# THE STATE OF BIHAR AND OTHERS v. PAWAN KUMAR AND OTHERS ETC

- **Citation:** [2021] 7 S.C.R. 351
- **Court:** Supreme Court of India
- **Decided:** 2021-11-10
- **Case number:** Civil Appeal Nos. 3661-3662 of 2020
- **Bench:** L. Nageswara Rao, Sanjiv Khanna, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-bihar-and-others-v-pawan-kumar-and-others-etc-34913
- **Pages:** 8

## Headnote

Mine and Minerals: Mining of sand in Banka District, Bihar
- Auction/e-auction/grant of mining lease - Invitation of tender -
Direction of the tribunal that unless the State Expert Appraisal
Committee-SEAC and the State Environment Impact Assessment
Authority-SEIAA grants approval to the District Survey Report-DSR
for the purpose of mining of sand, the same cannot be carried out;
and that the invitation of the tenders without preparing the DSR in
accordance with the judgment of the Tribunal in Satendra Pandey's
case, could not have been done - Said directions, challenged to -
On appeal, held: There is a need for balanced approach of
sustainable development ensuring environmental safeguards - When
legal mining is banned, it gives rise to mushroom growth of illegal
mining, resulting into clashes between sand mafias, criminalization
and at times, loss of human lives - Total ban on legal mining, also
causes huge loss to the public exchequer - Also, sand is required
for construction of public infrastructural projects as well as public
and private construction activities - In view thereof, directions issued
by the tribunal are modified with the following directions, that the
exercise of preparation of DSR for the purpose of mining in the
State of Bihar in all the districts shall be undertaken afresh; that
the draft DSRs to be prepared by the sub-divisional committees;
that the draft DSRs to be approved by SEAC and SEIAA; and that
for preparation of draft DSR's and appraisal by SEAC and SEIAA,
procedure and parameters laid down in the policy of January 2020
to be followed - Until the DSRs are finalized and granted approval
by SEAC and SEIAA, the State is permitted to continue with legal
mining activities through Bihar State Mining Corporation with
necessary arrangements - Furthermore, apart from preventing
illegal mining activities, to ensure that the public exchequer is not
[2021] 7 S.C.R. 351
351
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deprived of its share in legalized mining - Enforcement and
Monitoring Guidelines for Sand Mining.
Deepak Kumar v. State of Haryana and Others (2012)
4 SCC 629 - referred to.
Case Law Reference
(2012) 4 SCC 629
referred to
Para 9

## Text

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THE STATE OF BIHAR AND OTHERS
v.
PAWAN KUMAR AND OTHERS ETC.
(Civil Appeal Nos. 3661-3662 of 2020)
NOVEMBER 10, 2021
[L. NAGESWARA RAO, SANJIV KHANNA AND
B. R. GAVAI JJ.]
Mine and Minerals: Mining of sand in Banka District, Bihar
- Auction/e-auction/grant of mining lease - Invitation of tender -
Direction of the tribunal that unless the State Expert Appraisal
Committee-SEAC and the State Environment Impact Assessment
Authority-SEIAA grants approval to the District Survey Report-DSR
for the purpose of mining of sand, the same cannot be carried out;
and that the invitation of the tenders without preparing the DSR in
accordance with the judgment of the Tribunal in Satendra Pandey's
case, could not have been done - Said directions, challenged to -
On appeal, held: There is a need for balanced approach of
sustainable development ensuring environmental safeguards - When
legal mining is banned, it gives rise to mushroom growth of illegal
mining, resulting into clashes between sand mafias, criminalization
and at times, loss of human lives - Total ban on legal mining, also
causes huge loss to the public exchequer - Also, sand is required
for construction of public infrastructural projects as well as public
and private construction activities - In view thereof, directions issued
by the tribunal are modified with the following directions, that the
exercise of preparation of DSR for the purpose of mining in the
State of Bihar in all the districts shall be undertaken afresh; that
the draft DSRs to be prepared by the sub-divisional committees;
that the draft DSRs to be approved by SEAC and SEIAA; and that
for preparation of draft DSR's and appraisal by SEAC and SEIAA,
procedure and parameters laid down in the policy of January 2020
to be followed - Until the DSRs are finalized and granted approval
by SEAC and SEIAA, the State is permitted to continue with legal
mining activities through Bihar State Mining Corporation with
necessary arrangements - Furthermore, apart from preventing
illegal mining activities, to ensure that the public exchequer is not
[2021] 7 S.C.R. 351
351
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[2021] 7 S.C.R.
deprived of its share in legalized mining - Enforcement and
Monitoring Guidelines for Sand Mining.
