National Green Tribunal
Sukanti Pradhan vs State Of Odisha on 3 December, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No.01 (Court No.1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 83/2020 EZ
(with I.A No. 74/2021/EZ and I.A No.75/2021/EZ)
Sukanti Pradhan& Others Applicant(s)
Versus
District Collector, Dhenkanal & Others Respondent(s)
Date of completion of hearing and reserving of order: 29.11.2021
Date of uploading of order on the website: 03.12.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
ORDER
1. Grievance in this application is against illegal mining by Respondent No. 9, Chinmay Kumar Nayak and operation of illegal stone crushers by Respondent No. 10, Kunal Structure (I) Pvt. Ltd. at Jhilli Mouza in Dhenkanal District, Odisha.
2. According to the applicants, mining conducted by the project proponent (PP) - respondent No.9 is far in excess of the permitted mining. In the process of mining, there is felling of trees, illegal blasting and damage to the houses of the inhabitants due to blasting. Stone crushers do not have any statutory consent and do not meet the siting 1 criteria. No green belt has been developed. There is no demarcation of the leased area and mining is taking place beyond the leased area. Over loaded vehicles are being plied on rural roads, without the approval from the Rural Development Department. Vehicles are not using any covering on the mined material resulting in air pollution. The applicant has referred to the siting criteria for the stone crushers laid down by the Forest Department, Odisha dated 08.06.2010, EC for the mining granted on 15.02.2016, Consent to Operate for stone crushers dated 30.05.2018, CPCB Guidelines dated 12.05.2020 about the siting criteria, consent to operate dated 10.07.2020 for stone crushers, photographs and media reports.
3. The matter was earlier considered on 13.01.2021 and it was found that the allegation needs to be first looked into by a Joint Committee comprising State PCB, District Collector, SEIAA, Odisha, CPCB and MoEF&CC. Accordingly, the Joint Committee was directed to furnish a factual and action taken report in the matter. Thereafter, the matter was taken up on 25.06.2021 and notice was directed to be issued to the concerned departments for their response, if any.
4. On 10.08.2021, the Tribunal took on record the counter affidavits filed by the concerned departments and also by Respondent No. 10. Direction was also issued to file report of the Joint Committee. On 13.09.2021, Joint Committee report dated 31.08.2021 (also same report bears date of 1.7.2021 as referred to in next para) was taken on record.It was also observed that there was prima facie connivance of Sri Sanjay Rout, Tehsildar Kankadahad, Dhenkanal in illegal mining. The Collector, Dhenkanal has abdicated his responsibility. The amount of compensation for restoration of environment, penalty for excess mining 2 and loss to the revenue had not been worked out. Accordingly, affidavit with all the facts and figures was required to be filed.
5. In continuation of above, we have further considered the matter. We have perused the counter affidavits of the Tehsildar, Kankadahad, District Dhenkanal, acknowledging illegality in mining, counter affidavit of Respondent No. 10 to the effect that the said respondent merely purchased the mined material, joint report of the Committee filed on 01.07.2021, affidavit of the State PCB, counter affidavit of Respondent No. 9 (Project Proponent - PP) and I.A. Nos. 74 and 75/2021 filed by intervener, Sanjay Kumar Rout, Tehsildar against prima facie observations of connivance with illegal mining.
6. We have first considered the IAs against prima facie observations of connivance of Sanjay Kumar Rout, Tehsildar. Since it is stated that he was not the Tehsildar posted at the place in question at the relevant time, prima facie observations in order dated 13.09.2021 will stand dropped.
