
Penaltyfor violationunder Rule 60(4)	Rs. 5,00,000/-
Total	Rs.3,46,98,500/-

¶538

(vi) The said show cause notice was replied by respondent 14 vide letter dated 21.05.2022, copy whereof is at page 383. The allegations with regard to boundary pillars were admitted but tried to be explained that the same were disturbed by some unsocial elements. The allegation with regard to positioning of CCTV was also admitted and it is said that now it has been corrected. However, with regard to illegal mining on the forest land, respondent 14 has said that responsibility of its supervision and monitoring was that of Forest Department who used to monitor the same; and that respondent 14 has

¶539

62

¶540

not caused any illegal mining in the forest land.

¶541

(vii) In the objections dated 03.03.2023 in para 14, however, it is said that respondent 14 has deposited penalty amount of Rs. 3,93,10,500/- under protest . Before us, it is, however, not disputed that neither any appeal has been filed against the said order nor any further action has been taken disputing liability and seeking refund of the amount paid, till date.

¶542

100. VIOLATION BY RESPONDENT 15:

¶543

(i) In respect of respondent 15, a show cause notice dated 08.02.2022 (at page 375 of paper book) was issued stating that Sub-divisional Magistrate, Obra Sonbhadra conducted a joint enquiry on 07.02.2022 in respect of mining lease granted to respondent 15 on Araji No. 824 kha (khand 3), area 16.194 hectares on the Son River bed. It was found that going beyond the leased area, on the northern side in village Kargara in Son River, 3 pits were created with following measurement:

¶544

PitI 65m	×25m	×0.80m	1300 m³
PitII 45m	×35m	×0.70m	1071 m³
PitIII 70m	×20m	×0.80m	1120 m³
		Total	3491 m³

¶545

(ii) The said extraction beyond leased area was carried out within 100 meters of the forest land. Consequently, District Magistrate, Sonbhadra vide the above show cause notice proposed imposition of penalty as under:

¶546

Royalty @ Rs.150 per m³	Rs. 5,23,650/- (for3491 m³)
Cost of mineral	Rs.26,18,250/-
Penalty under Rule 58 of UP	Rs. 2,00,000/-
MineralConcession Rules, 2021
Total	Rs. 33,41,900/-

¶547

(iii) The show cause notice states that respondent 15 has violated

¶548

63

¶549

Rule 3, 58 and 72 UP Minor Mineral Concession Rules, 2021 and Sections 4 and 21 of MMDR Act, 1957.

¶550

(iv) Respondent 15 submitted reply to the show cause notice vide letter dated 24.02.2022 (page 376 of the paper book). Denying allegations of illegal mining, it was stated that several complaints were made by respondent 15 with regard to illegal mining on Son River being carried out by local contractor who was allotted mining right under Ret-Khet Scheme, in close proximity to area leased out to respondent 15. The relevant extract of the reply submitted by respondent 15 reads as under:

¶551

“With reference to the Show cause Notice issued vide letter No. 6061/Khanij/2022 dated 08.02.2022 on behalf of New India Minerals it is denied that there has been any illegal mining by the Firm on the northern side towards village Karghara on the River Son, outside its mining area at Araji No. 824Kha, Khund-3 in Village Aghori Khas.

¶552

2. In this regard we would like to draw your kind attention to our several complaints to the Mines Officer about illegal mining on Son River being carried out by the local contractor who had been allotted mining right under the ‘Ret Khet Scheme’ in very close proximity of the area leased to New India Minerals. It has also been pointed out that the said contractor has also been illegally extracting sand & morrun from another area in Khund-2 at Araji No. 824-Kha in Village Aghori khas.

¶553

3. Thus, in our humble submission, the act of Illegal mining being carried out by a local contractor who also happened to be wilding considerable Influence, is being alleged against New India Minerals which is unjust and unfair.

¶554

4. In view of the above clarifications, it is requested that the cost/penalty of Rs.33,41,900/-imposed on us may be reviewed and rescinded.”

¶555

(v) Another show cause notice was issued to respondent 15 on 10.05.2022 (page 377 of the paper book), alleging that Mines Officer, Sonbhadra; Mines Inspector, Sonbhadra and

¶556

64

¶557

Surveyor, Mining Department conducted a joint inspection on 06.05.2022 and found following violations:

¶558

The boundary pillars and sign boards were not installed in the mining lease area.

¶559

In place of 4 CCTV cameras for 360-degree recording, only 2 CCTV camera at weigh bridge were found installed.

¶560

Vehicle no. UP 54 T 5945 at 05:44 on 05.05.2022 and UP 50 VT 7262 at 06:24 on 05.05.2022 were found standing, as per 2 CCTV cameras installed at the weigh bridge site but when enquired from the representatives of lease holder, they could not show e-MM-11 of the above 2 vehicles.

¶561

On the eastern side of the mining lease, beyond the forest land of village Kargara and on the northern side in the proposed khand no. 2 of village Agori Khas, a fresh pit was found where mining was done and it was found that illegal mining was carried out from river Son by using 4 lifters/suction machines and excavators. Details of pits are

¶562

as under:

¶563

Pit I	190m×95m	×1m	18,050 m³
PitII	110m ×60m	× 1.5m	9,900m³
		Total	27,950 m³

¶564

(vi) Alleging violation of Rules 3, 36, 42, 58 and 72 of UP Minor Mineral Concession Rules, 2021 and Sections 4 and 21 of MMDR Act, 1957, it was said that the violation is punishable. It is also said that there is violation of condition no. 11 of mining lease deed general condition part 3, wherein use of lifter/suction machines were prohibited. District Magistrate, Sonbhadra proposed demand/penalty as under:

¶565

65

¶566

Royalty @ Rs.150 per m³	Rs. 41,92,500/- (for27950m³)
Cost of illegally mineral	Rs. 2,09,62,500/-
Penalty for violation under Rule 36	Rs.25,000/-
Penalty for violation under Rule 58	Rs. 12,32,500/-
Penalty for violation under Rule 60(4)	Rs.5,00,000/-
Total	Rs.2,69,12,500/-

¶567

(vii) Respondent 15 replied the said show cause notice dated 10.05.2022 vide letter dated 14.05.2022 (page 378 of paper book). It is said that proponent was required to indicate GPS coordinates in the Map and erect boundary pillars to identify mining area in the presence of officers from Revenue and Chakbandi Departments before execution and registration of mining lease agreement. It is impossible of not having erected boundary pillars since mining lease agreement was already executed. Further the lease area was inspected by joint teams earlier on 21.01.2022, 03.02.2022, 08.02.2022 and 22.03.2022 and for the first-time allegations of absence of boundary pillars and sign boards was made. Further, with regard to CCTV cameras, it was stated that earlier joint team of mines officers visited the premises but no such violation was pointed out. Four CCTV cameras were installed by respondent 15. With respect of non-production of e-MM-11 permits of 2 vehicles, the explanation was that these trucks were yet to be loaded and process of OTP generation was being carried out which was disrupted due to visit of inspection team. In respect of illegal mining outside the leased area, in village Kargara and Agori Khas (khand 2), respondent 15 explained that several complaints were made in the past about illegal mining on Son River being carried out by local contractors granted mining rights under Ret-Khet Scheme

¶568

66

¶569

and the allegations against respondent 15 are incorrect.

¶570

(viii) Respondent 15 has also placed on record letter dated 31.05.2022 (page 380) stating that w.e.f. 05:00 pm on 29.03.2022 since OTP required for generation of e-MM-11 permit for transportation of minerals from the leased site, was stopped by District Mining Officer, hence, under protest, respondent 15 deposited Rs. One Crore towards proposed demand of penalty etc . vide show cause notice dated 10.05.2022.

¶571

(ix) In para 14 of objections dated 03.03.2023, it has been stated that respondent 15 infact has paid the entire demanded sum vide show cause notice dated 10.05.2022 i.e., Rs. 2,69,12,500/-.

¶572

Violations noticed and observed by Joint Committee in its report dated 17.02.2023:

¶573

Joint Committee in respect of both the mining leases granted to respondents 14 and 15 has observed that the leases were sanctioned in bench of River Son .

¶574

In Geomorphology, geography and geology, a bench or benchland is a long, relatively narrow strip of relatively level or gently inclined land that is bounded by distinctly steeper slopes above and below it. In mining, a bench is a narrow strip of land cut into the side of an open-pit mine. These step-like zones are created along the walls of an open-pit mine for access and mining.

¶575

The report further shows various violations on the part of both respondents 14 and 15. One of the major violations found by Joint Committee, in respect of respondents 14 and 15 both, is significant mining

¶576

67

¶577

outside the lease area (towards main stream of river). The observations of Joint Committee in respect of respondent 14 on this violation reads as under:

¶578

“Committee has been observed that the lease holder doing significant mining outside of the lease area (towards main stream of river) , committee unable to visit the outside of the lease area (towards main stream of river), where mining is being conducted by lease holder, due to creation of heavy trench committee could not went in that patch of land, which seems be created by lease holder before visit of the committee.”

¶579

The report also shows that significant mining outside lease area is also evident from Google Satellite Image dated March 2022 and the area of mining outside the lease area is about 5.44 hectares as per Satellite image.

¶580

In respect of respondent 15, the findings with respect to mining outside lease area, reads as under:

¶581

“Committee has been observed that the lease holder doing significant mining outside of the lease area (towards main stream of river), committee unable to visit the outside of the lease area (towards main stream of river), where mining is being conducted by lease holder, due to creation of heavy trench committee could not went in that patch of land, which seems be created by lease holder before visit of the committee.”

¶582

Here also, it is said that the mining outside lease area is also evident from Google satellite image dated March 2022. The area of mining outside lease area as per satellite image was found by Joint Committee is 4.72 hectares towards main stream.

¶583

The defense of respondents 14 and 15, in respect of this violation is that the said mining was not done by the proponents but already done by land owners of the nearby area and even before mining lease area was handed over to respondents 14 and 15, such mining was already conducted by third parties. It is also said that they made complaints to authorities on various occasions but authorities did not pay any heed to

¶584

68

¶585

the complaints.

¶586

With regard to complaints allegedly made by respondents 14 and 15 regarding illegal mining by third parties, when inquired by this Tribunal, our attention was drawn by Learned Counsel appearing for respondents 14 and 15 to various letters filed collectively as annexure 4 which are on pages 365, 366, 367 and 368. We have seen these documents and find that all these letters were written by one Rashmit Malhotra S/o Ajit Malhotra R/o Main Road, Pipariya, Hoshangabad, Madhya Pradesh who was allotted mining lease in Aaraji 824 kha (khand 2), area 16.194 hectares. These letters are dated as under:

¶587

(i) Letter at page 365 - It is un-dated, sent by Rashmit Malhotra to Senior Mining Officer, Sonbhadra.

¶588

(ii) Letter at page 366 dated 04.05.2022 sent by Rashmit Malhotra to Deputy Collector, Tehsil Obra, District Sonbhadra.

¶589

(iii) Letter at page 367 - It contains endorsement of receipt on 04.05.2022 sent by Rashmit Malhotra to District Collector, Sonbhadra.

¶590

(iv) Letter at page 368 - This letter is dated 08.01.2022 sent by Rashmit Malhotra to District Magistrate, Sonbhadra but it does not talk of complaint of illegal mining by third party. Instead, it says that at araji no. 371, 167, 330, 332, 336, 367, 370, 166, 374 and 375, mining of sand/morrum was approved but no morrum was actually available in the said area and land is being cultivated/ used for agricultural purposes i.e., for sowing of crops.

¶591

With respect of agori khas (khand 2), it is also said in the above letter that there is also no sand/morrum available in the private land hence there is a possibility of theft of morrum from Agori khas (khand 2).

¶592

69

¶593

Our attention is also drawn to copies of certain newspapers reports while at page 369, 370, 371, 372, 373 and 374. Having gone through the newspapers, our observations in respect of the said newspapers are as under:

¶594

(i) At pages 369 and 370, there is copy of daily newspaper Rashtriya Sahara dated 05.05.2022 and it reports complaint of illegal mining by land owner/contractor in araji no. 824 kha (khand-2) and the allegation of illegal mining was made by Rashmit Malhotra.

¶595

(ii) At page 371, 372, 373 and 374 are the copies of the newspapers dated 02.02.2022 of Dainik Bhaskar, Jan Sandesh, Samvad News Agency and Dainik Bhaskar (repeated). They also relate to a similar complaint made by Chander Shekhar Chaurasiya, lessee of Agori Khas (khand 1) and Rashmit Malhotra lessee of Agori Khas (khand 2).

¶596

Not even a single complaint, allegedly made by respondents 14 and 15, has been placed on record and except what they have stated in their reply to the show cause notices, as discussed above, as a matter of fact, respondents 14 and 15 have failed to show even a single complaint made to the mining authorities about the alleged illegal mining done by third parties or land owners/contractors in respect to the allegations of illegal mining levelled by mining authorities against respondents 14 and 15.

¶597

In fact, one of the letters on record i.e., dated 26.03.2022 (page 335) shows a clear admission on the part of respondent 14 regarding illegal mining beyond the leased area.

¶598

The defense taken by respondents that the mining outside the lease area was caused by others and third parties, therefore, neither could be proved by them nor they could place any material before this Tribunal to

¶599

70

¶600

show that they made any such complaint when lease area handed over to them by the authorities that some mining by third parties has already done in their area or that in nearby area, some mining activities are going on. The entire defense, in our view, particularly, looking to the fact that the letter dated 26.03.2022 is also a clear admission on part of respondent 14 regarding illegal mining beyond lease area shows that the defense taken jointly by both the respondents is an after-thought and in fact, they are guilty of undertaking mining of morrum in an area outside the leased area. Joint Committee has actually conducted field visit on 09.12.2022 and recorded its findings based on the site inspection. Nothing has been brought on record or placed before us to show that Joint Committee had recorded any incorrect finding, particularly, when no motive or reason for giving an incorrect finding has been attributed to the Joint Committee comprising of high officials like Regional Officer, Integrated Regional Officer, MoEF&CC Lucknow, Additional District Magistrate (Finance and Revenue), a nominee of District Magistrate, Sonbhadra and Regional Officer Sonbhadra of UPPCB. It is not the case of respondents 14 and 15 that Joint Committee did not visit the field on 09.12.2022, as stated in the report.

¶601

Further, findings and observations that heavy trenches were created on account whereof, the Committee could not visit the patch of the land whereon illegal mining was carried out, as the said trenches created obstructions in such visit, show a deliberate attempt on the part of respondent 14 and 15 in creating hurdle in the physical inspection.

¶602

We find satisfied to draw the above inference from the facts that for past violations i.e., illegal mining beyond leased area, the penalty amount imposed by Mining Authorities under mining statutes was already paid by both the respondents 14 and 15 and they have not taken or initiated any

¶603

71

¶604

legal action, challenging the said demand or for refund of the amount already paid. This fact is admitted during the course of arguments when it is admitted by learned counsel appearing for respondents 14 and 15 that neither any appeal has been filed before appropriate Appellate Authority nor any legal action for refund of the amount already paid has been taken till the date on which the matter was heard by this Tribunal, i.e., 13.03.2023 and payment has attained finality.