Deepak Kumar v. State of Haryana and Others (2012)
4 SCC 629 - referred to.
Case Law Reference
(2012) 4 SCC 629
referred to
Para 9
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.36613662 of 2020.
From the Judgment and Order dated 14.10.2020 of the National
Green Tribunal, Principal Bench New Delhi in Original Application Nos.40
of 2020 (EZ) and 57 of 2020 (EZ).
Atmaram Nadkarni, Sr. Adv., Azmat Hayat Amanullah, Rishi K.
Awasthi, Piyush Vatsa, Ms. Arzu Paul, Salvador Santosh Rebello,
Ms. Deepti Arya, Adiraj Bali, Advs. for the Appellants.
Ms. Aishwarya Bhati, ASG, P. S. Patwalia, Brijendra Chahar, Bimal
Roy Jad, V. Giri, Pinaki Mishra, Sr. Advs., Vanshdeep Dalmia,
Ms. Natasha Dalmia, Ms. Shevali Chaudhary, G. S. Patwalia,
Ms. Harshika Verma, Alok Sangwan, Rajiv Shankar Dvivedi, Rishabh
Jain, S. K. Sarkar, Gurmeet Singh Makker, Anish Kr. Gupta, Ms. Archana
Pathak Dave, Ms. Archana Preeti Gupta, Ms. Sadapurna Mukherjee,
Arvind Kumar, Aditya Singh, Shubham Singh, Pankaj Bhagat, Kripa
Shankar Prasad, Ms. Ritu Rajkumari, Prashant Bhushan, Anand Varma,
Ms. Apoorva Pandey, Rohit Kumar Singh, Sadapuran Mukherjee,
Ms. Aditi Shahi, Rahul Kumar Gupta, Ms. Chandni Arora, Dharmendra
Kumar Sinha, Ajit Upadhyay, Raju Sonkar, Onkar Prasad, Advs. for the
Respondents.
The following Order of the Court was passed
O R D E R
Per Court
1. The present appeals challenge the judgment and order dated
14th October 2020, passed by the National Green Tribunal, Principal
Bench, New Delhi (hereinafter referred to as "the Tribunal") in O.A.
No. 40/2020/EZ with O.A. No. 57/2020/EZ, thereby issuing the following
directions:-
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(i)
"Having regard to the findings at (a), (b) and (c) above, we
direct the State to undertake further exercise for preparation
of a fresh DSR for the Banka district.
(ii)
As the DEIAA is not functioning as a consequence of the
decision of the Tribunal in Satendra Pandey (supra), the
DSR shall be prepared through a consultant(s) accredited
by the National Accreditation Board of Education and
Training/Quality Control Council of India in terms of O.M.
of MoEF & CC dated 16.03.2010.
(iii)
The DSR so prepared shall be submitted to the District
Magistrate who shall verify the DSR only in respect of the
relevant facts pertaining to the physical and geographical
features of the district which shall be distinct from the
scientific findings based on the parameters prescribed in
the SSMMG- 2016. After such verification, the District
Magistrate shall forward the DSR for examination and
evaluation by the State Expert Appraisal Committee (SEAC)
having regarding to the fact that the SEIAA comprises of
technical/scientific experts. The SEAC after appraisal of
the report shall forward it to the SEIAA for consideration
and approval if it meets all scientific/technical requirements.
(iv)
While preparing the DSR, the MoEF & CC Accredited
Agency/Consultant shall scrupulously follow the procedure
and the parameters laid down under the SSMMG-2016 and
EMGSM-2020 read in sync with each other."
2. The appellant-State of Bihar has assailed the said judgment
and order dated 14th October 2020, on various grounds.
3. Shri Atmaram Nadkarni, learned Senior Counsel appearing on
behalf of the State of Bihar submitted that the Tribunal has grossly erred
in holding that unless the State Expert Appraisal Committee (hereinafter
referred to as "SEAC") and the State Environment Impact Assessment
Authority (hereinafter referred to as "SEIAA") grants approval to the
District Survey Report (hereinafter referred to as "DSR") for the purpose
of mining of sand, the same cannot be carried out. He submitted that
the Tribunal has further held that the very invitation of the tenders without
preparing the DSR in accordance with the judgment of the Tribunal in
the case of Satendra Pandey v. Ministry of Environment, Forestand
THE STATE OF BIHAR AND OTHERS v. PAWAN KUMAR
AND OTHERS ETC.
