National Green Tribunal
1. Om Sri Sri Sarbajanina Durga Puja ... vs 1. State Of Odisha Through Additional ... on 9 April, 2024
Item No.09 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.42/2023/EZ
IN THE MATTER OF:
Om Sri Sri Sarbajanina Durga Puja Committee,
Brundamal, Jharsuguda, Odisha,
Represented by its President Rabindra Rohidas,
S/o Bhaskar Rohidas, aged 43 years,
At-Brundamal, P.O./P.S.-Badmal,
District-Jharsuguda, Odisha,
...Applicant(s)
Versus
1. State of Odisha,
Through Additional Chief Secretary, Forest and Environment, Climate
Change Department, Government of Odisha,
Kharbela Bhawan, Bhubaneswar, District-Khurdha,
Pin - 751001,
2. District Collector and District Magistrate, Jharsuguda,
At-/PO/Dist-Jharsuguda, Odisha,
Pin - 752056,
3. The Member Secretary,
State Environment Impact Assessment Authority, Odisha,
5RF-2/1, Acharya Vihar, Unit-IX, OPTCL Colony,
Anand Bazar, Bhoi Nagar, Bhubaneswar, Odisha,
Pin - 751022,
4. Member Secretary,
Odisha State Pollution Control Board,
Paribesh Bhawan, A/118, Nilakantha Nagar,
Unit-VIII, Bhubaneswar, Odisha,
Pin - 751012,
5. Union of India,
Through the Secretary,
Ministry of Environment, Forests and Climate Change,
Indira Paryavaran Bhawan, Jorbagh, New Delhi,
Pin - 110003,
6. Revenue Divisional Commissioner, Sambalpur,
Odisha - 753002,
7. Additional Chief Secretary,
Revenue and Disaster Management Department,
Government of Odisha,
Lokseva Bhawan, Bhubaneswar,
Pin - 751002,
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8. The Member Secretary,
Central Pollution Control Board,
Parivesh Bhawan, East Arjun Nagar,
Delhi - 110032,
9. Vedanta Limited, Jharsuguda,
Represented by its Vice President,
PMO Office, Bhurkahamunda, P.O.-Sripura,
District-Jharsuguda, Orissa,
Pin - 768202,
...Respondent(s)
Date of hearing: 09.04.2024
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s) : Mr. Sankar Prasad Pani, Advocate (in Virtual Mode)
For Respondent(s) : Mr. Anand Prakash Das, ASC for R-1,2,6&7, (in Virtual Mode)
Mr. Apurba Ghosh, Advocate for R-3 (in Virtual Mode)
Ms. Papiya Banerjee Bihani, Advocate for R-4, (in Virtual Mode)
Ms. Rashmi Singhee, Advocate for R-5, (in Virtual Mode)
Mr. Rajib Ray, Advocate for R-8, (in Virtual Mode)
Mr. Sanjay Uapdhyay, Sr. Advocate a/w
Ms. Gitanjali Sanyal, Advocate for R-9,
ORDER
1. Heard Mr. Sankar Prasad Pani, learned Counsel appearing (in Virtual Mode) for the Applicant as well as Mr. Anand Prakash Das, learned Additional Standing Counsel appearing (in Virtual Mode) for Respondent Nos.1, 2, 6 & 7, State Respondents, Government of Odisha, Mr. Apurba Ghosh, learned Counsel appearing (in Virtual Mode) for Respondent No.3, SEIAA, Odisha, Ms. Papiya Banerjee Bihani, learned Counsel appearing (in Virtual Mode) for Respondent No.4, Odisha State Pollution Control Board, Ms. Rashhmi Singhee, learned Counsel appearing (in Virtual Mode) for Respondent No.5, Ministry of Environment, Forests and Climate Change, Mr. Rajib Ray, learned Counsel appearing (in Virtual Mode) for Respondent No.8, Central Pollution Control Board, and Mr. Sanjay Upadhyay, learned Senior Counsel assisted by Ms. Gitanjali Sanyal, learned Counsel appearing for Respondent No.9, Vedanta Limited. 2
2. The allegation of the Applicant in the present Original Application is that the Respondent No.9, Vedanta Limited, the Project Proponent, is operating 1.8 MTPA (Million Tonne Per Annum) Aluminium Smelting capacity and associated 3615 MW Thermal Power generation facility. It is stated that in the Village-Brundamal, there are four ponds which are used by the villagers for generations for various purposes like - bathing and other domestic purposes. Local cattle and stray animals also drink water from these ponds and the ponds are also used for cultivation.
