Dismissed

Junaid Ayubi v. State of Haryana

NGT28 May 2024Appeal No. 19/2022

Case brief

AI extract

What is this about?

The appellant challenged an Environmental Clearance (EC) for river bed sand mining alleging lack of a replenishment study. The Tribunal held that while a replenishment study is mandatory, the appeal is dismissed as the initial period had passed and the study was eventually conducted for the subsequent year, requiring no interference at that stage.

What did the court decide?

Appeal dismissed; no interference in the Environmental Clearance as the deficiency was remedied post-initial mining.

Junaid Ayubi vs State of Haryana — Narcotics (NDPS) | NGT (2024)

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Court No. 1

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Item No. 1A

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

Appeal No. 19/2022

Junaid Ayubi & Ors.

Appellant(s)

Versus

State of Haryana & Ors.

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Respondent(s)

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Date of reserve of order: 14.02.2024 Date of pronouncement of order: 28.05.2024

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CORAM: HON’BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON HON’BLE DR. A. SENTHIL VEL, EXPERT MEMBER HON’BLE DR. AFROZ AHMAD, EXPERT MEMBER

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Appellant(s): Mr. Ajit Sharma & Mr. Kanchal Kumar, Adv. for Appellant. Respondent(s): Mr. Rahul Khurana, Adv. for R-1 to 4 with Mr. Sandeep Kumar, Assistant, SEIAA, Haryana, Mr. Om Dutt, Mining Officer, Yamuna Nagar & Mr. Aman, Mining Inspector.

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Mr. Nidhesh Gupta, Senior Advocate with Mr. Mohd. Fuzail Khan, Mr. Mangla & Mr. Ekansh Chaturvedi, Advs. for Project Proponent.

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ORDER

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In this appeal filed under section 16 read with section 18 of the National Green Tribunal Act, 2010 (hereinafter referred to as the “NGT Act”) appellant has challenged the Environmental Clearance (EC) dated 29.01.2022 issued in favour of the respondent no. 5 (project proponent) for river bed sand mining in river Yamuna at village Jairampur Jagiri, Tehsil Jagadhri, District Yamuna Nagar, Haryana.

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The submission of learned Counsel for the appellant is that the EC has been granted for mining of boulder, gravel and sand and the EC contains the condition to carry out the replenishment study after starting the project which is not permissible. He submits that this issue is already covered by the order of the Tribunal dated 11.03.2022 passed in Appeal No. 23/2021, Pramod v. State of Uttar Pradesh & Ors. He also submits that the auction was only for sand but EC has been granted for

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boulder, gravel and sand. His further submission is that the lease has been executed for ten years for a larger area than the one for which the auction was held and EC was granted.

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Learned senior counsel for the respondent no. 5/Project Proponent (PP), has submitted that the EC is only for sand mining and due to the typographical error on the first page of the EC, boulder and gravel has been mentioned. He submits that in the order of Supreme Court dated 31.10.2023 passed in Civil Appeal No. 5194/2022, all the pleas have been left open. Further submission is that when the mining is done after a long time for the first time, replenishment study for the first year is not necessary and for the subsequent year the replenishment study has been done. He has placed reliance upon the mining plan and the District Survey Report (DSR). He has also referred to page 114 of the compilation and has submitted that the procedure prescribed in Enforcement & Monitoring Guidelines for Sand Mining, 2020 (hereinafter referred to as the “guidelines of 2020”) was not contemplated when the DSR was prepared in 2017.

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Learned counsel appearing for the State of Haryana has submitted that the EC was initially issued for one year without conducting replenishment study and for the subsequent years the EC has been issued based upon the replenishment study. He has submitted that e- auction was held on 05.11.2015 and 06.11.2015, the LoI was issued on 30.11.2015, EC was granted in the year 2022 and the mining was done from 01.05.2022 till 30.05.2022.

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We have heard the learned counsel for the parties and perused the records.

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In this appeal, Tribunal on 24.05.2022 had passed an interim order restraining the respondent no. 5/PP from undertaking mining in pursuance to the impugned EC pending further consideration of the appeal. This order was subject matter of challenge before the Hon’ble Supreme Court at the instance of PP in Civil Appeal No. 5194/2022 wherein interim order was passed by Hon’ble Supreme Court on 22.08.2022 to the following effect:

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“ Applications seeking exemption from filing C/C of the impugned judgment and permission to file additional documents/facts/ annexures are allowed.

