National Green Tribunal
1. Kandra Battachhatri vs State Of Odisha Through Chief Secretary ... on 7 February, 2023
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 04 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, FINANCE CENTRE
KOLKATA
(By Video Conference)
Original Application no. 112/2021/EZ
Kandra Battachhatri & Ors. Applicant(s)
Versus
State of Odisha & Ors. Respondent(s)
Date of hearing: 07.02.2023
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant(s): Mr. Sankar Prasad Pani, Advocate for Applicant (in Virtual Mode)
Respondent(s): Ms. Samapika Mishra, ASC for R-1 to 8 (in Virtual Mode)
Mr. Dipanjan Ghosh, Advocate for R-9
Mr. Gora Chand Roy Choudhury, Advocate for R-10 (in Virtual
Mode)
Mr. Soumitra Mukherjee, Advocate for R-11 (in Virtual Mode)
Mr. Ashok Prasad, Advocate for R-12
ORDER
1. Grievance in this application is against unregulated illegal sand mining by Respondent No. 13 - Rajashree Behera (Project Proponent, PP) in Kenapali Sand bed in Brahmani River under Lahunipara Tehsil of Sundergarh District.
2. According to the applicants, the PP is using heavy machines, undertaking mining during monsoon, doing mining beyond permitted quantity without proper record in violation of environmental norms. There 1 is no demarcation of the lease area. Vehicles used for transportation are overloaded and are not covered, resulting in air pollution. There is no replenishment study. Requisite procedure for cluster mining has not been followed. There is no GPS tracking of vehicles. E-transit pass or CCTV cameras are not provided in terms of Sand Mining Enforcement and Monitoring Guidelines, 2020. There is no prefeasibility report and Environment Management Plan. The PP was granted CTE, CTO and mining lease but regulatory measures have not been followed for scientific and sustainable mining in terms of permission granted. The applicant approached the statutory regulators but no remedial action has been taken.
3. Vide order dated 8.12.2021, the Tribunal considered the grievance and issued notice to the respondents, including District Magistrate, Sundergarh, SEIAA, Odisha, State PCB and the PP. The Tribunal also constituted a joint Committee to verify the allegations and to assess environmental compensation taking into account cost of restoration measures. Operative part of the order is reproduced below:
"xxx .......................................xxx.....................................xxx
11. Considering the nature of allegations made in the Original Application and the photographic evidence filed therein, we consider it pertinent to constitute a Committee comprising of the following Members:-
i) Senior Scientist from Ministry of Environment, Forest and Climate Change, Integrated Regional Office, Bhubaneswar, Odisha;
ii) Senior Scientist from Odisha State Pollution Control Board;
iii) Senior Scientist from State Environment Impact Assessment Authority (SEIAA), Odisha;
iv) District Magistrate, Sundergarh District, Odisha; and
v) Deputy Director of Mines, Koira Circle, District-Sundergarh.
The State Environment Impact Assessment Authority (SEIAA), Odisha, shall be the Nodal Office for all logistic purposes and the 2 District Magistrate-Sunderarh, shall provide all the assistance as may be required by the SEIAA, Odisha.
12. The Committee constituted above shall submit its report with regard to the allegations made in the Original Application in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 15, 17, 19, 20 and 27, relating, inter-alia, to Mechanical Mining, Mining beyond 1 meter depth, Mining in Safety Zone and close to River Bank, Excess Mining and Transportation through Heavy Vehicles, Sand Mining during Monsoon Period, No Pillar Posting in the lease area, No Display Board (information details) of Statutory Clearances, Sand Mining beyond Lease Area, Carrying Capacity of the road and impact of plying of sand loaded heavy vehicles on the local population, Impact of Flow Pattern of the river water, Transportation of sand loaded heavy vehicles through the village roads (PMGSY) which may have resulted in complete damage to the roads, suffering causing to the local peoples due to violation of environmental norms, the Replenishment Study and Pre and Post Monsoon Assessment whether conducted or not.
13. The Committee shall submit its report within a period of six weeks. The Committee shall also submit its report with regard to the violations of the Sustainable Sand Mining Guidelines, 2016 and the Enforcement and Monitoring Guidelines for Sand Mining 2020.
