Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Online)(NGT) 3399

NATIONAL GREEN TRIBUNAL NEW DELHI (PRINCIPAL BENCH)
SUDHIR AGARWAL, Judicial Member, AFROZ AHMAD, Expert Member
RIDHIMA PANDEY – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
ORIGINAL APPLICATION NO. 429/2022

For the Appellants/Petitioners: None
For the Respondents:Mr. Nikhil Rohatgi and Ms. Anjali Rajput, Advocates for respondents no. 1 and 3, Mr. Mukesh Verma and Ms. Vatsala Tripathi, Advocates for UKPCB (through VC), Mr. C. B. Singh, Advocate for Respondent No. 6 alongwith Mr. Tarun Pant, Project Proponent (through VC), Mr. Bhanwar Pal Singh Jadon and Mr. Harsh Vardhan Singh Rajawat, Advocates for Police Commissioner, G.B. Nagar, U.P. with Ms. Laxmi Singh, Commissioner of Police (through VC)

Dredging permissions under disaster management enabling private commercial river bed mineral removal in eco-sensitive zones constitute illegal mining requiring environmental clearance; attracts 10% sale price compensation under polluter pays principle.

Headnote:(A) Environment (Protection) Act, 1986 - Section 3; Forest (Conservation) Act, 1980; EIA Notification, 2006 - Appendix IX (as amended 28.03.2020); Disaster Management Act, 2005 - Permissions for dredging in eco-sensitive zone and reserve forest areas justified under disaster management provisions held illegal when involving commercial removal of river bed minerals by private agencies - Dredging exempt from prior environmental clearance only if purely for maintenance/upkeep/disaster management without commercial mining element - High Court judgment holding dredging with mineral winning as mining activity binding - No mining permissible in eco-sensitive zones without requisite clearances. (Paras 40, 43, 48-49)

(B) Polluter Pays Principle - Illegal mining causing permanent ecological damage attracts environmental compensation @10% of sale price of illegally extracted minerals for remediation, sustainable development and inter-generational equity - Supreme Court precedent applied to levy compensation on violators. (Paras 50-52)

(C) Constitutional Law - Article 51A(g) - Citizens’ fundamental duty to protect environment reinforced - State authorities accountable for violations; suo motu jurisdiction exercised on complaint highlighting environmental harm in fragile habitats. (Paras 8, 37)

Facts of the case:
Suo motu original application registered on complaint alleging illegal permissions for river bed mineral collection in eco-sensitive zone and reserve forest areas of wildlife sanctuary under garb of dredging for flood control using disaster management powers - Permissions granted to private entities for upstream areas of two rivers - Joint Committee inspected sites, found areas within prohibited zones, no active mining by one entity due to non-demarcation, contradictory claims on activities by other - High Court quashed similar permission prohibiting commercial removal.

Findings of Court:
Permissions illegal as they enabled commercial mining in prohibited areas without environmental clearance, forest clearance or wildlife board approval - No actual dredging/mining by one private entity due to non-demarcation; other entity carried out illegal extraction of specified quantity - Environmental compensation to be computed @10% sale price on illegally mined minerals - State to ensure future compliance, inquire into erring officials’ conduct.

Issues: (1) Legality of dredging permissions under disaster management in eco-sensitive/reserve forest areas allowing private commercial mineral removal; (2) Exemption from environmental clearance under EIA Notification; (3) Environmental damage and remediation for illegal mining.

Ratio Decidendi: Dredging for disaster management exempt from EC only sans commercial mining; permissions enabling private mineral winning constitute illegal mining in protected zones violating environmental laws - Polluter pays applies mandating compensation @10% sale price for ecological restoration - State must prevent misuse of dredging for commercial gain, ensure governmental execution without private involvement.

Result: OA disposed with directions - UKPCB to compute/leviate environmental compensation on illegally extracted minerals after hearing, utilize for remediation per plan by specified Committee; Chief Secretary to inquire into erring officials; no future mining violations in protected areas.