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Admit.

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Learned counsel for the appellant contends that the mine in question has not been mined since 2010 and thus unless mining takes place there cannot be a replenishment study. He further submits that on account of observations made in paragraph 9 of the impugned order even show cause notice has been issued for cancellation by SEIAA, Haryana.

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Issue notice, which is accepted by learned counsel for respondent Nos. 3 to 6.

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Respondent Nos.7 to 9 are stated to be not required to be served as they were partners with the petitioner and have no lis antagonistic towards the petitioner. Application was filed only by respondent Nos.1 & 2.

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In the meantime, proceedings pursuant to the impugned order initiated by the State are stayed.

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List on 30^th September, 2022. ”

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The above civil appeal has been disposed of by Hon’ble Supreme

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Court by order dated 31.10.2023 as under:-

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“ Learned counsel for the respondents submits that the appellant has approached this Court at an interim stage while the main matter is still pending before the Tribunal. He submits before the Court that all pleas of the appellant qua the replenishment study and a manner of conduct thereof can be raised before the Tribunal itself while maintaining the interim order already granted by this Court.

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The aforesaid is accepted by learned counsel for the appellant.

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We are of the view that the impugned order being interim in character, it is appropriate that in view of the appellant being protected by an interim order passed by this Court, the NGT should look at the whole issue, uninfluenced by the impugned order.

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Needless to say that any other contentions which the parties seek to advance before the NGT will also be available to the parties. We are informed that the next date is 29.01.2024. It is upto the NGT to consider the matter as early as feasible as learned counsel for the appellant states that it will also be seeking an early hearing.

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The appeal stands disposed of. ”

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In view of the above order, the Tribunal is considering all the issues without being influenced by any observation made in the interim order dated 24.05.2022.

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The first ground of challenge in the appeal is that the auction was for sand mining only and SEAC had only considered sand in the minutes but the EC has been granted for boulder, gravel and sand.

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The impugned EC dated 29.01.2022, in the subject clause, states that “EC for proposed mining of boulder, gravel and sand”. Subject clause of the EC reads as under:-

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“ EC for proposed mining of Boulder, Gravel and Sand (Minor Mineral) at Jairampur Block YNR/B-6 (ML area-33.85 Ha.) Village-Jairampur Jagiri, Tehsil-Jagadhari, District-Yamuna Nagar, Haryana by M/s. Balaji Infra. ”

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[emphasis supplied]

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The EC was for one year under category B1, I(a) of EIA Notification dated 14.09.2006.

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The specific condition number 9 of EC, which is relevant here, reads as under:-

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“9. The PP agrees and submitted the undertaking that no Boulder, gravel shall be mined in the mining lease area.”

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On the reading of the EC dated 29.01.2022 as a whole, the mentioning of “boulder, gravel” in the subject clause of EC is

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found to be a mistake and typographical error. The special condition number 9 mentions that the PP had submitted an undertaking that no boulder and gravel will be mined in the mining lease area. The specific stand of the counsel of the PP is that no mining of boulder and gravel has been done by the PP on the basis of the impugned EC .

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The next ground of challenge is that the EC was granted for an area of 33.85 hectares but the ten years lease has been granted for an area of 33.58 hectares. We find that there is a typographical error in the lease deed because at one place 33.58 hectares is mentioned whereas at another page 33.85 hectares is mentioned. Hence, no substance is found in the argument.

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The next issue relates to replenishment study. According to the appellant, replenishment study is mandatory condition for grant of EC whereas, according to respondent no. 5/PP, the replenishment study has been done as per the condition of the EC within one year and that for the first year no replenishment study is required.

