National Green Tribunal
Saseebhoosan Pattanayak vs Principal Secretaryrevenue And ... on 18 November, 2021
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
..............
ORIGINAL APPLICATION No. 55/2018/EZ
IN THE MATTER OF:
1. Mr. Sasee Bhoosan Pattanayak
Aged about 54 years
S/o late Srinibas Pattanayak,
Sisu Bhavan Lane, New Colony, Mining Road,
At/P.O.- Keonghargarh,
Dist.- Keonghargarh, Odisha-758001
2. Ares Kumar Khatua
Aged about 38 years,
S/o Bhramarbar Khatua,
At-Raghunathpur, P.O.-Patulipanka,
PS-Marshaghai, Kendrapara, Odisha-7540141
3. Alaya Samantaray
Aged about 29 years,
S/o Bhagirathi Samantaray
At-Masakani, PO-Jadupur, Via-Marshaghai,
Kendrapara, Odisha-754213
4. Pratap Chandra Mohanty
Aged about 38 years,
S/o late Sunakar Mohanty
At/PO-Talsanga, PS-Patakura,
Kendrapara, Odisha-754213
....Applicant(s)
Versus
1. State of Odisha
Represented by Principal Secretary,
Revenue & Disaster Management Dept., Govt. of Odisha
At-Secretariat Building, P.O. Bhubaneswar,
Dist: Khurda, Odisha, Pin-751001
2. Revenue Divisional Commissioner,
Central Division, At-PO-Cuttak, Odisha-768001
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3. Collector & Dist. Magistrate cum Chairman,
District Environment Impact Assessment Authority
Kendrapara Dist. At/PO/Dist-Kendrapara-759001
4. Member Secretary,
State Environment Impact Assessment Authority (SEIAA)
QR No. 5RF-2/1, Unit IX, Bhubaneswar-751022
5. Secretary, Ministry of Environment Forest and Climate
Change
Indira Paryavaran Bhawan, Jorbag, New Delhi-110003
6. Member Secretary, State Pollution Control Board, Odisha
Nilakanthanagar, Unit-VIII, Bhubaneswar-751016
7. Superintendent of Police, Kendrappara
At/PO/Dist.-Kendrapara, Odisha-759001
8. Chief Project Manager-II,
Rail Vikash Nigam Ltd. "B" Block (West Wing-Ground Floor)
6.9 Acre Complex, Rail Vihar, Chandrasekharpur,
Bhubaneswar-751023, Odisha
9. M/s Woodhill Infrastructure Ltd.
D-42, RDC, Rajnagar, Ghaziabad-201001 (U.P.)
10. Project Manager, ARSS Construction
Plot No. 38, Sector A, Zone D, Mancheswar Industrial Estate
Bhubaneswar-751010
11. M/s Sew-TTIPL,
Plot No. 206, Road No. 76, Film Nagar, Jubilee Hills,
Hyderbad-500033, Telengana
12. M/s SRI SCL Infratech Limited,
M No. 8-2-502/a/A, 1st Floor, JIVI Towers
Road No. 7, Banjara Hills, Hyderabad-500034, Telengana
....Respondent(s)
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COUNSEL FOR APPLICANT:
Mr. Sankar Prasad Pani, Advocate
COUNSEL FOR RESPONDENTS:
Mr. Saubhagya Ketan Nayak, AGA for R-1, 2, 3 & 7,
Mr. Gora Chand Roy Choudhury, Advocate for R-4,
Mr. Debasish Ghosh, Advocate for R-5,
Mr. Debasish Kundu, Advocate for R-8 & 12,
Mr. Surendra Kumar, Advocate for CPCB
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JIDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- 12th November, 2021 Pronounce On:- 18th November, 2021 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the Applicant as well as the learned Counsel for the Respondents and perused the documents on record.
2. This original application has been filed by the applicants who are four in number with the allegation that Soil/Morrum/Earth is being extracted by the Rail Vikash Nigam Ltd. (RVNL) in the construction of Railway line, known as Haridaspur-Paradeep Broadgauge Railway link over 81 kms.
