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

1. This Appeal has been preferred under Section 16 of National Green Tribunal Act, 2010 (hereinafter referred to as ' NGT Act, 2010 ') challenging Environmental Clearances (hereinafter referred to as 'EC') dated 19.04.2022 granted by State Environment Impact Assessment Authority, Jammu & Kashmir (hereinafter referred to as 'SEIAA, J&K') in favour of M/s. NKC Projects Pvt. Ltd. (Project Proponent) (hereinafter referred to as 'PP/respondent 4'). Three ECs granted to PP/respondent 4 are detailed as under:

1. 19.04.2022 River Bed Minor Mineral in Block 1.52 Ha No. 1, Dreigam Bridge Downstream Shaliganga Nallah, Tehsil-

Khansahib, District-Budgam 2

2. 19.04.2022 M/s. NKC Projects Pvt. Ltd., Block 2, 1.29 Ha Banderpora Upstream Shaliganga Nallah, District Budgam

3. 19.04.2022 Minor Mineral Block 4, Panzam 2.90 Ha Bridge to Trumbi Bagh (Lalgam) Downstream Shaliganga Nallah, District Budgam Pleadings as per memo of Appeal

2. Respondent 4 submitted three proposals for mining of minerals to SEIAA, J&K in furtherance to grant of prior EC. The details of the projects and consideration thereof by SEIAA, J&K are given project wise as under:

3. The aforesaid proposal was submitted proposing mining in 3.17 ha.

Thereafter, another proposal no. SIA/JK/MIN/255722/2022 dated 13.02.2022 was submitted for resized area as 1.81 ha. The revised proposal was submitted since earlier proposal was not agreed by J&K Expert Appraisal Committee (hereinafter referred to as 'JKEAC'). It rejected the proposal for grant of EC in its 81st meeting dated 03.01.2022.

The revised proposal was recommended for grant of EC for 1.52 ha by JKEAC in its 87th meeting dated 02.03.2022 and approved by SEIAA J&K in its decision taken in 77th meeting dated 15.03.2022. Consequently, EC dated 19.04.2022 in respect of Project A/Block 1 was granted.

II. Proposal No. SIA/JK/MIN/239987/2021 dated 11.12.2021 relating to Block 2, Banderpora Upstream Shaliganga Nallah, District Budgam (hereinafter referred to as 'Project B/Block 2'):

EAC did not agree to recommend the case for grant of EC in the present form. Liberty was granted by JKEAC in its 81st meeting dated 03.01.2022 to approach SEIAA, J&K after resizing the block, reassessing the resource available. Revised proposal for 1.29 Ha was recommended for grant of EC by JKEAC in its 87th meeting dated 02.03.2022 and accorded approval by SEIAA, J&K vide decision taken in 77th meeting dated 15.03.2022.

Consequently, EC dated 19.04.2022 for mining in 1.29 Ha area in respect of Project B/Block 2 was granted.

III. Proposal No. SIA/JK/MIN/233732/2021 dated 16.12.2021 relating to Minor Mineral Block 4, Panzam Bridge to Trumbi Bagh (Lalgam) Downstream Shaliganga Nallah, District Budgam (hereinafter referred to as 'Project C/Block 4'):

Thereafter, another proposal no. SIA/JK/255737/2022 dated 13.02.2022 was submitted for resized area 2.90 ha. The revised proposal was submitted since earlier proposal was not agreed by JKEAC and it rejected the case for grant of EC in its 81st meeting dated 03.01.2022. The revised proposal was recommended for grant of EC by JKEAC in its 87th meeting dated 02.03.2022 and accorded approval by SEIAA, J&K vide decision taken in 77th meeting dated 15.03.2022 and consequently, EC dated 19.04.2022 in respect of Project C/Block 4 was granted.

6. Appellant has stated that the above three proposals were initially considered in 81st meeting of JKEAC. All the three proposals were rejected on the ground that area for which ECs were applied, are already over-

exploited; depleted to a large extent due to heavy illegal mining; Shaliganga Nallah is a feeding channel to Hokersar wetland and mining activity may 4 be detrimental to natural flow and quality of water flowing into Hokersar Wetland; and irrigation kuhls are present within the mining site. The extract of minutes of the meeting of JKEAC, reproduced in para 7 of Appeal, reads as under:

Ltd., Badgam -the Principal Executing Agency of Ring Road Project around Srinagar City.

b) M/S NKC Projects Pvt. Ltd, Badgam has now applied for grant of EC for extraction of minor minerals from the mining block under B2 category.

c) The Committee examined the mining block on the latest Google Image of Oct., 2021 and observed that the mineral materials has been depleted to a large extent due to heavy illegal mining and hardly any material is available for exploitation without endangering the environmental setting of the nalla.

f) The Committee further observed features on Google Image, indicative of an off-take point of irrigation kuhl originating from the mining block itself near pillar-B which substantiates the assertion made by the concerned Engineer in the NOC. Therefore, the Committee desired the PP to get the mining block resized by the competent Authority to maintain safe distance of 200m upstream and downstream of the offtake points in accordance with national guidelines on the subject.

g) Further, the NOC from the Wildlife Protection Department mentions that these Nallah's are feeding channels to Hokersar wetland Reserve and mining activity in the block should not affect the flow and quality of the water. It further stipulates that excessive extraction/water diversion must be avoided as it can hamper the smooth flow of water and adversely affect quality of water flowing to the Reserve."

(Emphasis added)

7. The observations made by JKEAC, in respect of different proposals, are also reproduced in para 8, 9 and 10, as under:

I. Project A/Block 1:

"DELIBERATIONS/SPECIFIC OBSERVATION(S) OF COMMITTEE, IF ANY:

(Emphasis added) II. Project B/Block 2:

Therefore, the Committee desired the PP to get the mining block resized by the competent Authority to maintain safe distance of 200m upstream and downstream of the offtake points in accordance with national guidelines on the subject.

g) Further, the NOC from the Wildlife Protection Department mentions that these Nallah's are feeding channels to Hokersar wetland Reserve and mining activity in the block should not affect the flow and quality of the water. It further stipulates that excessive extraction/water diversion must be avoided as it can hamper the smooth flow of water and adversely affect quality of water flowing to the Reserve.

i) Active water channel needs to be excluded from the mining block while calculating the targeting mineral production.

k) Revision of the mining plan with mine closure plan, revised mining depth, revised area, surface plan, targeted mineral production and replenishment and its denovo approval by the competent authority.

l) Mining depth of 3.00 m & bulk density of 2.3 adopted in the instant mining plan and Pre-Feasibility Report (PRF) were not agreed by the committee. Mining depth be restricted to max. 1m in aggregate and bulk density of 2.0 only be adopted for calculating the production targets in absence of actual field measurements. Accordingly, the PP shall resubmit the revised PFR."

(Emphasis added) III. Project C/Block 4 "DELIBERATIONS/SPECIFIC OBSERVATION(S) OF COMMITTEE, IF ANY:

e) NOC from Wildlife Protection Department mentions that these Nallah's are feeding channels to Hokersar wetland Reserve. The mining activity may be detrimental to natural flow and quality of the water flowing into Hokersar Wetland Reserve.

f) Heavy Illegal mining activity was observed in and around the mining block as per features on latest Google image of October, 2021 which needs appropriate action by the competent authority.

g) The materials within the block appear to be depleted to a large extent due to heavy illegal mining and any further mining would adversely affect the ecology and hydrological regime of the nalla.

h) Mining depth of 3.00 m & bulk density of 2.3 adopted in the instant mining plan and Pre-Feasibility Report (PRF) were not agreed by the committee."

(Emphasis added)

8. Copy of the minutes of 81st meeting dated 03.01.2022 has been filed as annexure A-2 to the Appeal.

9. Later as already said, revised proposals were submitted and impugned ECs were granted.

10. ECs have been challenged by appellant, primarily, on the following grounds:

11. Appellant has also elaborated above grounds stating that fresh proposals were re-considered by JKEAC within 2 months of rejection; there is over-exploitation of the area; involvement of PP in illegal mining; and nallah is a feeding channel for Hokesar Wetland. Details given in support of above grounds are:

The SEIAA J&K also required a 'Fit for mining certificate' from the Geology & Mining Department to ensure that the area is not already overexploited.

Off-take point of irrigation kuhl originating from the mining block.

 Block 1 The J&K UT level EAC in its 87th meeting has recorded that, "NOC from Irrigation Division mentioned that offtake of (02) number Khuls i.e. Lad Shanger and Hardwal Khul falls in this Block"

and "Features indicative of Irrigation Canals/ Khuls on Google Image of 09/2021" were also visible. The SEIAA J&K asked for "Submission of fresh clarification/NOC from the Xen Irrigation Dept. stating that no irrigation off-take point falls within 200m from periphery of the resized mining block of 2.90 Ha comprising of two subset blocks up-stream and downstream, prior to grant of EC." Nallah is a feeding channel for Hokesar Wetland:

12. Appellant has challenged EC pointing out some more illegalities as under:

ECs have been granted without taking into consideration the grounds on which earlier proposals were rejected. The findings recorded earlier that area is already depleted to a large extent due to heavy illegal mining and hardly any material is available for exploitation without endangering the environmental setting of the nallah has not been considered. Further observations that the area is over-exploited and any further mining will lead to further degradation of nallah, have also been ignored.

(iii) Within a short span of one month, only on the basis of a certificate issued by Geological and Mining department on 05.02.2022 stating that area is fit for mining, the recommendation for grant of EC has been made. It is inconceivable, how an area that was overexploited with mining became fit for mining in a matter of just one month.

(iv) Further the observations with regard to 'feature indicative of Irrigation offtake point' has also been ignored. This objection has been ignored on the basis of NOC granted by Irrigation Division, Budgam stating that there are no Khul or canal present in the mining block. JKEAC while recommending grant of prior EC has ignored that irrigation points were visible inside the area and despite that NOC was granted by Irrigation Department which was contrary to the position on the spot.

(v) Shaliganga Nallah serves as a feeding channel for the Hokersar wetland. Even this aspect was not considered by JKEAC. Only by directing to furnish an undertaking to Wildlife Protection Department that in case of any damage to the existing water course in terms of ecological and hydrological factors, costs of rehabilitation of the same will be decided by Wildlife Protection Department and borne by PP. Hokersar wetland, a Ramsar site in India, known as the "Queen wetland of Kashmir" and serves as a 12 breeding ground for migratory birds in Kashmir, an important wetland has been allowed to be adversely affected. Mining on the banks of its feeding channel and thereby disrupting the flow of water into the wetland will directly impact ecology of the area, livelihood of the people living around the wetland and the breeding ground for migratory birds.

(vi) District Survey Report (hereinafter referred to as 'DSR') was not prepared as per guidelines, as noted by JKEAC in the minutes of 87th meeting dated 02.03.2022. EAC has noted that the status of District Survey Report, Budgam where all the three components of project are located, was not formulated as per guidelines and needs revision for including replenishment data etc.

(vii) Para 7 (iii) of Environment Impact Assessment Notification dated 14.09.2006 (hereinafter referred to as 'EIA 2006') provides for preparation of DSR for sand mining or river bed mining and mining of other minor minerals. Before undertaking any mining activity, Mining Officer is required to prepare DSR. The objective of preparation of DSR enunciated in Appendix X of EIA Notification, 2006 is stated as under:

(viii) The requirement of preparation of DSR is also emphasized in Enforcement & Monitoring Guidelines for Sand Mining, 2020 (hereinafter referred to as 'EMGSM-2020'). Importance of DSR was highlighted by this Tribunal also in its judgment dated 08.12.2017 13 in Anjani Kumar vs. State of Uttar Pradesh & Ors., OA 557/2017 where Tribunal has said:

(ix) In Haripada Manna & anr. vs. District Collector, Balasore & ors., OA 63/2020 (EZ), Tribunal emphasized on the importance of DSR and reiterated that prior DSR before the grant of auction notices or mining leases is necessary. Therefore, no EC could have been granted to a project where DSR was not prepared as per Guidelines and EC which has been granted ignoring statutory provisions, is illegal.

13. Appellant has further said that after grant of EC, PP/respondent 4 has commenced mining operations in violation of condition no. 38 and 53 of conditions of EC in as much as it is using heavy machines which is prohibited and also undertaking mining in prohibited areas.

PP/respondent 4 has also failed to install CCTV cameras around mining sites to monitor the activity, therefore, mining operations are in violation of terms and condition of EC.

Tribunal's order dated 26.05.2022:

14. After considering the submissions advanced on behalf of appellant, Tribunal issued notice requiring SEIAA, J&K and PP to submit their responses.

Reply dated 26.06.2022 filed by SEIAA, J&K i.e., respondent 1:

15. It is a short reply. It is said in para 6 that appellant has suppressed material facts and misrepresented factual and legal position. What facts are suppressed and what is misrepresentation has not been stated/demonstrated. Further, reply on the merits of the matter, contained in para 1 to 5 is reproduced as under:

Further, on the re-sized mining block, the PP got a fresh NOC from the Irrigation Department stating that off-take points of irrigation khuls are beyond 200 meters and therefore, in line with the prescribed norms in the Sustainable Sand Mining Management Guidelines 2016 of the Ministry of Environment, Forests and Climate Change. (Annexure R-11). It was on this basis that the case was again considered by JKEAC in its 87th meeting on 02-03-2022 and accordingly Environmental Clearance was issued in favor of the Project Proponent. Pertinent to mention that the observations made by the JKEAC in its 81st meeting were based on the observations of features on Google 15 Images only provide a clue of an activity or phenomenon, the exactness on ground at a particular point of time is always subject to Ground Truth Verification (GTV). Further, the Geology and Mining Department J&K Had issued Fit for Mining Certificate for the re-sized mining block and also certified the feasibility and extraction potential on the basis of ground verification. (Copy of the same is annexed herewith as Annexure R-III). The decisions of the JKEIAA were based on these reports submitted by the PP.

3. That, the Hokersar Wetland Reserve is at a linear distance of more than 20 kms along the Nallah and at a radial distance of more than 14 kms from the mining site. However, exhibiting extreme caution, the JKEIAA had sought, an understanding duly attested by Magistrate 1st class from the PP to the effect that any ecological and hydrological damage if noticed in future due to mining activity, the costs of rehabilitation of the same, to be decided by the Wildlife Protection Dept., shall be borne by the project proponent. (Annexure R-IV).

4. That it is further submitted that the project proposal has been considered in light of the District Survey Report formulated by the Geology and Mining Department and the same is annexed herewith as (Annexure R-V). However, the same was required to be updated to include replenishment studies as per the procedure laid out in the Enforcement and Monitoring Guidelines for Sand Mining 2020. Therefore, while issuing the Environmental Clearance, JKEIAA reduced the total targeted mineral production of Block 4 from 811440 MTS to 34800 MT and also limited the depth of extraction to 1 meter in aggregate against 3 meter per annum as approved in Mining Plan).

5. That the answering respondents submits that the Environmental Clarence has been granted subject to the condition that the PP will not use heavy machinery including JCBs and if the project proponent violates any condition mentioned in the Environmental Clearance, the same should have been brought into the notice of answering respondent by the appellant at the first instance so that appropriate action under law could have been taken in the matter."

Reply dated 29.07.2022 filed by respondent 4 i.e., PP:

17. Para wise replies have been given by PP in its paragraphs 8 to 12, as under:

Preliminary submissions, and preceding paras be read as part of these paras."

Rejoinder dated 02.08.2022 filed by appellant:

18. Appellant has filed a joint rejoinder affidavit to the responses filed by respondent 1 and 4, but giving reply separately, as under:

Shaliganga Nallah is a tributary of Doodh Ganga and any mining activity in Shaliganga will also impact the water flow and quality to the Hokersar Wetland.

Copy of letter written from the Wildlife Warden, Wetlands Division, Kashmir to the District Mineral Officer, Geology & Mining Department dated 22.07.2022 is annexed herewith as ANNEXURE A-3.

14. That the No-Objection Certificate from the Wildlife Protection Department granted to the projects clearly mention that Shaliganga Nallah is a feeding channel to Hokersar Wetland Reserve. It was noted in the 81st meeting of JKEAC that the Shaliganga Nallah are:

It was also noted that, "the mining activity may be detrimental to natural flow and quality of the water flowing into Hokersar Wetland Reserve which is an internationally declared RAMSAR site and home to migratory avifauna."

15. That on this basis, the 81st JKEAC decided to reject the proposal. However, the Environmental Clearance has been granted despite this observation made by JKEAC. It is pertinent to mention that mining in 21 Shaliganga will have a direct impact on the Hokersar Wetland as it acts as a feeding channel for the wetland.

The project proposal was considered in light of the District Survey Report and the same was required to be updated to include replenishment studies

16. That the Respondent No. 1 has admitted that the District Survey Report is required to be updated to include replenishment studies as per the procedure laid out in the Enforcement and Monitoring Guidelines for Sand Mining- 2020. As per Respondent No. 1, since no replenishment studies for the District Survey Report were conducted, reduction in the targeted mineral production and limiting the depth of extraction of the mining block was directed.

17. That the action taken by the Respondent No. 1 in reducing the targeted mineral production and limiting the depth of extraction of the mining block is not adequate and in violation of the Enforcement & Monitoring Guidelines for Sand Mining issued by the MoEF&CC in January, 2020. As per the Guidelines, 2020, replenishment studies have to be conducted and be made a part of District Survey Report. The Guidelines, 2020 emphasises on the need to conduct replenishment studies, without which mining cannot be allowed. It states:

18. That the Guidelines, 2020 also mention that, "replenishment study should be conducted on regular basis" and makes them a prerequisite for starting any mining operation. Therefore, the mining in Shaliganga cannot start until replenishment studies are done and made part of the District Survey Report.

19. That the Guidelines also mention that the replenishment study as required under the SSMG-2016 and EMGSM-2020 needs to be undertaken prior to the mining lease auction or grant of Environmental Clearance in terms of para 5.1 of the EMGSM, 2020 which is reproduced below:

(Emphasis supplied)

20. That the Principal Bench of this Hon'ble Tribunal has vide Order dated 06.05.2022 in Raj Kumar v. State of Uttar Pradesh & Ors. (Original Application No. 140/2021) had directed that no mining lease auctions will be granted without a prior replenishment study and also directed that with regard to the leases already granted, no mining will be allowed until the replenishment study is completed. The relevant part is reproduced below:

mining operations in true sense. In all mining potential districts, environmental damage assessment be carried out and annual assessment reports placed in public domain on the websites of the Mining Department as well as the PCB. Compliance of SSMG, 2016 and EMGSM, 2020 and earlier directions of this Tribunal may be ensured by an effective monitoring mechanism."

(Emphasis supplied)

21. That this Hon'ble Tribunal in Anjani Kumar v. State of Uttar Pradesh vide Order dated 08.12.2017 had also emphasized on the importance of including replenishment studies in the District Survey Report, which is the first step before grant of mining leases. It was held:

(Emphasis supplied)

22. That in light of the Guidelines, 2020 and the Orders of this Hon'ble Tribunal prohibiting mining without adequate replenishment studies, mining in Shaliganga Nallah cannot be allowed to continue until replenishment studies are conducted.

Any violation of an Environmental Clearance condition should have been brought to the notice of Respondent No. 1 so that appropriate action under law could have been taken.

23. That the Appellant has put the information on mining activities being undertaken in violation of the Environmental Clearance conditions in Shaliganga in public domain by putting the same on social media as well as in the form of news articles in various English dailies. The Appellant had published about the same in an article in English daily, 'Greater Kashmir' titled 'Illegal River Mining: It's Catastrophic' reiterating the illegality of the mining taking place in Shaliganga.

Copy of the article in English daily, 'Greater Kashmir' titled 'Illegal River Mining: It's Catastrophic' is annexed herewith as ANNEXURE A-4.

24. It is submitted that no action was taken by the State Government or the answering Respondent to ensure compliance with the conditions of the Environmental Clearance.

25. That the violation of Environmental Clearance conditions is still continuing at the mining site even after service of this Appeal was made to Respondent No. 1. The project proponent has violated Specific Condition No. 3 by exceeding the permissible depth of mining i.e. maximum 1 metre. Specific Condition No. 3 states:

The Appellant had uploaded videos on social media showing people drowning into the water of Shaliganga where mining is taking place, thereby showing that the depth is more than 1 meter.

26. That the project proponent has also violated Specific Condition No. 38 by undertaking mining at night and beyond 7 PM. Specific Condition No. 38 of the Environmental Clearance clearly states that:

27. The project proponent has also violated Specific Condition No. 53 by the usage of heavy machinery such as JCBs:

28. The project proponent has also violated Specific Condition No. 56 and Specific Condition No. 65 by carrying out mining activity in flowing water and active channel area. Specific Condition No. 56 clearly states that mining activity will not be allowed in flowing water channel area. It states:

Specific Condition No. 65 states:

29. That the project proponent is also carrying out riverbed mining during the rainy season in violation of Sustainable Sand Mining Guidelines, 2016 which states, "No River bed mining should be permitted during rainy season".

30. That Respondent No. 1 was aware of the illegal mining and violation of Environmental Clearance conditions at least from the time the service of this Appeal was done to them and yet they have failed to 25 take any action with regard to it. The violations are continuing even when Respondent No. 1 was made aware of such violations.

b) Rejoinder to reply dated 29.07.2022 filed by respondent 4:

"31. That the Respondent No. 4 has erred in stating that the Appeal has been filed challenging only Environmental Clearance granted for Block 4 (Panzam Bridge to Trumbi Bagh). The above titled Appeal has been filed challenging three Environmental Clearances granted to Respondent No. 4 for extraction of rivebed minor mineral from three blocks (Block 1- Dreigam Bridge, Block 2- Banderpora Upstream and Block 4- Panzam Bridge to Trumbi Bagh) of Shaliganga Nallah.

32. That the Respondent No. 4 has raised the following grounds in their Counter-Affidavit:

33. That Respondent No. 4 has claimed that 25 metres distance has been left between the mining site and the embankment as per SRO 105 of Government of Jammu & Kashmir dated 31.03.2016 (Jammu & Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016), which is also Clear from the Evacuation Route Map of the Study Area annexed by Respondent No. 4 as Annexure A-1.

34. That the Jammu & Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 has been amended by SRO 267 dated 03.07.2017 wherein the prohibition on mining of any minor mineral has been reduced from 25 metres to 10 metres from any embankment. It is submitted that even 26 10 metres of space is also not left by Respondent No. 4 between the embankments and the mining area.

35. That the Google Earth snapshots already annexed as Annexure A-1 of this Rejoinder clearly show that the mining is being undertaken within 10 metres distance from the embankments as well.