14. We also direct that if the Committee finds any violation of environmental norms during inspection, the Committee shall evaluate the loss of revenue caused to the State Exchequer due to excess mining, determine the Environmental Compensation, cost of restoration of the environment/river bed and suggest remedial measures for restoration of the environment/river bed."
4. In pursuance of above, report of the Committee has been filed with the affidavit of SEIAA on 28.04.2022. It is stated that mining was done beyond the permitted extent in area outside the lease area. Flow of river water has been obstructed. Transportation has been done by kacha road causing lot of dust and noise pollution. Replenishment study has been done. Compensation of Rs. 3,84,99,137/- and Rs. 13,07,192/- has been assessed for excess mining resulting in damage to the environment. Apart from amount of environmental compensation, further sum of Rs. 2,05,20,000/- and Rs. 12,44,826.59/- was required to be paid for loss of revenue. There are further recommendations for restoration measures. 3
5. The stand of the PP is that lease was granted to the PP on 11.02.2021, EC was granted on 09.04.2021 and huge amount has been invested. The PP has acted in compliance with the environmental norms. The PP has filed additional affidavit on 3.2.2023 in continuation of earlier written statement to the effect that lease operated only for 78 days due to objections of inhabitants. The PP filed W.P. (C) No. 4435 of 2022, Rajashree Behera vs. State of Odisha & Ors. before Odisha High Court against failure of the administration to provide road for transportation which was disposed of with a direction to consider the representation.
6. In above background, we have heard learned Counsel for the parties, perused the record and considered the matter. Question is whether mining in question is illegal and if so, what is the further remedial action to be taken.
7. We find it difficult to accept simple denial by the PP in the face of joint verification report filed by an independent joint Committee comprising Senior Officers of MoEF&CC, SEIAA Odisha, District Magistrate and Mining Officer, after visit to the site. The report has presented the status with reference to all the issues after due verification. It will be worthwhile to reproduce extracts from the said report which are as follows:
" Sl. Issues Present status
No.
5. Mechanical Mining: There are two sand bed
Mechanical mining is done by located in the Kenapali
engaging Earth Mover village area i.e. Ladaam
/machines of different Sand Bed and Kenapali Sand
capacity which is strictly Bed. Both sand beds are
prohibited and not approved located 570m away from
by any the authorities. The each other. The Ladaam sand
machine used of regulating for was operated for the period sand mining is with Model No. 03 years (i.e. 02.07.2018 to VOLVO EC 210 D with 5.7m 31.03.2021) in favour of M/s Boom length and 2.9m Arm KMC-RKD construction length. Bucket capacity is Company, Bhubaneswar, around 1.22 Cum. copy of Odisha with valid EC 4 photographs dated 11th April obtained from DEIAA, 2021 and 14th October 2021, Sundergarh vide letter no. 4th November 2021, 523/Mining dt. 12.10.2018. Mechanical Mining is annexed The Kenapali sand bed has is depicting as Annexure-4. obtained EC from SEIAA vide letter no. 9758/SEIAA dt.
25.11.2020 in favour of Tahasildar, Lahunipada and later the lease transfer in favour of Smt. Rajashree Behera and the lease was operated on 10.03.2021 and mining activity stopped on 11.12.2021 due to NGT case.
During inspection the
committee has not found any
machines are engaged for
sand mining for Kenapali
sand bed. However, as per
Google Earth nap
photographs submitted by
the petitioner and
informed by local
villagers, it revealed that
excavators were used
earlier for the sand
mining both Kenapali and
Ladam Sand Bed. The lease
period of Ladam Sand Bed is
completed on 31.03.2021.
6. Mining beyond 1 mtre As per the mining plan of
depth: The private Ladaam Sand Bed, the
respondent is mining up to 20 permissible depth for sand
feet (around 6 meters) and excavation is 2.0 meter and
photographs dated 14th 1.0 meter or Kenapali sand
October 2021 suggests the Bed as per mining plan and
mining leading to pond like EC. But the during inspection
structures touching the water it was found that the sand
level. extracted from Ladaam sand
bed approximately 1.5 meter
to 2.5 meter depth and also
sand extracted beyond the
lease. Similarly the sand
extracted from Kenapali sand
bed approximately 1.0 mter
to 1.5 meter depth and from
beyond the lease area. The
quantum of sand extracted
from Kenapali Sand Bed
lease area is very lease as
compare to permissible limit
in EC but the lessee has
extracted more sand from
outside the lease area
upto 1.5 depth. In case of
Ladam sand Bed the
5
quantum of sand mined
out from outside and
within the lease is more as
compare to permissible
limit in EC.