¶605

Thus, we may summarise on the defense of respondents 14 and 15 regarding third parties’ involvement that though respondents 14 and 15 claimed to have made several complaints in the past but not even a single such complaint allegedly made by respondents 14 and 15 has been placed on record. They have miserably failed to show that illegal mining was not carried out by them. There is only a self-claimed denial. Illegal mining has been carried out in the area, in proximity to leased area to respondents 14 and 15. Mining authorities on physical inspections, have held respondents 14 and 15 responsible of illegal mining and saddled them with liability of fine and penalty etc. which has been paid by respondents 14 and 15. In fact, respondents 14 in its reply dated 26.03.2022 has admitted to have carried out mining outside the lease area. Further, it is also admitted that both the respondents have satisfied entire demand raised by District Magistrate, Sonbhadra vide various show cause notices discussed above on account of illegal mining by respondents 14 and 15.

¶606

We may also repeat about admission on the part of respondents 14 and 15 during the course of the arguments that the entire demand raised by mining authorities as per the show cause notices referred to hereinabove, the amount has been paid by respondents 14 and 15 and neither they have initiated any further proceedings for refund of the said amount nor filed any appeal to the higher authorities under mining

¶607

72

¶608

statutes for revocation of the demand raised by District Magistrate, Sonbhadra on the allegation of illegal mining by respondents 14 and 15. Those allegations of illegal mining thus stand ultimately admitted and consequent liability of fine etc. also stand admitted since payment has been made.

¶609

Thus, it is evident that they (respondents 14 and 15) are guilty of carrying out illegal mining beyond the lease area.

¶610

The next violation observed by Joint Committee is mining by lease holder in main stream of the river (outside of the leased area).

¶611

In this regard, observations made in respect of respondent 14 reads as under:

¶612

“As mentioned above, illegal mining is being done by the lease holder in the main stream of the river (outside of the lease area), may certainly be change the course of river flow & its velocity and its quality, which is contradictory to EC General Condition no. 13.

¶613

It has also been observed that the mining activity is also going on the main stream of river Sone, i.e., outside of the lease area. ”

¶614

In respect of respondent 15, observations of Joint Committee are as under:

¶615

“As mentioned above, illegal mining is being done by the lease holder in the main stream of the river (outside of the lease area), may certainly be change the course of river flow & its velocity and its quality, which is contradictory to EC General Condition no. 13. ”

¶616

In respect of both the respondents 14 and 15, Joint Committee under the head ‘Other Observations’ has said as under:

¶617

“As per Google earth images, there are three illegal pits visible near the mine of M/s Sudhakar Pandey and Associates, the area of these illegal pits is 5.44 ha. Similarly, three illegal pits of 4.72 Ha area have existed near the mine area of M/s New India Minerals.

¶618

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¶619

The illegal mining pits are located towards the center of the river course which can severely affect the river economy .”

¶620

On this aspect, we do not find any explanation or defense on the part of respondents 14 and 15 either in their written objections or any statement or explanation given at the time of hearing. What is said is that the mining was allowed in the river bed of Son river but ‘mining in river bed’ and ‘mining in main stream of river’ are two different things. If sufficient mined mineral has been deposited in the river bed, during dry period, such mined material may be taken away from the river bed. Otherwise, in an active stream, if mining is conducted in the main stream, it has serious consequences and impact on 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. Alternation or modification of the above attributes may cause hazardous impact on ecological equilibrium of riverine regime. It may also cause adverse impact on in-stream biota and riparian habitats. This disturbance may also cause changes in channel configuration and flowpaths.

¶621

Sustainable Sand Mining Management Guidelines-2016 (hereinafter referred to as ‘ SSMG-2016 ’) says:

¶622

“b) In-stream extraction of gravel from below the water level of a stream generally causes more changes to the natural hydrologic processes than limiting extraction to a reference point above the water level.

¶623

c) In-stream extraction of gravel below the deepest part of the channel (the thalweg) generally causes more changes to the natural hydrological processes than limiting extraction to a reference point above the thalweg.”

¶624

Under the head “General Approach to Sustainable Sand and Gravel Mining”, SSMG-2016 says as under:

¶625

74

¶626

“b) The distance between sites for sand and gravel mining shall depend on the replenishment rate of the river. Sediment rating curve for the potential sites shall be developed and checked against the extracted volumes of sand and gravel.

¶627

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

¶628

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

¶629

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.

¶630

m) Mining depth should be restricted to 3 meter and distance from the bank should be 3 meter or 10 percent of the river width whichever less.

¶631

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

¶632

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

¶633

Enforcement & Monitoring Guidelines for Sand Mining-2020 in para

¶634

4.3 (r) says as under:

¶635

“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.”

¶636

The study of River Son, conducted in DSR-2018 (annexure-I to the additional affidavit dated 17.03.2023 filed by respondent 14) mentions that River Son enters the area in State of UP at Kalighat and flowing for a

¶637

75

¶638

distance of nearly 60 km due each, leaves the area about 15 km northeast of the Kon area and enters State of Bihar. In this area, River Son forms a deep cut valley about 12.15 km wide. Along the course of river and stream, very limited valley fill deposits are observed. River Son divides the district (Sonbhadra) into two districts topographic divisions. The thickness of alluvium or weathered zone is more in North of River Son while it is negligible in south of River Son. River Son generally dry during hot weather but hold water during the greater part of the year and utilized for irrigation and contribute a major potentiality of sand mining along which potential area has been notified for e-tendering and given short term mining permits in these areas at different villages.

¶639

DSR-2018 relied by respondents 14 does not show district wise availability of sand or gravel or aggregated resources. In para 8(b), it gives description of sand/morrum mining area (vacant) but as required in SSMG-2016, DSR must contain following:

¶640

(i) District wise detail of river or stream and other sand source.

¶641

(ii) District wise availability of sand or gravel or aggregate resources.

¶642

(iii) District wise detail of existing mining leases of sand and aggregates.

¶643

Even in the EC issued to respondents 14 and 15 specific condition no. 18 says as under:

¶644

“ No mining activity should be carried out in-stream channel as per SSMG-2016 .”

¶645

Therefore, there was a clear condition imposed in EC also but this has been violated by respondent 14 and 15 by carrying out mining activities in main stream of river and that too outside the leased area. This is serious violation which has serious consequences, degrading and damaging effect on the river ecology. On this aspect, we do not find any explanation or defense on the part of respondents 14 and 15, therefore,

¶646

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¶647

this violation stands established against respondents 14 and 15.

¶648

Temporary bridges structure raised by proponents: The third violation, common to respondents 14 and 15, noticed by Joint Committee is creation of temporary bridges structures across the river course liable to interrupt flow of river. On this aspect, there is no explanation and no denial on the part of respondents 14 and 15. At the time of arguments, it sought to explain that the bridge structures were created for transportation of mineral from one side to another but such structure was not permitted particularly, when interruption to velocity and flow pattern is specifically prohibited in the conditions of EC which we have quoted above. Thus, this violation on the part of respondents 14 and 15 is well established.

¶649

Sinking of borewells and extraction of ground water: The Joint Committee in respect of both the respondents have said that the bore well was found to have been installed by respondents 14 and 15 and they were illegally extracting ground water without having obtained any NOC from Ground Water Department.

¶650

In regard to respondent 14, findings of Joint Committee on this aspect are as under:

¶651

“ One bore well is found in running condition without statutory approvals.”

¶652

In respect of respondent 15, observations of Joint Committee are as under:

¶653

“ Bore well is found in running condition without statutory approvals.”

¶654

In the objections, it has been said by respondents 14 and 15 that NOC was obtained by respondent 15 in respect of a bore well for extraction of ground water from UPGWD on 26.12.2021, copy of NOC is also on

¶655

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¶656

record as annexure-9 to the objections on page 413 of the paper book. Therefore, findings of Joint Committee on this aspect, in respect of respondent 15 is not accepted .

¶657

However, with regard to respondent 14, we find no reason but to accept the findings and hold that this violation is found proved against respondent 14 . The explanation of respondent 14 is that it has not installed any bore well inside the lease area but no such bore well has been installed outside the lease area, is not the case of respondent 14. It is also said that it is meeting its requirement of water from external sources but what those external sources and in what manner, the water requirement is being met, nothing has been placed on record though onus lay upon respondent 14 to prove this fact. In absence of any material, we find difficult to accept the defense of respondent 14 and hold it guilty of violation of illegal extraction of ground water by installing a bore well without having obtained any permission from Competent Authority and findings of Joint Committee to this extent is accepted.

¶658

The other violations found in respect of both the cases or individually are given in the form of chart:

¶659

Common violations:

¶660

(a)	Motorable approach road with	(a) Motorable approach road with
	both side plantation not	both side plantation in area not
	raised/constructed	made/raised
(b)	Compliance of EC conditions and CTO conditions are	(b) Compliance of EC conditions and CTO conditions are
	pathetic	pathetic
(c)	Illegal mining pits were located	(c) Illegal mining pits were located
	towards the centre of the river	towards the centre of the river
	course which can severely	course which can severely
	affect river economy	affect river economy

¶661

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¶662

Individual violations of respondent 14:
(d) Boundary pillars not properly
erected on each corner of the
lease
(e) Lease holder was using various
machines for river bed mining
in lease area as also outside
the lease area
(f) Depth of pit more than
prescribed in EC
Individual violations of respondent 15:
(g) Weigh bridge, bore well, DG
sets and office outside the
leased area on Government
land
(h) Statutory permissions like EC,
CTO, production, compliance
report, lease documents,
mining plans etc. were not
available with the
representative of lease holder

¶663

Further, Joint Committee has said that both the proponents created a situation by obstructing road dumping over-burdened so that the Committee may not reach the illegal mining lease site outside the coordinates of leased area. In this regard, observations of Joint Committee are as under:

¶664

“At the time of inspection, it was found that the Kachha path constructed by the mines lease holders for transportation of the sand from the lease area has been disturbed by keeping overburdens on the road in a such a way that the Committee may not reach to the illegal mining lease site outside the coordinates of the lease area . However, the committee member tried to see the factual situation and accordingly it was visible that 03 mines pit are operational outside the lease boundary . The illegal mining area could not be measured; however, it is visible on the Google earth and Google satellite image is attached as Annexure C, D & E .”

¶665

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¶666

On this aspect, neither any explanation has come forward from respondents 14 and 15 nor there is any denial. Common attempt made by both the parties to obstruct functioning of Joint Committee is nothing but an attempt to violate order of this Tribunal which permitted the Committee to visit the site and furnish factual report. It is also an offence under Section 26 of NGT Act, 2010. This shows that respondents 14 and 15 had infact committed serious violation by doing illegal mining, hence, are liable to be proceeded against in accordance with law.

¶667

The report of committee in respect of the violations as observed above is accepted and issues I and II are answered against respondents 14 and 15 .

¶668

Now we proceed to consider issue III.

¶669

Since findings on issues I and II have gone against respondents 14 and 15, it is thus clear that both are liable to pay environmental compensation on the principle of ‘Polluters Pay’ since illegal mining has caused serious damage to aquatic ecology and riverine regime. For violation of conditions of EC etc., both are also liable for other action like initiation of criminal proceedings in accordance with law.

¶670

Coming to the question of environmental compensation, the moot question would be the quantum of compensation which has to be paid by respondents 14 and 15.

¶671

Principle for Computation of Environmental Compensation:

¶672

The question of assessment of environmental compensation includes the principles/factors/aspects, necessary to be considered for computing/assessing/determining environmental compensation. Besides judicial precedents, we find little assistance from Statute. Section 15 of

¶673

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¶674

NGT Act, 2010 talks of relief of compensation and restitution. It confers wide powers on this Tribunal to grant relief by awarding compensation for the loss suffered by individual(s) and/or for damage caused to environment. Section 15 reads as under:

¶675

“ 15. Relief, compensation, and restitution -(1) The Tribunal may, by an order, provide, -

¶676

a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);

¶677

b) for restitution of property damaged; c) for restitution of the environment for such area or areas, as the Tribunal may think fit.

¶678

(2) The relief and Compensation and restitution of property and environment referred to in clauses (a), (6) and (c) of sub-section of (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).

¶679

(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose:

¶680

Provided that the Tribunal may, if it is satisfied that the' applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

¶681

(4) The Tribunal may, having regard to the damage to public health, property and environment , divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.

¶682

(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may, be, compensation or relief received from, any other Court or authority.

¶683

Sub-section 1 of Section 15 enables Tribunal to make an order providing relief and compensation to (i) the victims of pollution, (ii) other environmental damage arising under the enactments specified in the Schedule I.

¶684

Tribunal is also conferred power to pass an order providing relief for restitution of property damaged. Section 15(1)(c) enables Tribunal to pass

¶685

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¶686

an order providing relief for restitution of the environment for such area or areas, as Tribunal may think fit. Section 15 sub-section 4 says that Tribunal may divide compensation or relief payable under separate heads specified in Schedules II, having regard to the damage to public health, property and environment so as to provide compensation or relief, (i) to the claimants and (ii) for restitution of the damaged property or environment, as it may think fit.

¶687

Schedule II of NGT Act, 2010 gives a list of heads under which compensation or relief for damage may be granted. It has 14 heads in total out of which item (a) to (f), (l), (m) and (n) relates to loss, damage etc. sustained to the person or individual or their property. Item (i) to (k) relates to harm, damage, destruction etc. of environment or environmental system including soil, air, water, land, and eco-system. Items (i) to (k) of Schedule II of NGT Act, 2010 are as under:

¶688

“(i) Claims on account of any harm, damage or destruction to the fauna including milch and draught animals and aquatic fauna;

¶689

(j) Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards;

¶690

(k) Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-systems;”

¶691

Items (g) and (h) relate to expense and cost incurred by State in providing relief to affected person; and loss caused in connection with activity causing damage.

¶692

The damage to environment covers a very wide variety of nature as is evident from definition of environment under section 2 (c) which is inclusive and says; ‘environment includes water, air, and land and the interrelationship, which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property’.

¶693

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¶694

Section 20 of NGT Act, 2010 requires Tribunal to apply principles of sustainable development, the precautionary principle and the polluter pays principle. In the present case, environmental compensation has to be computed by applying ‘Polluter Pays’ Principle.

¶695

The compensation has to be determined holding proponents/violators liable to pay such compensation applying principle

¶696

of ‘Polluter Pays’ .