36. That the Evacuation Map annexed by Respondent No. 4 does not make it clear how much distance between the mining site and the embankments has been left and how the provisions of Jammu & Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 are being complied with.

37. That mining is being undertaken within 10 metres distance from the embankments in complete violation of the Jammu & Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016.

That the grounds on which the first proposal was rejected were duly complied with in the second proposal on the basis of which the Environmental Clearance was granted

38. That Respondent No. 4 has stated that the grounds on which the first proposal was rejected in the 81st meeting of JKEAC have been complied with by Respondent No. 4. As per Respondent No.4, this was duly considered by JKEAC in its 87th meeting, on the basis of which the Environmental Clearances were granted. Respondent No. 4 has stated that the following were the issues that have been complied with by them and therefore the contention that earlier grounds of rejection were not considered by JKEAC is faulty:

39. That it is denied that the first proposal was rejected in the 81st meeting of JKEAC only the abovementioned two grounds. JKEAC had considered other factors as well in deciding to reject the proposal. These grounds were:

40. That therefore, all the grounds on which the proposal was rejected by the 81st meeting of JKEAC have not been complied with.

41. That with regard to categorization of land under Shamlaat category, the Hon'ble Supreme Court in State of Haryana v. Jai Singh & ors. (Civil Appeal No. 1680 of 2022) had held that land categorized as' Shamlaat land' will be for common purposes and would fall under the purview of the municipality:

(Emphasis supplied)

42. That the irrigation canal is located within a distance of 200 metres from the mining site, within about 10 metres distance. For example, in Panzan Shah Mohalla, the irrigation canal is running along the mining site well within a distance of 200 metres. The irrigation canal being located in such close proximity of Shaliganga will lead to breach of irrigation canal. Similar instances have taken place in Karnal District where villagers have alleged that illegal mining is leading to breach of Western Yamuna Canal. This is clear from the photographs already annexed as ANNEXURE A-2 of this Rejoinder.

43. That Respondent No. 4 has given an undertaking that the cost of rehabilitation of any damage done to the existing water course leading upto the Hokersar wetland in terms of its ecological and hydrological factors will be borne by Respondent No. 4. However, this does not solve the issue of silt accumulation and eutrophication of water in the Hokersar Wetland. Continuous mining operations are leading to constant damage to the ecology of the Hokersar Wetland. Same has also been acknowledged by the 28 Wildlife Warden, Wetlands Divisions, Kashmir already annexed as ANNEXURE A-3 of this Rejoinder.

44. That therefore, the conditions that Respondent No.4 has complied with do not serve the purpose of preservation of the ecology of the area.

That since the Environmental Clearance was granted for mining upto 1 meter depth only, the requirement of replenishment data which has to be made part of the District Survey Report has been taken care of by the JKEAC itself

45. That inclusion of replenishment data in the District Survey Report is a mandatory requirement as per the Sustainable Sand Mining Guidelines, 2016, Enforcement & Monitoring Guidelines for Sand Mining issued by the MoEF&CC in January, 2020 and the Order of this Hon'ble Tribunal in Raj Kumar v. State of Uttar Pradesh & Ors. (Original Application No. 140/2021).

46. That permission of mining depth only upto 1 metre does not change the requirement of including replenishment studies in the District Survey Report, without which no mining operations can start. Neither the Guidelines issues by MoEF&CC in 2016 or 2020 nor the Order of this Hon'ble Tribunal provide for such an exemption to be applied if the mining depth is upto 1 metre. Therefore, the mining operations being conducted by Respondent No. 4 are illegal and violative of the Guidelines and the Order of this Hon'ble Tribunal.

Heavy machinery such as JCBs and loaders were being used for the purpose of approach making since big sized boulders lying in the approach could not be removed manually

47. That Respondent No. 4 has partly admitted to heavy machinery such as JCBs and loaders being used in the mining operations.

48. That Respondent No. 4 is not only using heavy machinery for removing big boulders from the approach but is also using them for conducting mining operations in the stream. It is clear from the photographs taken by the Appellant that clearly show that smaller bajri and sand is also being taken out from the middle of the Shaliganga with the help of JCBs and being transferred into transporting trucks.

Photographs showing bajri and sand being taken out from the middle of the Shaliganga with the help of JCBs are annexed herewith as ANNEXURE A-5.

49. That even so, the Environmental Clearances do not provide for the usage of JCBs for taking out big boulders and emphasized on mining being done manually. Therefore, it is a clear violation of Specific Condition No. 53 of the Environmental Clearances.

That mining operations have only been undertaken during day light from 8 AM to 6 PM 29

50. That the Appellant has photographs to show that mining operations are continuing into the night, beyond the permissible timings given in the Environmental Clearances.

Photographs showing mining operations taking place beyond the permissible time are annexed herewith as ANNEXURE A-6. That Respondent No. 4 is not involved in illegal mining

51. That the EAC in the 81st meeting had noted that heavy illegal mining activity was observed in and around the mining block as per features on Google image of October, 2021. The EAC had also observed that the mining block on the latest Google Image has already depleted to a large extent due to heavy illegal mining and hardly any material is available for exploitation without endangering the environmental setting of the nalla.

52. That on the basis of these, the first proposal was rejected. Therefore, the EAC had not only noted that illegal mining is continuing but also that the area is already depleted to a large extent and hardly any material is available for exploitation without endangering the environmental setting of the nalla. Respondent No. 4 has failed to acknowledge the same and no steps have been taken by either Respondent No. 1 or Respondent No. 4 regarding the already depleted mining area."

the statutory provisions have not been followed and observed in words and spirit and also in the light of the judgment of Supreme Court and this Tribunal, hence ECs in question are liable to be quashed. He further contended that use of heavy machines like JCB etc., are admitted in carrying out mining operations pursuant to questioned ECs. If boulders were so heavy that the same cannot be loaded or removed without heavy machines, the question of mining of such boulders without such machines i.e., picking up from the river bed or embankment was not possible.

Therefore, it is evident that the mining undertaken by PP is in utter violation of conditions of EC and hence also mining activities by 30 respondent 4 i.e., PP in the present Appeal, should be restrained and appropriate environmental compensation should be imposed for causing damage to environment and for restoration.

20. Per contra, Learned Counsel appearing for PP stated that EC Committee itself has taken care by permitting mining only upto one meter depth and, therefore, it cannot be said that mere non-preparation of DSR as per guidelines or replenishment data would vitiate the grant of EC. He also relied on the stand taken in its reply dated 29.07.2022.

21. None has appeared on behalf of respondents 1, 2 and 3, therefore, we do not have the advantage of the stand taken by the said authority except what has been stated by SEIAA, J & K in its written reply dated 26.06.2022 and we shall consider the same while considering issues formulated above, on merit.

Samhitas, Brahmanas, Aranyakas, Upanisads/Vedantas have their genesis to 'shruti' while 'smriti' has given rise to-

A) Vedangas (limbs of Vedas) -

(iii) Vyakarna i.e., grammar (mouth of Vedas)

(iv) Nirukta i.e., etymology (ears of Vedas)

(v) Chanda i.e., Vedic metrics (feet of Vedas) 32

(vi) Jyotisha i.e., Astrology/astronomy (Eyes of Vedas) B) Itihas (Epics) i.e., Ramayana and Mahabharata C) Upveda - (i) Ayurveda (Medicine) (ii) Dhanurveda (Archery) (iii) Gandharvaveda (Music and Dance) and (iv) Sthapatyaveda (Architecture) D) Puranas E) Upang or Shad Darshan - (i) Sankhya (ii) Yoga (iii) Nyaya (iv) Vaisheshika (v) Mimansa and (vi) Vedanta F) Tantra - (i) Agamas and (ii) Nigamas

25. Various metals like gold, copper, silver etc. are referred to in Vedic literature starting from Rigveda, Atharvaveda etc. In fact, Vedic literature has talked about 'environment' since inception and when it talks of creation of the Universe, nature/environment obviously has been referred to in great detail which we do not find in any other old literature.

26. In Shrimad Bhagavatam (hereinafter referred to as 'SB') Chapter 2.5 and 3.10, deals with the process of creation and says that there are three basic material modes (qualities) of nature, mode of goodness (Sattva), mode of passion (Rajah) and mode of ignorance (Tamah). (SB Chapter 2.5 (18).

27. There are nine phases in creation besides the one which naturally occurs due to the interaction of these three modes. Eternal time is the primeval source of interaction of three modes of material nature. (SB Chapter 3.10 (14 and 11).

28. Of nine creation, the first one is Mahat-tattva which is the result of incarnation of Supreme God (known as Karanarnavasayi Visnu).

Then time is manifested and in course of time, three modes or qualities 33 appear. In the course of time, three qualities interact resulting in further creation. (SB Chapter 2.5 (22) and 3.10 (15).

29. In second phase of creation, the false ego (Aham) is generated in which the material ingredients, material knowledge and material activities arise. (SB Chapter 2.5 (23) and 3.10 (15).

30. In third phase of creation, sense perceptions and elements are created and details thereof are:

31. We can say that transformation took place in the following order: ether (or sky) → gas (air) → fire → liquid → solid. (SB Chapter 2.5 (25-29), Chapter 3.10 (15), Bhagavat Gita 10.8).

32. Fourth creation is creation of knowledge and of working capacity.

This can be understood as law of nature. (SB 3.10 (16).

33. Fifth creation is of controlling deities by the interaction of the mode of goodness, of which mind is the sum total. SB 3.10 (17)

34. Sixth creation is the ignorant darkness of the living entity, by which master acts as a fool. SB 3.10 (17)

35. Seventh phase of creation is that of the immovable entities, like creepers, the trees with and without flowers, pipe plants etc. They are of 6 kinds. SB 3.10 (19)

36. Eighth phase of creation is that of lower species of life, like cow, goat, ass, mule jackal, tiger, birds etc. They are not intelligent species. (SB 3.10 (21-25)

37. Ninth phase of creation is the creation of human beings. In human race, mode of passion is very prominent. SB 3.10 (26)

38. Tenth creation, which naturally occurs due to interaction of three modes are the creation of the demigods. They are of eight varieties: (i) Demigods, (ii) Forefathers, (iii) Asuras, or Demons, (iv) Gandharvas and Apsaras, or angels, (v) Yaksas and Raksasas, (vi) Siddhas, Caranas and Vidyadharas, (vii) Bhutas, Pretas and Pisacas, and (viii) Superhuman beings, Celestial Singers, etc. All are created by Brahma, the creator of the universe. SB 3.10 (28-29)

39. Theory of creation is incomplete without estimating the age, shape and size of universe. Vedas say that our universe is about 155.52 trillion human years old and its total life span is 311.04 trillion human years (which is equivalent to 100 years of Brahma). In SB Chapter 5.20 (38), diameter of the universe is quoted as 500,000,000 yojanas (1 yojanas is equal to approximately 9 miles, so it is 4.5 trillion miles). The shape of 35 the universe is egg shaped (Brahmanda = Brahma+Anda). It is interesting to see that distance travelled by light in one day is 16 trillion miles which is equal to the perimeter of (vedic) universe.

40. European authors have not given requisite recognition to Indian Vedic literature though with the passage of time, things are in continuous evolution and changes but the fact remains is that Indian Vedic literature show that metals, precious stones, minerals were studied in depth in this country thousands of years back and prior to commencement of B.C. Even, in metallurgy also, Indians were pioneers during the ancient and medieval periods. This is now well established and reiterated by the price discovery due to excavation of pre- Harappan ancient civilization in Indian sub-continent.

41. Earlier, the belief of Indian history was only from the period of Gautama Buddha but then excavation at Mohenjo-Daro and Harappa put clock back to 3000 B.C. Later on, Archaeologists discoveries of archaeological sites of Kalibangan etc., on the extinct river of Sarasvati has taken clock back to much further period and the archaeological discoveries at Mehargarh (in Baluchistan, Pakistan) has taken clock back to almost 7000 B.C.

42. In brief, it can be said that mines, mining, minerals, metals all constitute natural assets/wealth well known to ancient India and being exploited since ancient period. Mining activities since directly result in taking away something from the nature, it has its direct impact on environment. However, earlier due to lesser pressure of population and other concerned factors, regulated mining in terms of preservation and protection of environment was not given much attention though Vedic scriptures clearly said that one should not take more than what it can 36 return to nature and, thereby, the very concept of protection of nature was embedded in the ancient literature. Still mining activities were not so regulated.

43. India has a total geographical area of about 328 million hectares out of which mining lease area (except that fuel, atomic and minor minerals) as on 31.03.2014 constituted around 0.14%. The mining condition, it appears have undergone some changes more particularly, due to conscious action taken for protection of environment by Statutory Regulators etc. in as much as it is evident from the information published by Ministry of Mines. The geographical area for mining leases has reduced to 3,25,876.20 Ha which is approximately 0.10% of the total geographical area as on 31.03.2018 and this has further reduced to around 3,12,645.72 Ha which is approximately 0.09% of the total geographical area as on 31.03.2020.

44. Minerals are valuable natural resources that are finite and non-

renewable. They constitute vital raw materials for many basic industries and are a major resource for development. As we have seen history of mineral extraction in India dates back to the days of pre-Harappan civilization, the wide availability of minerals in the form of abundant rich reserves and the eco-geological conditions made it very conducive for the growth and development of mining sector in India. In India, mining sector is one of the core sectors of economy, providing basic raw materials to many important industries like power generation (thermal), iron and steel, cement, petroleum and natural gas, petro-chemicals, fertilisers, precious & semi-precious metals/stones, electrical & electronics equipment, glass and ceramics, construction activities etc. 37

45. In National Mineral Policy 2008, Government of India, Ministry of Mines while observing that minerals are valuable natural recourse being vital raw material for infrastructure, capital goods and basic industries, as a major resource for development, extraction and management of minerals has to be integrated into overall strategy of country's economic development. In para 2.3, it is said that mining is closely linked with forestry and environment issues. Mining activity is an intervention in environment and has potential to disturb ecological balance of an area.

However, needs of economic development make extraction of nation's mineral resources an important priority. Therefore, a framework of "sustainable development" should be designed which may take care of bio-

diversity issues to ensure that mining activity takes place along with suitable measures for restoration of ecological balance.

46. In National Mineral Policy, 2019, under the head of 'Protection of Environment' in para 6.10, it is said, "6.10 Protection of Environment Extraction of minerals impacts other natural resources like land, water, air and forest. It is necessary to take a comprehensive view to facilitate the choice or order of land use keeping in view the needs of development as well as needs of protecting the forests, environment and ecology and to conserve biodiversity of areas to be mined.

Prevention and mitigation of adverse environmental effects due to mining in accordance with the latest scientific norms and modern afforestation practices shall form integral part of mine development strategy in every instance. All mining shall be undertaken within the parameters of a comprehensive Sustainable Development Framework which will ensure that environmental, economic and social considerations are integrated effectively in all decisions on mines and minerals issues. The guiding principle shall be that a miner shall leave the mining area in an ecological shape which is as good as it was before the commencement of mining or better with least impact on flora and fauna of the area.

Mining operations shall not ordinarily be taken up in identified ecologically fragile and biologically rich areas. The Government shall identify such areas that are critically fragile in terms of ecology and declare as 'in-violate areas' or 'no-go areas' out of bounds for mining. In order to achieve a better semblance between mineral based development and environment, there shall be an endeavour to create 38 Exclusive Mining Zone (EMZ) with prior in-principle statutory clearances demarcated for the mineralized belt/zone to avoid conflict of interest and to curtail delay in commencement of mining operation.

With a view to reduce pollution, carbon footprint and operational costs, use of renewable sources of energy at mining sites will be encouraged through appropriate incentives. Appropriate sensitization training about environmental issues will be provided to all workers involved in mining operations."

Legislation relating to mines and minerals:

48. No principal enactment was made under the aforesaid Entry but in 1939, Mining Concession (Central) Rules, 1939 were promulgated by Government of India for regulating grant of prospecting licenses and mining leases in Chief Commissioner's Provinces and British Baluchistan.

Some State Governments like Assam, Bihar, Bombay and United Provinces, also framed their own rules for grant of mineral concessions.

49. During Second World War, need for Central regulation of mines and oilfields and mineral development was felt and highlighted. Certain key minerals had to be controlled under Defence of India Act, 1939 . The first enactment, therefore, came after independence i.e., Mines and Minerals (Regulation and Development) Act, 1948 and it came into force on 25.10.1949. It was a Central Legislature. In exercise of power contained in Section 5 of the said Act, Central Government made Mineral Concession 39 Rules, 1949 for regulation of grant of prospecting licenses and mining leases for mineral other than petroleum and natural gas. The Rules came into force on 25.10.1949.

50. On 26.01.1950, when Constitution of India was enforced, the provisions relating to mines and minerals were made in Entry 54 (List I) and Entry 23 (List II) of Seventh Schedule of the Constitution which read as under:

51. In 1957, Parliament decided that Regulation and Development of Mines and Minerals should feature by themselves in a separate Act.

Accordingly, Parliament enacted Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as ' MMRD Act, 1957 ') on 28.12.1957. Act of 1948, as such, was not repealed but vide Section 32 of MMRD Act, 1957, Act of 1948 was amended in the manner set out in Schedule III to MMRD Act, 1957 so as to remove from Act 1948 all references to mines and minerals and confine it to oilfields and mineral oil resources. Title of Act 1948 was also amended suitably.

52. MMRD Act, 1957 came into force on 01.06.1958.

53. Though, in the context of environment, mining activities as such were not regulated by any specific legislation relating to environment but Supreme Court in State of Tamil Nadu vs. Hind Stone , 1981 (2) SCC 205 observed that rivers, forests, minerals and such other sources constitute a nation's natural wealth. These resources are not be frittered 40 away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation. It is recognised by Parliament. Parliament has declared that it is expedient in the public interest that the Union should take under its control regulation of mines and development of minerals and hence enacted MMRD Act, 1957 . Public interest which induced Parliament to make the declaration contained in Section 2 of MMRD Act, 1957, has naturally to be the paramount consideration in all matters, concerning regulation of mines and development of minerals.

Parliament's Policy is clearly discernible from the provisions of MMRD Act, 1957 . It is conservation and prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the community.

54. Issues I and II: Now coming to the merits of the issues, in our view, issues I and II are inter-connected and both can be dealt with together.

Both these issues have to be returned in the light of statutory enactments/ provisions/ directions relating to environment particularly, relating to grant of mining permission/ clearance/ consent/ NOC.

55. The relevant statutory laws relating to environment, applicable in this Appeal are Water Act 1974, Air Act 1981 and EP Act 1986. If any person is discharging effluent in water or air which is likely to cause pollution or may affect environment and/or cause or likely to cause pollution to air and/or water during execution of project/activities, the provisions under Water Act 1974 and Air Act 1981 provide that before doing so, consent has to be obtained from respective State PCBs.

56. Coming to Environment (Protection) Act, 1986 (hereinafter referred to as ' EP Act, 1986 '), the relevant provisions, we find, are under 41 Environment Impact Assessment Proceedings covered by Environmental Impact Assessment Notification, 1994 (hereinafter referred to as 'EIA 1994') and EIA 2006. For the present case, EIA notifications dated 27.01.1994 and EIA 2006 are relevant.

EP Act, 1986 :

63. There were three Schedules in EIA 1994. Schedule II contained format of application which was to be submitted by the person who is applying for grant of EC. Schedule III contained composition of Expert Committees for environmental impact assessment.

64. Para 2 of EIA 1994 talked of requirements and procedure for seeking EC of projects and reads as under:

Provided further, that for pipeline projects, Environmental Impact Assessment report will not be required:

The assessment shall be completed within a period of ninety days from receipt of the requisite documents and data from the project authorities and completion of public hearing and decision conveyed within thirty days thereafter.

The clearance granted shall be valid for a period of five years for commencement of the construction or operation of the project.

No construction work, preliminary or otherwise, relating to the setting up of the project may be undertaken till the environmental and site clearance is obtained.

IV. In order to enable the Impact Assessment Agency to monitor effectively the implementation of the recommendations and conditions subject to which the environmental clearance has been given, the project authorities concerned shall submit a half yearly report to the Impact Assessment Agency. Subject to the public interest, the Impact Assessment Agency shall make compliance reports publicly available.

V. If no comments from the Impact Assessment Agency are received within the time limit, the project would be deemed to have been approved as proposed by project authorities."

65. In Schedule I, which contains list of projects requiring EC from Central Government, Item 20 related to 'mining projects/activities. Para 3 provided the cases in which EIA 1994 provisions would not apply and reads as under:

Explanation:

66. Para 4 said that if any information is found false etc., the decision or recommendation if any, would be rejected and if approval granted, would be revoked.

67. In order to complete the evolution of EIA 1994, we may mention here that it was amended by several notifications i.e., dated 04.05.1994, 10.04.1997, 27.01.2000, 13.12.2000, 01.08.2001, 21.11.2001, 13.06.2002, 28.02.2003, 07.05.2003, 04.08.2003, 22.09.2003 and 07.07.2004. As per the ultimately amended EIA 1994, Schedule I got a list of 32 projects in all and after Schedule III, there was a Schedule V which contains procedure for public hearing.

68. MoEF felt that EIA 1994 needed a complete overhauling.

Consequently, in exercise of powers under Rule 5(3) of EP Rules, 1986, a draft notification was published in the Gazette of India (Extraordinary) dated 15.09.2005, inviting objections and suggestions from all persons likely to be affected thereby, within a period of 60 days from the date on which copies of gazette containing draft notifications were made available to the public. The said draft notification contained provisions for imposing certain restrictions and prohibition on new projects or activities or on the expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the schedule to the draft 47 notification, being undertaken in any part of India, unless prior EC has been accorded.

69. Copies of draft notification were made available to the public on 15.09.2005. After considering objections and suggestions received in response to the above draft notification, by the Government of India, notification dated 14.09.2006 was issued in exercise of powers conferred by Section 3(1) and (2) (v) of EP Act, 1986 read with rule 5(3)(d) of EP Rules, 1986, in supersession of EIA 1994, except in respect of things done or omitted to be done before such supersession.

70. Preamble of notification dated 14.09.2006 says that Central Government hereby directs that on and from the date of publication of the notification, the required construction of any projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to the notification dated 14.09.2006 entailing capacity addition with change in process and or technology, shall be undertaken in any part of India only after obtaining prior EC from Central Government or as the case may be, by State Level Environment Impact Assessment Authority, duly constituted by Central Government under section 3(3) of EP Act, 1986, in accordance with the procedure specified in the notification dated 14.09.2006. There were some typing mistakes in EIA 2006, as initially published, hence a corrigendum was issued vide notification dated 13.11.2006 and we have read EIA 2006, here at, as corrected by the said corrigendum.

