Allowed

Mohan Prakash v. Ministry of Environment Forests and Climate Change through the Secretary

NGT7 May 2024Original Application No. 801/2023

Case brief

AI extract

What is this about?

The National Green Tribunal set aside an e-auction notice for a six-month short-term mining lease in District Agra. The court held that the auction was illegal as it was conducted without a District Survey Report (DSR) finalized and approved by the SEIAA, violating Supreme Court mandates on sand mining and NGT precedents.

What did the court decide?

The e-auction notice dated 22.06.2022 and the accompanying lease are set aside. Pending applications are also disposed of in accordance with this order.

Mohan Prakash vs Ministry of Environment Forests and… — Environment and Pollution | NGT (2024)

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Item No.13

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Court No. 1

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

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Original Application No. 801/2023 (IA No. 891/2023, IA No. 890/2023, IA No. 209/2024, IA No. 108/2024 & IA No. 103/2024)

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Mohan Prakash Applicant

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Versus

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Ministry of Environment Forests and Climate Change through the Secretary & Ors. Respondent(s)

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Date of hearing: 07.05.2024 Date of uploading: 14.05.2024

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CORAM: HON’BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON HON’BLE MR. JUSTICE SUDHIR AGARWAL JUDICIAL MEMBER HON’BLE DR. A. SENTHIL VEL, EXPERT MEMBER

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Applicant: Mr. Tanay, Adv. for Applicant (Through VC)

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Respondent: Dr. Sapna Aggarwal, Adv. for MoEF & CC (Through VC)

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Mr. Ankit Verma, Adv. for the State of UP

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Ms. Priyanka Swami, Adv. for SEIAA, UP

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Mr. Pradeep Misra & Mr. Daleep Dhyani, Advs. for UPPCB (Through VC)

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ORDER

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In this Original Application, applicant has challenged the advertisement dated 22.06.2022 issued by respondent no. 6, District Magistrate Agra for e-auction for six months (short term permit) and the LOI issued in pursuance thereto in favour of respondent no. 7, M/s P.D. Contractor in respect of the area at Gata No. 1 and 2 situated in village Swami Ehatmali, Tehsil Sadar, District Agra admeasuring 6.07 hectares. The plea of the applicant is that the District Survey Report (DSR) for District Agra was prepared in 2017 for five years which has come to an end in 2022 and thereafter, no fresh DSR has been prepared nor any replenishment study has been done. Therefore, the impugned auction

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notice cannot be sustained in view of the judgment of the Supreme Court in the matter of Deepak Kumar & Ors. vs. State of Haryana & Ors. reported in (2012) Vol 4 SCC 629 .

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The Tribunal by order dated 05.01.2024 had issued notice to the respondents and had directed the Member Secretary, UPPCB to file the report. The MoEF&CC has filed the response mentioning the judgment of the Hon’ble Supreme Court dated 10.11.2021 in Civil Appeal No. 36613662 of 2020 in the matter of State of Bihar & Ors. vs. Pawan Kumar & Ors., emphasizing the importance of DSR and that DSR is required to be prepared before the auction/e-auction/grant of mining lease by the Mining Department.

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The UPPCB has also filed the report stating that vide letter dated 18.01.2024, UPPCB had requested to the Director, Mining & Geology, State of UP and SEIAA, UP to provide the details about District Survey Report and replenishment study but the information is awaited.

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The District Magistrate, Agra has filed the report stating that the requisite details were supplied to the UPPCB and that DSR for District Agra for the period 2017-2022 was prepared in terms of the EIA Notification dated 15.01.2016 which was subsequently approved by DEIAA in its meeting held on 16.11.2017 for a period of five years and thereafter, the e- auction notice dated 22.06.2022 was issued and LOI dated 21.07.2022 was awarded in favour of the respondent no. 7. Hence, at the time of issuance of the advertisement and LOI, the DSR for Agra was existing. The reply of the District Magistrate further states that the Environmental Clearance in respect of the above Gata is pending consideration before the SEIAA, UP and has not been granted till now and no mining activity is being carried out on that Gata. It has further been stated that in terms of the direction

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of the Hon’ble Supreme Court in the order dated 10.11.2021 passed in Civil Appeal No. 3661-3662 of 2020 in the matter of State of Bihar & Ors. vs. Pawan Kumar & Ors. , office order dated 22.03.2024 has been issued by the District Magistrate wherein sub-Divisional Committee has been formed for preparation of fresh DSR. A stand has been taken that respondent no. 7 will not be permitted to carry out any mining activity till the time of Environmental Clearance by SEIAA.