7. On merits, in view of stand of respondent No.10 that stone crusher was not being operated but the said respondent merely purchased the mined material, we have to proceed to deal with the violations of law by the PP - Respondent No. 9. The extent of violations can be seen from the report by a five-member Committee comprising CPCB, MoEF&CC, SEIAA, Odisha, State PCB and Tehsildar. It will suffice to quote certain extracts from the report as follows:
3
" Point PLEADED CASE OF THE APPLICANT OBSERVATIONS OF THE COMMITTEE No. 06 that from website of SEIAA, it is found that Environmental Clearance The project proponent Sri Samir Kumar Roul, At/PO-Alatuma, for Jhilli for Stone Quarry in Plot No.3006, Khata No.268 over an Distt. Dhenkanal has applied a project proposal (through offline) area 2.428 ha. At village Jhilli, Tahasil Kankadahad granted in for Environmental Clearance at SEIAA, Odisha for Jhilli Stone Favor of Tahasildar, Kankadahad in the district of Dhenkanal for Quarry over total lease area 2.428 Ha at village-Jhilli, Tahasil- Lease Period-FY2015-16 to 2019-2020. further the EC letter dated Kankadahad, Distt. Dhenkanal. Based on the document (i.e. 15th Feb. 2016 suggests that the total mining permit is of 16500 CM mining plan, EMP, PFR, form-!, lease order etc) submitted by the PP for 5 years and annually its only 3500 CM. The EC letter further and Tahasildar, Kanakadhad letter vide letter no.813 on dated refers to one Sri Samir Kumar Roul, At/Po Alatuma, Distt. 13.04.2015, the EC for Jhilli Stone quarry was issued by SEIAA Dhenakanal as the lessee and lease has been negotiated with him vide letter no. SEIAA/791 dtd. 15.02.2016 for production of 16,500 by the Tahasildr, Kankadahad. However, there are no other data Cum stone materials in 5 years period and maximum 3500/ relating to Form-1, Mining Plan, Compliances report of Environmental annum. (Copy of the EC attached Annexure-1). Clearance Conditions which should have been uploaded in the District and SEIAA website. Copy of the Environment Clearance letter dated 15/02/2016 is annexed here unto as Annexure-1. 09 The information obtained by the applicant present case Premanada It's matter of record and agreed with.
Pradhan under RTi from Kankda Tahasildar on 6th August 2020 suggest the following quantity of stone were extracted Period Quantity stone extracted in CM 1st April 2019 to 8th August 2019 33905 9th August to 31st October 2019 5100 1st November to 3rd December to 15305 4th December 2019 to 31st march 2020 25100 28th may to 31st July 2020 18373 Total 97783 It is pertinent to mention that the permitted quantity in EC letter and CTO is of only 3500CM and here the extraction is on 97783CM which is much more than the permitted Limit. Copy of the RTI reply dated 06/08/2020 is annexed here unto as Annexurre-4) 10 The EC letter further infers that the lease period being up to As per stipulated condition mentioned in the EC, the Financial Year 2020, hence the mining plans as well as environment environmental clearance shall be valid for the lease period as 4 clearance have been lapsed since 31st March 2020. But surprisingly recommended by the lease granting authority. As per EC, it is the quarry runs without any valid environment clearance. observed that the mining lease of Jhilli Stone Quarry was negotiated by Tahasildar, Kankadahad to Shri Samir Kumar Roul vide letter no.813 dated 13.04.2015. The mining plan along with progressive mine closure plan of the project was approved by Joint Director, Geology (I & C), zonal Survey, Dhenkanal dated 13.07.2015. The Mine lease deed between Tahasildar, Kankadahad and Shri Samir Kumar Roul was executed on 20th July 2016 for the period 1st April 2016 to 31st March 2017 for Minimum Guaranted Quantity per annum - 3000 Cum of stone production from quarry over plot No.3006, Khata No.268, Kisam- Patharbani at Mouza-Jhilli, Tahasil-Kankadahad, Distt.
Dhenkanal (Copy attached as Annexure-2).
Rule 43 (2) of OMMC Rules, 016 states the date of commencement of the period for which a prospecting licence-cum-mining lease or mining lease or quarry lease is granted shall be the date on which a duly executed deed is registered Rule-8 (4) of OMMC Rules, 2016 states 'minimum' period for which any such lease may be granted shall be five years. Since the executed deed was registered on 20th July 2016, hence the lease period ends on July 2012.
However, present lessee of the Jhilli quarry shri Chinmaya Kumar Nayak, received in 1st approved modified mining plan from Joint Director of Geology, zonal survey, Dhenkanal on dt.08.05.2020 for the extension period 01.04.2020 to 20.07.2021 for the increase of production of ROM from 3500 Cum to 3501 Cum. (Maximum annual production capacity) and in 2nd modified mining plan approved by Joint Director of Geology, Zonal Survey, Dhenkanal vide letter No.1040 dtd. 26.08.2020 for increasing production capacity from 3500 Cum to 50,542 Cum (maximum production per annum) and increases total production capacity from 5,000 Cum (earlier it was mentioned for 5 years) to 80,962 cum (mentioned for 2 years period). (Copy attached as Annexure-3).
