National Green Tribunal
Ajay Bhonsle vs Ministry Of Environment And Forest ... on 25 September, 2024
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[Through Physical Hearing (with Hybrid Option)]
APPEAL NO.58 OF 2015 (WZ)
1. Mr. Ajay Shivajirao Bhonsle,
Khashewadi, Tiroda,
Tal. Sawantwadi,
District Sindhudurg.
Maharashtra
.... Appellant
Versus
1. The Ministry of Environment & Forests,
Through its Principal Secretary,
Government of India,
Indira Paryavaran Bhavan,
Vayu Wing, 3rd Floor,
Aliganj, Jor Bagh,
New Delhi - 110 003.
2. Maharashtra Pollution Control Board,
Through Secretary
Kalpataru Point, 3rd & 4th Floor,
Sion Matunga Scheme,
Road No.8,
Opp. Cine Planet Cinema,
Near Sion Circle, Sion (E),
Mumbai - 400 022.
3. The District Collector,
Sindhudurg,
Sindhunagari, Oras,
Maharashtra.
4. M/s. Gogte Minerals,
Through its Director
146, Tilak Wadi,
Belgaum - 560 006
Karnataka.
5. M/s Infrastructure Logistics
Private Limited,
Through its Director
Cidade De Goa,
Vainguinim Beach, Donapaula,
Goa - 403 004.
....Respondents
APPEARANCE :
Appellant : Shri Nikhil Nayyar, Senior Advocate along-with
Mr. Sangramsingh R. Bhonsle, Advocate and
Appeal No.58 OF 2015 (WZ) Page 1 of 26
Ms. Aarti Bhonsle, Ms. Samridhi S. Jain,
Harshada Shrikhande, Mr. TVS Raghvendra S.
Mr. Siddharth A. Mehta, Mr. Nrupal A. Dingarkar,
Ms. Pushkara A. Bhonsle and
Mr. Naman Sreshtra, Advocates
Respondents : Mr. Rahul Garg, Advocate for R-1/MoEF&CC
Mr. Yashraj Singh Deora, Senior Advocate along-with
Mr. Shivshankar Swaminathan, Advocate and
Ms. Seema Shirodkar, Advocate for R-4
CORAM : HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
=================================================================
Reserved on : 13.09.2024
Pronounced on : 25.09.2024
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JUDGMENT
1. This Appeal has been filed against the order dated 02.09.2015 passed by respondent No.1 - Ministry of Environment, Forest and Climate Change (MOEF&CC) which is annexed as annexure A-1 to the following effect:
"A show cause notice was issued to the Project on 11.05.2015, under Section 5 of EPA and Regional Office, Bhopal was requested for site report about status and compliance report.
2. In reply to the show cause notice PP submitted its reply dated 17.06.2015 stating that dumping outside the lease area was know to MOEF&CC since the beginning. The mining plan of the Project approved by IBM, specifically mentions and marks the area where external dump would be maintained. The Project Proponent, prior to maintaining the said dump, also took permission from the District Mining Officer Sindhudurg which was granted on 12.03.2010. Apart from the information being provided to MOEF in the six monthly reports of compliance, MOEF was also made aware about maintaining of the said dump when the Project Proponent filed its reply to SLP (C) 7348 of 2011 in which MOEF was also a party. The E.C. dated 31.12.2008 and more specifically, specific conditions No. (xvii) and (xix) provides for the measure of protection of walls and trenches / garland drains was to be undertaken with reference to the dumps.Appeal No.58 OF 2015 (WZ) Page 2 of 26
(xvii) Measures for prevention and control of soil erosion and management of silt shall be undertaken. Protection of dumps against erosion shall be carried out with geo textile matting and other suitable material and thick plantations of native trees and shrubs shall be carried out at the dump slopes. Dumps shall be protected by retaining walls.
(xix) Trenches/ garland drains shall be constructed at foot of dumps and coco filters installed as regular intervals to arrest silt from being carried to water bodies .......... De-silting at regular intervals shall be carried out.
3. The Project Proponent, therefore, understood the E.C. condition no (xxvii) as having provided permission to maintain dumps at identified sites, which site as stated has been identified in the mining plan. The Project Proponent has submitted that they also informed the EAC constituted for considering the revival of the E.C. about maintaining of the dump outside the lease area.