3. It is alleged that the private respondents/contractors are procuring Soil/Morrum/Earth for use in the construction of the earth bed of the Haridaspur to Paradeep Railway line. 3
4. It is stated that the aforesaid railway project is being constructed under the supervision of the Rail Vikash Nigam Ltd. (RVNL) in the areas and lands falling in Kendrapara District of Odisha.
5. It is also alleged that the persons involved in the extraction of Morrum etc. which is a minor mineral do not have Environmental Clearance Certificate or lifting orders from Tahasildars or sanction from any competent authority for extraction of Soil/Morrum/Earth from those sources as per the Orissa Minor Mineral Concession (OMMC) Rules, 2016 and Environment (Protection) Act, 1986.
6. Notices were issued to the Respondents and various affidavits have been filed by the contesting respondents.
7. A Committee comprising of (a) Senior Scientist/Engineer, CPCB; (b) District Magistrate, Khurdha; (c) Member Secretary, SEIAA, Odisha and (d) representative of the State Pollution Control Board was constituted vide NGT, EZB order dated 04.02.2019 to inspect the area in question and verify the correctness of the allegations contained in the original application. A counter affidavit dated 19.11.2019 has been filed by Respondent No.6, Odisha State Pollution Control Board and Committee Members have submitted their report (Annexure R6/1) in respect of an inspection carried out on 08.11.2019. This Report need not be reproduced here in view of further developments thereafter.
8. One affidavit dated 22.11.2019 has been filed by the Respondent No.3, District Environment Impact Assessment 4 Authority (DEIAA) which is in respect of an inspection carried out on 09.08.2019.
9. On 11.02.2020 this Tribunal passed an order which reads as hereunder:
"1. Report filed by the District Collector, Kendrapara, on 22.11.2019 is ordered to be taken on record. From the report it appears that Environmental Compensation has been assessed in accordance with the guidelines prescribed by the Central Pollution Control Board (CBCB). The effective part of the report is reads as follows:
"Field Observations:
1. There was no excavation of top soil/earth were taking place on the day of visit at alleged sites of Kendrapara Marsaghai Derabis & Mahakalpara Tahasil in the district of Kendrapara.
2. The date of commencement and stoppage of the excavation and quantity of top soil/earth excavated and royalty collected by the Tahasildar Kendrapara, Marsaghai, Derabis & Mahakalpara at the alleged sites furnished by M/s. RVNL is annexed in Annexure-I. The part information of the said land schedule of the alleged excavated area is also furnished by the M/s. RVNL and annexed along with Annexure-I. The concerned Tahasildars were also requested by Regional Officer, SPCB, Paradeep to furnish the above information in order to verify the records furnished by M/s. RVNL. But the same has not yet been received. The letter communicated to the concerned Tahasildars is also enclosed as annexure-II.
Assessment of Environmental Compensation:
The Hon'ble NGT vide order dated 13.09.2018 in OA No. 186 of 2016 (Satendra Pandey Vs. MoEF&CC, Govt. of India & Anr.) has inter-alia directed as follows:
(vi) The MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mine-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining (Enclosed as annexure-III).
In absence of the above said guidelines, it was attempted to assess the cost of restitution of environment taking assumptions and references from the available following Rule and methodology and the information submitted by M/s. RVNL.
1. Orissa Minor Mineral Concession Rule, 2016.
2. Report of the CPCB in-house committee on Methodology for assessing environment compensation and action plan to utilise the fund. 1: For Environment Management Fund:
As per the sub-rule (2) of the Rule-49 of the Orissa Minor Mineral Concession (OMMC) Rule, 2016 it states that "An amount equal to 5% of the royalty payable shall be collected from the Lessees or Mineral Concession Holders as the case may be credited to the fund in the appropriate head of account to the Government Treasury". The sub rule 5 (3) of the said Rule states about various objects for utilization of the Environment Management Fund (IMF) which includes following activities namely;
(i) Restoration
(ii) Repair reclamation and rehabilitation work required to be undertaken for adjoining or external damage outside the quarry caused by mining activities Provided that any casualty by the lessee due to his negligence or non-compliance of conditions made in the lease deed shall be compensated or rehabilitated by the lessess.