The lease deed agreement for Jhilli Stone Quarry has been 5 executed between Tahasildar, kankadahad and Sri Chinmaya Kumar Nayak, Lessee on 28th May 2020 for the period 2020-21 (i.e. 01.04.2020 to 20.07.2021) for extraction of 4578 Cum road metal as per approved modified mining plan). (Copy attached as Annexure-4) Although the mining plan has been modified in two times but amendment of the EC has not been done accordingly by the present lessee Shri Chinmaya Kumar Nayak and also the transfer of EC from the previous lessee Sri Samir Kumar Raul to the present lessee Sri Chinmaya Kumar Nayak was not done.
11 That the quarry use to do indiscriminate blasting which led to During joint inspection it was found that no mining activity was cracking of houses in the nearby villages which are within 200 going on, two crusher plants those are located adjacent to the meters from the quarry site. The quarry is just adjoining the road quarry area were closed. The agricultural lands are located connecting between Mahabir road and Kankahad and no safety adjacent to quarry and no farm land damaged due to stone measures adopted while balsting using Dynamite takes place. crusher and quarry has been observed as paddy already harvest Further the agricultural lands are located adjoining the quarry and and mining activities was stop. The distance was observed to be the farmers are afraid of visiting their own agricultural land apart 300m from the village. As per CPCB guideline it should not be less from the farm land gets damaged with the dusts of stone crusher than 200m. The petitioner has also accepted the distance to be and quarry. For a number of times the villagers have protested 300m in its petition point no.25. The distance from the against blasting and same has been reported on 21st Jan 2020, 5th agricultural land is 90 m. Regarding allegation about illegal June 2020 and 28th June 2020 in leading Odia Daily Sambad News blasting and mining activities, already a letter issued by SEIAA, paper and the relevant news articles are also attached to this letter. Odisha to the Collector, Dhenkaal to take appropriate action vide Copy of the Sambad News Articles dated 21st Jan 2020, 5th June letter no.9128 dtd.05.10.2020 (copy attached as Annexure-5). 2020 and 28th June 2020 is attached here unto as Annexure-5.
15 Further the Kunal Structure (I) Pvt. Ltd. (KSIPL) a private company The lease deed agreement for Jhilli Stone Quarry has been engaged in construction of National Highway No. 53 is using the executed between Tahasildar, Kankadahad and Sri Chinmaya stone for its road construction purposes. The stone extracted from Kumar Nayak, lessee on 28th May 2020 for the period 2020-21 quarry and the same is crushed in a crusher setup in the adjoining (i.e.01.04.2020 to 20.07.2021) for extraction of 4578 Cum road government land of quarry. The initial quarry permit was only for metal as per approved modified mining plan. 3500 Cm3 per annum however the Tahasildar, Kankadahad under RTI reply dated 20.02.2020 informed that a revised mining plan has The quantity of mineral excavated during 1st April 2019- 31st been submitted for extraction of two lakh twelve hundred (201200) July 2020 is 97783 Cum which is much more than the permitted Cm/year is the lessee is extracting around 5 lakh CM/year without capacity of extraction as per EC and CTO which allows Environmental clearance for increased capacity and same in excavation of only 3500 cubic meter for the financial year 2019- 6 violation of the EIA Notification, 2006. 2020. This violates EC conditions which specifically states any change in the calendar plan including excavation, quantum of mineral and waste shall not be made.
17 It is further submitted that the explosion/blasting using dynamites/ It is clearly mentioned in the EC i.e. stipulated conditions no 12, explosives in the hills have caused cracking in the buildings of 13, 15 and 27 about different norms prescribed in the EC for stone adjoining villages. There has been large scale tree felling and quarry but the it was not follow by the project proponent as we clearance of land for quarry and crusher activity. The agricultural observed during joint inspect. land have severely affected in terms of productivity because of the It was observed that some crack in the building of adjoining quarries and stone dust from crushers. There is no compliance of villages which are located 200 to 300 away from the mining area. any kind of environment norms prescribed in EC or CTO or the guideline. Copy of the photographs dated 24th September 2020 is annexed here unto as Annexure-7.
19 It is submitted that the project proponent or quarry operators in the As per SEIAA office record the project proponent Sri Chinmay present case is supposed to apply for the environment clearance in Kumar Nayak has applied a project proposal through online Form-IM and same has to be processed and granted clearance to the proposal for transfer of EC from Sri Samir Kumar Rout to Sri proponent. In the present case Form IM has not been submitted and Chinmay Kumar Nayak vide online proposal no. no environment clearance has ever been granted to the private SIA/OR/MIN/184384/2020 dtd. 22.11.2020. The proposal was operator who is presently the stone quarries in Jhilli hill. placed in the 42nd meeting of SEIAA was held on 24.12.2020 and it was decided by the Authority that "As the CTO has been revoked by SPCB vide letter no.2341 on dtd 16.10.2020, the EC will normally not be transferred" and in this regards a letter was issued by SEIAA to the Tahasildar, Kankadahad, Dhenkanal vide SEIAA letter no.136/SEIAA on dated 21.01.2021. (Copy attached as Annexure-6). Also Tahsildar Kakadahad requested SEIAA vide his letter no.2790, dtd.02.12.2020 to consider the online application of Sri Chinmay nayk regarding the change of name of lessee in the Environmental Clearance. (Copy attached as Anexure-7).