7. Mining in safety zone and During inspection it was
close to River Bank. found that the Ladaam sand
bed was operated earlier (i.e.
on 02.07.2018 to
31.03.2021) very close to
river embankment and to
obstructed the natural flow of
river water by constructing
temporary road in river and
use that road for
transportation of sand from
Ladam sand Bed. But in case
of Kenapali sand bed, the
lease area located 300m
away from river
embankment. The lessee of
Kenapali sand bed uses the
existing road already
constructed for Ladam Sand
Bed and latterthat road was
extended to Kenapali sand
bed by the lessee.
8. Excess Mining and As per the information and
Transportation through hyva documents submitted by
Tahasildar, Lahunipada, the
permission issued for
extraction of sand from
Ladaam sand bed is
8000cum (as per Y-form)
but the lease has
extracted 35400 cum of
excess sand for the period
02.07.2018 to 03.10.2019
and as per google map
record it appear the excess
45000 cum of sand
extracted for the period
January 2021 and total
excess and illegal sand
extracted for the entire
lease period is 80400cum.
Similarly, the Lessee of
Kenapali sand bed
extracted 10148 cum of
sand from her lease area
which is very less as per
approved EC and mining plan
(i.e.16375 cum/annum with
depth 1.0m) but the lessee
extracted sand beyond the
lease area is 1393 cum which
is illegal.
6
9&10 Sand Mining during Monsoon Whatever quantity of sand
Period: The Y forms indicating extracted during monsoon
the sand mined and period the sane has been
transported during monsoon included in the calculation
season such as 12th August, sheet for extraction of sand
2021, 12th September, 2021, as per Y-forms. At the time of
13th October, 2021 and 14th Y-form issued there were no
October, 2021. rains as informed by the concerned Tahasildar.
11. No pillar posting in the lease Pillar posting was there for area. Kemapali sand bed not Ladaam sand as the lease period of Ladam Sand Bed is already expired on 31.03.2021.
12. No display board (information The committee has observed details) of statutory clearance. there was a display board for Kenapali sand bed only.
15. Sand Mining beyond lease Both of the lessees (Ladaam area and Kenapali sand bed) have extracted sand beyond the lease area. As per the Tahasil record and google earth map photographs it reveals that excess production was made by the lessee in different times. The details are mentioned in point no. 08.
17. Carrying capacity of the road 1. A 500 meter kutcha road is and impact of playing of sand connected from river bed to loaded heavy vehicles on local nearest pucca/pichu road population has not been and the road conditions is not studied. good as it observed by the committee during visit.
2. The carry capacity of pucca road is non viable, if overloaded water mixing-san transported passed through nearest village area. During the inspection the village people express their views that they are facing problem of dust and noise pollution, their houses are cracking due to heavy vehicles passing near the village area as 4 to 6 houses are located closed to road.
19. Impact on the flow of the river During inspection it was water. found that the main river water flows opposite site of the sand bed. However, it is also found that due to construction of road in river near quarry area, the 7 flow of water is obstructing some extent and that may be increase in rainy season.
20. Transportation sand loaded The govt. has already heavy vehicles through the sanctioned the required village roads (PMGSY) amount to repair or to resulted in complete damage construct of the damaged and local peoples are village road as informed by suffering. District Administration.
27. Replenishment study and pre The Lessee has submitted and post monsoon rate of replenishment study assessment not conducted. report of Kenapali Sand bed it reveals that the mineable reserve as per mining plan was 43519 cum and after post mineable reserve is 63045 cum. The Replenishment study was done by RQP Sri Zinu Sh.
Sathua by Drone Survey 2021 method (copy attached).