71. Para 2 of EIA 2006 imposes condition of requirement of prior EC and reads as under:

72. Para 3 talks of constitution of State Level Environment Impact Assessment Authority (SEIAA).

73. Para 4 of EIA 2006 categorizes projects and activities and reads as under:

74. Paras 5, 6 and 7 concerned with the procedure of grant of prior EC and read as under:

6. Application for Prior Environmental Clearance (EC):

7. Stages in the Prior Environmental Clearance (EC) Process for New Projects:

III. Stage (3) - Public Consultation:

Confidential information including non-disclosable or legally privileged information involving Intellectual Property Right, source specified in the application shall not be placed on the web site. The regulatory authority concerned may also use other appropriate media for ensuring wide publicity about the project or activity. The regulatory authority shall, however, make available on a written request from any concerned person the Draft EIA report for inspection at a notified place during normal office hours till the date of the public hearing. All the responses received as part of this public consultation process shall be forwarded to the applicant through the quickest available means.

(vii) After completion of the public consultation, the applicant shall address all the material environmental concerns expressed during this process, and make appropriate changes in the draft EIA and EMP. The final EIA report, so prepared, shall be submitted by the applicant to the concerned regulatory authority for appraisal. The applicant may alternatively submit a supplementary report to draft EIA and EMP addressing all the concerns expressed during the public consultation.

IV. Stage (4) - Appraisal:

7(ii). Prior Environmental Clearance (EC) process for Expansion or Modernization or Change of product mix in existing projects:

"8. Grant or Rejection of Prior Environmental Clearance (EC):

76. Para 9 deals with the validity of EC, i.e., the tenure etc. and reads as under:

77. Para 10 talks of monitoring of post EC stages and says:

yearly compliance reports in respect of the stipulated prior environmental clearance terms and conditions in hard and soft copies to the regulatory authority concerned, on 1st June and 1st December of each calendar year.

(ii) All such compliance reports submitted by the project management shall be public documents. Copies of the same shall 56 be given to any person on application to the concerned regulatory authority. The latest such compliance report shall also be displayed on the web site of the concerned regulatory authority."

78. A prior EC granted to a project or activity is transferable, subject to certain conditions. This aspect is dealt with in para 11 as under:

79. Para 12 is a transitional provision dealing with the pending cases under EIA 1994 and said:

80. EIA 2006, initially contained a Schedule and six Appendixes.

Appendix I is a format of Form-1 and Appendix II is a format of Form-1A which are referred in para 6 of EIA 2006. These are the formats of application to be submitted by a proponent for grant of prior EC. Appendix III contains a chart giving generic structure of environmental impact assessment document with reference to para 7 and Appendix III A provides contents of summary environmental impact assessment and it is 57 also in reference to para 7 of EIA 2006. Appendix III has 12 items comprising EIA structure and the contents thereof are also separately detailed as under:

skilled and unskilled 59 • Other tangible benefits 9 Environmental Cost • If recommended at the Scoping stage Benefit Analysis 10 EMP • Description of the administrative aspects of ensuring that mitigative measures are implemented and their effectiveness monitored, after approval of the EIA 11 Summary & Conclusion • Overall justification for implementation (This will constitute the of the project summary of the EIA Report) • Explanation of how, adverse effects have been mitigated 12 Disclosure of • The names of the Consultants engaged Consultants engaged with their brief resume and nature of Consultancy rendered

81. Summary of environmental impact assessment should contain details given in Appendix III A of EIA report, on seven aspects, as under:

82. Appendix IV, with reference of para 7, provides procedure for conduct of public hearing.

83. Appendix V, with reference to para 7, provides procedure for appraisal of Environment Impact Assessment Report and other documents and talks of following steps:

84. Appendix VI, with reference to paragraph 5 of EIA 2006 gives composition of sector/project specific Expert Appraisal Committee for category A projects and the State/UT Level Expert Appraisal Committees for category B projects to be constituted by Central Government.

85. Schedule gives the list of projects or activities which would require prior EC and covers the following projects/activities:

86. For the purpose of present case, we are concerned with Item 1(a) of Schedule which deals with 'mining of minerals' and initially read as under:

87. At the end of the Schedule, there is a note containing certain conditions as 'General and Specific Conditions' and read as under:

88. EIA 2006 has been amended for umpteen times and upto July 20, 2022, there are more than 75 amendments in total but all are not relating to Item 1(a) or to the various conditions stated in paras 1 to 12 of EIA 2006. Hence, we are referring hereinafter only such amendments whereby changes were made in para 1 to 12 or addition of paragraphs made in EIA 2006 and/or in the Schedule, Item 1(a), or any such amendment which is relevant for the project/activities under Item 1(a), as under:

c) In para 7(i) (III) relating to Stage (3) after sub-clause (c), the following was inserted:

d) In para 10 clause (i) was renumbered as (ii) and before such renumbered (ii), a sub-para (i)(a) and (b) was inserted as under:

e) In the Schedule, General Condition was substituted as under:

f) Amendment was also made in Appendix I whereby Form-1 item (I) relating to Basic Information, was substituted by a new format and in Appendix IV the procedure for conduct of public hearing was completely substituted.

g) In Appendix V, para 3 was substituted as under:

B. Notification dated 04.04.2011 published in Gazette of India Extraordinary dated 06.04.2011:

b) In para 7, sub-para II, Stage (2), clause (i) was amended by substituting certain words as under:

group of Expert Appraisal Committee or State level Expert Appraisal Committee concerned only if considered necessary by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, Terms of Reference suggested by the applicant if furnished and other information that may be available with the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. All projects and activities listed as Category 'B' in item 8(a) of the schedule (building and construction projects) shall not require Scoping and will be appraised on the basis of Form 1/ Form 1A and the conceptual plan."

c) In the schedule, Item 1(a), the existing entry was substituted by the following:

In column (5), for the entries, the following entries shall be substituted, namely:-

C. Notification dated 25.01.2012 published in Gazette of India Extraordinary of the same date:

89. Some amendments were made in EIA 2006 in view of the judgments of Supreme Court rendered in the meantime, therefore, it is necessary to refer such judgments here at.

90. In Deepak Kumar & Others vs. State of Haryana & Others (2012)4SSC629 (decided on 27.02.2012), effect of mining of minor minerals and its regulation was considered in the context of auction notices issued by Department of Mines and Geology, Government of Haryana. Supreme Court, however, extended its scope of direction, Pan India. Background facts are, that auction notice dated 3.6.2011, issued by Department of Mines and Geology, Haryana proposing to auction extraction of minor minerals, boulders, gravel and sand quarries of an area, not exceeding 4.5 ha in district of Panchkula, was challenged.

Further, auction notices dated 08.08.2011, in the district of Panchkula, Ambala and Yamuna Nagar exceeding 5 ha and above, quarrying minor mineral, road metal and masonry stone mines in the District of Bhiwani, stone and sand mines in the district of Mohindergarh, slate stone mines in the district of Rewari, and also in the districts of Kurukshetra, Karnal, Faridabad and Palwal, with certain restrictions for quarrying in the riverbeds of Yamuna, Tangri, Markanda, Ghaggar, Krishnavati River basin, Dohan River Basin etc., were also challenged. It was also brought to the notice of Supreme Court that similar illegal mining is going on in various districts of Rajasthan and Uttar Pradesh. It was pointed out that under EIA 2006, EC is required only when mining is permitted in an 68 area not less than 5 ha. Auction notices permitting mining in area less than 5 ha were challenged on the ground that in order to escape from environment study under EIA 2006, bigger areas have been divided in smaller areas of less than 5 ha and that is how illegal mining is being permitted causing damage to environment. Supreme Court noticed the stand taken by MoEF in its affidavit dated 23.11.2011 that where mining area is homogenous, physically proximate and identifiable piece of land of 5 ha or more, it should not be broken into smaller sizes to circumvent EIA 2006. There was a Committee of Minor Minerals which had recommended minimum lease size of 5 ha for minor minerals for undertaking scientific mining for the purpose of integrating and addressing environmental concerns. Court said that minor minerals, boulders, gravel and sand quarries etc., in the places notified in auction notices, including the riverbeds of Yamuna, Tangri, Markanda, Ghaggar, Krishnavati River basin, Dohan River Basin etc., would result in environmental degradation and threat to bio-diversity, damage to riverine vegetation, cause erosion, pollute water resources etc. There was nothing on record to come to otherwise conclusion. It further shows that sand mining on either side of river upstream and instream, is one of the causes for environmental degradation and also threat to biodiversity over the years; India's rivers and riparian ecology had been badly affected at alarming rate due to unrestricted sand mining which has caused damage to ecosystem of rivers and safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the riverbeds. It would also affect fish breeding and migration, spells disaster for conservation of many bird species, and had increased saline water in rivers. Commenting on the loss to the environment due to mining of minerals within or near streambeds or inside streambeds, Court observed, that extraction of alluvial material from within or near a streambed 69 has direct impact on 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. If these habitat characteristics are altered, the same can have deleterious impact on both, instream biota and the associated riparian habitat. It is true that demand for sand had continued and would continue to increase, day by day, due to ongoing construction of new infrastructures and expansion of existing ones. It is continuous process, placing immense pressure on the supply of sand resource. This has, and would, encourage mining activity which are bound to go on, legally or illegally, without any restriction. Lack of proper planning and sand management cause disturbance of marine ecosystem and would upset, the ability of natural marine processes to replenish the sand. Court expressed its anguish in the manner auction notices which were published by State of Haryana, permitting quarrying, mining and removal of sand from upstream and instream 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. This may also lead to bed degradation and sedimentation having a negative effect on the aquatic life. Some of the rivers mentioned in the auction notices are on the foothills of fragile Shivalik Hills. Shivalik Hills are the source of rivers like Ghaggar, Tangri, Markand, 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 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 river swells up into a raging torrent, 70 notorious for its devastating power, as also River Yamuna. Court found that without conducting any study on the possible environmental impact, on/in the riverbeds, and elsewhere, the auction notices were issued. Court said that, when extraction of alluvial material within or near a riverbed has an impact on 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 extraction is in blocks of less than 5 ha, separated by 1 km, since their collective impact may be significant, hence the necessity of a proper environmental assessment plan. MoEF brought to the notice of Court that it had come across several instances across the Country regarding damage to lakes, river beds and ground water leading to drying up of water beds and causing water scarcity on account of quarrying/mining leases and mineral concessions granted under rules, by Provincial Governments. State Government paid less attention on environmental aspect of minor minerals on the pretext that area was small but ignored the fact that collective impact in a particular area, over a period of time, was or would be significant. For taking note of these aspects, MoEF constituted, a Core Group under Chairmanship of Secretary (Environment and Forest) to look into the environmental aspects associated with mining of minor minerals, vide order dated 24.03.2009. The Core Group considered matter on following aspects: (i) Need to relook the definition of minor mineral, (ii) Minimum size of lease for adopting eco-friendly scientific mining practices,

(iii) Period of lease, (iv) Cluster of mine approach for addressing and implementing EMP in case of small mines, (v) Depth of mining to minimise adverse impact on hydrological regime, (vi) Requirement of mine plan for minor minerals, similar to major minerals and, (vii) Reclamation of mined out area, post mine land use, progressive mine closure plan etc. The Core Group examined the matter and submitted a Draft report to MoEF 71 which was considered and discussed on 29.01.2010 and, thereafter, final report was circulated to all the State Governments vide MoEF's DO letter dated 01.06.2010. The Ministry of Mines, Government of India also prepared draft rules called "Minor Minerals (Conservation and Development) Rules 2010", and also sent communication dated 16.05.2011, called "Environmental Aspects of Quarrying and of Minor Minerals-Evolving of Model Guidelines" along with a draft model guideline, calling for inputs, before 30.06.2011. In view of above, Court noticed that it is absolutely necessary to have an effective frame work of mining plan which will take care of all environmental issues, evolve a long term rational and sustainable natural resource base and also bio assessment protocol.

Quarrying of river sand is an important economic activity of the Country with river sand, forming a crucial raw material for infrastructural development and construction industry, but excessive instream sand and gravel mining causes degradation of rivers. Instream mining lowers the stream bottom of rives which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes deepening of rivers which may result in destruction of aquatic and riparian habitats as well.

Extraction of alluvial material from within or near a streambed has a direct impact on stream's physical habitat characteristics. Sand mining, therefore, may have an adverse effect on bio-diversity as loss of habitat caused by sand mining will affect various species of flora and fauna and may also destabilise soil structure of river banks and often leaves isolated islands.

91. In these circumstances, Supreme Court said that Government of India's recommendations made in March 2010 followed by Model Rules 2010 must be given effect so as to inculcate spirit of Article 48(A) , Article 51 (A)(g) read with Article 21 of Constitution. Court, 72 therefore, issued directions to all States and Union Territories, MoEF and Ministry of Mines to give effect to the recommendations made by MoEF in its Report of March 2010 and the model guidelines framed by Ministry of Mines, within a period of six months from the date of judgment i.e., 27.02.2012 and submit compliance. Court also directed Government of India to take steps to bring into force Minor Minerals Conservation and Development Rules, 2010 at the earliest.

Various State Governments and Union Territories were also directed to take steps to frame necessary rules under Section 15 of MMRD Act, 1957, taking into consideration recommendations of MoEF in its Report of March 2010 and Model Guidelines framed by Ministry of Mines, Government of India.

92. The details of recommendation made by MoEF are reproduced in para 19 of the judgment and key recommendations contained in MoEF's DO letter dated 01.06.2010 are mentioned in para 22 of judgment.

Supreme Court specifically directed that lease of minor minerals including renewal of an area of less than 5 ha would be granted by concerned authorities only after getting EC from MoEF.

93. Another matter came up before Supreme Court in Goa Foundation vs. Union of India & Others , (2014)6SCC590. Relying on interim report dated 15.03.2012 submitted by Justice Shah Commission to Ministry of Mines, Government of India recording its findings in respect of illegal Mining of iron ore in violation of Forest (Conservation) Act, 1980 (hereinafter referred to as ' FC Act 1980'), MMDR Act, 1957 , Mineral Concession Rules 1960 (hereinafter referred to as 'MC Act, 1960'), EP Act, 1986 , Water Act, 1974 , Air Act, 1981 and Wild Life (Protection) Act, 1972 (hereinafter referred to as 'WLP Act, 1972'), Goa Foundation came to Court by filing Writ Petition under article 32 of the Constitution, in 73 Supreme Court and made a prayer that direction be issued to the Respondents to prosecute all those who have committed offences under different laws and are involved in pilferage of State revenue through illegal mining activities in State of Goa, including public servants who have aided and abated the offences. Goa Foundation also prayed that an independent authority be appointed with full powers to take control, supervise and regulate mining operations in State of Goa and to ensure implementation of laws. Lastly, Goa Foundation also prayed for some incidental and consequential reliefs. Entertaining Writ Petition, Supreme Court on 05.10.2012, issued notice directing Central Empowered Committee to submit report on the issues raised in the Writ Petition. Supreme Court further directed that, till further orders, all mining operations in the leases identified in the report of Justice Shah Commission, transportation of iron ore and manganese ore from those leases, whether lying at the mine-head or stockyards, shall remain suspended, as recommended in the said report. Simultaneously, some mining lessees of State of Goa and Goa Mining Association had filed Writ Petition in Bombay High Court, (Goa Bench), seeking a declaration that report of Justice Shah Commission is illegal. They also prayed to quash the order issued by State Government, suspending mining operation in State of Goa, pursuant to the aforesaid report. MoEF's order dated 14th September, 2012, directing to keep Environmental Clearances to mines, in State of Goa, in abeyance, was also sought to be quashed. On the application moved before Supreme Court, Writ Petitions filed before Bombay High Court, were transferred to be heard in Supreme Court, along with Writ Petition (Civil) No. 435/2012 filed by Goa Foundation. Some Background facts, giving rise to the above matter are, that prior to 19.12.1961, when Goa was a Portuguese territory, the then Government granted mining concessions in perpetuity to certain persons (hereinafter referred to as 'concessionaires'). Goa was liberated 74 on 19.12.1961. MMDR Act, 1957 was made applicable to State of Goa on 1.10.1963. Controller of Mining Leases, on 10.3.1975, issued a notification calling upon every lessee and sub-lessee to file returns under Rule 5 of Mining Leases (Modification of Terms) Rules, 1956 and sent copies of the notification to concessionaires in Goa. The above notification was challenged by concessionaires in Bombay High Court (Goa Bench). Vide judgment dated 29.09.1983, in Vassudeva Madeva Salgaocar vs. Union of India , (1985)1Bom.CR36, Bombay High Court restrained Union of India from treating concessions as mining leases and from enforcing notification against concessionaires. To overcome difficulty arisen due to above judgment, Goa, Daman and Diu Mining Concessions (Abolition and Declaration as Mining Leases) Act, 1987 was passed which received assent of President of India on 23.05.1987. The said act abolished mining concessions and declared that with effect from 20.12.1961, every mining concession will be deemed to be a mining lease granted under MMDR Act, 1957 and that provisions of MMDR Act, 1957 will apply to such mining lease. The above Abolition Act was challenged by lessees in Bombay High Court wherein an interim order was passed permitting lessees to carry on mining operations and mining business in the concessions for which renewal applications had been filed under 24-A of the MC Rules, 1960.

The above Writ Petition 177/1990, Shantilal Khushaldas and Bros.

( P) Ltd. vs. Union of India was decided by Bombay High Court vide judgment dated 20.6.1997. The validity of Abolition Act, as such, was upheld, but Court held Section 22(i)(a) of Abolition Act to operate prospectively and not retrospectively. Concessionaires filed appeal in Supreme Court in SLP (C) no. 23827 of 1997, Shantilal Khushaldas and Bros. (P) ltd. vs. Union of India wherein an interim order was passed on 2.3.983 permitting concessionaires to carry on mining operations and mining business in the mining areas for which renewal applications were 75 made but imposing a condition that lessees would pay to the Government, dead rent from the date of commencement of Abolition Act. When appeal was pending, Central Government appointed a Commission under Section 3 of Commissions of Inquiry Act, 1952, by notification dated 22.11.2010, to enquire into and determine nature and extent of mining, trade and transportation, done illegally or without lawful authority, of iron ore and manganese ore, and the losses therefrom; and also, to identify the person etc., engaged in such illegal activities. The term of reference contained four aspects. Justice Shah Commission was constituted in view of various reports received from various State Governments regarding widespread mining of iron and manganese ore, in contravention of MMDR Act 1957, FC Act 1980, EP Act 1986 and rules and guidelines issued thereunder.

Justice Shah submitted an interim report on 15.03.2012 to Ministry of Mines, Government of India which was tabled on Parliament along with an Action Taken Report. State Government of Goa passed an order on 10.9.2012, suspending all mining operations in State of Goa, with effect from 11.9.2012. Consequently, District Magistrates in State of Goa, banned transportation of iron ore in their respective Districts. Director of Mines and Geology, ordered verification of mineral ore which was already extracted, and also issued show cause notices on 13.9.2012 to about 40 mining leases. On 14.9.2012, MoEF issued an order keeping in abeyance all ECs granted to mines in State of Goa. In this backdrop, Goa Foundation came in Supreme Court and other litigation arose as already stated. Report of Commission was challenged primarily on the ground of violation of Principles of the Natural Justice. Mining lessees argued that they were not given any opportunity of hearing in the Inquiry conducted by the said Commission and, therefore, Principles of Natural Justice have been violated. Supreme Court recorded stand of Government of Goa that no action will be taken against mining lessees only on the basis of findings 76 recorded in the report of Justice Shah Commission but it would make its own assessment of facts after giving opportunity of hearing to all concerned parties and in that view of the stand taken by State Government, Supreme Court, in para 14 of judgment, observed that it is not inclined to quash Justice Shah Commission's Report on the ground of violation of Principles of Natural Justice but also would not direct to prosecute lessees only on the basis of findings recorded in the said report.

However, looking to the serious dispute raised in the matter pertaining to environment, Supreme Court proceeded to examine legal and environmental issues raised in the Report of Justice Shah Commission.

The first issue was regarding continuance of leases, as deemed renewed.

Court held, in para 28 of judgment, that deemed mining leases of the then lessees in Goa, expired on 22.11.1987, under sub-section (1) of Section 5 of Abolition Act. The maximum of 20 years renewal period of deemed mining leases in Goa, as provided in sub-section (2) of Section 8 of MMDR Act 1957 read with sub-rules (8) and (9) of Rule 24-A of MC Rules 1960, expired on 22.11.2007. The next question was, dumping of reject, tailing or waste, whether can be kept beyond lease area. This question was answered in negative i.e., against the stand taken by mining lessees. Court said (i) a holder of mining lease does not have any right to dump any reject, tailings or waste in any area outside the leased area of the mining lease on the strength of a mining lease granted under MMDR Act, 1957 and rules framed thereunder. Even if such area is outside the leased area of mining lease, belong to State or any private person, but if mining lease does not confer any right whatsoever on the holder of a mining lease to dump any mining waste outside the leased area, he will have no legal right whatsoever to remove his dump, overburden, tailings or rejects and keep the same in an area outside the leased area. Dumping of waste materials, tailings and rejects, outside leased area, would be without valid 77 authorisation under the lease deed. In view of Section 9(2) of MMDR Act, 1957, if mineral is removed or consumed from the leased area, holder of mining lease, has to pay royalty. The term 'mineral' includes tailings or rejects, excavated during mining operations. Rule 64-C of MC Rules, 1960, firstly, did not permit dumping of tailings or rejects in any area outside the leased area and even otherwise if a rule goes beyond what the section contemplates, the rule must yield to the statute as held in Central Bank of India vs. Workmen, AIR1960SC12, therefore, Rule 64-C of the MC Rules, 1960, if suggests dumping of tailings or rejects outside the leased area, it must give way to section 4 of MMDR Act, 1957 which does not authorise dumping of minerals outside the leased area. The said Rule must give way to section 9 of MMDR Act, 1957 which does not authorise removal of minerals, outside the leased area, without payment of royalty. Even Rule 16 of Mineral Conservation and Development Rule 1988 (hereinafter referred to as 'MCD Rules, 1988') does not permit dumping of overburden and waste materials, obtained from mining operation, outside the leased area. The lessees also cannot be allowed to dump overburden tailings or rejects in the area owned by them for the reason that most of the land, owned by lessees, is located in the forest area where non-forest activities such as mining is not permissible in view of section 2 of FC Act, 1980 and it also requires prior EC under EP Act, 1986 read with rule 5 (3) of EP Act, 1986 . For dumping of mining waste on the private land, Court said that prior clearance of Central Government under notification issued under Rule 5 (3) of EP Rules, 1986 would be necessary. Justice Shah Commission found that despite restriction on mining activities inside National Parks, Sanctuaries and other protected and eco-sensitive areas, mining activities have been permitted within 10 km and inside the national parks, sanctuaries and protected area. Thus, Court considered next question as to within what distance from the boundaries of national 78 parks and wildlife sanctuaries mining is permissible or not in the State of Goa. Answering this question, Court found that State of Goa has taken a clear stand that no mining operations were allowed inside any National Park or Wildlife Sanctuaries hence question to this extent did not require any adjudication. Next question was "whether mining could have been permitted or could be permitted within a certain distance from the boundaries of national park or wildlife sanctuary in the State of Goa". Answering it, Court said that the argument advanced on behalf of lessees that until a notification is issued under EP Act, 1986 and rules framed thereunder prohibiting mining activities in an area outside the boundaries of a national park/wildlife sanctuary, no mining can be prohibited, is misconceived. Here Court relied on article 21 of the constitution which guarantees right to life and further refers to a three Judge Bench Judgment in Noida Memorial Complex near Okhla Bird Sanctuary, In Re, (2011)1SCC744, where it was held that environment is one of the facets of the right to life guaranteed under Article 21 of the Constitution. Environment is, therefore, a matter, directly under the Constitution and if Court perceives any project or activity as harmful or injurious to the environment, it would feel obliged to step in. Then, with regard to permissible mining activities, Supreme Court referred to order dated 4.8.2006 in T.N. Godavarman Thirumulpad vs. Union of India , (2010)13SCC740, and 4.12.2006 in Goa Foundation vs. Union of India , (2011)15SCC791, and said that the above orders make it clear that grant of temporary working permits should not result in any mining activities within safety zone, around National Parks and Wildlife Sanctuaries, and as an interim measure, 1 km safety zone was to be maintained. Since the said orders were not varied subsequently, Supreme Court directed that the said order have to be followed and 79 there will be no mining activity within 1 km safety zone around National Park and Wildlife Sanctuary in State of Goa.

