Summary
Environmental clearance for riverbed sand mining in three blocks of the Shaliganga Nallah for the Srinagar ring road was granted on a District Survey Report that admittedly lacked a replenishment study, the authority instead restricting mining depth to one metre. Extending State of U.P. v. Gaurav Kumar, the Supreme Court held that a District Survey Report without a proper replenishment study is untenable, that the Expert Appraisal Committee and the Environment Impact Assessment Authority compromised regulatory integrity, and upheld the National Green Tribunal's order setting aside the clearance.
Issues
- Whether a District Survey Report prepared without a replenishment study can form a valid basis for grant of environmental clearance for sand mining.
- Whether restricting mining depth to one metre and capping production could substitute for a replenishment study.
- Whether the NGT's findings on violation of the J&K Minor Mineral Rules, 2016 and of the EC condition barring heavy machinery warranted interference.
Provisions considered
- Sections 3 and 5, Environment (Protection) Act, 1986Source of the Central Government's power under which the EIA Notifications of 1994 and 2006 and the amending Notification of 15.01.2016 were issued, making prior environmental clearance mandatory for mining including minor minerals. (¶¶ 11, 12, 16)
- Paragraph 7(iii) and Appendix X, Environment Impact Assessment Notification, 2006 (as amended on 15.01.2016)Introduced the District Survey Report for sand and riverbed mining and prescribed its procedure; Appendix X declares that the DSR, whose objective includes calculation of the annual rate of replenishment, forms the basis for applications for environmental clearance and must be updated every five years. There is no exception to the DSR requirement for shallow mining. (¶¶ 1, 16, 17, 18, 19, 20, 21, 38)
- Guidelines on preparation of the DSR and replenishment study (2020 Guidelines, paras 4.1.1 and 5.0), Sustainable Sand Mining Management Guidelines, 2016 and Enforcement and Monitoring Guidelines for Sand Mining, 2020 (issued by MoEF&CC)Held to be binding directives for regulatory authorities whose observance is indispensable; they require the DSR to be premised on a scientific estimation of replenishment rates, so that a DSR without a replenishment study is fundamentally defective. (¶¶ 23, 24, 25, 26, 27, 28, 29, 32, 33)
- Rule 4(iv), Jammu and Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016The allegation of mining within 25 metres of an embankment contrary to this Rule was rejected by the NGT for want of evidence; with no cross-appeal, the Court did not examine it further. (¶¶ 8, 40)
Held
- Just as a 'draft DSR' was held untenable in State of U.P. v. Gaurav Kumar, a District Survey Report is valid and tenable only when a proper replenishment study has been conducted; a DSR without a proper replenishment study is equally untenable and cannot support grant of environmental clearance. (¶¶ 1, 3, 32, 33)
- Under the 2016 and 2020 Sand Mining Guidelines, which are binding directives for regulatory authorities, any assessment of mineable mineral quantity must rest on a scientific estimation of replenishment rates; absence of a replenishment study renders the DSR fundamentally defective because it lacks the foundational data for determining sustainable extraction limits. (¶¶ 23, 29, 32)
- The DSR introduced by para 7(iii) and Appendix X of the amended EIA Notification exists to scientifically locate places for sand mining after calculating the annual rate of replenishment, and forms the basis for environmental clearance applications; a replenishment study is accordingly an integral part of the DSR. (¶¶ 1, 19, 20, 26, 27, 32)
- The J&K Expert Appraisal Committee committed a serious error in proceeding to recommend clearance once it had itself recorded that the DSR was not formulated as per the guidelines and needed revision to include replenishment data, and the Environment Impact Assessment Authority compromised regulatory integrity by granting clearance on such a DSR; a restricted mining depth of one metre and a production cap in lieu of replenishment data is an unacceptable compromise and there is no provision dispensing with the DSR or replenishment study for shallow mining. (¶¶ 4, 6, 7, 35, 36, 37, 38)
- The NGT's findings that the DSR was not prepared as per guidelines and that no replenishment study existed were undisputed; its order setting aside the environmental clearance was upheld. (¶¶ 38, 39)
- The NGT's finding of no evidence of violation of Rule 4(iv) of the J&K Minor Mineral Rules, 2016 was not disturbed in the absence of a cross-appeal; its finding that heavy machinery was used in breach of condition 53 of the clearance and its direction to the J&K Pollution Control Board to take action were not interfered with, the Board to decide after hearing the project proponent. (¶¶ 40, 41, 42)
- As the project itself stands completed, no further orders regarding environmental clearance were necessary. (¶ 43)
Result
Appeals by the Union Territory of J&K, the NHAI and the project proponent dismissed; NGT order dated 28.09.2022 setting aside the environmental clearance dated 19.04.2022 upheld; J&K Pollution Control Board to act on the breach of condition 53 after hearing the project proponent; parties to bear their own costs.