Item Nos. 02 to 20 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 360/2015 (With report dated 15.01.2021) National Green Tribunal Bar Association Applicant Versus
Virender Singh (State of Gujarat) Respondent
With
Original Application No. 366/2015 National Green Tribunal Bar Association Applicant Versus
Dr. Sarvabhoum Bagali (State of Karnataka) Respondent
With
Original Application No. 368/2015 National Green Tribunal Bar Association Applicant Versus
Dr. Sarvabhoum Bagali (State of Karnataka) Respondent
With
Original Application No. 173/2018 (Earlier O.A. No. 89/2017 (EZ) Sudarsan Das Applicant
Versus
State of West Bengal & Ors. Respondent(s)
With
Original Application No. 874/2018 In Re: News item published in "The Tribune " Authored by Arun Sharma Titled "Mounds of sand on Sutlej banks, mining mafia digs in"
With
Original Application No. 44/2016 Mushtakeem Applicant
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Versus MoEF & CC & Ors. Respondent(s)
With
Original Application No. 517/2015 Sandeep Kumar Applicant Versus
Ministry of Environment, Forests and Climate Change & Ors. Respondent(s)
With
Original Application No. 550/2015 Virender Kumar Applicant Versus
Ministry of Environment, Forests and Climate Change & Ors. Respondent(s)
With
Original Application No. 530/2016 Sandeep Kumar Applicant Versus
Ministry of Environment, Forests and Climate Change & Ors. Respondent(s)
With
Original Application No. 272/2016 M/s Ganga Yamuna Mining Co. Applicant Versus
State of Haryana & Ors. Respondent(s)
With
Original Application No. 481/2016 Joginder Singh Applicant Versus
Ministry of Environment & Forest Respondent
With
Original Application No. 540/2015 Ved Pal Singh Applicant
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Versus Ministry of Environment and Forests & Ors. Respondent(s)
With
Original Application No. 90/2016 Chander Mohan Uppal Applicant Versus
State of U.P. & Ors. Respondent(s)
With
Execution Application No. 40/2017
IN
O.A. No. 517/2015 Sandeep Kumar Applicant Versus
Ministry of Environment, Forests and Climate Change & Ors. Respondent(s)
With
Original Application No. 671/2017 (Earlier O.A.No.123/2014) Himmat Singh Shekhawat Applicant Versus
State of Rajasthan & Ors. Respondent(s)
With
Original Application No. 726/2018 Rupesh Pethe Applicant
Versus
State of M.P. & Ors. Respondent(s)
With
Original Application No. 456/2018 (Earlier O.A. No. 146/2014 (CZ) Nityanand Mishra Applicant Versus
State of M.P. & Ors. Respondent(s)
With
Original Application No. 1086/2018 (Earlier O.A.No.140/2014) Nanga Ram Dangi Applicant Versus
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Secretary, Department of Environment & Forests & Ors. Respondent(s)
With
Original Application No. 575/2019 Yaduraj Singh Jat Applicant Versus
State of Rajasthan Respondent Date of hearing: 26.02.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Ms. Katyayni, Advocate in OA 1086/2018 Amicus Curiae: Mr. Raj Panjwani, Senior Advocate with Mr. Aagney Sail, Advocate Respondent(s): Mr. Divya Prakash Pande, Advocate. for CPCB & MoEF & CC Mr. Raj Kumar, Advocate for CPCB in OA 726/2018
Ms. Soni Singh, Advocate for CPCB in OA 456/2018
Mr. Attin Shankar Rastogi, Mr. Balendu Shekhar & Mr. Shlok Chandra, Advocates for MoEF & CC
Mr. Ankit Verma, Advocate for State of UP
Mr. Rahul Khurana, Advocate for State of Haryana
Mr. Darpan KM, Advocate for State of Karnataka
Ms. Madhumita Bhattacharjee, Advocate. for State of West Bengal Mr. Vikas Mahajan, AAG for State of HP
Mr. Maulik Nanavati, Advocate for State of Gujarat
Ms. Soumya Priyadarshinee, Advocate for State of MP
Ms. Sakshi Popli, Advocate for DPCC
ORDER
1.1
1. The issue for consideration in this group of matters relates to updation of enforcement and monitoring mechanism to control and regulate illegal sand mining (including riverbed sand mining) in the light of directions in the judgments of the Hon'ble Supreme Court, including in Deepak Kumar v. State of Haryana & Ors.: (2012) 4 SCC 629 and Goa Foundation v. Union of India & Ors. (2014) 6 SCC 590 and orders of this Tribunal.