94. The contention advanced on behalf of Goa Foundation, that within 10 kms from the boundaries of national park or wildlife sanctuary, no mining activity can be permitted, was returned by Supreme Court holding that no such order was issued either in Goa Foundation vs. Union of India (supra) or elsewhere. Court further referred to EP Rules, 1986 and said that until Central Government takes into account various factors mentioned in sub-rule 1, follows procedure laid done in sub-rule 3 and issues a notification under rule 5 prohibiting mining operations in a certain area, there can be no prohibition under law to carry on mining activity beyond 1 km of the boundaries of national parks or wildlife sanctuaries. The issue of the distance, with regard to mining activities qua National Park and Sanctuaries, was decided accordingly. The next question was regarding transfer or amalgamation of lease for which Justice Shah Commission observed that Rule 37 and 38 of MC Rules, 1960 were violated. Here State Government took a stand that there was a practice prevailing in State of Goa that a mining lease, by a person other than lease holder, can be operated. Deprecating it, Supreme Court said that rules 37 and 38 clearly prohibit such transfer or amalgamation unless permitted specifically by State Government and directed State Government not to allow such activities in violation of rules 37 and 38. Court also found from CEC's Report that there was no effective checks and measures with regard to production and transportation of mineral from the mining leases in the State of Goa, hence there was every possibility to believe that excess quantity of minerals were extracted and transported. Court also found existence of Goa (Prevention of Illegal Mining, Storage and Transportation 80 of Minerals) Rules, 2013 but non-observance thereof by the Authority. It directed State Government to enforce above rules, strictly.

95. The next question related to environment. "To what extent, mining has damaged environment in Goa" and "what measures are to be taken to ensure intergenerational equity and sustainable development". In this regard, Court vide order dated 11 and 12.11.2013 ( Goa Foundation vs. Union of India , (2014)6SCC738) constituted an Expert Committee to conduct, a macro-EIA study, and propose sealing of annual excavation of iron ore in State of Goa, considering its iron ore resources, carrying capacity, keeping in mind Principles of Sustainable Development, Intergenerational Equity and all other relevant factors. The said Committee submitted report dated 14.3.2014 indicating that economy of Goa depends upon tourism, iron ore mining, besides agriculture, horticulture and minor industries. Commenting upon damage to environment in State of Goa, Expert Committee said that production of iron ore has drastically jumped on, from 14.6 million tons in 1941 to 41.17 million tons in 2010-2011.

This has led to massive negative impact on all ecosystems leading to enhanced air, water and soil pollution, affecting quality of life, across Goa.

With regard to sustainability of iron ore mining in Goa, Expert Committee opined that mining at the rate of 20 to 27.5 million tons per annum may be sustainable in State of Goa. Supreme Court referred to a report of Indian School of Mines, Dhanbad (hereinafter referred to as 'ISM'), who was entrusted, by MoEF, to carry out regional impact assessment study of mining in Goa region. In the said report, ISM recommended a cap of 24.995 MT per annum on the basis of carrying capacity of existing infrastructure of State of Goa. Relying on the said report, Court held that a cap between 20 to 27.5 MT per annum should be fixed for excavation of iron ore in State of Goa. Court also found that Goa State Pollution Control Board (Goa PCB) 81 has immense powers under Air Act, 1981 and Water Act, 1974 but despite that, iron ore production in State of Goa has led to massive negative impact on all ecosystem leading to enhanced air, soil and water pollution affecting quality of life across State of Goa, and Goa PCB has miserably failed in discharge of its statutory functions. Supreme Court's observations are, "Rather, it appears that the Goa State Pollution Control Board, though conferred with immense statutory powers, has failed to discharge its statutory functions and duties". Court directed that Goa PCB would exercise strict vigil and monitor water and air quality and if lessees failed to conform the prescribed norms, Goa PCB must not hesitate in closure of mining operations of such lessees. Further, for restoration of environment, Court directed that 10% of sale proceeds of all iron ore, excavated in State of Goa, and sold by lessees, would be appropriated towards 'Goan Iron Ore Permanent Fund', constituted for the purpose of sustainable development and intergenerational equity.

96. The next question, "whether mining in future should be allowed by granting leases in auction or otherwise", was answered by noticing observations in Centre for Public Interest Litigation vs. Union of India (2012)3SCC1, that "State of the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good." Court also noticed observations of constitution bench in Natural Resources Allocation, In Re, Special Reference No. 1 of 2012, (2012)10SCC1 that auction, despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources, and therefore, every method other than auction cannot be 82 struck down as ultra vires of the constitutional mandate. It is for State Government to decide as a matter of policy in what manner leases of mineral resources would be granted but this should be in accordance with statutory provisions i.e., MMDR Act, 1957 and rules framed thereunder by taking a policy decision. Supreme Court also quoted opinion of four Judges out of five Judges, in Natural Resources Allocation (supra), (in para

149), that alienation of natural resources is a policy decision and the means, adopted for the same, are, thus executive prerogatives.

However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit, maximising private entrepreneurs, adoption of means other than those that are competitive and maximise revenue, may be arbitrary and face wrath of Article 14 of the Constitution. Hence no hard and fast method ought to be laid by Court but judicial scrutiny of such matter would depend on fact and circumstances in each case.

Supreme Court also held that the order issued by Government of Goa suspending mining operations cannot be quashed since in any case renewal of deemed mining leases expired on 22.11.2007 and any mining thereafter was illegal. Therefore, order dated 10.9.2012 of Government of Goa and 14.9.2012 of MoEF, will have to continue till decision is taken by State Government to grant fresh leases and MoEF takes decision for granting fresh EC for mining project in accordance with law. Supreme Court ultimately issued directions which are briefly stated in para 87 and 88 of the judgment. The above judgment shows that for remedy to the damage done to environment, 10% of sale proceeds of the subject i.e., goods and in this case mined iron ore, was required to be paid by lessees who excavated the said ore, illegally. The amount collected was to be kept in a separate fund, and to be consumed by appropriate authorities for sustainable development and intergenerational equity.

Further, here environment compensation was determined at 10% in view of the fact that mining cannot be stopped, and would continue as providing revenue to Government and heavy profits to illegal minors. Further, environment compensation was determined on the rate of sale proceeds i.e., selling rate of mineral.

97. Amendments were made in EIA 2006 after the judgment in Deepak Kumar vs. State of Haryana (supra) and Goa Foundation (supra) and have reflections of the said judgements. Subsequent amendments made in EIA 2006 are as under:

Further, a period of two years with effect from the 4th April, 2011 is provided for obtaining environmental clearance for all those mine leases, which were operating as on the 4th April, 2011 with requisite valid environmental clearance and which have fallen due for renewal on or after the 4th November, 2011.

(ii) Mineral prospecting is exempted."

B. Notification dated 13.03.2013 published in Gazette of India Extraordinary of the same date:

C. Notification dated 19.07.2013 published in Gazette of India Extraordinary of the same date:

D. Notification dated 22.08.2013 published in Gazette of India Extraordinary of the same date:

(iii) No river sand mining project, with mine lease area less than 5 ha, may be considered for granting EC. The river sand mining projects with mining lease area ≥5 ha but < 25 ha will be categorized as 'B2'. In addition to the requirement of documents, as brought out above under sub-para (ii) above for appraisal, such projects will be considered subject to the following stipulations:

Provided, in case the mining lease area is likely to result into a cluster situation i.e. if the periphery of one lease area is less than 1 km from the periphery of another lease area and total lease area equals or exceeds 25 ha, the activity shall become Category 'B1' Project under the EIA Notification, 2006. In such a case, mining operations in any of the mine lease areas in the cluster will be allowed only if the environmental clearance has been obtained in respect of the cluster.

II. Other projects or activities The guidelines for categorizing some of the other category of projects or activities into 'B1' or 'B2' out of the category 'B' projects listed in schedule to EIA Notification, 2006, as amended from time to time, are as follows. These projects will be appraised based on Form-1 as per Appendix-I under EIA Notification, 2006, as amended and prefeasibility report of the project.

activity listed in the activity falling in the Schedule as Schedule as Category 'B', with Category 'B'.

*transportation by railways should not be less than 90% of the traffic (inward and outward put together)

100. The said Office Memorandums were challenged in OA 343/2013, Ranbir Singh vs. State of H.P. & Ors. and OA 279/2013, Promila Devi vs. State of H.P. & Ors. filed at Circuit Bench, Shimla. Vide order dated 28.03.2014, Tribunal stayed operation of OM dated 24.12.2013. Relevant extract of the order dated 28.03.2014 reads as under:

101. The above OAs were disposed of finally vide judgment dated 13.01.2015 along with some other matters with the following directions:

IV. We further hold that the existing mining lease right holders would also have to comply with the requirement of obtaining Environmental Clearance from the competent authorities in accordance with law. However, all of them, if not already granted Environmental Clearance would be entitled to a reasonable period (say three months) to submit their applications for obtaining the same, which shall be disposed of expeditiously and in any case not later than six months from pronouncement of this judgment.

V. All the States and the Ministry of Environment and Forest shall ensure strict compliance to the directions issued by the Hon'ble Supreme Court in the case of Deepak Kumar (supra). We direct Secretary, Ministry of Environment and Forest to hold a meeting with the State of Rajasthan, Himachal Pradesh and Karnataka to bring complete uniformity in application of the above referred Notifications and Office Memorandums including the Notification of 2006.

VI. We direct that in the meeting it shall also disused and appropriate recommendations be made and placed before the Tribunal, as to whether riverbed mining covering an area of less than 5 hectares can be permitted, if so, the conditions and regulatory measures that need to be adopted in that behalf.

VII. We direct that the District Environmental Committees constituted by the respective State Governments shall not discharge any functions and grant approval as contemplated under the Notification of 2006.

VIII. Secretary, Ministry of Environment and Forest along with such experts and the States afore-referred will also consider the possibility of constituting the branches of SEIAA at the district or at least, division levels, to ensure easy accessibility to encourage the mine holders to take Environmental Clearance expeditiously.

IX. It is stated before us that in large number of cases, particularly in relation of State of Rajasthan, persons carrying on mining activity of minor minerals, non-coal mining and brick earth and ordinary earth have applied for obtaining Environmental Clearances in accordance with the terms and conditions of the Notification of 2006. Let all such applications be dealt with and orders passed by the concerned authorities at the earliest and in any case not later than six months from today.

X. We direct the respondent authorities, particularly SEIAA, to dispose of the application of all these private respondents who have already filed applications seeking Environmental Clearance as expeditiously as possible, in any case not later than three months from today. Thus, Appeal No. 23/2014 and M.A. No. 92 469/2014, M.A No. 488/2014, 489/2014, 479/2014, 480/2014, 473/2014, 470/2014, 471/2014 and 469/2014 stand disposed of with the above directions. Till the grant of environmental clearance they would not carry out any activity of marble mining.

XI. We dispose of Original Application No. 123/13 with a direction that SEIAA shall consider the applications filed for seeking Environmental Clearance in accordance with law and observations made in this judgment, expeditiously, and in any case within a period of three months from today.

XII. In the meanwhile, no State shall permit carrying on of sand mining or minor mineral extraction on riverbed or otherwise without the concerned person obtaining Environmental Clearance from the competent authority.

XIII. We direct the Ministry of Environment and Forest to issue comprehensive but self-contained Notification relating to all minor mineral activity on the riverbed or otherwise, to avoid unnecessary confusion, ambiguities and practical difficulties in implementation of the environmental laws.

XIV. In light of the judgment of the Supreme Court and what has emerged from the various cases that are subject matter of this Judgment, we direct the Ministry of Environment and Forest to formulate a uniform cluster policy in consultation with the States for permitting minor mineral mining activity including, its regulatory regime, in accordance with law."

102. OM dated 24.12.2013 was held bad so far as it imposed complete prohibition on grant of mining permission for area less than 5 ha. This was observed by Tribunal in para 64 as under:

103. Thus, from the above, it is evident that this Tribunal reiterated and directed MoEF&CC to act strictly as per the directions issued by Supreme 93 Court in Deepak Kumar vs. State of Haryana (supra) with respect of permitting mining as per EIA 2006.

104. Now, we re-join the amendments of EIA 2006 commencing from notification dated 25.06.2014 as under:

B. Notification dated 07.10.2014 published in Gazette of India Extraordinary of the same date:

D. Notification dated 03.02.2015 published in Gazette of India Extraordinary of the same date:

E. Notification dated 23.03.2015 published in Gazette of India Extraordinary of the same date:

paragraph (1) and sub-paragraph (2) was inserted which reads as under:

F. Notification dated 10.04.2015 published in Gazette of India Extraordinary of the same date:

G. Notification dated 29.04.2015 published in Gazette of India Extraordinary on 30.04.2015:

paragraph (i) with certain amendments of the words therein and the amended sub-paragraph (i) reads as under:

and the amended proviso reads as under:

(Emphasis added) I. Notification dated 14.09.2015 published in Gazette of India Extraordinary on 18.09.2015:

J. Notification dated 15.01.2016 published in Gazette of India Extraordinary of the same date:

(Emphasis added)

c) In paragraph 3 of EIA 2006, para 3A was inserted and para 5 and 6 were substituted as under:

The term and qualifications of the expert fulfilling the eligibility criteria are given in Appendix VII to this notification.

(5) The members of the DEIAA who are serving officers of the concerned State Government or the Union territory Administration shall be ex-officio members except the expert member.

(6) The District Level Expert Appraisal Committee hereinafter referred to as the DEAC shall comprise of eleven members, including a Chairman and a Member-Secretary.

(7) The senior most Executive Engineer, Irrigation Department in the district of respective State Governments or Union territory Administration shall be the Chairperson of the DEAC.

(8) The Assistant Director or Deputy Director of the Department of Mines and Geology or District Mines Officer or Geologist of the district shall be the Member-Secretary of the DEAC in that order.

(9) A representative of the State Pollution Control Board or Committee, senior most Sub-Divisional Officer (Forest) in the district, representative of Remote Sensing Department or Geology Department or State Ground Water Department, one occupational health expert or Medical Officer to be nominated by the District Magistrate or District Collector, Engineer from Zila Parishad, and three expert members to be nominated by the Divisional Commissioner or Chief Conservator of Forest, as the case may be, shall be the other members of the DEAC. The term and qualifications of the experts fulfilling the eligibility criteria are given in Appendix VII to this notification.

(10) The members of the DEAC who are serving officers of the concerned State Government or the Union territory 99 Administration shall be ex-officio members except the expert members.

(11) The District Magistrate or District Collector shall notify an agency to act as Secretariat for the DEIAA and the DEAC and shall provide all financial and logistic support for their statutory functions.

(12) The DEIAA and DEAC shall exercise the powers and follow the procedure as specified in the said notification, as amended from time to time.

(13) The DEAC shall function on the principle of collective responsibility and the Chairman shall endeavor to reach a consensus in each case and if consensus cannot be reached, the view of the majority shall prevail.";

d) In paragraph 4, after sub-paragraph (iii), the following sub-

paragraph shall be inserted, namely:

The SEAC at the State or the Union territory level shall be constituted by the Central Government in consultation with the concerned State Government or the Union territory Administration with identical composition. DEAC at the district level shall be constituted by the Central Government as per the composition given in paragraph 3 A.

(b) The Central Government may with the prior concurrence of the concerned State Governments or the Union territory Administration constitute one SEAC for more than one State or Union territory for reasons of administrative convenience and cost.

(c) The EAC and SEAC shall be reconstituted after every three years.

(d) The authorised members of the EAC, SEACs and DEACs concerned, may inspect any site connected with the project or 100 activity in respect of which the prior environmental clearance is sought for the purpose of screening or scoping or appraisal with prior notice of at least seven days to the project proponent who shall provide necessary facilities for the inspection.

(e) The EAC, SEACs and DEACs shall function on the principle of collective responsibility. The Chairperson shall endeavor to reach a consensus in each case and if consensus cannot be reached the view of the majority shall prevail.";

(e) for paragraph 6, the following paragraph shall be substituted, namely:

f) In paragraph 7 under the heading "I. Stage (1)-Screening", the existing paragraph was renumbered as "(A)" and, thereafter, following paragraph (B) was inserted:

h) In paragraph 8, 9 and 11, after the words EAC or SEAC or Expert Appraisal Committee or State Level Expert Appraisal Committee, 101 the words DEAC or District Level Expert Appraisal Committee were inserted so as to bring the same in conformity with this amended notification.

i) In paragraph 10, after sub-paragraph (iii), following sub-

paragraph (iv) was inserted:

If yes, details of the same and their status to be given

17. Forest land involved (hectares)

18. Whether there is any litigation pending against the project and/or land in which the project is propose to be set up?

(a) Name of the Court

(b) Case No.

(c) Orders or directions of the Court, if any, and its relevance with the proposed project.

m) Appendix IX provided exemption of certain cases from requirement of EC and reads as under:

2189(68)/5-CHH, dated the 14th February, 1990 of the Government of Gujarat.

8. Digging of well for irrigation or drinking water.

9. Digging of foundation for buildings not requiring prior environmental clearance.

10. Excavation of ordinary earth or clay for plugging of any breach caused in canal, nala, drain, water body, etc., to deal with any disaster or flood like situation upon orders of District Collector or District Magistrate.

11. Activities declared by State Government under legislations or rules as non-mining activity with concurrence of the Ministry of Environment, Forest and Climate Change, Government of India."

n) Appendix X lays down procedure for preparation of district survey report and reads as under:

A survey shall be carried out by the DEIAA with the assistance of Geology Department or Irrigation Department or Forest Department or Public Works Department or Ground Water Boards or Remote Sensing Department or Mining Department etc. in the district.

Drainage system with description of main rivers S. No. Name of the River Area drained % Area drained in the (Sq. Km) District Salient Features of Important Rivers and Streams:

A Sub-Divisional 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.

Methodology adopted for calculation of Mineral Potential:

hydrological study of the cluster area. The Environment Impact Assessment or Environment Management Plan shall be prepared by the State or State nominated Agency or group of project proponents in the Cluster or the project proponent in the cluster.

(3). There shall be one public consultation for entire cluster after which the final Environment Impact Assessment or Environment Management Plan report for the cluster shall be prepared.

(4). Environmental clearance shall be applied for and issued to the individual project proponent. The individual lease holders in cluster can use the same Environment Impact Assessment or Environment Management Plan for application for environmental clearance. The cluster Environment Impact Assessment or Environment Management Plan shall be updated as per need keeping in view any significant change.

(5). The details of cluster Environment Impact Assessment or Environment Management Plan shall be reflected in each environmental clearance in that cluster and DEAC, SEAC, and EAC shall ensure that the mitigative measures emanating from the Environment Impact Assessment or Environment Management Plan study are fully reflected as environmental 108 clearance conditions in the environmental clearance's of individual project proponents in that cluster.

(6). A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area.

(7). Form 1M, Pre-Feasibility Report and mine plan for Category 'B2' projects for mining of minor minerals shall be prepared by the Registered Qualified Person or Accredited Consultants of Quality Council of India, National Accreditation Board for Education and Training. The Environment Impact Assessment or Environment Management Plan for Category 'A' and Category 'B1' projects shall be prepared by the accredited consultants of Quality Council of India, National Accreditation Board for Education and Training.

(8). The SEIAAs shall have supervisory jurisdiction over the DEIAAs and decisions of DEIAA shall be reviewed by the SEIAA without prejudice to any provisions under any existing law.

