THE STATE OF BIHAR AND OTHERS versus PAWAN KUMAR AND OTHERS ETC. on 10 November 2021

O R D E R

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1. The present appeals challenge the judgment and order dated14[th] October 2020, passed by the National Green Tribunal, PrincipalBench, New Delhi (hereinafter referred to as “the Tribunal”) in O.A.No. 40/2020/EZ with O.A. No. 57/2020/EZ, thereby issuing the followingdirections:- H

(i) “Having regard to the findings at (a), (b) and (c) above, wedirect the State to undertake further exercise for preparationof a fresh DSR for the Banka district.

(ii) As the DEIAA is not functioning as a consequence of thedecision of the Tribunal in Satendra Pandey (supra), theDSR shall be prepared through a consultant(s) accreditedby the National Accreditation Board of Education andTraining/Quality Control Council of India in terms of O.M.of MoEF & CC dated 16.03.2010.

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

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

2. The appellant-State of Bihar has assailed the said judgmentand order dated 14[th] October 2020, on various grounds.

3. Shri Atmaram Nadkarni, learned Senior Counsel appearing onbehalf of the State of Bihar submitted that the Tribunal has grossly erredin holding that unless the State Expert Appraisal Committee (hereinafterreferred to as “SEAC”) and the State Environment Impact AssessmentAuthority (hereinafter referred to as “SEIAA”) grants approval to theDistrict Survey Report (hereinafter referred to as “DSR”) for the purposeof mining of sand, the same cannot be carried out. He submitted thatthe Tribunal has further held that the very invitation of the tenders withoutpreparing the DSR in accordance with the judgment of the Tribunal inthe case of Satendra Pandey v. Ministry of Environment, Forestand A

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AClimate Change and Another[1]could not have been done. He submittedthat after the tenders are invited in accordance with the DSR preparedby the District Level Committee, the successful bidder will be requiredto prepare a mining plan and unless such a mining plan is approved bySEAC and SEIAA, the Environmental Clearance would not be grantedand in turn, mining activities cannot be carried out. He submitted that theBfinding of the Tribunal is like putting the cart before the horse. He furthersubmitted that the Tribunal has also grossly erred in holding that theDSRs prepared by the State were without following the requisiteprocedure and without considering the relevant factors. He submittedthat not only the procedure as prescribed under the relevant rules andCregulations was complied with, but the voluminous material in support ofthe same was also placed on record before the Tribunal. He submittedthat the Tribunal has not taken into consideration the said material. Hetherefore submitted that the judgment and order passed by the Tribunaldated 14[th] October 2020, needs to be set aside and the State needs to bepermitted to finalize the tenders received by it.D

4. Shri Nadkarni further submitted that on account of the orderspassed by the Tribunal, the old lessees are continuing with the miningactivities by paying a meagre amount to the State Government. Hetherefore submitted that on account of this, a huge loss would be causedto the public exchequer. In the alternative, he submitted that the State, atEleast, needs to be permitted to undertake mining activities through BiharState Mining Corporation until the DSRs are finalized in accordancewith the judgment of the Tribunal.

5. Shri P.S. Patwalia, learned Senior Counsel appearing on behalfof the original applicant vehemently opposed the appeals. He submittedFthat the Tribunal has rightly held that the DSRs are not prepared inaccordance with the relevant rules as well as policy guidelines. Hesubmitted that it is apparently clear that the State has taken intoconsideration only financial enrichment without considering theenvironmental aspects.G6. Though, we have heard the learned counsel for both the partiesat length on merits, we find that it will be appropriate that the appealsare kept pending for further consideration and till then, certain interimorders are passed.

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1 O.A. No. 186 of 2016 (M.A. No. 350/2016)

7. It cannot be in dispute that though the developmental activitiesare not stalled, the environmental issues are also required to be addressed.A balanced approach of sustainable development ensuring environmentalsafeguards, needs to be resorted to. At the same time, it also cannot beignored that when legal mining is banned, it gives rise to mushroom growthof illegal mining, resulting into clashes between sand mafias, criminalizationand at times, loss of human lives. It also cannot be disputed that sand isrequired for construction of public infrastructural projects as well aspublic and private construction activities. A total ban on legal mining,apart from giving rise to illegal mining, also causes huge loss to the publicexchequer.

8. Taking into consideration these aspects of the matter, wepropose to issue certain interim directions.

9. The Tribunal, in the case of Satendra Pandey (supra), hasfound that the notification dated 15[th] January 2016, which providedEnvironmental Clearance to be given by the District Environment ImpactAssessment Authority (hereinafter referred to as the “DEIAA”) wasnot in consonance with the judgment of this Court in the case of DeepakKumar v. State of Haryana and Others[2]. The Tribunal therefore inSatendra Pandey (supra), had directed Ministry of Environment, Forestand Climate Change (hereinafter referred to as “MoEF and CC) to takesteps to revise the procedure laid down in the notification dated 15[th]January 2016. It is to be noted that MoEF and CC, in accordance withthe directions of the Tribunal, had issued Enforcement and MonitoringGuidelines for Sand Mining (hereinafter to referred to as “the 2020guidelines”) in the month of January 2020. Chapter 4 of the 2020guidelines deals with identification of possible sand mining sources andpreparation of DSR. It will be relevant to refer to Clause 4.1.1 (a), (o)and (p) of the 2020 guidelines:- “4.1 Identification of possible sand mining sources andpreparation of District Survey Report (DSR)

4.1.1 Preparation of District Survey Report.

a) District Survey Report for sand mining shall be prepared beforethe auction/e-auction/grant of the mining lease/Letter of Intent(Loi) by Mining department or department dealing the miningactivity in respective states.