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The Central Government, Ministry of Environment and Forests & Climate Change exercising the powers under Section 3 (5) (i) of the Environment Protection Act, 1986 read with Rule 5 (3) (d) of the Environment Protection Rule, 1986 had issued the Notification dated 14.09.2016 providing for the requirement of prior Environmental Clearance in respect of the project specified in Clause 2 of the Notification read with the project/activities listed in the Schedule to the Notification. Notification further provides for constitution of the State Level Environment Impact Assessment Authority and also provides for the recommendations by SEAC. Detailed procedure has been prescribed therein for granting the Environment Clearance. The Notification dated 14.09.2006 was amended by the subsequent Notification dated 15.01.2016 and following clause was inserted in the Schedule to the Notification after

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clause k:-

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(1)	(2)		(3)	(4)	(5)
“1(a)	(i) Mining minerals	of	≥50 ha of mining lease area in respect of non-coal mine lease >150 ha of mining lease area in respect of coal mine lease	<50 ha of mining lease area in respect of non- coal mine lease ≤150 ha of mining lease area in respect of coal mine lease	General Conditions shall apply except: (i) for project or activity of mining of minor minerals of Category ‘B2’ (up to 25 ha of mining lease area);
			Asbestos mining irrespective of mining area		(ii) River bed mining projects on account of _inter-state boundary. _

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The issue relating to the Environment Impact Assessment in respect of the mining area of less than 5 hectare for mining/quarrying of minor minerals, boulders, gravel, and sand quarries in notified area in river beds came up for consideration before the Hon’ble Supreme Court in the case of Deepak Kumar & Ors. vs. State of Haryana & Ors. reported in (2012) Vol 4 SCC 629 wherein the Hon’ble Supreme Court has held 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 riverbeds, affects fish breeding and migration, spells disaster for the conservation of many bird species, increases 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 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

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Shivalik Hills. Shivalik Hills are the source of rivers like Ghaggar. Tangri, Markanda, etc. River Ghaggar is a seasonal river which rises tüp in the outer Himalayas between Yamuna and Satluj and enters Haryana near Pinjore, District Panchkula, which passes through Ambala and Hissar and reaches 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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11. We find that it is without conducting any study on the possible environmental impact on/in the riverbeds and elsewhere the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a riverbed has an impact on the river's physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity’ it is not an answer to say that the extraction is in blocks of less than 5 ha., separated by 1 km, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan.”

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In that judgment, Hon’ble Supreme Court has duly taken note of the recommendations made by the MoEF&CC and has expressed that the State Government/Union Territories have to give due weightage to the recommendations of the MoEF&CC.

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The stand of District Magistrate, Agra is that DSR for Agra was approved by DEIAA on 16.11.2017. The Tribunal by orders dated 13.09.2018 passed in O.A. No. 186/2016, 26.02.2021 in O.A. No. 360/2015 and 12.04.2024 in O.A. No. 370/2024 has already disapproved the formation of DEIAA. The NGT in OA No. 186/2016, Satendra Pandey Vs. Ministry of Environment, Forest & Climate Change & Anr. vide order dated 13.09.2018 has held:-

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“d) The District Level Environment Impact Assessment Authority (DEIAA) and District Level Expert Appraisal Committee (DEAC) comprises mostly of officers/bureaucrats who have no expertise and scientific knowledge to assess environmental implications, and have been conferred with excessive and uncanalized power devoid of any guidelines. Even the power to appoint the Expert Members vested upon the authorities in the DEIAA and DEAC are unguided whereas there is an extensive elaborations with regard to qualifications, skill sets and competencies for the members of SEAC and SEIAA.”

