National Green Tribunal
Sarbeswar Behura vs Union Of India on 4 January, 2019
Bench: Adarsh Kumar Goel, K. Ramakrishnan
Item No. 07 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 604/2018
Sarbeswar Behura Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 04.01.2019
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s):
For Respondent (s):
ORDER
1. We have received a report dated 07.12.2018 in pursuance of order of this Tribunal dated 31.08.2018.
2. The issue raised in the application relates to illegal mining in and around Dankari Hills Forest Area in Orissa by one Sribash Jena from 2002 to 2017 without the requisite valid clearance. Illegal mining led to spread of diseases due to unsafe drinking water and pollution. Illegal mining was directed to be stopped on intervention of the Government of India vide letter dated 23.03.2017 for construction of strategic petroleum reserve.
3. This Tribunal directed the Secretary, Department of Forest to constitute a team with representatives from State Pollution Control Board (SPCB), State Level Environment Impact Assessment Authority (SEIAA), Orissa, the Collector, Jajpur and a representative from Forest Department and to furnish an action taken report. 1
4. The report dated 07.12.2018 has been received from the State of Orissa to the effect that a Committee was constituted, as directed by this Tribunal, which visited the site on 05.10.2018 and suggested revocation of the Environmental Clearance granted by the District Level Environment Impact Assessment Authority (DEIAA) in favour of stone quarries. SEIAA was also asked to revoke such Environmental Clearance. The SPCB was asked to revoke Consent to Operate. Home Department was asked to provide police force to end illegal quarry operations. The Collector, Jajpur gave an action taken report to the effect that the Environmental Clearance granted by the DEIAA and SEIAA have been revoked and enforcement team was constituted to stop the quarry operations. Royalty amount of Rs. 54.52 Lakhs was realised from the quarry operators for the year 2018-19. Quantum of extracted blackstone was to be measured to fix further liability of royalty.
5. None appears for the parties. We have duly considered the matter.
6. It is clear from the report that blackstone quarries were being illegally allowed to operate for about fifteen years. The inspection also shows prosecution has been directed to be launched against illegal quarry operators and illegal stone crushers.
7. Action now taken can hardly be held to be adequate. For illegal mining, the operators as well as concerned officers are accountable. Accordingly, the Chief Secretary, Orissa is directed to initiate appropriate departmental action in accordance with law for the misconduct of the officers involved in permitting illegal black stone quarrying as found by the inspection Committee. Apart from such disciplinary action, the State has also to recover the cost of illegally mined material, cost of damage to environment, Net Present Value of ecological services foregone as well as cost of restoration of the environment.
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8. The State and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation and are accountable for inaction as well as collusion.
9. To uphold the Rule of Law and accountability of those who are trustees of environment, it is necessary that the state machinery is required to compensate for their negligence and failure which may act as deterrent against the officers who neglected their basic duty of protecting the environment or colluded with the polluters and law violators. This is required as a part of principle of 'polluter pays' which applies not only to actual polluters but also to those who collude with polluters or enable pollution to be caused and also for the negligence of public duties, adversely affecting the citizens. While actual damages may be determined on the basis of objective data, if available, absence of precise data is not a ground not to undertake the exercise of determining such damages based on legal principles, including res ipsa loquitur, having regard to common course of events etc. Satellite images etc may help. The assessment of quantum of loss to the environment is not free from difficulty. The environment is priceless and it is difficult to restore its pristine glory if damaged. These principles are settled in decisions of Hon'ble Supreme Court.1 1
a) Sterlite Industries (India) Ltd. v. Union of India (2013) 4 SCC 575 : ¶ 47- To the effect that compensation must be deterrent having regard to paying capacity and magnitude of the polluter.
b) T.N. Godavarman Thirumulpad v. UOI & Ors. (2006) 1 SCC 1 : ¶ 1- That protection of environment is responsibility of the State.
c) Indian Council for Enviro-Legal Action & Ors. v. Union of India & Ors. (1996) 3 SCC 212 :
¶ 67 and Vellore Citizens Welfare Forum v. UOI , (1996) 5 SCC 647 : ¶ 11 to 13- Polluter Pays Principle extends not only to compensate harm to the victim but also to the environment.
d) M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 : ¶ 10 -Public Trust Doctrine, ¶ 24 Imposition of exemplary damages to be paid by polluter as a measure of as deterrence.
e) M.C. Mehta v. UOI & Ors., W.P © No. 13029/1985 order dated 24.10.2017, Supreme Court : Liability of public functionaries for inaction.
f) MCD v. Uphaar Tragedy Victims Association (2011) 14 SCC 481 : ¶ 99, 100- Principles of Private Tort do not control failure of State functionaries. Damages can be punitive and exemplary. Cost to cost method may not be applied in all situations.
g) Vadodra Municipal Corporation v. Purshottam v. Murjani & Ors. (2014) 16 SCC 14 : ¶ 17 - monetary liability can be fastened for failure of statutory duty.
h) M. C. Mehta & Anr. v. Union of India (1987) 1 SCC 395 : ¶ 32 -measure of compensation to be co-related to magnitude and capacity of enterprise, compensation must have deterrent effect 3
10. Thus, the State cannot avoid its responsibility for the damage caused to the environment. Accordingly, we hold the State to be liable to deposit an interim compensation of Rs. 25 Crores which may be deposited with the Central Pollution Control Board (CPCB) within one month, pending final assessment on receipt of report of the Committee being hereby constituted. The State will be at liberty to recover the amount from the erring officers and the illegal miners/stone crushers. The amount recovered be utilized for restoration of environment and for welfare of mine workers and local population affected by diseases due to illegal mining.
11. We constitute a Joint Committee of representatives of CPCB, Indian School of Mines, Dhanbad, Forest Research Institute, Dehradun and Chairman, SEIAA to make an assessment of the amount of illegally mined material, cost of damage to environment, Net Present Value of ecological services foregone as well as cost of restoration of the environment and exemplary damages. Logistic support will be provided to the Committee by the SPCB. The nodal agency will be SIEAA for co-ordination and compliance. Final amount may be determined on receipt of the report.
12. A copy of this order be sent to the SEIAA and the Chief Secretary, Orissa by e-mail for compliance.
13. The Chief Secretary, Orissa as well as SEIAA may furnish their reports in the matter within three months by e-mail at [email protected].
List for further consideration on 06.05.2019.
Adarsh Kumar Goel, CP S.P. Wangdi, JM 4 K. Ramakrishnan, JM Dr. Nagin Nanda, EM January 04, 2019 Original Application No. 604/2018 DV 5