4. The Regional Office, Bhopal has also submitted its site visit and compliance report vide letter dated 08.07.2015. An additional representation from Shri Ajay Shivajirao Bhonsle has been received mentioning that he has observed illegal dumping at Sy. No. 188 of Village Ajgaon at Sawantwadi Taluka, Sindhudurga, Maharashtra.
5. A personal hearing to the PP was given on 10.08.2015 after considering the submissions of the lessee, it was opined that even though the lessee has continued it‟s operations of maintaining dumps outside the mining lease area based on it's bona fide impressions, however, pursuant to the Hon‟ble Supreme Court declaring the law in Goa Foundation Vs. Union of India Writ Petition No.435 of 2012, a separate Environmental Clearance would be required for the purpose of dumping material waste outside the mining lease area without seeking clearance from the Ministry to undertake such a process.
6. The mine lessee accordingly sought time to consider the suggestion of Ministry and the matter was fixed for further hearing on 21.08.2015. On the said date the mine lessee has informed the Ministry that the lessee has already suspended dumping operations outside the mine lease since April 2015 and that it would not resume the said dump operations outside the lease area. Further lessee has also informed that in the future the Appeal No.58 OF 2015 (WZ) Page 3 of 26 Ministry before undertaking maintaining of over burden dumps outside the mining lease area.
7. Keeping in view the facts and circumstances of the case, the lessee shall be bound to its undertaking and it should not undertake any further dumping outside lease area of over burden/ waste unless prior permission is sought and obtained from MOEF"
2. Further, it is prayed that direction may be issued to respondent No.1 -
MoEF to take action against respondent No.4 - M/s. Gogte Minerals for illegal dumping in Survey No. 177/1 and Sy No. 188 Village Ajagaan, Taluka Sawantwadi, District Sindhudurg.
3. In brief the facts of the appeal are as follows:
4. This Appeal has been filed under Section 16(g) of the National Green Tribunal Act, 2010 (NGT Act, 2010) read with Section 5-A of the Environment Protection Act, 1986 (EP Act, 1986). The appellant is permanent resident of Khashewadi, Tiroda, Tal. Sawantwadi, District Sindhudurg, Maharashtra, and is aggrieved by the mining activity being carried out by respondent No.4 - M/s Gogte Minerals and 5 - M/s Infrastructure Logistics, including the activity of dumping of the overburden / waste outside the mining lease area, for which respondent No.4 admittedly did not have any prior EC as envisaged by the Judgment of Hon‟ble Apex Court in Goa Foundation Vs Union of India and Ors (2014) 6 SCC 590. The appellant had initially made representations to respondent No.1 - MOEF, against the illegal dumping in terms of the Hon‟ble Supreme Court Judgment but no action was taken, hence he had to move the present application. During the pendency of the proceedings, respondent No.1 issued a show cause notice dated 11.05.2015, (which does not appear to be on record) which culminated in passing of an impugned order dated 02.09.2015. On 03.09.2015, when the MOEF reported its decision dated 02.09.2015, this Tribunal was pleased to grant liberty to the appellant to file the present appeal challenging the order dated 02.09.2015, copy of which is Appeal No.58 OF 2015 (WZ) Page 4 of 26 annexed as Annexure A-2 at page 39 of the paper book. For the sake of convenience that order is produced below:
"Heard learned Counsel for the parties.
The MoEF has passed an order dated 2nd September, 2015 which is placed on record (Marked as „X‟). In view of the Order passed by the MoEF, Learned Counsel for the applicant seeks leave to withdraw the application with liberty to file appropriate proceedings as may be permissible under the law. Allowed to withdraw the application with liberty as sought. The application is disposed of notwithstanding objection of learned counsel for the project proponent that the liberty should not be granted because of the fact that the application is barred by limitation and principle of constructive res-judicata, and ought to be dismissed in limine. All issues are kept open, if any further proceedings/ appeal will be filed."
5. The appellant has been raising strong objections against the mining activities right from the start of the public hearing under the EIA Notification till date, which was illegally started even before complying with the conditions as contained under the EC.
6. Respondent No.4 was granted mining lease rights vide order dated 06.11.1971 by the Industry and Labour Department. Sachivalay, Bombay, Government of Maharashtra to carry out mining operations for a period of 20 years at Village Tiroda, Taluka Sawantwadi, District Sindhudurg (then Ratnagiri) at Survey Nos. 22, 20, 27, 33, 38, 39, total admeasuring 34.81 Ha. Thereafter, this mining lease was renewed on 04.04.2000, and the same was executed on 27.09.2001 for a period of 10 years. Respondent No.4 further requested for the renewal on 06.03.2009 but whether the same is renewed or not, the appellant has no knowledge about the same.