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In Original Application No. 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat) & Ors. vide order dated 26.02.2021 NGT has held:-

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“Procedure for DSR/EC

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13. Vide order dated 14.10.2020 in O .A. No. 40/2020, Pawan Kumar v. State of Bihar & Ors., the issue of preparation of District Survey Report (DSR) by Experts was considered. Vide Notification dated 25.07.2018 issued by the MoEF&CC, under Section 3(2)(v) of the EP Act, 1986 amending EIA Notification dated 14.09.2006, procedure for preparation of DSR for sand mining/riverbed mining was laid down. The DSR is crucial as it contains Environment Management plan, including the replenishment study and other safeguards and is the basis to consider the environment impact of mining based on which decision to grant the Environmental Clearance is taken . The Tribunal held that for such crucial exercise, the Experts should be out of those accredited by the National Accreditation Board of Education and Training/ Quality Control Council of India (NABT/QCCI) in terms of O.M. of MoEF&CC dated 16.03.2010 . Verification by the District Magistrate and evaluation by the SEAC was also necessary. Accordingly, f ollowing directions were issued in relation to a matter arising from the State of Bihar:-

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

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(iii) The DSR so prepared shall be submitted to the District Magistrate who shall verify the DSR only in respect of the relevant facts pertaining to the physical and geographical features of the district which shall be distinct from the scientific findings based on the parameters prescribed in the SSMMG- 2016. After such verification, the District Magistrate shall forward the DSR for examination and evaluation by the State Expert Appraisal Committee (SEAC) having regarding to the fact that the SEIAA comprises of technical/scientific experts. The SEAC after appraisal of the report shall forward it to the SEIAA for consideration and approval if it meets all scientific/technical requirements.

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

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

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

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

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

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In Original Application No. 370/2024 (I.A. No.165/2024), Noble M Paikada vs. Union of India vide order dated 12.04.2024 NGT has held:-

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“4……Tribunal in the matter of O.A. No. 142/2022 in Jayant Kumar Vs. MoEF & CC vide order dated 07.12.2022 had further held that only such leases where environmental clearance was granted by DEIAA may continue which have been on re-appraisal granted environment clearance by SEIAA, by holding as under:

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“14. Further, this Tribunal has observed that mining leases in which environmental clearance was granted by DEIAA in view of amendment notification dated 15.01.2016 are still continuing even after passing of order dated 13.09.2018 by this Tribunal in Satendra Pandey (supra) and issuance of OM dated 12.12.2018 by MoEF&CC without any re-appraisal by SEIAA and appropriate remedial action on the basis of such reappraisal. All such mining leases in which environmental clearance was granted by DEIAA need to be brought in consonance with the directions given by Hon’ble Supreme Court in Deepak Kumar (supra) and order dated 13.09.2018 by this Tribunal in Satendra Pandey (supra) by re-appraisal by SEIAA and only such mining leases may be continued which have been on re-appraisal granted environmental clearance by SEIAA. MoEF & CC is, therefore, directed to take appropriate steps for compliance in this regard by issuance of requisite directions in exercise of the statutory powers under the Environment

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(Protection) Act, 1986. For this purpose, MoEF & CC is directed to collect information regarding such mining leases in which environmental clearance was granted by DEIAA and the period of which has not yet expired and are still continuing in all the States and Union Territories and by issuing appropriate directions for compliance with directions given by Hon’ble Supreme Court in Deepak Kumar (supra) and order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra) by re-appraisal for grant of EC by SEIAA.”

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5. He further submits in O.A. 90/2022 in Sharvesh Sharma Vs. State of Madhya Pradesh & Ors. the Tribunal vide order dated 23.03.2022 had held that orders and actions initiated by the environmental clearance issued by DEIAA are void-ab-initio by observing as under:

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“17. Thus, the orders as quoted above and the chart submitted by the applicant reveals that orders and actions initiated on the basis of the EC issued by DEIAA in district Datia and Narsinghpur are void-ab-initio having no force of law and thus against the provision of Sustainable Mining Management Guidelines, 2016 and Sustainable Sand Mining Management Guidelines, 2020, and against the orders of Hon’ble Supreme Court of India and orders passed by this Tribunal quoted above.

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18. Accordingly, in light of the order dated 01.07.2022 passed by Principal Bench of this Tribunal in Dilip Singh vs. State of Uttar Pradesh & Ors in O.A. No. 319/2022, we direct that the Environment Clearances granted in district Datia and Narsinghpur by the DEIAA could not be enforced, being in contravention with the judgment of the Hon’ble Supreme Court of India in Deepak Kumar vs. State of Haryana and Ors (2012) 4 SCC, 629 and should have been revoked immediately and not to be acted upon.”