Schematic Presentation of Requirements on Environmental Clearance of Minor Minerals including cluster situation Area Categ Require Require Require Who Who Autho Authorit of ory of ment of ment of ment of can will rity to y to Lease Proje EIA / Public EC prepar apply appra monitor (Hect ct EMP Hearing e EIA/ for EC ise/ EC are) EMP grant complia EC nce EC Proposal of Sand Mining and other Minor Mineral Mining on the basis of individual mine lease 0 - 'B2' Form - No Yes Project Project DEAC DEIAA 5ha 1M, PFR Propon Propon / SEIAA and ent ent DEIAA SPCB Approve CPCB d Mine MoEFCC Plan Agency > 5 ha 'B2' Form -I, No Yes Project Project SEAC/ nominat and < PFR and Propon Propon SEIAA ed by 25 ha Approve ent ent MoEFCC d Mine Plan and EMP ≥25ha 'B1' Yes Yes Yes Project Project SEAC/ and < Propon Propon SEIAA 50ha ent ent ≥50 'A' Yes Yes Yes Project Project EAC/ ha Propon Propon MoEF ent ent CC EC Proposal of Sand Mining and other Minor Mineral Mining in cluster situation Cluste 'B2' Form - No Yes State, Project DEAC DEIAA r area 1M, PFR State Propon / SEIAA of and Agency ent DEIAA SPCB mine Approve , Group / CPCB leases of MoEFCC 109 up to d Mine Project Agency 5 ha Plan Propon nominat ents, ed by Project MoEFCC Propon ent Cluste 'B2' Form -I, No Yes State, Project DEAC r area PFR and State Propon / of Approve Agency ent DEIAA Mine d Mine , Group / leases Plan of > 5 ha and one Project and < EMP for Propon 25 ha all ents, with leases in Project no the Propon indivi Cluster ent dual lease >5h Cluste 'B1' Yes Yes Yes State, Project SEAC/ r of State Propon SEIAA mine Agency ent leases , Group of of area ≥ Project 25 Propon hectar ents, es Project with Propon indivi ent dual lease size < 50ha Cluste 'A' Yes Yes Yes State, Project EAC/ r of State Propon MoEF any Agency ent CC size , Group with of any of Project the Propon indivi ents, dual Project lease Propon ≥50ha ent

p) Appendix XII lays down procedure for monitoring of sand mining or river bed mining and said as under:

3. Scanning of Transport Permit or Receipt and Uploading on Server:

4. Proposed working of the system:

5. Checking On Route:

6. Breakdown of Vehicle:

7. Tracking of Vehicles:

8. Alerts or Report Generation and Action Review:

stream mining also can damage public infrastructure like bridges, roads, pipelines, and utility lines.

78. River that are fed by monsoon and snowmelt have large volumes of water, several fold of that during lean seasons, cause recharge of aquifers adjacent to banks and flood plains working as sponge and lift the water table during the monsoons. There is, however, reverse flow of sub-surface water from the aquifers to the river during the lean season. Excessive mining, both in stream and from river banks and flood plains will deplete the volume of water held in aquifers and the flow from the aquifer to the stream during the lean season impacting water availability for drinking and agricultural purposes besides affecting aquatic biodiversity. It can also increase flood frequency and intensity by reducing flood regulation capacity. Tributaries of major rivers dry up when sand mining reaches certain thresholds.

79. Unregulated and prolonged mining of sands from rivers may impact the ground water regime' in the following ways:

80. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor (or channel incision) both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself (Kondolf, 1997 Supra). The removal of more than 12 million tonnes of sand a year from the Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 cms a year [Padmalal et al. (2008) in: Environmental Geology vol. 54:

81. According to Kondolf (1997) [supra] floodplain pit mining transforms riparian woodland or agricultural land into open pits, which typically intersect the water table at least seasonally. Floodplain pit mining can effectively transform large areas of floodplain into open-water ponds, whose water level commonly tracks that of the main river closely, and which are commonly separated from the active channel by only a narrow strip of unmined land. Because the pits are in close hydrologic continuity with the alluvial water table, concerns are often raised that contamination of the pits may lead to contamination of the alluvial aquifer.

82. The floodplain pits may capture the channel during floods, in effect converting formerly off-channel mines to in-channel mines. Pit capture occurs when the strip of land separating the pit from the channel is breached by lateral channel erosion or by overflowing floodwaters. In general, pit capture is most likely when flowing through the pit offers the river a shorter course than the currently active channel. When pit capture occurs, the formerly off-channel pit is converted into an in-channel pit, and the effects of in-stream mining, notably propagation of incision up- and down-stream of the pit, can be expected.

83. Stockpiles of overburden and gravel left or abandoned in the channel or floodplain can alter channel hydraulics during high flows. During high water, the presence of stockpiles can cause fish blockage or entrapment, and fine material and organic debris may be introduced into the water, resulting in downstream sedimentation. Wash-water discharge, storm runoff, and dredging activities from improper sand and gravel operations can increase the turbidity of streams. Turbidity is generally greatest at dredging sites or wash- water discharge points and decreases with distance downstream. Water temperature and dissolved oxygen of streams can be changed if in-stream mining reduces water velocity or spreads out the flow over shallow areas.

84. Bed degradation from in-stream mining lowers the elevation of stream flow and the floodplain water table which in turn can produce slower stream flow velocities and lower flow energies, causing sediments arriving from upstream to deposit at the mining site. As stream flow moves beyond the site and flow energies increase in response to the "normal" channel form downstream, the amount of transported sediment leaving the site is now less than the sediment carrying capacity of the flow. This sediment deficient flow or "hungry" water picks up more sediment from the stream reach below the mining site, furthering the bed degradation process (Ashraf et al., 2011Supra).

85. In-stream roughness elements, including the gravel itself and large woody debris, play a major role in providing structural integrity and complexity to the stream or river ecosystem and provide habitat critical for several fish and other aquatic organisms. Destruction of the riparian zone during sand and gravel extraction operations can have multiple deleterious effects on fish habitat. The riparian zone includes stream banks, riparian vegetation, and vegetative cover. Damaging any one of these elements can cause stream bank destabilization resulting in increased erosion, sediment and nutrient inputs, and reduced shading and bank cover leading to increased stream temperatures. Destruction of riparian trees also means a decrease in the supply of large woody debris. This results in a loss of in-stream habitat diversity caused by removing the source of materials partially responsible for creating pools and riffles that are critical for growth and survival of several fish species (OWRRI, 1995). In-stream mining can also result in loss of fertile streamside land, as well as valuable forest resources and wildlife habitats in the riparian areas besides the loss of biodiversity, and recreational potential. Severely degraded channels may lower land and aesthetic values.

86. Operation of heavy equipment like trucks, JCBs and excavators in the channel bed can directly destroy spawning habitat, rearing habitat, the juvenile fish themselves, and macroinvertebrates; can produce increased turbidity and suspended sediment downstream; and has the potential to cause toxic chemical spills.

87. All species require specific habitat conditions to ensure long-term survival. Native species in streams are uniquely adapted to the habitat conditions that existed before humans began large-scale alterations. These have caused major habitat disruptions that favored some species over others and caused overall declines in biological diversity and productivity. In most streams and rivers, habitat quality is strongly linked to the stability of channel bed and banks. Unstable stream channels are inhospitable to most aquatic species.

88. Rampant mining of minor minerals in the flood plains of rivers as well as sea beaches has greatly affected the distribution and abundance of reptiles like turtles and crocodiles, which go for laying eggs in these areas. Similarly, river bed mining has resulted in significant reduction in the fish population, as many riverine species have their breeding grounds located in the shallow waters with sandy and/or gravelly areas. The breeding grounds of Snow Trout inhabiting the Jhelum and its tributaries in Kashmir Himalaya have got disturbed due to increased human interference through diversion of water, extraction of sand and gravel as well as encroachment of shallower areas, which has resulted in decline in their population to a great extent. (Zutshi & Yousuf (2014) [in: Lakes & Wetlands of Kashmir Himalaya: Ecology, Conservation & Management, Heritage Publishers, New Delhi, p 256].

89. Gharials are native to deep, fast-flowing rivers, but prefer calmer areas of these rivers such as river bends. Though they spend most of their time in water, sandy banks are essential for nesting and for basking. And, therefore, the destruction of these banks and bars by sand-mining, erosion, and changing river levels poses a serious threat to the species [Gharial Conservation Alliance (2015). It is reported that sand mining in the National Chambal sanctuary, a rich habitat of Gharials at one time, reduced their population by 60% in five years 117 (1998-2003), with only a small population remaining in the wild. The Gharials lay eggs in March/April and many of them are crushed underneath the miners' tractors. When the eggs hatch in monsoon, many juvenile Gharials are swept away by floodwaters. (River Mineral Major Mafia, The Hindu (2013)). River dolphins are threatened critically by widespread habitat degradation and habitat loss caused by pollution, deforestation, dam construction and other destructive river development, and over-fishing [Carpino (1994)].

90. On the analysis of the above studies, it is clear that such impacts can be divided into two different categories. First category can relate to general impacts of mining on river ecology and biodiversity which would include physical impacts as well as depletion of water level and recharging or restoration of the minerals. Second category deals with adverse impacts of excessive, more particularly, illegal and unscientific mining on river ecology and bio-diversity. Sand, bajri and boulders are important ingredients of ecology in themselves. It affects the factors of determination of feasibility of mining in relation to site and depth for which such mining should be permitted. Physical impacts of excessive mining include reduction of water quality and destabilization of stream and banks. It depletes water level, floodplain pit mining transforms riparian wood land or agricultural land into open pits which typically intersects the water table at- least seasonally. It can even alter hydraulic continuity during high flows. River bed degradation is one of the most commonly known adverse impacts. Use of heavy equipments and totally mechanised mining on the river bed can produce, increased turbidity and suspended sediments downstream and has the potential to cause toxic chemical spills. These are not merely the indicators but are the adverse impacts which find due support from scientific studies over a long period. The evidence in the present case definitely suggests existence of these adverse impacts on the river bed and the surrounding areas.

91. All these omissions, commissions and violations render the private respondents, noticees and all other involved parties liable for payment of environmental compensation for degrading and damaging the environment, ecology and bio-diversity of the river and causing pollution of air and water with particular reference to river Yamuna and for restoration thereof. This is a question of law that arises for consideration and the extent to which such law should be made applicable on the basis of the facts stated herein. From the facts and figures on record it is evident that this activity has serious financial costs and implications. The revenue earned by the State for a limited period for which mining lease is granted for legal and limited mining, is an indicator of the revenue involved in such activity. In the present case, the illegal extraction of minor minerals and their transportation has been much in excess to the limits of permissible mining.

As already noticed, no mining activity is carried on since 2010 in the State of Haryana because of Court orders. However, large number of stone crushers had been working in Yamunanagar region in the State of Haryana. Stone Crushers for the entire period were in the range of 124 to 128. Out of them some have closed, while others had been operating all through this period. Except for the year 2012, when 31 crushers were operating during the period, stone crushers 118 between 61 and 121 were regularly operating and even without consent of the Board, as alleged. However, it is stated by the Board that 69 stone crushers were operating with the consent of the Board in 2015-16 but they were not found to be complying with the prescribed norms and were operating without taking EC.

After the order of the Supreme Court dated 21st October, 2013, the State of Haryana auctioned six mining units in covering an area of 67 villages on 26th December, 2013. The bid received for all the six units was 328.28 crores per annum against the reserve price of Rs. 77.12 crores. Four mining units had to be cancelled as the awardees did not comply with the terms of the contract and raised a dispute. Finally the auction was cancelled vide order of the Punjab and Haryana High Court dated 15th January, 2015. The State Government again auctioned 33 mining blocks. 19 have already attracted bids. 14 have been re-notified for auction as on date of filing of affidavit. However, as of now, 24 blocks have been auctioned and nine are to be re-auctioned.

The trend of bids has increased with the passage of time to the extent that in the current year for six mining units the bid goes for Rs. 328.82 crores. The extent of unlawful gains earned by these persons at the cost of degradation of environment is huge. To make quick money these persons have resorted to illegal mining, mechanized mining, illegal transportation, over-loading of trucks while causing serious damage to the river bed to the extent that it was genuinely apprehended that river may change its course and at the cost of its flow they have caused serious damage to the persons and property and the agricultural fields of the villagers particularly of villages Nuniyari and Jodhebans. Despite directions of the Court both the State Governments have failed to place on record any report which would define the damage caused due to the wrongful acts by these persons with exactitude and the exact money that would be required for restoration, restitution and revitalization of the environment, ecology and bio-diversity with particular reference to river Yamuna. It can safely but with certainty be concluded that there is large scale illegal mining, transportation and carrying on of screening/crusher plants by these persons. They have caused serious damage and degradation of the environment which they must make good of. However, with the help of documentary evidence and reports on record, the Tribunal would have to apply some guesswork while resolving this issue. Application of a limited guesswork is an accepted principle. The Supreme Court of India in the case of Sterlite Industries (India) Ltd. v. Union of India (UOI) and Ors., (2013) 4 SCC 575, had applied this principle while imposing the compensation of Rs. 100 crores upon the industry which has been operating without the consent of the Board for long. This principle was followed by the Tribunal in the case Krishan Kant v. NGRBA 2014 ALL (I) NGT REPORTER (3) (DELHI) 1 and S.P. Muthuraman v. Union of India & Ors. 2015 ALL (I) NGT REPORTER (2) (DELHI) 170 wherein after discussing the law in detail the Tribunal imposed a compensation of Rs. One crore and while applying these very principles, particularly the Polluter Pays Principle as enunciated in Section 20 of the NGT Act, the Tribunal held as under:

92. Once the nexus between the activity, particularly illegal activities, and the consequential damage to the environment and ecology is established, the liability in terms of Section 15 and 17 of the NGT Act arises. There could be cases where it is not possible to determine such liability with exactitude but that by itself would not be a ground for absolving the defaulting parties from their liability. On reasonable basis, such defaulters could be called upon to pay the environmental compensation. In the present case, the parties opted not to lead any evidence except the documents and affidavit that they had filed in support of their respective cases. It is also evident that over exploitation of the sources has been done by the private respondents and the noticees to the extent that it is likely to cause environmental threats. Restoration thereof would be a long drawn process and the private parties would be required to pay compensation even for restorative purposes. At present, we are dealing with the damage caused on approximate basis for continuous defaults and violation of the laws and specific terms and conditions of the EC and for their operation without consent of the concerned authorities including the State Pollution Control Boards. We have already held that the private respondents/noticees are involved in illegal and unauthorised mining, which they have carried on without consent of the State Pollution Control Boards and without grant of EC. They have carried on excessive unauthorised mining in a manner that has caused 120 substantial damage and degradation of environment, ecology and biodiversity. Thus, a compensation of Rs. 50 Crores is to be paid by each of the private respondents/notices who are carrying on the extraction of minor minerals and Rs. 2.5 Crores respectively by each of the stone crushers/screening plants which had been running illegally, in an unauthorised manner, without consent of the concerned Pollution Control Board.

Issue No. 5: Whether in the facts and circumstances of the present case, the Tribunal should issue interim guidelines and directions. If so, to what effect?

93. The preceding paragraphs of the judgment demonstrate complete failure of the Government Machinery, and regulatory authorities in preventing and controlling pollution arising from illegal and unauthorised mining, transportation and running of screening plants/stone crushers on the one hand, while, on the other hand, the private respondents and noticees have violated the law and terms of the EC under which they claim right to carry on such activity with intent and impunity.

The activity must be brought within the control of legal and regulatory regime. The concerned authorities of the Government and Boards should not only realise their responsibility and statutory obligation but should ensure that there is no unregulated exploitation of the natural resources and degradation to the environment. Respondents, including the State Government, the Boards, MoEF and other concerned authorities have permitted such activity despite orders of the Hon'ble Supreme Court of India, the High Courts and the Tribunal. There is definite evidence on record to show that illegal mining has continued even after recording the findings of the CEC report by the order of Hon'ble Supreme Court. Merely denying the authenticity of the photos, videos and other documentary evidences on the pretext that they were doctored would not amount to discharge of the onus placed upon the respondents, including the private and official respondents."

94. Permitting continuation of this illegal, unauthorised, unregulated and unscientific activity any further cannot be justified on any ground whatsoever. Economic interest of an individual or a group of individuals must not supersede the public interest. The Constitutional mandate of protecting the environment, ecology, rivers, water bodies and biodiversity must take precedence over financial gains. We are not oblivious of the fact that this activity provides construction material for development activity which is carried on a day to day basis. Firstly, we may notice that large scale illegal mining of minor minerals has already been taking place and such minerals are already available in the market. Thus, a temporary deferment would not cause any irreparable loss. Furthermore, the Governments of the respective States themselves have lost huge amounts of revenue which they would have received if this illegal, unauthorised, unregulated and unscientific mining and transportation of minor minerals would not have been permitted. Thus, it has even resulted in huge State revenue loss. The principle of Sustainable Development would come into play and temporary deferment of such activity can safely be directed in the interest of environment, requiring the authorities to bring a definite regulatory regime and mechanism in place so as to ensure that there is no such illegal, unauthorised, unscientific and unregulated mining and there is no damage or 121 degradation of environment, ecology and biodiversity. The persistence of this illegal activity further justifies passing of interim directions to bring the operation of such activity entirely in accordance with law. Few individuals must not be permitted to play with the provisions of law and tolerance of the nature should not be taken to be a licence to degrade the environment and ecology, more particularly, when the violations are coupled with lack of support from supervisory and regulatory authorities. Established judicial canons have permitted passing of interim directions wherever it is necessary and till the time a proper regulatory regime and mechanism becomes factually operative, to ensure prevention and control of pollution on the one hand, and degradation and damage to the environment, ecology and biodiversity on the other hand. We may refer to the Judgment of the Tribunal in the matter of S.P. Muthuraman v. Union of India & Ors. (supra) where the Tribunal has laid down the principle that it is not only permissible but essential for the Tribunal to pass appropriate interim directions in consonance with the scheme of the Act of 1986 read with provisions of the NGT Act , particularly its Preamble and Section 20 of the Act. One of the fundamental basis of Precautionary Principle is that all steps should be taken to protect the environment while permitting Sustainable Development. It is better to take precautions than restore the environment after its degradation. The Tribunal enunciated on this principle in the case of M/s Sterlite Industries (India) Ltd. v. Tamil Nadu Pollution Control Board , 2013 ALL (I) NGT REPORTER (DELHI) 368 and held as under:

107. Consequently, while disposing the OAs, Tribunal imposed a complete ban on mining of minor minerals (Bajri, Sand and Boulders) in the flood plain of river Yamuna in the District Yamunanagar (Haryana) and Saharanpur (Uttar Pradesh) and all other villages situated on the bank of river Yamuna and rivers Kaluwala Rao, Solani and Badshahibagh Rao for a period of 45 days. Tribunal also directed that no permission shall be granted for the same period for operation of any screening plant/stone crusher in entire district of Saharanpur in Uttar Pradesh and Yamunanagar in Haryana. Further Tribunal constituted a High-Powered Committee, as under:

108. The said Committee was further required to submit its report after both the States supply certain information and, in this regard, directions issued by Tribunal read as under:

109. Further directions issued by Tribunal with regard to constitution of High-Powered Committee and further action from para 95(10) to (16) read as under:

110. The OAs and all pending applications were disposed of with the above directions.

111. High-Powered Committee constituted vide order dated 18.02.2016 passed in OA 184/2013 (supra), submitted report dated 20.05.2016.

Tribunal found that it was not complete in all respects and hence required the Committee to submit fresh report containing all queries and directions issued vide its order dated 18.02.2016. Consequently, further report dated 08.09.2016 along with additional affidavit dated 09.09.2016 was filed in OA 176/2016, Gurpreet Singh Bagga vs. MoEF&CC & Ors. (Earlier OA 184/2013). The recommendation made in the said report read as under:

The mechanisms outlined for monitoring of mined out material through use of IT and IT enabled services should be followed. The movement of sand (mined out material) should be controlled through Transit Permit with security features like its Printing on IBA approved MICR paper; Unique Barcode; Unique QR code; Fugitive Ink Background; Invisible Ink Mark; Void Pantograph and Watermark. The DEIAA should ensure strict monitoring of movement of mined out material to ensure that no mining in excess of quantity mentioned in environmental clearance takes place. The riverbed mining in monsoon period from 1st July to 15th September should not be allowed.

2. The mining leases as identified in comprehensive Mine Plan for the district may be permitted to operate after obtaining all the requisite approvals.

3. In Saharanpur the investigation on loss and damage to environment of the area due to illegal sand mining is not completed, the identification of persons involved in illegal mining has not yet been done by the State, and no environmental compensation has been deposited (Stayed by Hon'ble Supreme Court in the Civil Appeal No. D-7484 of 2016 Mohd. Inam & Anr. Vs. Gurpreet Singh Bagga & Others and civil appeal No. 2667 of 2016 M/s Pradhan Stone Crushers Vs. Gurpreet Singh Bagga & Ors vide order dated 18.03.2016). In view of above HPC do not recommend commencement of mining in Saharanpur district of Uttar Pradesh. The crushers and screening plants may be operated only after obtaining the valid Consent to Operate under Air Act, 1981 from State Pollution Control Board. The State Government shall ensure that the raw- material used in crushers and screening plants shall not be illegally mined out.

4. The model environmental clearance conditions given at Annexure 2, suited to the site be prescribed in the environmental clearances and, its enforcement be strictly enforced by the DEIAA/SPCB, and Regional Offices of MoEFCC.

5. Both the States will activate the District Level Task Forces under District Magistrate constituted for monitoring sand mining and preventing illegal mining.

6. To ensure inter-state co-ordination there should be a quarterly meeting between the two District Level Task Forces, alternating in two district head quarters or any other site in two districts decided mutually by the District Magistrates.

7. The District Magistrates and Superintendent of Police will be jointly responsible for preventing illegal mining in their districts.

8. The duties on check posts either of police, revenue official or mining department officials be rotated every month.

9. The recovery of ecological compensation of Rs. 100 corers due to illegal mining as recommended in the CEC report of 2012 shall be recovered. The State Government of U.P. shall identify the violators and ensure the recovery of ecological compensation from them.

10. The assessment of ecological damage and restoration plan for illegal mining site in Saharanpur will be submitted by December 2016 by FRI. The State Government of U.P. shall ensure the implementation of restoration plan."

112. In Satendra Pandey vs. MoEF&CC & Another , OA 186/2016 filed on 18.04.2016, validity of notifications dated 15.01.2016 and 20.01.2016 amending EIA 2006 were challenged and a direction was sought that DEIAA should not function in the manner as provided in the said notifications.

113. When the above matter was pending, some further amendments were made in EIA 2006, as under:

B. Notification dated 01.07.2016 published in Gazette of India Extraordinary of the same date:

C. Notification dated 14.09.2016 published in Gazette of India Extraordinary on 15.09.2016:

D. Notification dated 23.11.2016 published in Gazette of India Extraordinary of the same date:

b) This notification also inserted Appendix XIII giving details of process for obtaining "no increase in pollution load" certificate-

permission from the State PCB.

E. Notification dated 25.07.2018 published in Gazette of India Extraordinary of the same date:

Appendix X of EIA 2006 was substituted.

b) Appendix X was substituted by this amendment and the substituted appendix X reads as under:

A survey shall be carried out by the District Environment Impact Assessment Authority with the assistance of Geology Department or Irrigation Department or Forest Department or Public Works Department or Ground Water Boards or Remote Sensing Department or Mining Department etc. in the district.

