National Green Tribunal
Omaram Banjara vs State Of Rajasthan on 5 December, 2023
Item No. 7
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No.79/2023(CZ)
(O.A.No.539/2022 - PB)
Omaram Banjara Applicant(s)
Vs.
State of Rajasthan & Ors. Respondent(s)
Date of Hearing: 05.12.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant(s): Mr Devendra Singh Adv.
For Respondent(s) : Mr. Rohit Sharma, Adv.
Mr. Sanchit Garga, Adv.
Ms. Prachi Mishra, Adv. with
Mr. Rebecca Mishra, Adv.
Mr. Dharmendra Lohar
Mr. Dhiraj Panwar, ME
ORDER
1. Heard the arguments of the parties and perused the record.
2. The grievance in the application is that Nayra Energy Company is indulging in illegal mining of soil from Goucher (Pasture) land, public ponds and water bodies of nearby villages and uprooted thousands of trees in Chotila, Tehsil Rohat, District Pali (Rajasthan) and thereby damaged the environment.
3. Vide order dated 05.09.2022, this Tribunal constituted a Joint Committee comprising of the State PCB, DFO and Collector, Pali with direction to submit report within one month. In compliance thereof report of the Joint Committee was filed vide email dated 02.12.2022. 1
4. The observation of the committee are as follows :
1. That the unit situated at Sawaipura, Tehsil Rohat, District Pali is engaged in storage of Petroleum Products (Motor Spirit (MS) and High-Speed Diesel (HSD)) for which unit has obtained Consent to Establish under Water Act, 1974 and Air Act, 1981 vide Head Office, RSPCB, letters dated 10.06.2020 and 23.03.2022.
2. That Mis Nayara Energy Limited has also obtained Consent to Operate under Water Act, 1974 and Air Act, 1981 vide Head Office, RSPCB, letters dated 09.02.2022 and 29.06.2022 which is valid upto 30.09.2026 and 31.03.2027 respectively.
3. That the matter of illegal excavation of soil was investigated and the unit representatives submitted that the land for non-agricultural industrial purpose viz. Storage of Petroleum was allotted from the office of District Collector Pali and SDM Rohat and copy of land conversion orders from the office of District Collector Pali and letter from office of SDM Rohat are enclosed.
4. That the unit was issued Interim (Provisional) No Objection Certificate (NOC) from the office of District Magistrate, Pali which was issued based on the site reports submitted SDM Rohat and Tehsildar, Rohat which is issued only after verification of the land regarding availability of trees, shrubs etc. Therefore, allegation of cutting of trees at the construction site of the unit becomes null and void.
5. Unit representative has further submitted that at the time of acquisition of the land, the land was having several natural dugs and pits which were required to be filled to make the land even for required purpose; also, unit representative has submitted the photographs of the uneven land taken during the year 2020
6. Unit representative has also submitted that no cutting of trees were done by the unit as no trees were present at the land for which they have taken the permission from the Office of Tehsildar, Rohat, Pali which is a pre-requisite condition during land 2 conversion process. Only shrubs were present at the site which was cleared for gainful utilization of the land.
7. Unit representatives have submitted that no illegal mining of soil has been done in an around the nearby villages as alleged in the complaint, however, the work of filling and levelling of land was accorded to M/s SP Construction and Mi s NMC industries who has started excavation of soil initially which was penalized by the Mining Department and has charged and recovered penalty fees of Rs.
7,90,000/- Both the units have then obtained short term permit for excavation of ordinary soil and moorum soil from the Office of Mining Engineer, Dept. of Mines and Geology, SoJat City, Pali vide letters dated 28.04.2020, 16.02.2021 & 19.03.2021
8. Mining Department has verified the deposition of applicable Royalty Fee and other related fee along with penalty fee.
9. In order to verify the illegal excavation at the alleged sites viz. Chotila Sarvajanik Nada, Kerla Railway Station Saruajanik Talab, Dharmdhari Sarvajanik Talab, Bandai Saruajanik Talab and Putaliya Nada the aforementioned joint team inspected these sites and during the visit no illegal mining and cutting of trees were observed. These sites are majorly having shrubs and trees of Khejri and Babool. GPS based photographs taken during the visit.