3. It is stated that in 2021 due to low rainfall the ponds dried up and the villagers faced serious problems. It is alleged that Pond No.2 was dug out with the help of machine and Hyva and then filled with fly-ash.
4. It is alleged that in the village the Pond No.1 is situate on Plot No.773 over an area of 0.44 Acre; the Pond No.2 is situate on Plot No.769/1588, Khata No.226, Kisam-Kata, over an area of 3.50 Acre; the Pond No.3 is situate on Plot No.1063 and 1070 in an area of 0.7 Acres and 1.85 Acres; and Pond No.4 is situate on Plot No.752 having area 1.10 Acres.
5. It is also stated that in Village-Brundamal, there is about 740 acres of Government land but the Respondent No.9 has dug out 30 feet deep earth from Pond No.2, Khata No.226, Kisam-Kata, in Plot No.769/1588 and filled-up the same with fly ash. It is stated that the Kisam of the land is "KATA" and the same is a 'Water Body /Jalasay'.
6. It is alleged that the Respondent No.9 is carrying on its illegal mining operations in clear violation of the Fly Ash Utilization Notification 2016.
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7. At the time of admission, the Tribunal constituted a Committee comprising of the following Members:-
i) District Collector and District Magistrate or his/her nominee not below the rank of ADM, Jharsuguda, Odisha,
ii) Senior Scientist/Environmental Engineer from Odisha State Pollution Control Board, and
iii) Senior Scientist/Environmental Engineer from Central Pollution Control Board,
8. The Committee was directed to inspect the site in question and submit its Report on affidavit with regard to the allegations made in the Original Application and also suggest remedial action along with Environmental Compensation.
9. Mr. Sankar Prasad Pani, learned Counsel for the Applicant, apart from reiterating the allegations made in the Original Application has also drawn attention of the Court to the photographs filed at pages 24 to 28 of the Original Application which show fly-ash scattered over large area of land.
10. The State Pollution Control Board, Odisha, Respondent No.4, has filed affidavit dated 18.05.2023 bringing on record the Joint Committee Enquiry Report in respect of field inspection carried out on 16.05.2023. The Inspection Report reads as under:-
"Joint Committee enquiry report with regards to OA No.42/2023/EZ-Omm Sri Sri Sarbajanina Durga Puja Committee, Brundamal, Jharsuguda vs State of Odisha & Others As per the direction of the Hon`ble NGT-EZB dated 24.04.2023, in the matter OA 42/2023/EZ, committee has been constituted, comprising of District Collector & DM, Jharsuguda or his / her nominee not below the rank of ADM, Jharsuguda, Sr. Scientist / Env. Engineer 4 from OSPCB and Sr. Scientist /Env. Engineer from CPCB, New Delhi. It is directed for inspection of the site in question and submit its report with regard to the allegations made in the OA and any other observation of the committee may deem fit in the circumstance of the case and also suggest remedial action along with Environmental compensation. In this regard, a field enquiry was conducted on 16.05.2023 in and around the alleged site. The following members of Joint Committee were present during the field visit:-
1. Sri Lankeswar Amat, ADM (Rev), Jharsuguda
2. Sri Sandeep Roy, Scientist D, CPCB, Regional Directorate, Kolkata
3. Er H.K. Nayak, Regional Officer, SPCB, Odisha In addition to the above committee members, the following representatives and villagers were also present during the site visit:-
1. Smt A.Ekka, Dy.Env Scientist, SPCB, Odisha
2. Sri Rohitos Rohidas, Brundamal village
3. Sri Mahadev Rohidas, Brundamal village
4. Sri Montu Ghughar, Brundamal village
5. Sri Dhabal Bhoi, Brundamal village
6. Sri Dinesh Nayak, Brundamal village and others of Brundamal village Following officials from M/s Vedanta Limited were also present as decided by the committee members:-
