National Green Tribunal
Debashis Das vs State Of Jharkhand on 16 September, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 50/2021/EZ
IN THE MATTER OF:
Debashis Das,
S/o Late Tarini Das,
R/o Vivekananda Sarani, Rail Vihar Colony,
Asansol, District-Paschim Bardhaman,
Pin - 713325,
....Applicant(s)
Versus
1. State of Jharkhand,
Through Secretary,
Department of Industries, Mines and Geology,
Project Building, Dhurwa, Kanke Road, Ranchi,
Pin - 834004,
2. The Deputy Director, Mines, Dumka,
New Collectorate Building, Dumka,
Pin - 814101,
3. The Jharkhand Pollution Control Board,
Through Member Secretary,
HEC Dhurwa, Ranchi, Jharkhand,
Pin - 834004,
4. The Central Pollution Control Board,
Through Member Secretary,
Paribesh Bhavan, CBD-cum-Office Complex,
East Arjun Nagar, New Delhi,
Pin - 110032,
5. The State Environment Impact Assessment Authority
(SEIAA), Jharkhand,
1
Through Member Secretary,
Nursery Complex, Near Dhurwa Bus Stand, Dhurwa, Ranchi,
Pin - 834004,
6. The District Commissioner-cum-Collector, Dumka,
New Collectorate Building, Dumka,
Pin - 814101,
7. Amar Mondal,
S/o Ram Narayan Mondal,
R/o Sojakora, Jama, District-Dumka,
Pin - 814110,
8. Ranjan Prasad,
S/o Sakaldeb Prasad,
Sastrinagar, Post Office and Police Station-Bank More,
District - Dhanbad,
9. Vindyabashini Commercial Service Private Limited,
A company incorporated under Companies Act,
Through Mr. Tej Prasad Singh, Director,
S/o Sri Shiva Pujan Singh,
R/o Village-Dhirendrapuram, Near Rani Bandh Talab,
Dhoua, Kalyanpur, Dhanbad,
Pin - 826004,
10. Mr. Atul Ranjan Bhagat,
Circle Officer, Revenue Department, Raneswar,
Dumka, Jharkhand,
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Somnath Roy Chowdhury, Advocate
COUNSEL FOR RESPONDENTS :
Ms. Aishwarya Rajyashree, Advocate for R-1, 2 & 6,
Mr. Surendra Kumar, Advocate for R-3,
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Mr. Dipanjan Ghosh, Advocate for R-4,
Mr. Ashok Prasad, Advocate for R-5,
Mr. Kallol Basu, Advocate a/w Mr. Nilanjan Pal, Advocate and
Mr. Shadab Bin Haque, Advocate for R-10
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- September 08th, 2022 Pronounce On:- September 16th, 2022 __________________________________________________________________
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 parties and perused the documents on record.
2. The allegation in the present Original Application is that the Respondent No. 7, Private Respondent, and some other persons are carrying out illegal sand mining in the Mayurakshi River in District Dumka, Jharkhand, as well as in the sand ghats situated within Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneswar area, P. S. - Raneswar, District Dumka, Jharkhand.
3. The allegation further is that the sand mining is being carried out with the use of machines etc. and without obtaining 'Environmental Clearance' and 'Consent to Operate'. The allegations have been outlined in paragraph 8 of the Original Application which reads as under:-
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"The sand miners are illegally extracting sand from the sand Ghats/sand plots situated within Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneswar area, Police Station-Raneswar, District Dumka, in the State of Jharkhand despite of not having any mining lease in respect of the said sand Ghats.
The sand miners are continuing the unauthorized mining activity from the aforementioned sand Ghats/situated within Sukhjora gram Panchayat and Govindpur Gram panchayat in Raneswar area, Police Station-Raneswar, District Dumka, in the State of Jharkhand without having any Environmental Clearance (EC, in short) from the competent authority upon compliance of necessary formalities prescribed under the EIA Notification 2006 (as amended up-to-date).
Indiscriminate and unscientific mining activity in violation to the condition prescribed under sustainable Sand Mining Management Guideline, 2016 is obstructing the free flow of the stream of the river.
The said wrongdoers are carrying on their illegal activities of extracting sand at the sand Ghats/sand plots situated within Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneswar area, Police Station-Raneswar, District Dumka, in the State of Jharkhand by using machineries like excavator, pokelane, etc. The said wrongdoers are carrying on their illegal activities of extracting sand at the sand Ghats/plots situated within Sukhjora Gram Panchayat and Govindpur Gram 4 Panchayat in Raneswar area, Police Station-Raneswar, District Dumka, in the State of Jharkhand, beyond the limit as permissible under Sustainable Sand Mining Management Guideline, 2016 and /or under the laws of the land relating to environment.