¶697

This principle was recognized as part of environmental law in India in Indian Council for Enviro-Legal Action vs. Union of India, (1996)3SCC212 . Certain industries producing assets were dumping their waste. Even untreated waste water was allowed to flow freely polluting atmosphere and sub-terrain supply of water which ultimately caused darkening and dirtiness of wells and the streams water rendering it unfit for human consumption. Certain environmentalists’ organizations broadly alleging severe damage to villager’s health, filed a Writ petition as PIL in 1989 before Supreme Court. By that time, some of the units were already closed. Referring to Article 48-A in Director Principle of State Policy and 51-A in the Fundamental duties of citizens, Supreme Court observed that said provisions say that State shall endeavor to protect and improve environment and to safeguard the forest and wildlife of the country. One of the fundamental duties of citizen says to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creature. Proponent has established to operate its commercial unit contrary to law flouting norms provided by law, Statutory Regulator is bound to act and if it fails, a judicial forum can direct it to act in accordance with law . Referring to Oleum Gas leak case, i.e., M.C. Mehta vs. Union of India, (1987)1SCC395 , Court

¶698

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¶699

observed in para 58 that the constitution bench held that enterprise must be held strictly liable for causing such harm as a part of social cost of carrying on the hazardous or inherently dangerous activity . Hazardous or inherently harmful activities for private profits can be tolerated only on the condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of carrying on of such hazardous or inherently dangerous activity, regardless of whether it is carried on carefully or not. Court also referred to its earlier decision in Indian Council for Enviro Legal action vs. Union of India (1995)3SCC77, wherein PCB identified about 22 industries responsible for causing pollution by discharge of their effluent and a direction was issued by Court observing that they were responsible to compensate to farmers. It was the duty of State Government to ensure that this amount was recovered from the industries and paid to the farmers. In para 67 of the judgment, Court said that the question of

¶700

liability of respondent units to defray the costs of remedial measures can also be looked into from another angle which has now come to be accepted universally as a sound principle, for example, ‘Polluter Pays’

¶701

principle . On this aspect, Court further observed as under:

¶702

“ 67. ...The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The ‘Polluter Pays’ principle was promoted by the Organization for Economic Cooperation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialized society. Since then there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.

¶703

84

¶704

Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme ([1987] OJC 328/1) makes it clear that ` the cost of preventing and eliminating nuisances must in principle be borne by the polluter' , and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventative action; the need for environmental damage to be rectified at source; and that the polluter should pay.”

¶705

Court further said that according to the above principle of

¶706

‘Polluter Pays’, responsibility for repairing the damage is that of the

¶707

offending industry . Sections 3 and 5 of EP Act, 1986 empower Central Government to give directions and take measures for giving effect to this

¶708

principle. It further said as under:

¶709

“...In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment (Protection) Act, 1986 . It is, of course, open to the Central Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit.”

¶710

The above principle has been followed in Vellore Citizen Welfare Forum vs. Union of India, 1996(5)SCC647 . In para 25, direction no. 2 reads as under:

¶711

2. The authority so constituted by the Central Government shall implement the “precautionary principle” and the “polluter pays” principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment . The authority shall lay down just and fair procedure for completing the exercise.

¶712

85

¶713

In Bittu Sehgal and Another vs. Union of India & Others (2001)9SCC181 , referring the earlier judgments, Supreme Court has said that ‘Precautionary’ Principle and ‘Polluter Pays’ Principle have been accepted as part of the law of the land.

¶714

In Research Foundation for Science vs. Union of India & Ors., (2005)13SCC186 , in para 26 and 29, Court, on ‘Polluter Pays’ principle, has said as under:

¶715

26. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter-pays principle. These principles are part of the environmental law of India . There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation.

¶716

29. The polluter-pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible . The principle also does not mean that the polluter can pollute and pay for it . The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case.

¶717

In Karnataka Industrial Areas Development Board vs. C. Kenchappa & Others (2006)6SCC371 , principle of ‘Polluter Pays’ has been explained in detail referring to the earlier judgments in Indian

¶718

Council for Enviro-Legal Action vs. Union of India (supra) and Vellore Citizen Welfare Forum (supra) .

¶719

Thus, broad principles of environmental laws are given but the methodology for assessing/determining compensation is not provided in the Statute. Even Rules framed under NGT Act, 2010 are silent on this aspect. Issue of determination of environmental compensation is significant in the sense that it should be proportionate to or bears a

¶720

86

¶721

reasonable nexus with the environmental damage and its remediation/restoration. Similarly, in case of compensation to be determined for a victim, it needs to co-relate to injury caused or damage suffered by such person as also cost incurred for treatment/remediation.

¶722

Taking into consideration multifarious situations, relating to violation of environmental laws, vis-a-vis different proponents, nature of cases involving violation of environmental laws can be categorized as under:

¶723

(i) Where project/activities are carried out without obtaining requisite statutory permissions/consents/clearances/NOC etc., affecting environment and ecology. For example, Environmental Clearance under Environmental Impact Assessment Notification, 2006; Consent under Water Act, 1974 and Air Act, 1981; Authorisation under Solid Waste Management Rules, 2016 and other Rules; and NOC for extraction and use of ground water, wherever applicable, and similar requirements under other Statutes.

¶724

(ii) Where proponents have violated conditions imposed under Statutory Permissions, Consents, Clearances, NOC etc. affecting environment and ecology.

¶725

(iii) Where proponents have carried out their activities, causing damage to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc.

¶726

The above categories are further sub-divided, i.e., where the polluters/violators are corporate bodies/organisations/associations and group of the people, in contradistinction, to individuals; and another category, the individuals themselves responsible for such pollution.

¶727

87

¶728

Further category among above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc.

¶729

The next relevant aspect is, whether damage to environment is irreversible, permanent or is capable of wholly or partially restoration/remediation.

¶730

Determination/computation/assessment of environmental compensation must, not only conform the requirement of restoration/remediation but should also take care of damage caused to the environment, to the community, if any, and should also be preventive, deterrent and to some extent, must have an element of “being punitive”. The idea is not only for restoration/remediation or to mitigate damage/loss to environment, but also to discourage people/proponents from indulging in the activities or carrying out their affairs in such a manner so as to cause damage/loss to environment.

¶731

To impose appropriate ‘environmental compensation’ for causing harm to environment, besides other relevant factors as pointed out, one has to understand the kind and nature of ‘Harmness cost’. This includes risk assessment. The concept of risk assessment will include humanhealth risk assessment and ecological risk assessment. U.S. Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people. For the purpose of humanhealth risk assessment, it comprised of three broad steps, namely, planning and problem formulation; effects and exposure assessment and risk categorization. The first part involves participation of stakeholders and others to get input; in the second aspect health effect of hazardous substances as well as likelihood and level of exposure to the pollutant are

¶732

88

¶733

examined and the third step involves integration of effects and exposure assessment to determine risk.

¶734

Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities. Here also, we can find answer following three major steps, i.e., problem codification; analysis of exposure and risk characterization. First part encompasses identification of risk and what needs to be protected. Second step insists upon crystallization of factors that are exposed, degree to exposure and whether exposure is likely or not to cause adverse ecological effects. Third step is comprised of two components, i.e., risk assessment and risk description.

¶735

In totality, problem is multi-fold and multi-angular. Solution is not straight but involves various shades and nuances and vary from case to case. Even Internationally, there is no thumb-rule to make assessment of damage and loss caused to environment due to activities carried out individually or collectively by the people, and for remediation/restoration. Different considerations are applicable and have been applied.

¶736

In India, where commercial activities were carried out without obtaining statutory permissions/consents/clearance/NOC, Courts have determined, in some matters, compensation by fixing certain percentage of cost of project. In some cases, volume of business transactions, turnover, and magnitude of establishment of proponent have also been considered as guiding factors to determine environmental compensation.

¶737

Nature is extremely precious. It is difficult to price elements of nature like light, oxygen (air), water in different forms like rain, snow, vapour etc. When nature is exploited beyond its carrying capacity, results are harmful and dangerous. People do not understand the value of what nature has given free. Recently, in COVID-19 wave II, scarcity of oxygen

¶738

89

¶739

proved its worth. In dreadful second phase of the above pandemic, any amount offered, in some cases, could not save life for want of oxygen. Further, damage to environment, sometimes do not reflect in individuals immediately and may take time but injury is there. In such cases, process of determination of compensation may be different.

¶740

In an article, ‘The cost of pollution-Environmental Economics’ by Linas Cekanavicius, 2011, it has been suggested, where commercial activities have been carried out without consent etc., and pollution standards have been violated, Total Pollution Cost (hereinafter referred to as ‘ TPC ’) can be applied. It combines the cost of abatement of environment pollution and cost of pollution induced environmental damage. The formula comes to TPC(z)=AC(z)+ED(z) , where z denotes the pollution level. Further, clean-up cost/remediation cost of pollution estimated to be incurred by authorities can also be used to determine environmental compensation.

¶741

When there is collective violation, sometimes the issue arose about apportionment of cost. Where more than one violator is indulged, apportionment may not be equal since user’s respective capacity to produce waste, contribution of different categories to overall costs etc. would be relevant. The element of economic benefit to company resulting from violation is also an important aspect to be considered, otherwise observations of Supreme Court that the amount of environmental compensation must be deterrent, will become obliterated. Article 14 of the Constitution says that unequal cannot be treated equally, and it has also to be taken care. Determination/assessment/computation of environmental compensation cannot be arbitrary. It must be founded on some objective and intelligible considerations and criteria. Simultaneously, Supreme Court also said that its calculations must be

¶742

90

¶743

based on a principle which is simple and can be applied easily. In other words, it can be said that wherever Court finds it appropriate, expert’s assessment can be sought but sometimes, experts also go by their own convictions and belief and fail to take into account judicial precedents which have advanced cause of environment by applying the Principles of ‘Sustainable Development’, ‘Precautionary Approach’ and ‘Polluter Pays’, etc.

¶744

Clean-up cost or TPC, may be a relevant factor to evaluate damage, but in the diverse conditions as available in this country, no single factor or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to polluter/violator and though there is some element of subjectivity but broadly assessment/computation must be founded on objective considerations. Appropriate compensation must be determined to cover not only the aspect of violation of law on the part of polluter/violator but also damage to the environment, its remediation/restoration, loss to the community at large and other relevant factors like deterrence, element of penalty etc.

¶745

Committee in its reports has made certain recommendations determining environmental compensation under certain heads. The computation by Committee is based on certain formulas it has suggested. Applying principle of absolute liability, ‘Polluter Pays’ alongwith ‘Precautionary Principle’ and ‘Sustainable Development’, it has to be seen whether proponents/violators are liable to pay environmental compensation as suggested by Committee and also to undergo other statutory sanctions provided in the Statutes including criminal prosecution, or computation of compensation requires some other method.

¶746

CPCB Guidelines : CPCB has suggested in a report methodology for assessment of environmental compensation which may be levied or

¶747

91

¶748

imposed upon industrial establishments who are guilty of violation of environmental laws and have caused damage/degradation/loss to environment. It does not encompass individuals, statutory institutions and Government etc. Report is titled as “Report of the CPCB In-house Committee on Methodology for Assessing Environmental Compensation and Action Plan to Utilize the Fund” which was finalized in the meeting held on 27.03.2019. It shortlisted the incidents requiring an occasion for determining environmental compensation. Six such incidents, shortlisted, are:

¶749

“ Cases considered for levying Environmental Compensation (EC):

¶750

a) Discharges in violation of consent conditions, mainly prescribed standards/consent limits.

¶751

b) Not complying with the directions issued, such as direction for closure due to non-installation of OCEMS, non-adherence to the action plans submitted etc.

¶752

c) Intentional avoidance of data submission or data manipulation by tampering the Online Continuous Emission / Effluent Monitoring systems.

¶753

d) Accidental discharges lasting for short durations resulting into damage to the environment.

¶754

e) Intentional discharges to the environment -- land, water and air resulting into acute injury or damage to the environment.

¶755

f) Injection of treated/partially treated/ untreated effluents to ground water. ”

¶756

For the instances at items (a), (b) and (c), report says that ‘Pollution Index’ (hereinafter referred to as ‘ PI ’) would be used as a basis to levy environmental compensation. CPCB had already published Guidelines categorizing industries into Red, Orange, Green and White, based on the concept of PI . The PI is arrived after considering quantity and quality of emissions/effluents generated, types of hazardous waste generated and consumption of resources. PI of an industrial sector is a numerical number in the range of 0 to 100 and is represented as follows:

¶757

PI=f (Water Pollution Score, Air Pollution Score and HW Generation Score).

¶758

Since range of PI is 0 to 100, increase in value of PI denotes

¶759

92

¶760

increasing degree of pollution hazard from industrial sector. Accordingly, report says, for determining environmental compensation in respect of cases covered by item (a), (b) and (c), it will apply following formula:

¶761

“EC = PI × N × R × S × LF

¶762

Where,

¶763

EC is Environmental Compensation in Rs. PI = Pollution Index of industrial sector N = Number of days of violation took place R = A factor in Rupees (₹) for EC S = Factor for scale of operation LF = Location factor”

¶764

The formula incorporates anticipated severity of environmental pollution in terms of PI, duration of violation in terms of number of days, scale of operation in terms of micro and small/medium/large industry and location in terms of proximity to the large habitations. A note is also given under the aforesaid formula and it reads as under:

¶765

“Note:

¶766

a. The industrial sectors have been categorized into Red, Orange and Green, based on their Pollution Index in the range of 60 to 100, 41 to 59 and 21 to 40, respectively. It was suggested that the average pollution index of 80, 50 and 30 may be taken for calculating the Environmental Compensation for Red, Orange and Green categories of industries, respectively.

¶767

b. N, number of days for which violation took place is the period between the day of violation observed/due date of direction’s compliance and the day of compliance verified by CPCB/SPCB/PCC.

¶768

c. R is a factor in Rupees, which may be a minimum of 100 and maximum of 500. It is suggested to consider R as 250, as the Environmental Compensation in cases of violation.

¶769

d. S could be based on small/medium/large industry categorization, which may be 0.5 for micro or small, 1.0 for medium and 1.5 for large units.

¶770

e. LF, could be based on population of the city/town and location of the industrial unit. For the industrial unit located within municipal boundary or up to 10 km distance from the municipal boundary of the city/town, following factors (LF) may be used:

¶771

Table No. 1.1: Location Factor Values

¶772

*S. No*	_Population_*	*Location Factor*^#
	*(million)*	*(LF)*
1	1 to <5	1.25
2	5 to <10	1.5
3	10 and above	2.0

¶773

*Population of the city/town as per the latest Census of India

¶774

93

¶775

#LF will be 1.0 in case unit is located >10km from municipal boundary LF is presumed as 1 for city/town having population less than one million.

¶776

For notified Ecologically Sensitive areas, for beginning, LF may be assumed as 2.0. However, for critically Polluted Areas, LF may be explored in future.

¶777

f. In any case, minimum Environmental Compensation shall be ₹ 5000/day.

¶778

g. In order to include deterrent effect for repeated violations, EC may be increased on exponential basis, i.e. by 2 times on 1^st repetition, 4 times on 2^nd repetition and 8 times on further repetitions.

¶779

h. If the operations of the industry are inevitable and violator continues its operations beyond 3 months then for deterrent compensation, EC may be increased by 2, 4 and 8 times for 2^nd , 3^rd and 4^th quarter, respectively. Even if the operations are inevitable beyond 12 months, violator will not be allowed to operate.

¶780

i. Besides EC, industry may be prosecuted or closure directions may be issued, whenever required.

¶781

A sample calculation for Environmental Compensation (without deterrent factor) is given at Table No. 1.2. It can be noticed that for all instances, EC for Red, Orange, and Green category of industries varies from 3,750 to 60,000 ₹/day.