1. Sri Amit Kumar Tyagi, Head Environment.
2. Sri 5ubhasis Das, Head CSR.
Background:-
A letter had been received from District Office, Jharsuguda, vide letter no-918/WS, dtd:-17.08.2022 with regards to allegation petition received by Sri Rabindra Rohidas & Others of village Brundamai in the district of Jharsuguda. In this regards, a joint filed visit was conducted on 25.08.2022 at the alleged site by Regional Officer, SPCB, Jharsuguda and Tahasildar, Jharsuguda alongwith the local villagers. It was observed that, no ash dumping activity had been carried out at the site and on the other hand, the site was found to be levelled with soil for development of playground as stated by the 20-25 nos of villagers present during the site visit. Further, it was observed that plantation has been done at the alleged site with barbed wire fencing around the site (copy of inspection report is enclosed). 5
Thereafter, again a field visit was conducted on dated:-
20.04.2023 with respect to a letter received from District Office, .Iharsuguda, vide letter no-4027/G&M, dtd:-17.04.2023 (copy attached) and no traces of ash dumping was observed during the inspection. The area was found to be fenced with barbed wire and there was growth of grass and scanty bushes (copy of inspection report is enclosed).
Observations made as on the day of inspection:
SI. Allegation made by the petitioner Observations No It is alleged that in Village- Brundamal The alleged site is located in the village
1.
there are four ponds which are used by Brundamal, adjacent to the village road the villagers for hundreds of years for and approximately 75 m (aerial distance) various purposes like bathing and other from Vedanta guest house in the west domestic purpose. Local cattle and stray direction. There are 4 nos of ponds in the animals also drink water from these west direction which are used by the ponds and the ponds are also used for villagers for bathing and other utilities. cultivation.
2. It is alleged that in 2021 due to low As stated byt he villagers, levelling of the rainfall, the ponds dried up and the land had been done for making it a village villagers faced serious problems. It is playground and doing other recreational alleged that Pond No.2 was dug out with activities and no ash has been used for the the help of machines and Hyva and then purpose. filled with fly-ash.
3. It is alleged that in the village, the Pond Details of the pond is provided in the No.1 is situated on in Plot No.773 in an revenue sketch map as attached. From the area of 0.44 Acre. The Pond No.2 is map it is revealed (marked as red colour) situated on Plot No.769/1588, Khata No.226, Kisam- Kata, in an area 3.50 that, the soil covered area near pond -2 Acre. The Pond No.3 is situated on Plot belongs to IDCO land whereas Pond no-2 No.1063 and 1070 in an area of 0.7 belongs to kisam Kata.
Acres and 1.85 Acres and Pond No.4 is situated on Plot No.752 having area 1.10 Acres.
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4. It is also stated that in Village- During the visit it was verified that, no Brundamal, there is about 740 acres of excavation activity and no ash filling was Government land but the Respondent done at Pond no-2 by MIS Vedanta Ltd No.9 has dug out 30 feet deep of earth (Photographs attached). The nearby area from Pond No.2, Khata No.226, Kisam- of the alleged pond was found to be Kata, in Plot No.769/1588 and filled up covered with grass and few plants. the same with fly ash. It is stated that the Kisam of the land is "Kata" and the same is a water body/Jalasaya.
5. It is alleged that the Respondent No.9 is Since, no digging or mining activity at the carrying on its illegal mining operations in alleged site was observed at the alleged clear violation of the Fly Ash utilization site, violation with respect to the Notification 2016. Fly Ash utilization Notification 2016 could not be substantiated.