The unscrupulous sand miners are carrying on their illegal activities of extracting sand at the sand Ghats/sand plots situated within Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneswar area, Police Station-
Raneswar, District Dumka, in the State of Jharkhand, close to embankment in as much as in violation to the prohibition of extracting sand by maintaining the buffer of safety zone (which is usually 1/5th of the width of the river) and thereby causing gross damage of the embankment of the said river. The same is causing serious threat of erosion and breach of the embankment.
Illegal plying of the overloaded vehicles transporting the illegally extracted sand from the aforementioned sand Ghats/sand plots situated within Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneswar area, Police Station-Raneswar, District Dumka, in the State of Jharkhand causing threat of the life of the resident of the densely populated village in the vicinity. The unscrupulous sand miners are carrying on their illegal activities of extracting sand at the sand Ghats/sand plots situated within Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneswar area, Police Station- Raneswar, District Dumka, in the State of Jharkhand even 5 in the ongoing monsoon which stared from 10th June and shall continue till 15th October, (each year) according to Sustainable Sand Mining management Guideline, 2016. The said wrongdoers never paid any royalty for extracting sand from the sand ghats situated within Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneswar area, Police Station-Raneswar, District Dumka, in the State of Jharkhand.
The unscrupulous sand miners are carrying on their illegal activities of extracting sand from the sand plots situated within Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneswar area, Police Station-Raneswar, District Dumka, in the State of Jharkhand herein above without adopting any safety measure to control the air pollution and for dust management as required under Sustainable Sand Mining Guideline, 2016.
The unscrupulous sand miners are carrying on their illegal activities of extracting sand from the said sand plots situated within Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneswar area, Police Station- Raneswar, District Dumka, in the State of Jharkhand, even without heeding to obtain any consent under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974."
4. At the time of admission, the Tribunal also constituted a Committee comprising of the following Members:-
(i) The CPCB, Regional Office, Kolkata, 6 (ii) The Chairman/Member Secretary, SEIAA, Jharkhand, (iii) The Chairman/Member Secretary, Jharkhand State Pollution Control Board, and (iv) District Magistrate, Dumka, Jharkhand
5. The Committee was required to carry out a surprise inspection of the site in question and submit its detailed report on the allegations as pointed out by the Applicant in the Original Application.
6. Para-wise reply affidavit dated 06.08.2021 has been filed on behalf of the Respondent No.4, Central Pollution Control Board.
7. Counter-affidavit dated 27.08.2021 has been filed on behalf of the Respondent No.3, Jharkhand State Pollution Control Board.
8. Along with the affidavit of the Jharkhand State Pollution Control Board, an Inspection Report of an inspection carried out on 20-21.08.2021 by the Committee, has been filed which confirms that illegal mining was going on with the use of vehicles since tyre marks were reported to have been seen and sand pile had also been noted. The report further mentions that there is no Environmental Clearance and Consent to Operate and yet neither Environmental Compensation nor Penalty has been computed nor restoration measures undertaken. The Inspection Report is extracted herein below:-
"Site Inspection Report of Sand Ghats situated in Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneshwar Area, Police Station-7
Raneshwar, Dist.-Dumka, in the State of Jharkhand in light of the Hon'ble NGT, EZB, Kolkata order dated 24/06/2021 in O.A. No.50/2021/EZ in the matter of Debashis Das Vs. State of Jharkhand & Ors.
In light of the Hon'ble NGT, EZB, Kolkata order dated 24/06/2021 in O.A. No.50/2021/EZ in the matter of Debashis Das Vs. State of Jharkhand and Ors., the Sand Ghats situated in Sukhjora Gram Panchayat and Govindpur Gram Panchayat in Raneshwar Area, Police Station-Raneshwar, Dist.-Dumka, in the State of Jharkhand was inspected on 20-21/08/2021 by the committee constituted by the Hon'ble NGT, EZB, Kolkata in he said matter. The Committee consisted of Sri Yatindra Kumar Das, Member Secretary, Jharkhand State Pollution Control Board; Sri A.T. Mishra, Member Secretary, State Level Environment Impact Assessment Authority, Jharkhand; Sri Toufic Aslam, Scientist-B, CPCB Regional Directorate, Kolkata and Sri Atul Ranjan Bhagat, Circle Officer, Raneshwar, Dumka (Representative of the District Magistrate, Dumka, Jharkhand) in the presence of some local people of the nearby area. Moreover, the learned advocate of the Applicant (Sri Debashis Das) was intimated about the site visit schedule but neither Sri Debashis Das nor his representative came to assist the committee for site visit. So, the committee conducted the site visit without the Applicant.