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2. Some of the matters have been pending for about seven years while others have been tagged to the pending matters later, from time to time, in view of common question. We need not refer to the individual facts and all the earlier order. It will suffice to refer to some of the significant orders passed from time to time given in a tabular form as follows:
Sl. No. | Party name | Date of orders | Particulars |
1. | OA No. 173/2018 Sudarsan Das v. State of West Bengal & Ors. | 04.09.2018 | Inter alia directing revision of monitoring mechanism by the MoEF&CC. |
2. | OA No. 44/2016 Mushtakeem v. Moef & Cc. | 05.09.2018 | |
3. | OA No. 186 of 2016 Satendra Pandey Vs. Ministry of Environment, Forest & Climate Change & Anr | 13.09.2018 | Inter alia disapproving dispensing with requirement of public hearing and requiring evaluation by DEIAA. |
4. | OA 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016 | 16.01.2019 | Requiring the Chief Secretaries to monitor the subject of unregulated and unscientific sand mining |
5. | O.A. No. 360/2015, National Green Tribunal Bar Association v. Virender Singh (State of Gujarat) | 05.04.2019 | Inter alia consideration of scale of compensation and revised monitoring mechanism |
6. | OA No. 44/2016 Mushtakeem v. Moef & Cc. | 19.02.2020 | Inter alia modifying the mechanism for release of vehicles |
7. | OA No. 360/2015 National Green Tribunal Bar Association v. Virender Singh (State of Gujarat) | 17.08.2020 | Inter alia considering the scale of compensation proposed by the CPCB |
8. | O.A. No. 40/2020, Pawan Kumar v. State of Bihar & Ors. | 14.10.2020 | Inter alia engagement of experts from NABT/QCCI for preparation of DSR/ replenishment study |
9. | O.A. No. 726 of 2018 Rupesh Pethe v. State Of M.P., | 04.11.2020 |
3. We may now refer to the developments which have taken place during pendency of the matters and then proceed to decide the surviving issues, as further discussed in para 24:
a. enforcement of SSMG-2016 and EMGSM-2020, b. compensation regime,
c. procedure for seizure and release of vehicles,
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d. periodic interaction among the stakeholders as discussed in later part of the judgment,
e. designing and reviewing monitoring mechanism from time to time including grievance redressal.
'Sustainable Sand Mining and Management Guidelines, 2016' (SSMG- 2016) and "Enforcement and Monitoring Guidelines for Sand Mining, 2020" (EMGSM-2020)
4. In the course of proceedings, the Ministry of Environment, Forest and Climate Change (MoEF&CC) issued 'Sustainable Sand Mining and Management Guidelines, 2016' (SSMG-2016) under the provisions of the Environment (Protection) Act, 1986 (EP Act, 1986) on 15.01.2016. Further, in the light of the September 2016 report of the High-Powered Committee (constituted by the Tribunal), headed by the Secretary, MoEF&CC and suggestions as noted in order dated 04.09.2018 in OA 173/2018, Sudarsan Das v. State of West Bengal & Ors., the Tribunal directed revision of the guidelines.1Accordingly, the MoEF&CC has issued "Enforcement
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Para 25 of the said order is as follows: "25. In view of above discussion, we are of the view that since the subject of mining is also required to be regulated for protection of environment and it is to take care of this requirement, MoEF&CC has issued directions from time to time under Section 3 and 5 of the Environment (Protection) Act, 1986. The MoEF&CC needs to revise its directions keeping in mind the following: i. Mining Surveillance System discussed in para 23 above be finalized in consultation with ISRO Hyderabad. ii. Safeguards suggested in Sustainable Sand Mining Guidelines published by the MoEF&CC in the year 2016. iii. Suggestions in the High Power Committee Report. iv. Requirement of demarcation of boundaries being published in respect of different leases in public domain. v. Need to issue SOP laying down mechanism to evaluate loss to the ecology and to recover the cost of restoration of such damage from the legal or illegal miners. Such evaluation must include cost of mining material as well as cost of ecological restoration and net present value of future eco system services forgone. vi. Need to set up a dedicated institutional mechanism for effective monitoring of sand and gravel mining which may also take care of mining done without any Environmental Clearance as well as mining done in violation of Environmental Clearance conditions. vii. The Mining Department may make a provision for keeping apart atleast 25% of the value of mined material for restoration of the area affected by the mining and also for compensating the inhabitants affected by the mining. viii. One of the conditions of every lease of mine or minerals would be that there will be independent environmental audit atleast once in a year by reputed third party entity and report of such audit be placed in public domain. ix. In the course of such environmental audit, a three-member committee of the local inhabitants will also be associated. Composition of three members committee may
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and Monitoring Guidelines for Sand Mining, 2020" (EMGSM 2020), uploaded on the website on 27.01.2020 and communicated to all the States. Salient features thereof will be noted later.