7. On 31.12.2008, MoEF&CC - respondent No.1 granted EC to respondent No.4 wherein it was recorded that respondent No.4 had to carry out mining activity on 12.16 ha only out of the total area of 34.4812ha, while an area of 5.98 ha was to be kept for waste dump, 0.02 ha for infrastructure, 1.08 ha for roads, 10.50 ha for green belts and 2 ha for other engineering structures such Appeal No.58 OF 2015 (WZ) Page 5 of 26 as settling ponds and 2.6412 ha was to be remain unutilized. Thus, it was made clear that respondent No.4 was accorded permission to use a 5.98 ha area only for the purpose of waste dump which was within the lease area of 34.4812 ha on the above-mentioned survey number. It is evident that as per EC there was no permission for using any plot of land outside the lease area for dumping overburden/waste. The Condition No. (xxvii) of the specific conditions stipulated that the overburden/waste was to be stacked at the earmarked dump site only which meant that the project proponent could not expand beyond 5.98ha as far as dumping of waste/overburden was concerned. A copy of the said EC is annexed as Annexure A-3 at pages 40-47 of the paper book.
8. The appellant after inspecting the file, came across letter dated 12.03.2010, which the District Mining Officer, Sindhudurg had sent to the Tahasildar Sindhudurg informing that respondent No.4 was stacking the overburden and rejection at survey No. 177/1 at Village Ajagaon, Tal:
Sawantwadi, District Sindhudurg which is 3 kilometers away from the lease area. A copy of the said letter is annexed as Annexure A-4. The said letter would not amount to granting permission to the project proponent to dump outside the lease area nor is the appellant aware whether any royalty was paid on that.
9. The appellant has challenged the EC dated 31.12.2008 before the Principal Bench of this Tribunal in appeal No.02/2011, which was disposed of vide its Judgment dated 12.09.2011 with certain directions and which kept the EC dated 31.12.2008 in abeyance. Subsequently, respondent No.1 passed an order dated 27.05.2013, reviving the EC dated 31.12.2008 for the project in question, which is annexed as annexure A-6 at page 50-51 of the paper book.
10. The appellant, along with Gram Panchayat, Village Tiroda challenged the revival order dated 27.05.2013 and EC dated 31.12.2008 vide Appeal No.02 of 2013 before this Tribunal, which was dismissed vide its Judgment Appeal No.58 OF 2015 (WZ) Page 6 of 26 dated 25.11.2013 on the ground of limitation. Being aggrieved by the said Judgment, the appellant along with Gram Panchayat filed an appeal before the Hon‟ble Supreme Court of India vide Civil Appeal No.10843 of 2013 which is still pending.
11. The appellant thereafter filed an application under Section 14 of the NGT Act, 2010, being MA No.26/2013 (later on renumbered as Application No.56/2014) challenging the non-compliance of the conditions by respondent No.4 of the EC dated 31.12.2008 which was adjourned sine-die by this Tribunal awaiting the decision in Civil Appeal No.10843/2013 before the Hon‟ble Supreme Court.
12. In the meantime the Hon‟ble Apex Court delivered Judgment in Goa Foundation vs. Union of India and Ors (2014) 6 SCC 590 which is laid down as below:
"a. Under Section 4 of the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules made thereunder, a project proponent is only entitled to carry on mining operations in accordance with the terms of the lease in the leased area only.
b. That a holder of a mining lease does not have any right to dump any reject, tailing or waste in any area outside the leased area of the mining lease on the strength of the mining leases granted under the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules made there under.
c. Dumping of any waste material, tailings and rejects outside the leased area would be without a valid authorization under the lease deed. d. The activity of dumping mineral waste will come within the meaning of "activity of mining" as included in Schedule to the Notification issued under sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986.
e. Therefore, for dumping of mineral waste on a private land, a prior environment clearance of the Central Government under sub-rule (3) of Rule 5 of the Rule 5 of the Environment (Protection) Rules, 1986 would be necessary."
A copy of the Judgment is annexed as Annexure A-7.