21 It is submitted that while granting CTE and renewing the Consent to Environmental Clearance (EC) was accorded in favor of Tahasildar, Operate, the Pollution Control Board requires a site visit to confirm if Kankadahad, Dhenkanal for Jhilli Stone Quarry of Sri Samir the criteria are satisfied and if the consent conditions are complied. It Kumar Rout by State Environment Impact Assessment Authority, further appears that while granting consent to operate on 10th July Odisha vide letter no.791 Dt. 15.02.2016 for total production 2020 in favour of Chinmay Kumar Nayak, the Board has failed to capacity of Road Metal /Stone - 16500 cum (ROM) over lease area verify if the lessee has been granted environment clearance or not. of Area-2.428 Ha. At village Jhilli, Tahasil-Kankadahad, Dist. As such the SEIAA record shows that Samir Kumar Roul was the Dhenkanal during valid lease period. EC is valid for the lease 7 lessee at the time of grant of EC in 2016 and the same letter further period as recommended by the lease granting authority. sys the lease period was up to 31st March, 2020 and hence there is no Valid lease and EC after 31st March, 2020 but the Board has Modified Mining plan prepared under Rule 28 (8) of the Odisha issued CTO on 10th July, 2020. Minor Mineral Concession Rules, 2016 for Jhilli Stone Quarry of Sri Chinmay Kumar Nayak, Lessee has been approved by Joint Director of Geology, Zonal Survey, Dhenkanal on dt.08.05.2020 for the extension period 01.04.2020 to 20.07.2021 for the production of ROM-5220 Cum. (Maximum annual production capacity - 3890 Cum) / Stone production - 4578 Cum. (Maximum annual production capacity - 3501 Cum). (Copy Attached as Annexure-9).
However, the Lessee had submitted an affidavit signed before the Notary Public, Angul on 06.07.2020 at the SPC Board, Odisha in which the lessee has cited his inability to submit EC due to COVID- 19 and lock down situation in all districts. Further he mentioned that product of his quarry is mainly used for the developmental works (mainly Rehabilitation and up-gradation of existing 2-lane to 4-lane of New NE-53, Talcher to end of Kamakhyanagar Bypass Section). (Copy of agreement between Sri Chinamaya Kumar Nayak and KSIL for lifting of stone attached separately). He declared to submit Environmental Clearance in favor of the present lessee (i.e. Sri Chinmaya Kumar Nayak) at the earliest after normalization of COVID-19 situation. (Copy Attached as Annexure-9) Giving respect to the Judiciary System and recognizing the need of raw material for national developmental works and challenges during pandemic situation, Regional Office, SPCB, Angul, Odisha had considered the request of the lessee and issued CTO in favour of Sri Chinmaya Kumar Nayak, lessee vide letter No.1566, dt.10.07.2020 for Excavation /Quarrying of Black Stone - 3501 Cum during period 2020-21. CTO was valid up to 31.03.2021. However after issuance of Direction of Closure the no mining activity was carried out by the lessee and the same has been verified by the committee during the day of visit. The lessee has also applied for change of lessee name in EC through online. Same as Anx-7.
8 22 It further appears that the Board has not inspected the quarry as Regional Office, SPC Board, Angul, Odisha had received public well as the three crushers. It submitted that the Applicants could not complaint against illegal operation of the stone crusher at Jhilli, find any document in public domain or in the website of Board or in Kankadahad, Dhenkanal on dtd. 09.07.2020, 21.09.2020 and front of the crusher if the units have all the statutory clearances. 01.10.2020. Similarly, the quarry also does not have any display board disclosing the statutory clearances. It is submitted that the law Enquiry was conducted by the Regional Office, SPC Board, Angul, requires the project proponent to display the statutory clearances in Odisha on dtd.12.10.2020 to verify the public compliant. Based on a prominent place at their unit which can be visible to general public. the non-compliances observed during inspection and enhancement of production capacity beyond consented quantity by installing additional one stone crusher without obtaining necessary consent from the Regional Office, SPC Board, Angul, Odisha, Show Cause Notice u/s 21 & 31(A) of Air (P&CP) Act, 1981 was issued against the abovementioned stone crusher unit vide letter No.2312, dtd.13.10.2020 and instructed to comply the observations mentioned in the notice within 15 days from the date of the issue of the letter.(Copy of SCN Attached as Annexure-10).