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Climate Change and Another1could not have been done. He submitted
that after the tenders are invited in accordance with the DSR prepared
by the District Level Committee, the successful bidder will be required
to prepare a mining plan and unless such a mining plan is approved by
SEAC and SEIAA, the Environmental Clearance would not be granted
and in turn, mining activities cannot be carried out. He submitted that the
finding of the Tribunal is like putting the cart before the horse. He further
submitted that the Tribunal has also grossly erred in holding that the
DSRs prepared by the State were without following the requisite
procedure and without considering the relevant factors. He submitted
that not only the procedure as prescribed under the relevant rules and
regulations was complied with, but the voluminous material in support of
the same was also placed on record before the Tribunal. He submitted
that the Tribunal has not taken into consideration the said material. He
therefore submitted that the judgment and order passed by the Tribunal
dated 14th October 2020, needs to be set aside and the State needs to be
permitted to finalize the tenders received by it.
4. Shri Nadkarni further submitted that on account of the orders
passed by the Tribunal, the old lessees are continuing with the mining
activities by paying a meagre amount to the State Government. He
therefore submitted that on account of this, a huge loss would be caused
to the public exchequer. In the alternative, he submitted that the State, at
least, needs to be permitted to undertake mining activities through Bihar
State Mining Corporation until the DSRs are finalized in accordance
with the judgment of the Tribunal.
5. Shri P.S. Patwalia, learned Senior Counsel appearing on behalf
of the original applicant vehemently opposed the appeals. He submitted
that the Tribunal has rightly held that the DSRs are not prepared in
accordance with the relevant rules as well as policy guidelines. He
submitted that it is apparently clear that the State has taken into
consideration only financial enrichment without considering the
environmental aspects.
6. Though, we have heard the learned counsel for both the parties
at length on merits, we find that it will be appropriate that the appeals
are kept pending for further consideration and till then, certain interim
orders are passed.
1 O.A. No. 186 of 2016 (M.A. No. 350/2016)
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7. It cannot be in dispute that though the developmental activities
are not stalled, the environmental issues are also required to be addressed.
A balanced approach of sustainable development ensuring environmental
safeguards, needs to be resorted to. At the same time, it also cannot be
ignored that when legal mining is banned, it gives rise to mushroom growth
of illegal mining, resulting into clashes between sand mafias, criminalization
and at times, loss of human lives. It also cannot be disputed that sand is
required for construction of public infrastructural projects as well as
public and private construction activities. A total ban on legal mining,
apart from giving rise to illegal mining, also causes huge loss to the public
exchequer.
8. Taking into consideration these aspects of the matter, we
propose to issue certain interim directions.
9. The Tribunal, in the case of Satendra Pandey (supra), has
found that the notification dated 15th January 2016, which provided
Environmental Clearance to be given by the District Environment Impact
Assessment Authority (hereinafter referred to as the "DEIAA") was
not in consonance with the judgment of this Court in the case of Deepak
Kumar v. State of Haryana and Others2. The Tribunal therefore in
Satendra Pandey (supra), had directed Ministry of Environment, Forest
and Climate Change (hereinafter referred to as "MoEF and CC) to take
steps to revise the procedure laid down in the notification dated 15th
January 2016. It is to be noted that MoEF and CC, in accordance with
the directions of the Tribunal, had issued Enforcement and Monitoring
Guidelines for Sand Mining (hereinafter to referred to as "the 2020
guidelines") in the month of January 2020. Chapter 4 of the 2020
guidelines deals with identification of possible sand mining sources and
preparation of DSR. It will be relevant to refer to Clause 4.1.1 (a), (o)
and (p) of the 2020 guidelines:-
"4.1 Identification of possible sand mining sources and
preparation of District Survey Report (DSR)
4.1.1 Preparation of District Survey Report.
a) District Survey Report for sand mining shall be prepared before
the auction/e-auction/grant of the mining lease/Letter of Intent
(Loi) by Mining department or department dealing the mining
activity in respective states.
2 (2012) 4 SCC 629
THE STATE OF BIHAR AND OTHERS v. PAWAN KUMAR
AND OTHERS ETC.
