THE STATE OF BIHAR AND OTHERSversusPAWAN KUMAR AND OTHERS ETC.

                         [2021] 7 S.C.R. 351                               351


              THE STATE OF BIHAR AND OTHERS                                A
                                   v.
              PAWAN KUMAR AND OTHERS ETC.
                (Civil Appeal Nos. 3661-3662 of 2020)
                        NOVEMBER 10, 2021                                  B
       [L. NAGESWARA RAO, SANJIV KHANNA AND
                   B. R. GAVAI JJ.]
       Mine and Minerals: Mining of sand in Banka District, Bihar
– Auction/e-auction/grant of mining lease – Invitation of tender –
                                                                           C
Direction of the tribunal that unless the State Expert Appraisal
Committee-SEAC and the State Environment Impact Assessment
Authority-SEIAA grants approval to the District Survey Report-DSR
for the purpose of mining of sand, the same cannot be carried out;
and that the invitation of the tenders without preparing the DSR in
accordance with the judgment of the Tribunal in Satendra Pandey’s          D
case, could not have been done – Said directions, challenged to –
On appeal, held: There is a need for balanced approach of
sustainable development ensuring environmental safeguards – When
legal mining is banned, it gives rise to mushroom growth of illegal
mining, resulting into clashes between sand mafias, criminalization
                                                                           E
and at times, loss of human lives – Total ban on legal mining, also
causes huge loss to the public exchequer – Also, sand is required
for construction of public infrastructural projects as well as public
and private construction activities – In view thereof, directions issued
by the tribunal are modified with the following directions, that the
exercise of preparation of DSR for the purpose of mining in the            F
State of Bihar in all the districts shall be undertaken afresh; that
the draft DSRs to be prepared by the sub-divisional committees;
that the draft DSRs to be approved by SEAC and SEIAA; and that
for preparation of draft DSR’s and appraisal by SEAC and SEIAA,
procedure and parameters laid down in the policy of January 2020
                                                                           G
to be followed – Until the DSRs are finalized and granted approval
by SEAC and SEIAA, the State is permitted to continue with legal
mining activities through Bihar State Mining Corporation with
necessary arrangements – Furthermore, apart from preventing
illegal mining activities, to ensure that the public exchequer is not
                                                                           H
                                  351
352            SUPREME COURT REPORTS                         [2021] 7 S.C.R.


A     deprived of its share in legalized mining – Enforcement and
      Monitoring Guidelines for Sand Mining.
            Deepak Kumar v. State of Haryana and Others (2012)
            4 SCC 629 – referred to.
                              Case Law Reference
B
      (2012) 4 SCC 629                 referred to              Para 9
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.3661-
      3662 of 2020.
            From the Judgment and Order dated 14.10.2020 of the National
C     Green Tribunal, Principal Bench New Delhi in Original Application Nos.40
      of 2020 (EZ) and 57 of 2020 (EZ).
           Atmaram Nadkarni, Sr. Adv., Azmat Hayat Amanullah, Rishi K.
      Awasthi, Piyush Vatsa, Ms. Arzu Paul, Salvador Santosh Rebello,
      Ms. Deepti Arya, Adiraj Bali, Advs. for the Appellants.
D
             Ms. Aishwarya Bhati, ASG, P. S. Patwalia, Brijendra Chahar, Bimal
      Roy Jad, V. Giri, Pinaki Mishra, Sr. Advs., Vanshdeep Dalmia,
      Ms. Natasha Dalmia, Ms. Shevali Chaudhary, G. S. Patwalia,
      Ms. Harshika Verma, Alok Sangwan, Rajiv Shankar Dvivedi, Rishabh
      Jain, S. K. Sarkar, Gurmeet Singh Makker, Anish Kr. Gupta, Ms. Archana
E     Pathak Dave, Ms. Archana Preeti Gupta, Ms. Sadapurna Mukherjee,
      Arvind Kumar, Aditya Singh, Shubham Singh, Pankaj Bhagat, Kripa
      Shankar Prasad, Ms. Ritu Rajkumari, Prashant Bhushan, Anand Varma,
      Ms. Apoorva Pandey, Rohit Kumar Singh, Sadapuran Mukherjee,
      Ms. Aditi Shahi, Rahul Kumar Gupta, Ms. Chandni Arora, Dharmendra
      Kumar Sinha, Ajit Upadhyay, Raju Sonkar, Onkar Prasad, Advs. for the
F
      Respondents.
            The following Order of the Court was passed
                                   ORDER
            Per Court
G
             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:-
H
  THE STATE OF BIHAR AND OTHERS v. PAWAN KUMAR                                   353
                  AND OTHERS ETC.

