Permitting mining activity for commercial purposes in the Eco-Sensitive Zone is impermissible.

JUDGMENT :

Vipin Sanghi, J.

We have heard Mr. Dushyant Mainali, the learned counsel for the petitioner, and Mr. S.N. Babulkar, the learned Advocate General assisted by Mr. C.S. Rawat, the learned Chief Standing Counsel for the State of Uttarakhand, and proceed to dispose of this Public Interest Litigation.

2. The challenge raised in this Writ Petition (PIL) is to the Government Order dated 07.01.2022, and the subsequent permission granted for mining/ dredging of Nandhaur River in the Eco-Sensitive Zone of Nandhaur Wildlife Sanctuary. The petitioner also seeks a direction to the respondents to notify and categorize the zones, where mining is prohibited in the State of Uttarakhand, in consonance with the guidelines issued by respondent no. 1, i.e. the Ministry of Environment, Forest and Climate Change of the Union Government.

3. By the order dated 07.01.2022, the State Government had permitted M/s A.P.S. Infra Engineers Private Limited to carry out the activity of dredging in the Upper Nandhaur Chorgalia Area for a period of six months, and also to remove the silt and RBM, which is dredged.

4. According to the petitioner, the activity of removing of the mineral, which is dredged, tantamounts to mining, which is completely prohibited in the Eco-Sensitive Zone, which Nandhaur Wildlife Sanctuary is. In this regard, Mr. Mainali has referred to the definition of “mining operations” contained in Section 3(d) of the Mines and Minerals (Development and Regulation) Act, 1957, whichmeans “any operations undertaken for the purpose of winning any mineral”.

5. Mr. Mainali has placed reliance on the judgment passed by the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India & Ors., 2010 (13) SCC 740 dated 04.08.2006, on the basis of which the Office Memorandum dated 08.08.2019 was issued by respondent no. 1, i.e. the Ministry of Environment, Forest and Climate Change of the Union Government. In the light of the aforesaid order passed by the Supreme Court, the Central Government has directed that “Proposals involving mining of minerals within the ESZ (or) one kilometer from the boundaries of National Parks and Sanctuaries whichever is higher is prohibited in accordance with the order of the Hon'ble Supreme Court dated 4.08.2006 in the matter of T.N. Godavarman Thirumulpad Vs. UOI in W.P.(C) No. 202 of 1995 and dated 21.4.2014 in the matter of Goa Foundation Vs. UOI in W.P.(C) No. 435 of 2012.”

6. The submission of Mr. S.N. Babulkar, the learned Advocate General, is that the activity of dredging is essential to conserve the river and the adjoining areas, as failure to carry out dredging would lead to rise in the riverbed levels, leading to flooding in the adjoining areasin the rainy season, where agriculture is carried out and habitations are in place. He further submits that the Central Government has also exempted the requirement of obtaining environmental clearance for the purpose of carrying out the activity of dredging and de-silting of, inter alia, rivers and canals for the purpose of their maintenance, upkeep and disaster management. In this regard, he has placed reliance on the notification dated 28.03.2020 issued by the Ministry of Environment, Forest and Climate Change. Appendix-IX to this notification enlists at Serial Nos.7 and 12, the activities, in respect whereof exemption has been granted by the Ministry of Environment, Forest and Climate Change, which reads as follows :-

“APPENDIX-IX

EXEMPTION OF CERTAIN CASES FROM REQUIREMENT OF ENVIRONMENTAL CLEARANCE

The following cases shall not require Prior Environmental Clearance, namely:-

1. ……

2. ……

3. ……

4. ……

5. ……

6. ……

7. Dredging and de-silting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management.

8. ……

9. ……

10. ……

11. ……

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 Collect