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o) Potential site for mining having its impact on the forest, protected
area, habitation, bridges etc, shall be avoided. For this, a subdivisional committee may be formed which after the site visit shall
decide its suitability for mining. The list of mining lease after the
recommendation of the Committee needs to be defined in the
following format given in as Annexure-II. The Sub-Divisional
Committee after the site visit shall make a recommendation on
the site for its suitability of mining and also records the reason for
selecting the mining lease in the Patta land. The details regarding
cluster and contiguous cluster needs to be provided as in
Annexure-III. The details of the transportation need to ~e
provided as in Annexure IV.
p) Public consultation-The Comments of the various stakeholders
may be sought on the list of mining lease to be auctioned. The
State Government shall give an advertisement in the local and
national newspaper for seeking comments of the general public
on the list of mining' lease included in the DSR. The DSR should
be placed in the public domain for at least one month from the
date of publication of the advertisement for obtaining comments
of the general public. The comments so received shall be placed
before the sub-divisional committee for active consideration. The
final list of sand mining areas [leases to be granted on riverbed &
Patta land/Khatedari land, de-siltation location (ponds/lakes/dams),
M-Sand Plants (alternate source of sand)] after the public hearing
needs to be defined in the final DSR in the format as per
Annexure-V. The details regarding cluster and contiguous cluster
needs to be provided in Annexure-VI. The details of the
transportation need to be provided in Annexure-Vll."
10. It could thus be seen that in accordance with the 2020 guidelines,
the DSR is required to be prepared before the auction/e-auction/grant
of mining lease by Mining Department or Department dealing with mining
activity in the respective States. It is further provided that the potential
site for mining having its impact on the forest, protected area, habitation
and bridges should be avoided. For this, a sub-divisional committee is
required to be formed which, after the site visit, is required to decide
regarding the suitability of the sites for mining. The sub-divisional
committee is further required to record its reasons for selecting the mining
lease in the patta land. Various details are required to be given in the
annexures appended to the said policy.
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11. It is further to be noted that Appendix-X of the notification
dated 15th January 2016, issued by MoEF and CC also provides for
composition of the sub-divisional committee:-
"A Sub-Divisional Committee comprising of Sub-Divisional
Magistrate, Officers from Irrigation department, State Pollution
Control Board or Committee, Forest department, Geology or
mining officer shall visit each site for which environmental
clearance has been applied for and make recommendation on
suitability of site for mining or prohibition thereof."
12. It is to be noted that with the advent of modern technology,
various technological gadgets like Drones and satellite imaging etc. can
be used for identification of the potential sites and preparation of the
DSR and also to check misuse and unauthorized mining.
13. 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 sub-divisional 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. The sub-divisional committee consists of various officers from
Revenue Department, Irrigation Department, State Pollution Control
Board, Forest Department and Geology Mining Department of the State
Government. They are better equipped to visit the sites and prepare the
draft DSR for the concerned district. Apart from that, preparation of
DSR through private consultants would also unnecessarily burden the
public exchequer. 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. This apart from preventing illegal mining activities, would
also ensure that the public exchequer is not deprived of its share in
legalized mining.
14. We therefore find it appropriate to substitute the directions
issued by the Tribunal vide judgment and order dated 14th October 2020,
with the following directions:-
THE STATE OF BIHAR AND OTHERS v. PAWAN KUMAR
AND OTHERS ETC.
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(i)
The exercise of preparation of DSR for the purpose of mining
in the State of Bihar in all the districts shall be undertaken
afresh. The draft DSRs shall be prepared by the sub-divisional
committees consisting of the Sub-Divisional Magistrate,
Officers from Irrigation Department, State Pollution Control
Board or Committee, Forest Department, Geological or mining
officer. The same shall be prepared by undertaking site visits
and also by using modern technology. The said draft DSRs
shall be prepared within a period of 6 weeks from the date of
this order. After the draft DSRs are prepared, the District
Magistrate of the concerned District shall forward the same
for examination and evaluation by the SEAC. The same shall
be examined by the SEAC within a period of 6 weeks and its
report shall be forwarded to the SEIAA within the aforesaid
period of 6 weeks from the receipt of it. The SEIAA will
thereafter consider the grant of approval to such DSRs within
a period of 6 weeks from the receipt thereon;
(ii) Needless to state that while preparing DSRs and the appraisal
thereof by SEAC and SEIAA, it should be ensured that a
strict adherence to the procedure and parameters laid down
in the policy of January 2020 should be followed;
(iii) Until further orders, we permit the State Government to carry
on mining activities through Bihar State Mining Corporation
for which it may employ the services of the contractors.
However, while doing so, the State Government shall ensure
that all environmental concerns are taken care of and no
damage is caused to the environment.
15. List the matter after 20 weeks.
Nidhi Jain
Directions issued.