The proponent had submitted the reply against the Show Cause Notice vide letter No. Nil, Dtd.27.10.2020. Regional Office, SPC Board, Angul, Odisha has imposed pollution levy charges of sum of Rs.26,000.00 (rupees twenty six thousand only) against the crusher unit vide letter No.2947, dtd.24.12.2020 as per clause-3.2 of the Guidelines of Levy of Pollution Charges and its Utilization which stipulates that, "Provided that the proposed industry / operation has established or taken steps to establish on a site which is otherwise subsequently found suitable and the proposed activity/ies operation(s) do not contravene any restriction or prohibitory orders of the State Government and/or the State Pollution Control Board a pollution charge equivalent to 5 times the consent to establish fee shall be payable by the project proponent before consideration of their case for Consent to Establish".(Copy of Pollution Levy letter is Attached as Annexure-
11) After receipt of pollution levy charges and compliances made by the crusher unit verified during inspection on 21.12.2020, Consent 9 to Establish was granted by the Regional Officer, SPC Board, Angul, Odisha for enhancement of manufacture/production of from stone chips-14,000 Metric Ton/Annum to 64,000 Metric Ton/Annum over existing plot number vide letter No. 66, dtd. 07.01.2021 against online application No.3184489 made by the proprietor. 29 That each stone crusher unit required to install adequate pollution • There are two crushers one has valid CTO and the other units control measures including erection of G.I. Sheets cover and the has applied for CTO and the application is under process for sprinklers before commencement of operations. Dust doom shall be obtaining CTO from OSPCB. provided in the unit. Crusher shall be covered and water sprinkling • The installed crusher unit has primary crushing unit (jaw system shall be provided on crusher to suppress the dust generated crusher), secondary crushing unit (cone crusher) followed by due to material handling/ loading/unloading activity. Screen vibratory screen. classifier shall be adequately covered by G.I. sheets to prevent the • The unit is provided with water sprinklers at Primary crusher, emission into the atmosphere due to screening/grading activity. All secondary crushers, down side of the vibratory screen as well conveyor belts shall be adequately covered by G.I. Sheet /Ms. Sheet as transfer point to control the dust at the source. only. Regular wetting of roads shall be carried out to suppress the • The belt conveyor are also provided with flexible nylon cover to ground level dust within the premises to control the air borne dust control the fugitive dust emission however the efficacy of the emission due to wind velocity. All approach roads and ramps shall system cannot be assessed unless the unit is in operational be metalled. Curtain or wall shall be provided surrounding the stone state at full load. crusher unit. Display board shall be provided at the entrance of • The roads are not cemented or black topped. stone crusher indicating plot no, name and address of owner and the • Proper curtain surrounding the stone crushers need to be unit. Fine dust generated due to screening / crushing / grading shall provided along with Wind breaking wall to control fugitive be disposed off into abandoned mines. It is submitted that non of emission. pollution control measures are in place. • No display board was provided. 32 That the private respondents are supposed to take due diligence so Enquiry was conducted by the Regional Office, SPC Board, Angul, that residents will not be adversely affected by its pollution and in Odisha on dtd. 12.10.2020 to verify the public complaint received this case the private respondents have grossly failed in preventing by this office. Based on the non- compliances observed during the pollution from its unit. So also the State Pollution Control Board inspection and enhancement of production capacity beyond equally responsible for allowing the unit to operate and not taking consented quantity by installing additional one stone crusher unit any action for the illegal operation of three stone crusher Units. without obtaining necessary consent from the Regional office, SPC Board, Angul, Odisha, a Show Cause Notice u/s 21 & 31 (A) of Air (P&CP) Act, 1981 was issued against the stone crusher unit vide letter no. 2312, dtd. 13.10.2020 and instructed to comply the observations mentioned in the notice within 15 days from the date 10 of the issue of the letter. The proponent had submitted the reply against the Show Cause Notice vide letter No. Nil, Dtd. 27.10.2020 (Copy of SCN already attached).