10. Also, the area of excavation of soil (for which short term permits have been obtained by the unit from Mining Department) was visited by the team and no Mining Department) was visited by the team and no mining and excavation of soil was observed during the visit, however, a large pit size of approximately 100m x 800mx 3m was observed which shows that the mining was done in the said area for filing of the land of M/s Nayara Energy Limited GPS based photographs taken during the visit.
11. Unit representative submitted that complaint made by Sh. Omaram Banjara, is baseless and the complainant was earlier engaged as sub-contractor for civil work under M/s SP Construction 3 (copy of payments made by M/s S.P. Construction to Sh. Banjara is enclosed in Annexure 11) who was then fired from the services due to payment disputes after which Sh. Banjara has made several fake complaints against NI/ s Nayara Energy i.e. filed case in Rajasthan High Court, applied RTIs in the several departments etc. without having any reasonable evidences.
Comments: -
a) The visit was fixed after having confirmation from the complainant Sh. Omaram Banjara who has ensured to be present with all relevant records/ evidences who had then not joined the visit despite number of calls made to him and has also failed to submit the evidences, as alleged in the complaint. The committee has also found that Sh. Banjara is a habitual complainant and has made several complaints at various Courts in several matters without any substantial evidences.
b) Record of Mining Department shows that the mining of soil has been carried out after obtaining valid short term Permit from the Department. Also, unit has submitted royalty fee, penalty fee and other fee as applicable.
c) Photographs of the site, for which SIPS were obtained from Mining Department taken by the unit during year 2020 shows that only shrubs were present and no evidence of cutting of trees at the site were observe."
5. Respondent no. 3 /Rajasthan State Pollution Control Board has filed the reply with the following facts :
i. That the State Board has issued Consent to E5Lablish to respondent no,5 for storage of Ethanol. HSD, MS vnd Slop vide letter dated 1006.2020 hikving validity upto 31.10.2024. TI-pc P.opy of the CTE, letter dated 10.016.2020 1$ annexed herewith and marked a nnexare-R-3,01. Further, Consent to Operate was issued vide letter dated 09.02.2022 having validity upto 30.09.2026.
4
ii. That the Stair Board has issued Consent to Establish to respondent no. 5 for installing fire fighting engine 103 nos.) vide letter dated 23.03.2022.
iii. That the State Board has issued authorization vide letter dated 29.06.2022 under HWMR, 2016 for Oil Filter (32 No./annum), Oily Sludge (02 Kg/Annum] Sludge and filters contaminated with oil X20.00 MT in 5 Years), contaminated cotton rags or other cleaning materials (300 KG/Annum) and Used or Spent oil (1000 Litres/Annum) iv. That the officials of the State Board along with member of the Joint Committee had inspected the unit on 17.03.2023, during the course of inspection the unit was found compliant of consent conditions.
v. That the official of the State Board had also conducted Ambient Air- Quality Monitoring and Noise Monitoring on 17,03.2023, the analysis results are within the prescribed limits.
6. Submission of the Respondent No. 5 M/s Nayra Energy Company Ltd. is that :
I. The Respondent No. 5 i.e. Ws Nayara Energy Limited is not doing any illegal mining on the demised premises. The Respondent Company is developing the said land into Depot for Collection, Generation, Reception, storage & Transport/dispatch of Petroleum and 61-products of Petroleum. That the respondent Company is Constructing a Depot on a land admeasuring about 2,34,797.35 sq. mtrs. at Sawaipura iChotila Village, Tehsil Rohat, District Pali (Rajasthan) Village: Sawaipura, Gram Panchayat: Chotila, Tehsil: Rohat, District: Pali, Rajasthan - 306421 with all the 5 due permissions from respective departments required for development of the said land.
II. The entire land was purchased by the answering respondent from the land-owners after paying the relevant Sale consideration at Market value.