Drainage system with description of main rivers S. No. Name of the River Area drained % Area drained (Sq. Km) in the District (1) (2) Salient Features of Important Rivers and Streams:

A Sub-Divisional Committee comprising of (i) Sub- Divisional Magistrate, (ii) Officers from (a) Irrigation department, (b) State Pollution Control Board or Committee, (c) Forest department, (d) 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.

Methodology adopted for calculation of Mineral Potential:

(10) details of Royalty or Revenue received in last three years;

(11) details of Production of Minor Mineral in last three years; (12) mineral Map of the District;

(13) list of Letter of Intent (LOI) Holders in the District along with its validity as per the following format :-

Sl. Name Name Address Letter Area of Validity Use Location No. of the of the & of Mining of LoI (Captive/ of the Mineral Lessee Contact Intent lease to Non- Mining No. of Grant be Captive) lease Letter Order allotted (Latitude of No. & & Intent date Longitude) Holder 1 2 3 4 5 6 7 8 9 (15) quality /Grade of Mineral available in the District; (16) use of Mineral;

(17) demand and Supply of the Mineral in the last three years; (18) mining leases marked on the map of the district; (19) details of the area of where there is a cluster of mining leases viz. number of mining leases, location (latitude and longitude); (20) details of Eco-Sensitive Area, if any, in the District; (21) impact on the Environment (Air, Water, Noise, Soil, Flora & Fauna, land use, agriculture, forest etc.) due to mining activity; (22) remedial Measures to mitigate the impact of mining on the Environment;

(23) reclamation of Mined out area (best practice already implemented in the district, requirement as per rules and regulation, proposed reclamation plan);

(24) risk Assessment & Disaster Management Plan; (25) details of the Occupational Health issues in the District. (Last five-year data of number of patients of Silicosis & Tuberculosis is also needs to be submitted);

(26) plantation and Green Belt development in respect of leases already granted in the District;

(27) any other information.

The District Environment Impact Assessment Authority (DEIAA) based on the nature and type of minor mineral in the District may include the additional parameters in the District Survey Report in consultation with the Department of Mines and Geology of the concerned State Government.

The District Survey Report shall form the basis for application for environmental clearance, preparation of reports and appraisal of projects. The Report shall be updated once every five years";

F. Notification dated 14.08.2018 published in Gazette of India Extraordinary of the same date:

115. Besides some directions were also issued to concerned State Governments which we are omitting.

116. OA 186/2016, Satendra Pandey vs. MoEF & Ors. (supra) along with OA 200/2016, Rajeev Suri vs. Union of India ; OA 580/2016, Badal Singh vs. Union of India & Ors. ; OA 102/2017, Nature Club of Rajasthan (NGO) vs. Union of India & Ors. ; OA 404/2016, Naresh Zargar vs. Ministry of Environment & Forest and Anr.; OA 405/2016, Rajeev Suri vs. Union of India & Anr. and OA 520/2016, Vikrant Tongad vs. Union of India were decided vide judgment dated 13.09.2018. Tribunal found both the above notifications, partly, inconsistent with Supreme Court's judgment in Deepak Kumar (supra). The exemption granted to leases upto 5 ha in regard to procedure of appraisal by DIEAA was not upheld. The relevant extract of the judgment reads as under:

10. The Hon'ble Supreme Court also took note of the fact that the MoEF&CC had constituted a Core Group under the Chairmanship of the Secretary (Environment & Forest) to look into the environment aspects associated with mining of the minor minerals vide order dated 24th March, 2009 with specific terms and conditions. The Core Group after consideration of various issues including cluster of mine approach for addressing and implementing EMP in case of small mines, submitted a report on 29th January, 2010 with the recommendation to permit mining of minor minerals under strict regulatory regime and carried out only under an approved framework of mining plan which should provide for reclamation and rehabilitation of mine areas. For smaller mine lease areas a cluster approach was recommended. It was directed that the States should adopt the recommendations and the model guidelines framed by the Ministry of Mines, namely the Model Rules, 2010.

11. In pursuance of the directions, the impugned Notification dated 15th January, 2016 was ultimately issued. The MoEF&CC Notification dated 14th December, 2006 as it stood earlier prescribed for two categories of projects and activities as Category A and Category B based on the spatial extent of potential impacts, potential impacts on human health and natural and man-made resources. Stage (1)- Screening that provides for Category 'B' projects or activities, entail scrutiny of an application seeking prior Environment Clearance made in Form 1 by the concerned State Level Expert Appraisal Committee (SEAC) for determining whether or not the project or activity requires further environmental studies for preparation of EIA for appraisal prior to grant of Environment Clearance depending upon the nature and location specificity of the project. It further provides that the project requiring EIA report would be termed as Category 'B-1' and remaining projects as Category 'B-2' that would not require EIA report. Discretion to make such categorization was left upon the MoEF&CC and to issue appropriate guidelines from time to time. This provision was a subject matter of challenge in the case of Himmat Singh Shekhawat v. State of Rajasthan , 2015 ALL (I) NGT Reporter (1) DEL 44 by which it was upheld as having been issued by the Ministry as a Subordinate Legislation. However, the office memorandums dated 24th June, 2013 and 24th December, 2013 prohibiting grant of Environment Clearance to 143 the mine areas of less than 5 ha was quashed as being in conflict with the aforesaid provision.

12. The only contention that require for us to consider in this case is as to whether the Notification dated 15th January, 2016 would satisfy the spirit of the directions issued in the case of Deepak Kumar (supra). As already noted, EIA Notification dated 14th September, 2006 under the Schedule provided thereto require all mining lease area of equal to and up to 50 ha to seek Environment Clearance requiring to submit EIA for appraisal from the SEIAA.

13. The impugned Notification dated 15th January, 2016, however, would clearly indicate that Category B has been split into category B1 and B2 and again, category B2 has been further split into areas of 0-5 ha and 5-25 ha. While 0-5 ha has been exempted from the requirement of EIA/Public Consultation, such exemption has also been provided even for mining areas of 5 ha to 25 ha with the DEAC and the DEIAA as the prescribed authority for evaluation and grant of Environmental Clearance. Category B- 1 being mining areas of 25 ha to 50 ha, the authorities prescribed are the SEAC and SEIAA. For falling in excess of 50 ha being Category-A, it is the EAC and the MoEF&CC.

14. The procedure for grant of the Environment Clearance by the DEIAA for areas between 0 to 5 ha falling under Category 'B-2' is found prescribed in paragraphs 6, 7(iii) (a) and 7(iii) (b) of the impugned Notification read with appendices VIII, X and XI. The Schematic Presentation of Requirement of Environment Clearance of Minor Minerals including cluster situation provided in a table to Appendix XI would substantiate indubitably that even for areas between 5 to 25 ha, no EIA and Public Hearing is required and in cluster situation also, the requirement of EIA and Public Hearing have been exempted.

15. Introduction of such procedure, in our view, is clearly not consistent with the directions contained in the case of Deepak Kumar (supra) and the spirit behind such direction. By the provision, mining area upto from 5 ha to 25 ha has been completely exempted from the EIA and Public Consultation. For areas of 5 ha and below, apart from the exemption, it has been made only subject to a separate procedure of preparing a District Survey Report (DSR). These provisions quite apparently are more minecentric rather than striving a balance between mining and environment especially with regard to Form-1M which needs to be made more elaborate incorporating environment related aspects.

16. The Sustainable Sand Mining Management Guidelines, 2016 prepared by the MoEF&CC has also deprecated the procedure as will appear from below which is contained in the chapter on "The Issues and Management of Mining in Cluster":-

17. Thus, even according to the Sustainable Sand Mining Management Policy issued by the MoEF&CC by dispensing with Public Hearing, the judgment of the Hon'ble Supreme Court in the case of Deepak Kumar (supra) will stand defeated.

18. We also find that parameters for consideration while preparing District Mining Plan (DMP) and District Survey Report (DSR) are only for the purpose of ascertaining whether an area is fit for mining which are quite different from the parameters laid down for EIA. The consideration of the view point of the public by keeping DSR in public domain is not a substitute of Public Hearing for consideration of the view point of the public for EIA.

19. With specific reference to mining in cluster, the Report of the Committee of Secretaries, Ministry of Environment, Forest and Climate Change, 2010 recommended as follows:

20. This report which is a part of the Sustainable Sand Mining Management Guidelines, 2016 finds reinforcement in the Chapter "The Issues and Management of Mining in Cluster" referred to earlier where it has inter-alia been recommended as under:

These reports shall capture carrying capacity of the cluster, transportation and related issues, replenishment and recharge issues, geo-hydrological study of the cluster area. The Environment Impact Assessment or Environment Management Plan shall be prepared by the State or State nominated Agency or group of project proponents in the Cluster or the project proponent in the cluster.

6. The individual lease holders in cluster can use the same Environment Impact Assessment or Environment Management Plan for application for environmental clearance. The cluster Environment Impact Assessment or Environment Management Plan shall be updated as per need keeping in view any significant change.

7. There shall be one public consultation for entire cluster after which the final Environment Impact Assessment or Environment Management Plan report for the cluster shall be prepared.

8. The details of cluster Environment Impact Assessment or Environment Management Plan shall be reflected in each environmental clearance in that cluster and District Expert Appraisal Committee (DEAC), SEAC, and EAC shall ensure that the mitigative measures emanating from the Environment Impact Assessment or Environment Management Plan study are fully reflected as environmental clearance conditions in the environmental clearance's of individual project proponents in that cluster.

9. .............................................................

10. .............................................................

11. ............................................................."

21. Dispensing with the requirement of Public Hearing which forms a part of the Public Consultation under Stage-III of the Environmental Clearance process under EIA Notification, 2006 for areas measuring 0 to 25 ha for individual mine areas and in cluster situation where public hearing has been provided, has resulted in gross dilution of EIA Notification dated 14th 146 September, 2006. Such dilution would, in our view, result in its misuse by unscrupulous elements and the situation would revert back to the lawless state prevailing prior to the decision in the case of Deepak Kumar (supra). Stringent measures are, therefore, necessary if the rampant exploitation of the minor minerals is to be curbed. This apparently was also the view of the Hon'ble Supreme Court in the case of Deepak Kumar (supra).

22. For all these reasons, we direct that the procedure laid down in the impugned Notification be brought in consonance and in accord with the directions passed in the case of Deepak Kumar (supra) by (i) providing for EIA, EMP and therefore, Public Consultation for all areas from 5 to 25 ha falling under Category B-2 at par with Category B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided; (ii) Form-1M be made more comprehensive for areas of 0 to 5 ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA; (iii) if a cluster or an individual lease size exceeds 5 ha the EIA/EMP be made applicable in the process of grant of prior environmental clearance; (iv) EIA and/or EMP be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof; (v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and timeframe for replenishment after mining closure in an area; (vi) the MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining.

23. We have permitted retention of 0-5 ha as a category keeping in view that some States grant isolated single lease of 5 ha and less not falling in cluster situation for which stringent requirements in Form-1M will serve the purpose of providing safeguards for protection of the environment and sustainable mining of minor minerals. This is particularly true in smaller and mountainous States as will also appear from condition no. 2 under "The Issues and Management of Mining in Cluster" referred to earlier in para 20 of this order.

24. It is reiterated that any attempt to split the lease area for the purpose of avoiding the applicable regulatory regime shall be viewed seriously. This in our view will be in the interest of the environment as deliberated in detail in the case of Deepak Kumar (supra) and would also satisfy the Precautionary Principle and the Principle of Sustainable Development contemplated under Section 20 of the National Green Tribunal Act, 2010.

25. The MoEF&CC shall, therefore, take appropriate steps to revise the procedure laid down in the impugned Notification dated 15 th January, 2016 in terms of the above directions and observations so that it is conformity with the letter and spirit of the directions passed by the Hon'ble Supreme Court in Deepak Kumar (supra)."

117. In OA 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat) with OA 366/2015, National Green Tribunal Bar Association vs. Dr.Sarvabhoum Bagali (State of Karnataka), OA 368/2015, National Green Tribunal Bar Association vs. Dr.Sarvabhoum Bagali (State of Maharashtra); OA 173/2018 (Earlier O.A. No. 89/2017 (EZ), Sudarsan Das vs. State of West Bengal &Ors.; OA 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"; OA 44/2016, Mushtakeem vs. MoEF&CC & Ors.; OA 517/2015, Sandeep Kumar vs. MoEF&CC & Ors.;

OA 550/2015, Virender Kumar vs. MoEF&CC & Ors.; OA 530/2016, Sandeep Kumar vs. MoEF&CC & Ors.; OA 272/2016, M/s Ganga Yamuna Mining Co. vs. State of Haryana & Ors.; OA 481/2016, Joginder Singh vs. MoEF&CC & Ors.; OA 540/2015, Ved Pal Singh vs. MoEF&CC & Ors.; OA 90/2016, Chander Mohan Uppal vs. State of U.P. & Ors. and Execution Application No. 40/2017 in OA 517/2015, Sandeep Kumar vs. MoEF&CC & Ors., the issue of unregulated sand mining in various States was considered. Vide order dated 05.04.2019, Tribunal issued following directions:

MoEF&CC & Ors. and 16.01.2019 in Compliance of Municipal Solid Waste Management Rules, 2016. The Chief Secretaries may monitor and furnish reports as earlier directed.

(c) 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 may review monitoring mechanism in terms of directions of the Tribunal and guidelines of MoEF&CC.

(d) The Director Indian School of Mines, Dhanbad may appear in person on 26.07.2019 to explain why action be not taken for violation of order of this Tribunal.

(e) The State 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 may send further action taken reports by 30.06.2019.

(f) The Committee in terms of para 59 above may furnish its report within three months to the Tribunal by email at [email protected] ."

118. While the above matters were pending, some further amendments were made in EIA 2006 as under:

B. Notification dated 17.02.2020 published in Gazette of India Extraordinary on 18.02.2020:

of the schedule shall not require Scoping.

(iii) Sector specific Standard Terms of References developed by the Ministry of Environment, Forest and Climate 149 Change, from time to time shall be displayed on its website.

(iv) The Standard Terms of References shall be issued to the following projects or activities through online mode, on acceptance of application within 7 working days, without referring to EAC or SEAC by the Ministry or SEIAA, as the case may be:

paragraph (iv) above, shall be referred to the EAC or SEAC by the Regulatory Authority, as the case may be, within 30 days from the date of application, for recommending the specific ToR in addition to the Standard ToR, deemed necessary. In case, the regulatory authority does not refer the matter to the EAC or SEAC, as the case may be, within 30 days of date of application in Form-I, sector specific Standard ToR shall be issued, online, on 30th day, by the Regulatory Authority.

recommendation of the EAC or SEAC concerned. In case of such rejection, the decision together with reasons for the same after due personal hearing shall be communicated to the applicant in writing within sixty days of the receipt of the application.

(vii) The project proponent shall prepare the EIA report based on the sector specific Standard ToR as well as additional specific ToR, if any, stipulated by the EAC or SEAC.

(viii) The Terms of Reference for the projects or activities except for River valley and Hydroelectric projects, issued by the regulatory authority concerned, shall have the validity of four years from the date of issue. In case of the River valley and Hydro-electric projects, the validity will be for five years."

C. Notification dated 28.03.2020 published in Gazette of India Extraordinary of the same date:

CHH, dated the 14th February, 1990 of the Government of Gujarat.

9. Manual extraction of lime shells (dead shell), shrines, etc., within inter tidal zone by the traditional community.

10. Digging of wells for irrigation or drinking water purpose.

11. Digging of foundation for buildings, not requiring prior environmental clearance, as the case may be.

12. Excavation of ordinary earth or clay for plugging of any breach caused in canal, nallah, drain, water body, etc., to deal with any disaster or flood like situation upon orders of the District Collector or District Magistrate or any other Competent Authority.

13. Activities declared by the State Government under legislations or rules as non-mining activity."

D. Notification dated 21.05.2020 published in Gazette of India Extraordinary of the same date:

(ii) in paragraph 5, for sub-paragraph (c), the following sub-

paragraph shall be substituted, namely:-

(iii) in the APPENDIX VI, in item 7, the following proviso shall be inserted, namely: -

E. Notification dated 20.10.2020 published in Gazette of India Extraordinary dated 22.10.2020:

F. Notification dated 27.11.2020 published in Gazette of India Extraordinary of the same date:

G. Notification dated 18.01.2021 published in Gazette of India Extraordinary of the same date:

Scoping", after clause (viii), clause (ix) was inserted as under:

119. OA 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat) (supra) and other connected matters were finally decided vide judgment dated 26.02.2021. The issues were formulated in para 24 of order dated 26.02.2021 and relevant directions were issued thereafter which are reproduced as under:

Where neither CPC B nor MoEF&CC regional office exists, Chairman, SEIAA will tie up with the nearest institution of repute such as IIT to nominate an expert for being included in the Committee. Such inspection must be conducted at least thrice for each lease i.e. after expiry of 25% the lease period, then after 50% of the period and finally six months before expiry of the lease period for midway correction and assessment of damage, if any. The reports of such inspections be acted upon and placed on website of the SEIAA. Every lessee, undertaking mining, must have an environment professional to facilitate sustainable mining in terms of the mining plan and environmental norms. This be overseen by the SEIAA. Environment Departments may also develop an appropriate mobile App for receiving and redressing the grievances against the sand mining, including connivance of the authorities and also a mechanism to fix accountability of the concerned officers. Recommendations of the Oversight Committee for the State of UP quoted earlier may be duly taken into account.

The mechanism must provide for review at the level of the Chief Secretary at least once in every quarter, in a meeting with all concerned Departments in the State. The Chief Secretary UP may 155 ensure further action in the light of the report of the Oversight Committee.

Similarly, at National level, such review needs to be conducted atleast once in a year by the Secretary, Environment in coordination with the Secretaries Mining and Jalshakti Ministries the CPC B.

Publication of Annual Reports

29. We further direct all the States/UTs to publish their annual reports on the subject and such annual reports may be furnished to MoEF&CC by 30th April every year giving status till 31st March. First such report as on 31.03.2022 may be filed with the MoEF&CC by all he States/UTs on or before 30.04.2022. The report may also be simultaneously posted on the website of the Environment Department of the States/UTs. Based on such reports, MoEF&CC may consider supplementing its Guidelines from time to time. The MoEF&CC may prepare a consolidated report considering the reports from the States/UTs and publish its own report on the subject, preferably by 31st May every year.

Interaction at National Level

30. We direct the Secretary MoEF to convene a meeting in coordination with the CPC B and Mining and Jalshakti Ministries of Central Government and such other experts/individuals at National level and representatives of States within three months for interaction on the subject which may be followed by such meetings being convened by the Chief Secretaries in all States in next three months. Holding of such meetings will provide clarity on enforcement strategies and help protection of environment. All the applications are disposed of. Individual issues may be gone into in accordance with the mechanism to be involved as above."

120. Besides, some directions were also issued to concerned State Governments which we are omitting.

121. Some further amendments were made in EIA 2006 vide notification dated 02.03.2021 and onwards as under:

2. in paragraph 7, -

A. in the heading, the words "for New Projects" shall be omitted;

B. in the sub-paragraph (i), the words "For new projects or activities listed in the Schedule to this notification:" shall be inserted as heading to the sub-paragraph;

C. in the sub-paragraph (ii), -

(I) in the clause (a), after the words "application shall be appraised accordingly for grant of environmental clearance", the following words shall be inserted, namely: - "in respect of projects or activities other than falling in clause (b) and (c)";

(II) for clauses (b) and (c), the following clauses shall be substituted, namely: -

Explanation:- For the purpose of this sub-paragraph, "Pollution load" shall be determined on the basis of multiplication of quantity and concentration of different components and parameters (as provided or referred in the Prior Environment Clearance or the Environment Impact Assessment Report (EIA) and Environment Management Plan based on which such Prior Environment Clearance has been granted), in respect of emissions, effluents or discharge, solid, industrial hazardous waste and such other parameters notified under the Environment (Protection) Rules, 1986 as amended from time to time.'

4. for Appendix-XIII, the following Appendix shall be substituted, namely:-

i. 'no increase in pollution load' certificate from the Environmental Auditor or reputed institutions empanelled by the State Pollution Control Board or Pollution Control Committee or Central Pollution Control Board or Ministry;

ii. last Consent to Operate certificate for the project or activity; and iii. online system generated acknowledgement of uploading of intimation and 'no increase in pollution load' certificate on PARIVESH Portal;

4. The information so received shall be examined by the State Pollution Control Board or Union Territory Pollution Control Committee, as the case may be, who shall take decision on such information, received from the project proponent.

5. If on verification the State Pollution Control Board or Union Territory Pollution Control Committee, as the case may be, holds that the change or expansion or modernisation will result or has resulted in increase in pollution load, the exemption claimed under this clause shall not be valid and it shall be deemed that the project proponent was liable to obtain Prior Environmental Clearance before under taking such changes or increase, as per the clause (a) of sub-paragraph (ii) of paragraph 7 of this notification and the provisions of Environment (Protection) Act, 1986 shall apply accordingly.

Note: For removal of doubts, it is clarified that it shall be the responsibility of the project proponent to satisfy itself about 'no increase in pollution load' as a result of changes, expansion or modernisation, as the case may be, before under taking such changes or increase, and the project proponent shall be liable for action under the provisions of the Environment (Protection) Act, 1986 if on verification of facts or claim it is found that such change or expansion or modernisation involves increase in pollution load.".

