WPPIL/15/2022
2022 Latest Caselaw 4016 UK

          IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
              HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                 AND
               HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI


                           15TH DECEMBER, 2022
             WRIT PETITION (PIL) No. 15 OF 2022


    Between:

    Matri Sadan Jagjeetpur, Kankhal.                            ......Petitioner

    and

    Union of India & others.                                    ...Respondents

Counsel for the petitioner. : Mr. Ajay Veer Pundir, learned counsel.

    Counsel for the respondent Nos. 2, 6 to 9   :       Mr. A.S. Rawat, learned Senior
                                                        Counsel (Special Counsel) with
                                                        Mr. C.S. Rawat, learned Chief
                                                        Standing   Counsel     with   Mr.
                                                        Gajendra Tripathi, Brief Holder &
                                                        Mr. Shashank Saun, learned
                                                        counsel   for   the    State   of
                                                        Uttarakhand.

    Counsel for respondent no. 3                :       Mr.   Rajeev    Bhatt,     learned
                                                        counsel.

    Counsel for respondent no. 4                :       Mr. Aditya Pratap Singh, learned
                                                        counsel

    Counsel for the respondent no. 5            :       Mr. V.K.     Kapruwan,     learned
                                                        counsel.

    Counsel for respondent no. 10.              :       Mr. Saurav     Adhikari,   learned
                                                        counsel.

    Counsel for the intervener                      :   Mr. Piyush Garg & Mr. Nikhil
                                                        Singhal, learned counsels.




ORDER : (per Sri Vipin Sanghi, C.J.)

We have heard the matter at length yesterday and

today. The petitioner has sought to place reliance on the

order dated 09.10.2018, issued by the National Mission for

Clean Ganga (NMCG), to submit that there is a complete ban

on the carrying on of mining activity in the River Ganga,

between Raiwala to Bhogpur stretch. The order dated

09.10.2018, after narrating the statutory character of NMCG,

and the powers vested in it under the Environment

(Protection) Act, takes note of the order issued by the NGT in

O.A. No. 10 of 2015, on the basis of which, it claims that the

Government of Uttarakhand issued an order dated

02.02.2016, stipulating as follows:-

"a. The river bed mining shall be carried on is a highly regulated manner and under strict supervision of the authorities concerned.

b. No mechanized river bed mining would be permitted. No JCBs would be permitted to operate in the river bed.

c. No suction of the minerals from the river and the river bed would be permitted by the mechanical process like suction pumps etc. d. The regulated mining would include the seasons during which such mining is permitted and which shall be strictly adhered to."

2. It further refers to the directions issued by the

Central Pollution Control Board, under Section 5 of the

Environment (Protection) Act, on 06.12.2016. The directions

claimed to have been issued by CPCB, inter alia, included the

following:-

"(i) District Magistrate, Hardwar and Senior Superintendent of Police, Hardwar shall ensure that the decision of Uttarakhand Government banning mining in Raiwala-to-Bhogpur stretch of Ganga River in Hardwar is strictly complied and no illegal mining takes place in this stretch of Ganga River." (emphasis supplied)

3. The order of the NMCG concludes by observing as

follows:-

"Now, therefore, in view of above and in exercise of power vested to NMCG under para 8 of the Authorities Order, 2016, it is directed to comply with the following directions:

1. Ensure that the decision of Uttarakhand Government banning mining in Raiwala - to - Bhogpur stretch of River Ganga in Haridwar is strictly complied and no illegal mining takes place in this stretch of River Ganga within the provision of judgment of Hon'ble NGT in the matter OA No. 10/2015 dt. 15 April, 2015.

2. District Magistrate, Haridwar shall issue necessary orders immediately and ensure compliance of the order for closure of operation of stone crushers/pulverisers, as applicable along the banks of Ganga in Raiwala to Bhogpur stretch in Haridwar.

3. Submit the compliance status of the direction issued in paragraph 2 above to NMCG on quarterly basis."

(emphasis supplied)

4. From the aforesaid order, particularly, the reference

made to the order dated 06.12.2016 issued by CPCB, gives a

clear indication that the CPCB had banned mining in Raiwala

to Bhogpur Stretch of River Ganga, in Haridwar.

5. The meaning of a "ban" on mining, obviously, is

that no mining activity can be undertaken in the said stretch.

Thus, there is no question of some part of the mining activity

being legal, while other being illegal.