¶782

Table No. 1.2: A sample calculation for Environmental Compensation

¶783

*Industrial Category*	*Red*	*Orange*	*Green*
*Pollution Index (PI)*	60-100	41-59	21-40
*Average PI*	80	50	30
_R-Factor _		250
_S-Factor _		0.5-1.5
_L-Factor _		1.00-2.00
*Environmental* *Compensation(₹/day)*	*10,000-60,000*	*6,250-37,500*	*5,000-22,500*

¶784

We find that R which is a factor in Rupees (₹) is taken to be 100 minimum and 500 maximum. It has suggested that R value be taken as average i.e., Rs. 250/-. On what basis, this minimum and maximum has been determined and why average is suggested, beyond any comprehension. We do not find any material in the above report which may throw light for taking value of R as above. Similarly, for determining value of S i.e., Factor for Scale of Operation from 0.5 to 1.5, we find no Guidelines as to on what basis, it has been determined and only on the size of the industry, divided in small, medium and large, the said factor has been prescribed. The note further says that minimum environmental

¶785

94

¶786

compensation would be Rs. 5000/- per day. From table 1.2, we find that in the highest case i.e., large industry, depending on the level of PI, maximum environmental compensation would be Rs. 60,000/- per day and minimum Rs. 10,000/- per day. The above determination excludes the actual loss to the environment and cost of remediation including damage to flora-fauna and human beings. Moreover, classification of industries for industrial policy, or for some licensing purpose, banking purpose etc. would be wholly irrelevant for environment. A small industry may be capable of causing much more pollution than medium or even large industry. For example, pollution caused by a brick kiln using coal as fuel may be much more than many medium category industries.

¶787

In respect of items (d), (e) and (f), report says that for determining environmental compensation, one has to consider the matters in two parts, one for providing immediate relief and another long term relief, such as remediation. In such cases, detailed investigations are required from Expert Institutions or Organizations, based on which environmental compensation will be decided. Second part of report is with regard to utilization of environmental compensation fund. For this purpose, report says that CPCB will finalize a scheme for utilization of fund for protection of environment. Certain schemes identified by CPCB for utilization of the said fund are mentioned in para 1.4.1, as under:

¶788

“ a. Industrial Inspections for compliance verification. b. Installation of Continuous water quality monitoring stations/Continuous ambient air quality monitoring stations for strengthening of existing monitoring network.

¶789

c. Preparation of Comprehensive Industry Documents on Industrial Sectors/clean technology.

¶790

d. Investigations of environmental damages, preparation of DPRs.

¶791

e. Remediation of contaminated sites.

¶792

f. Infrastructure augmentation of Urban Local Bodies (ULBs)/capacity building of SPCBs/PCCs. ”

¶793

All the above, except item (e), relate to establishment/infrastructure

¶794

95

¶795

for monitoring/prevention of pollution which in fact is the statutory duty and function of officials of State PCB and CPCB. It appears that CPCB has attempted to utilize environment fund to meet expenses which is the responsibility of Government.

¶796

Chapter II of report deals with determination of environmental compensation for violations of Graded Response Action Plan (GRAP) in NCR. Here, a fixed amount of environmental compensation has been recommended in table 2.1, as under:

¶797

“ Table No. 2.1: Environmental Compensation to be levied on all violations of Graded Response Action Plan (GRAP) in Delhi-NCR.

¶798

*Activity*	*State Of Air Quality*	*Environmental* *Compensation*
*Industrial Emissions*	Severe +/Emergency	Rs 1.0 Crore
	Severe	Rs 50 Lakh
	Very Poor	Rs 25 Lakh
	Moderate to Poor	Rs 10 Lakh
*Vapour Recovery Syste*	*m(VRS) at Outlets of O*	*il Companies*
*i. Not installed*	Target Date	Rs 1.0 Crore
*ii. Non-functional*	Very poor to Severe +	Rs 50.0 Lakh
	Moderate to Poor	Rs 25.0 Lakh
*Construction* *sites*	Severe +/Emergency	Rs 1.0 Crore
*(Offending plot more*	Severe	Rs 50 Lakh
*than 20,000 Sq.m.)*	Very Poor	Rs 25 Lakh
	Moderate to Poor	Rs 10 Lakh
*Solid* *waste/garbage*	Very poor to Severe +	Rs 25.0 Lakh
*dumping in Industrial*	Moderate to Poo	Rs 10.0 Lakh
*Estates* *Failure to water sprink*	*ling on unpaved roads*
*a) Hot-spots*	Very poor to Severe +	Rs 25.0 Lakh
*b) Other than Hot-* *spots*	Very poor to Severe +	Rs 10.0 Lakh ”

¶799

Chapter III considers determination of environmental compensation

¶800

where a proponent has discharged pollutants in water bodies or failed to prevent discharge of pollutants in water bodies and also failed to implement Waste Management Rules. Laying down Guidelines for determination of environmental compensation in this category, report has referred to Tribunal’s order dated 06.12.2018 in OA No. 125/2017 and

¶801

96

¶802

MA No. 1337/2018, Court on its own motion vs. State of Karnataka , stating as under:

¶803

“ Since failure of preventing the pollutants being discharged in water bodies (including lakes) and failure to implement solid and other waste management rules are too frequent and widespread, the CPCB must lay down specific guidelines to deal with the same, throughout India, including the scale of compensation to be recovered from different individuals/authorities, in addition to or as alternative to prosecution. The scale may have slabs, depending on extent of pollution caused, economic viability, etc. Deterrent effect for repeated wrongs may also be provided .”

¶804

It is suggested that determination of environmental compensation in this category would have two components, (i) Cost saved/benefits achieved by the concerned individual/authority by not having proper waste/sewage managing system; and (ii) Cost to the environment (environmental externality) due to untreated/partially treated waste/sewage because insufficient capacity of waste/sewage management facility. It further says that Cost saved/benefits achieved would also include interest on capital cost of waste/sewage management facility, daily operation and maintenance (O & M) cost associated with the facility. The determination of environmental compensation, therefore, is suggested, applying following formula:

¶805

“ Therefore, generalized formula for Environmental Compensation may be described as:

¶806

EC= Capital Cost Factor × Marginal Average Capital Cost for Establishment of Waste or Sewage Management or Treatment Facility × (Waste or Sewage Management or Treatment Capacity Gap) + O&M Cost Factor × Marginal Average O&M Cost × (Waste or Sewage Management or Treatment Capacity Gap) × No. of Days for which facility was not available + Environmental Externality ”

¶807

Environmental externality has been placed in two categories (i) untreated/partially treated sewage discharge and (ii) improper municipal solid waste management and detailed in table 3.1 and 3.2, as under:

¶808

97

¶809

“*Table* *No.* *untreated/partia*	*3.1:* *Environme* *lly treated sewage*	*ntal* *externality* *for* *discharge*
*Sewage* *Treatment* *Capacity Gap* *(MLD)*	*Marginal Cost of* *Environmental* *Externality* *(Rs. per MLD/day)*	*Minimum and Maximum* *value of Environmental* *Externality* *recommended by the* *Committee (Lacs Rs. Per* *Day)*
Up to 200	75	Min. 0.05, Max. 0.10
201-500	85	Min. 0.25, Max. 0.35
501 and above	90	Min. 0.60, Max. 0.80

¶810

Table No. 3.2: Environmental externality for improper municipal solid waste management

¶811

*Municipal* *Solid Waste* *Management* *Capacity* *Gap (TPD)*	*Marginal Cost of* *Environmental* *Externality (Rs. per* *ton per day)*	*Minimum and Maximum* *value of Environmental* *Externality recommended* *by the Committee (Lacs* *Rs. Per Day)*
Up to 200	15	Min. 0.01, Max. 0.05
201-500	30	Min. 0.10, Max. 0.15
501-1000	35	Min. 0.25, Max. 0.3
1001-2000	40	Min. 0.50, Max. 0.60
Above 2000		Max. 0.80 ”

¶812

CPCB has further recommended a fixed cap for minimum and

¶813

maximum cost for capital and O & M component for environmental compensation in table 3.3 and 3.4, as under:

¶814

“ Table No. 3.3: Minimum and Maximum EC to be levied for untreated/partially treated sewage discharge

¶815

*Class of the City/Town*	*Mega-City*	*Million-* *plus City*	*Class-I* *City/Town* *and* *others*
*Minimum and Maximum* *values of EC (Total Capital* *Cost Component)* *recommended by the* *Committee (Lacs Rs.)*	Min. 2000 Max. 20000	Min. 1000 Max. 10000	Min. 100 Max. 1000
*Minimum and Maximum* *values of EC (O&M Cost* *Component) recommended* *by the Committee (Lacs* *Rs./day)*	Min. 2 Max. 20	Min. 1 Max. 10	Min. 0.5 Max. 5

¶816

98

¶817

Table No. 3.4: Minimum and Maximum EC to be levied for improper municipal solid waste management

¶818

*Class of the City/Town*	*Mega-City*	*Million-* *plus City*	*Class-I* *City/Town* *and others*
*Minimum and Maximum* *values of EC (Capital Cost* *Component) recommended* *by the Committee (Lacs Rs.)*	Min. 1000 Max. 10000	Min. 500 Max. 5000	Min. 100 Max. 1000
*Minimum and Maximum* *values of EC (O&M Cost* *Component) recommended* *by the Committee (Lacs* *Rs./day)*	Min. 1.0 Max. 10.0	Min. 0.5 Max. 5.0	Min. 0.1 Max. 1.0 ”

¶819

Para 3.3 deals with the method of determining environmental compensation for damage/untreated/partially treated sewage by concerned individual/authority. Under this head, CPCB has considered that for population above 1 Lakh, requirement of water supply, would be minimum 150 to 200 lpcd and 85% whereof would result in sewage generation. It takes capital cost for 1 MLD STP ranges from 0.63 Crores to 3 Crores and O & M cost around Rs. 30,000 per month. Consequently, it suggested to assume capital cost for STPs as Rs. 1.75 Crores/MLD (marginal average cost). Expected cost for conveyance system is assumed as Rs. 5.55 Crore/MLD and annual O& M as 10% of combined capital coast. Based on the above assumptions, Committee has recommended/suggested environmental compensation, to be levied on urban local bodies, by applying formula and here CPCB has suggested two formulas and any of them may be adopted:

¶820

“ EC= Capital Cost Factor × [Marginal Average Capital Cost for Treatment Facility × (Total Generation-Installed Capacity) + Marginal Average Capital Cost for Conveyance Facility × ( Total Generation -Operational Capacity)] + O&M Cost Factor × Marginal Average O&M Cost × (Total Generation- Operational Capacity) × No. of Days for which facility was not available + Environmental Externality × No. of Days for which facility was not available

¶821

Alternatively;

¶822

99

¶823

EC (Lacs Rs.) = [17.5(Total Sewage Generation – Installed Treatment Capacity) + 55.5(Total Sewage GenerationOperational Capacity)] + 0.2(Sewage Generation-Operational Capacity) × N + Marginal Cost of Environmental Externality × (Total Sewage Generation-Operational Capacity) × N

¶824

Where; N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority

¶825

Quantity of Sewage is in MLD ”

¶826

Para 3.4 deals with the method of environmental compensation to be levied on concerned individual/authority for improper solid waste management, chargeable from urban local body based on the following formula:

¶827

“ EC = Capital Cost Factor × Marginal Average Cost for Waste Management × (Per day waste generation-Per day waste disposed as per the Rules) + O&M Cost Factor × Marginal Average O&M Cost × (Per day waste generation-Per day waste disposed as per the Rules) × Number of days violation took place + Environmental Externality × N

¶828

Where;

¶829

Waste Quantity in tons per day (TPD)

¶830

N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority

¶831

Simplifying;

¶832

EC (Lacs Rs.) = 2.4(Waste Generation - Waste Disposed as per the Rules) +0.02 (Waste Generation - Waste Disposed as per the Rules) × N + Marginal Cost of Environmental Externality × (Waste Generation-Waste Disposed as per the Rules) × N ”

¶833

Here also certain assumed figures have been taken by CPCB. Report says that municipal solid waste generation is approximately 1.5 lakh MT/day in India as per MoHUA Report-2016. As per principles of Solid Waste Management Rules, 2016 and Plastic Waste Management Rules, 2016, total cost of municipal solid waste management in city/town includes cost for door to door collection, cost of segregation at source, cost for transportation in segregated manner, cost for processing of municipal

¶834

100

¶835

solid waste and disposal through facility like composting bio-methanation, recycling, co-processing in cement kilns etc. It is estimated that total cost of processing and treatment of municipal solid waste for a city of population of 1 lakh and generating approximately 50 tons/day of municipal solid waste is Rs. 15.5 Crores which includes capital cost (one time) and Operational and Management cost for one year. Expenditure for subsequent years would be only 3.5 Crores/annum. For arriving per day waste generation, CPCB has referred to a survey conducted by Environment Protection Training Research Institute (EPTRI) which estimated that solid waste generated in small, medium and large cities and towns is about 0.1 kg (Class-III), 0.3-0.4 kg (Class-II) and 0.5 kg (Class-I) per capita per day respectively. The Committee opined that 0.6 kg/day, 0.5 kg/day and 0.4 kg/day per capita waste generation may be assumed for mega-cities, million-plus UAs/towns and Class-I UA/Towns respectively for calculation of environmental compensation purposes.

¶836

Sample calculation of environmental compensation to be levied for improper management of municipal solid waste has been provided in table 3.6 which read as under:

¶837

“ Table No. 3.6: Sample calculation for EC to be levied for improper management of Municipal Solid Waste

¶838

*City*	*Delhi*	*Agra*	*Gurugram*	*Ambala*
*Population (2011)*	1,63,49,831	17,60,285	8,76,969	5,00,774
*Class*	Mega-City	Million-plus City	Class-I Town	Class-I Town
*Waste Generation* *(kg. perpersonper day)*	0.6	0.5	0.4	0.4
*Waste Generation (TPD)*	9809.90	880.14	350.79	200.31
*Waste Disposal as per* *Rules (TPD)*(assumed as 25% of waste generation for sample calculation)	2452.47	220.04	87.70	50.08
*Waste Management* *Capacity Gap (TPD)*	7357.42	660.11	263.09	150.23
*Calculated EC (capital* *cost component) in Lacs.* *Rs.*	17657.82	1584.26	631.42	360.56

¶839

101

¶840

*Minimum and Maximum* *values of EC (Capital Cost* *Component)* *recommended by the* *Committee(Lacs Rs.)*	Min. 1000 Max. 10000	Min. 500 Max. 5000	Min. 100 Max. 1000	Min. 100 Max. 1000
*Final EC (capital cost* *component) in Lacs. Rs.*	10000.00	1584.26	631.42	360.56
*Calculated EC (O&M* *Component) in Lacs.* *Rs./Day*	147.15	13.20	5.26	3.00
*Minimum and Maximum* *values of EC (O&M Cost* *Component)* *recommended by the* *Committee* *(Lacs Rs./Day)*	Min. 1.0 Max. 10.0	Min. 0.5 Max. 5.0	Min. 0.1 Max. 1.0	Min. 0.1 Max. 1.0
*Final EC (O&M* *Component) in Lacs.* *Rs./Day*	10.00	5.00	1.00	1.00
*Calculated* *Environmental* *Externality* *(Lacs Rs. Per Day)*	2.58	0.18	0.03	0.02
*Minimum and Maximum* *value of Environmental* *Externality* *recommended by the* *Committee* *(Lacs Rs.per day)*	Max. 0.80	Min. 0.25 Max. 0.35	Min. 0.01 Max. 0.05	Min. 0.01 Max. 0.05
*Final Environmental* *Externality* *(Lacs Rs.per day)*	0.80	0.25	0.03	0.02 ”

¶841

Chapter IV deals with determination/computation of environmental compensation in case of “illegal extraction of ground water” and for this purpose report has referred to Tribunal’s order dated 03.01.2019 passed

¶842

in OA No. 327/2018, Shailesh Singh vs. Central Ground Water Board

¶843

& Ors. The relevant extract of the order quoted in para 4.1 of the report is as under:

¶844

“CPCB may constitute a mechanism to deal with individual cases of violation of norms, as existed prior to Notification of 12/12/2018, to determine the environment compensation to be recovered or other coercive measures to be taken, including prosecution, for past illegal extraction of ground water, as per law.”