35 The details of the action initiated against the project proponent under Regional Office, SPC Board, Angul, Odisha had received public the provisions of section 19 of the Environment (Protection) Act, 1986, complaint through Head Office, SPC Board, Bhubaneswar, Odisha and further no consent to operate or occupancy certificate to be on dtd. 09.07.2020, 21.09.2020 and 01.10.2020 made by Sankar issued till the project is granted Environmental Clearance. Prasad Pani, Lawyer on behalf of Sukanti Pradhan, At/PO: Jhilli, Kankadahad, Dhenkanal via e-mail regarding illegal blasting and quarrying and stone crusher at Jhilli, Kankadahad, Dhenkanal. He also alleged regarding over production of stone from quarry beyond approved quantity based on production report acquired through RTI from Kankadahad, Tahasildar on 6th August 2020 during.
Taking cognizance of the complaint, the Jhilli Stone Quarry was inspected by Regional Office, SPC Board, Angul, Odisha on dt. 09.09.2020 to verify the environmental compliances and the points raised in the complaint.
Based on the observations made during inspection and due to over projection beyond approved consented quantity, Regional Office, SPC Board, Angul, Odisha had issued Show Cause Notice u/s 21 & 31 (A) of Air (P&CP) Act, 1981 & u/s 25 & 33 (A) of Water Act 1974 against the abovementioned stone quarry vide letter No. 2210, dtd. 01.10.2020 to comply the observations mentioned in the notice within 15 days from the date of the issue of the letter. (Copy attached as Annexure-15) The Lessee had submitted the reply against the Show Cause Notice vide letter No. Nil, Dtd. 15.10.2020. Since, the reply submitted by the lessee was not found satisfactory, therefore, Consent to Operate issued in favour of your Stone Quarry vide this office letter no-1506, dtd 10.07.2020 for the excavation/quarrying of Black Stone having production quantity 3501 m3 was revoked and Direction of Closure under Section 21 & 31 (A) Air (Prevention and Control of Pollution) Act, 1981 and section 25 & 33 (A) of Water (Prevention and Control of 11 Pollution) Act, 1974 had been issued by the Regional Office, SPC Board, Angul, Odisha against the abovementioned stone quarry vide letter No. 2341, Dtd. 16.10.2020 and the lessee was directed to close down operation of the quarry forthwith. (Copy attached as Annexure-16). During the day of visit it was observed that no mining activity is being carried out.
39 That because no Environment clearance has been granted in favour The SPCB, Angul has issued Direction of Closure along with of the lessee, so the consent order granted in favour of Chinmay revocation of Consent to operate order against to the Project Kumar Nayak cannot be put to effect and the ongoing operation of Proponent for closing the Jhilli Stone quarry vide letter No. 2341 the quarry requires to be stopped immediately on dtd. 16.10.2020. The unit has stopped the operation after issuance of the direction of closure.
12 3.0 Over all observations:
Based on the above it is observed as follows:
i. No mining activity was going on at the time of inspection. The two crusher plants those are located adjacent to the quarry area were closed. The agriculture lands are located adjacent to quarry and no farm land damaged due to stone crusher and quarry has been observed as paddy already harvest and mining activities was stop. Regarding allegation about illegal blasting and mining activities, already a letter issued by SEIAA, Odisha to the Collector, Dhenkanal to take appropriate action.
ii. It was found that a natural growth Sal forest is located adjacent to quarry area and few Sal trees may have fallen due to mining activity. It is observed that few plantations was done very recently in the quarry area which is located adjacent to natural Sal Forest area.
iii. It was observed that some crack in the building of adjoining villages due to blasting.
iv. As per the CPCB guideline about distance criteria during blasting and simple mining activities came later and this mining activity continues much before the CPCB distance guideline. While renewing the CTO, CPCB guideline regarding sitting criteria should be strictly followed.
v. In this case the mining plan has been modified in two times but amendment of the EC has not been done by the present lessee Shri Chinmaya Kumar Nayak and also the transfer of EC from the provious lessee Shri Samir Kumar Raul to the present lessee Sri Chinmaya Kumar Nayak was not done.
vi. The Project proponent has planted some plant species near the quarry.
vii. The existing stone crushers are not in operational state so the efficacy of the Air Pollution Control Measures adopted by the unit cannot be assessed.
viii. The display board (mentioning details of Quarry and crusher) was not available at the stone quarry.
ix. Some of the major non compliances with respect to EC and CTO are as follows:
a. Mining plan has been modified without proper approval in violation of the stipulated conditions of EC which states Mining activity shall be carried out as per the approved mining plan prepared for this project (Point 6 of EC stipulated Conditions). This is also violation of the EC condition (Point 3) which states any change in mining technology / scope of working shall not be made without prior approval of the SEIAA.13
b. The quantity of mineral excavated during 1st April 2019- 31st July 2020 is 97783n CM which is much more than the permitted capacity of extraction as per EC and CTO which allows excavation of only 3500 cubic meter for the financial year 2019-2020. This violates EC conditions which specifically states any change in the calendar plan including excavation, quantum of mineral and waste shall not be made.
c. Six monthly compliance reports with respect to EC stipulated conditions have never submitted to either the Integrated Regional Office, Bhubaneswar or to the SEIAA, Odisha.
