National Green Tribunal
Sri Arun Ghosh vs The Director Directorate Of Mines And ... on 24 January, 2022
Item Nos. 06-09 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No. 62/2021/EZ
With
Original Application No. 63/2021/EZ
With
Original Application No. 64/2021/EZ
With
Original Application No. 65/2021/EZ
Sri Subrata Bhattacharya Applicant(s)
Versus
The Director, Directorate of Mines & Minerals & Ors Respondent(s)
With
Sri Samiran Bhattacharya Applicant(s)
Versus
The Director, Directorate of Mines & Minerals & Ors Respondent(s)
With
Smt. Anupama Chakraborty Applicant(s)
Versus
The Director, Directorate of Mines & Minerals & Ors Respondent(s)
With
Sri Arun Ghosh Applicant(s)
Versus
The Director, Directorate of Mines & Minerals & Ors Respondent(s)
Date of hearing: 24.01.2022
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Ms. Paushali Banerjee, Advocate
For Respondent(s) : Mr. Sibojyoti Chakraborty, Advocate for R-1 to 5,
Mr. Gora Chand Roy Choudhury, Advocate for R-6,
Mr. Dipanjan Ghosh, Advocate for R-7,
Ms. Susmita Chatterjee, Advocate for R-8,
ORDER
1. Ms. Paushali Banerjee, learned Counsel is present for the Applicant.
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2. Mr. Sibojyoti Chakraborty, learned Counsel files Vakalatnama on behalf of the Respondent Nos. 1 to 5, State Respondents, Govt. of West Bengal; the same is taken on record.
3. One affidavit dated 09.12.2021 along with Inspection Report has been filed on behalf of the Respondent No.8, State Level Environment Impact Assessment Authority (SEIAA), West Bengal; the same is taken on record.
4. The Overall Observations and recommended actions made by the Inspection Team read as under:-
8.0. Overall i. Most of the area mentioned in the order/original Observations application are water logged/submerged.
Therefore, only a few points could be approached under the guidance of the local authorities. ii. It has been observed that no mining was being done at the time of inspection at any of the plots visited mentioned in the OAs. However, there was ample evidence of sand mining being carried out using heavy earth moving machines on the left bank of the river Kangsabati which was observed while approaching the JL 137, 211/271 (Fig 2 and Fig 3 above) and also on the Bhasra area.
iii. As far as the amount of sand mine out illegally is concerned the same can only be assessed by concerned district authorities when it is dry. iv. It was reported that the District Survey Report (DSR) as per Sustainable Sand Mining Management Guidelines-2016 is still under preparation and no lease has been granted and therefore any mining without proper approval is illegal and need to be stopped as per the order of the Hon'ble Supreme Court (dated 27.02.2012 in Deepak Kumar case) and Hon'ble NGT order (dated 05.08.2021 in application no. 171/2013). v. None of the plots/even the lease hold areas are demarcated on the ground.
vi. The photographs which have been given in the 2 original application could not be certified after such a such long time when most of the area is water logged and since the photographs have not reported the latitude and longitude of the site from where those photographs were taken.
9.0 Recommended 1. All the illegal sand mining activity should be action immediately stopped.
2. No sand mining to be allowed without proper approval from competent authority and in violation of Sustainable Sand Mining Management Guidelines-2016 and Enforcement & Monitoring Guidelines for Sand Mining 2020 as per rule.
3. It must be ensured by the concerned authorities that the compliance of the order of the Hon'ble Supreme Court (dated 27.02.2012 in Deepak Kumar case) and Hon'ble NGT order (dated 05.08.2012 in application no. 171/2013) are implemented to prevent illegal mining in true spirit and necessary action be taken against the wrong doers.
4. All the plots/lease hold area mentioned on the order should be properly demarcated on the ground with proper latitude & longitude when it is dry. The quantity of sand reserve, mined out sand (legally/illegally) be assessed by the concerned district mining department.
