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2015 DIGILAW 323 (UTT)

JAI PRAKASH BADONI v. UNION OF INDIA

2015-06-24

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT K.M. Joseph, C.J. (Oral) The petitions, two in number, i.e. WPPIL Nos. 93 of 2015 and 95 of 2015 being connected, they are disposed of by a common judgment. 2. In WPPIL No. 93 of 2015, the prayers sought are as follows: “i) Issue a writ, in the nature of certiorari quashing the impugned orders dated 16-5-2015 & 19-5-2015 passed by respondent nos. 2 & 8 (contained as Annexure no. 8 to this writ petition). ii) Issue a writ, order or direction in the nature of mandamus commanding / directing the respondent nos. 2 & 8 to stop all mining activities forthwith at different sites at Haridwar in the Holy River Ganga. iii) Issue a writ, order or direction in the nature of mandamus commanding / directing the respondent nos. 3 & 4 to take appropriate actions against respondent nos. 2 & 8 and other responsible persons in accordance with law. iv) issue a writ, order or direction in the nature of mandamus commanding / directing the respondent no. 1 to constitute S.I.T. to investigate the matter and to take appropriate legal action against all responsible officers and others.” 3. Briefly put, the case of the petitioner in WPPIL No. 93 of 2015 is as follows: The District Administration of Haridwar is doing mining activities by joining hands with the mining mafias and the riverbed island were damaged by the illegal mining in river Ganga. There is a reference to the judgment of this Court passed in WPPIL No. 38 of 2012. It is further contended that despite the same, mining activities were being carried out by the Garhwal Mandal Vikas Nigam and District Administration. A Contempt Petition No. 313 of 2012 was filed and it was found that in absence of E.I.A., mining activities were being carried out by the District Administration despite directions of this Court. There is a reference to the Principal Bench of National Green Tribunal. In short, there is a requirement of obtaining environmental clearance of the MoEF/SEIAA and licence from the competent authorities. There is reference to the directions of the Hon’ble Apex Court in the case of Deepak Kumar vs. State of Haryana. There is also reference to the spot inspection of the Expert Committee of respondent no. 1 and the status report, which contained several recommendations. The State Pollution Control Board has also issued directions to respondent nos. There is reference to the directions of the Hon’ble Apex Court in the case of Deepak Kumar vs. State of Haryana. There is also reference to the spot inspection of the Expert Committee of respondent no. 1 and the status report, which contained several recommendations. The State Pollution Control Board has also issued directions to respondent nos. 7 & 8 to stop illegal mining at different sites of holy river Ganga at Haridwar. It is stated that despite the same, mining activities in the holy river Ganga are being done by removing island, boulders and by digging the riverbed through heavy machineries, and it is on these allegations that the petitioner has approached this Court seeking the reliefs. 4. In WPPIL No. 95 of 2015, the prayer sought is as follows: “1. A writ order or direction in the nature of Mandamus directing the respondents to clear the deltas formed in the river GANGA by the collection of river bed material (RBM), adjacent to the villages mentioned in the writ petition.” 5. In short, the case of the petitioner in WPPIL No. 95 of 2015 is that the District Magistrate has taken a decision and issued direction to the Forest and Mining Department on 19th May, 2015 to clear deltas forming in the river adjacent to the villages. It is the case of the petitioner that the villages in question would suffer huge damages, if the deltas are not removed. It is, accordingly, that the petitioner has approached this Court seeking the reliefs, which we have mentioned above. 6. We have heard the learned counsel for the petitioners and also the learned Advocate General. We have also heard the learned Standing Counsel appearing on behalf of the Union of India. 7. As far as the complainant in WPPIL No. 93 of 2015 is concerned, it is admitted that after filing of the writ petition, the impugned orders stand withdrawn. In the light of this, essentially, the prayers in the writ petition would appear to become infructuous. 8. 7. As far as the complainant in WPPIL No. 93 of 2015 is concerned, it is admitted that after filing of the writ petition, the impugned orders stand withdrawn. In the light of this, essentially, the prayers in the writ petition would appear to become infructuous. 8. The case of the petitioner in WPPIL No. 95 of 2015 is that unless the deltas are removed and action is taken in terms of the directions of the District Magistrate, people in the villages, who are to be affected, are going to be put to great danger as the continuation of the deltas will remain an obstacle in the free flow of the water body, as has been the experience in the past. Reference is made to the Disaster Management Act, 2005. 