13. The law laid down by the Hon‟ble Apex Court cited above, clearly states that the Project Proponent could not have dumped overburden/waste outside Appeal No.58 OF 2015 (WZ) Page 7 of 26 the mining lease area without prior EC but respondent No.4 continued to dump even without applying for such a clearance let alone, obtaining the EC.
14. The appellant filed a detailed representation dated 03.01.2015 to respondent No.1- MOEF&CC drawing attention to this violation and seeking immediate action but no action was taken, hence he has approached this Tribunal.
15. During the matter being pending before the Tribunal, Tribunal vide order dated 13.02.2015 directed the District Mining Officer, Sindhudurg to visit the site and examine the dumping site and its distance from mining lease area, which was conducted on 11.03.2015 and 12.03.2015, and a report was submitted on 18.03.2015 which clearly establishes that the project proponent was dumping the overburden/waste outside the mining lease area and that the said dump had reached a height of 24.617 mtrs. and affidavit to that effect is also filed as Annexure A-8 of the District Mining Officer.
16. On 12.03.2015, after the inspection was completed by the District Mining Officer along with the representatives of the appellant, while returning, came across another dump location at survey No.188, Village Ajgaon, Taluka Sawantwadi, on the right-hand side of the road. The appellant made enquiry about the same that said dumping was being done at the behest of M/s Gogte Minerals for their mine located at Village Tiroda.
17. Respondent No.1 - MOEF&CC, filed an affidavit dated 27.05.2015 before this Tribunal, where, for the first time it was intimated that a show cause notice dated 11.05.2015 was issued, calling upon the project proponent to show cause as to why a closure order should not be issued in view of the violation pointed out by the appellant in his application No. 14 of 2015(WZ). The appellant after coming to know about the show cause notice dated 11.05.2015 submitted another representation, both in respect of survey No.177/1 Ajgaon Village for which show cause notice was issued dated 11.05.2015 as well as in respect of Survey No.188 Ajgaon Village, which makes it clear that respondent No.1 was made aware of both illegal dumping Appeal No.58 OF 2015 (WZ) Page 8 of 26 sites being used by the project proponent. The pleading reveals that there were several representations made by the appellant to respondent No.1 regarding this illegal dumping done by respondent No.4, and lastly on 03.09.2015, respondent No.1 informed this Tribunal that it had passed the order dated 02.09.2015, which is impugned under Section 5 of the EP Act, 1986, against which an appeal would lie, on which this Tribunal permitted the appellant to withdraw this application and granted liberty to file appropriate proceedings.
18. On perusal of the impugned order passed by respondent No.1 - MOEF&CC, it would appear that without assigning any reason, MOEF&CC has opined that the dumping done by the Project Proponent was under "bona fide impressions" and held that no further dumping could be done without obtaining EC. The impugned order further records that an undertaking by the project proponent was given, that the PP will not undertake dumping outside the mining lease area. In the light of the undertaking, respondent No.1 held that the PP shall be bound by its undertaking in future. Thus, it is clear that without passing a speaking order, respondent No.1 condoned the illegal act of respondent No.4-PP and regularized the illegal dumping and disposed of the enquiry proceeding.
19. It is further mentioned that the Respondent No.4 -PP had filed the reply dated 17.06.2015 wherein it had sought a plea stating that the dumping done was under the bona fide impression and that it had the permission to do so by competent authorities. In support of this contention, PP relied on the following documents:
a. Mining Plan approved by IBM.
b. Letter dated 12.03.2010.
c. Factum of dumping mentioned in previous litigations.
But, respondent No.1 failed to appreciate the fact that none of the documents relied on by the PP contained a whisper about the grant of permission, which Appeal No.58 OF 2015 (WZ) Page 9 of 26 could have given remotely any bona fide impression to the PP that it had permission to dump beyond the mining lease area.