During Inspection the following observations were found at Mouza-Diguli, Govindpur Gram Panchayat:-
1) The area in question lies at the Latitude 23059'22.88"
Nand Longitude 87026'36.84"E.
2) As per the report of the Circle Officer, Raneshwar there is a huge deposit of sand measuring an area of 259 Bighas 14 Katha (34.74 Hectare approx). The trace map of the 8 area as provided by the Circle Officer is enclosed as Annexure-I.
3) During inspection fresh marks of wheels of various vehicles and marks of used equipments were found at the site (sand ghat). These marks appeared to be very recent (either of morning hours or of late-night hours of the day before). From these marks it appears that sand mining is going on using vehicles/equipments such as tractors, pockleins, trucks, hyva, loader etc.
4) There was a haul road (approach road) connecting the metalled road to the sand Ghat. Fresh wheel marks were found on the haul road.
5) That, at present Environmental clearance has not been accorded to nay of the sand ghat in the Govindpur Gram Panchayat from the Competent Authority as per the Environment Impact Assessment Notification, 2006, as amended.
6) That, at present no Consent to Operate has been issued to any of the sand ghat in the Govindpur Gram Panchayat, Raneshwar Area, Police Station-Raneshwar, Dist.-Dumka, in the State of Jharkhand from the Competent Authority as per the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.
7) During the inspection it was observed that there is huge accumulation of sand due to indiscriminate and unscientific mining at the bank of the river Mayurakshi.
8) The Circle Officer, Raneshwar has provided a copy of FIR lodged by Sri Dilip Kumar Tanti, District Mining Officer, Dumka vide his letter No.01/camp, Raneshwar dated 26/06/2021 in which he has mentioned that a VOLVO EC 2100model Pocklein machine has been seized. (The copy of the FIR lodged by Sri Dilip Kumar Tanti, District Mining 9 Officer, Dumka vide his letter No.01/camp, Raneshwar dated 26/06/2021 is attached as Annexure-II) During Inspection the following observations were found at Mouza-Ektalla, Sukhjora Gram Panchayat:-
1) The area in question at the Latitude 2400'21.14" Longitude 87025'45.99"E.
2) As per the report of the Circle Officer, Raneshwar there is a deposit of sand measuring an area of 87 Bigha 15 Katha and 16 Dhur (11.74 Hectares approx). The trace map of the area as provided by the Circle Officer is enclosed as Annexure-I.
3) There were no marks of the wheel found at the site (sand ghat) but at the sand ghats damaged pathway and sand deposit were seen. It appears that sand mining was done few months back. When enquired, the local people said that the mining activities were carried out 2-3 months back.
4) There was a haul road connecting the metalled road to the sand Ghat. No wheel marks were found on the haul road.
5) That, at present Environmental clearance has not been accorded to any of the sand ghat in the Sukhjora Gram Panchayat, Raneshwar Area, Police Station-Raneshwar, Dist.-Dumka, in the State of Jharkhand from the Competent Authority as per the Environmental Impact Assessment Notification, 2006, as amended.
6) That, at present no Consent to Operate has been issued to any of the sand ghat in the Sukhjora Gram Panchayat, Raneshwar Area, Police Station-Raneshwar, Dist.-Dumka, in the State of Jharkhand from the Competent Authority as per the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.10
7) During the inspection it was observed that there is accumulation of sand due to indiscriminate and unscientific mining at the bank of the river Mayurakshi."
9. The Tribunal also wanted to know what action has been taken by the State Respondents, Govt. of Jharkhand, against the two identified persons carrying out illegal mining, namely, Tohid Alam @ Mansur Alam and Kamal Khan, who were stated to be the accused persons named in the Case No. 8/2022.
10. The Deputy Commissioner-cum-District Magistrate, Dumka, Respondent No.6, in his affidavit dated 16.04.2022 has stated that Sukhjora and Govindpur Panchayats of Dumka District are adjacent to West Bengal border and in the recent past it has been observed that some people of West Bengal are involved in illegal sand mining in the area in question and under the orders of the Deputy Commissioner-cum-District Magistrate, Dumka, an Enquiry Committee headed by the Additional Collector, Dumka, including other officers has been constituted and an enquiry for the sand ghats of Sukhjora and Govindpur Panchayats has been made on 17.01.2022. The report of the enquiry has been filed as Annexure-D which confirms that illegal sand mining has been going on in the Mayurakshi River by persons from across the border, namely, West Bengal, and steps be taken to check illegal sand mining.
