Raps J&K EAC for giving clearances despite realizing violation of MoEF&CC Notification and Sand Mining Guidelines
New Delhi: The Supreme Court of India has stated that environmental clearance for sand mining cannot be granted if the District Survey Report (DSR) does not include a study on the river’s replenishment capacity, LiveLaw.in reported on Saturday.
The Supreme Court stated this in the case titled Union Territory of J&K (previously State of Jammu & Kashmir) & Anr. versus Raja Muzaffar Bhat & Ors. (and connected cases).
Noting that the District Survey Reports (DSRs) prepared in the case were “fundamentally defective” as they lacked replenishment data, making them untenable in law, the court dismissed the batch of appeals, upholding the National Green Tribunal’s (NGT) decision quashing ECs for sand mining in three blocks of the Union Territory of Jammu and Kashmir.
“Just as forest conservation requires assessment of tree growth rate before permitting timber harvesting to ensure that felling of trees does not exceed tree growth, a replenishment study enables us to take an informed decision as to whether sand mining can be permitted without degrading the rivers’ natural balance… It is, therefore, compelling to hold that a DSR is valid and tenable only when a proper replenishment study is conducted,” the court said.
The bench, comprising Justices PS Narasimha and AS Chandurkar, observed that replenishment data is a mandatory prerequisite for environmental clearance in addition to the DSR.
The court explained why a replenishment study is essential in the present context, when the construction activities are going at a rapid pace:
“Demand for construction-grade sand is growing at a tremendous rate and it is said that the world is expected to run out of this resource by 2050. Construction-grade sand can be found in aquatic environments, such as rivers and is a provisioning ecosystem service. Even under controlled circumstances, the practice of extracting sand from the riverbed and banks impacts the environment.
“In the physical environment, the primary effects are riverbed widening and lowering. In the biological environment, the overarching effect is a reduced biodiversity and stretches from the aquatic and shoreline flora and fauna to the whole floodplain area. Due to easy access, river sand and gravel have been used extensively in construction projects. Depending on the mining operation method as well as morphologic and hydraulic characteristics of the river, sand mining may cause bed and bank erosion or other negative consequences for the river eco-system.
“It is, therefore, necessary to conduct appropriate studies, including that of replenishment to explore sustainable and cost-effective methods for river mining,” the court said.
“Without a proper study of the existing position of the riverbed and its sustainability for further sand mining, grant of environmental clearances would be detrimental for the ecology. It has therefore been held that a detailed study leading to a preparation of the replenishment report is an integral part of the DSR. If the DSR becomes the foundation for consideration of an application for environmental clearance, then it is compelling to ensure replenishment studies are undertaken in advance and the report forms an integral part of the DSR,” the court added.
“In view of the existing legal regime that mandates preparation of replenishment report in a scientific manner and such a report forming an integral part of the DSR, we hold that a District Survey Report without a proper replenishment study is equally untenable,” the court observed.
The bench was hearing the appeal filed by the National Highways Authority of India (NHAI) and Union Territory of J&K and Ladakh against the NGT’s order dismissing their plea, holding that the Environment Clearance was invalid as it was granted based on DSR lacking replenishment data.
Affirming the impugned finding, the judgment authored by Justice Narasimha observed: “In our opinion, the J&K EAC committed a serious error in proceeding further with the DSR once it realised that it is not formulated as per the MoEF&CC Notification 2016 and 2016 and 2020 Sand Mining Guidelines and also when the replenishment data is not complete.”
“It is unfortunate that J&K EIAA compromised with regulatory integrity by granting the environment clearances (EC) on the basis of a DSR without a replenishment report. The compromise sought to be achieved by permitting the project proponent to go ahead with a ‘restricted mining depth of maximum 1 meter and bulk density of 2.0 for production of the mineral and supplying it to maximum production of 34800 mt in view of non-availability of replenishment data’ is unacceptable. The illegality committed by the J&K EAC in so recommending is accentuated with the J&K EIAA in granting EC. This is how regulatory failure occurs,” the court added.
“In view of the above discussion, we have no hesitation in upholding the decision of the NGT and dismissing the civil appeals of the UT of J&K, the NHAI and also that of the project proponent,” the court held.
