National Green Tribunal
Biren Kumar Pradhan S/O Bimal Kumar ... vs State Of Odisha Through Principal ... on 28 April, 2017
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BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
O.A. No. 155/2016/EZ
BIREN KR. PRADHAN & ANR
VS
STATE OF ODISHA & ORS
CORAM: Hon'ble Mr. Justice S.P.Wangdi, Judicial Member
PRESENT: Applicants : Mr. Sankar Prasad Pani, Advocate
Respondents No. 2,11 & 12 : Mr. Gora Chand Roy Chowdhury, Advocate
Mrs. S. Ray, Advocate
Respondents No. 1,4-7 : Mr. Bidesh Ranjan Behera, Addl. Govt. Advocate
Respondent No. 3,9 : Mr. J. Katikia, Addl. Govt. Advocate
Other Respondents : None
Orders of the Tribunal
Date & Remarks
Item No. 7
28th April, 2017.
The allegation in this OA is that the work of
expansion of the National Highway No. 49 from Bhojpur
to Chhatabar Section, a stretch of 60 KM involving
19.58 ha of forest land, has been undertaken by the
respondents No. 9 and 10 without obtaining forest
clearance under the Forest Conservation Act, 1980 and
Environment Clearance (EC), one of the necessary
conditions having regard to the fact that mining of
minor minerals including soil, stone, gravels, etc., is
involved in the project, has also not been obtained.
So far as the forest clearance is concerned, it has
been submitted by Mr. Gora Chand Roy Chowdhury, Ld.
Advocate for the MOEf that Stage-I clearance has been
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granted for a period of one year vide order dated
4.4.2016. Therefore, it is quite apparent that its validity
has already expired.
Undertaking construction prior to Stage-II
clearance would quite obviously be subject to
fulfilment of the conditions under Stage-I clearance.
The affidavits filed by the State respondents and the
respondents No. 9 and 10 are not clear on this. There is
also no confirmation as to whether Stage-II clearance
has been granted by the MOEF except for the
confirmation that Stage-I clearance had been granted.
One of the vital conditions prescribed in the State-
I clearance is compliance of ST & OTFD (Recognition of
Forest Rights) Act, 2006. We are not aware if this
condition has been complied with as neither the
respondents 9 nor the respondent No. 2 has come
forward with any information on this aspect.
So far as EC is concerned, respondents No. 9 i.e.
the State executing agency, has referred to a letter
written by Tahashildar, Jamankira dated 20.7.2016
which reads as follows :-
" With reference to your application dt. 04.05.2016,
I am to say that you have been issued Temporary permit
for extraction of ordinary earth vide order No. 1409 dt.
04.05.2016. In this regard I am to say that Environmental
Clearance is required only in case of long term lease as
per OMMC amendment Rule, 2014 issued by the
Government of Odisha. As the above Temporary permit
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does not come under the long term lease, the question of
Environment clearance in case of Temporary permit does
not arise "
Similar letters written by the Tahashildars of
Deogarh, Reamal, etc., have also been relied upon.
We are not convinced that EC would be necessary
only for long term leases and not for short term ones.
Ld. counsel for the respondents No. 9 and 10 have not
been able to produce before us the OMMC
(Amendment) Rules, 2014 referred to by the
Tahashildars.
To the contrary, a letter dated 21.7.2016 issued by
the Principal Secretary, Govt. of Odisha, has been
placed before us by Mr. Sankar Prasad Pani, ld.
Advocate for the applicant in which the following have
been stated :-
"2. In careful consideration of the facts above,
Government have been pleased to issue following
guidelines to streamline the procedure for grant of
permits of minor minerals in favour of Government
Agencies and project Proponents for public purpose as
per the provision of OMMC Rules, 2004.
*** *** *** ****
(iii) Concerned Tahashildar shall cause preparation and
approval of Mining Plan for total exploitable reserve of
minerals in the source and obtain environmental
clearance."
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It is relevant to note that this letter containing
guidelines was issued by the Revenue and Disaster
Management Deptt. Govt. of Odisha in pursuance of
order dated 1.2.2016 of this Tribunal directing that all
mineral mining shall be brought under the Consent
Administration of the State Pollution Control Board.
Clause 2(iii) extracted above stipulates that approval of
mining plan and obtaining EC are necessary. No
distinction has been indicated between long term and
short-term mining.
Mr. Katikia, Ld. Advocate for the respondents No. 9
and 10 seriously objects to reference being made on
the letters as those not being on record. However, as
the letter is issued by the Govt. Deptt. laying down the
guidelines applicable to all concerned, the objection of
Mr. Katikia does not appear to be well founded and
accordingly stands overrules.
The necessity to obtain EC in respect of lease for
extraction of minor minerals irrespective of mining
area is based upon the judgement of the Hon'ble
Supreme Court in Deepak Kumar's case. Series of
amendments have been brought to EIA Notification,
2006 to bring it in accord with the said judgement.
DEIAA has come into existing only on account of the
decision whereby the area less than 25 ha have been
brought within the purview of DEIAA, upto 50 ha under
SEIAA and area beyond that under the MOEF.
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Categorisation of the mines has also been made into
categories A, B1, B2, etc. vide the amendment.
Reference in this regard may be made to the MOEF
Notification dated 15th January, 2016.
State of Odisha certainly ought to be aware of the
change in law and, therefore, expected of them to act
in accordance with the amended rules. However, it is
an admitted that no EC has been obtained by the user
agency thereby rendering the entire project illegal.
As already observed, apart from this, Stage-II
clearance under the Forest Conservation Act, 1980,
also does not appear to have been obtained. None of
the respondents has been able to enlighten us on this
aspect.
In view of the above, we are of the considered
opinion that the project should not continue further
until all laws are complied with.
Mr. J.Katikia, ld. Advocate strongly urges that this
project is a public work and interest of public would be
harmed if any such prohibitory order is passed.
The fact that this a public project, is not a licence
for the State to violate the laws with impunity. Being
the State, the Respondents 9 and 10 are expected to
comply with the law and obtain all clearances.
Therefore, prima facie, we are of the view that this is a
case where an interim order should be issued.
We accordingly direct the respondents No. 9 and
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10 to withhold themselves forthwith from continuing
with the ongoing work of the expansion of the road
until they satisfy us that they have duly complied with
the laws referred to above. They shall show cause
before the next date as to why this order shall not be
made absolute
Copies of this order be transmitted to the Chief
Secretary, Govt. of Odisha and the executing agencies
i.e. Respondent No. 9, the Ex. Engineer, National
Highway Div., Debgarh and the Respondent No. 10, M/s
Sridurga Condev. Katashi, PO Kirapani, Dist. Cuttack, for
compliance.
Respondents are, however, at liberty to approach
us for modification, variation or vacation of the order
before the date fixed.
List on 25.5.2017.
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Justice S.P.Wangdi, JM 28-4-2017 7