CONCLUSION:-
1. During visit, villagers were also present at the alleged site. The representative and Sarpanch of the Brundamal village stated that there is no filling of ash in the ponds. Pond no 3&4 are used for Bathing and other utilities whereas Pond no 1&2 is not in use. As intimated by the villagers the domestic wastewater of the village comes to pond no-2 and contaminates it and therefore it is not usable.
Therefore, the villagers demanded to develop a playground for children/ field for conducting village functions.
2. Very small quantity of fly ash was found to be dumped in the pond no 2. As informed by the Sarpanch, this was carried out by the localites to develop a playground or field for conducting other recreational activities since there are no playgrounds/fields in that village.
3. During discussion with villagers, the committee members were in opinion that, M/s Vedanta Limited may develop the amenities as well as cleaning/beautification of the area under CSR activities as the village is located near the plant.
4. During discussion with officials from M/s Vedanta Ltd, it was assumed by them to carry out the following activities:-
Construction of proper drainage network and connecting it with the nearby main drain.
Construction of playground/field at pond no-2. Stone pitching and cleaning work of Pond no-3 and 4. 7 Repairing of the village temple and construction of one borewell. RECOMMENDATIONS:-
1. M/s Vedanta Ltd. may be directed to carry out the said activities within a period of 6 months under their CSR activities. They will submit a time bound action plan in this regard.
2. Necessary permission may be granted by the concerned department for the development and beautification of the area.
3. Necessary co-ordination and manpower as per requirement, may be extended by the villagers under the supervision of Gram Panchayat.
4. M/s Vedanta Ltd may be directed to submit a bank guarantee of Rs. 25 Iakhs with District Administration/OSPCB until completion of the said activities in given time frame.
5. All the above activities must be carried out under close supervision of District Administration and OSPCB."
11. The Report confirms that there are four ponds in the west direction which are used by the villagers for bathing and other utilities. The site in question is located in Village-Brundamal adjacent to the village road and is approximately 75 meters from the guest house of the Respondent No.9. The Committee Report also mentions that levelling of the land has been done for making it a village playground and for other recreational activities, though no fly-ash has been used for the purpose as stated by the villagers; the soil covered area near Pond No.2 belongs to IDCO land whereas Pond No.2 belongs to Kissam Kata. The Committee also noted at the time of inspection visit that there was no excavation activity and no ash filling was done at Pond No.2 by M/s Vedanta Limited, Respondent No.9 herein; the nearby area of the pond was found to be covered with grass and a few plants; there was digging or mining activity at the alleged site and, therefore, violation with respect to the Fly-Ash Utilization Notification, 2016, could not be substantiated. However, 8 under the head 'CONCLUSION' the Committee has recommended that small quantity of fly ash was found to be dumped in the Pond No.2 and the Sarpanch of the village in question pointed out that this was carried out by the localities to develop a playground or field for other recreational activities, since there are no playgrounds/fields in that village. The Committee, inter alia, recommended that the Respondent No.9, M/s Vedanta Limited, may develop the amenities as well as cleaning/beautification of the area under Corporate Social Responsibility (CSR) as the village is located near the Plant. The Committee also recommended that M/s Vedanta Limited may be directed to carry out the said activities within a period of six months under their CSR and submit a time bound action plan and necessary permission may be granted by the concerned department for the development and beautification of the area. It was also recommended that the Respondent No.9 may be directed to submit a Bank Guarantee of Rs.25 lakhs with the District Administration/Odisha State Pollution Control Board until completion of the said activities in a given time frame. The said activities were required to be carried out under close supervision of the District Administration and the Odisha State Pollution Control Board.
12. The Respondent No.9, M/s Vedanta Limited, has also filed its affidavit dated 15.05.2023 and a preliminary objection has been raised that the present Original Application is barred by limitation as provided in Section 14 of the National Green Tribunal Act, 2010, since dumping of fly ash has been alleged in June, 2022, and almost eight months have passed whereas the limitation prescribed 9 under the National Green Tribunal Act, 2010, is only six months from the date when the cause of action first arose.
