National Green Tribunal
Radha Mohan Singh vs Chief Secretary Government Of Odisha on 3 August, 2022
Item No. 05 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No.40/2022/EZ
Radha Mohan Singh Applicant(s)
Versus
State of Odisha & Ors. Respondent(s)
Date of hearing: 03.08.2022
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Mr. Sankar Prasad Pani, Advocate (in Virtual Mode)
For Respondent(s) : Mr. Janmejaya Katikia, AGA for State Respondent (in Virtual Mode),
Mr. Dipanjan Ghosh, Advocate for R-4,
Ms. Paushali Banerjee, Advocate for R-16
ORDER
1. Mr. Sankar Prasad Pani, learned Counsel is present for the Applicant (in Virtual Mode).
2. Mr. Dipanjan Ghosh, learned Counsel files Vakalatnama on behalf of the Respondent No.4, Odisha State Pollution Control Board; the same is taken on record. When the case is next listed the name of Mr. Dipanjan Ghosh shall be printed in the cause-list as counsel for Respondent No.4.
3. One affidavit dated 20.05.2022 has been filed on behalf of the Respondent No.4, Odisha State Pollution Control Board; the same is taken on record.
4. One affidavit dated 11.07.2022 has been filed on behalf of the Respondent No.16, Private Respondent; the same is taken on record.
5. Along with the affidavit of Odisha State Pollution Control Board, an Inspection Report has also been filed. The 'Observations' and 1 "Conclusion and Recommendation" of the Committee read as under: -
"Following observations were made during joint enquiry with respect to the grievance of the applicant in the matter of O.A. No.40/2022/EZ- Radha Mohan Singh Vs. State of Odisha & Others.
Sl. Non-Compliances as Observation of the Committee
No. per the Original
Application.
1 Use of heavy machines During the joint visit of the
(Excavators) and Hyva Committee, it was observed that
when Mechanical Mining no mining activity was carried out
and use of Machine in and no machines/excavators
sand Mining is prohibited. were found in the lease area. Four machines of However, it revealed from the different capacities are peripheral conditions that, the used and now two extraction of sand was done machines are used for earlier through mechanically. sand mining and loading.
2 When the miningDuring field visit, the committee permissible limit is onlyfound that the quantum of sand 10 CM per day as per extracted from Mahupura Sand mining plan and annual Bed for the period 2021-2022 is sand Mining capacity is 48000 Cum. (approximately), only 2200CM per annum, whereas permission was the lessee is extracting obtained for extraction of sand around 2040CM per day per annum-2400 Cum. (Maximum) and 4.28 Lakh Cubic as per the mining plan and EC. Meters per year much Hence, excess extraction of sand more than the permissiblewithin the lease and outside the limit. lease area is 48000 Cum - 2400 Cum = 45600 Cum (excess mining with depth 1.0m) 3 Considering the daily As mentioned in point no. 2 approved production of only 10 cubic meters as per Mining Plan, No Hyva can be engaged in the mining as because one Hyva is having capacity of 18 to 27 cubic meters based on the numbers of wheels of Hyva.
4 As per the Mining Plan Average depth of sand extracted the depth of mining will by the lessee within and beyond be 1.0 Meters but on the lease area is 1.0 to 1.5 Meters ground it is exceeding (Approx.) whereas permission beyond 10 meters by accorded for mining up to 1.0 m using four excavators. as per the mining plan and EC. 5 The surface area of The lessee has extracted excess 2 excavation is to be 2000 45600 Cum sand from within and Sq. Mtrs. (0.49acres) per beyond lease area and the details annum as per mining of the lease area as per Google plan, however mining has map photographs is attached.
been carried out over 50
acres as evident from
Google earth images
(entire width of river
150m and 1.8 KM length).
6 Mining Carried out in During the mining activities, the
Safely Zone and on River lessee has not maintained the
Bank which is prohibited safety zone from the river
as per the mining plan embankment at some places and
sand extracted close to the river embankment which is not permissible. The natural river flow changes due to creating obstacle through sand bandh by the lessee.
7 Daily Mining Register not The daily record was not maintained and transit maintained by the lessee as it permit (Form Y) are was observed by the Committee manipulated and forged. during the visit. 8 No Pillar Posting and There was a temporary pillar Demarcation of Lease posting made to demarcate the Area in the mining site. lease area which has been observed on dated 06.04.2022 and during the second visit on dated 09.05.2022 there was no pillar posting to demarcate the lease area.