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The river bed mining has serious effect on the ecology of the river. Hon’ble Supreme Court in this regard in the matter of Deepak Kumar &

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Ors. v. State of Haryana & Ors., reported in (2012) 4 SCC 629 has

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observed as under:-

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“ 8. We have no materials before us to come to the conclusion that the removal of minor minerals, boulders, gravel, sand quarries, etc. covered by the auction notices dated 3-6-2011 and 8-8-2011, in the places notified therein and also in the riverbeds of Yamuna, Ghaggar, Tangri, Markanda, Krishnavati River basin, Dohan River basin, etc. would not cause environmental degradation or threat to the biodiversity, destroy riverine vegetation, cause erosion, pollute water sources, etc. Sand mining on either side of the rivers, upstream and instream, is one of the causes for environmental degradation and also a threat to the biodiversity. Over the years, India's rivers and riparian ecology have been badly affected by the alarming rate of unrestricted sand mining which damage the ecosystem of rivers and the safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the

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riverbeds, affects fish breeding and migration, spells disaster for the conservation of many bird species, increases e saline water in the rivers, etc..

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9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability. Instream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both instream biota and the associated riparian habitat. The demand for sand continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand.

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10. We are expressing our deep concern since we are faced with a situation where the auction notices dated 3-6-2011 and 8-8-2011 have permitted quarrying, mining and removal of sand from instream and upstream of several rivers, which may have serious environmental impact on ephemeral, seasonal and perennial rivers and riverbeds and sand extraction may have an adverse effect on biodiversity as well. Further, it may also lead a to bed degradation and sedimentation having a negative effect on the aquatic life. The rivers mentioned in the auction notices are on the foothills of the fragile Shivalik Hills. Shivalik Hills are the source of rivers like Ghaggar. Tangri, Markanda, etc. River Ghaggar is a seasonal river which rises up in the outer Himalayas between Yamuna and Satluj and enters Haryana near Pinjore, District Panchkula, which passes through Ambala and Hissar and breaches Bikaner in Rajasthan, River Markanda is also a seasonal river like Ghaggar, which also originates from the lower Shivalik Hills and enters Haryana near Ambala. During monsoon, this stream swells up into a raging torrent, notorious for its devastating power, as also, River Yamuna.

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15. MoEF’s attention was drawn to several instances across the country regarding damage to lakes, riverbeds and groundwater leading to drying up of waterbeds and causing water scarcity on account of quarry/mining leases and mineral concessions granted under the Mineral Concession Rules framed by the State Governments under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. MoEF noticed that less attention was given on environmental aspects of mining of minor minerals since the c area was small, but it was noticed that the collective impact in a particular area over a period of time might be significant. Taking note of those aspects, MoEF constituted a Core Group under the Chairmanship of the Secretary (Environment & Forests) to look into the environmental aspects associated with mining of minor minerals, vide its Order dated 24-3-2009. ”

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The plea of the PP is that the mining remained closed since 01.03.2010 and thereafter the mining lease was granted in the year 2022, therefore, replenishment study was not required.

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In the present case, EC has been issued on 29.01.2022 and on the date of issuance of the EC, the guidelines of 2020 had come in force. The relevant considerations which are to be kept in mind for sand/gravel mining while approving the mining plan are reflected in clause 4.3 of the guidelines of 2020 and in terms of clause 4.3(b), the distance between sites for sand and gravel mining depends on the replenishment rate of the river clause 4.3 reads as under:-

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“ Following considerations shall be kept in mind for sand/gravel mining while approving mining plan:

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

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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.

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

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

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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.

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

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

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Clause 4 of the guidelines of 2020 deals with Requirements for Monitoring & Enforcement and its relevant sub-clauses are as under:-

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xxx……………….………………….xxx………………….…………..….xxx

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ii) The mining lease auctioned by State government as per their Minor Mineral Concession Rules are granted of Letter of Intent (LoI), but it has been observed that many of the sites are not suitable w.r.t environmental aspects. In most of the cases, the unplanned grant of mining lease leads to formation of cluster and/or contiguous cluster of small mining leases which sometimes is difficult to regulate and monitor. In order to address such issues, more emphasis is required on the preparation of District Survey Report and its format for reporting.

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xxx……………….………………….xxx………………….…………..….xxx

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iv) There is no practice for regular replenishment study to ascertain the rate of depositing, plan and section needs to be prepared based on the restrictions provided in letter of intent and provisions of Sustainable Sand Mining Management Guidelines 2016.