Issue of EC procedure being handled by SEIAA instead of DEIAA, after public hearing and other necessary steps, procedure for revision of DSR preparation and enforcement mechanism in States, including compensation regime and seizure and release of vehicles
5. Vide order dated 13.09.2018 in O.A. No. 186/2016, Satyender Pandey Vs. MoEF, further direction was issued against dispensing with the requirement of public hearing and evaluation by SEIAA in terms of the judgment of the Hon'ble Supreme Court in Deepak Kumar, supra thereby the guidelines/notification dated 15.01.2016 dispensing with such requirement was held to be hit by the judgment of the Hon'ble Supreme Court in Deepak Kumar, supra and thus not enforceable.
6. On 05.04.2019, the Tribunal conducted comprehensive review of the matter and noted following issues required consideration. Directions were issued with reference to the said issues:
"(a) Revision of Sustainable Sand Mining Guidelines, 2016 by the MoEF&CC in the light of directions of this Tribunal vide order dated 04.09.2018 in Sudarsan Das (supra).
(b) Compliance of Sustainable Sand Mining Guidelines, 2016 as may be revised by MoEF&CC as above.
(c) Effective monitoring mechanism for preventive and remedial measures as directed in orders of this Tribunal, including surveillance system and recovery of compensation.
(d) Directions in individual cases listed today.
(e) Scale of compensation."
7. Considering the extent of illegality in the process, apart from directing revision of the Guidelines as above, the Tribunal directed the preferably include ex-servicemen, former teacher and former civil servant. The Committee will be nominated by the District Magistrate."
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States2to review their monitoring mechanism in the light of observations of this Tribunal in earlier orders, including orders dated 04.09.2018 in Sudarsan Das v. State of West Bengal & Ors, 05.09.2018 in Mushtakeem
v. MoEF&CC & Ors. and 16.01.2019 in OA 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016. Though direction was issued to the States who were parties before the Tribunal, the directions are of general nature applicable to sand mining in all the State /UTs. The Tribunal also considered compliance reports from different States after finding that the response of the State was not satisfactory.
Seizure and Release of vehicles involved in illegal mining
8. Another issue bearing on the enforcement mechanism is the action against the vehicles used in illegal sand mining. Seizure of such vehicles is required and release of seized vehicles lightly defeats the purpose of the coercive measures. Since the vehicles are in a way weapon of offence, the same cannot be dealt with in the manner disputed property is dealt with under section 451 Cr.PC. by releasing the same in favour of the ostensible owner by taking an entrustment/indemnity bond/sapurdginama. In Sujit Kumar Rana, (2004) 4 SCC 129 and order dated 26.03.2019 in Cr. A. 524/2019, State Of Madhya Pradesh v. Uday Singh ., it was held that special procedure for seizure and release of such vehicles prevails over the procedure under Section 451 Cr.P.C. This Tribunal earlier directed, in the case of illegal mining in Meghalaya that such vehicles should be released only on the payment of 50% of the showroom value. The same was affirmed by the Hon'ble Supreme Court in 2019 (8) SCC 177. Similar order was passed by the Tribunal on 10.01.2019 in O.A. No. 670/2018, Atul
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The States of West Bengal, Gujarat, Karnataka, Maharashtra, Punjab, Uttar Pradesh, Haryana, Madhya Pradesh, Andhra Pradesh, Bihar, Uttarakhand, Jammu and Kashmir, Goa, Kerala, Telangana and Tamil Nadu and Himachal Pradesh
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Chouhan v. State of U.P., which stands affirmed by the Hon'ble Supreme Court vide order dated 07.05.2019 in C.A. No. 1590/2019. Thus, the procedure under Cr.P.C. for release of vehicles on superdari without stringent conditions would not apply in respect of action taken for enforcement of Sustainable Guidelines issued under the Environment (Protection) Act, 1986 (EP Act) and for enforcement of orders of this Tribunal under Section 15 of the National Green Tribunal Act, 2010 (NGT Act). However, having regard to the difficulty expressed by the State that requirement to pay 50% of the showroom value of the vehicle was resulting in vehicles not being released at all, the earlier order was modified on 19.02.2020 to the effect that following scale of amount be recovered for release of the seized vehicles:-
Sr. No. Category of Vehicle Penalty Amount
1 Vehicles/Equipments/Excavators with showroom Rs. 4 lacs value more than Rs. 25 lacs and less than 5 years old.
2 Vehicles/Equipments/Excavators with showroom Rs. 3 lacs value more than Rs. 25 lacs and more than 5 years but less than 10 years old.