¶845

Here, broadly, determination of environmental compensation refers

¶846

to two major aspects i.e., illegal extraction of water as one aspect and illegal use of ground water as second aspect. For determination of

¶847

102

¶848

environmental compensation for illegal extraction of ground water,

¶849

formula suggested by Committee is:

¶850

“ ECGW = Water Consumption per Day × No. of Days × Environmental Compensation Rate for illegal extraction of ground water (ECRGW)

¶851

Where water Consumption is in m³ /day and ECRGW in Rs./m³

¶852

Yield of the pump varies based on the capacity/power of pump, water head etc. For reference purpose, yield of the pump may be assumed as given in Annexure-VI.

¶853

Time duration will be the period from which pump is operated illegally.

¶854

In case of illegal extraction of ground water, quantity of discharge as per the meter reading or as calculated with assumptions of yield and time may be used for calculation of ECGW. ”

¶855

Depending on the category of the area for the purpose of ground water i.e., safe, semi-critical, critical and over-exploited and also the purpose for which ground water is used, determination of environmental compensation for illegal use of ground water, has been suggested differently for different purpose/use i.e., for drinking and domestic use; for packaged drinking water units/for mining infrastructure and dewatering projects and for industrial units. Hence, all these aspects are separately given in paragraph 4.6.1, 4.6.2, 4.6.3 and 4.6.4 as under:

¶856

“ 4.6.1 ECRGW for Drinking and Domestic use:

¶857

Drinking and Domestic use means uses of ground water in households, institutional activity, hospitals, commercial complexes, townships etc.

¶858

*Sl.*	*Area*		*Water Con*	*sumption (*	m³*/day)*
No	*Category*	<2	*2 to <5*	*5 to <25*	*25 & above*
		*Env*	*ironmenta* *(ECR*	*l Compens* *GW) in Rs./m*	*ation Rate* ³
1	Safe	4	6	8	10
2	Semi Critical	12	14	16	20
3.	_Critical _	22	_24 _	26	30
4	Over-Exploited	32	_34 _	36	40

¶859

Minimum ECGW=Rs 10,000/- (for households) and Rs. 50,000 (for institutional activity, commercial complexes, townships etc.)

¶860

103

¶861

4.6.2 ECRGW for Packaged drinking water units:

¶862

*Sl.*	*Area*	W	*ater Consu*	*mption (m*^{_3 _}/	*day)*
No	*Category*	*˂200*	*200 to* *˂1000*	*1000 to* *˂5000*	*5000 &* *above*
		*Envi*	*ronmental* *(ECRGW*	*Compensatio* *) in Rs./m*³	*n Rate*
1	Safe	12	18	24	30
2	Semi Critical	24	36	48	60
3.	Critical	36	48	66	90
4	Over-Exploited	48	72	96	120
*Min*	*imum ECGW=Rs 1*	*,00,000*	/-

¶863

4.6.3 ECRGW for Mining, Infrastructure and Dewatering Projects:

¶864

*Sl.*	*Area*	*Water C*	_onsumptio _	*n(m³ /day)*
No	*Category*	*˂200*	*200 to* *˂1000*	*1000 to* *˂5000*	*5000 &* *above*
		*Envir*	*onmental* *(ECRGW*	*Compensati* *) in Rs./m*³	*on Rate*
1	Safe	15	_21 _	30	40
2	_SemiCritical _	30	45	60	75
3.	Critical	45	60	85	115
4	Over-Exploited	60	90	120	150
*Min*	_imum ECGW=Rs _	*1,00,000*	/-

¶865

4.6.4 ECRGW for Industrial Units:

¶866

*Sl.*	*Area*	*Water C*	*onsumption*	(m^{_3 _}*/day)*
No	*Category*	*˂200*	*200 to* *˂1000*	*1000 to* *˂5000*	*5000 &* *above*
		*Environ* _(ECRGW) _	*mental Com* *in Rs./m*³	*pensation R*	*ate*
1	Safe	20	30	40	50
2	Semi Critical	40	60	80	100
3.	_Critical _	60	80	110	150
4	Over-Exploited	80	120	160	200
*Min*	*imum ECGW=Rs 1*	*,00,000/*	-		”

¶867

It is also recommended that minimum environmental compensation for illegal extraction of ground water would be Rs. 10,000/- if it is for domestic purposes, but in other matters, it would be Rs. 50,000/-.

¶868

These recommendations by CPCB have not been given in the form of a binding statutory provision. Even otherwise, we find that these are only broad suggestions, ignore several relevant aspects which have to be considered while determining environmental compensation in a given

¶869

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¶870

case, therefore, cannot be taken as readymade application to all situations for determining of environmental compensation. Moreover, on some aspects, there is no suggestion, but it is deferred.

¶871

We also find that some crucial relevant aspects, requiring application of principle of ‘Polluter Pays’, have not been considered in the above suggestions. CPCB has failed to consider that the purpose of determination/computation/assessment of environmental compensation and levy thereof, involve various factors like (i) cost of damage to environment, (ii) cost needed for restoration/remediation of damage caused to environment, (iii) element of deterrent/provincial, (iv) liability arising for violation of statuary mandatory law relating to environment namely requirement of consent, EC and NOC etc. It is not mere cost of item or subject but computation of something which situation has arisen by an act of proponents/violators due to violation of environmental law causing damage to environment. The loss and its remedy involve complex of components.

¶872

Nature is precious. The elements of nature like air, water, light and soil in materialistic manner may not be priced appropriately and adequately. Most of the time, whenever price is determined, it may be extremely low or highly exorbitant meaning thereby disproportionate. Still, since some of the assets of nature are marketable, on that basis price may be determined but when such elements are damaged or degraded, restoration thereof, in effect is priceless. Many a times, it may be almost impracticable and improbable to recover and remediate damaged environment to its position as it was. Moreover, its cost might be very high. It also cannot be doubted that once there is pollution or damage to environment, it would affect adversely not only the environment but also inhabitants and all biological organisms. Damage is there, only degree may

¶873

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¶874

differ whether to the environment or to the inhabitants and other organisms. To find out simultaneously degree of damage and to ascertain the same in many cases may not be possible or practicable. For example, polluted air causes respiratory diseases but people do not get infected and starts reflection of the disease immediately but it takes some time. The time taken in reflection of injury on the person or body also differs from person to person depending upon his immunity and other health conditions. In some cases, damage to environment i.e., air pollution may be fatal to a person who already has respiratory problem. For some a minor inconvenience, minor injury to others, and some may not suffer to the extent of showing symptoms of any diseases at all. When we talk of environmental compensation for causing degradation to environment and for its restoration or remediation, it is not a formal or casual or symbolic amount which is required to be levied upon the violator. It is substantive and adequate amount which must be levied for restoration of environment. CPCB, in determining values of fixed quotients and Rupees etc., has been very lenient as if only symbolically violator is to be held liable and it must pay a petty amount.

¶875

Statutory Regulators must realize that the amount is needed for remediation and restoration of damaged environment; enough to be deterrent, to provide adequate compensation where inhabitants are affected adversely and where violator has proceeded in violation of Environmental Laws relating to consents, clearances, permissions etc., to penalize him for such violation to prove to be a deterrent to him and others. Unfortunately, the above guidelines laid down by CPCB have not considered all these aspects and it appears that the same have been prepared in a very casual and formal manner.

¶876

In respect of computation of compensation for illegal extraction of

¶877

106

¶878

ground water, CPCB has referred to Tribunal’s order in Court on its own motion vs. State of Karnataka (supra) , directing it to lay down guidelines to deal with the scale of compensation but has failed to consider that Tribunal has also observed that its scale may have slabs depending on extent of pollution caused, economic viability etc. and deterrent effect.

¶879

Statutory Regulators have also failed to consider that environmental compensation is not a kind of fee which may result in profiteering to violators and after adjusting a nominal amount of environmental compensation, a violator may find it profitable to continue with such violations. The objective of environmental compensation is that not only the loss and damage already caused, is made to recover and restore but also in future, the said violator may not repeat the kind of violation already committed and others also have a fear of not doing the same else similar liability may be enforced upon them. Unless amount of compensation is more than maximum permissible profit arising from violation, the purpose of environmental compensation would always stand defeated.

¶880

Loss caused to surroundings of the environment, may also include flora-fauna and human beings. It is in this backdrop that in various matters when the issues were considered by Courts and Tribunal and found necessary to impose environmental compensation upon proponent/violator of environmental laws, they have followed different mechanisms. Sometimes, Committee’s reports confirming violations have been referred but for quantum of compensation, directions have been issued in different ways. In some cases, CPCB guidelines have been applied while in many other, project cost has been made basis.

¶881

CPCB Guidelines have taken care of industries and municipal bodies. Its application in all cases irrespective of other relevant

¶882

107

¶883

consideration may prove to be disastrous. Individuals, charitable, social or religious bodies, public sector and Government establishments etc., may, in given circumstances, justify a different approach. Further, there may be cases attracting aggravating factors or mitigating factors, for example, in national emergency, some activity got performed violating environmental norms or a proponent is resilient to any advice to adhere law to protect environment and so on. In fact, quantum of environmental compensation should have nexus with State’s efforts for protection and preservation of environment and control of pollution. Compensation regime must be a deterrent to violators and incentivize eco-friendly proponents. No one should get profited by violating environmental laws and community should also not suffer for violation of environmental norms by defaulting proponents. There is no reason, if beside the aspects noticed above, the computation process also incorporates the elements of inflation, quality of life, and economic prosperity.

¶884

In the context of “violation of disposal of Bio-Medical Waste” and “Non-compliance of Bio-Medical Waste Management Rules, 2016” and determination of environmental compensation for such violations, Tribunal in OA No. 710/2017, Shailesh Singh vs. Sheela Hospital & Trauma Centre, Shahjahanpur & Others and other connected matters, vide order dated 15.07.2019, accepted report of CPCB, and said:

¶885

“10. The compensation regime suggested by the CPCB may be adopted. It will be open to the State PCBs/PCCs to adopt a higher scale of compensation, having regard to the problems faced in such States/UTs.

¶886

11. It is made clear that if even after two months the States/UTs are found to be non-compliant, the compensation will be liable to be recovered from the said States/UTs at the rate of Rs. 1 Crore per month till the non-compliance continues.”

¶887

The above recommendations i.e., in para 10, Tribunal said that compensation regime suggested by the CPCB may be adopted. It will be

¶888

108

¶889

open to the State PCBs/PCCs to adopt a higher scale of compensation, having regard to the problems faced in such States/UTs . It further says that if State Governments and UTs still remain non-complying for two months, compensation will be recovered at the rate of Rs. One Crore per month till non-compliance continues.

¶890

In respect of solid waste, sewage effluent, ground water extraction etc., Tribunal in OA No. 593/2017, Paryavaran Suraksha Samiti and another vs. Union of India and others , vide order dated 28.08.2019 has said in para 16, that as regards environmental compensation regime fixed vide CPCB guidelines for industrial units, GRAP, solid waste, sewage and ground water is accepted as an interim measure. Tribunal further observed that recovery of compensation on ‘Polluter Pays’ principle is a part of enforcement strategy but not a substitute for compliance. It directed all States/UTs to enforce compensation regime latest w.e.f. 01.04.2020 and made it clear that it is not condoning any past violations. Tribunal directed to enforce recovery of compensation from 01.04.2020 from the defaulting local bodies failing which the concerned States/UTs themselves must pay the requisite amount of compensation.

¶891

In the matter of illegal mining causing damage to environment, methodology for determining environmental compensation was examined in OA No. 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat) and other connected matters decided on 26.02.2021. Here a report was submitted by CPCB on 30.01.2020, placing on record recommendations made by Committee comprising:

¶892

i.) Dr Purnamita Dasgupta, Professor, IEG, Delhi,

¶893

ii.) Dr K.S. Kavi Kumar, Professor, MSE, Chennai,

¶894

iii.) Dr. Yogesh Dubey, Associate Professor, IIFM, Bhopal,

¶895

iv.) Shri Sundeep, Director, MoEF&CC, Delhi and

¶896

109

¶897

v.) Shri A. Sudhakar, Additional Director, CPCB, Delhi.

¶898

Report was considered by Tribunal vide order dated 17.08.2020. Report said:

¶899

“8. The Committee considered two approaches:

¶900

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

¶901

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

¶902

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

¶903

Exceedance Factor (EF).

¶904

Risk Factor (RF).

¶905

Deterrence Factor (DF).

¶906

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

¶907

	*Tab*	*le No. 01: Ap*	*proach 1*
Permitted	Total	Excess	Exceedance	Compensation
Quantity	Extraction	Extraction	in	Charge
(in MT or m³)	(in MT or m³)	(in MT or m³)	Extraction:	(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)

¶908

11. Approach 2 is demonstrated by following formula: “Total Benefits (B)=Market Value of illegal extraction: D(refer Table 1)

¶909

Total Ecological Costs (C) = Market Value adjusted for risk factor: D * RF (refer Table 1).”

¶910

12. Final recommendation is as follows:

¶911

“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

¶912

110

¶913

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 site-specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorisation is unavailable or pending calculation, the following Discount Rates may be considered:

¶914

Severity	Mild	Moderate	Significant	Severe
_Risk Level _	1	2	3	4
_Risk Factor _	0.25	0.50	0.75	1.0
Discount Rate	_8% _	7%	_6% _	_5% _

¶915

Here, in both the approaches, element of illegality committed by PP in carrying on mining was not considered at all. For example, if EC and/or consent is not obtained. Similarly, cost of remediation/restoration was also not taken into consideration.

¶916

In some cases, compensation has been awarded by Tribunal on lump sum basis without referring to any methodology. For example: (i) in Ajay Kumar Negi vs. Union of India, OA No. 183/2013 , Rs. 5 Crores was imposed, (ii) in Naim Shariff vs. M/s. Das Offshore OA No. 15(THC) of 2016 , Rs. 25 Crores was imposed and (iii) in Hazira Macchimar Samiti vs. Union of India , Rs. 25 Crores was imposed.