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xxx……………….………………….xxx………………….…………..….xxx

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viii) The river reaches with sand provide the resource and thus it is necessary to ascertain the rate of replenishment of the mineral. Regular replenishment study needs to be carried out to keep a balance between deposition and extraction. This document provides the procedure to be followed for conducting replenishment study.

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xxx……………….………………….xxx………………….…………..….xxx

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4.1.1 Preparation of District Survey Report.

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

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xxx……………….………………….xxx………………….…………..….xxx

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Therefore, preparation of District Survey Report is a very important step and sustainable sand mining in any part of the country will depends on the quality of District Survey Report.

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xxx……………….………………….xxx………………….…………..….xxx

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

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Clause 5 deals with replenishment study and provides as under:-

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“5.0 REPLENISHMENT STUDY

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The need for replenishment study for river bed sand is required in order to nullify the adverse impacts arising due to excessing sand extraction. Mining within or near riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, in-stream roughness of the bed, flow velocity, discharge capacity, sediment transport capacity, turbidity, temperature etc. Alteration or modification of the above attributes may cause an impact on the ecological equilibrium of the riverine regime, disturbance in channel configuration and flow-paths. This may also cause an adverse impact on instream biota and riparian habitats. It is assumed that the riparian habitat disturbance is minimum if the replenishment is equal to excavation for a given stretch. Therefore, to minimize the adverse impact arising out of sand mining in a given river stretch, it is imperative to have a study of replenishment of material during the defined period. ”

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[emphasis supplied]

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As per clause 6.1, the mining operation is required to be strictly

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carried out in accordance with the approved mining plan. Clause 6.1 reads as under:-

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“6.1 Mining Operation:

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The mining operations should be strictly carried out in accordance with the approved mining plan and after complying with all the conditions stipulated in Environmental & Other Statutory Clearance. Mine owner shall follow the operational procedure (for sale, dispatch, storage, reserve reconciliation and transportation) as may be defined by the concerned state government in its monitoring guidelines. Mine owner should comply with the recommendation and suggestion made by the High-Power Committee as applicable. ”

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Clause 8.1 of the guidelines of 2020 relates to pre-requisite for starting sand mining operation. Sub-clause (i) necessitates preparation of a comprehensive mining plan and prohibits mining in the area which has not been identified in the comprehensive mining plan of the district. Subclause (ii) requires conducting replenishment study on the regular basis. In terms of clause 4.3, the details of replenishment study conducted for all the years needs to be included at the time of review of the mining plan.

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A cogent reading of above clauses of 2020 guidelines reveal that replenishment study is necessary for grant of EC for sand mining.

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It is worth nothing that the provision in this regard was not very different in Sustainable Sand Mining Management Guidelines, 2016 (hereinafter referred to as the “guidelines of 2016”), which provide that:-

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“GENERAL APPROACH TO SUSTAINABLE SAND AND GRAVEL MINING

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Following considerations should be kept in mind for sand/gravel mining:

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

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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.

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

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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.

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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.

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

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

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xxx……………….………………….xxx………………….…………..….xxx

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Management Plan

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1. River Bed Mining Recommendations:

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a) Permit Mining Volume Based on Measured Annual Replenishment

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In the first year following adoption of the management plan, a volume equal to the estimated annual replenishment could be extracted from the reach of channel. Replenishment (up to the elevation of the selected channel configuration) would need to occur before subsequent extraction could take place. The concept of annual replenishment accounts for the episodic nature of sediment transport. For example, during wet periods with high stream flows, and a high contribution of sediment from hill slopes and tributaries, monitoring data would show that sand and gravel bars are replenished quickly. During drought periods with low stream flow, and little sediment supply or transport, monitoring data would likely show that bars were replenished at a slower rate.

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The use of monitoring data is essential in measuring when actual replenishment occurs. The use of the concept of annual replenishment protects long-term channel stability as well as aquatic and riparian habitat by extracting a volume sustainable by watershed processes.

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xxx……………….………………….xxx………………….…………..….xxx

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Relevant extract of Standard Environment Condition for Sand Mining

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….. *Impact Category*	S. *No.*	*Environmental Conditions*
Sustainable Mining Practices	8.	” District level Survey Report should be prepared and area suitable for mining and area prohibited for mining be identified.