20. The PP first opted to continue dumping at Sy No. 177/1 Ajgaon Village and when it reached its saturation, chose to dump at Sy No. 188 Ajgaon Village. Mining plan does not refer to Sy No. 188 of Ajgaon Village which is not covered by any of the documents. The mining plan annexed by the PP has no relevance. Mere approval of the mining plan would not mean approval under any other law and would be subject to the provisions of the EP Act, 1986. The PP had shown an earmarked site within the mining lease area and the survey land in question was admittedly not within the mining lease. Respondent No.1 has failed to appreciate that the PP tried to misinterpret the letter dated 12.03.2010 of the District Mining Officer as permission, when the same only records that the company is dumping at Survey No. 177/1 for which the PP has agreed to pay royalty as applicable to iron ore for the sale of such material. If the PP wanted to dump outside the lease area, it ought to have taken permission from respondent No.1. Respondent No.4 is a perpetual offender as it has previously flouted the conditions of the EC. The power of respondent No.1 under Section 5 of the EP Act, 1986 is neither supervisory nor regulatory. Respondent No.1 ignored the fact that its power under Section 5 of the Act is prohibitory and preventive with the object to prevent environmental hazards. The impugned order would reflect that it has accepted an undertaking of the PP not to dump beyond the mining lease area, and that, it has not at all addressed the issue of the environmental hazard. Under environmental law, strict liability was required to be observed and the principle of Sustainable Development needs to be adhered to in the strictest sense. After the passage of the Judgment of the Hon‟ble Supreme Court in Goa Foundation (supra), PP could not have taken the plea of bona fide impression under the law and had to obtain prior EC if it were to utilize space outside the leased area for the dumping of waste/ overburden. The impugned order amounts to regularizing the previous illegal dumping instead of passing Appeal No.58 OF 2015 (WZ) Page 10 of 26 the closure/ prohibition order. An appropriate order is required to be issued for restoration of the environment which would include putting back the dump in the earmarked site or back in pit from where it originated. That activity committed by respondent No.4 would result in environmental pollution and loss of ecological balance. The environmental pollution has neither been assessed nor any EDC amount has been calculated by the MOEF. The area where the said dump is lying is in proximity to human settlement which ought to have been considered by respondent No.1 prior to the passing of the order, hence that order should be set aside.
21. The stand taken by respondent No.4 - M/s. Gogte Minerals, vide affidavit dated 17.12.2015 is that the appeal is barred by limitation as well as res judicata and constructive res judicata, and on these preliminary objections whatever has been stated in this affidavit has already been considered by this bench at length by their order dated 18.11.2016 and it is held that this bench is not inclined to accept preliminary objection raised by respondent No.4 and thus, preliminary objections were rejected. Therefore, there is no need for us to reproduce any facts that have been mentioned with respect to these issues as the issue stands settled.
22. Rejoinder filed by the appellant to the affidavit of respondent No.4 dated 18.12.2015 also is not required to be considered by us because the same has been considered by this Bench while deciding the preliminary issues.
23. From the side of respondent No.1 - MOEF the following stand has been taken vide their reply affidavit dated 29.01.2016. It was stated that PP was granted EC on 31.12.2008 by the answering respondent and that in compliance with the order of this Tribunal dated 12.09.2011 in appeal No. 03 of 2011, the EC of the project in question was kept in abeyance vide order dated 12.09.2011. On directions of the NGT and submissions of the topographical map of the area and other information as sought by the Expert Appraisal Committee (EAC), the project was placed before the EAC meeting held on 29.08.2012 which considered it appropriate to recommend Appeal No.58 OF 2015 (WZ) Page 11 of 26 revival/grant of EC to the proposal, based on which answering respondent revived the EC on 27.05.2013 with some additional conditions, copy of which is annexed as annexure R-2. In the earlier case (14 of 2015) filed before this Tribunal the applicant alleged that the PP is illegally dumping waste at Survey No.177/1 Ajgaon Village which was said to be the failure of compliance or contravention of the EP Act, 1986. Applicant has mentioned that after inspection of records of the District Mining Officer on 05.11.2014 it was noted by him that PP has been dumping the mineral waste outside the mining lease area without any valid authorization. The EC was granted to the PP for an area of 34.4812 ha out of which mining was to be carried out in 12.16 ha, and 5.98 ha was to be kept for waste dumping, 0.02 ha for infrastructure, 1.08 ha for roads, 10.50 ha for green belt, 2.0 ha for other engineering structures and 2.6412 ha will be unutilized. No permission for dumping outside the mine lease was given. When the issue of dumping outside the mining lease was brought to the notice of this Ministry, a show cause notice dated 11.05.2015 was given to the PP as to why the closure order should not be passed under Section 5 of the EP Act, 1986, which is annexed as annexure R-3. Thereafter, PP submitted a detailed representation which is annexed as Annexure R-4. From the reply to the show cause, the fact of the maintaining of dumps outside the lease area has not been concealed. In terms of the request made by the PP and keeping in view the principles of natural justice, a hearing was provided to them. During the hearing specific pleadings were pointed out by the PP, pertaining to the disclosure of the maintaining of dumps outside the lease area. It was the case of the PP, that they were under a bona fide impression that permission had been granted to maintain the dump outside the lease area. The Ministry, after considering the entire material was of the opinion that the dumps have been maintained by the PP on the basis of its „bona fide impression‟. However, the said issue came to be settled for the first time by the Hon‟ble Supreme Court in Goa Foundation (supra), it was found that all miners in the State of Goa had been maintaining Appeal No.58 OF 2015 (WZ) Page 12 of 26 dumps outside the lease area based on the understanding that such dumps could be maintained outside the lease area. In fact, the State Government had also never objected to such dumps being maintained outside the lease area. However, the Hon‟ble Supreme Court laid down the legal position that if dumps are being maintained on private land situated outside the lease area, the same would require an EC. Accordingly after hearing the PP, though the bona fide impression of the PP could not be doubted, it was specifically put to the PP on 10.08.2015 whether it had a separate EC with regard to the dumps to be maintained outside the lease area in light of the law laid down by the Hon‟ble Supreme Court. The PP informed on 21.08.2015 that they would not maintain any dumps outside the lease area without seeking prior permission from MOEF&CC.