2.0 Over all observation The committee members observed the following at the time of inspection:
i. The Brahamani River is flowing in the opposite site of the sand Bed. No mining activity was going on, lease period of Ladaam Sand Bed has expired on 31.03.2021 and Kenapali sand bed was stopped for operation on 11.12.2021 as mentioned in the above table, and there was no machine found in the mine lease area. However, as per the information of local people and google map the both the quarries were operated mechanically earlier.
ii. Earlier the mining activities were done beyond the lease area and beyond the permissible depth both in case of Ladaam sand bed and Kenapali sand bed.
iii. Free flow of the river water is obstructed slightly for present and it will be fully during monsoon due construction of road within the river bank has been observed.
iv. There is a temporary (not concrete) pillar marking on the river embankment to demarcate in the lease area of Kenapali sand Bed and also there is a display board.
v. Earlier the Ladaam Sand bed was operated for the period 2018 to 2021 after obtained environmental clearance from DEIAA, Sundergarh. During inspection it appear that the Ladam Sand bed was operated without maintaining the safety zone but the Kenapali Sand bed has maintained 300m safety zone from river embankment.8
vi. Total excess sand extracted from Ladaam sand bed for the entire lease period is 80400cum as it found from field visit and google earth map. Similarly, the Lessee of Kenapali sand bed extracted excess 1393 Cum sand beyond the lease area. For the excess/illegal mining from Ladam Sand Bed (i.e. 35400 cum sand) the concerned Tahasiladr has collected of Rs.14,68,500/- . Notice has been served to Smt. Rajashree Behera vide letter no. 229 25.01.2022 for collection of penalty and royalty of Rs. 7,58,646/-for excess 736.74 cum sand extraction from Kenapali sand Bed.
vii. The lessee of Kenapali sand bed has submitted replenishment study report.
viii. The state govt. has already taken step for construction damaged village road for which already money approved by Govt.
3.0 Recommendations :
1. The Concerned Authority must ensure that the Sustainable Sand Mining Management Guidelines 2016 and Enforcement & Monitoring Guide lines for Sand Mining-2020 by Ministry of Environment, Forest and Climate change and the guidelines are strictly followed while granting the lease to a lease holder as well as before, during and after the execution of the sand mining.
2. The rate of study of Replenishment of sand should be included in the DSR report.
3. The fine amount imposed for excess sand mining for Ladaam sand Bed is Rs.3,84,99,137/- and for Kenapali sand Bed of Rs. 13,07,192/- shall be collected from previous lessee and present lessee. The details of calculation for environmental compensation are attached below.
4. The lessee shall remove the road constructed in river for using sand transportation.
5. Sprinkling of water for dust suppression during sand transportation near to the village road and limiting speed of vehicles shall be ensured by the lessee.
6. The sand loading vehicles should be covered properly and transportation time to be restricted only on day time.
7. Massive plantation about 3000 nos. of evergreen, native and fruit bearing tree species to be planted near the river embankment area to protect the soil erosion and damage of river embankment.
8. There shall be construct a concrete wall at damage site of the river embankment through using the collected penalty amount from lessee.9
9. A health camp shall organize near the village area to check health problem if any due to dust and noise pollution created during sand transportation.
10. Nearly 2,000 trees of suitable fruit bearing species shall be raised in nursery to 1m height and such saplings shall be given free to beneficiaries of this area for planting. Maintenance and Nursing of the plants shall also be paid for, and managed by utilizing from environmental compensation amount till the plants get established. This is part of the remediation plan."
8. On due consideration, we find no tangible objection to the report.
Compensation for damage to the environment and for loss to the revenue has to be under separate head in view of judgments of Hon'ble Supreme Court in M.C Mehta vs. UoI (2004) 12 SCC 118 and Goa Foundation, (2014) 6 SCC 590, apart from liability for offence of theft in view of Jayant vs. MP (2021) 2 SCC 670. In Common Cause (2017) 9 SCC 499, it has been held that under section 21(5) of the MMDR Act, 1957, loss to revenue is value of mineral extracted. In other two cases, compensation for loss of ecological services is provided which has to be with element of deterrence with reference to financial capacity of violator and adequate to meet cost of restoration and damage to individual victims. Minerals being vested in the State, mining beyond permission is loss of minerals and also amounts to theft. Such loss is recovered under mining laws. Loss of ecological services by violation of environmental laws is to be recovered on polluter pays principle under EP Act.