¶917

In Goa Foundation vs. Union of India & Others (2014)6SCC590 , Supreme Court relied on Samaj Parivartana Samudaya & Others vs. State of Karnataka & Others (2013)8SCC209 and held that ten per cent of the sale price of iron ore during e-auction should be taken as compensation. To arrive at the above view, Court observed that this was an appropriate compensation given that mining could not completely

¶918

111

¶919

stopped due to its contribution towards employment and revenue generation for the State. Further, Court directed to create a special purpose vehicle, i.e., “Goan Iron Ore Permanent Fund” for depositing above directed compensation and utilization of above fund for remediation of damage to environment.

¶920

In Goel Ganga Developers vs Union of India and Others , (2018)18SCC257 , Tribunal imposed Rs. 195 Crore compensation since project was executed without EC. Supreme Court made it Rs. 100 Crores or 10% of project cost whichever is higher . Supreme Court also upheld Rs. 5 crores imposed by Tribunal vide order dated 27.09.2016. Thus, total amount exceeded even 10% of project cost.

¶921

In Mantri Techzone Private Limited vs. Forward Foundation &

¶922

Others, (2019)18SCC494 , Supreme Court affirmed imposition of environmental compensation by Tribunal, considering cost of the project, where there was violation regarding EC/consent and proponent proceeded with construction activities, violating provisions relating to EC/Consent. Tribunal determined environmental compensation at 5% and 3% of project cost of two builders. 5% of project cost was imposed where project proponent had raised illegal constructions while 3% was imposed where actual construction activity was not undertaken by project proponent and only preparatory steps were taken including excavation and deposition of huge earth by creating a hillock. Besides, Tribunal also directed for demolition and removal of debris from natural drain at the cost of project proponent.

¶923

In Goa Foundation vs. Union of India & Others (supra) , where illegal extraction of minerals was involved and in Goel Ganga Developers India vs. Union of India (supra) , where a construction project was

¶924

112

¶925

carried out without EC in violation of EIA Notification, 2006, Supreme Court permitted computation of environmental compensation at 10% of the project cost. In fact, in Goel Ganga (supra) case, exemplary cost of Rs. 100 Crores were imposed, and Court said that developer would pay Rs. 100 Crores or 10% of project cost whichever is higher.

¶926

On the issue of assessment of compensation for damage to environment in the matter of illegal mining, recently Supreme Court in

¶927

Bajri Lease LOI holders Welfare Society vs. State of Rajasthan and

¶928

others, SLP (Civil) No. 10584 of 2019 (order dated 11.11.2021) has said that compensation/penalty to be paid by those indulging in illegal sand mining, cannot be restricted to be value of illegally mined minerals. The cost of restoration of environment as well as the cost of ecological services should be part of compensation. ‘Polluter Pays’ principle as interpreted by this Court means that absolute liability for harm to the environment extends not only to compensate victims of pollution but also cost of restoring environmental degradation. Remediation of damaged environment is part of the process of “Sustainable Development” and as such, the polluter is liable to pay the cost the individual sufferers as well as the cost of reversing the damaged ecology.

¶929

Considering the violations noticed above, Joint Committee recommended environmental compensation of Rs. 8.16 Crores against respondent 14 and Rs. 7.08 Crores against respondent 15. Calculation details/method of computation of environmental compensation has been explained by Learned Counsel for UPPCB as under:

¶930

Calculation in respect of respondent 14:

¶931

Total Permitted Quantity	in	= NIL
EnvironmentalClearance (X)
Total Extraction (Y)		= 81600 m³(Area * Depth = 5.44Ha *
		1.5Meter =5.44 * 10000*1.5)
Excess Extraction (Z), (Z=Y-X)		=81600 m³

¶932

113

¶933

Market value of illegally mined material (D) (Market value of the material as Rs.400/- per m³)	D = Z × Market Value of the material = 81600 × 400 = 3,26,40,000.00 (Taking the average values as per rate of MiningDepartment)
Risk Factor (RF)	RF = 0.5, As per risk level=2, (Viewing the mining activity/safety of mining)
DeterrenceFactor(DF)	DF = 1.00AsZ/X= more than 1
Environmental Compensation/charge (in Rs.)	= D× (1+RF+DF) = 3,26,40,000.00 × (1+0.5+1.0) = 3,26,40,000.00 × 2.5 = Rs.8,16,00,000.00 (Rupees Eight Crores Sixteen Lakhs Only)

¶934

Calculation in respect of respondent 15:

¶935

Total Permitted Quantity in EnvironmentalClearance (X)	= NIL
Total Extraction (Y)	= 70800 m³(Area * Depth = 4.72Ha 1.5Meter = 4.72 10000*1.5)
Excess Extraction (Z), (Z=Y-X)	=70800 m³
Market value of illegally mined material (D) (Market value of the material as Rs.400/- per m³)	D = Z × Market Value of the material = 70800 × 400 = 2,83,20,000.00 (Taking the average values as per rate of MiningDepartment)
Risk Factor (RF)	RF = 0.5, As per risk level=2, (Viewing the mining activity/safety of mining)
Deterrence Factor (DF)	DF=1.00 As Z/X=more than 1
Environmental Compensation/charge (in Rs.)	= D× (1+RF+DF) = 2,83,20,000 × (1.0+0.5+1.0) = 2,83,20,000.00 × 2.5 = Rs.7,08,00,000.00 (Rupees Seven Crores Eight Lakhs Only)

¶936

Joint Committee has followed the formula as under:

¶937

Environmental Compensation = Total quantity of illegally mined minerals × market value of the material × (1+RF+DF)

¶938

Here RF is Risk Factor and DF is Deterrent Factor, value whereof has been given in the above chart.

¶939

Learned Counsel appearing for respondents 14 and 15 had not addressed this Tribunal on the above computation of environmental compensation. In fact, during the course of arguments, Learned Counsel appearing for respondents 14 and 15 agreed that if so directed, they would pay the said amount but some time may be allowed for such payment.

¶940

114

¶941

Respondent 14 has also filed an affidavit giving this statement but requested that it may be permitted to pay the said amount in installment in six months.

¶942

In absence of anything else, we find no reason but to accept the above quantum of compensation computed and recommended by Joint Committee and accept Joint Committee Report to this extent and answer issue III accordingly .

¶943

ISSUE IV:

¶944

This case is an illustration to show how heavy mining activities in the river bed and that too, in the main stream of River Son has been allowed by the mining authorities in District Sonbhadra. The area is surrounded by Reserved Forest, Sanctuaries and even part of River Son in State of MP (touching border of State of UP) wherefrom it originates, has been declared as ‘Son Ghadiyal Wild Life Sanctuary’ and certain area has been further declared as ‘ESZ’. The material has been placed on record along with IA 67/2023, reporting that due to illegal mining in State of UP in River Son, population of ghadiyal and tortoise have considerably reduced. Ghadiyal have also been found occasionally in District Sonbhadra which has been recused by Forest Department from time to time. The substantial run off of River Son is broadly in State of MP. A small part, around 85 km is in State of UP and, thereafter, it travels in State of Bihar.

¶945

The aquatic animals do not understand political boundaries and when the river course is common, the aquatic animals may travel to an area which may fall in one or the other State or District. The river course of Son is common from State of MP to State of Bihar. The aquatic animals like alligators, ghadiyal, tortoise etc. can travel to a very long distance and,

¶946

115

¶947

therefore, traveling of these aquatic animals in River Son from State of MP to States of UP and Bihar cannot be ruled out. If indiscrete, uncontrolled and unmonitored mining in the river stream is allowed in States of UP and Bihar, it is bound to damage these aquatic animals. When substantial part of River Son in State of MP has been declared as “Son Ghadiyal Wild Life Sanctuary’ and ‘ESZ’, we do not find as to why the entire course of River Son to the extent these ghadiyals etc. can travel the run off of River Son, should not be declared as a Protected Area/ESZ under the provisions of WLP Act, 1972 and EP Act, 1986.

¶948

Inaction on the part of the authorities in not taking appropriate action for protection of aquatic animals like alligators, ghadiyals etc. amounts to failure in discharge of statutory functions and is seriously condemnable. However, this Tribunal, when adjudicate or consider a matter under Sections 14 and 15 of NGT Act, 2010, is under an obligation to proceed by applying principles of ‘Sustainable Development’, ‘Intergenerational Relationship’, ‘Precautionary Principle’ and ‘Polluter Pays Principle’.

¶949

The issue of prescription and determination of Eco-Sensitive Zones or extended Buffer Zones, surrounding Wild Life Sanctuaries and National Parks, and activities prohibited and permitted in such ESZ/Buffer Zone etc. was considered by Supreme Court in T.N. Godavarman Thirumulpad, In Re vs. Union of India & Ors. , W.P.(C) No. 202/1995 . Several orders were passed in the above matter from time to time and we are referring here the order dated 03.06.2022 passed in T.N. Godavarman (supra) reported in (2022)10SCC544 . Supreme Court considered recommendations of Central Empowered Committee (hereinafter referred to as ‘ CEC ’). CEC was constituted pursuant to Supreme Court’s order dated 09.05.2002 vide MoEF Notification dated 17.09.2002 issued in

¶950

116

¶951

exercise of power under Section 3(3) of EP Act, 1986. By this notification, Committee was given a statutory status. CEC submitted report on 20.09.2012, dealing with creation identification and declaration of safety zones around Protected Forests all across the country. MoEF&CC also issued a set of guidelines for declaration of ESZs around National Parks and Wild Life Sanctuaries vide Government of India’s Office Memorandum dated 09.02.2011. Clauses 3 and 4 of the guidelines stipulated as under:

¶952

“ 3. Purpose for declaring eco-sensitive zones.-

¶953

The purpose of declaring eco-sensitive zones around national parks and sanctuaries is to create some kind of “Shock Absorber” for the protected areas. They would also act as a transition zone from areas of high protection to areas involving lesser protection. As has been decided by the National Board for Wildlife, the activities in the eco-sensitive zones would be of a regulatory nature rather than prohibitive nature, unless and otherwise so required.

¶954

4. Extent of eco-sensitive zones.-

¶955

4.1. Many of the existing protected areas have already undergone tremendous development in close vicinity to their boundaries. Some of the protected areas actually lying in the urban setup (e.g. Guindy National Park, Tamil Nadu; Sanjay Gandhi National Park, Maharashtra, etc). Therefore, defining the extent of ecosensitive zones around protected areas will have to be kept flexible and protected area specific. The width of the eco-sensitive zone and type of regulations will differ from protected area to protected area. However, as a general principle the width of the eco-sensitive zone could go up to 10 km around a protected area as provided in the Wildlife Conservation Strategy-2002.

¶956

4.2. In case where sensitive corridors, connectivity and ecologically important patches, crucial for landscape linkage, are even beyond 10 km width, these should be included in the eco-sensitive zone.

¶957

4.3. Further, even in context of a particular protected area, the distribution of an area of eco-sensitive zone and the extent of regulation may not be uniform all around and it could be of variable width and extent.”

¶958

CEC in the report dated 20.09.2012 titled as “Note regarding Safety Zones (Eco-Sensitive Zones) Around National Parks and Wildlife Sanctuaries” made recommendations for identification and declaration of safety zones, classifying into four categories, as under:

¶959

117

¶960

“11. For the purpose of identification and declaration of the safety zones around National Parks/Wildlife Sanctuaries (hereinafter referred to as protected areas), the protected areas based on their areas, are classified into four categories:

¶961

(i) CATEGORY A - The protected areas having an area of 500 sq km or more. The total number of such protected areas is 73 and their total area is about 1,01,389 sq km (63.44 % of total area of protected areas);

¶962

(ii) CATEGORY B - The protected areas having an area between 200 sq km to 500 sq km. The total number of such protected areas is 115 and their total area is about 38,942 sq km (24.37 % of total area of protected areas);

¶963

(iii) CATEGORY C - The protected areas having an area between 100 sq km to 200 sq km. The total number of such protected areas is 85 and their total area is about 12,066 sq km (about 7.55 % of total area of protected areas); and

¶964

(iv) CATEGORY D - The protected areas having an area up to 100 sq km. The total number of such protected areas is 344 and their total area is about 7422 sq km (about 4.65 % of total area of all protected areas).”

¶965

Supreme Court considered all the above aspects and also the provisions of WLP Act, 1972, and in para 54 to 56 of its judgment, observed

¶966

as under:

¶967

“ 54. In our opinion, the Guidelines framed on 9-2-2011 appear to be reasonable and we accept the view of the Standing Committee that uniform guidelines may not be possible in respect of each sanctuary or national park for maintaining ESZ. We are of the opinion, however, that a minimum width of 1 km ESZ ought to be maintained in respect of the protected forests, which forms part of the recommendations of CEC in relation to Category B protected forests. This would be the standard formula, subject to changes in special circumstances. We have considered CEC's recommendation that the ESZ should be relatable to the area covered by a protected forest but the Standing Committee's view that the area of a protected forest may not always be a reasonable criteria also merits consideration. It was argued before us that the 1 km wide "no-development-zone" may not be feasible in all cases and specific instances were given for Sanjay Gandhi National Park and Guindy National Park in Mumbai and Chennai metropolis respectively which have urban activities in very close proximity. These sanctuaries shall form special cases.

¶968

55. Turning specifically to Jamua Ramgarh Sanctuary, the first report of the CEC proposed 100 m as ESZ. In the second report, however, one kilometre width has been recommended for all protected forests falling under Category 'B'. Having regard to its area, the said sanctuary comes in that category. In the order of this Court passed on 4-8-2006 (T.N. Godavarman Thirumulpad vs. Union of India, (2010)13SCC740, the same margin i.e. one kilometre buffer zone has

¶969

118

¶970

been prescribed. In the given facts concerning the Jamua Ramgarh Sanctuary, in our opinion the margin of 25 m as contemplated in as the 1994 Mineral Policy of the State of Rajasthan is grossly inadequate, We, however, treat Jamua Ramgarh Sanctuary as a special case for fixing the ESZ as in the past, the buffer zone varied from 25 m to 100 m. In our opinion, ESZ of 500 m would be a reasonable buffer zone, within which subsisting activities which do not come within the prohibited list as per the Guidelines of 9-2-2011 could be carried on. But for commencing of any new activity which would be otherwise permissible, the ESZ norm of one kilometre shall be maintained for Jamua Ramgarh Sanctuary.

¶971

56. We accordingly direct:

¶972

56.1. Each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9-2-2011 shall be strictly adhered to. For Jamua Ramgarh Wildlife Sanctuary, it shall be 500 m so far as subsisting activities are concerned.

¶973

56.2. In the event, however, the ESZ is already prescribed as per law that goes beyond one kilometre buffer zone, the wider margin as ESZ shall prevail. If such wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular national park or wildlife sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained.

¶974

56.3. The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain responsible for proper compliance of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZS forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones.

¶975

56.4. Mining within the national parks and wildlife sanctuaries shall not be permitted.

¶976

56.5. In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9-2-2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order

¶977

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¶978

in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ .

