Guest Article by Parul Gupta
[This note has been prepared in the context of citizens in Pune city alerting the police about illegal sand mining in the middle of the night earlier this month, see lead story at: https://sandrp.in/2020/11/23/drp-nb-9-nov-2020-pune-citizens-expose-illegal-river-sand-mining-in-pune-city/. However, this provides useful guidance for all citizens across the country in similar situation, hence this is being shared for wider use.]
Illegal sand mining is an offence under the Indian Penal Code, Mines and Minerals Development and Regulation Act, 1957 and Environment (Protection) Act, 1986.
- The citizens can lodge a complaint/FIR with the concerned police station. The following sections must be invoked by the police.
(1) Section 378 and 379 of IPC deals with theft of property -The State Government is the owner of the mineral, therefore, no person is allowed to transport the sand without permission of the Government, if any person takes the sand without permission, then the offence under section 378 and 379 of IPC would be made out. Dishonestly removing sand and gravel from river beds without consent constitutes theft. The penalty is imprisonment which may extend to three years, or with fine, or with both.
(2) Section 15 of the EP Act– Mining of sand without obtaining necessary consent from State Pollution Control Board/Environment Clearance from MoEFCC/SEIAA is an offence under EP Act. The penalty is imprisonment which may extend to five years or fine which may extend to one lakh rupees. If contravention continues the penalty may extend to five thousand rupees per day. The section further provides for imprisonment for seven years if contravention continues beyond a year, after the date of conviction.
(3) Section 4 and 21 of MMDR Act– Mining of sand without the necessary permit/ mining lease constitutes illegal mining under the MMDR Act. The penalty is imprisonment which may extend to five years or fine which may extend to five lakh rupees per hectare of the area. It further provides for seizure of the mined material, tools, equipment or vehicle used in the process and recovery of the price of the illegal mined material if the same has already been disposed of by the accused. The State Govt. would also charge for the rent/royalty/tax for the period during which the land was occupied by the accused without any lawful authority.
(4) State Pollution Control Board (SPCB) is the nodal authority in the State for dealing with cases related to pollution or environment management coming under the purview of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment Protection Act 1986. In case the mining operations are being done without taking necessary consent from the State Board, a complaint or representation can be made to the State Board which would initiate appropriate action under the provision of these acts for non-compliance or violation of the provisions. Penalty provisions provide for imprisonment for one year and six months (which may extend to six years) and fine to 5000/- to 10,000 /-
(5) In case illegal mining is being done in protected areas/forest areas then it would also invoke provisions of Wildlife Protection (Act), 1972 and Forest (Conservation) Act, 1980.
2. What action can be taken by citizens/residents apart from filing FIR – Some people fear for their lives and do not wish to visit police station for the fear of political involvement. In such cases, a petition could be filed before the NGT under sections 14,15 and 17 (only in cases where mining is being done without environmental permissions) or the concerned High Court (Writ petition or PIL) or Supreme Court. Persons (who belong to the weaker section of the society) can also approach the Legal Services Authority for filing cases against illegal sand mining. Please see this link for more information (Legal Aid – National Legal Services Authority! (nalsa.gov.in))
3. The citizens can also approach any organization/NGOs for filing of the petition, where the identity of the complainant/ petitioner is not revealed. Like the NGT Bar Association since 2013 had been filing cases in respect of illegal sand mining in Yamuna which is not filed by any particular person. I also feel we should have a database of lawyers and NGO’s where affected residents/ citizens could approach directly if they observe illegal mining in their neighbourhood.
The citizens can also write to the respective agencies/ authorities – MoEFCC/ State Pollution Control Board/ concerned District Magistrate/ Mines and Geology Department/ Revenue Department etc.
4. Assessment of damages/ What should be the scale of compensation– The guidelines of 2020 have given provisions for assessment of the damages resulting due to illegal mining. For this purpose, it provides for an independent committee of experts to be constituted by the District Administration which would also have independent representation of locals and State Pollution Control Board. The committee would recommend for recovery of environmental compensation alongwith the action under the provision of EP Act, 1986. The NGT has asked the CPCB alongwith other experts to determine the scale of compensation which is still pending finalization. Attached are the report of the CPCB and the subsequent order of the NGT.
Parul Gupta (parul.lawyer@gmail.com)
SANDRP 