5. The concerned departments (i.e. District Mining Authority, District Land & Land Reforms Authority) should provide necessary information regarding the extent of illegal sand mining activity i.e., mining area, duration of mining, royalty collected & the name of the persons carrying out the activity. This information will be required for calculation of environmental compensation.
6. The District Survey Report consisting of restoration plant should be prepared at the earliest.
5. This Inspection Report notes that although at the time of visit of the Inspection Team, no sand mining was being carried out but there was ample evidence of use of heavy earth moving machines on left 3 bank of the river Kangsabati while approaching the J.L. No. 137, Plots 211/271 and also on the Bhasra area. It is also stated that the amount of sand mined out illegally needs to be determined by the District Authorities when the area becomes dry. However, the Inspection Team has not identified as to who were the persons who have carried out the illegal mining.
6. We are of the view that if there was illegal mining there, it would have been within the knowledge of the Tehsildar of the area concerned. In the recommendations, the Inspection Committee had recommended that the concerned departments, namely, District Mining Authority and District Land & Land Reforms Authority, should provide necessary information regarding the extent of illegal sand mining activity, the royalty collected and the name of the persons carrying out the activity.
7. We also find that the Respondent No.4, Additional District Magistrate and District Land & Land Reforms Officer, Paschim Medinipur, was a Member of the Inspection Team. We, therefore, direct the Respondent No.3, District Magistrate & Collector, Paschim Medinipur, to determine as to who were the illegal miners and what was the extent of sand illegally mined and what amount of royalty/penalty which has been collected from the illegal sand miners. This process shall be completed within four weeks by the Respondent No.3, District Magistrate & Collector, Paschim Medinipur, who shall file his personal affidavit in this regard by the next date of listing. The District Magistrate shall also determine the role played by the then Tehsildar of the area concerned and if he is found to have been negligent in the discharge of his official duties 4 in checking illegal sand mining, the District Magistrate shall initiate departmental proceedings against the concern Tehsildar.
8. It may be noted that illegal sand mining amounts to theft of royalty to the Government Revenue and all persons responsible for such theft shall be liable for prosecution under the provisions of the Prevention of Money Laundering Act, 2002.
9. Section 3 of the Prevention of Money-Laundering Act, 2002, reads as under:-
"3. Offence of money-laundering- Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it is untainted property shall be guilty of offence of money-laundering."
10. Section 4 of the Act which prescribes the punishment for money-
laundering, reads as under:-
"4. Punishment for money-laundering- Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years" had been substituted."
11. Section 43 of the Prevention of Money-Laundering Act, 2002, reads as under:-
"43. Special Courts.-- (1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offence punishable under section 4, by notification, designate one or more Courts of Session as Special Court or Special Courts or such area or areas or for such case or class or group of cases as may be specified in the notification.5
(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
12. Section 44 of the Prevention of Money-Laundering Act, 2002, reads as under:-
44. Offences triable by Special Courts.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- 1 [(a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or]; (b) a Special Court may, 2 *** upon a complaint made by an authority authorised in this behalf under this Act take 3 [cognizance of offence under section 3, without the accused being committed to it for trial]; 4 [Provided that after conclusion of investigation, if no offence of money-laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or] 5 [(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed. (d) a Special Court while trying the scheduled offence or the offence of money-
laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 ( 2 of 1974) as it applies to a trial before a Court of Session.]"
(2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers 6 including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a reference to a "Special Court" designated under section 43.
13. Paragraphs 25, 26 & 27 of the Schedule of the Prevention of Money-
Laundering Act, 2002, read as under:-
PARAGRAPH 25 OFFENCES UNDER THE ENVIRONMENT PROTECTION ACT, 1986 (29 OF 1986) Section Description of offence 15 read with section 7 Penalty for discharging environmental pollutants, etc., in excess of prescribed standards.
15 read with section 8 Penalty for handling hazardous substances without complying with procedural safeguards.