B. Notification dated 18.03.2021 published in Gazette of India Extraordinary of the same date:

D. Notification dated 16.06.2021 published in Gazette of India Extraordinary of the same date:

F. Notification dated 12.04.2022 published in Gazette of India Extraordinary of the same date:

G. Notification dated 20.04.2022 published in Gazette of India Extraordinary of the same date:

H. Notification dated 09.05.2022 published in Gazette of India Extraordinary of the same date:

paragraph shall be included namely:-

shall be inserted;

(b) after the existing paragraph, the following proviso shall be inserted, namely :-

Guidelines issued in respect of sand mining pursuant to Supreme Court judgment in Deepak Kumar vs. State of Haryana (supra) and this Tribunal in OA 173/2018, Sudarsan Das vs. State of West Bengal & Ors. (supra) and OA 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat) NGT Bar (supra) etc. Sustainable Sand Mining Management Guidelines - 2016 (hereinafter referred to as 'SSMG-2016'):

124. Effect of sand and gravel mining was stated as under:

Excessive sediment deposition for replenishment increases turbidity which prevents penetration of light required for photosynthesis and reduces food availability of aquatic fauna.

c) Riparian habitat including vegetative cover on and adjacent to the river banks it controls erosion, provide nutrient inputs into the stream and prevents intrusion of pollutants in the stream through runoff. Bank erosion and change of morphology of the river can destroy the riparian vegetative cover.

d) Bed degradation are responsible for channel shifting, causing loss of properties and degradation of landscape, it can also undermine bridge supports, pipe lines or other structures.

e) Degradation may change the morphology of the river bed, which constitutes one aspect of the aquatic habitat.

f) Degradation can deplete the entire depth of gravelly bed material, exposing other substrates that may underlie the gravel, which could in turn affect the quality of aquatic habitat. Lowering of ground water table in the flood plain because of lowering of riverbed level as well as river water level takes place because of extraction and draining out of excessive ground water from the adjacent areas. So, if a floodplain aquifer drains to the stream, groundwater levels can be lowered as a result of bed degradation.

g) Lowering of the water table can destroy riparian vegetation.

h) Excessive pumping of ground water in the process of mining in abandoned channels depletes ground water causing scarcity of irrigation and drinking water. In extreme cases it may create ground fissures and subsidence in adjacent areas.

i) Flooding is reduced as bed elevations and flood heights decrease, reducing hazard for human occupancy of floodplains and the possibility of damage to engineering works.

j) The supply of overbank sediments to floodplains is reduced as flood heights decrease.

k) An un-scientific and unregulated sand and gravel mining tends to increase channel bank scouring and erosion. This causes a large degree of meandering of rivers and sometimes it could be in kms.

l) Rapid bed degradation may induce bank collapse and erosion by increasing the heights of banks.

m) Polluting ground water by reducing the thickness of the filter material especially if mining is taking place at top of recharge fissures.

n) Choking of sand layer which acts as filter for ingress of ground water from river by dumping of finer material, compaction of filter zone due to movement of heavy vehicles. It also reduces the permeability and porosity of the filter material.

o) Removal of gravel from bars may cause downstream bars to erode if they subsequently receive less bed material than is carried downstream from them by fluvial transport.

p) Ecological effects on bird nesting, fish migration, angling, etc.

q) Indiscrete mining activities lead to increased concentration of suspended sediment in the river which in turn causes siltation of water resources projects.

r) Un-scientific and unregulated sand and gravel mining leads to the severe health hazards like air quality degradation and dust fog.

s) Direct destruction from heavy equipment operation; discharges from equipment and refueling.

t) Biosecurity and pest risks.

u) Impacts on coastal processes.

The other deleterious impacts of indiscrete mining include Loss of riparian habitat resulting from direct removal of vegetation along the stream bank to facilitate the use of a dragline or through the process of lowering the water table, bank undercutting, and channel incision. The physical composition and stability of substrates are altered as a result of in-stream mining and most of these physical effects may exacerbate sediment entrainment in the channel.

Furthermore, the process of in-stream mining and gravel washing produces fine sediments under all flow conditions, resulting in a deposition of fine sediment in riffles as well as other habitats at low discharge. Excess sediment is considered the greatest pollutant in waters and constitutes one of the major environmental factors in the degradation of stream fisheries.

However, in-stream mining may contribute additional sediment to downstream reaches due to the disruption of substrate stability. Once sediment enters the stream, it is best to let natural geomorphological and hydrological processes reach a dynamic equilibrium, rather than further exacerbating the situation by additional disturbance.

All other things being equal:

125. In order to understand the details of Guidelines, it will be appropriate to notice herein the processes under the Guidelines mentioned on page 21 to 23, as under:

Following the above processes, to begin with it is important to prepare a survey document mapping the status of sand sources in a district. This survey should be conducted and report be prepared for each district. Though it is an acceptable fact that rivers cut across districts and States and every river is an ecosystem in itself. But, keeping in view the fact that the district is the most established unit of administration at which this kind of survey, planning and monitoring can be ensured effectively, it is proposed that every district will prepare this document taking the river stretch in that district as an ecological unit and inventorising other sources of sand in the district.

Besides, the production of aggregate in a particular area is a function of availability of natural resources, the size of the population, the economy of the area and various developmental and infrastructural works being undertaken in the area.

The natural resources must be utilized in environment friendly manner in scientific and systematic way and with the objective of sustainable development the policy on the subject should have provisions for protection of environment & ecology. These factors can be accounted for in a most efficient manner at district level.

The sustainable mining plan needs to be dynamic. A survey should be carried out by the District Environment Impact Assessment Authority (DEIAA) with the assistance of Geology Department, Irrigation Department, Forest Department, Public Works Department, Ground Water Boards, Remote Sensing Department and Mining Department etc. in the district at regular intervals.

The survey shall contain:

Based on this survey document, the action plan shall divide the river/stream/other sources of the District into the following categories:

The river/streams/other sources of sand and aggregate are studied on following parameters:

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.

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."

126. In the said Guidelines, other details with respect of cluster of mines are as under:

state boundary.

10. The Committee headed by the District Magistrate or District Collector will be empowered to appraise and grant EC for mining leases up to 5 ha in case of individual lease and up to 25ha in case of cluster for sand mining.

11. In case the mining leases are in cluster ( if periphery of one lease is within 500 meters), fowling are the categorization of projects:-

EVALUATING THE IMPACT OF SAND MINING To assess the impact of mining and effect of remedial measures can be assessed through monitoring. This is also required for mid-course corrections. Monitoring will provide data to evaluate the upstream and downstream effects of sand and gravel extraction activities, and long- term changes. A brief report summarizing the annual results of the physical and biological monitoring should document the evolution of the sites over time, and the cumulative effects of sand and gravel extraction. The summary should also recommend any modification of extraction rates needed to minimize impacts of extraction. Sand Replenishment, Geomorphology and Hydrology:

 To regulate the Sand & Gravel Mining in the Country since its identification to its final end-use by the consumers and the general public.

 Use of IT-enabled services & latest technologies for surveillance of the sand mining at each step.

 Reduction in demand & supply gaps.

 Setting up the procedure for replenishment study of Sand.  Post Environmental Clearance Monitoring.

 Procedure for Environmental Audit.

 To control the instance of illegal mining."

131. In para 4.0, monitoring and enforcement is dealt with and for identification of possible sand mining sources and preparation of District Survey Report, provisions are made in para 4.1 (4.1.1) which reads as under:

The source will include rivers, de-siltation of reservoir/dams, Patta lands/Khatedari Land, M-sand etc. The revenue department of Kerala already conducted river mapping and sand auditing of around 20 rivers of Kerala which is a good example wherein the profile of rivers was created at regular intervals and aggradation/deposition was identified along with water level. In the same study, benchmarks were also created at a prominent location at regular interval for future surveying. Such study helps the mining departments to identify the source of sand.

Thus, it is proposed that for preparation of district survey report, the auditing of rivers needs to be carried out. There is already a provision under MMDR Act 2015 for National Mineral Exploration Trust (MET) wherein a 2% of royalty amount to be deposited in the trust. This fund is used for mineral exploration in the country. The Sand Auditing is also a sort of identification of mineral and State Government may request Central Govt. for proving funds for river auditing. The Central Govt. (Ministry of Mines) may also explore the possibilities for providing the funds for river auditing. The other option is that State Govt. may conduct such studies by its own fund and the same may be recovered from the leaseholders to whom the mining lease will be allocated.

c) District Survey Report is to be prepared in such a way that it not only identifies the mineral-bearing area but also define the mining and no mining zones considering various environmental and social factors.

d) Identification of the source of Sand & M-Sand. The sources may be from Rivers, Lakes, Ponds, Dams, De-silting locations, Patta land/Khtedari lands. The details in case of Rivers such as [name, length of river, type (Perennial or Non-Perennial ), Villages, Tehsil, District], in case of Lakes, Ponds, Dams, De-silting locations [Name, owned/maintained by (State Govt./PSU), area, Villages, Tehsil, District] in case of Patta land/Khtedari lands [ Owner 176 Name, Sy No, Area, Agricultural/Non-Agricultural, Villages, Tehsil, District], in case of M-Sand Plant [Owner Name, Sy No, Area, Quantity/Annum, Villages, Tehsil, District], needs to be recorded as per format given in Annexure-I.

e) Defining the sources of Sand/M-Sand in the district is the next step for identification of the potential area of deposition/aggradation wherein mining lease could be granted. Detailed survey needs to be carried out for quantification of minerals. The purpose of mining in the river bed is for channelization of rivers so as to avoid the possibility of flooding and to maintain the flow of the rivers. For this, the entire river stretch needs to be surveyed and original ground level (OGL) to be recorded and area of aggradation/deposition needs to be ascertained by comparing the level difference between the outside riverbed OGL and water level. Once the area of aggradation/deposition are identified, then the quantity of River Bed Material available needs to be calculated. The next step is channelization of the river bed and for this central ¾th part of the river, width needs to be identified on a map. Out of the ¾th part area, where there is a deposition/aggradation of the material needs to be identified. The remaining ¼th area needs to be kept as no mining zone for the protection of banks. The specific gravity of the material also needs to be ascertained by analyzing the sample from a NABL accredited lab. Thus, the quantity of material available in metric ton needs to be calculated for mining and no mining zone.

Note: As physical survey with conventional method is time- consuming, use of unmanned aerial vehicle (UAV) may be explored to carry out the survey and finalizing the original ground level and for developing a 3D model of the area.

f) The permanent boundary pillars need to be erected after identification of an area of aggradation and deposition outside the bank of the river at a safe location for future surveying. The distance between boundary pillars on each side of the bank shall not be more than 100 meters.

g) Identifying the mining and no mining zone shall follow with defining the area of sensitivity by ascertaining the distance of the mining area from the protected area, forest, bridges, important structures, habitation etc. and based on the sensitivity the area needs to be defined in sensitive and non-sensitive area.

h) Demand and supply of the Riverbed Material through market survey needs to be carried out. In addition to this future demand for the next 5 years also needs to be considered.

i) It is suggested that as far as possible the sensitive areas should be avoided for mining, unless local safety condition arises. Such deviation shall be temporary & shall not be a permanent feature.

j) The final area selected for the mining should be then divided into mining lease as per the requirement of State Government. It is suggested the mining lease area should be so selected as to cover 177 the entire deposition area. Dividing a large area of deposition/aggradation into smaller mining leases should be avoided as it leads to loss of mineral and indirectly promote illegal mining.

k) Cluster situation shall be examined. A cluster is formed when one mining lease of homogenous mineral is within 500 meters of the other mining lease. In order to reduce the cluster formation mining lease size should be defined in such a way that distance between any two clusters preferably should not be less than 2.5 Km. Mining lease should be defined in such a way that the total area of the mining leases in a cluster should not be more than 10 Ha.

l) The number of a contiguous cluster needs to be ascertained.

Contiguous cluster is formed when one cluster is at a distance of 2.5 Km from the other cluster.

m) The mining outside the riverbed on Patta land/Khatedari land be granted when there is possibility of replenishment of material. In case, there is no replenishment then mining lease shall only be granted when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects, mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market. Cluster situation as mentioned in para k above is also applicable for the mining in Patta land/Khatedari land.

n) The State Government should define the transportation route from the mining lease considering the maximum production from the mines as at this stage the size of mining leases, their location, the quantity of mineral that can be mined safely etc. is available with the State Government. It is suggested that the transportation route should be selected in such a way that the movement of trucks/tippers/tractors from the villages having habitation should be avoided. The transportation route so selected should be verified by the State Government for its carrying capacity.

o) Potential site for mining having its impact on the forest, protected area, habitation, bridges etc, shall be avoided. For this, a sub- divisional 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 Annexure-II. The Sub-Divisional Committee after 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 Annexure-III. The details of the transportation need to be provided as in Annexure IV.

p) Public consultation-The Comments of the 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 public on the list of mining lease included in the DSR. The DSR should 178 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 sub-divisional 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), M-Sand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per Annexure-V. The details regarding cluster and contiguous cluster needs to be provided in Annexure-VI. The details of the transportation need to be provided in Annexure-VII."

132. Para 4.3 talks of mining plan and reads as under:

Develop a sediment rating curve at the upstream end of the potential reach using the surveyed cross-section. Using the historical or gauged flow rating curve, determine the suitable period of high flow that can replenish the extracted volume. Calculate the extraction volume based on the sediment rating curve and high flow period after determining the allowable mining depth.

j) Sand and gravel could be extracted from the downstream of the sand bar at river bends. Retaining the upstream one to two-thirds of the bar and riparian vegetation is accepted as a method to promote channel stability.

k) The flood discharge capacity of the river could be maintained in areas where there is a significant flood hazard to existing structures or infrastructure. Sand and gravel mining may be allowed to maintain the natural flow capacity based on surveyed cross-section history. Alternatively, off-channel or floodplain extraction is recommended to allow rivers to replenish the quantity taken out during mining.

l) The Piedmont Zone (Bhabhar area) particularly in the Himalayan foothills, where riverbed material is mined, this sandy-gravelly track constitutes excellent conduits and holds the greater potential for groundwater recharge. Mining in such areas should be preferred in locations selected away from the channel bank stretches.

m) Mining depth should be restricted to 3 meters and distance from the bank should be ¼th or river width and should not be less than 7.5 meters.

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

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

p) A buffer distance /un-mined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.

q) A buffer distance /unmined block of 50 meters after every block of 1000 meters over which mining is undertaken or at such distance as may be the directed/prescribed by the regulatory authority shall be maintained.

r) River bed sand mining shall be restricted within the central 3/4th width of the river/rivulet or 7.5 meters (inward) from 180 river banks but up to 10% of the width of the river, as the case may be and decided by regulatory authority while granting environmental clearance in consultation with irrigation department. Regulating authority while regulating the zone of river bed mining shall ensure that the objective to minimize the effects of riverbank erosion and consequential channel migration are achieved to the extent possible. In general, the area for removal of minerals shall not exceed 60% of the mine lease area, and any deviation or relaxation in this regard shall be adequately supported by the scientific report.

s) Mining Plan for the mining leases(non-government) on agricultural fields/Patta land shall only be approved if there is a possibility of replenishment of the mineral or when there is no riverbed mining possibility within 5 KM of the Patta land/Khatedari land. For government projects mining could be allowed on Patta land/Khatedari land but the mining should only be done by the Government agency and material should not be used for sale in the open market.

The minerals reserve for river bed area is calculated on the basis of maximum depth of 3 meters and margins, width and other dimensions as mentioned in para (s) above. The area multiplied by depth gives the volume and volume multiplied with bulk density gives the quantity in Metric Ton. In case of river bed, mineable material per hectare area available for actual mining shall not exceed the maximum quantity of 60,000 MT per annum."

133. Para 5.0 talks of replenishment study and reads as under:

5.2.3 Accuracy Assessment of Aerial Data:

 Ground Control Points (GCP) Collection: - Various GCPs were observed by using DGPS for Permanent Benchmarks and for control points.

 The summary of the elevation data from each section's profile based on the post-monsoon the survey should have mentioned in the table form.

 The detail of post-monsoon survey data in the tabular form shall be  The detailed comparison of both pre-monsoon and post- monsoon elevation data shall be attached  Cross-sectional depiction of deposition and erosion for each section in pre and post-deposition season shall be given supported by relevant field study data and plan."

134. There are other provisions with regard to enforcement and for the time being, we are omitting the same.

135. In the above backdrop, we proceed to consider whether non-

preparation of DSR as per Guidelines and replenishment data/study is fatal for grant of prior EC and whether the said exercise is mandatory.

136. EIA 2006 as amended by amendment notification dated 15.01.2016 which was made in order to give effect to the judgment of Supreme Court in Deepak Kumar vs. State of Haryana (supra), in para 7(iii) clearly contemplates preparation of DSR for sand mining or river bed mining and mining of other minor minerals for which procedure is given in Appendix X. 185

137. Appendix X says, "The District Survey Report shall form the basis for application for environmental clearance, preparation of reports and appraisal of projects...". The said provision has been maintained in EIA 2006 as subsequently amended by notification dated 25.07.2018 whereby Appendix X was substituted but with regard to DSR, it clearly says, "The District Survey Report shall form the basis for application for environmental clearance, preparation of reports and appraisal of projects."

138. The manner of preparation of DSR and the aspects required to be considered including replenishment study is also provided in the provisions of EIA 2006 as well as the directions contained in SSMG-2016 and EMGSM-2020. It is not disputed before us that SSMG-2016 and EMGSM-2020, being directions issued under EP Act, 1986 , are statutory and have to be implemented and followed in letter and spirit.

139. In State of Bihar & Ors. vs. Pawan Kumar & Ors. , (2022)2SCC348 (order dated 10.11.2021), Supreme Court considered SSMG-2016 and EMGSM-2020 and observed in para 10 to 15 as under:

Divisional Committee after 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 Annexure III. The details of the transportation need to be provided as in Annexure IV.

p) Public consultation-The Comments of the 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 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, de- siltation location (ponds/lakes/dams), M-Sand Plants (alternate source of sand)] after the public hearing needs to be defined in the final DSR in the format as per Annexure V. The details regarding cluster and contiguous cluster needs to be provided in Annexure VI. The details of the transportation need to be provided in Annexure VII."

12. It could thus be seen that in accordance with the 2020 Guidelines, the DSR is required to be prepared before the auction/e-auction/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 Sub-Divisional Committee is required to be formed which, after the site visit, is required to decide regarding the suitability of the sites for mining. The Sub-Divisional 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.

13. It is further to be noted that Appendix X of the Notification dated 15-1-2016, issued by MoEF and CC also provides for composition of the Sub-Divisional Committee:

14. It is to be noted that with the advent of modern 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.

15. 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 Sub-Divisional 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 ( Pawan Kumar v. State of Bihar , 2020 OnLine NGT 2848). The Sub-Divisional 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 district concerned. 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 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."

140. So far as this Tribunal is concerned, we find that repeatedly it has been held that preparation of DSR and replenishment study is a condition precedent for considering application for prior EC. It is obvious for the reason that EIA 2006 itself says that DSR is the basis for application for grant of prior EC and application without DSR means an incomplete document and such an application cannot be processed or proceeded further.

141. Incomplete information or incomplete documents would render an application for grant of prior EC liable to be rejected as held by Supreme 188 Court judgment in Hanuman Laxman Aroskar vs. UoI & Others (2019)1SCC401. It was an appeal taken to Supreme Court, from a judgment/order dated 21.08.2018 passed by this Tribunal in Appeal No. 5/2018 (earlier Appeal No. 61/2015/WZ), Federation of Rainbow Warriors vs. Union of India & Ors. and Appeal No. 6/2018, Hanuman Laxman Aroskar vs. Union of India , wherein grant of EC for development of green field International Airport at Mopa, Goa, was challenged. Project was in category 'A' hence as per EIA 2006 'Prior EC' was to be granted by MoEF. EC was granted on 28.10.2015. It was challenged by M/s. Federation of Rainbow Warriors in Appeal No. 61/2015 at Tribunal's Western Zonal Bench, Pune. Another Appeal No. 1/2016 was filed by Hanuman Laxman Aroskar at NGT, Western Zonal Bench, Pune. Both these appeals were transferred to Principal Bench at New Delhi and numbered as Appeal No. 5 and 6 of 2018 respectively. One of the issues raised before Supreme Court was; PP did not give complete information in Form 1 submitted to the Competent Authority for grant of EC; PP is duty bound to make a proper disclosure and highest level of transparency is required; and there was concealment of certain facts by leaving certain columns blank or by not giving required details. It was contended that for these reasons, application for EC ought to have been rejected.

142. Supreme Court considered scheme of EIA 2006 in detail. Going into historical backdrop of EIA 2006, Court said that by Constitution (Forty-

second Amendment) Act 1976 w.e.f. 03.01.1977, Article 48A was inserted to the Constitution which mandates that State shall endeavor to protect and improve environment and safeguard forests and wildlife of the country; Article 51A(g) of Constitution places a corresponding duty on every citizen to protect and improve natural environment including forests, 189 lakes, rivers and wild life and to have compassion for living creatures;

following decisions taken at United Nations Conference on Human Environment held at Stockholm (Stockholm Conference) in June 1972, in which India also participated, Parliament enacted EP Act, 1986 to protect and improve environment and prevent hazards to human beings, other living creatures, plants and property; on 27.01.1994, MoEF&CC, in exercise of powers under Section 3(1) read with (2)(v) of EP Act, 1986 and Rule 5(3)(d) of EP Rules, 1986, issued notification, S.O. 60(E), 1974, imposing restrictions and prohibitions on the expansion and modernization of any activity or new project unless an EC was granted under the procedure stipulated in the notification; Notification contemplated that any person undertaking a new project or expanding and modernizing an existing project, would submit an application to the Secretary, MoEF; application to be made in accordance with Schedule, also provided that, it shall accompany project report including EIA Report, an Environment Management Plan (hereinafter referred to as 'EMP') and other details as per the Guidelines issued by Government from time to time; Competent Impact Assessment Agency would then evaluate application and submit report; and if necessary, it is also empowered to constitute a Committee of Experts which would have a right of entry into and inspection of the site during or after the commencement of the preparations relating to the project; concealment of any factual data or submitting false or misleading information would make the application liable for rejection and would lead to cancellation of any EC already granted on that basis; EIA 1994 was superseded by EIA 2006; real distinction between EIA 1994 and EIA 2006 is that in the later EC must be granted by Regulatory Authority prior to commencement of any construction work or preparation of land; EIA 2006 divides all projects in Category A and Category B projects; under EIA 1994, PP was required to 190 submit application along with all reports including EIA report but under EIA 2006 prior to preparation of EIA report by PP, the authority concerned would formulate comprehensive Terms of Reference (hereinafter referred to as 'ToR') on the basis of information furnished by PP addressing all relevant environmental concerns; this would form the basis for preparation of EIA Report; a pre-feasibility Report is also required to submit with the application unless exempted in the Notification; under EIA 1994, final approval was granted by Impact Assessment Authority but under Notification of 2006, final regulatory approval is granted by MoEF&CC or SEIAA, as the case may be; but approval is to be based on recommendations of EAC functioning in MoEF&CC or State Expert Appraisal Committees (SEACs) which are constituted for that specific purpose; thus the salient objective which underlies EIA 2006 is protection, preservation and continued sustenance of environment when the execution of new projects or the expansion or modernization of existing projects is envisaged; it imposes certain restrictions and prohibitions based on the potential environmental impact of projects unless 'Prior EC' has been granted by the authority concerned.

143. Supreme Court said that an application must be submitted prior to the commencement of any construction activity or preparation of the land at the site. The process to obtain EC comprised broadly 4 stages i.e. (i) Screening, (ii) Scoping, (iii) Public Consultation and (iv) Appraisal.

