The Supreme Court on Thursday said that State is duty bound to restore the ecological imbalance and there must be some stringent measures which may have deterrent effect so that the violators may think twice before causing damage to the nature.
The top court said that at the time when large scale damages are being caused to nature, it is of the opinion that the violators cannot be permitted to go scot free on payment of penalty only.
It said that sand and mines are public property and the State being its custodian should be more sensitive to protect the environment and ecological balance.
A bench of Justices Ashok Bhushan and M R Shah made the observations in the verdict related to illegal sand mining in Madhya Pradesh and interpretation of section 23A of Mines and Minerals (Development and Regulation) Act, 1957 under which offences under the law can be compounded by paying up the penalty.
The top court said that since the provisions of section 23A of MMDR Act is not challenged, the provision stands and it leave the issue of payment of penalty for causing damages to the nature “to the wisdom of the legislatures and the concerned states”.
The bench said that it is true that by permitting the violators to compound the offences under the MMDR Act, the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage to the environment.
It said that in view of the large scale damages being caused to the nature and as observed and held by this Court in the 2014 case of GNCTD versus Sanjay, the policy and object of MMDR Act and Rules are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature.
“when the violations like this are increasing and the serious damage is caused to the nature and the earth and it also affects the ground water levels etc. and it causes severe damage as observed by this Court in the case of Sanjay (2014), we are of the opinion that the violators cannot be permitted to go scot free on payment of penalty only”, the bench said.
It said that “there must be some stringent provisions which may have deterrent effect so that the violators may think twice before committing such offences and before causing damage to the earth and the nature”.
The bench said that it is the duty cast upon the State to restore the ecological imbalance and to stop damages being caused to nature as excessive in stream sand and gravel mining from river beds and like resources causes the degradation of rivers.
“It is further observed that apart from threatening bridges, sand mining transforms the river beds into large and deep pits, as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry,” it added.
The bench said that “even otherwise, sand/mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form”.
The bench held that the Magistrate can in exercise of powers under Section 156(3) of the CrPC order/direct the concerned police station In-charge/SHO to lodge/register crime case/FIR even for the offences under the MMDR Act.
It held that at this stage the bar under Section 22 of the MMDR Act on any other proceedings shall not be attracted.
“The bar under Section 22 of the MMDR Act shall be attracted only when the Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder,” it said.
The top court ruled that for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder.
The bench said that in a case where the violator is permitted to compound the offences on payment of penalty as per provision of Section 23A, of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the those offences under the MMDR Act.
“However, the bar under subsection 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further,” it said.