Calculation:
The following calculation is done as the provision of OMMC Rule-
2016 and information in Annexure-I.
Sl. Name of Total Total Royalty Calculation EMF
No. Tahasil volume of Collected (Rs) of EMF contribution
(alleged sites topsoil/ea for Excavated contribution received
of rth topsoil/earth from the from the
topsoil/earth excavated by concerned proponent RVNL
excavated) in Cubic Tahasildar (5% of through its
meter from the RVNL Royalty as contractor
through its per guideline by
contractor of OMMC concerned
Rules 2016) Tahasildar
(5% of
Royalty as
per
guideline of
OMMC
Rules-
2016)
1. Kendrapara 4,83,931 1,19,71,514/- 5,98,576/- Nil
2. Marsaghai 9,57,421 1,34,03,894/- 6,70,195/- Nil
3. Derabis 14,43,771 3,71,36,528/- 18,56,826/ Nil
4. Mahakalpara 20,94,340 2,77,20,704/- 13,86,035/- Nil
Total 45,11,632/- Nil
2: Environmental Compensation as per Methodology developed by CPCB A report was prepared by the in-house committee of Central Pollution Control Board (CPCB) on Methodology for assessing Environmental compensation and action plan to utilize the fund. In compliance to the orders of Hon'ble NGT, Principal Bench in the matter of OA No. 593/2017 (WP (Civil) No. 375/2012, Parayavaran Suraksha Samiti & Anr. vs. Union of India & Ors. (copy annexed as Annexure-IV). The following environmental Compensation has been assessed taking the following formula.
Formula: ______________________
EC=PIxNxRxSxLF
Where,
EC is Environmental Compensation
in Rupees
PI= Pollution Index of industrial
sector
N = Number of days of violation took
place
R = A factor in Rupees for EC
S = Factor of scale of operation
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LF= Local factor
Calculation based on CPCB
methodology
Name Pollution Number A Factor Local EC=PI x N x R
Tahisldar Index of of days factor of factor x S x LF
(alleged sites Industrial of in scale
of sector violation Rupees of
topsoil/earth took for EC opera
excavated) place tion
(operatin
g
without
EC/CTO)
Factor PI N R S LF
Kendrapara 80 525 250 0.5 1 52,50,000/-
Marsaghai 80 525 250 0.5 1 52,50,000/-
Derabis 80 525 250 0.5 1 52,50,000/-
Mahakalpara 80 525 250 0.5 1 52,50,000/-
Total 2,10,00,000/-
Note:
1. The mining activities are coming under Red Category of industries as specified in sl no. 35 as per the SPCB Odisha Notification No. 83.33 dtd. 11.07.2018. Therefore for above cases PI is considered as
80.
2. The Number of days of violations is calculated from the date of commencement and date of stoppage of the excavation activities, as reported by RVNL Bhubaneswar. The total number of working days is assumed as 25 per month.
3. A factor in Rupees for EC has been assumed as Rs. 250/- for cases of violation.
4. Factor of scale of operation has been considered as 0.5 assuming the top soil/earth excavation activities as small scale.