The step of screening is restricted to Category B projects. It entails an examination of whether the proposed project or activity requires further environmental studies for preparation of an EIA for its appraisal prior to grant of EC. The projects requiring an EIA are further categorized as Category B1 projects and remaining projects are categorized as Category B2 projects. Category B2 projects do not require an EIA. The categorization 191 is in accordance with the guidelines issued by MoEF&CC in this regard from time to time. The stage of scoping requires formulation of comprehensive ToR so as to address all relevant environmental concerns for the preparation of EIA. Amongst other things, information furnished by applicant in Form 1 and Form 1A along with the proposed ToR forms the basis for preparation of ToR. Public consultation at the third stage is attracted in all Category A and Category B1 projects. Summary of EIA is prepared in the format given in Appendix IIIA on the basis of ToR furnished to the applicant. This stage involves the process by which concerns of local affected persons and others who have plausible stake in the environmental impact of the project or activity are ascertained with a view of taking into account all the material concerns in the project or activity design as appropriate. The stage of appraisal involves detailed scrutiny by EAC or SEAC of all documents submitted by applicant for the grant of EC.

The appraisal is carried out in a transparent manner in a process to which PP is also invited for furnishing clarification in person or through an authorized representative. The scheme requires Regulatory Authority to examine documents strictly with reference to ToR and if there is any inadequacy to communicate to EAC or SEAC within 30 days of receipt of the documents; recommendations made by EAC or SEAC are then required to be considered by MoEF&CC or concerned SEIAA who are supposed to communicate their decision to PP within 45 days of receipt of the recommendations. Ordinarily Regulatory Authorities are supposed to accept recommendations of EAC or SEAC. In case of disagreement, Regularity Authority is required to seek a reconsideration of recommendations by the concerned recommending body. Importance of provisions of EIA 2006 in reference to protection of environment has been stressed upon by Supreme Court in para 56 of the report (SCC) as under:

144. Court also observed that under EIA 2006, process of obtaining an EC commences from the production of information stipulated in Form 1/Form 1A; crucial information regarding particulars of proposed project is sought to enable EAC or SEAC to prepare comprehensive ToR which applicant is required to address during the course of preparation of EIA.

Relevant observations in para 60 of judgment are as under:

(Emphasis added)

145. The importance of correctness and transparency of the information and that any false statement or concealment of the same would be fatal, was particularly stressed by Court in para 62 of judgment, observing:

(Emphasis added)

146. Supreme Court also referred and approved two judgments of this Tribunal in Save Mon Region Federation vs. Union of India , 2013 (1) All India NGT Reporter 1 and Shreeranganathan K P vs. Union of India 2014 SCC online NGT 15 wherein, on the basis of information furnished in Form 1, the deficiencies in EIA Report, process of appraisal etc., were considered in detail to find out whether EC was granted in accordance with law or not. Court distinguished an earlier judgment in Lafarge Umiam Mining Private Limited vs. Union of India 2011 (7) SCC 338 observing that it was the case under EIA 1994 when provisions of EIA 2006 were not applicable. Court said that decision was based on facts of that case, summarized by Court in Hanuman Laxman Aroskar (supra) in para 138 of judgment. It was also held that, relevant material, if has been excluded for consideration or extraneous circumstances were brought in mind, there was a failure to observe binding norms under EIA 2006 and consequential serious flaw in the decision-making process, would amount to an illegal exercise and failure of statutory duty, so as to vitiate EC. In para 157 of judgment, importance of the correct and complete disclosure of information by PP in his application, Form 1 and Form 1A, and further consideration by Competent Authority has been discussed, as under:

(Emphasis Added)

147. Further, in para 158 of the judgment, in Hanuman Laxman Aroskar (supra), Court observed:

(Emphasis Added)

148. Supreme Court ultimately held that report of EIA based on incomplete information supplied by PP is vitiated. In para 159, it is said:

(Emphasis Added)

149. Manner in which application submitted for grant of EC has to be dealt with by SEIAA or MoEF, has been considered in Bengaluru Development Authority v. Sudhakar Hegde & Ors. ; (2020) 15 SCC 63.

Supreme Court had an appeal arising from NGT's judgment dated 08.02.2019, whereby EC granted to appellant (BDA) for development of an eight lane Peripheral Ring Road connecting Tumkur Road to Hosur Road, a length of 65 kilometers was quashed, on the ground that report was 196 based on primary data collected more than three years prior to submission to SEIAA. Tribunal directed that PP will not proceed on the basis of EC, which was quashed. Three issues were raised before Supreme Court. For our purpose, relevant question is, "whether EIA 2006 was followed or not".

In para 87 of judgment, Court said that "appraisal by SEAC is structured and defined by EIA Notification, 2006. At this stage, SEAC is required to conduct "a detailed scrutiny" of the application and other documents including EIA report submitted by applicant for grant of an EC. Court also said that upon completion of appraisal processes, SEAC makes "categorical recommendations" to SEIAA either for grant of a 'Prior EC' on stipulated terms and conditions or rejection of the application. The recommendations made by the SEAC for the grant of EC, are normally accepted by the SEIAA and must be based on "reasons"."

(Emphasis Added)

150. DSR which is prepared as per the procedure prescribed and after collecting all the relevant material and considering all relevant aspects, is a basic document which must accompany application submitted for grant of prior EC. The appraisal Committee has to examine the application along with relevant documents filed with the application. When DSR prepared as per prescribed procedure itself is not made part of application, the question of its appraisal does not arise and, therefore, appraisal made on incomplete document filed with application is no appraisal in the eyes of law and it will vitiate the ultimate action i.e., recommendation by SEAC and approval granted by concerned authority for EC.

151. The importance of DSR and replenishment study was also considered by this Tribunal in OA 557/2017, Anjani Kumar (supra) and other connected matters i.e., OA 615/2017, Ram Pal Singh vs. MoEF&CC, OA 616/2017, Devendra Singh Parmar vs. State of Uttar Pradesh , OA 624/2017, Pawan Kumar Mishra vs. State of Uttar Pradesh , OA 631/2017, Rakesh vs. Union of India , OA 633/2017, Gram Panchayat, Imaliya vs. 197 MoEF&CC, OA 625/2017, Prem Chandra Agrahari vs. State of Uttar Pradesh , OA 634/2017, Brajbhushan Singh Yadav vs. MoEF&CC, OA 636/2017, Sanjay Pratap Singh vs. State of Uttar Pradesh , OA 639/2017, Anil kumar vs. State of Uttar Pradesh , OA 647/2017, Pragati Kumar vs. MoEF&CC, OA 648/2017, Pravesh vs. MoEF&CC and OA 326/2017, Pravin Kumar Singh vs. Union of India . A three Members Bench vide judgment dated 08.12.2017 considered the validity of sand mining policy dated 14.08.2017 issued by State of UP in the light of provisions of EP Act, 1986 and SSMG-2016. After referring to Supreme Court judgment in Deepak Kumar (supra), Tribunal referred to SSMG-2016 and observed that there is a greater emphasis therein in preparation of DSR which shall be harbinger for further action. Tribunal discussed the importance of DSR in para 30 to 36 as under:

Besides the object of insisting upon preparation of District Survey Report as a first important initial step is to take into account the production of aggregate in a particular area of sand and gravel is relatable to availability of natural resources, the size of population, the economy of the area and various developmental and infrastructural works being undertaken in that area. There is a clear mandate that the natural resources must be utilized in environment friendly manner "in scientific and systematic way and with the objective of sustainable development the policy on the subject should have provisions for protection of environment and ecology". It had to be accounted for in a most efficient manner at a district level itself.

31. The sustainable mining plan must be dynamic and for this purpose, survey should be carried out by the District Environment Impact Assessment Authority (DEIAA) with the assistance of Geology Department, Irrigation Department, Forest Department, Public Works 198 Department, Ground Water Boards, Remote Sensing Department and Mining Department etc. in the district at regular intervals.

32. The State Government was required to incorporate in the Survey Report:

33. Based on the Survey Report relating in collection of the data, from the above points the survey document has to be prepared which must be the basis for action plan and divide the river/stream/other sources of the District into 2 categories namely

a) River/Stream beds sections/other sources suitable for extraction of sand and aggregates.

b) River/Stream beds sections/other sources prohibited for extraction of sand and aggregates.

34. There is a clear requirement that the geomorphological study must also form the integral part of this exercise regarding place of origin, catchment area, general profile of the river stream, annual deposition factor, replenishment and total potential of minor mineral in the river bed. Geological study should contain lithology of catchment area and tectonics and structural behavior of rocks and climate factors like rainfall, climate zone and temperature variation.

The river/stream for mining be considered/selected following parameters in the said Guidelines which are as under:

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.

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.

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."

35. Among other information, the District Survey Report has to record details of the protection of sand or bajiri or minor minerals in the last 3 years, process of deposition of sediments in the rivers of District, general profile of the District. Whether the river is stable and able to constantly transport the flow of sediments produced by watershed such that its dimensionswidth and depth pattern and vertical profile are maintained without aggrading- building up or degrading- scouring down?

36.What should be the content of District Survey Report is spelled out and a method to be adopted for calculating the mineral potential is also prescribed?"

Likewise the policy will defeat in its objective before identifying the measures for protection of environment and ecology in relevant districts while sand mining is carried on and safeguards for checking illegal and indiscrete mining in an area is preventive.

85. We can notice that the Government of India acknowledging the relevance of District Survey Report in ensuring formulation of safe sustainable mining plan has incorporated and amended to sand mining management guidelines, 2006 in 2006 notification vide amendment dated 15.01.2016 for recognizing the importance of a District Survey Report by the said amendment in para 7(iii) incorporated which reads "Preparation of District Survey Report for Sand Mining or River Bed Mining and Mining of other Minor Minerals"

86. While giving the procedure for preparation of District Survey Report in appendix-X, Central Government in 2006 Notification has reiterated the laudable objective and essentiality of preparation of District Survey Report i.e. to identify areas of aggradations or depositions where mining could be allowed and identification of areas of erosion and proximity to infrastructural structure and installations where mining could be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining in that area.

87. Appendix-X is therefore relevant that requires survey report shall be carried out by the District Environment Impact Assessment Authority i.e. DEIAA with the assistance of Geology Department or Irrigation Department or Forest Department or Public Works Department or Ground Water Boards or Remote Sensing Department or Mining Department in the District. This bring to surface the un- doubtable importance of the District Survey Report and the onerous responsibility of DEIAA.

88. It is not in dispute, in the instance cases, the State of UP has not waited for the report of DEIAA while issuing E-Notice for E-Tender for E-Biding in respect of various rivers for grant of mining lease. It has proceeded on its own volition on the basis of so called survey reports given to it by District Magistrate regarding evaluation of quantity and quality of minerals said to have been done by the District Officer. In other words they have by their own mechanism collected the evaluation and used it as a prior material information for issuing E-Notice inviting E-Tender for E-Biding.

89. It is not in dispute that the said report was not in public domain for 21 days before issuing E-Tender/E-Notice because that is different report than the District Survey Report referred to in the aforesaid guidelines issued by MoEF and the mandate of amended rules framed by the State Government under the provisions of MMRD Act .

Therefore we are satisfied that the issuance of E-Notice by E-Tender on an in-sufficient material information of vital importance relating to environment when the State Government issues E-Notice inviting E- Tender for E-Biding for grant of mining lease. We may observe without expressing opinion on the competence of the State Government to issue E-Tender inviting E-Notice for E-Biding which is under the provisions of Rule made under the provisions of MMRD Act which is not a schedule statute in the NGT Act we have examined its ultimate effect and the basis on which it is issued for ascertainment of its effect on the environment. In this regard the material on the basis on which such mining policy 2017 was framed for grant of mining lease needs a thorough judicial scrutiny.

90. The State of UP has not disputed as on the date of issuance of impugned E-Notices inviting E-Tender for E-Biding the District Survey Report was not in existence and same was not prepared by the DEIAA and that only material at had was survey report of evaluation submitted by District Officer that to be survey conducted during rainy season were there could not have been a realistic evaluation of quality and quantity of the minerals the importance of District Survey Report which we have held is of significance.

91. MoEF&CC vide notification dated 15th January, 2016 had amended the regulation/notification dated 14th September, 2006 in relation to carrying on of mining activities as stated above in terms of the Judgment of the Hon'ble Supreme Court in the case of Deepak Kumar and Himmat Singh Sekhawat judgment of this Tribunal and even in terms of the Notification of 2006 obtaining the prior Environmental Clearance to the carrying on of mining activity is held to be mandatory. Even the Notification of 15th January, 2006 does not change that status. In fact the Mining Rules framed by the State of UP in terms of U.P. Minor Mineral Concessions Rules 2017 it is mandatory to obtain environment Clearance prior to carrying on of any mining activity under the lease granted to minor-mineral by the State Government. In that sense we are examining the Mining Policy 2017 of the State of UP and the E-Notice issued only from the point of view of environmental protection. Rule 34 of the said Rules mandates that there should be sufficient safeguards provided for environmental protection and in that sense DSR is initial step. Stricto senso we are not concerned with the tenders invited by the State Government under its mining policy which does not fall within the scope of jurisdiction of this Tribunal. However, the State in terms of its constitutional obligations contained in Article 48(A) read with the Principle of Sustainable Sand Mining, the very foundation of the Sand Mining Policy, 2017 of the State and the Judgment of the Tribunal, is obliged to provide due protection and safeguards for the environment protection before it can generate revenue by utilization of its natural resources. The State Government holds these assets in public interest. The Doctrine of Public Trust requires the State Government to ensure that the natural resources including sand mining is not permitted to be wasted opposed to the Principle of intergenerational equity. The mining policy does have deficiencies and does not incorporate all the provisions of Environmental protection as contemplated in the minor mineral rules of the State of UP. We are not concerned whether the State ought or ought not have invited tenders on the basis of so called surveys conducted under the mining rules but we are certainly concerned with that no environmental degradation is permitted as a 203 result of indiscrimate unregulated mining without compliance to the laws enforce. Obtaining prior Environmental Clearance is not optional therefore, all other laws in other fields than environment must tilt in favour of the environmental laws and non should be permitted to carry on the activity of extraction of minor minerals including sand unless the requirement of environmental laws are fully satisfied.

92. The E-tender cum E- Auction in terms of Rule 23(iv) does give the power to the District officer to get evaluated for quality and quantity of the minerals for fixing the minimum bid. This exercise squarely falls within the ambit of commercial policy of the State Government under the provisions of the Mining Policy and but cannot form an exception to compliance of the environmental laws as contemplated under the Mining Rules of 2017 as well as Appendix- x. Appendix-x while refereeing to Sustainable Sand Mining Guidelines also directs to ensure providing of the details as contemplated under the said Appendix. It states that the main object of preparation of District Survey Report is to ensure 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 and calculation of annual rate of replenishment and allowing time for replenishment after mining area. Thus, the environmental protection requires a strictly regulated mining in terms of area, quantity as well as most importantly replenishment thereof.

93. It is true that under the Mining Policy/Rules the State is empowered to conduct survey for the purpose of inviting bids opine. The preparation of DSR and obtaining of Environmental Clearance is also a condition precedent to carrying on mining activity. It is for the State Government to ensure that there is no conflict between the two and they are balanced so as to ensure that neither there is scope for illegal mining nor there should environmental degradation.

94. The information or data collected by the authorized officer of the State Government under Mining Act for inviting tenders would not be and cannot be the base for compliance of Appendix- x as it is not a substitute for the District Survey Report referred to which must be prepared by District Environment Impact Assessment Authority the body in terms of Appendix-x. In light of the above discussion we pass the following orders and directions:

95. With the above directions, Original Application No. 557/2017 is deposed of along with connected Original Application No. 615 of 2017, Original Application No. 616 of 2017, Original Application No. 624/2017, Original Application No. 631 of 2017, Original Application No. 633 of 2017, Original Application No. 625/2017, Original Application No. 634 of 2017, Original Application No. 636/2017, Original Application No. 639 of 2017, Original Application No. 647 of 2017, Original Application No. 648 of 2017 and Original Application No.326 of 2017with no order as to costs.

96. In view of the above all the miscellaneous applications are disposed of as the main applications stands disposed of."

153. It is evident that in OA 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat) (supra), Tribunal clearly said that provisions of SSMG-2016 and EMGSM-2020 shall be reinforced by mechanism for preparation of DSRs strictly.

154. Learned Counsel appearing for PP stated that a survey was made by the officer of Geology Department but an officer of Geology or Mining Department is a member of the Survey team but himself cannot constitute the entire survey team as contemplated under the statutory provisions and a survey which has to be conducted by a team comprising members 205 from different departments, cannot be substituted by the alleged survey conducted by an officer of Geology or Mining Department. This contention has no substance, hence rejected.

155. OA 63/2020 (EZ), Haripada Manna & anr. v. District Collector, Balasore & ors. (supra), decided by Eastern Zonal Bench (Kolkata) vide judgment dated 08.02.2022 and therein, it has been held that unless DSR is appraised by State EAC and approved by concerned SEIAA, mere preparation of DSR by District Authority will not be valid basis to issue prior EC and no mining activities can be allowed in such case. Para 19 to 21 of the judgment are reproduced as under:

3943/SEIAA dated 28.01.2022 and pass appropriate orders in accordance with law within a period of one month.

21. Until such order is passed by the State Environment Impact Assessment Authority (SEIAA), Odisha, we direct that all processes of auctioning in respect of sand mining in the District-Balasore, Odisha, shall remain stayed and shall be subject to any order which may be passed by State Environment Impact Assessment Authority (SEIAA), Odisha."

156. It was argued by Learned Counsel appearing for PP that in State of Bihar vs. Pawan Kumar (supra), Apex Court permitted mining while granting time for preparation of DSR. However, we find the facts of the above case are totally different and reasons have been given by Supreme 206 Court itself as is evident in para 8 and also ultimate directions contained in para 16.1 and 16.2 which are reproduced as under:

157. Importance of environment and environmental laws can be seen from the observations of Supreme Court in para 48 and 49 of the judgment passed in Himachal Pradesh Bus-Stand Management and Development Authority (H.P. BSM&DA) vs. Central Empowered Committee & Others (2021)4SSC309 wherein court said:

158. The issue raised in this Appeal is, thus, squarely covered by the above authorities. We find that the statutory procedure has not been followed by SEIAA, J&K while granting prior EC, in letter and spirit though the provisions are mandatory particularly having direct impact upon environment. Sand mining in river bed has serious consequences. In State (NCT of Delhi) vs. Sanjay , (2014)9SCC772, in para 19, Court has observed:

stream sand-and-gravel mining from riverbeds and like resources causes the degradation of rivers. It is further observed that apart from threatening bridges, sand mining transforms the riverbeds into large and deep pits, as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry. Even otherwise, sand/mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form. As the provisions of Section 23-A are not under challenge and Section 23-A of the MMDR Act so long as it stands, we leave the matter there and leave it to the wisdom of the legislatures and the States concerned."

159. Learned Counsel appearing for PP also argued that mining activities only upto one meter depth was allowed and it takes care of absence of DSR and replenishment study but when questioned, could not show any provision where under if mining for one meter depth is allowed, in such a case requirement of preparation of DSR or replenishment study can be dispensed with. In fact, under EIA 2006 as amended by notifications dated 15.01.2016 and 25.07.2018, there is no exception in respect of preparation of DSR and the same thing has been reiterated in SSMG-2016 and EMGSM-2020.

160. Non-preparation of DSR as per guidelines and absence of replenishment study is a fact which has not been disputed before us by 209 Learned Counsel appearing for PP. Stand taken by respondent 1 and 4 in the written reply submitted before us also does not show anything otherwise.

161. In view of the above discussion, we are left with no option but to return issues I and II in positive, in favour of appellant and against respondents including PP/respondent 4.

162. In this case, it has been brought to our notice that Rule 4(iv) of J&K Minor Mineral Rules, 2016 has been amended by SRO 267 dated 03.07.2017 and restriction has now been reduced to 10 meters from river embankment. The Learned Counsel for appellant could not address us on this amendment but contended that even if the amendment is taken into consideration, clearance has been granted to PP to undertake mining even within 10 meters distance from the embankment which is contrary to Rule 4(iv) of J&K Minor Mineral Rules, 2016. However, from the EC, it could not be disclosed that such a permission, as claimed by appellant, has been granted. Therefore, we answer issue III in negative and against appellant.

165. PP/respondent 4 in its reply dated 29.07.2022 in para 6 has said, "the Project Proponent has used JCBs and loaders only for the purpose of approach making since big sized boulders were lying in the approach which could not be removed manually, and also for the loading of mined minerals on the dumpers/trucks since loading of big sized boulders manually was also not feasible."

166. The above stand taken by PP is an admission of use of heavy machines for excavation. Once it is admitted that the boulders were such big sized, not capable of removal or uploading without use of heavy machines like JCBs etc., it is difficult to conceive that the same could have been be mined without use of heavy machines.

167. When questioned from the Learned Counsel for PP that if mined boulders were so big sized that the same could not be loaded on the dumpers/trucks manually, how such boulders could have been mined from the mining area without use of such machines, we did not receive any satisfactory reply and it is said that whatever is/was the factual position that has been stated in the reply of PP.

168. Though some further violations are alleged but not pressed during the course of the arguments by appellant, perhaps since there is no sufficient material on record to substantiate the same. Be that as it may, issue IV has to be answered in affirmative and in favour of appellant, once it is evident that one of the specific conditions of EC with regard to prohibition of use of heavy machines has been violated by PP.

169. The violation of condition of EC by itself will not vitiate the EC but may cause penal action like cancellation of EC or cancellation of mining contract and/or imposition of environmental compensation and other remedial and punitive action as provided in law. Since it is within the competence of J&K PCB to take appropriate action in this regard, we direct J&K PCB to take appropriate action on this aspect.

170. In light of the discussion made above in particular, the findings recorded in respect of issues I and II, we are clearly of the view that ECs in question cannot be upheld. The same are accordingly set aside.

However, it will be open to the parties concerned to take fresh steps in accordance with law for grant of fresh EC.

171. Issue V is answered accordingly.

172. The Appeal is allowed. Impugned ECs dated 19.04.2022 are hereby set aside. PP/respondent 4 is restrained from carrying on any mining activities pursuant to impugned ECs. J&K PCB and District Magistrate Budgam shall ensure compliance of this direction. J&K PCB shall also comply with the directions issued above with regard to determination of environmental compensation.

173. Copy of this order be forwarded to SEIAA, J&K; J&K PCB and District Magistrate Budgam for information and necessary action.

SUDHIR AGARWAL JUDICIAL MEMBER PROF. A. SENTHIL VEL EXPERT MEMBER September 28, 2022 Appeal No. 24/2022 R 212