9. Sri Ajay Veer Pundir would, in fact, point out that even for doing dredging, it is a requirement of law that the matter must be analyzed and considered by the Environment body, namely, the MoEF and the permission must be obtained for doing dredging. 10. In view of this controversy, we thought that we should get input of the Government of India. Accordingly, the Government of India was called upon to make its stand clear and an affidavit has been filed. In the affidavit, it is, inter alia, stated as follows: “3. That, it is humbly submitted that as long as de-silting activities are undertaken for maintenance and up-keeping of water reservoir of dams/weirs/canal/drains etc., and is not undertaken for purpose of winning minerals, the same would not require prior environmental clearance (EC) under the EIA Notification, 2006. If the dredging activities are undertaken for the purpose of winning minerals for commercial purpose, environmental clearance is required under the EIA Notification, 2006 and its subsequent amendments.” 11. There is also reference made to The Disaster Management Act, 2005 by the learned Advocate General in support of the contention that despite the requirement of the Environment (Protection) Act and the Notifications made thereunder, there is power with the State to carry out dredging in terms of Sections 33 and 34 of The Disaster Management Act, 2005, which read as follows: “33. Requisition by the District Authority.-The District Authority may by order require any officer or any Department at the district level or any local authority to take such measures for the prevention or mitigation of disaster, or to effectively respond to it, as may be necessary, and such officer or department shall be bound to carry out such order. 34. Powers and functions of District Authority in the event of any threatening disaster situation or disaster.-For the purpose of assisting, protecting or providing relief to the community, in response to any threatening disaster situation or disaster, the District Authority may- a. give directions for the release and use of resources available with any Department of the Government and the local authority in the district; b. control and restrict vehicular traffic to, from and within, the vulnerable or affected area; c. control and restrict the entry of any person into, his movement within and departure from, a vulnerable or affected area; d. remove debris, conduct search and carry out rescue operations; e. provide shelter, food, drinking water and essential provisions, healthcare and services; f. establish emergency communication systems in the affected area; g. make arrangements for the disposal of the unclaimed dead bodies; h. recommend to any Department of the Government of the State or any authority or body under that Government at the district level to take such measures as are necessary in its opinion; i. require experts and consultants in the relevant fields to advise and assist as it may deem necessary; j. procure exclusive or preferential use of amenities from any authority or person; k. construct temporary bridges or other necessary structures and demolish structures which may be hazardous to public or aggravate the effects of the disaster; l. ensure that the non-governmental organisations carry out their activities in an equitable and non-discriminatory manner; m. take such other steps as may be required or warranted to be taken in such a situation.” 12. As far as the requirement of getting clearance from the MoEF is concerned, we would think that the stand is made very clear in Paragraph 3. Dredging of rivers, canals, if it is done for the purposes of maintaining the canals, etc. As far as the requirement of getting clearance from the MoEF is concerned, we would think that the stand is made very clear in Paragraph 3. Dredging of rivers, canals, if it is done for the purposes of maintaining the canals, etc. would not appear to require clearance from MoEF and if, however, dredging is done only for the purpose of earning profit and is undertaken as a commercial venture, going by the stand of the Government of India, it would require permission. Therefore, it would appear that, having regard to the public purpose underlying the maintenance of these water bodies, if the dredging is undertaken for the purpose of maintaining the water bodies, as stated in Paragraph 3, no clearance is required, but if the dredging is undertaken only with the profit motive and as the commercial venture, then certainly it requires environmental clearance. We would, therefore, dispose of the WPPIL Nos. 93 of 2015 and 95 of 2015 recording the stand of the Government of India and directing that the dredging can be done, as stated in Paragraph 3, if it is for the purpose of maintaining the water bodies, etc. without obtaining permission of the MoEF; whereas if it is done with a commercial eye and for earning profit, then it can be done only after getting permission from the concerned Authority under the Environment (Protection) Act.