¶979

56.6. The minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned shall approach CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, this Court shall pass appropriate order.

¶980

56.7. In the event CEC, MOEF&CC, the Standing Committee of National Board for Wildlife or any other body of persons or individual having special interest in environmental issues consider it necessary for maintaining a wider or larger ESZ in respect of any national park or wildlife sanctuary, such body or individual shall approach CEC. In such a situation CEC shall be at liberty to examine the need of a wider ESZ in respect of any national park or wildlife sanctuary in consultation with all the stakeholders including the State or Union Territory concerned, MoEF&CC as also the Standing Committee of the National Board for Wildlife and then approach this Court with its recommendations.

¶981

56.8. In respect of sanctuaries or national parks for which the proposal of a State or Union Territory has not been given, the 10 km buffer zone as ESZ as indicated in the order passed by this Court on 4-12-2006 in Goa Foundation v. Union of India, (2011)15SCC791 and also contained in the Guidelines of 9-2-2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at.

¶982

56.9. IA No. 1412 of 2005 and IA No. 117831 of 2019 do not relate to the issues involved in IA No. 1000 of 2003. These applications may be placed before the appropriate Bench to be heard independently.

¶983

56.10. For the same reason, IA No. 1992 of 2007 shall also be dealt with independently by the appropriate Bench and no order is being passed concerning this application at this stage.

¶984

56.11. The application of the State of Rajasthan registered as IA No. 3880 of 2015 relates to clarification of an order passed in Goa Foundation v. Union of India, (2011)15SCC791 (WP(C) No. 460 of 2004]. Let this application be placed before the Bench taking up the case of Goa Foundation.

¶985

56.12. IA No. 96949 of 2019 and IA No. 65571 of 2021 are disposed of with directions that the MoEF&CC as also CEC shall proceed to take a decision in regard to the draft proposal for ESZ made by the State of Maharashtra to the extent of 0-3.89 km and the MoEF&CC shall take final decision on that basis within a period of three months, if the said decision has not already been taken.

¶986

56.13. Prayers for impleadment of the applicants in IAs Nos. 984 of 2003, 1026, 1123, 1197 and 1251 of 2004 are allowed. Necessary amendments may be carried out in these regards.

¶987

120

¶988

56.14. For the reasons already given, however, prayers of the applicants in IAS Nos. 982 of 2003, 1027, 1124, 1198, 1210, 1250 of 2004 and 1512 of 2006 are rejected.

¶989

56.15. CEC shall quantify the compensation to be recovered from each miner indulging in mining activities within the Jamua Ramgarh Sanctuary in violation of any statutory provision or order of this Court. Specific recommendations for compensatory afforestation, reclamation, clearing overburden dumping as also compensation in monetary units for degradation of forest resources shall also be made. A further set of recommendations concerning confiscation of earthmoving equipments and other machineries lying within or in the periphery of the said sanctuary shall be made by CEC. Recommendations shall be made within a period of four months before this Court in the form of an application. This Court shall consider passing appropriate order upon going through such application. The exercise concerning such reparation, including quantifying compensation shall be undertaken upon giving the mining operator, State and MOEF&CC opportunity of hearing.

¶990

56.16. In the event there is any subsisting order of any High Court or any court subordinate to such High Court covering any of the issues dealt with by this Court in this order, this order shall prevail over any such order which may be contrary to these directions.

¶991

56.17. We have already observed that there are certain overlapping issues involved in this writ petition and the cases of Goa Foundation [Writ Petition (C) No. 460 of 2004] and [Writ Petition (C) No. 435 of 2012]. We request the Hon'ble the Chief Justice of India to consider having the present writ petition i.e. T.N. Godavarman Thirumulpad, In re v. Union of India: WP (C) No. 460 of 2004 (Goa Foundation v. Union of India) as also WP (C) No. 435 of 2012 (Goa Foundation v. Union of India) be heard together before the same Bench. The Registry may place this order before the Hon'ble the Chief Justice of India.”

¶992

In the present case, Kaimur Forest falls in States of Bihar and UP. Both the Governments have declared relevant part as Protected Sanctuary and also ESZ. However, with regard to protection of ghadiyals etc. found in River Son, only State of MP, in respect of the area in State of MP, had declared certain part of River Son as “Son Ghadiyal Wild Life Sanctuary” and also ESZ thereof. Despite the fact that these aquatic animals can/may travel with the running water without recognizing political boundaries made by Governments and come to State of UP and State of Bihar, as is also evident from record that ghadiyals were found in District Sonbhadra on various occasions and even dead bodies were found but no steps for

¶993

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¶994

protection thereof have been taken in these States. We can look into this aspect on “precautionary principle” and issue necessary directions to the authorities concerned.

¶995

Section 20 of NGT Act, 2010 mandated Tribunal to follow “precautionary principle”. It reads as under:

¶996

“ 20. Tribunal to apply certain principles.-The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle .”

¶997

Precautionary principle finds its recognition and elaboration in principle 15 of Rio Declaration on Environment and Development 1992, which states as under:

¶998

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

¶999

226. In M.C. Mehta vs. Union of India, (2004)12SCC118 , Supreme

¶1000

Court highlighted importance of ‘precautionary principle’ and said:

¶1001

“48. ...In case of doubt, however, protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment.”

¶1002

In Research Foundation for Science Technology, National

¶1003

Resource Policy vs. Union of India, (2005)10SCC510 , it was held that

¶1004

‘precautionary principle’ is part of Indian jurisprudence arising from Articles 47, 48-A and 51-A(g) of the Constitution. In para 16 of the judgment, Court said:

¶1005

“16. The legal position regarding applicability of the precautionary principle and polluter-pays principle which are part of the concept of sustainable development in our country is now wellsettled. In Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5

¶1006

122

¶1007

SCC 647, a three-Judge Bench of this Court, after referring to the principles evolved in various international conferences and to the concept of “sustainable development”, inter alia, held that the precautionary principle and polluter-pays principle have now emerged and govern the law in our country, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes including the Environment (Protection) Act, 1986, these concepts are already implied. These principles have been held to have become part of our law. Further, it was observed in Vellore Citizens’ Welfare Forum, (1996)5SCC647 case that these principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law.”

¶1008

228. In Hospitality Association of Mudumalai vs. In Defence of

¶1009

Environment & Animals, (2020)10SCC589 , Court referred to its earlier decision in M.C. Mehta (Badkal & Surajkund Lakes Matter) vs. Union of India, (1997)3SCC715 , and observed that therein, the ‘precautionary principle’ was accepted as part of law of land. Court further said:

¶1010

“39. ...Articles 21, 47, 48-A and 51-A(g) of the Constitution give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wildlife and to have compassion for living creatures. The precautionary principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation .”

¶1011

229. In Municipal Corporation of Greater Mumbai vs. Ankita Sinha,

¶1012

(2022)13SCC401 , Court in para 73 and 74 said as under:

¶1013

“73. The principle set out above must apply in the widest amplitude to ensure that it is not only resorted to for adjudicatory purposes but also for other “decisions” or “orders” to governmental authorities or polluters, when they fail to 'to anticipate, prevent and attack the causes of environmental degradation. Two aspects must therefore be emphasised i.e. that the Tribunal is itself required to carry out preventive and protective measures, as well as hold governmental and private authorities accountable for failing to uphold environmental interests. Thus, a narrow interpretation for the NGT's powers should be eschewed to adopt one which allows for full flow of the forum’s power within the environmental domain.

¶1014

74. It is not only a matter of rhetoric that the Tribunal is to remain ever vigilant, but an important legal onus is cast upon it to act with promptitude to deal with environmental exigencies. The responsibility is not just to resolve legal ambiguities but to arrive at a reasoned and fair result for environmental problems which are adversarial as well as nonadversarial.”

¶1015

123

¶1016

In H.P. Bus Stand Management & Development Authority vs.

¶1017

Central Empowered Committee, (2021)4SCC309 , it was emphasized that the duty of State is to create conceptual, procedural and institutional structures to guide environmental regulation in compliance with the “environmental rule of law”. Such regulation must arise out of a multidisciplinary analysis between policy, regulatory and scientific perspectives. In para 49 of the judgment, Court said:

¶1018

“49. The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools – conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges – of how they have been shaped by humanity’s interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity’s actions have charted. The environmental rule of law seeks to facilitate a multi– disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognises that the ‘law’ element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others . It is this inseparable bond and connect which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco-system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learnings of the past to formulate principles which must become the building pillars of

¶1019

124

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environmental regulation in the present and future. The environmental rule of law recognises the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance – of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and institutional elements. The tools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today.”

¶1021

Considering all its earlier judgment, recently in Pragnesh Shah vs. Arun Kumar Sharma, (2022)11SCC493 , Supreme Court examined correctness of the directions issued by this Tribunal to modify zonal management plan so as to bring it in compliance with ESZ Notification and upholding directions issued by Tribunal, discussed ‘precautionary principle’ and said:

¶1022

“The precautionary principle requires the State to act in advance to prevent environmental harm from taking place, rather than by adopting measures once the harm has taken place.”.... (para 34)

¶1023

and

¶1024

“The precautionary principle envisages that the State cannot refuse to act to preserve the environment simply because all the scientific data may not be available. If there is some data to suggest that environmental degradation is possible, the State must step into action to prevent it from taking place.” ... (para 36)

¶1025

These principles when applied in the present case, we find that when aquatic animals like ghadiyal are found in River Son, then considering their fragility and necessity for protection, if in the part of river which falls in one State, a Protected Sanctuary and ESZ is declared by MoEF&CC, unless very apparent and compelling reasons are available, we find no justification for not following the declaration for further part of river when

¶1026

125

¶1027

aquatic animals not only actually are travelling and reaching to the parts of other States through the passage of same river but also there are report that they are suffering damage in other States where adequate protections under relevant statutory enactments have not been extended or made available.

¶1028

In view of above discussion, we find it necessary to issue a direction to Ministry of Environment and Forest, State of UP and Bihar as also MoEF&CC to look into this aspect and take necessary remedial action and made appropriate declaration of the part of River Son running in States of UP and Bihar as Son Ghadiyal Wild Life Sanctuary and its ESZ in accordance with law within three months.

¶1029

With regard to further actions against respondents 14 and 15 i.e., the violators in the present case, the Statutory Regulators are directed to take appropriate, remedial and punitive action like initiation of criminal proceedings without any further delay. For violation of conditions of EC, SEIAA UP would proceed in terms of the other conditions of EC providing consequences of violation of conditions of EC by proponents. There is one more aspect. The illegal mining in violation of the provisions of the environmental laws like EP Act, 1986 etc. also constitute an offence under the provisions of Prevention of Money Laundering Act, 2002 if requisite conditions thereunder are satisfied.

¶1030

THE CRIMINAL LIABILITY - Offence under Prevention of Money Laundering Act, 2002:

¶1031

When environmental norms are not observed and in violation thereof, there is discharge and/or emission of pollutants causing pollution and thereby commercial activities for commercial gains continue, such activities also attract provisions of Prevention of Money Laundering Act, 2002 (hereinafter referred to as ‘ PMLA 2002 ’ as amended from time to

¶1032

126

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time).

¶1034

PMLA 2002 was enacted pursuant to resolution no. S-17/2 adopted by General Assembly of United Nation at 17^th Special Sessions held on 23.02.1990 on political declaration and global programme of action; and political declaration adopted by UNGA in the Special Session held on 8^th to 10^th June, 1998. It came into force however on 01.07.2005. The term “money laundering” and “proceeds of crime” are defined in Section-2(p) and (u) which read as under:

¶1035

“2(p). “Money Laundering” has the meaning assigned to it in Section3.

¶1036

2(u). “ Proceeds of Crime ” means any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a “ scheduled offence ” or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value within the country or abroad.

¶1037

[Explanation: for the removal of doubts, it is hereby clarified that proceeds of crime include property not only derived or obtained from the “scheduled offence” but also any property which may directly or indirectly be derived or obtained as result of criminal activity relatable to the “schedule offence”;”

¶1038

“Scheduled Offence” is defined in Section 2(y) and says;

¶1039

“ 2(y). “ Scheduled Offence ” means -

¶1040

(i) The offences specified under Part-A of the Schedule ; or

¶1041

(ii) The offences specified under Part-B of the Schedule, if the total value involved in such offences is one crore rupees or more; or

¶1042

(iii) The offences specified under Part-C of the schedule .”

¶1043

Section 3 of PMLA 2002 talks of offence of money laundering and

¶1044

says:

¶1045

“ 3. Offence of money laundering : whosoever directly or indirectly attempts to indulge or knowingly assists or knowing is a party or is actually involve in any process or activity connected proceeds of crime including in concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money laundering. ”

¶1046

There is an explanation also inserted by Finance Act, 2019 w.e.f.

¶1047

01.08.2019, but for the issue under consideration, it is not relevant, hence

¶1048

127

¶1049

omitted.

¶1050

Attachment of property involved in “money laundering” is governed by Section 5 of PMLA 2002 which permits attachment by Director or any other officer not below the rank of Deputy Director authorised by Director for the purpose of such attachment and he has reason to believe (to be recorded in writing) on the basis of material in his possession that any person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this chapter (by order in writing), may provisionally attach such property for a period not exceeding 180 days from the date of the order, in such manner as may be prescribed.

¶1051

First proviso of Section 5(1) imposes a condition that no such order of attachment shall be made unless, in relation to the “Scheduled offence”, a report has been forwarded to a Magistrate under Section 173 Cr.P.C. or a complaint has been filed by a person authorised to investigate the offence mentioned in that schedule, before a Magistrate or Court for taking cognizance of the “Scheduled offence”.

¶1052

There is an exception in 2^nd proviso of Section 5(1) authorising Director or the officers authorised by him to attach any property of any person referred to in Sub-Section 1, if he has reason to believe (to be recorded in writing), on the basis of material in his possession that if such property involved in money laundering is not attached immediately, it is likely to frustrate proceeding under PMLA 2002.

¶1053

Section 5(5) requires the Director or the other officer, who has provisionally attached property under Sub-Section 1 to file a complaint within 30 days from such attachment stating facts of such attachment

¶1054

128

¶1055

before Adjudicating Authority which is appointed under Section 6.

¶1056

Section 8 provides the procedure to be observed by Adjudicating Authority to pass an order confirming attachment of property under Section 5(1). When such order of confirmation is passed, attached property would remain under attachment till trial completes and if Special Court under PMLA 2002 recorded finding of conviction of commission of offence of money laundering, such property shall stand confiscated to the Central Government but where Special Court finds that offence of money laundering has not taken place or properties not involved in money laundering, it shall release such property to the person entitled to receive it.

¶1057

Section 5 shows that except the cases covered by second proviso, no attachment is permissible unless report under Section 173 Cr.P.C. submitted to the Magistrate or complaint has been filed before the Magistrate or concerned to take cognizance of “Scheduled offence” .