13. We may reject the objection with regard to the limitation at the outset by stating that though the limitation prescribed under the Act, 2010, is six months but if the Original Application has come before the Tribunal after almost eight months, the delay cannot be said to be so inordinate as not to be condoned by this Court. We, therefore, condone the delay in filing the present Original Application.
14. In the affidavit of the Respondent No.9, it also alleged that the Applicant is not a person aggrieved within the meaning of Section 18 of the Act, 2010.
15. This submission is also rejected for the reason that the Respondent No.9 Unit is situated in the Village-Brundamal, District-
Jharsuguda, Odisha and Mr. Rabindra Rohidas, President of the Applicant's society is also stated to be a resident of Village- Brundamal, District-Jharsuguda, therefore, it cannot be said that the Applicant cannot be aggrieved by environmental pollution, if any, caused by the Respondent No.9 in and around Village- Brundamal, District-Jharsuguda, Odisha.
16. Allegation in the Original Application of the Respondent No.9 filling up of the Pond No.2 with fly ash has been denied by the Respondent No.9 in its affidavit. It is also stated that the Unit has submitted its Annual Environment Statement (AES) for the year 2021-22 on 23.09.2022 to the State Pollution Control Board detailing the quantity of fly ash and bottom ash generated by the different units and the amount that has been utilized within the 10 Unit and the amount disposed of outside the Unit to Cement Plant, Brick Kilns among other statutorily permissible modes of disposal.
17. The Respondent No.9 has also denied allegations of unauthorized dumping of fly ash in violation of the Fly Ash Utilization Notification, 2016.
18. Along with the affidavit, the Respondent No.9 has also filed an Enquiry Report of field inspection carried out on 25.08.2022 by the Regional Officer, State Pollution Control Board, Jharsuguda, and the Tahasildar, Jharsuguda. The Report reads as under:-
"Enquiry Report on the complaint received from Sri Rabindra Rohidas & Others of Village Brundamal, in the district of Jharsuguda A letter has been received from district office, Jharsuguda, vide letter no-918/WS, dtd:-.17.08.2022. In this regard, a joint field visit was conducted on 25.08.2022 at the alleged site by Er H.K Nayak, Regional Officer, SPCB, Jharsuguda and Sri Basanta Hati, Tahasildar, Jharsuguda. During the field visit, the following villagers were present:-
1. Sri Rajendra Bag, President of Brundamal Village Committee
2. Sri Pramod Rohidas, Secretary Brundamal
3. Sri Surendra Gukhra, Brundamal Village
4. Sri Kishore Kranti, Brundamal Village
5. Sri Sheshadev Guru, Brundamal Village
6. Sri Biswanta Mitra Rohidas, Brundamal Village
7. Sri Manoj Kumara, Brundamal Village
8. Sri Mahadev Rohidas, Brundamal Village
9. Sri Khirod Rohidas, Brundamal Village
10. Sri Binod Rohidas, Brundamal Village and others Observations:-
The alleged site is located in the village Brundamal, adjacent to the village road and approximately 75 m (aerial distance) from Vedanta guest house in the west direction. 11 There are 4 nos of village pond in the west direction which are used by the villagers for bathing and pisciculture. About 20-25 villagers were present at the site and they stated that the village committee had a proposal to develop the site for village playground. Therefore, soil was being dumped near the pond area to develop the site. But the proposal was objected by few villagers as some portion of the pond needed to be dumped with soil to increase the area of the playground.
The complainant group of villagers were also present at the site and they stated that, now they have no further misunderstanding as the proposed soil dumping activity has been stopped.
During the visit, it was observed that, no ash dumping activity had been carried out at the site and on the other hand, the site was found to be levelled with soil for development of playground. Further, it was observed that plantation has been done at the alleged site with barbed wire fencing around the site.
The Village President and Secretary has submitted a representation to the Collector & District Magistrate through Tahasildar, Jharsuguda with respect to complaint of the alleged site. The copy is enclosed for reference. Conclusion:-
In view of the above observation, it may be concluded that the complainant group of villages were not aware of the proposal of the other villagers and the allegations made by the complainants could not be substantiated."