III. That before construction there were shrubs and herbs on the acquired pieces of land, there were no trees on the said pieces of land. Furthermore, the respondent company is developing a green belt area by planting approximately 1500 nos. of tress and developing lawns, area etc. IV. The complainant is a habitual offender, the complainant has a habit of filing fake and vague complaints against different people, organization companies etc. The complainant is adopting these tactics in order to extort more monies in the form of illegal compensation from the respondent company. V. The complainant was arrayed as an accused in a F.I.R. before the Police station Rohat District Pali against the original applicant and few others for commission of offences under section 147, 148, 149,323, 447,427, 392 I.P.C. stating therein that Shri Anish Chaudhary was the site in-charge of the Depot. At site of the respondent company, construction work of boundary wall and J.C.B. work running. At abut 9.00 AM all the petitioner came and stated abusing and broke the glass of J.C.B., the driver got injuries and took 4800/- rupees etc. That the S.H.O police station Rohat District Pali on receipt of said complaint, registered a case bearing F.I.R. No. 164/2020 against the present petitioners for the aforesaid offences and started investigation.
VI. Being aggrieved and dissatisfied with impugned F.I.R. no.
165/2020 registered at police station Rohat District Pali 6 before Hon'ble High Curt of Judicature for Rajasthan at Jodhpur bearing S.B. Criminal Misc. (Pet) No. 1582 of 2022 against the Respondent company, which was later compromised between the parties and became infructuous as the compromise was arrived in between the parties. VII. That the Respondent company had received all the required permissions from the respective concerned department required for development of the demised premises.
7. The relevant document with regard to the NOC of the government bodies like Forest, Fire, PWD, Logistics, SDM & Tehsildar has been filed, which are on record.
8. A report/reply was also called from the District Collector Pali and in compliance thereof he has filed the reply with the facts that the M/s Nayara Energy Limited Company has obtained requisite consent by the Rajasthan State Pollution Control Board under Section 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 21(4) of Air (Prevention and Control of Pollution) Act, 1981 for storage of petroleum product plant situated at Village Sawaipura, Tehsil Rohat, District Pali. Moreover, consent was also obtained for manufacturing and producing products or carrying out the operations and activities.
9. The land was allotted to the Subject Company for storage of Petroleum, i.e, non-agricultural industrial purposes by the Answering Respondent and land conversion order was issued by the Sub Divisional Magistrate, Rohat and Answering Respondent under Rule 9(d) of the Rajasthan Land Revenue (Conversion of agricultural land for non- agricultural purposes in rural areas) Rules, 2007. The relevant extract of the Rule 9(1)(d) is produced herein below:
7
10. prescribed authority for conversion:(1) a khatedar tenant, seeking permission for conversion of Agricutural land for any non- agricultural purpose shall submit an application complete in all respects in Form A along with the documents prescribed therein and a copy of challan, indicating the amount of conversion charges deposited to the prescribed authority as under:
d) industrial area! (i) Sub Divisional Officer - where a Industrial purpose total area does not exceed I hectare excluding tourism unit.
(ii) Collector - where the total area does not exceed 10 hectares excluding tourism unit.
(iii) State Government - where the total area exceeds 10 hectares including tourism unit of any area.
10. The subject company was granted an Interim (Provisional) NOC dated 09.09.2021by the office of the District Magistrate, Pali, based on the site repons dated 08,10,2020submittecl by SDM Rohat and Tehsildar, Rohat, which was issued only after a thorough verification of the land's suitability for the proposed land conversion process under Section 144 of the Petroleum Rules, 2002. It is submitted that no trees were present at the site for which permission was required or obtained by the office of Tchsildar, Rohat, Pali, as per the prerequisite condition during the land conversion process. The vegetation present at the site consisted solely of shrubs, which were cleared for the purpose of the gainful utilization of the
11. At the time of land acquisition, there were several natural dugs and pits that needed to be filled to level the land for the intended purpose. The alleged illegal mining of soil in nearby villages, as claimed by the 8 applicant, has not come in light. Instead, the work of filling and leveling the land was assigned to M/s SP Constructions and M/s NMC Industries. Initially, they started excavating soil, which led to a penalty of Rs. 7,90,000/- imposed by the Department of Mines and Geology, Sojat City, under Section 54 & 60 of Rajasthan Minor Mineral Concession Rules, 2017 and Section 4, 21 & 23 of Mines and Mineral (Development and Regulation) Act, 1957. The Mining Department has verified the payment of applicable royalty fees, other fees, along with the penalty fee. Later, the subject company obtained short-term permits for the excavation of ordinary soil and moorum soil from the office of the Mining Engineer, Department of Mines and Geology, Sojat City, Pali.