¶1058

Schedule to PMLA 2002 as initially came into force on 01.07.2005, was having Part-A, divided in paragraph 1, dealing with Section 121 and 121(A) of IPC; paragraph-2 covering certain offences under Narcotic Drugs and Psychotropic Substances Act, 1985 and Part-B paragraph 1 offences under Sections 302, 304, 307, 308, 327, 329, 364(A), 384 to 389, 392 to 402, 467, 489A and 489B of IPC; paragraph 2 contains some offences of Arms Act, paragraph 3 referred to offences under Wild Life Protection Act 1972, Paragraph 4, offences under Immoral Traffic Prevention Act, 1956 and Paragraph 5, offences under Sections 7, 8, 9 and 10 of Prevention of Corruption Act, 1988 (hereinafter referred to as ‘ PCA 1988 ’).

¶1059

Thus, PMLA 2002, at the time of enforcement in 2005, did not cover Sections 120-B, 468, 420 and 471 IPC and Section 13 of PCA, 1988 and

¶1060

129

¶1061

environmental enactments. In other words, offences under these Sections/Statutes were not “Scheduled offences” for the purpose of Section 3 PMLA 2002.

¶1062

The Schedule underwent amendment for the first time vide Prevention of Money Laundering (Amendment) Act, 2009 published in Gazette of India, Extraordinary dated 06.03.2009. In Part A paragraph 1, Sections 489A and 489B were inserted. We are not concerned with the offences referred under paragraph 2 of the Schedule, hence amendments made therein are omitted. After paragraph-2, paragraph-3 and paragraphs-4 were inserted relating to offences under Explosive Substance Act, 1908 and Offences under Unlawful Activities (Prevention) Act, 1967. In Part-B, paragraph 1 was substituted and a number of offences of IPC were added and this included Section 120-B, 420, 467 and 471 IPC. Some amendments were made in paragraph 3 and 5 of Part-B and thereafter, paragraphs 6 to 25 were inserted covering offences under several enactments which are not relevant for the purpose of issue before us. Part C was also inserted in the schedule to cover cross border offences and the same is also omitted. Even after this amendment, Sections 468 IPC and 13 PCA, 1988 were not “scheduled offence” so as to attract offence under Section 3 of PMLA 2002. The amendment was given effect from 01.06.2009.

¶1063

Next amendment was made vide Prevention of Money Laundering (Amendment) Act, 2012 published in Gazette of India, Extraordinary dated 04.01.2013. Paragraph A part-1 of the Schedule was substituted adding some more offences of IPC. In fact, entire Part A was substituted by a new Part-A which had paragraphs 1 to 28 covering offences under various Statutes, some were earlier in Part A and also Part B and some newly added. Paragraph 8 Part 1 as substituted in 2012 covered offences under

¶1064

130

¶1065

Sections 7, 8, 9, 10 and 13 of PCA, 1988. Thus, Section 13 was included therein only in 2013. In Part B, paragraph 1 to 25 were omitted and in Part C serial No. 2 and entries relating thereto, were omitted. This amendment came into force from 15.02.2013.

¶1066

The offences under environmental norms have been included in the Schedule to PMLA 2002 inasmuch as paragraph 23, 25,26,27 have been inserted by Section 30 of PML (Amendment) Act, 2012 which came into force on 15.02.2013 and said insertion of paragraphs are as under:

¶1067

“ PARAGRAPH 23

¶1068

OFFENCES UNDER THE BIOLOGICAL DIVERSITY ACT, 2002

¶1069

(18 of 2003)

¶1070

Section	Description of offence
55 read with section 6.	Penalties for contravention of section 6, etc.

¶1071

PARAGRAPH 25

¶1072

OFFENCES UNDER THE ENVIRONMENT PROTECTION ACT, 1986 (29 OF 1986)

¶1073

Section	Description of offen	ce
15 read with section 7.	*Penalty* *for* *discha* *pollutants, etc., in* *prescribed standards.*	*rging* *env* *section 7*	*ironmental* *excess of*
15 read with section 8.	Penalty for handling without section 8 com safeguards.	hazardous plying with	substances procedural

¶1074

PARAGRAPH 26

¶1075

OFFENCES UNDER THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

¶1076

(6 OF 1974)

¶1077

Section	Description of offence
41(2)	Penalty for pollution of stream or well.
43	Penalty for contravention of provisions of section 24.

¶1078

PARAGRAPH 27

¶1079

131

¶1080

UNDER THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 (14 OF 1981)

¶1081

Section Description of offence

¶1082

37 Failure to comply with the provisions for operating industrial plant. ”

¶1083

All these provisions relating to offences under various Environmental Statutes have been placed in part A of the Schedule. Application of PMLA 2002 in respect to the aforesaid offences has to be seen in the light of Section 3 read with schedule as amended vide Amendment Act, 2012.

¶1084

In A.K. Samsuddin vs. Union of India, Writ Petition No. 15378/2016 decided on 19.07.2016 , Kerala High Court said that the time of commission of the “scheduled offence” is not relevant in the context of the prosecution under the Act. What is relevant in the context of the prosecution is the time of commission of the Act of money laundering. It has to be established that the money involved are the proceeds of crime and having full knowledge of the same, the person concerned projects it as untainted property.

¶1085

In Smt. Soodamani Dorai vs. Joint Director of Enforcement, Writ Petition No.8383 of 2013 decided on 04.10.2018 , a Single Judge

¶1086

of Madras High Court observed that substratal subject of the Act is to prevent money laundering and to confiscate proceeds of crime.

¶1087

PMLA 2002 brings in a different kind of offence on the statute book. In Janta Jha vs. Assistant Director (2013) SCC Online (Odisha) 619 , High Court of Odisha held that even if an accused has been acquitted of the charges framed against him in Sessions Trial, a proceeding under PMLA 2002 cannot amount to double jeopardy where procedure and

¶1088

132

¶1089

nature of proof are totally different from a criminal proceeding under IPC.

¶1090

On the contrary in Rajeev Chanana vs. Deputy Director (2014) SCC Online (Delhi) 4889 , it was held by Delhi High Court that after acquittal of a person from a “Scheduled offence”, trial for an offence under Section 3 of PMLA 2002 will not survive. Court said it is hard to imagine as to how a trial for an offence of money laundering can continue where the fundamental basis, i.e., the commission of a Scheduled offence has been found to be unproved.

¶1091

The question of simultaneous investigation by Police or CBI or any other Investigating Agencies in respect of schedule offences and Enforcement Directorate (hereinafter referred to as ‘ ED ’) under Section 3 of PMLA 2002 was considered by a Single Judge (Hon’ble S.P. Garg, J) of Delhi High Court in Rohit Tandon vs. Enforcement Directorate in Bail Application No. 119 of 2017 and Crl.M.B. 121 of 2017 . In the judgment dated 05.05.2017, Court found that Delhi Police registered FIR under Section 420, 406, 409, 467, 468, 188 and 120-B on 25.12.2016 and very next date ED registered ECIR on 26.12.2016. Court said that presence of “Scheduled offence” is only a trigger point for initiating investigation under PMLA 2002. Act nowhere prescribes, if ED is debarred from conducting investigation under Sections 3 and 4 PMLA 2002 unless investigating agency concludes its investigation in the FIR or charge sheet is filed therein for commission of “Scheduled offence”. The proceedings under PMLA 2002 are distinct from the proceedings of the “Scheduled offence”. In the Investigation of FIR by Police, ED has no control. The proceedings under PMLA 2002 are not dependent on the outcome of the investigation conducted in the “Scheduled offences”. More over to avoid conflicting and multiple opinions of court, Section 44 PMLA 2002 provides trial by Special Court in case of “Scheduled Offence” and offence under

¶1092

133

¶1093

PMLA 2002. Delhi High Court relied on a judgment of Allahabad High Court in Sushil Kumar Katiyar vs. Union of India & Ors. (MANU/UP/0777/2016) wherein Allahabad High Court said:

¶1094

“ A person can be prosecuted for the offence of money laundering even if he is not guilty of “Scheduled offences” and his property can also be provisionally attached irrespective of the fact as to whether he has been found guity of the “Scheduled offences”. The prosecution is not required to wait for the result of the conviction for the “scheduled offences” in order to initiate proceedings U/s 3 of the PML Act . However, the person against whom, there is an allegation of the offence of money laundering, can approach appropriate forum, in order to show his bonafide and innocence that is not guilty of the offence of money laundering and has not acquired any proceeds of crime or any property out of the proceeds of crime.”

¶1095

257. Against the judgment of Delhi High Court in Rohit Tandon vs. The

¶1096

Enforcement Directorate , Appeal was filed in Supreme Court and judgment is reported in (2017) SCC Online SC 1304 . Supreme Court upheld, the order of High Court rejecting Bail. Then meeting further argument raised on behalf of Rohit Tandon that the incriminating material recovered, would not take the colour of proceeds of crime as there is no allegation or the prosecution complaint that un-accounted cash deposited by appellant was result of criminal activity, it was observed that the expression “criminal activity” has not been defined but very nature of the alleged activities of the accused referred to in the predicate offence are criminal activities. Court observed:

¶1097

“.... however, the stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens-rea. In that the concealment, possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a “scheduled offence”. That would come within the meaning of Section 3 and punishable under Section 4 of the Act, being a case of money laundering.”

¶1098

258. Recently in P. Chidambaram vs. Directorate of Enforcement

¶1099

(2019) SCC Online SC 1143, Court considered scheme of PMLA 2002, and observed that money laundering is the process of concealing illicit

¶1100

134

¶1101

sources of money and launderer transforming the money proceeds derived from criminal activity into funds and moved to other institution or transformed into legitimate asset . It is realized world around that money laundering poses a serious threat not only to the financial system of the country but also to their integrity and sovereignty.

¶1102

“Schedule offence” is a sine qua non for the offence of money laundering which would generate the money i.e., being laundered .

¶1103

In the present case, when environmental norms were not followed, this resulted in commissioning of Scheduled offence and revenue earned by committing such crime is proceeds of crime as defined in PMLA 2002 and by showing it part of business proceeds in accounts amounts to projecting or claiming it as untainted property. The entire activity is covered by Section 3 of PMLA 2002.

¶1104

It appears that initially PMLA 2002 was enacted so as to cover activities of terrorist, illegal traffic in narcotics, enemies of the country etc., applying to a very limited number of statutes, Enforcement Directorate had been taking action under PMLA 2002 in a narrow sphere. It has forgot to take note of the fact that scope of PMLA 2002 has been enhanced or widened, a lot, at least after amendment Act of 2012 w.e.f. 15.02.2013. More than nine and half years have passed but not a single action has been taken by Enforcement Directorate, against violators committing offences under environmental Statutes which have been included in the Schedule, part A of PMLA 2002. The offences under Environmental Acts, as such are non-cognizable but under PMLA 2002, offences are cognizable. Since Competent Authority has never resorted to proceed against violators of environmental Statutes despite committing offences thereunder, which are included in PMLA 2002, this inaction has encouraged polluters to continue violation with impunity. Parliament’s intention of treating

¶1105

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¶1106

environmental violations as very serious offences is writ large from the fact that, offences under environmental laws as noticed above, have been included in Schedule, Part A of PMLA 2002 yet enforcement machinery has frustrated entire attempt. It is incumbent upon the Competent Authorities regulating and enforcing PMLA 2002 to take action against such violators.

¶1107

In view of the above discussion, we answer issue IV by directing Ministry of Environment and Forest, States of UP and Bihar as also MoEF&CC to look into the question of declaration of part of River Son running in States of UP and Bihar as ‘Son Ghadiyal Wild Life Sanctuary’ and its ‘ESZ’ in accordance with law within three months and considering the fact that respondents 14 and 15 have committed/violated conditions of EC and the provisions of EP Act, 1986, and the said violation is also an offence under EP Act, 1986 and since EP Act, 1986 is included in the Schedule of PMLA Act, 2002, the Directorate of Enforcement may look into these aspects and take further action under the said Act in accordance with law.

¶1108

In view of the above discussion, this OA is allowed with the directions contained in judgment above which are summarized as under: (i) Respondents 14 and 15 shall pay amount of environmental compensation of Rs. 8.16 Crores and Rs. 7.08 Crores respectively, to UPPCB by depositing 40% of the amount within one month i.e., by 19.06.2023 and remaining amount in two equal installments within two months i.e., by 19.08.2023 and 19.10.2023. In case of failure in payment as per the above schedule, the entire amount of compensation or the balance amount, as the case may be, shall be recovered in accordance with law besides taking further criminal action by initiating proceedings under Section 26 read with Section

¶1109

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¶1110

30 of NGT Act, 2010.

¶1111

(ii) Ministry of Environment and Forest of States of UP and Bihar and MoEF&CC shall consider the matter of declaration of part of River Son running in States of UP and Bihar as Wild Life Sanctuary and ESZ for protection of ghadiyals etc. in River Son and would take necessary, remedial and appropriate action within three months.

¶1112

(iii) A Joint Committee comprising representatives of Ministry of

¶1113

Environment and Forest of State of UP, UPPCB, SEIAA UP and District Magistrate, Sonbhadra is constituted to re-visit all mining leases granted for mining activities in Son river bed for carrying out mining activities in District Sonbhadra which are degrading/damaging river stream itself and/or the protected animals like ghadiyal, turtles/tortoise etc. and take appropriate decision/action in accordance with law within three months.

¶1114

(iv) Till a decision pursuant to direction (iii) is taken, no further mining in Son river bed in District Sonbhadra shall be allowed. District Magistrate, Sonbhadra and UPPCB shall ensure compliance of this direction.

¶1115

(v) ECs, CTOs and NOCs granted to respondents 14 and 15 for carrying out mining activities in Son river bed shall be re-visited by SEIAA UP, UPPCB and other Competent Authorities in light of the discussions made above and in the light of the fact that leased area is surrounded by Reserved Forest, ESZ and Sanctuaries and appropriate decisions would be taken as to whether in such circumstances, mining activities should be allowed to continue therein or not and till such a decision is taken, no further mining shall be allowed by respondents 14 and 15.

¶1116

(vi) Copy of this judgment shall be forwarded to Directorate of Enforcement Headquarter for information and appropriate action

¶1117

137

¶1118

under PMLA Act, 2002 against the violators/respondents 14 and 15 in accordance with law.

¶1119

All pending IAs stand disposed of accordingly.

¶1120

Copy of the judgment shall be forwarded to MoEF&CC, Additional Chief Secretary/Principal Secretary of Ministry of Environment and Forest, States of UP and Bihar, SEIAA UP, UPPCB, District Magistrate, Sonbhadra and Directorate of Enforcement Headquarter by e-mail for information, necessary action and compliance.

¶1121

SUDHIR AGARWAL , JUDICIAL MEMBER

¶1122

PROF. A. SENTHIL VEL , EXPERT MEMBER

¶1123

May 19, 2023 OA No. 818/2022 R

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138

Suo Motu Action in Illegal Mining for Excavation of Morrum at No. 824 Kha (Khand 4) in Area 12.368 Hectare at Village Agori Khas Tehsil Obra District Sonbhadra v. Union of India

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Suo Motu Action in Illegal Mining for Excavation of Morrum at No. 824 Kha (Khand 4) in Area 12.368 Hectare at Village Agori Khas Tehsil Obra District Sonbhadra v. Union of India

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