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6. He has further submitted that the same issue again came up before the Tribunal in Execution Application No. 55/2018 in Original Application No. 520/2016 in Vikrant Tongad Vs. Union of India and the Tribunal vide order dated 11.12.2018 held as under:

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“3. The District Expert Appraisal Committee (DEAC) comprised officers having no expertise or scientific knowledge to assess environment implications. Permitting DEAC to make assessment was also not consistent with the Sustainable Sand Mining Management Guidelines, 2016. Accordingly, MoEF&CC was directed to take steps to revise the procedure laid down in the Notification dated 15.01.2016.”

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7. He has also placed reliance upon the order of the Tribunal dated 06.11.2023 passed in O.A. No. 36/2023 in Brijendra Kumar Mala & Anr. Vs. State of Madhya Pradesh & Ors. wherein the Tribunal held as under:

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“15. Respondents as well as the applicant pressed these lines to clarify though this Tribunal is not meant to clarify but since the application has been placed, thus, we are quoting the lines as below:-

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i. mining leases in which environmental clearance was granted by DEIAA in view of amendment notification dated 15.01.2016 are still continuing............ means “that it should not be continued.”

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ii. even after passing of order dated 13.09.2018 by this Tribunal in Satendra Pandey (supra) and issuance of OM dated 12.12.2018 by MoEF&CC – means “it should not be continued after these orders and notification.”

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iii. without any re-appraisal by SEIAA – means “the mandatory provisions up EIA 14.09.2006 must be complied with and prior environmental clearance must be obtained and required by the SEIAA.”

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iv. An appropriate remedial action on the basis of such reappraisal means “after the re-appraisal remedial action is required.”

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v. All such mining leases in which environmental clearance was granted by DEIAA need to be brought in consonance with the directions given by Hon'ble Supreme Court of India in Deepak Kumar (supra) and order dated 13.09.2018 by this Tribunal in Satendra Pandey (supra) by re-appraisal by SEIAA means “This must be in consonance with the Deepak Kumar Case and reappraisal by SEIAA.”

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vi. And only such mining leases may be continued which have been on re-appraisal granted environmental clearance by SEIAA means “the matters in which the environmental clearance was not granted by SEIAA may not be continued and it also means only such mining activities leases may be continued which have been reappraised granted environmental clearance by SEIAA.”

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vii. Para 4 of the notification says, “in view of the above, it is hereby directed that all concerned SEIAA shall reappraised the issued by the DEIAA between 15.01.2016 and 13.09.2018 including both dates and all fresh ECs in this regard shall be granted only by SEIAAs based on such appraisal.” That means all such ECs should be appraised by SEIAA and fresh EC shall be issued.”

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8. He submits that the order of the Tribunal dated 13.09.2023 and 06.11.2023 in O.A. 36/2023 in Brijendra Kumar Mala (supra) was subject matter of challenge in the Hon’ble Supreme Court in Civil Appeal Diary No. 49608/2023 and Hon’ble Supreme Court vide order dated 13.12.2023 had passed the following interim order while issuing notice in the SLP which is as under:

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“Permission to file the appeal(s) is granted.

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Issue notice and tag with Civil Appeal Diary no. 5072/2019. Notice will be served by all modes, including dasti. In the meanwhile, after the State Environment Impact Assessment Authority1 grants approval/clearance, the mining will be permitted. The SEIAA will be also entitled to pass interim orders

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to ensure availability of sand etc., while also ensuring proper compliance with the norms.

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Re-list alongwith connected matter(s) in the month of January 2024.”

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9. He submits that in terms of the above order it is clear that only SEIAA has the power to issue environmental clearance. DEIAA has no power to issue environmental clearance and the environmental clearances issued by DEIAA are not valid therefore MoEF & CC cannot extend the validity of environmental clearances issued by DEIAA.”

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Admittedly, no DSR with the approval of the SEIAA has been prepared for District Agra till now.

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The issue relating to publication of auction notice and grant of mining lease without the DSR and replenishment study had come up before the Tribunal in the matters of in OA No.38/2022 dated 17.10.2022 in the matter of Ajit Kumar v. State of Madhya Pradesh & Ors. wherein the Tribunal has held as under:-

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“45. The main questions raised in this petition are as follows:-

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i. Question No. 1 : Requirement of DSR and its finality.