5. Local factor has been assumed as 1 (for city/town having population less than one million).
From the above, the total environmental compensation for the alleged sites may be assumed as follows:
Sl. No Location of EMF EC=PI x N x R Total Value in the mine out contribution x S x Total Rs.
area from the Value in Rs.
proponent LF as per
(5% of methodology
Royalty as of CPCB
per
guideline of
OMMC
Rules-2016)
1. Kendrapara 5,98,576/- 52,50,000/- 58,48,576/
2. Marsaghai 6,70,195/ 52,50,000/- 59,20,195/-
3. Derabis 18,56,826/- 52,50,000/- 71,06,826/
4. Mahakalpara 13,86,035/- 52,50,000/- 66,36,035/-
Total 45,11,632/- 2,10,00,000/- 2,55,11,632/-
Conclusion:
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In absence of guidelines for calculation of the cost of restitution of damage caused to mine-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining by MoEF&CC, New Delhi, as per the order dt. 13th September 2018 of NGT vide OA No. 1868 of 2016 the above assessment is done taking assumptions and references from the available Rule and methodology as indicated above and information furnished by RVNL."
2. The report having been prepared and the compensation assessed in terms of the statutory guidelines under the Orissa Minor Mineral Concession (OMMC) Rules, 2016 and the CPCB guidelines in keeping with the Polluters pay principle, we do not find any difficulty in accepting the same and is accordingly ordered so.
3. The report further states that the concerned Tahsildars have taken effective steps prohibiting further excavation of soil in the areas falling within their jurisdictions and have also issued notice to the Project Proponent Chief Project Manager-1, Rail Vikas Nigam Ltd., West Wing, B-Block, Rail Vihar, Chandrasekharpur, Bhubaneswar, for recovery of compensation determined by the State PCB and SEIAA. At this stage, we are informed by Mr. Soubhagya Ketan Nayak, learned AGA, that in a Writ Petition challenging the demand, the Orissa High Court has passed an order staying the demand.
4. In view of this, recovery of compensation may be deferred until disposal of the Writ Petition. However, so far as the restitution and restoration of the area where illegal extraction of soil, morrum and sand is concerned, we do not find any impediment in the State Pollution Control Board (PCB) and the District Magistrate from taking it up urgently in view of the serious damage caused to the environment.
5. Let an action taken report be filed by the District Magistrate and the State PCB jointly before the next date.
6. List on 07.04.2020."
10. Another affidavit has been filed by Respondent No.12, M/s SRI SCL Infratech Ltd. and one more affidavit dated 18.12.2020 has been filed by Respondent No.3, Collector & District Magistrate-cum-
Chairman, DEIAA, Kendrapara.
11. In its order dated 11.02.2020, this Tribunal had directed the District Magistrate and the State Pollution Control Board to file an Action Taken Report with regard to restitution and restoration of the area where illegal extraction of soil, morrum and sand has occurred.
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12. In pursuance thereof, an affidavit dated 20.09.2021 has been filed by Respondent No.3, Collector & District Magistrate-cum- Chairman, DEIAA, Kendrapara, enclosing therein the Report on the assessment of Environmental damage due to illegal mining and preparation of the restitution and restoration plan where illegal extraction of soil, morrum and sand has taken place in the area in question.
13. This report has been prepared by the National Institute of Technology (NIT), Rourkela in compliance of the directions given by this Tribunal vide its orders dated 04.08.2020, 05.10.2020, 24.12.2020 and 14.06.2021.
14. The report of the NIT, Rourkela with regard to restitution and restoration of the banks of Brahmani River and Mahanadi River are as under:
"3.1 Restitution measures to mitigate the adverse environmental impact in the bank of Brahmani river. The Brahmani riverbank has been damaged by the illegal excavation as shown in Figure 7. The bank is required to be stabilized with soil followed by plantation to prevent soil erosion. Light weight grasses with deep root system like vetiver or other locally available natural species may be planted up to 5m from the bank crest which will help in preventing erosion. Light weight vegetation with spreading root system may be planted beyond this zone that will facilitate safe release of water without carrying the solid particles along with the discharge. The land close to the riverbank that has been excavated is required to be filled up by sand/soil to its original level.