11. So far as Raneswar Block in question is concerned, it is stated that since 2019 no sand ghat lease or auction has been granted in the Raneswar Block of Dumka District till date. 11
12. An additional affidavit in reply dated 21.05.2022 has been filed on behalf of the Deputy Commissioner-cum-District Magistrate, Dumka, Respondent No.6, stating therein that during enquiry it was found that one Tohid Alam @ Mansur Alam, S/o Kasim Miyan of Village-Sonaterpara, Post & P.S. - Suri, District Birbhum, (W.B.), and one Kamal Khan, S/o Basrat Ali of Village- Talband, Post-N. Jagatpur, P. S. - Md. Bazar, District-Birbhum, (W.B.), were found engaged in illegal sand mining in the area of Nawrangi and Ragdih sand ghats of Mayurakshi River and an FIR bearing Raneswar Police Station No. 8/2022, under Section 379 of Indian Penal Code and under 4/54 of Jharkhand Minor Minerals Concession Rules, 2004, has been registered against them. It is also stated that out of these two persons, Tohid Alam @ Mansur Alam has been arrested and the other person is likely to be apprehended very soon as informed by the Superintendent of Police (SP), Dumka, vide his letter dated 17.05.2022. It is also stated that the Mining Department, Dumka, has issued a demand notice being letter No. 625/m dated 02.05.2022, directing Tohid Alam @ Mansur Alam @ Mansur Mian and Kamal Khan to deposit a sum of Rs. 52,50,000/- (Rupees Fifty Two Lakhs Fifty Thousand only) for the cost/royalty of 7,00,000 square feet sand illegally extracted by them from the sand ghat of Ragdih Mouza and double of it as penalty of Rs. 52,50,000/- (Rupees Fifty Two Lakhs Fifty Thousand only), total Rs. 1,05,00,000/- (Rupees One Crore Five Lakhs only) within a week otherwise a certificate case will be filed against them. It is also stated that a reminder demand notice vide Memo No. 664/m dated 12 09.05.2022 has also been issued against Tohid Alam and Kamal Khan to deposit the amount of Rs. 1,05,00,000/- (Rupees One Crore Five Lakhs only). It is further stated that since the two accused persons had failed to deposit the amount of royalty/penalty, a recovery case has been filed against them under the provisions of Section 4 and 6 of Bihar and Odisa Public Demand Recovery Act, 1914 vide letter dated 18.05.2022.
13. The Jharkhand State Pollution Control Board, Respondent No.3, in its affidavit dated 25.05.2022, has reiterated the same facts and in addition, it is stated that interim Environmental Compensation has been calculated as per the Central Pollution Control Board's guidelines by treating the period of illegal sand mining to be 500 days as the operational number of days and the Environmental Compensation amounts to Rs. 78,12,500/- (Rupees Seventy Eight Lakhs Twelve Thousand Five Hundred only). The computation/calculation of Environmental Compensation has been given in Annexure-III to the affidavit which reads as under:- 13
14. It is also stated that for recovery of Environmental Compensation amount, notices dated 19.07.2022 have been issued to each of the accused illegal miners, namely, Tohid Alam @ Mansur Alam @ Mansur Mian and Kamal Khan, directing them to deposit the sum of Rs. 39,06,250/- (Rupees Thirty Nine Lakhs Six Thousand Two Hundred Fifty only) each.