9 Sand mining by cutting As already mentioned in the point
the River Bank and the no. 06.
sand extracted from the
river bank and flood plain
area.
10 Obstruction of river During visit it was observed that
stream by making the lessee has made
unauthorized roads, sand unauthorized sand bunds and
bunds and pond artificial ponds within the lease
structures in violation of hold area which is not
mining plan. permissible neither in mining plan
nor in EC and CTO.
11 Deep mining has been the No such evidence was came to
reason for death trap the notice of the Committee during
leading to drowning of visit but it has been observed that
children's in such mining due to excess mining some parts
pits. of the river bed created a pond
like structure.
12 Annual replenishment Annual rate of replenishment of
study and pre monsoon sand both pre and post-monsoon
and post monsoon assessment has not been
assessment has not been conducted in this case.
conducted while allowing
the mine to operate.
13 Half yearly compliance The lessee has not submitted EC reports were not compliance report on half yearly 3 submitted and not in basis. No greenbelts developed public domain, no green along the road side or near belt developed along the mining site, by the lessee. roadside or near mining site by the proponent.
14 Tahasildar and the local The lessee has violated the administration are hand Mining plan, EC conditions and in glove with the lessee operated the quarry without valid and willfully violating the CTO for which environmental order of Hon'ble NGT as compensation for ecological well as flouting the damaged and environmental conditions of Mining compensation for damage to Lease, Mining Plan, EC environment has been calculated and CTO. and the details are mentioned below.
15 Operating the Sand Mine The sand quarry was operated without consent to without valid consent to operate operate which is no more of the Board, for the period 2021-
in force after 31st March 22.
2021.
16 There has been no As per out information, till date
monitoring of quantity of the use of GPS Tracking of
sand excavated and GPS vehicle, Electronic Transit Pass,
Tracking of vehicle, CCTV camera are not
Electronic Transit Pass, used/implemented by State Govt.
CCTV camera in mining for the sand mining.
site as prescribed in EIA
Notification dated 15th
January 2016 and Sand
Mining Enforcement and
Monitoring Guidelines
2020.
17 Vehicular Transportation During the joint visit the
through densely committee has found that an
populated villages and approach road around 3 to 4 km
Rural Roads not meant from quarry to the PMGSY rural
for overloaded heavy road damaged and conditions is
vehicles. Further the not good, it may be due to the
carrying capacity of the transportation of heavy vehicles
road has not been used for sand transportation from
assessed and as such the quarry to target place.
existing road cannot
withstand the pressure of
hundreds of sand loaded
heavy vehicles.
18 Sand mining operation It is reveals from the Y-form that
during Monsoon seasons the quarry may be operated in the
while the same is monsoon season as Y-form issued
prohibited as per this period but we have no record
sustainable sand mining to verify whether the quarry
guidelines 2016. operated during monsoon period. 19 Vehicles engaged in During the visit the mines was not mining are overloaded in operation hence, the issue of and not covered with overloading vehicles as well as tarpaulin and cause air spillage if any with tarpaulin pollution during non- cover is not envisaged. monsoon days.
20 Lessee is subletting the No such evident came to the Sand Sairat to other sand notice of the Committee.
mafias by virtue of notarized agreement and 4 power of attorney and raising fund from such unscrupulous elements.
Over all observation
1. The minor mineral mine was not in operation during the visit of the committee. However, the mine was under operation for the year 2021-22 without obtaining valid consent to operate of the State Pollution Control Board.
2. Tahasildar, Badasahi had also issued Y Form to the lessee for transit pass, for transportation of the mined out sand.
3. The mine was carried out about 45600 Cum. Excess sand mining violating the Mining Plan as well as the MMDR Act, 1957, EC and Water (PCB) Act, 1974 and Air (PCP) Act, 1981.
4. The mine was not complying the conditions of previous consent conditions as well as the conditions imposed in the Environmental Clearance granted by SEIAA vide letter no. SEIA/2511 dtd.04.02.2017.
5. The lessee has changed the natural river flow of river water through random and mechanical sand mining and with created sand bandh.
