Supreme Court Modifies NGT Order on Sand Mining: State of Bihar vs. Pawan Kumar (2021)

Date of the Judgment: November 10, 2021
Citation: (2021) INSC 713
Judges: L. Nageswara Rao, Sanjiv Khanna, B.R. Gavai

Can the state government be directed to have private consultants prepare District Survey Reports (DSRs) for sand mining? The Supreme Court of India recently addressed this question while hearing an appeal against an order of the National Green Tribunal (NGT). The core issue was whether the NGT correctly directed the State of Bihar to have DSRs prepared by private consultants and whether the State could continue mining activities while the DSRs were being finalized.

The Supreme Court bench, comprising Justices L. Nageswara Rao, Sanjiv Khanna, and B.R. Gavai, delivered a unanimous decision modifying the NGT’s order. The court clarified the procedure for preparing DSRs and allowed the State to continue mining activities through the Bihar State Mining Corporation, subject to environmental safeguards.

Case Background

The case originated from a challenge to the sand mining practices in the State of Bihar. The National Green Tribunal (NGT) had directed the State to revise its District Survey Reports (DSRs) for sand mining, mandating that these reports be prepared by consultants accredited by the National Accreditation Board of Education and Training/Quality Control Council of India. The NGT also ruled that no mining could occur until the DSRs were approved by the State Expert Appraisal Committee (SEAC) and the State Environment Impact Assessment Authority (SEIAA).

The State of Bihar appealed this decision, arguing that the NGT’s order was impractical and financially burdensome. The State contended that the DSRs should be prepared by the sub-divisional committees, which are composed of government officials from various departments, as per existing guidelines.

Timeline

Arguments

The State of Bihar, represented by Shri Atmaram Nadkarni, argued that the NGT had erred in mandating that DSRs be prepared by private consultants and approved by SEAC and SEIAA before mining could commence. The State contended that this was akin to “putting the cart before the horse” as the mining plan, which requires SEAC and SEIAA approval, is prepared only after the tenders are finalized. The State also argued that the DSRs prepared by them followed all the requisite procedures and considered all relevant factors.

The State further submitted that the NGT’s order was causing significant financial loss to the public exchequer, as old lessees were continuing mining activities at a meager cost. They requested permission to finalize the tenders or, alternatively, to allow the Bihar State Mining Corporation to conduct mining activities until the DSRs were finalized.

Shri P.S. Patwalia, representing the original applicant, vehemently opposed the appeals, arguing that the State had prioritized financial gains over environmental concerns and that the DSRs were not prepared in accordance with the relevant rules and policy guidelines.

Submissions

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, but the core issues can be inferred from the arguments and the Court’s decision:

• Whether the National Green Tribunal (NGT) was correct in directing the State of Bihar to have District Survey Reports (DSRs) prepared by private consultants?
• Whether the State Expert Appraisal Committee (SEAC) and the State Environment Impact Assessment Authority (SEIAA) approval is required for the DSR before the auction/e-auction/grant of mining lease?
• Whether the State of Bihar can be allowed to continue mining activities through the Bihar State Mining Corporation until the DSRs are finalized?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

Authorities Viewed by the Court:

• Deepak Kumar v. State of Haryana and Others (2012) 4 SCC 629: The Court acknowledged that the NGT relied on this case to direct revision of environmental clearance procedures.
• Satendra Pandey v. Ministry of Environment, Forest and Climate Change and Another O.A. No. 186 of 2016 (M.A. No. 350/2016): The Court noted that the NGT had directed MoEF & CC to revise the procedure laid down in the notification dated 15th January 2016.
• Notification dated 15th January 2016, issued by MoEF & CC: The Court recognized this notification as the basis for the NGT’s concerns about the environmental clearance process.
• Enforcement and Monitoring Guidelines for Sand Mining (2020 guidelines): The Court heavily relied on these guidelines to determine the procedure for DSR preparation and the composition of the sub-divisional committee.
• Appendix-X of the notification dated 15th January 2016: The Court used this to support its decision that the sub-divisional committees are better equipped to prepare DSRs.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to balance environmental protection with the practical requirements of sand mining and the financial implications for the state. The Court emphasized the importance of following established procedures and guidelines while also ensuring that legal mining activities could continue without causing undue hardship or financial loss. The court also considered the need to prevent illegal mining and its associated problems.

