The State Of Bihar vs Pawan Kumar on 10 November, 2021


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Supreme Court of India

The State Of Bihar vs Pawan Kumar on 10 November, 2021

Author: B.R. Gavai

                                                 REPORTABLE

              IN THE SUPREME COURT OF INDIA
              CIVIL APPELLATE JURISDICTION


            CIVIL APPEAL NOS. 3661­3662 OF 2020

THE STATE OF BIHAR AND OTHERS                 ...APPELLANT(S)

                           VERSUS

PAWAN KUMAR AND OTHERS ETC.                 ...RESPONDENT(S)




                           ORDER

Per Court

1. The present appeals challenge the judgment and order

dated 14th October 2020, passed by the National Green

Tribunal, Principal Bench, New Delhi (hereinafter referred to as

“the Tribunal”) in O.A. No. 40/2020/EZ with O.A. No.

57/2020/EZ, thereby issuing the following directions:­

1

(i) “Having regard to the findings at (a), (b) and (c)

above, we direct the State to undertake further

exercise for preparation of a fresh DSR for the

Banka district.

(ii) As the DEIAA is not functioning as a

consequence of the decision of the Tribunal in

Satendra Pandey (supra), the DSR shall be

prepared through a consultant(s) accredited by

the National Accreditation Board of Education

and Training/Quality Control Council of India

in terms of O.M. of MoEF & CC dated

16.03.2010.

(iii) The DSR so prepared shall be submitted to the

District Magistrate who shall verify the DSR

only in respect of the relevant facts pertaining

to the physical and geographical features of

the district which shall be distinct from the

scientific findings based on the parameters

2
prescribed in the SSMMG­ 2016. After such

verification, the District Magistrate shall

forward the DSR for examination and

evaluation by the State Expert Appraisal

Committee (SEAC) having regarding to the fact

that the SEIAA comprises of

technical/scientific experts. The SEAC after

appraisal of the report shall forward it to the

SEIAA for consideration and approval if it

meets all scientific/technical requirements.

(iv) While preparing the DSR, the MoEF & CC

Accredited Agency/Consultant shall

scrupulously follow the procedure and the

parameters laid down under the SSMMG­2016

and EMGSM­2020 read in sync with each

other.”

3

2. The appellant­State of Bihar has assailed the said

judgment and order dated 14 th October 2020, on various

grounds.

3. Shri Atmaram Nadkarni, learned Senior Counsel

appearing on behalf of the State of Bihar submitted that the

Tribunal has grossly erred in holding that unless the State

Expert Appraisal Committee (hereinafter referred to as “SEAC”)

and the State Environment Impact Assessment Authority

(hereinafter referred to as “SEIAA”) grants approval to the

District Survey Report (hereinafter referred to as “DSR”) for the

purpose of mining of sand, the same cannot be carried out. He

submitted that the Tribunal has further held that the very

invitation of the tenders without preparing the DSR in

accordance with the judgment of the Tribunal in the case of

Satendra Pandey v. Ministry of Environment, Forest and

Climate Change and Another1 could not have been done. He

submitted that after the tenders are invited in accordance with

the DSR prepared by the District Level Committee, the

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

4
successful bidder will be required to prepare a mining plan and

unless such a mining plan is approved by SEAC and SEIAA, the

Environmental Clearance would not be granted and in turn,

mining activities cannot be carried out. He submitted that the

finding of the Tribunal is like putting the cart before the horse.

He further submitted that the Tribunal has also grossly erred in

holding that the DSRs prepared by the State were without

following the requisite procedure and without considering the

relevant factors. He submitted that not only the procedure as

prescribed under the relevant rules and regulations was

complied with, but the voluminous material in support of the

same was also placed on record before the Tribunal. He

submitted that the Tribunal has not taken into consideration

the said material. He therefore submitted that the judgment

and order passed by the Tribunal dated 14 th October 2020,

needs to be set aside and the State needs to be permitted to

finalize the tenders received by it.

