Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 36613662 OF 2020
THE STATE OF BIHAR AND OTHERS ...APPELLANT(S)
VERSUS
PAWAN KUMAR AND OTHERS ETC. ...RESPONDENT(S)
O R D E R
Per Court
1. The present appeals challenge the judgment and order
th
dated 14 October 2020, passed by the National Green
Tribunal, Principal Bench, New Delhi (hereinafter referred to as
“the Tribunal”) in O.A. No. 40/2020/EZ with O.A. No.
57/2020/EZ, thereby issuing the following directions:
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“Having regard to the findings at (a), (b) and (c)
(i)
above, we direct the State to undertake further
exercise for preparation of a fresh DSR for the
Banka district.
As the DEIAA is not functioning as a
(ii)
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.
The DSR so prepared shall be submitted to the
(iii)
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
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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.
While preparing the DSR, the MoEF & CC
(iv)
Accredited Agency/Consultant shall
scrupulously follow the procedure and the
parameters laid down under the SSMMG2016
and EMGSM2020 read in sync with each
other.”
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2. The appellantState of Bihar has assailed the said
th
judgment and order dated 14 October 2020, on various
grounds.
3. Shri Atmaram Nadkarni, learned Senior Counsel
appearing on behalf of the State of Bihar submitted that the
Tribunal has grossly erred in holding that unless the State
Expert Appraisal Committee (hereinafter referred to as “SEAC”)
and the State Environment Impact Assessment Authority
(hereinafter referred to as “SEIAA”) grants approval to the
District Survey Report (hereinafter referred to as “DSR”) for the
purpose of mining of sand, the same cannot be carried out. He
submitted that the Tribunal has further held that the very
invitation of the tenders without preparing the DSR in
accordance with the judgment of the Tribunal in the case of
Satendra Pandey v. Ministry of Environment, Forest and
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Climate Change and Another could not have been done. He
submitted that after the tenders are invited in accordance with
the DSR prepared by the District Level Committee, the
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O.A. No. 186 of 2016 (M.A. No. 350/2016)
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successful bidder will be required to prepare a mining plan and
unless such a mining plan is approved by SEAC and SEIAA, the
Environmental Clearance would not be granted and in turn,
mining activities cannot be carried out. He submitted that the
finding of the Tribunal is like putting the cart before the horse.
He further submitted that the Tribunal has also grossly erred in
holding that the DSRs prepared by the State were without
following the requisite procedure and without considering the
relevant factors. He submitted that not only the procedure as
prescribed under the relevant rules and regulations was
complied with, but the voluminous material in support of the
same was also placed on record before the Tribunal. He
submitted that the Tribunal has not taken into consideration
the said material. He therefore submitted that the judgment
th
and order passed by the Tribunal dated 14 October 2020,
needs to be set aside and the State needs to be permitted to
finalize the tenders received by it.
Shri Nadkarni further submitted that on account of the
4.
orders passed by the Tribunal, the old lessees are continuing
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with the mining activities by paying a meagre amount to the
State Government. He therefore submitted that on account of
this, a huge loss would be caused to the public exchequer. In
the alternative, he submitted that the State, at least, needs to
be permitted to undertake mining activities through Bihar State
Mining Corporation until the DSRs are finalized in accordance
with the judgment of the Tribunal.
5. Shri P.S. Patwalia, learned Senior Counsel appearing on
behalf of the original applicant vehemently opposed the
appeals. He submitted that the Tribunal has rightly held that
the DSRs are not prepared in accordance with the relevant
rules as well as policy guidelines. He submitted that it is
apparently clear that the State has taken into consideration
only financial enrichment without considering the
environmental aspects.
Though, we have heard the learned counsel for both the
6.
parties at length on merits, we find that it will be appropriate
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that the appeals are kept pending for further consideration and
till then, certain interim orders are passed.
7. It cannot be in dispute that though the developmental
activities are not stalled, the environmental issues are also
required to be addressed. A balanced approach of sustainable
development ensuring environmental safeguards, needs to be
resorted to. At the same time, it also cannot be ignored that
when legal mining is banned, it gives rise to mushroom growth
of illegal mining, resulting into clashes between sand mafias,
criminalization and at times, loss of human lives. It also
cannot be disputed that sand is required for construction of
public infrastructural projects as well as public and private
construction activities. A total ban on legal mining, apart from
giving rise to illegal mining, also causes huge loss to the public
exchequer.
Taking into consideration these aspects of the matter, we
8.
propose to issue certain interim directions.
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9. The Tribunal, in the case of Satendra Pandey (supra),
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has found that the notification dated 15 January 2016, which
provided Environmental Clearance to be given by the District
Environment Impact Assessment Authority (hereinafter referred
to as the “DEIAA”) was not in consonance with the judgment of
this Court in the case of Deepak Kumar v. State of Haryana
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. The Tribunal therefore in
and Others Satendra Pandey
(supra), had directed Ministry of Environment, Forest and
Climate Change (hereinafter referred to as “MoEF and CC) to
take steps to revise the procedure laid down in the notification
th
dated 15 January 2016. It is to be noted that MoEF and CC,
in accordance with the directions of the Tribunal, had issued
Enforcement and Monitoring Guidelines for Sand Mining
(hereinafter to referred to as “the 2020 guidelines”) in the
month of January 2020. Chapter 4 of the 2020 guidelines
deals with identification of possible sand mining sources and
preparation of DSR. It will be relevant to refer to Clause 4.1.1
(a), (o) and (p) of the 2020 guidelines:
2
(2012) 4 SCC 629
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“4.1 Identification of possible sand mining
sources and preparation of District Survey
Report (DSR)
4.1.1 Preparation of District Survey Report.
a) District Survey Report for sand mining shall be
prepared before the auction/eauction/grant of the
mining lease/Letter of Intent (Loi) by Mining
department or department dealing the mining
activity in respective states.