6. The case of the respondents is that, subsequently,

the CPCB itself issued another order on 22.03.2019, which did

not speak about a complete ban on mining activity in the

River Ganga, on the Raiwala to Bhogpur Stretch. The

operative part of the said communication/ order, issued by

the CPCB on 22.03.2019 reads as follows:-

"NOW THEREFORE, in view of the above and in exercise of powers delegated by the Central Government to Chairman, the Direction issued under Section 5 of the Environment (Protection) Act, 1986 vide letter No. IPC-II/Direction-DM/SSP, Haridwar / 2016/ 6980

dated 6.12.2016 are modified and the following modified directions as issued:-

1. Uttarakhand Government shall ensure that any mining of river bed material in the river bed and river flood plains of Ganga and its tributaries in Haridwar district shall be undertaken with valid Environmental Clearance as per provisions of the EIA Notification dated 14.09.2006 issued under the Environment (Protection) Act 1986 and there is no stay order of any competent court/tribunal on the EC.

2. Uttarakhand Government shall ensure through strict enforcement and complaint redressal system that no illegal mining, screening and crushing of river bed material takes place in the river bed and river flood plains of Ganga and its tributaries in Haridwar district.

3. Uttarakhand Government shall re-examine the matter of need of review their existing stone crusher policy to consider 3-5 km buffer zone for ganga River and inform CPCB about the decision / action taken within 3 months."

(emphasis supplied)

7. Thus, the ban on mining in the River Ganga

between Raiwala to Bhogpur was lifted. It is, therefore, the

submission of Mr. Rawat, learned Senior Counsel appearing

for the State, that the order of NMCG dated 09.10.2018 has

to be read in the light of the subsequent order passed by the

CPCB on 22.03.2019, and not in the light of the earlier order

dated 06.12.2016.

8. Mr. Pundir, the learned counsel for the petitioner,

submits that, subsequent to the order dated 22.03.2019, the

CPCB has again issued another communication/ order on

23.04.2019, which, in its operative part, states as follows:-

"NOW THEREFORE, in view of the above and to clear doubts if any it is clarified that CPCB's modified direction dated 22.03.2019 have no bearing on NMCG's directions dated 09.10.2018 which shall therefore be complied with as long as these directions are in force and not revised by NMCG, and the following

directions are issues.

1. Complaints filed by Matri Sadan dated 19-04-2019 (copy enclosed) be immediately enquired into by state & district administration and factual report in the matter be sent by Uttarakhand state government to NMCG and CPCB by 10- 05-2019.

2. Uttarakhand state government shall ensure strict vigil against illegal activities and shall also ensure effective and immediate action against violators.

3. Uttarakhand state government shall ensure that direction of NMCG dated 09.10.2018 are strictly complied with."

(emphasis supplied)

9. Thus, the CPCB has clarified that its modified

directions dated 22.03.2019 have no bearing on NMCG's

directions dated 09.10.2018, which are required to be

complied with, as long as those directions are in force, and

not revised by NMCG. The result of this direction/ order is

that, once again, one has to go back to the directions issued

by the NMCG on 09.10.2018.

10. The NMCG is represented before us. Counsel for

the NMCG states that he has filed his counter affidavit in the

Registry two days ago. The same has, however, not come on

record. He has tendered in Court his copy for our perusal.

11. Unfortunately, the counter affidavit of the NMCG

does not very clearly state as to whether the NMCG, as a

statutory body created under the Environment (Protection)

Act, with statutory power to regulate or even ban mining

activity in any stretch of the River Ganga, has taken any

decision to completely ban mining activity in the aforesaid

stretch of River Ganga, i.e. between Raiwala to Bhogpur. The

NMCG in its said affidavit states as follows:-

"3. That at the outset it is submitted that the National Mission for Clean Ganga (NMCG) is one of the authorities constituted in accordance with the provisions of sub-section 3 of Section 3 of the Environmental (Protection) Act, 1986 vide notification no. S.O. 3187 E dated 07.10.2016 inter-alia to take measures for prevention, control and abatement of environmental pollution in river Ganga and to ensure continuous adequate flow of water so as to rejuvenate the River Ganga. NMCG is a nodal agency for the implementation of the provisions of the above notification and for effective abatement of pollution and rejuvenation, protection and management of the River Ganga and its tributaries.

A copy of the notification dated 07.10.2016 is Annexed herewith as Annexure-CA1

4. That the National Mission for Clean Ganga (NMCG) is under the administrative control of the Ministry of Jal Shakti, Government of India, New Delhi.

5. That the powers and functions of the NMCG are provided in para 39 and 41 of the above said notification dated 07.10.2016, which amongst others, provide to identify the specific areas of threats to the river Ganga and to take all such measures and discharge such functions as it may deem necessary or expedient for the prevention control and abetment of environmental pollution in River Gang and its tributaries. The NMCG is also vested with the power to issue directions under section 5 of the Environment (Protection) Act for prevention, control and abatement of pollution, rejuvenation, protection and management in the River Ganga and its tributaries.