4. Shri Nadkarni further submitted that on account of the

orders passed by the Tribunal, the old lessees are continuing

5
with the mining activities by paying a meagre amount to the

State Government. He therefore submitted that on account of

this, a huge loss would be caused to the public exchequer. In

the alternative, he submitted that the State, at least, needs to

be permitted to undertake mining activities through Bihar State

Mining Corporation until the DSRs are finalized in accordance

with the judgment of the Tribunal.

5. Shri P.S. Patwalia, learned Senior Counsel appearing on

behalf of the original applicant vehemently opposed the

appeals. He submitted that the Tribunal has rightly held that

the DSRs are not prepared in accordance with the relevant

rules as well as policy guidelines. He submitted that it is

apparently clear that the State has taken into consideration

only financial enrichment without considering the

environmental aspects.

6. Though, we have heard the learned counsel for both the

parties at length on merits, we find that it will be appropriate

6
that the appeals are kept pending for further consideration and

till then, certain interim orders are passed.

7. It cannot be in dispute that though the developmental

activities are not stalled, the environmental issues are also

required to be addressed. A balanced approach of sustainable

development ensuring environmental safeguards, needs to be

resorted to. At the same time, it also cannot be ignored that

when legal mining is banned, it gives rise to mushroom growth

of illegal mining, resulting into clashes between sand mafias,

criminalization and at times, loss of human lives. It also

cannot be disputed that sand is required for construction of

public infrastructural projects as well as public and private

construction activities. A total ban on legal mining, apart from

giving rise to illegal mining, also causes huge loss to the public

exchequer.

8. Taking into consideration these aspects of the matter, we

propose to issue certain interim directions.

7

9. The Tribunal, in the case of Satendra Pandey (supra),

has found that the notification dated 15 th January 2016, which

provided Environmental Clearance to be given by the District

Environment Impact Assessment Authority (hereinafter referred

to as the “DEIAA”) was not in consonance with the judgment of

this Court in the case of Deepak Kumar v. State of Haryana

and Others2. The Tribunal therefore in Satendra Pandey

(supra), had directed Ministry of Environment, Forest and

Climate Change (hereinafter referred to as “MoEF and CC) to

take steps to revise the procedure laid down in the notification

dated 15th January 2016. It is to be noted that MoEF and CC,

in accordance with the directions of the Tribunal, had issued

Enforcement and Monitoring Guidelines for Sand Mining

(hereinafter to referred to as “the 2020 guidelines”) in the

month of January 2020. Chapter 4 of the 2020 guidelines

deals with identification of possible sand mining sources and

preparation of DSR. It will be relevant to refer to Clause 4.1.1

(a), (o) and (p) of the 2020 guidelines:­

2 (2012) 4 SCC 629

8
“4.1 Identification of possible sand mining
sources and preparation of District Survey
Report (DSR)

4.1.1 Preparation of District Survey Report.

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

o) Potential site for mining having its impact on the
forest, protected area, habitation, bridges etc, shall
be avoided. For this, a sub­divisional committee
may be formed which after the site visit shall decide
its suitability for mining. The list of mining lease
after the recommendation of the Committee needs
to be defined in the following format given in as
Annexure­II. The Sub­Divisional 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 Annexure­III.
The details of the transportation need to ~e provided
as in Annexure IV.

p) Public consultation­The 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

9
public on the list of mining’ lease included in the
DSR. The DSR should be placed in the public
domain for at least one month from the date of
publication of the advertisement for obtaining
comments of the general public. The comments so
received shall be placed before the sub­divisional
committee for active consideration. The final list of
sand mining areas [leases to be granted on riverbed
& Patta land/Khatedari land, de­siltation location
(ponds/lakes/dams), M­Sand Plants (alternate
source of sand)] after the public hearing needs to be
defined in the final DSR in the format as per
Annexure­V. The details regarding cluster and
contiguous cluster needs to be provided in
Annexure­VI. The details of the transportation need
to be provided in Annexure­Vll.”