24. Further it is mentioned in this affidavit that it was never the intention of the PP to violate the Environmental conditions. Hence, it was deemed appropriate that no directions be issued under Section 5 of the EP Act, 1986, and accordingly, show cause notice was dropped by the impugned order.
25. Rejoinder dated 15.03.2016 has been filed by the appellant to the affidavit filed by respondent No.1 cited above, wherein it is submitted that respondent No.4 in the EIA report prepared by an Expert at its own behest has categorically earmarked the site wherein respondent No.4 intends to dump the mining waste within the mining lease area, wherein, 5.98 ha was kept for the purpose of waste dumping. Respondent No.4 has raised a specious plea before the MOEF that since the MOEF know of the dumping outside the lease area, therefore, respondent No.4 developed its bona fide belief largely on the fact that the mining plan of respondent No.4, approved by IBM, permitted respondent No.4 to dump outside the mining lease which has been admitted by respondent No.1. The mining plan approved by IBM on 12.04.2011 is subject to the provisions of the Forest (Conservation) Act, 1980, Forest Conservation Rules, 2003 and other relevant statutes, orders and guidelines as may be applicable to the lease area from time to time. The Appeal No.58 OF 2015 (WZ) Page 13 of 26 mining plan cannot override the requirements of the law. Therefore, respondent No.4 cannot raise a plea of bona fide impression and the same could not have been accepted by respondent No.1 and rest of the facts are reiterations of the facts already mentioned by the appellant in their earlier affidavit. It is also emphasized that there is no explanation forthcoming as to why respondent No.4 did not take steps to obtain EC after they came into force after the Judgment of the Hon‟ble Supreme Court and why no action was taken by respondent No.1 against respondent No.4.
26. Respondent No.4 - M/s. Gogte Minerals has filed a reply affidavit dated 15.07.2017 wherein, it is submitted that the appellant wants to substitute his views in place of that of the MOEF&CC despite the fact that MOEF&CC had applied its mind and decided not to proceed with issuing the directions in the show cause notice. For the first time, the Hon‟ble Supreme Court in Goa Foundation (supra) has laid down the position of law that overburden/ waste should not be dumped outside the newly leased area without obtaining prior EC, but the same cannot be permitted to be relied upon by the appellant to create a different scenario because, the dumping outside the lease area was considered to be legal by the mining lessees as well as authorities, who were granting such permission. In this particular matter, the answering respondent had disclosed about the maintenance of dumps outside the leased area even in its mining plan which was approved by IBM. Therefore, it was not a case of clandestine operation being undertaken by the answering respondent. The mining plan is attached at page 179 of the appeal paper book, wherein, the dumping site has clearly been identified and the answering respondent in terms of the then understanding of legal position took permission from the District Mining Officer Sindhudurg, which was granted on 12.03.2010. The factum of dumps being maintained outside the lease area was also brought to the notice of MOEF&CC in the 6 monthly compliance reports. Besides that, this position was also known to all the parties including MOEF&CC in a proceeding initiated by the appellant before Appeal No.58 OF 2015 (WZ) Page 14 of 26 the Hon‟ble Supreme Court being SLP (C) No. 7348 of 2011. MOEF&CC was also informed about the said dumping outside the mining lease in the EAC meeting before the letter of 27.05.2013 had been issued. Hence, the act of the answering respondent was not of the nature that required any adverse action. Prior to the Judgment of Goa Foundation Vs. UOI regarding the maintaining of overburden/ waste outside the mining lease area, up till the delivery of that Judgment; from 2010 there was no clarity in respect of law in this regard and that as soon as the Judgment came into force the answering respondent has suspended the dumping of waste outside the lease area. Besides that, answering respondent has stabilized the said dumps by maintaining them outside lease area by planting thousands of saplings out of which 80% survived and they should mature into trees in 5 years. It is also denied that mining activity was illegally started before complying with the conditions of the EC. The answering respondent was granted a lease vide order dated 06.11.1971 but by virtue of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, Section 8A (newly inserted), all leases granted prior to the Amendment Act are deemed to have been granted for a period of 50 years. Therefore, though the lease was originally granted for 20 years and subsequently renewed, it may be pertinent to mention that now the lease due to the said amendment is for a period of 50 years, which has also been incorporated in the registered lease deed which is valid and subsisting.