6. That various other activities which includes providing technical assistance in constructions of Sewage Treatment Plants (STPs) for prevention, control and treatment of sewage effluents from the municipalities envisage, primarily for the management of effluent and sewage discharges through the applicable environmental regulatory norms, stipulated by Ministry of Environment, Forest and Climate Change (MoEF&CC). The State Pollution Control Board (SPCB), constituted under the provisions of the Water (prevention and control of pollution) Act, 1974, including the Respondent no. 4 are required to ensure that water pollution is not caused by any person by carrying any activities including mining activities.

7. It is relevant to mention that the petitioner appears to be aggrieved against the Office Memorandum dated 11.02.2021 issued by the State Government of Uttarakhand and the Order dated 01.11.2021, issued by the District Magistrate of Haridwar for the alleged illegal mining between Raiwala to Bhogpur stretch of River Ganga in violation of the directions dated 09.10.2018 issued by National Mission for Clean Ganga. The issuance of the directions dated 09.10.2018 by the NMCG to the

District Magistrate Haridwar is not disputed. By the said directions dated 09.10.2018, the District Magistrate Haridwar was inter-alia directed to ensure that the decision of the Uttarakhand Government banning mining in Raiwala to Bhogpur stretch of River Ganga in Haridwar is strictly complied and no illegal mining takes place in the said stretch of River Ganga in violation of the provision of the order passed by the Hon'ble NGT, vide order dated 15.04.2015 in the OA no. 10/2015. The District Magistrate was also directed to ensure compliance of the order for closure of operation of stone crusher, pulverisers along the banks of river Ganga in the stretch Raiwala to bhogpur in Haridwar. The State Government of Uttarakhand is required to monitor the compliance of the action taken by the District Magistrate, Haridwar."

(emphasis supplied)

12. The case of the respondent-State is that the

environmental clearance has been granted by the Ministry of

Environment, Forests and Climate Change, Government of

India, which has also been amended. The amended

environmental clearances, granted by Ministry of

Environment, Forests and Climate Change, Government of

India, have been placed before us. They relate to the

following stretches of River Ganga, with which we are

concerned:-

S.No. Name of the Stretch Mining Activity Date of amended clearance

1. Village Chidyapur, District Mining of Mineral 08.04.2020 Haridwar Sand, Bajri and Boulder (Minor Mineral)

2. Villages- Bhogpur, Tatwala and Mining of River 10.04.2020 Ramkundi, District Haridwar Bed Material

3. Village Shyampur, District Mining of Mineral 23.03.2020 Haridwar Sand, Bajri and Boulder (Minor Mineral)

4. Village Bishanpur, District Mining of Mineral 23.03.2020 Haridwar Sand, Bajri and Boulder (Minor Mineral)

13. The said environmental clearances also state that

"mining shall be limited to the area which is not covered

under the direction of NMCG issued vide letter no.

09.10.2018. Mining in such area will be subjected to the final

decision of NMCG".

14. Therefore, it becomes essential for the NMCG to

clearly state, whether the decision of the NMCG is to

completely ban mining in the River Ganga, between the

Raiwala to Bhogpur stretch, in Haridwar, or to permit the

same, subject to conditions. The NMCG is directed to file a

specific affidavit on this aspect within the next ten days.

15. The State was required by the CPCB, while issuing

the order dated 22.03.2019, to comply with the conditions, as

already taken note of hereinabove. Apparently, there is no

compliance of condition nos. 2 & 3.

16. Since complaints of illegal mining are rampant, and

we can take cognizance of it, it is absolutely essential that the

State Government should set up a completely independent

Complaint Redressal System against illegal mining, screening

or crushing of river bed materials. The Redressal Mechanism

has to remain independent of, and unconnected with the

State's Administration, if it has to work effectively and

meaningfully. Often, complaints are received that the local

administration is either inactive, unconcerned, or is mixed up

with the mining licensees. Such complaints can, obviously,

not be left for examination and disposal by the very same

authorities, who are involved in the matter of enforcement of

the conditions of the mining license. The State should,

therefore, evolve a completely independent Complaint

Redressal Mechanism, by, inter alia, drawing persons from

reputed and independent retired members of the Judiciary,

Bureaucracy, reputed environmental experts and activists.

The State should place before the Court, on the next date,

the independent Complaint Redressal Mechanism that it may

evolve for the purpose of redressal of complaints regarding

illegal mining, not only in the River Ganga, but throughout

the State.

17. The matter is part heard.

18. List this case on 05.01.2023.

19. Interim orders to continue till the next date of

listing.

___________________ VIPIN SANGHI, C. J.

______________ MANOJ KUMAR TIWARI, J.

Dt: 15.12.2022 Navin