o) Potential site for mining having its impact on the
forest, protected area, habitation, bridges etc, shall
be avoided. For this, a subdivisional committee
may be formed which after the site visit shall decide
its suitability for mining. The list of mining lease
after the recommendation of the Committee needs
to be defined in the following format given in as
. The SubDivisional Committee after
AnnexureII
the site visit shall make a recommendation on the
site for its suitability of mining and also records the
reason for selecting the mining lease in the Patta
land. The details regarding cluster and contiguous
cluster needs to be provided as in AnnexureIII .
The details of the transportation need to ~e provided
as in Annexure IV .
p) The Comments of the
Public consultation
various stakeholders may be sought on the list of
mining lease to be auctioned. The State Government
shall give an advertisement in the local and national
newspaper for seeking comments of the general
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public on the list of mining' lease included in the
DSR. The DSR should be placed in the public
domain for at least one month from the date of
publication of the advertisement for obtaining
comments of the general public. The comments so
received shall be placed before the subdivisional
committee for active consideration. The final list of
sand mining areas [leases to be granted on riverbed
& Patta land/Khatedari land, desiltation location
(ponds/lakes/dams), MSand Plants (alternate
source of sand)] after the public hearing needs to be
defined in the final DSR in the format as per
AnnexureV . The details regarding cluster and
contiguous cluster needs to be provided in
AnnexureVI . The details of the transportation need
to be provided in AnnexureVll.”
It could thus be seen that in accordance with the 2020
10.
guidelines, the DSR is required to be prepared before the
auction/eauction/grant of mining lease by Mining Department
or Department dealing with mining activity in the respective
States. It is further provided that the potential site for mining
having its impact on the forest, protected area, habitation and
bridges should be avoided. For this, a subdivisional committee
is required to be formed which, after the site visit, is required to
decide regarding the suitability of the sites for mining. The
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subdivisional committee is further required to record its
reasons for selecting the mining lease in the patta land.
Various details are required to be given in the annexures
appended to the said policy.
It is further to be noted that AppendixX of the notification
11.
th
dated 15 January 2016, issued by MoEF and CC also provides
for composition of the subdivisional committee:
“A SubDivisional Committee comprising 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.”
It is to be noted that with the advent of modern
12.
technology, various technological gadgets like Drones and
satellite imaging etc. can be used for identification of the
potential sites and preparation of the DSR and also to check
misuse and unauthorized mining.
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13. We further find that when the 2020 guidelines as well as
the notification issued by MoEF and CC of 2016 itself provide
for constitution of subdivisional committees comprising of the
officers of the State Government from various Departments for
identification of the potential sites for mining, there would be
no necessity of the DSRs being prepared through private
consultants as directed by the Tribunal in the impugned order.
The subdivisional committee consists of various officers from
Revenue Department, Irrigation Department, State Pollution
Control Board, Forest Department and Geology Mining
Department of the State Government. They are better equipped
to visit the sites and prepare the draft DSR for the concerned
district. Apart from that, preparation of DSR through private
consultants would also unnecessarily burden the public
exchequer. We are therefore of the view that the direction in
that regard issued by the Tribunal requires to be modified. We
are further of the considered view that until the DSRs are
finalized and granted approval by SEAC and SEIAA, it is
appropriate that certain necessary arrangements are permitted
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so that the State can continue with legal mining activities. This
apart from preventing illegal mining activities, would also
ensure that the public exchequer is not deprived of its share in
legalized mining.
We therefore find it appropriate to substitute the
14.
directions issued by the Tribunal vide judgment and order
th
dated 14 October 2020, with the following directions:
(i) The exercise of preparation of DSR for the
purpose of mining in the State of Bihar in all the
districts shall be undertaken afresh. The draft
DSRs shall be prepared by the subdivisional
committees consisting of the SubDivisional
Magistrate, Officers from Irrigation Department,
State Pollution Control Board or Committee,
Forest Department, Geological or mining officer.
The same shall be prepared by undertaking site
visits and also by using modern technology. The
said draft DSRs shall be prepared within a
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period of 6 weeks from the date of this order.
After the draft DSRs are prepared, the District
Magistrate of the concerned District shall
forward the same for examination and evaluation
by the SEAC. The same shall be examined by
the SEAC within a period of 6 weeks and its
report shall be forwarded to the SEIAA within
the aforesaid period of 6 weeks from the receipt
of it. The SEIAA will thereafter consider the
grant of approval to such DSRs within a period
of 6 weeks from the receipt thereon;
(ii) Needless to state that while preparing DSRs and
the appraisal thereof by SEAC and SEIAA, it
should be ensured that a strict adherence to the
procedure and parameters laid down in the
policy of January 2020 should be followed;
(iii) Until further orders, we permit the State
Government to carry on mining activities
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through Bihar State Mining Corporation for
which it may employ the services of the
contractors. However, while doing so, the State
Government shall ensure that all environmental
concerns are taken care of and no damage is
caused to the environment.
15. List the matter after 20 weeks.
……....….......................J.
[L. NAGESWARA RAO]
…....….......................J.
[SANJIV KHANNA]
…….........................J.
[B.R. GAVAI]
NEW DELHI;
NOVEMBER 10, 2021.
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