PARAGRAPH 26 OFFENCES UNDER THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 (6 OF 1974) Section Description of offence 41 (2) Penalty for pollution of stream or well. 43 Penalty for contravention of provisions of section 24.
PARAGRAPH 27 OFFENCES UNDER THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 (14 OF 1981) Section Description of offence 37 Failure to comply with the provisions for operating industrial plant.
14. A conjoint reading of Sections 3, 4 and Sections 43 and 44 of the Prevention of Money-Laundering Act, 2002 and paragraphs 25, 26 and 27 of the Schedule thereto would show that if air, water, ground and environment pollution is caused in an area, not only the person causing environmental pollution but any person indirectly or knowingly aiding or assisting such act would also be liable for causing illegal financial gain to such violator. 7
15. The District Magistrate shall state in his affidavit what action he has taken in this regard against the persons involved in illegal sand mining and causing loss to the public exchequer, including Govt. Servants involved in such nefarious activities.
16. We understand that Environmental Compensation cannot be determined by the Committee till the quantity of sand illegally mined is determined by the District Magistrate & Collector, Paschim Medinipur, in his enquiry. The District Magistrate & Collector, Paschim Medinipur, shall also communicate his findings and affidavit to the Committee before filing it in the Tribunal.
17. List on 02.03.2022.
In O.A. No. 63/2021/EZ:-
1. Mr. Sibojyoti Chakraborty, learned Counsel files Vakalatnama on behalf of the Respondent Nos. 1 to 5, State Respondents, Govt. of West Bengal; the same is taken on record.
2. One affidavit dated 09.12.2021 along with Inspection Report has been filed on behalf of the Respondent No.8, State Level Environment Impact Assessment Authority (SEIAA), West Bengal;
the same is taken on record.
3. We also find that the Committee has tried to identify the other plots but the plots have not been demarcated.
4. We, therefore, direct the Respondent No.3, District Magistrate & Collector, Paschim Medinipur, to submit his reply with regard to the findings of the Committee as to why the plots are not demarcated and what logistical assistance has been provided by him to the Committee in spite of the fact that the concerned Additional District Magistrate and District Land and Land Reforms Officer, Paschim Medinipur, was a Member of the Inspecting Team. 8
5. Let such affidavit be filed before the next date of listing. In O.A. No. 64/2021/EZ:-
1. Mr. Sibojyoti Chakraborty, learned Counsel files Vakalatnama on behalf of the Respondent Nos. 1 to 5, State Respondents, Govt. of West Bengal; the same is taken on record.
2. No affidavit has been filed by the Respondent No.8, State Level Environment Impact Assessment Authority (SEIAA), West Bengal till date.
4. Ms. Susmita Bhattacharya, learned Counsel appearing for SEIAA, West Bengal, is directed to file the affidavit of SEIAA, West Bengal, within 24 hours.
In O.A. No. 65/2021/EZ:-
1. Mr. Sibojyoti Chakraborty, learned Counsel files Vakalatnama on behalf of the Respondent Nos. 1 to 5, State Respondents, Govt. of West Bengal; the same is taken on record.
2. One affidavit dated 09.12.2021 alwong with Inspection Report has been filed on behalf of the Respondent No.8, State Level Environment Impact Assessment Authority (SEIAA), West Bengal;
the same is taken on record.
3. One supplementary affidavit dated 21.01.2022 has been filed on behalf of the Applicant; the same is taken on record.
4. The Respondent No.3, District Magistrate & Collector, Paschim Medinipur, shall also consider the averments made in the supplementary affidavit dated 21.01.2022 including photographic evidence filed by the Applicant and file his affidavit before the next date of listing.
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..................................... B. Amit Sthalekar, JM ................................... Saibal Dasgupta, EM January 24, 2022 Original Application No. 62/2021/EZ With Original Application No. 63/2021/EZ With Original Application No. 64/2021/EZ With Original Application No. 65/2021/EZ AK 10