12. According to the joint inspection team, during the visit of ChotilaSarvajanik Nada, Kerala Railway Station Sarvajanik Talab, DharindhariSarvajanik Talab, Randal Sarvajanik Talab, and Putaliya Nada, there wasno evidence which came to light pertaining to illegal mining or tree-cutting taking place on the site. The team noted that the area is predominantly covered with shrubs,Khejri and Babool trees. Furthermore, the unit has obtained a short-term permit front the Mining Department for excavation of soil, The joint team visited the excavation site and did not observe any mining or soil excavation. However, they did observe a large pit measuring approximately 100m x 80m x 3m, indicating that mining had previously taken place in the area for the purpose of filling the land of M/s Nayara Energy Limited
13. The SDM, Rohat, had solicited a report verifying the tree plantation status in the converted land (land in issue) from the Tehsildar, Rohat, 9 as evidenced by Letter No. Revenue/2023/220 dated 17.04.2023. According to the report submitted by the Telisildar, Rohat, through letter no. Revenue/20231725 dated 18.04.2023, the land in issue had duly planted approximately 1530 trees, in accordance with the Land Conversion orders issued by the competent authority
14. In its additional affidavit it is submitted that the necessary environmental clearance was issued by the SEIAA and the respondent has planted 1530 number of trees inside and outside of the depot and short term permit was obtained from the competent authority. For the royalty of the permit fees an amount of Rs. 7,90,000/- was deposited with challan. It is further submitted that a large pit is located at outside premises of the depot and not within the depot. The pit was made in the demarcated land mentioned in the STP during the soil excavation.
15. The mining department has submitted that a short term permission from the department was issued and of their inspection no illegal mining was found.
16. Learned Counsel for the project proponent has relied on the notification dated 15.01.2016 issued by the MoEF&CC with regard to exemption of certain cases from requirement of environment clearances, which is even appendix 9 of para 7 (i) (B) as follows :
The following cases shall not require prior environmental clearance, namely:-
1. Extraction of ordinary clay or sand, manually, by the Kumhars (Potter) to prepare earthen pots, lamp, toys, etc. as per their customs.
2. Extraction of ordinary clay or sand, manually, by earthen tile makers who prepare earthen tiles.10
3. Removal of sand deposits on agricultural field after flood by farmers.
4. Customary extraction of sand and ordinary earth from sources situated in Gram Panchayat for personal use or community work in village.
5. Community works like de-silting of village ponds or tanks, construction of village roads, ponds, bunds undertaken in Mahatama Gandhi National Rural Employment and Guarantee Schemes, other Government sponsored schemes, and community efforts.
6. Dredging and de-silting of dams, reservoirs, weirs, barrages, river, and canals for the purpose of their maintenance, upkeep and disaster management.
7. Traditional occupational work of sand by Vanjara and Oads in Gujarat vide notification number GU/90(16)/ MCR-2189(68)/5-CHH, dated the 14th February, 1990 of the Government of Gujarat.
8. Digging of well for irrigation or drinking water.
9. Digging of foundation for buildings not requiring prior environmental clearance.
10. Excavation of ordinary earth or clay for plugging of any breach caused in canal, nala, drain, water body, etc., to deal with any disaster or flood like situation upon orders of District Collector or District Magistrate.
11. Activities declared by State Government under legislations or rules as non-mining activity with concurrence of the Ministry of Environment, Forest and Climate Change, Government of India.