6. There was temporary pillar posting around the lease area on dated
06.04.2022 and it was removed by someone on dated 09.05.2022.
7. Mining occurs beyond lease area, without maintaining the safety zone and obstructing natural flow of the river water.
8. The lessee has not submitted half yearly EC compliance report to SEIAA, Odisha, Bhubaneswar.
9. During visit the committee observed that, the quarry was operated mechanically, without valid consent to operate of the Board and EC from SEIAA, Odisha for the period 2021-22, violating the provision of Water (PCP) Act, 1974, Air (PCP) Act, 1981, EIA Notification, MMDR Act, 1957, and approved mining plan.
Conclusion & Recommendation:
In view of the above observations, the committee recommended the followings:5
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. 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.
4. The sand loading vehicles should be covered properly and transportation time to be restricted only on day time.
5. There is enough space near the quarry area so, 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 further.
6. There shall be construct a concrete wall at damage site of the river embankment.
7. The minor mineral mine shall stop operation till obtain of Consent to Operate from the State Pollution Control Board and EC from SEIAA, Odisha.
8. The Tahasildar/Additional Tahasildar, Badasahi shall take immediately step and be vigilant so that no illegal mining can be carried out in the demarcated mining lease area.
9. As the lessee was operating the mine for the year 2021-22 without valid consent to operate from the State Pollution Control Board and valid Environmental Clearance from the State Environmental Impact Assessment Authority (SEIAA), Odisha, Bhubaneswar the lessee shall pay the Environmental Compensation for ecological damaged due to illegal mining as CPCB guideline an amount of Rs.12,35,84,844/- and environmental compensation of Rs.21,00,000/- for damage of the environment and operation of the quarry without valid CTO.6
10. As the lessee has carried out excess mining, he has to pay the compensation as per the provision of MMDR Act, 1957.
11. The Tahasildar Additional, Badasahi may ensure that there will be no mechanical mining and the lessee should not change the natural river flow for the further period of mining operation after obtaining all statutory clearance from the concerned authority.
12. As per the information given by the Tahasildar, Badasahi, the sand bed was operating 210 days in the year 2021-22 without EC and Consent to Operate of the State Pollution Control Board. The compensation shall be calculated based on the operational details submitted by the Tahasildar, Badasahi for the year 2021-22.
13. The Committee recommended removing the obstruction for natural flow of river water.
14. The committee has recommended that the R&D dept. Mayurbhanj shall repair the damaged road caused by the lessee due to transportation of sand.
Compensation Charge (Scenario II-explicit accounting of NPV) Total amount Quarry Name in Market Value of Sand per per Present value Discount rate market value Compensatio Cum/annum Risk Factor extraction extraction Permitted 2nd Year 3rd Year n of NPV 4th Year quantity 5th Year 1st Year Excess Total Cum as A B B-A E D=(CxE) RF 5% PV=∑5t=1(D*RF)/(1+r)t D*RF/(1+0.05)1 D*RF/(1+0.05)2 D*RF/(1+0.05)3 D*RF/(1+0.05)4 D*RF/(1+0.05)5 NPV=PV-D Mahupura River Sand 160703244 123584844 37118400 35350857 33667482 32064269 30537399 29083237 Bed 48000 45600 2400 0.05 814 1.0 Net Present Value (after netting out market value of illegally mined material)- i.e., Total Compensation to be levied=NPV-PV-D=Rs.12,35,84,844/-
15. It is required to massive plantation of native species near the river embankment to protect the river bed from further damage.
16. The committee directed to the Tahssildar/Additional Tahasildar, Badasahi to take necessary action with immediate effect to stop operation of the Balanga sand bed quarry, Mahupura till obtaining of valid EC and CTO."
76. Mr. Janmejaya Katikia, learned Additional Government Advocate appearing for the State Respondent, prays for and is granted two weeks and no more for filing counter-affidavit. In case his counter-
affidavit is not filed by 25.08.2022, the Collector and District Magistrate, Mayurbhanj, Odisha shall be present personally before this Tribunal with his explanation.
7. The Applicant may also file his reply by 25.08.2022.
8. List on 25.08.2022.
..................................... B. Amit Sthalekar, JM ................................... Saibal Dasgupta, EM August 03, 2022, Original Application No.40/2022/EZ SKB 8