The Court’s reasoning was influenced by the following factors:

• The 2020 guidelines mandate that DSRs be prepared before auctioning mining leases.
• Sub-divisional committees, comprising government officials, are better equipped to prepare DSRs than private consultants.
• The need to avoid financial burden on the public exchequer.
• The need to prevent illegal mining activities.
• The necessity of sand for public and private construction projects.
• The importance of environmental safeguards.

Logical Reasoning

Judgment

The Supreme Court modified the NGT’s order, directing that the DSRs should be prepared by the sub-divisional committees, which include officers from various government departments, rather than by private consultants. The Court reasoned that these committees are better equipped to assess the local conditions and prepare the DSRs, and that using private consultants would unnecessarily burden the public exchequer. The Court also permitted the State to continue mining activities through the Bihar State Mining Corporation until the DSRs are finalized, subject to environmental safeguards.

The Court’s decision was based on the following key points:

• The 2020 guidelines stipulate that DSRs should be prepared before the auctioning of mining leases.
• The sub-divisional committees, as per the 2016 notification and 2020 guidelines, are competent to prepare DSRs.
• The use of private consultants is not necessary and would be an unnecessary financial burden.
• Continuing mining activities through the Bihar State Mining Corporation is necessary to prevent illegal mining and loss to the public exchequer.

The Court emphasized the need for a balanced approach, ensuring both developmental activities and environmental protection. It noted that a total ban on legal mining could lead to illegal mining and other adverse consequences.

The Court quoted the 2020 guidelines, specifically Clause 4.1.1 (a), (o), and (p), which detail the procedure for preparing DSRs and the composition of the sub-divisional committee. The Court also referred to Appendix X of the 2016 notification, which specifies the composition of the sub-divisional committee.

The Court stated:

“It could thus be seen that in accordance with the 2020 guidelines, the DSR is required to be prepared before the auction/e­auction/grant of mining lease by Mining Department or Department dealing with mining activity in the respective States.”

“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 sub­divisional committees comprising of the officers of the State 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.”

“We are therefore of the view that the direction in that regard issued by the Tribunal requires to be modified. We are further of 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.”

Key Takeaways

• District Survey Reports (DSRs) for sand mining in Bihar will now be prepared by sub-divisional committees consisting of government officials, not private consultants.
• The State of Bihar can continue mining activities through the Bihar State Mining Corporation until the new DSRs are finalized and approved.
• All mining activities must adhere to environmental safeguards to prevent damage to the environment.
• The Supreme Court emphasized the need to balance environmental protection with the practical needs of sand mining and the financial implications for the state.
• The judgment highlights the importance of following established procedures and guidelines in environmental clearances.

Directions

The Supreme Court issued the following directions:

1. The exercise of preparing DSRs for mining in all districts of Bihar shall be undertaken afresh.
2. The draft DSRs shall be prepared by sub-divisional committees within 6 weeks.
3. The District Magistrate shall forward the draft DSRs to the SEAC for examination within 6 weeks.
4. The SEAC shall forward its report to the SEIAA within 6 weeks.
5. The SEIAA will consider the grant of approval to the DSRs within 6 weeks.
6. While preparing and appraising DSRs, strict adherence to the 2020 guidelines must be ensured.
7. The State Government is permitted to carry on mining activities through the Bihar State Mining Corporation until further orders, ensuring all environmental concerns are addressed.

Specific Amendments Analysis

There is no specific amendment analysis in the judgment.

Development of Law

The ratio decidendi of this case is that District Survey Reports (DSRs) for sand mining should be prepared by sub-divisional committees comprising government officials, as per the 2020 guidelines and the 2016 notification, and that the state can continue mining through the Bihar State Mining Corporation until the DSRs are finalized, subject to environmental safeguards. This modifies the NGT’s order that mandated preparation of DSRs by private consultants.

The Supreme Court clarified that the DSRs should be prepared by the sub-divisional committees, which are better equipped to assess local conditions, and that the state can continue mining through the Bihar State Mining Corporation until the DSRs are finalized. This decision ensures that mining activities can continue without undue delay while also adhering to environmental safeguards and established procedures.

Conclusion

The Supreme Court’s judgment in The State of Bihar and Others vs. Pawan Kumar and Others modified the National Green Tribunal’s order regarding the preparation of District Survey Reports (DSRs) for sand mining. The Court directed that DSRs be prepared by sub-divisional committees consisting of government officials, not private consultants, and allowed the State of Bihar to continue mining activities through the Bihar State Mining Corporation until the DSRs are finalized. This decision balances the need for environmental protection with the practical requirements of sand mining and the economic implications for the state.