Exemptions.- (1) [(I) Notwithstanding anything contained in these rules, extraction or removal of gypsum for improvement of agriculture land, digging or extraction of brick earth used for making bricks or pottery, ordinary earth or murrum used for filling, leveling or embankment of roads or railways upto depth of three meters and removal of overburden from dumps shall not be treated as mining operations:
Provided tit such operations shall be carried out under short term perm it, permit or brick earth permit issued by the Mining Engineer or Assistant Mining Engineer cconcerned.] (2) Notwithstanding anything contained in these rules, no rent, royalty or lie shall be charged for,-
(i) excavation of ordinary clay including brick making clay and masonry stone from areas, which are not working pits of a holder of mineral concession, by a tenant for bonafide purpose of construction or repair of.-
17. Necessary permission from the Mining Engineer, District Pali has been issued vide letter 27.04.2020 in favour of construction company. The mining department and joint committee has filed the photograph of the pond area which shown the shrubs and no cutting of trees. 11
18. Learned Counsel for the Applicant Shri Devendra Singh has submitted that the Patwari named Shri Mohan Choudhary has submitted the report which is with the Learned Counsel of the Applicant dated 01.12.2023 with the facts that the Project Proponent is involved in illegal mining in other plot not allotted for the purpose. In reply thereof Learned Counsel for the Collector Pali Ms. Prachi Mishra has submitted that the District administration including the Collector Pali, Tehsildar Rohat Pali, Mining Engineer District Pali and Dy. Conservator of Forest Pali with Regional Officer, Rajasthan State Pollution Control Board has submitted the report before this Tribunal and they visited the site after due information to the applicant. Now the question is as to whether the Patwari can submit a report against the report submitted by the Collector or Tehsildar and further that what is the authenticity of the report which is not on record and which is with the Applicant.
19. Learned Counsel for the Collector/ Ms. Prachi Mishra has submitted that complaint made by Sh. Omaram Banjara, is baseless and the complainant was earlier engaged as sub-contractor for civil work under M/s SP Construction who was then fired from the services due to payment disputes after which Shri Banjara has made several fake complaints against M/s Nayara Engery i.e. filed case in Rajasthan High Court, applied RTIs in the several departments etc. without having any reasonable evidences and further submitted that the visit was fixed after having confirmation from the complainant Sh. Omaram Banjara who has ensured to be present with all relevant records/evidences who had then not joined the visit despite number of calls made to him and has also failed to submit the evidence, as alleged in the complaint. The committee has also found that Sh. 12 Banjara is a habitual complainant and has made several complaints at various Courts in several matters without any substantial evidences. Record of Mining Department shows that the Mining soil has been carried out after obtaining valid Short-terms permit from the department. Unit has submitted royalty fee, penalty fee and other fee as applicable. Photographs of the site, for which STPs were obtained from Mining Department, taken by the unit during year 2020 shows that only shrubs were present and no evidence of cutting of trees at the site were observed.
20. It shows that complainants was earlier engaged as sub-contractor for civil work under the same construction company and was fired from the services due to payment dispute and after that repeated complaints were filed.
21. Learned Counsel for the rest of the Respondent/Project Proponent has submitted that the allegations with regard to the cutting of trees were examined by the committee including the Collector which was found false and baseless. It is further argued that after the depot was made functional this Original Application has been filed after the period of limitation.
22. We have examined the material and document on record and report submitted by the Tehsildar and Collector with other members of the Forest Department and Mining Department and it is found that in view of the MoEF Notification dated 15.01.2016 the activities come within the category of non mining activities as given appendix -IX paragraph 7 (1) (B) quoted above which comes within the category of exemption as noted above which was substituted vide notification F-14 (15) Mines/Gr. (II/2014) Part dated 03.01.2022.
13
23. However, we direct the Patwari Shri Mohan Choudhary to submit his report before the Collector and Collector may examine and to do the needful. Collector has further to examine as to whether Patwari can file the report against the report submitted by the Collector and Tehsildar. The Collector can also examine the authenticity, veracity, legality and propriety of the report of the Patwari as to who called the report and where it has been filed. He being the junior most revenue official is bound to work under the command of Tehsildar and Collector and not to disobey the directions of the Collector and not to defiance or provide contrary report submitted by the Collector. Proper necessary action is required to be done by the Collector according to rules.
24. In view of the facts narrated above, as discussed in the Joint Committee report and the notification issued as quoted above and in view of the facts that there is a contractual dispute between the parties, since there is no violations as reported by the joint committee and the Collector, no further actions at this level is required to be taken.
25. However, the Collector have to examine the report of Patwari if presented before him (since it is not on record) and to take necessary legal action. With these observations the application stands dismissed and disposed of accordingly.
Sheo Kumar Singh, JM Dr. Afroz Ahmad, EM 05th December, 2023 O.A. No. 79/2022 (CZ) K 14