       (i)     “Having regard to the findings at (a), (b) and (c) above, we      A
               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          B
               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        C
               relevant facts pertaining to the physical and geographical
               features of the district which shall be distinct from the
               scientific findings based on the parameters 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)         D
               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                 E
               Agency/Consultant shall scrupulously follow the procedure
               and the parameters laid down under the SSMMG-2016 and
               EMGSM-2020 read in sync with each other.”
      2. The appellant-State of Bihar has assailed the said judgment
and order dated 14th October 2020, on various grounds.                           F
       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            G
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, Forestand
                                                                                 H
354                SUPREME COURT REPORTS                         [2021] 7 S.C.R.


A     Climate Change and Another1could not have been done. He submitted
      that after the tenders are invited in accordance with the DSR prepared
      by the District Level Committee, the 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
B
      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
C     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 14th October 2020, needs to be set aside and the State needs to be
      permitted to finalize the tenders received by it.
D
              4. Shri Nadkarni further submitted that on account of the orders
      passed by the Tribunal, the old lessees are continuing 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
E     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
F     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.
G            6. Though, we have heard the learned counsel for both the parties
      at length on merits, we find that it will be appropriate that the appeals
      are kept pending for further consideration and till then, certain interim
      orders are passed.

      1
H         O.A. No. 186 of 2016 (M.A. No. 350/2016)
     THE STATE OF BIHAR AND OTHERS v. PAWAN KUMAR                                355
                     AND OTHERS ETC.

        7. It cannot be in dispute that though the developmental activities      A
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
                                                                                 B
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               C
propose to issue certain interim directions.
       9. The Tribunal, in the case of Satendra Pandey (supra), has
found that the notification dated 15th January 2016, which provided
Environmental Clearance to be given by the District Environment Impact
Assessment Authority (hereinafter referred to as the “DEIAA”) was                D
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           E
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)        F
and (p) of the 2020 guidelines:-
         “4.1 Identification of possible sand mining sources and
         preparation of District Survey Report (DSR)
         4.1.1 Preparation of District Survey Report.                            G
         a) District Survey Report for sand mining shall be prepared before
         the auction/e-auction/grant of the mining lease/Letter of Intent
         (Loi) by Mining department or department dealing the mining
         activity in respective states.
2
    (2012) 4 SCC 629                                                             H
356             SUPREME COURT REPORTS                            [2021] 7 S.C.R.


A           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
B
            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 ~e
C           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
D           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 sub-divisional committee for active consideration. The
            final list of sand mining areas [leases to be granted on riverbed &
E           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
F           transportation 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/grant
      of mining lease by Mining Department or Department dealing with mining
      activity in the respective States. It is further provided that the potential
G     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
H     annexures appended to the said policy.
  THE STATE OF BIHAR AND OTHERS v. PAWAN KUMAR                                   357
                  AND OTHERS ETC.

      11. It is further to be noted that Appendix-X of the notification          A
dated 15th January 2016, issued by MoEF and CC also provides for
composition of the sub-divisional committee:-
       “A Sub-Divisional Committee comprising of Sub-Divisional
       Magistrate, Officers from Irrigation department, State Pollution
       Control Board or Committee, Forest department, Geology or                 B
       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         C
be used for identification of the potential sites and preparation of the
DSR and also to check misuse and unauthorized mining.
        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 sub-divisional committees comprising of the officers of the State             D
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 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              E
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         F
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.                                                                G
       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:-

                                                                                 H
358                SUPREME COURT REPORTS                       [2021] 7 S.C.R.


A             (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 sub-divisional
                  committees consisting of the Sub-Divisional Magistrate,
                  Officers from Irrigation Department, State Pollution Control
                  Board or Committee, Forest Department, Geological or mining
B
                  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 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
C                 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;
D
              (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;
E             (iii) Until further orders, we permit the State Government to carry
                    on mining activities 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.
F
              15. List the matter after 20 weeks.


      Nidhi Jain                                                  Directions issued.


G




H