Table of Content
1. mining permissions granted in esz and reserve forest under dm act. (Para 1 , 2 , 3 , 4 , 5)
2. misuse of dm act for commercial mining harms wildlife habitat. (Para 6 , 7)
3. joint committee confirms no mining in esz, recommends against permissions. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15)
4. dredging exempt from ec for disaster management, not commercial mining. (Para 16 , 17 , 18 , 19 , 20 , 21)
5. high court prohibits commercial mineral removal in esz dredging. (Para 22 , 23 , 24 , 25 , 26 , 27)
6. permits lapsed without activity; sop amended post-high court order. (Para 28 , 29 , 30 , 31 , 32 , 33)
7. respondent 6 conducted illegal mining despite permit expiry claims. (Para 34 , 35 , 36 , 37)
8. officials accountable for illegal esz permissions; no dredging occurred. (Para 38 , 39 , 40 , 41 , 42 , 43 , 44)
9. respondent 6's activities constitute illegal mining requiring ec. (Para 45 , 46 , 47 , 48 , 49)
10. impose environmental compensation @10% sale price for illegal mining. (Para 50 , 51 , 52 , 53 , 54 , 55 , 56)

JUDGMENT

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

1. This Original Application (hereinafter referred to as ‘OA’) was registered by Tribunal under Sections 14 and 15 of National Green Tribunal Act, 2010 (hereinafter referred to as ‘NGT Act, 2010’) in exercise of suo-moto jurisdiction in view of law laid down by Supreme Court in Municipal Corporation of Greater Mumbai vs. Ankita Sinha, (2022) 13 SCC 401, in the light of complaint made in the Letter Petition dated 09.04.2022, sent by Ridhima Pandey, daughter of Dinesh Chandra Pandey, resident of 16 A, Sadhu Belapuram Colony, Haripur Kalan, District-Dehradun who claims herself to be a Global Climate activist and engaged in protection of environment and forest since her childhood when she was 9 years old age.

2. Complainant has said that Nandhaur Wildlife Sanctuary (hereinafter referred to as ‘NWS’) is situated in the Haldwani Forest Division of Nainital District in State of Uttarakhand. The area is surrounding NWS has been notified as “Eco-Sensitive Zone” (hereinafter referred to as ‘ESZ’). The upstream part of Nandhaur River falls under ESZ.

3. Uttarakhand Government Industrial Development Department (Mining), vide letter dated 07.01.2022 and the follow up letter/order issued by District Magistrate, Nainital on 25.03.2022 had authorised M/s. A.P. S. Infra Engineers Pvt. Ltd. (hereinafter referred to as ‘respondent 4 or project proponent’) to collect river bed mineral lying in ESZ of Nandhaur river for a duration of 06 months. The permission was granted with reference to the powers under Disaster Management Act, 2005 (hereinafter referred to as ‘DM Act, 2005’). The order permits collection of minerals from an area which falls under “Reserve Forest” as well as part of “ESZ of NWS”.

4. District Magistrate, Champawat also, following the same procedure, permitted collection of river bed mineral from upper stream part of Sharda Barrage, Tanakpur vide order dated 05.04.2022 with reference to the provisions of DM Act, 2005. The area, where collection of minerals was allowed by District Magistrate, Champawat, is also part of “Reserve Forest”.

5. Haldwani Forest Division of both the rivers i.e., Nandhaur and Sharda are rich bio-diversity area and important Schedule I Wildlife habitat and ESZ. Mining activity in such area is harmful to wildlife and their habitat and may cause big loss to environment.

6. Government of India, under the provisions of Forest (Conservation) Act, 1980 (hereinafter referred to as ‘FC Act, 1980’) reserves right to grant permission for collection of minor minerals from any river that passes through “Reserve Forest” but at the time of granting permission, volume of river bed minerals to be collected is surveyed by Expert Institutions as well as National Board for Wildlife. Environmental Clearance (hereinafter referred to as ‘EC’) is to be taken in advance. If it is not incumbent or necessary to remove river bed minerals from river bed

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2024 Supreme(Online)(NGT) 3399

NATIONAL GREEN TRIBUNAL NEW DELHI (PRINCIPAL BENCH)SUDHIR AGARWAL, Judicial Member, AFROZ AHMAD, Expert MemberRIDHIMA PANDEY – AppellantVersusSTATE OF UTTARAKHAND – RespondentORIGINAL APPLICATION NO. 429/2022

Dredging permissions under disaster management enabling private commercial river bed mineral removal in eco-sensitive zones constitute illegal mining requiring environmental clearance; attracts 10% sale price compensation under polluter pays principle.

Cases Referred (2)

NATIONAL GREEN TRIBUNAL NEW DELHI (PRINCIPAL BENCH)
SUDHIR AGARWAL, Judicial Member, AFROZ AHMAD, Expert Member
RIDHIMA PANDEY – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
ORIGINAL APPLICATION NO. 429/2022