9. We accept the report and direct further action in terms of recommendations therein. Since it is admitted by the parties that no further mining is taking place, the District Magistrate may ensure recovery of the assessed amount and its utilization for restoration of environment in accordance with the recommendations in the report and also considering the District Environment Plan. The restoration measures be executed 10 within six months. No further mining be allowed by the PP or any other persons without compliance of environment norms since mining lease has already expired and norms have not been followed.
10. Mining is hazardous activity. It results in huge degradation of environment. Though it is otherwise lucrative activity, it poses threat to bio-diversity, destroys riverine vegetation, causes erosion, pollutes water sources, badly affects riparian ecology, damages ecosystem of rivers, safety of bridges, weakens riverbeds, causes destruction of natural habitats of organisms living on the riverbeds, affects fish breeding and migration, spells disaster for the conservation of bird species, increases saline water in the rivers. It has direct impact on the physical habitat characteristics of the rivers such as bed elevation, substrate composition and stability, in- stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Increase in demand of sand has placed immense pressure in the supply of sand resource and mining activities were going on illegally as well as legally without requisite restrictions. Lack of proper planning and sand management disturbs marine ecosystem and upsets the ability of natural marine processes to replenish the sand.
11. The Hon'ble Supreme Court in Deepak Kumar, (2012) 4 SCC 629 noted the need to permit only sustainable mining with strict regulatory measures including restoration of the area after closing of mines. It was noted that in-stream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the stream bed causes deepening of rivers which may result in destruction of aquatic and riparian habitats. It has impact on stream's physical habitat characteristics.
12. In State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, at page 790, it was observed :
11
"32. The policy and object of the Mines and Minerals Act and Rules have a long history and 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. The Court cannot lose sight of the fact that adverse and destructive environmental impact of sand mining has been discussed in the UNEP Global Environmental Alert Service Report. As per the contents of the Report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in India, it was stated that sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our country.
33. The mining of aggregates in rivers has led to severe damage to rivers, including pollution and changes in levels of pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 cm a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion.
34. The Report also dealt with the astonishing impact of sand mining on the economy. It states that tourism may be affected through beach erosion. Fishing, both traditional and commercial, can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structures for water supply.
35. Sand is often removed from beaches to build hotels, roads and other tourism-related infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors--beaches themselves. Mining from, within or near a riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, 12 bed elevation, substratum composition and stability, instream roughness of the bed, flow velocity, discharge capacity, sediment transportation capacity, turbidity, temperature, etc. Alteration or modification of the above attributes may cause hazardous impact on ecological equilibrium of riverine regime. This may also cause adverse impact on instream biota and riparian habitats. This disturbance may also cause changes in channel configuration and flow paths .....Today, demand for sand and gravel continues to increase. Mining operators, instead of working in conjunction with cognizant resource agencies to ensure that sand mining is conducted in a responsible manner, are engaged in full-time profiteering. Excessive in-stream sand and gravel mining from riverbeds and like resources causes the degradation of rivers. In-stream mining lowers the stream bottom, which leads to bank erosion. Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river mouths and coastal inlets. It also leads to saline water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in-stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in-stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the stream-bed and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction of sand from riverbeds may also cause the entire stream-bed to degrade to the depth of excavation."
13. In case the amount of compensation is not paid, the District Magistrate may consider registering case of theft against illegal mining in view of judgment of the Hon'ble Supreme Court in Jayant vs. MP, (2021) 2 SCC 670.
14. The District Magistrate, Sundergarh may file a compliance report with the Registrar, Eastern Zone Bench, Kolkata by e-mail within three months. If found necessary, the matter may be placed before the Bench for further directions.
Subject to above, the application is disposed of. 13 A copy of this order be forwarded to Chief Secretary, Odisha, Additional Chief Secretary/Principal Secretary, Mining, Odisha, State PCB, SEIAA, Odisha and District Magistrate, Sundergarh by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM B. Amit Sthalekar, JM Prof. A. Senthil Vel, EM Dr. Afroz Ahmad, EM February 07, 2023 Original Application no. 112/2021/EZ DV 14