19. Mr. Sanjay Upadhyay, learned Senior Counsel appearing for Respondent No.9 referring to the said Enquiry Report submitted that during inspection the complainant group of villagers were also present at the site and stated that they have no further misunderstanding as the proposed soil dumping activity has been stopped; during visit no ash dumping activity has been carried out at the site; on the other hand, the site was found to be levelled with 12 soil for development of playground; plantation has been done at the alleged site with barbed wire fencing around the site area. The Enquiry Report further mentions that about 20-25 villagers who were present at the site stated that the village committee had proposed to develop the site for village playground and, therefore, soil was being dumped near the pond area to develop the site but the proposal was objected by few villagers as some portion of the pond needed to be dumped with soil to increase the area of the playground but the proposed soil dumping activity had been stopped and there was no misunderstanding in this regard.
20. Further affidavit dated 03.08.2023 has been filed by the Respondent No.9 again denying that any fly ash had been dumped by the Unit in Pond No.2 in Plot No.769/1588 and in Pond No.3 in Plot No.1070, Village-Brundamal, District-Jharsuguda, Odisha. It has been reiterated that the Unit has been uploading monthly information for fly ash generation and its utilization every month on the https://coalash.cpcb.gov.in/ portal of the Central Pollution Control board for periodic monitoring of fly ash.
21. In the affidavit, it is also alleged that there are other companies such as - Bhushan Power & Steel Ltd., HINDALCO, NTPC, Ib Thermal Power Station, SMC Power Generation Corporation, Shyam Metallics and Energy Ltd. in the vicinity of Village-Brundamal which also generate fly ash but only the Respondent No.9 Unit has been singled out as a violator in the present Original Application.
22. The Collector & District Magistrate, Jharsuguda, Respondent No.2, has filed affidavit dated 22.07.2023 bringing on record the same Joint Committee Enquiry Report as has already been filed with the affidavit of the State Pollution Control Board, Odisha. 13
23. The Ministry of Environment, Forests and Climate Change, Respondent No.5, has filed affidavit dated 25.11.2023 stating that the Regional office of the Ministry situated in Bhubaneswar was requested vide letter dated 01.09.2023 to conduct a site visit and submit a factual status report with respect to the contentions raised in the present Original Application. It is stated that in pursuance of the directions, the Regional Office informed vide its letter dated 26.09.2023 that site visit was conducted and it was observed that "....the dugout soil from the field area has been found with fly ash (photo 5 and photo 6). M/s Vedanta limited has denied of any dumping of fly ash in the said pond no.2. The google image dated 02.03.2022 and dated 18.12.2022 indicated filling of part of the pond no.2. During visit, pond no.2 was not in use. However, pond no.3 was in use by the villagers."
24. It is further stated that the Monitoring Report annexed to the Site Inspection Report following specific condition stipulated to the Environmental Clearance dated 14.03.2007 and 07.12.2007 relevant to the issue raised in the instant matter was found to be non-complied. The relevant extract of non-compliances noted as stated in para 11 of the affidavit of the Ministry reads as under:-
S. No. Specific Condition (EC Status of compliance dated 14.03.2007 and 07.12.2007) x Ash pond shall be lined Impervious lining has been with impervious lining to visible in one ash pond. PP avoid leaching into ground reported that the ash pond water. has been lined with Adequate safety measures impervious HDPE lining to shall also be taken so that avoid any leaching in to pond ash does not become ground water. However, air born to cause air dust suppression measure 14 pollution in the surrounding at the ash pond has been areas. provided in one not in all.
During the visit fly ash outside the pond has also been observed without any protection measure.