4.0 Recommendations:
In view of the above observations and non-compliances of EC and CTO it is recommended as follows:
4.1 No mining should be allowed in violation of conditions of Environmental Clearance and consent to operate. The excess mining carried out in violation of the EC and CTO conditions should be treated as illegal and therefore necessary environmental compensation may be imposed as per rule.
4.2The minimum distance criteria for permitting stone quarrying prepared by CPCB (Submitted to Hon'ble NGT in the matter OA 304/2019 dated 09.07.2020) must be complied while issuing the consent to Operate by OSPCB.
4.3 Efficiency of Pollution Control Measure adopted by the unit should be assessed by OSPCB while granting the consent to operate the crushers.
4.4 The display board should be provided by the unit as per rule.
4.5 It is clearly mentioned in the point no. 03, 05 & 06 of stipulated conditions of Environmental Clearance (EC) issued by SEIAA, odisha vide letter no. SEIAA/791 dtd. 15.02.2016 that any change in the calendar plan including excavation, mining technology/scooping quantum of mineral and waste shall not be made without prior approval of the SEIAA. So, the project proponent should obtained EC as per the modified mining plan and also transfer the EC from previous lessee to present lessee.
4.6 Project proponent should strictly follow all EC stipulated conditions and regularly submit six monthly compliance reports."
8. From the above report, it emerges that presently there is no mining and stone crushers are closed. The PP took steps to seek transfer of EC from previous lessee, who was granted EC also. However clearly established violation is with regard to exceeding the quantity permitted to be extracted for which the PP is liable to pay compensation on polluter 14 pays principle. PP is also liable to compensate the inhabitants whose houses have been damaged due to blasting operations. As against permissibility of 3500 cubic meter per annum in terms of the EC, the extractionof mineral during the period from 01.04.2019 to 31.07.2020 is 97783 cums. In the counter affidavit filed by the PP, it is implicitly admitted when it is stated that adequate royalty alongwith other charges has been imposed and deposited. The said stand is reproduced below:
"The matter regarding extraction of stone beyond the permissive quantity came to the knowledge of the authorities, and the Tahasildar, Kankadahadi had imposed adequate royalty, along with other charges. District Mineral Fund, Environmental Management Fund and Tax Collected at Source on the Respondent No.9 to the tune of Rs.
2,55,92,682/-.
Subject to the cost of repetition as described in the preceding paragraphs, the lease period did not expire on 31.03.2020 in light of the Rule 43(2) of the Odisha Minor Minerals Concession Rules, 2016."
9. The receipts annexed mention the quantity which calculates to 1.46 lakhs cms. (by only taking into account the quantity specified in some of the receipts, though there are other receipts in which quantity is not specified). Thus, the quantity mined is in excess even to that reported by the Joint Committee. We thus do not find any reason not to accept the report of the Joint Committee on the subject of the PP having exceeded the mining limit and to make the PP accountable for the same.
10. In view of above, its stands established that the PP did exceed the permissible quantity to the extent of more than 25 times the permissible limit. In the counter affidavit filed by the Tehsildar, Ramesh Kumar Jena on 03.08.2021, report dated 07.11.2020 submitted by him to the Collector is annexed to the effect that extraction of enhanced quantity of material was stopped on 05.10.2020 and loss of revenue assessed @ Rs. 3.55 crores was collected.
15
11. Thus, the PP is liable to restore the value of the mined material, in addition to any penalty or royalty for violation of mining laws. The exact value of the mined material has not been furnished by the PP who sold the mined material. Even during the hearinginspite of specific queries, the PP failed to disclose the value of the mined material. To arrive at an approximate figure of liability of the PP,we have taken into account the amount of royalty which is said to be more than Rs. 3 crores.Rate of royalty is less than the value of the mined material. Learned Counsel for the PP orally stated that value of the mined material is @ Rs. 500 per cubic meter. Learned Counsel for the applicant, however, stated that the value is much more and is not less than Rs. 1000 per cubic meter.