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Ao) Potential site for mining having its impact on the forest, protectedarea, habitation, bridges etc, shall be avoided. For this, a sub-divisional committee may be formed which after the site visit shalldecide its suitability for mining. The list of mining lease after therecommendation of the Committee needs to be defined in thefollowing format given in as Annexure-II. The Sub-DivisionalBCommittee after the site visit shall make a recommendation onthe site for its suitability of mining and also records the reason forselecting the mining lease in the Patta land. The details regardingcluster and contiguous cluster needs to be provided as inAnnexure-III. The details of the transportation need to ~eCprovided as in Annexure IV.

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p) Public consultation-The Comments of the various stakeholdersmay be sought on the list of mining lease to be auctioned. TheState Government shall give an advertisement in the local andnational newspaper for seeking comments of the general publicDon the list of mining’ lease included in the DSR. The DSR shouldbe placed in the public domain for at least one month from thedate of publication of the advertisement for obtaining commentsof the general public. The comments so received shall be placedbefore the sub-divisional committee for active consideration. Thefinal list of sand mining areas [leases to be granted on riverbed &EPatta land/Khatedari land, de-siltation location (ponds/lakes/dams),M-Sand Plants (alternate source of sand)] after the public hearingneeds to be defined in the final DSR in the format as perAnnexure-V. The details regarding cluster and contiguous clusterneeds to be provided in Annexure-VI. The details of theFtransportation need to be provided in Annexure-Vll.”

10. It could thus be seen that in accordance with the 2020 guidelines,the DSR is required to be prepared before the auction/e-auction/grantof mining lease by Mining Department or Department dealing with miningactivity in the respective States. It is further provided that the potentialGsite for mining having its impact on the forest, protected area, habitationand bridges should be avoided. For this, a sub-divisional committee isrequired to be formed which, after the site visit, is required to decideregarding the suitability of the sites for mining. The sub-divisionalcommittee is further required to record its reasons for selecting the mininglease in the patta land. Various details are required to be given in theHannexures appended to the said policy.

11. It is further to be noted that Appendix-X of the notificationdated 15[th] January 2016, issued by MoEF and CC also provides forcomposition of the sub-divisional committee:- “A Sub-Divisional Committee comprising of Sub-DivisionalMagistrate, Officers from Irrigation department, State PollutionControl Board or Committee, Forest department, Geology ormining officer shall visit each site for which environmentalclearance has been applied for and make recommendation onsuitability of site for mining or prohibition thereof.”

12. It is to be noted that with the advent of modern technology,various technological gadgets like Drones and satellite imaging etc. canbe used for identification of the potential sites and preparation of theDSR and also to check misuse and unauthorized mining.

13. We further find that when the 2020 guidelines as well as thenotification issued by MoEF and CC of 2016 itself provide for constitutionof sub-divisional committees comprising of the officers of the StateGovernment from various Departments for identification of the potentialsites for mining, there would be no necessity of the DSRs being preparedthrough private consultants as directed by the Tribunal in the impugnedorder. The sub-divisional committee consists of various officers fromRevenue Department, Irrigation Department, State Pollution ControlBoard, Forest Department and Geology Mining Department of the StateGovernment. They are better equipped to visit the sites and prepare thedraft DSR for the concerned district. Apart from that, preparation ofDSR through private consultants would also unnecessarily burden thepublic exchequer. We are therefore of the view that the direction in thatregard issued by the Tribunal requires to be modified. We are further ofthe considered view that until the DSRs are finalized and granted approvalby SEAC and SEIAA, it is appropriate that certain necessaryarrangements are permitted so that the State can continue with legalmining activities. This apart from preventing illegal mining activities, wouldalso ensure that the public exchequer is not deprived of its share inlegalized mining.

14. We therefore find it appropriate to substitute the directionsissued by the Tribunal vide judgment and order dated 14[th] October 2020,with the following directions:- AB

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358SUPREME COURT REPORTS

A(i)The exercise of preparation of DSR for the purpose of miningin the State of Bihar in all the districts shall be undertakenafresh. The draft DSRs shall be prepared by the sub-divisionalcommittees consisting of the Sub-Divisional Magistrate,Officers from Irrigation Department, State Pollution ControlBoard or Committee, Forest Department, Geological or miningBofficer. The same shall be prepared by undertaking site visitsand also by using modern technology. The said draft DSRsshall be prepared within a period of 6 weeks from the date ofthis order. After the draft DSRs are prepared, the DistrictMagistrate of the concerned District shall forward the sameCfor examination and evaluation by the SEAC. The same shallbe examined by the SEAC within a period of 6 weeks and itsreport shall be forwarded to the SEIAA within the aforesaidperiod of 6 weeks from the receipt of it. The SEIAA willthereafter consider the grant of approval to such DSRs withina period of 6 weeks from the receipt thereon; D

(ii) Needless to state that while preparing DSRs and the appraisalthereof by SEAC and SEIAA, it should be ensured that astrict adherence to the procedure and parameters laid downin the policy of January 2020 should be followed; E(iii) Until further orders, we permit the State Government to carryon mining activities through Bihar State Mining Corporationfor which it may employ the services of the contractors.However, while doing so, the State Government shall ensurethat all environmental concerns are taken care of and nodamage is caused to the environment.F

15. List the matter after 20 weeks.

Nidhi Jain

Directions issued.

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