A large excavation of about 100m length 5 to 7m width and 2 to 3m depth has been made in plot no. 692 and 693 (Sl. No. 137 and 138 of Table I) as shown in Figure 8. This may be filled with sand/soil and subsequently planted with native grass.9
3.2 Restitution Measures to mitigate the adverse environmental impact at the bank of Mahanadi River The banks of Mahanadi River at Putulibank village in mahakalpara Tahsil has been severely impacted by the illegal excavations as shown in Figure 9 and 10.
The land has been excavated in the range of a few feet to 10- 12 feet depth. It is suggested that the riverbank be immediately strengthened, and suitable plantation as mentioned in section 3.1 may be carried out at the bank, Though the excavations have been carried out from private land, it is still likely to have a serious impact on the riverbank and environment in the long run. It is therefore suggested to fill up the excavated land with sand/soil.
It was also observed that the illegal excavation is continuing for several purposes including brick making, probably with the connivance of some local influential people. Appropriate measures are required to be taken by the authorities immediately to stop such practices which may include putting security as well as surveillance through satellite monitoring. Awareness camps may also be carried out in the village to make the people aware about the adverse impacts of following such excavation in their land.
4. Conclusion Most of the sites are presently covered in various stages of paddy farming and show no visible environmental impact. Some of the excavated land has been converted to ponds for fish cultivation and other beneficial uses by the landowners. Two prominent locations were identified in Brahmani and Mahanadi riverbank for which restitution and restoration measures have been suggested."
15. Mr. Sankar Prasad Pani, learned Counsel for the Applicant submitted that this report does not deal with degradation of land but only refers to the restitution and restoration of the banks of Brahmani River and Mahanadi River.
16. However, in the report of the NIT, Rourkela itself it has been observed that although illegal excavation is continuing for several purposes including brick making, probably with the connivance of some local influential people, appropriate measures are required to 10 be taken by the authorities immediately to stop such practices which may include putting security as well as surveillance through satellite monitoring.
17. The report further mentions that most of the sites are presently covered in various stages of paddy farming and there is no visible environmental impact. Some of the excavated land has been converted into ponds for fish cultivation and other beneficial uses by the landowners.
18. Considering the observations recorded by the NIT, Rourkela and their conclusions as well as their suggestions for restitution and restoration of the banks of Brahmani River and Mahanadi River, we are of the view that nothing further remains in this matter for adjudication.
19. We, therefore, dispose of this original application with a direction to the Respondent No.1, State of Odisha and Respondent No.3, Collector & District Magistrate, Kendrapara to ensure the compliance of the recommendations of the Committee Members of the NIT, Rourkela with regard to restitution measures to mitigate the adverse environmental impact on the banks of Brahmani River and Mahanadi River, in a time bound manner i.e. within four months.
20. We further direct the Collector & District Magistrate, Kendrapara to ensure that there is no illegal excavation in the area in question for which purpose he shall take all security measures as may be necessary including formation of monitoring teams which 11 shall inspect the area from time to time. Strict surveillance measures through satellite monitoring as well as installation of CCTV cameras in strategic locations may be ensured.
21. We direct the Collector & District Magistrate, DEIAA, Kendrapara to file his Action Taken Report by 31.03.2022.
22. We are informed by Mr. Saubhagya Ketan Nayak, learned Additional Advocate General for the State Respondents that the amount of Environmental Compensation has been challenged in the Hon'ble High Court of Odisha in writ petition and the Hon'ble High Court has stayed the demand. As such, we direct that the recovery of the amount of Environmental Compensation of Rs. 2,55,11,632/- (Rupees Two crore fifty five lakhs eleven thousand six hundred and thirty two only) from the violator under the principle of 'polluter pays' shall be subject to any final order which may be passed by the Hon'ble High Court of Odisha in the pending writ petition.
23. With the above directions, this Original Application No.55/2018/EZ is accordingly disposed of.
24. There shall be no order as to costs.
........................................ B. AMIT STHALEKAR, JM ........................................ SAIBAL DASGUPTA, EM Kolkata November 18th 2021 Original Application No. 55/2018/EZ MN 12