25. Certain other further non-compliances have been outlined in para 12 of the Ministry's affidavit which read as under:- page 102-103 i. "the fluoride consumption as per stipulated condition has not been achieved, ii. three-tier green belt all along the periphery has not been developed, iii. legacy SPL carbon (36320 T) stock has not been disposed as committed, iv. plan for utilization of legacy fly ash has not been furnished. v. detailed implementation report of wildlife management plan has not been furnished, vi. fugitive emissions have not been monitored, vii. wind shelter fence to the coal stock pill has not been provided, viii. levels of SO2 exceeded norms of power plant, ix. rainwater recharge facility has not been provided, x. flue gas de-sulphurisation plant has not been installed, xi. dust suppression measure has not been provided at all the ash ponds, xii. fly ash has been deposited outside the ash pond without any protection measures, xiii. Level of Hg exceeded the norms as per online stack monitoring data,"
26. We find that the Item No.iv mentions that plan for utilization of fly ash has not been furnished and Item No.xii mentions that fly ash has been deposited outside the ash pond without any protection measure.
27. The affidavit of the Ministry further mentions that after perusal of the Site Inspection Report dated 26.09.2023, the Ministry has 15 issued a show cause notice on 14.11.2023 under Section 5 of the Environment (Protection) Act, 1986 to the Project Proponent, Respondent No.9, on account of non-compliance of environmental conditions.
28. The Site Inspection Report dated 26.09.2023 filed as Annexure R5/6 (pages 122-124) to the affidavit of the Respondent No.5 mentions that at location 21°48΄41.4''N 84°01'31.0''E the area of the pond has been filled up and levelled up to the level of the road. On top of the filled area natural vegetation has grown and soil on the top of the filled area has been observed (photo 1 to photo 4). However, the dugout soil from the filled area has been found with fly ash (photo 5 and photo 6). M/s Vedanta Limited, Respondent No.9, has denied of any dumping of fly ash in the said Pond No.2.
29. Mr. Sankar Prasad Pani, learned Counsel for the Applicant submitted that this Report not only confirms that M/s Vedanta Limited, Respondent No.9, has filled the Pond No.2 with fly ash but has also dumped fly ash in the area in violation of the Fly Ash Utilization Notification, 2016, as per the Site Inspection Report dated 26.09.2023 for which show cause notice dated 14.11.2023 has been issued to the Respondent No.9 Unit.
30. Mr. Pani also submitted that fly ash was being carried out in trucks in violation of the Fly Ash Utilization Notification, 2016.
31. We find that the show cause notice refers to this issue also in addition to various other violations alleged in the said show cause notice.
32. Be that as it may, after hearing the Counsel for the parties, we are of the view that the matter relating to filling up of the Pond No.2 with fly ash and scattering fly ash/dumping of fly ash in the area in 16 violation of Fly Ash Utilization Notification, 2016/2021, is already pending consideration before the Ministry of Environment, Forests and Climate Change, New Delhi, Respondent No.5. Copy of show cause notice has also been filed as Annexure R-5/7 (pages 169-
173) to the affidavit of the Respondent No.5. We are, therefore, of the view that this issue also needs to be decided by the Ministry of Environment, Forests and Climate Change.
33. We accordingly disposed of the present Original Application with a direction to the Respondent No.5, Ministry of Environment, Forests and Climate Change, New Delhi, to take a decision in the matter in the light of the observations made hereinabove and its show cause notice dated 14.11.2023, after giving the Respondent No.9 Unit an opportunity of submitting its response to the said show cause notice, in accordance with law preferably within a period of two months. Question of liability of the Respondent No.9 Unit for payment of Environmental Compensation for damage caused to the environment will be subject to final order passed by the Ministry of Environment, Forests and Climate Change.
34. The Hon'ble Supreme Court in (2001) 6 SCC 496; (Hinch Lal Tiwari vs. Kamala Devi & Ors.), has held as under:-
"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is failing in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is 17 the best protection against knavish attempts to seek allotment in non- abadi sites.
14. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2- 1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass-root level if they were to become the nation's pride."
35. We, therefore, direct the District Administration i.e., Collector, Jharsuguda, to take immediate measures to restore the Pond No.2 to its original form as a body of water within three months and file affidavit of compliance by 31.07.2024.
36. I.As. if any, stand disposed of accordingly.
37. There shall be no order as to costs.
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B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM April 09, 2024, Original Application No.42/2023/EZ AK 18