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The guidelines of 2016 mentions relevant points for consideration

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for selective sand mining site are as under:-

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“The following points to be considered while selecting the river/stream for mining besides the above parameters:

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i) A stable river is able to constantly transport the flow of sediments produced by watershed such that it's dimensions (width and depth) pattern and vertical profile are maintained without aggrading (building up) or degrading (scouring down).

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ii) The amount of boulders, cobbles, pebbles, and sand deposited in river bed equals to the amount delivered to the river from catchment area and from bank erosion minus amount transported downstream each year.

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iii) It is compulsive nature of river to meander in their beds and therefore they will have to be provided with adequate corridor for meandering without hindrance. Any attempt to diminish the width of the corridor (floodway) and curb the freedom to meander would prove counterproductive.

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iv) Erosion and deposition is law of nature. The river stream has to complete its geomorphological cycles from youth, mature old age.

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v) River capturing is unavoidable.

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vi) Fundamentally the lowest point of any stream is fixed by sea level.

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This survey document should be prepared in the district based on direct and indirect benefits of mining and identification of the potential threats to the river/stream beds in the district.

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Besides, calculating the carrying capacity of the river/stream beds/other sources to find out maximum quantity available to be allowed for removal each year from the sources, it should also provide various measures to regulate sand and aggregate mining in a systemic way.

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It has to provide for environmentally safe depth of mining and safeguards of banks by prescribing safe distance from banks. It is required that there should be a Sub-Divisional Committee which should visit each site and make recommendation. The Committee should comprise of Sub-Divisional Magistrate, Officers from Irrigation department, State Pollution Control Board or Committee, Forest department, Geology or mining officer shall visit each site for which environmental clearance has been applied for and make recommendation on suitability of site for mining or prohibition thereof. ”

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In terms of the above also, calculation of annual rates of replenishment and allowing time for replenishment after mining in area is relevant. In respect of the river bed mining it has been clearly provided in

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2016 guidelines that:-

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“1. River Bed Mining Recommendations:

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a) Permit Mining Volume Based on Measured Annual Replenishment

As per the above, even in the first year a volume equal to estimated annual replenishment could be extracted. The standard environmental condition for sand mining in the year 2016 contained the clause of submission of annual replenishment report as under:-

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“ 11. To submit annual replenishment report certified by an authorized agency. In case the replenishment is lower than the approved rate of production, then the mining activity/production levels shall be decreased/stopped accordingly till the replenishment is completed. ”

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The guidelines of 2016 states the effect of sand and gravel mining

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in excess of the replenishment to the following as under:-

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“ a) Extracting gravel from an excavation that does not penetrate the water table and is located away from an active stream channel should cause little or no change to the natural hydrological processes unless the stream captures the pit during periods of flooding.

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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. ”

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Hence, the sand mining in the riverbed without replenishment

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study cannot be permitted.

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In the matter of Pramod v. State of Uttar Pradesh & Ors. order dated 11.03.2022 passed in Appeal 23/2021 the EC for sand, bajri and boulder mining from river bed of river Yamuna was challenged on the main ground that no replenishment study was conducted before grant of EC. The Tribunal vide order dated 11.03.2022 passed in Appeal No. 23/2021 held that:

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“ 4. In pursuance of above, the response has been filed by SEIAA, UP as well as Respondent No. 11 - PP. The stand of SEIAA, UP filed on 10.03.2022 acknowledges that no replenishment study has been undertaken even though this aspect was considered while granting EC. Once there was no replenishment study there could not be EC as per Sand Mining Guidelines, 2020 issued by the MoEF&CC under the Environment (Protection) Act, 1986. Relevant extract from the response of the SEIAA is reproduced below:-

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“ 8. Subsequently, the case was considered in 482th SEIAA Meeting 12.08.2021 wherein, SEIAA agreed with the recommendation of the SEAC meeting dated 09.07.2021 to grant EC along with all the general and specific conditions to the title proposal, It become necessary to mention here that SEIAA also stipulated the following specific conditions:

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1. DSR lacks in replenishment study thus SEIAA decided to grant EC for a period of one year only. Project proponent should submit replenishment study, duly approved by the competent authority, for extension of EC beyond one year.