3 For the remaining Vehicles older than 10 Rs. 2 lacs years/Equipments/ Excavators which are otherwise legally permissible to be operated and not covered by Serial No. 1 and 2.
Note - I: On repetition of the offence by the same vehicle/ equipment, Order dated 05.04.2019 will be applicable.
Note - II: The option of release may be available for a period of one month from the date of seizure and thereafter, the vehicles may be confiscated and auctioned.
9. Following further directions were issued :-
"6. The State may issue an appropriate Office Order/Rule to the above effect and publish the same. Needless to say that any private contract between a financer and a debtor cannot affect the States' sovereign power to protect the environment and take incidental coercive measure for enforcement of rule of law. Lien of the State will override any private interest. The above compensation regime will be over and above any existing Rules or provisions. The amount collected may be
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remitted to the State PCBs/PCCs for being utilized for restoration of the environment.
7. The above course of action will be permissible to all the States at their option."
Scale of compensation for violations on polluter pays principle
10. Vide order dated 17.08.2020, the Tribunal considered the CPCB report dated 30.01.2020, in pursuance of earlier orders on scale of compensation to be recovered for violation of norms for mining on polluter pays principle and the matter was deferred for further consideration of such scale and further orders in the light of the EMGSM 2020. On the issue of scale of compensation for violations, the Tribunal held that the same has to be calculated having regard to the polluter pays principle and not mere loss of royalty. This requires taking into account value of the illegally mined material and cost of restoration of the environment. CPCB did the exercise by constituting an expert Committee. The Tribunal considered the report as follows:-
"8. The Committee considered two approaches:
(I) Approach 1: Direct Compensation based on the market value of extraction, adjusted for ecological damages.
(II) Approach 2: Computing a Simplified NPV for ecological damages.
9. In the first approach, the criteria adopted is:
Exceedance Factor (EF).
Risk Factor (RF).
Deterrence Factor (DF).
10. Approach 1 is demonstrated by Table 1 as follows:
" Table No. 01: Approach 1 Permitted Total Excess Exceedance in Compensation Charge Quantity Extractio Extraction Extraction: (in Rs.) (in MT or n (in MT (in MT or m3)
X Y Z = Y-X Z/ X D * (1+RF + DF) Where D = Z x Market Value-of- the-material-per-MT-or-m3
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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) "
11. Approach 2 is demonstrated by following formula:
"Till such time as data and information for a comprehensive NPV is worked out in a site specific manner to account for all (or atleast the major) ecological damages, a simplified NPV, proxied on the market value of the illegally extracted amount may be computed. In this case the NPV approach would imply that the total benefits from the activity of sand mining (as represented by the market value of the extracted amount) be deducted from the total ecological costs imposed by the activity. In the absence of data on benefits and costs separately, we recommend a modification of the formula as shown below:
Total Benefits(B) = Market Value of illegal extraction : D (refer Table 1)
Total Ecological Costs = Market Value Adjusted for risk factor: D ✱RF (refer Table1).
For present purposes, it is assumed that the Benefits would accrue only in the first year (in which the extraction of the illegally mined material takes place), while the ecological costs would continue to be felt over a period of time. NPV is to be calculated for a period of 5 years on the net value, Σ (C-B), at a discount rate ranging from 8%-5%, varying in inverse with the risk factor. Thus, where the highest risk factor (say
1) is applicable, the discount rate applicable would be the lowest (say 5% in this case)."
12. Final recommendation is as follows:
"Thus, it is recommended that the annual net present value (NPV) of the amount arrived at after taking the difference between the costs and the benefits through the use of the above approach, maybe calculated for a period of 5 years at a discount rate of 5% for mining which is in a severe ecological damage risk zone. The rationale for levying this NPV is based on expert opinion that reversal and/or restoration of the ecological damages is usually not possible within a short period of time and rarely is it feasible to achieve 100% restoration, even if the sand deposition in the river basin is restored through flooding in subsequent years. The negative externalities of the mining activity are therefore to be accounted for in this manner. Ideally, the worth of all such damages, including costs of those which can be restored should be charged. However, till data on site-specific assessments becomes available, this approach may be
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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:
Severity | Mild | Moderate | Significant | Severe |
Risk Level | 1 | 2 | 3 | 4 |
Risk Factor | 0.25 | 0.50 | 0.75 | 1.0 |
Discount | 8% | 7% | 6% | 5% |
Rate
11. Annexure-A appended to the report gives the calculation as follows:
"Compensation Charge (Scenario II - explicit accounting of NPV)
Market Value of Illegally Mined Material (D) 5000*400 = 2000000/- Annual Value of Foregone Ecological Values D*RF = 2000000/- Present Value of Foregone Ecological Values (@ 5% discount rate and over 5 years)
( )
PV = ∑