12. As observed earlier, for violation of environment norms, the violator is liable to pay compensation on 'Polluter Pays' principle. In case of illegal mining, such compensation has to be arrived at with reference to value of illegally mined material, cost of ecological services forgone forever, cost of restoration of environment and element of deterrence. Applying the said principles, the compensation payable by the PP cannot be held to be less than Rs. 5 crores, even on a conservative estimate.
13. In Jayant v. State of M.P., (2021) 2 SCC 670, it was held that illegal mining not merely involves violation of mining laws but also theft and damage to environment. Compounding of violations under mining law by paying penalty is no bar to liability under criminal law or environmental law by way of polluter pays principle. Observations are quoted below:
"18. However, our above conclusions are considering the provisions of Section 23-A of the MMDR Act, as it stands today. It might be true that by permitting the violators to compound the offences under the MMDR Act or the Rules made thereunder, the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of 16 damage to the environment. However, in view of the large-scale damages being caused to the nature and as observed and held by this Court in Sanjay, the policy and object of the MMDR Act and the Rules are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature and considering the observations made by this Court in the aforesaid decision, reproduced hereinabove, and when the violations like this are increasing and the serious damage is caused to the nature and the earth and it also affects the groundwater levels, etc. and it causes severe damage as observed by this Court in Sanjay, reproduced hereinabove, we are of the opinion that the violators cannot be permitted to go scot-free on payment of penalty only. There must be some stringent provisions which may have deterrent effect so that the violators may think twice before committing such offences and before causing damage to the earth and the nature.
19. It is the duty cast upon the State to restore the ecological imbalance and to stop damages being caused to the nature. As observed by this Court in Sanjay, excessive in-stream sand-and- gravel mining from riverbeds and like resources causes the degradation of rivers. It is further observed that apart from threatening bridges, sand mining transforms the riverbeds into large and deep pits, as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry. Even otherwise, sand/mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form.
14. Hon'ble Supreme Court in Judgement dated 29.11.2021 in CRA 1288/2021, Pradeep S. Wodeyar Vs. The State of Karnataka, observed:
"Offences under the MMDR Act are environmental crimes. These crimes impact upon society at large. These offences cause a detriment to and affect the well-being of the entire community. Environmental crime is not confined within geographical or state limits. The impact of environmental crime transcends borders and time. Environmental crime may or may not have an immediately identifiable human victim but there can be no mistaking its consequence for the entire bio-system of which human beings are an intrinsic, but not the only, element. Environmental crime is in essence a planetary crime - it affects every component of the natural systems with which the planet has been endowed. They constitute our heritage; a heritage which is held in trust by the present for the future. Illegal mining denudes the eco-
system of valuable resources. The destruction of the natural environment has serious consequences for the present and the future. The MMDR Act must hence be construed in this 17 perspective. At one level, illegal mining deprives the state of its revenues. But the law is not merely a revenue yielding or regulating measure. The essence of the law is to protect human kind and every species whose existence depends on natural resources from the destruction which is caused by rapacious and unregulated mining."
15. Accordingly, the PP may deposit a sum of Rs. 5 crores with the State PCB within one month. The amount is to be utilized for restoration of the environment by preparing an action plan by a five member Joint Committee of Regional Office of MoEF&CC at Bhubaneswar, Regional Office of CPCB at Kolkata, State PCB, SEIAA and District Magistrate. The Committee will be free to take assistance from any other expert/institution and coordinate with any other authority. If restoration plan involves lesser expenditure, excess amount may be used for environment restoration as per approved District Environment Plan in the District. The State PCB will be the nodal agency for coordination and compliance. If the amount is not deposited as directed, the District Magistrate may recover the same by taking coercive action, including blacklisting and prosecution.Though there is observation in the report of the Joint Committee that there are cracks in some houses, in absence of individual victims and extent of damage, we are unable to award compensation to the individuals but such individuals are free to take their remedy by showing the extent of loss suffered by them.
The application is disposed of.
IA Nos. 74/2021/EZ and 75/2021/EZ also stand disposed of. A copy of this order be forwarded to MoEF&CC, CPCB, State PCB, SEIAA and District Magistrate by e-mail for compliance.
Adarsh Kumar Goel, CP 18 Sudhir Agarwal, JM B. Amit Sthalekar, JM Dr. Nagin Nanda, EM Saibal Dasgupta, EM December 03, 2021 Original Application No. 83/2020 EZ & I.A No. 74/2021/EZ I.A No.75/2021/EZ DV 19