10. It could thus be seen that in accordance with the 2020

guidelines, the DSR is required to be prepared before the

auction/e­auction/grant of mining lease by Mining Department

or Department dealing with mining activity in the respective

States. It is further provided that the potential site for mining

having its impact on the forest, protected area, habitation and

bridges should be avoided. For this, a sub­divisional committee

is required to be formed which, after the site visit, is required to

decide regarding the suitability of the sites for mining. The

10
sub­divisional committee is further required to record its

reasons for selecting the mining lease in the patta land.

Various details are required to be given in the annexures

appended to the said policy.

11. It is further to be noted that Appendix­X of the notification

dated 15th January 2016, issued by MoEF and CC also provides

for composition of the sub­divisional committee:­

“A Sub­Divisional Committee comprising of Sub­
Divisional Magistrate, Officers from Irrigation
department, State Pollution Control Board or
Committee, Forest department, Geology or mining
officer shall visit each site for which environmental
clearance has been applied for and make
recommendation on suitability of site for mining or
prohibition thereof.”

12. 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.

11

13. We further find that when the 2020 guidelines as well as

the notification issued by MoEF and CC of 2016 itself provide

for constitution of sub­divisional committees comprising of the

officers of the State Government from various Departments for

identification of the potential sites for mining, there would be

no necessity of the DSRs being prepared through private

consultants as directed by the Tribunal in the impugned order.

The sub­divisional committee consists of various officers from

Revenue Department, Irrigation Department, State Pollution

Control Board, Forest Department and Geology Mining

Department of the State Government. They are better equipped

to visit the sites and prepare the draft DSR for the concerned

district. Apart from that, preparation of DSR through private

consultants would also unnecessarily burden the public

exchequer. We are therefore of the view that the direction in

that regard issued by the Tribunal requires to be modified. We

are further of the considered view that until the DSRs are

finalized and granted approval by SEAC and SEIAA, it is

appropriate that certain necessary arrangements are permitted

12
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.

14. We therefore find it appropriate to substitute the

directions issued by the Tribunal vide judgment and order

dated 14th October 2020, with the following directions:­

(i) The exercise of preparation of DSR for the

purpose of mining in the State of Bihar in all the

districts shall be undertaken afresh. The draft

DSRs shall be prepared by the sub­divisional

committees consisting of the Sub­Divisional

Magistrate, Officers from Irrigation Department,

State Pollution Control Board or Committee,

Forest Department, Geological or mining officer.

The same shall be prepared by undertaking site

visits and also by using modern technology. The

said draft DSRs shall be prepared within a

13
period of 6 weeks from the date of this order.

After the draft DSRs are prepared, the District

Magistrate of the concerned District shall

forward the same for examination and evaluation

by the SEAC. The same shall be examined by

the SEAC within a period of 6 weeks and its

report shall be forwarded to the SEIAA within

the aforesaid period of 6 weeks from the receipt

of it. The SEIAA will thereafter consider the

grant of approval to such DSRs within a period

of 6 weeks from the receipt thereon;

(ii) Needless to state that while preparing DSRs and

the appraisal thereof by SEAC and SEIAA, it

should be ensured that a strict adherence to the

procedure and parameters laid down in the

policy of January 2020 should be followed;

(iii) Until further orders, we permit the State

Government to carry on mining activities

14
through Bihar State Mining Corporation for

which it may employ the services of the

contractors. However, while doing so, the State

Government shall ensure that all environmental

concerns are taken care of and no damage is

caused to the environment.

15. List the matter after 20 weeks.

……….……………………..J.

[L. NAGESWARA RAO]

…….……………………..J.

[SANJIV KHANNA]

………………………….J.

[B.R. GAVAI]
NEW DELHI;

NOVEMBER 10, 2021.

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