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Answer: The Sustainable Sand Mining Management Guideline, 2016 & 2020 provides for the preparation of DSR and MoEF has 97 issued necessary directions. It is settled Law that District Survey Report for Sand Mining shall be prepared before the auction/eauction/grant of mining lease by the Mining Department or department dealing with the mining activities in the respective States. DSR is to be approved at the level of SEIAA with the help of SEAC. The DSR becomes final on the date when it is approved by the SEIAA. With regard to the DSR relating to the district Raisen it was approved on 23.05.2022. Thus, the valid DSR/approved DSR came into existence on 23.05.2022 district Raisen, the question is replied accordingly.

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ii. Question no. 2: Sanctity of NIT in absence of DSR or DSR duly approved by SEIAA.

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Answer: In view of the discussion made above and in view of Prabhat Mohan Pandey case (Supra) and the direction issued in the Pawan Kumar Case, the action of NIT in absence of valid

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DSR is in violation of Sand Mining Guidelines issued in 2016 & 2020, it becomes final only after the approval of the SEIAA. Any NIT before the date of approval of DSR by SEIAA is in contravention of the Rules, Guidelines and the directions issued by the Hon ‟ ble Supreme Court. The question is replied accordingly.

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iii. Question no. 3: Continuance of mining operation, in absence of valid environment clearance or after expiry of the term. Answer: Any mining activities on the basis of environmental clearance which was expired w.e.f. 31.03.2021 & 31.03.2022 ceased to be in accordance with law and the mining activities and EC granted in violation of category is also against the provisions of law and against the Sustainable Send Mining Rules, 2020.”

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46.…………….xxx………………………xxx……………………..xxx

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47. In view of the above facts, the summary of the conclusions and directions are as follows :-

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i. The DSR in the district Raisen was finalized/approved by the MPSEIAA on 23.05.2022. Any action taken on the basis of NIT issued prior to 23.05.2022 including (26.11.2021) is irregular, void, having no effect and, in violation of guidelines and stands cancelled. The respondents may initiate exercise as fresh on the basis of approved DSR i.e. dated 23.05.2022 in the district of Raisen.

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ii. The environment clearance whose terms has expired either on 31.03.2021 & 31.03.2022 stands canceled and Madhya Pradesh State Environmental Impact Assessment Authority is directed to cancel the remaining matters, where the matter is under scrutinization before the authorities concerned and take appropriate decision within 15 days. Till the Final decision is taken by the appropriate authority/ MPSEIAA, no mining activities are permitted in the concerned districts under question where the EC has been expired on the basis of expired ECs.

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iii. We direct the Madhya Pradesh State Mining Corporation and the MPSEIAA to rectify the EC in accordance with law and in

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light of the judgment and orders passed by this Tribunal in Prabhat Mohan Pandey vs. State of MP & Ors. (Supra).

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iv. Issue of electronic traffic passes by the MPSMC portal from the mines whose EC has expired is illegal, irregular and in contravention of Sand Management Guidelines and the respondents are directed to take necessary actions to control the illegal mining in accordance with law”

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Hence, it is settled that DSR earlier prepared by DEIAA cannot be given seal of approval without reappraisal by SEIAA. The DSR prepared for Agra in 2017 by DEIAA was not reappraised by SEIAA and was not brought in consonance with direction issued by Hon’ble Supreme Court in the judgment of Deepak Kumar (supra) and order of NGT in Satendra Pandey (supra). It is also settled that the auction notice/NIT issued prior to finalization of DSR cannot be sustained.

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In view of the above settled legal position, the e-auction notice without the replenishment study and DSR for the District prepared by the District Magistrate and approved by the SEIAA cannot be issued and lease for miner minerals/sand cannot be granted.

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Hence, OA is allowed and impugned advertisement for e-auction dated 22.06.2022 is set aside. Pending IA, if any, is also disposed of accordingly.

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Prakash Shrivastava, CP

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Sudhir Agarwal, JM

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Dr. A. Senthil Vel, EM

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May 07, 2024 Original Application No. 801/2023 (IA No. 891/2023, IA No. 890/2023, IA No. 209/2024, IA No. 108/2024 & IA No. 103/2024) SN

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Mohan Prakash v. Ministry of Environment Forests and Climate Change through the Secretary

Case brief

What is this about?

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Mohan Prakash v. Ministry of Environment Forests and Climate Change through the Secretary

Case brief

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What the court decided

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