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15. On behalf of the State Respondents, Govt. of Jharkhand, affidavit dated 26.07.2022 has been filed by the Chief Secretary, stating therein that Raneswar Anchal Sukhjoria and Govindpur Panchayats, lie beside Mayurakshi River where illegal mining of sand took place in Khata No. 24, Plot No. 410. An enquiry was held and measurements were taken which comes to 700 meters length, 200 meters breadth and 5 meters depth, and during enquiry it was found that 7,00,000 cubic feet of sand had been illegally extracted and disposed of and, therefore, in terms of the provisions of Rule 54(8) of Jharkhand Minor Minerals Concession Rules, 2004, twice the value of the mineral was calculated amounting to Rs. 1,05,00,000/- (Rupees One Crore Five Lakhs only) against the accused persons, namely, Tohid Alam and Kamal Khan. It is also stated that an FIR case has been instituted being Raneswar Police Station Case No. 08/2022 under Section 379 Indian Penal Code and 4/54 of Jharkhand Minor Minerals Concession Rules, 2004 against both the accused persons. It is stated that in Govindpur Panchayat also measurements were taken and it was found that 22,500 cubic feet of sand had been illegally lifted by Kamal Khan and accordingly a demand of Rs. 3,37,500/- (Rupees Three Lakhs Thirty Seven Thousand Five Hundred only) was raised after issuance of notice to Kamal Khan on 16.06.2022 followed by a reminder dated 15.07.2022. It is, however, stated that the said amount has not been deposited/paid by Kamal Khan, and, therefore, a Certificate Case will be instituted against him. 15
16. In the affidavit, it is also stated that after institution of the FIR, the matter was taken up at the level of the Deputy Commissioner and Superintendent of Police and thereafter the Officer-in-Charge of the concerned Police Station arrested Tohid Khan who is now in judicial custody but so far as Kamal Khan is concerned, while steps have been taken for his arrest but in the meantime he has moved the Hon'ble Jharkhand High Court in A.B.A. No. 4612 of 2022 and Hon'ble High Court has been pleased to grant him interim protection against arrest and the matter is pending before the Hon'ble High Court.
17. However, in the meantime, the Police has submitted Charge- Sheet (Final Form) against the accused Kamal Khan on 30.06.2022 and recording this fact the Hon'ble High Court has passed order dated 21.07.2022 observing that final form has been submitted and there is no apprehension of arrest and the anticipatory bail application has become infructuous and is disposed of as not maintainable. The order of the Hon'ble High Court dated 21.07.2022 passed in A.B.A. No. 4612 of 2022 reads as under:-
"Oral Order 05/Dated: 21.07.2022 A supplementary affidavit has been filed on behalf of the petitioner stating therein that final form has been submitted.
In this view of the matter, there is no apprehension of arrest and as such anticipatory bail application has become infructuous and is disposed of as being not maintainable."16
18. In this view of the matter, we find no impediment now for the Government to take action against the alleged accused Kamal Khan and the Government should, therefore, proceed to take steps in accordance with law against the said Kamal Khan.
19. It is also stated that since the amount of Rs. 1,05,00,000/- (Rupees One Crore Five Lakhs only) has not been paid by Tohid Alam and Kamal Khan, therefore, the District Mining Officer made a request before the Certificate Court for institution of a case for recovery of the said amount and the Certificate Court has now registered a Certificate Case No. 02/2022-23 and is proceeding with the matter in accordance with law.
20. In the affidavit, it is also stated that after the order of the Tribunal dated 30.05.2022, the area has again been measured and after measurement, the Circle Officer vide his letter dated 15.07.2022 has submitted a report clarifying that Tohid Khan has raised 5,40,000 cubic feet of sand and Kamal Khan has raised 1,60,000 cubic feet of sand and accordingly Tohid Khan is liable to make payment of Rs. 81,00,000/- (Rupees Eighty One Lakhs only) and Kamal Khan is liable to make payment of Rs. 24,00,000/- (Rupees Twenty Four Lakhs only) respectively. It is further stated that for the Govindpur Panchayat, a separate demand has been raised for an amount of Rs. 3,37,500/- (Rupees Three Lakhs Thirty Seven Thousand Five Hundred only) for alleged illegal mining of 22,500 cubic feet of sand against Kamal Khan and in case the said 17 amount is not paid, steps will be taken for registration of certificate recovery case against him.
21. In this view of the matter, we find that nothing further remains for adjudication in the present Original Application except to direct the State Respondents, Government of Jharkhand, to ensure that the certificate case for recovery of the public demands against Tohid Khan and Kamal Khan for illegal sand mining is carried out to its logical conclusion and in case royalty for Govindpur Panahchayat where a demand amount of Rs. 3,37,500/- (Rupees Three Lakhs Thirty Seven Thousand Five Hundred only) has been raised against the said Kamal Khan is not paid within fifteen days, the State Respondents shall take steps for filing Certificate Case for recovery of public dues against Kamal Khan within one week thereafter and prosecute the Certificate Case to its logical conclusion.
22. The District Magistrate, Dumka, shall ensure that no illegal sand mining takes place in District Dumka. He is also directed to install CCTV cameras at strategic points to check vehicular movement carrying sand, ensure installation of GPS in vehicles carrying sand and also ensure frequent checking by monitoring team.
23. With the aforesaid directions, the Original Application is disposed of.
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24. There shall be no order as to costs.
....................................... B. AMIT STHALEKAR, JM ......................................... SAIBAL DASGUPTA, EM Kolkata, September 16th, 2022, Original Application No.50/2021/EZ AK 19