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2. Directions/suggestions given during public hearing and commitment made by the project proponent should be strictly complied.

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

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4. The mining lease holders shall, after ceasing mining operations, undertake re-grassing the mining area and any other area which may have been disturbed due to their mining activities and restore the land to a condition which is fit for growth of fodder, flora fauna etc.

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5. Three tier green shelter belt of 7.5m width should be developed on the periphery of mine lease area. Local and native species should be planted in consultation with Forest/Horticulture Department/ Agriculture University.

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6. If the proposed project is situated in notified area of ground water extraction, where creation of new wells for ground water extraction is not allowed, requirement of fresh water shall be met from alternate water sources other than ground water or legally valid source and permission from the competent authority shall be obtained to use it.

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Concerned copy of minutes, dated: 12.08.2021 is being filed herewith and marked as Annexure no. 05.

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9. Further, SEIAA, vide letter no. 193/Parya/SEIAA/62665850/2021 dated: 17.09.2021 issued Environment Clearance for the proposed project. Concerned copy of Environment Clearance letter, dated: 17.09.2021 is being filed herewith and marked as Annexure No. 06.”

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….

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6. From the above it remains undisputed that EC has been granted without replenishment study which is sought to be defended that the same is only for one year to be extended only if replenishment study is completed before that.

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7. Learned counsel for the PP instead of focusing on the point of effect of absence of replenishment study, which is mandatory under norms, sought to argue on locus and bonafides of the appellant which are not relevant in view of patent illegality in EC granted in favour of PP.

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8. Accordingly, the impugned EC will stand quashed without prejudice to fresh EC being granted after following due process of law. The mining already conducted is illegal and consequences of such illegality may be appropriately determined and enforced by the SEIAA, UP and State PCB, after hearing the PP, within one month from today. ”

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[emphasis supplied]

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In another matter Pramod v. State of Uttar Pradesh & Ors. , OA No. 90/2020 the same issue of allowing mining without conducting replenishment study came up before the Tribunal and the Tribunal by order dated 06.04.2021 had directed the replenishment study to be conducted by the State within three months and had allowed further amendment consistent with the replenishment study. The Tribunal in that order had considered the earlier order of the Tribunal wherein it was

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held that the replenishment study was required even de horse the guidelines by noting as under:-

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“ 2. The matter was last considered on 17.08.2020 in the light of report of the joint Committee comprising District Magistrate, Saharanpur and SEIAA, U.P. dated 13.07.2020 to the effect that since mining leases were granted prior to 2020 Guidelines, no replenishment study was carried out. The Tribunal directed that irrespective of the date of grant of mining leases, the replenishment study was essential for sustainable development and to give effect to the Precautionary Principle. Accordingly a fresh action taken report was sought. The operative part of the order is reproduced below:-

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“ 1&2………………….xxx………………….…xxx…….………………xxx

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3. Accordingly, a report has been filed on 13.07.2020 to the effect that leases were granted prior to the Sustainable Sand Mining Guidelines, 2020. However, the fact remains that the replenishment study is required even de hors the said Guidelines, the objections of the applicant may be responded to by the Department. The applicant is at liberty to file a fresh representation before the District Magistrate, Saharanpur and SEIAA, U.P. within one week from today with reference to the report filed on 13.7.2020.

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4. Let a fresh report be furnished by the District Magistrate, Saharanpur and SEIAA, U.P., dealing with the objections of the applicant, before the next by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. ”

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[emphasis supplied]

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From the above guidelines and judgment of the Tribunal, it is clear

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that the replenishment study is necessary for granting the sand mining lease, therefore, sand mining in the riverbed without replenishment study cannot be permitted.

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In the present case, the EC was issued to the respondent no. 5 for riverbed sand mining without any replenishment study, therefore, the said EC dated 29.01.2022 was bad in law. But at this stage, no interference in the said EC is required because the initial period of one year is over and replenishment study has been done for the subsequent

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year and for the first year the applicant was protected by the interim order of the Hon’ble Supreme Court.

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