WPPIL/47/2022
2023 Latest Caselaw 387 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL
           HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                              AND
             HON'BLE SRI JUSTICE RAVINDRA MAITHANI

                         14TH FEBRUARY, 2023
            WRIT PETITION (PIL) No. 47 OF 2022

Between:

Dinesh Kumar Chandola.
                                                                     ...Petitioner

and

Union of India and others.
                                                               ...Respondents

Counsel for the petitioner. : Mr. Dushyant Mainali, the learned counsel.

Counsel for respondent no. 1. : Mr. Lalit Sharma, the learned Standing Counsel for the Union of India.

Counsel for respondent nos. 2 to 7. : Mr. S.N. Babulkar, the learned Advocate General assisted by Mr. C.S.

Rawat, the learned Chief Standing Counsel for the State of Uttarakhand.

Counsel for respondent no. 8. : Mr. Rajeev Bhatt, the learned counsel.

Counsel for respondent no. 9. : Mr. Aditya Pratap Singh, the learned counsel.

JUDGMENT : (per Sri Vipin Sanghi, C.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, which

means "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 areas

in 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 Collector or District Magistrate or any other Competent Authority."

7. The further submission of Mr. Babulkar is that

leaving the dredged minerals on the banks of the river,

and their non-disposal would also create practical

difficulties, inasmuch, as, the silt would flow back into the

river in rainy season, and render the activity of dredging

nugatory.

8. Mr. Mainali has, with his rejoinder affidavit,

placed on record a Joint Inspection Report prepared by a

team of Officers, which include the Conservator of Forests,

Western Circle, Haldwani, the Deputy Director, MoEF&CC,

Dehdraun, the Scientist D, CPCB, Lucknow, the Regional

Officer, UKPCB, Haldwani, the Sub-Divisional Magistrate,

Haldwani, the Geo Chemist, Geology and Mining, Unit-

Haldwani, and the Mining Officer, Geology and Mining,

Unit- Champawat (Representative of the District

Magistrate, Champawat), on the aspect of mining activity

in upstream part of Nandhaur River, and Upper-stream

part of Sharda Barrage, Tanakpur. This report was

prepared in the matter of Ridhima Pandey v. State of

Uttarakhand, (OA No. 429/2022). This report takes note

of the impugned order issued by the State Government

dated 07.01.2022 above referred to, which permits M/s

A.P.S. Infra Engineers Private Limited to undertake

dredging work, and also to remove the silt and RBM for a

period of six months from the aforesaid river. The

conclusion and recommendation made in this report by the

aforesaid Team/ Committee of Officers is that the area in

question is rich in bio-diversity and comes within Eco-

Sensitive Zone of Nandhaur Wildlife Sanctuary. Hence,

mining activity may not be permitted.

9. Mr. Mainali has also referred to the letter dated

28.03.2022 issued by the Divisional Forest Officer,

Haldwani Division, wherein he states that the requisite

permission is required to be obtained from the Ministry of

Environment, Forest and Climate Change, as well as from

the National Board of Wildlife, before permitting the

activity to be carried out in terms of the impugned order

dated 07.01.2022.

10. We have heard and considered the rival

submissions.

11. There is no doubt that the activity of dredging is

essential, and should be carried out in rivers and streams

from time to time, so that the riverbed levels are

maintained. This is essential to prevent flooding in rainy

season, which also causes environmental degradation and

loss of life and property along the path of the river, or the

stream concerned. At the same time, it cannot be that

under the garb of dredging, what is permitted, and what is

actually carried out, is the activity of mining for

commercial purposes. The impugned communication

permits a private agency, namely M/s A.P.S. Infra

Engineers Private Limited, to carry out not only the

dredging activity in the Nandhaur Wildlife Sanctuary, but

also to win the mineral, which is dredged. For this,

undisputedly, it would be essential for the said agency to

send its tools and tackles, men and heavy machinery, as

well as trucks into the Wildlife Sanctuary to carry out the

activity. Thus, what the impugned order dated

07.01.2022 permits M/s A.P.S. Infra Engineers Private

Limited to carry out is not merely the activity of dredging,

but also the activity of mining. There is no denying the

fact that the activity of mining cannot be carried out in an

Eco-Sensitive Zone, as we have already noticed above.

12. Another aspect that we cannot lose sight of, is

that the grant of a contract to a private agency for the

purpose of dredging, and also winning the dredged

mineral, would lead to carrying out of the said activity

purely for commercial purposes. The private agency

would have its commercial interest in mind, and not the

environmental interest, which is the rationale for carrying

out the dredging activity in the first place. The dredging

activity - which is carried out for environmental reasons,

would be limited to the extent it is necessary for achieving

that limited objective. However, once the activity is

entrusted to a private agency, and that too with a right to

carry out mining activity i.e. to win the mineral which is

dredged, the extent of dredging that may be carried out

on the site is very difficult to monitor or control. The

moment the dredged mineral is removed for commercial

purposes, the nature of the activity would change from

merely dredging to mining, which is clearly prohibited in

an Eco-Sensitive Zone.

13. Aforesaid being the position, we cannot permit

the respondents to act in terms of their order dated

07.01.2022. The State departments, namely the Forest

Conservation Department, and the Agriculture

Department, of which the Soil Conservation Division is now

a part, should have an active role to play in the carrying

out of the activity of dredging in the river in question on

its own, without the involvement of a private agency. The

activity of mining, i.e. the winning of the dredged mineral,

in any case, cannot be permitted. We, therefore, permit

the State to undertake the activity of dredging entirely on

its own, without the involvement of private agencies, and

with the involvement of the State departments

aforementioned.

14. The Writ Petition stands disposed of in the

aforesaid terms.

15. Consequently, pending applications, if any, also

stand disposed of.

________________ VIPIN SANGHI, C.J.

____________________ RAVINDRA MAITHANI, J.

Dt: 14th February, 2023 Rahul