27. It is further submitted that the perusal of the EC dated 31.12.2008, particularly specific conditions Nos. (xviii) and (xix) shows that the measures being approved by this Tribunal were referable to the drains and settling ponds around the dumps and that MOEF&CC was aware of the dumps being maintained outside the lease area. The EC condition No. 4A(xxvii) was understood to provide EC for maintaining of the dumps at the earmarked site including the external site which was well within the knowledge of MOEF&CC when the EC was revived on 27.05.2013. It was based on the bona fide understanding that the EC permits maintaining dumps outside the lease Appeal No.58 OF 2015 (WZ) Page 15 of 26 area, because of which in the year 2014 the answering respondent continued to maintain the dump, whereafter the appellant had preferred the MA No.14 of 2015 are somewhere around February 2015 notice was issued to the answering respondent, after which the answering respondent sought legal advice because of the ambiguity being there as to whether or not knowledge of MOEF regarding the external dump while reviving the EC would amount to grant of permission for maintaining such dump. The answering respondent on its own suspended maintaining of dump outside the lease area in March-April 2015. Thereafter only the environmental protective measures have been undertaken on the dump and no further dumping of waste/ overburden was carried out which clearly shows the bona fides of the answering respondent.
28. Further, it is mentioned that stabilizing of the dump at the current location would be more environmentally benign, rather than removing the same. The maintaining of the dumps has followed environmentally sustainable practices. The dumps are of the overburden which is lateritic soil. The answering respondent has taken all safeguards of maintaining the retention wall, preparing and maintaining the trenches and garland drains around the said dump. Plantation is being carried out on the same. Fully grown trees would contribute to the ecosystem. The appellant has failed to establish any damage caused to the environment by the activity of the PP - answering respondent. Hence the present appeal should be dismissed with cost.
29. Respondent No.4 - M/s Gogte Minerals has filed an additional affidavit dated 18.07.2022 wherein, it is submitted that the answering respondent has planted over 58,000 saplings with a survivability rate of 90% on the rejection dumps and embankments, and has planted over 1800 kgs of leguminous grass seeds (Stylanthus hamata) to enrich the soil. The part of the mining pit is kept as a water reservoir, which is the source of water for these plantations, and the water reservoir would be converted into pisciculture which shall generate income for the landowners. On the backfilled portion of Appeal No.58 OF 2015 (WZ) Page 16 of 26 the pit, the answering respondent is developing a garden based on the theme of „Navgraha Garden‟ to add to the aesthetic of the area. The answering respondent has afforded the dump slopes in the area with local fruit-bearing species. The rejection dump is well stabilized and rehabilitated with a plantation of around 21000 saplings which include local fruit-bearing species. The answering respondent has undertaken various protective measures which include a retaining wall at the toe of the dump which would be extended by 200 mtrs. towards the Western and Southern parts of the boundary. The settling pond of 550 cu.m. capacity is at the toe of the dump to control the siltation including 700 m long trenches with 80 nos. of 2.5 mtrs. pipes to channelize the rainwater towards the settling pond. All the activities which are narrated by the answering respondent are supported by photographs of these that have been annexed.
30. We have heard the argument of learned counsels for parties i.e respondent No.1 - MOEF, respondent No.4 - M/s Gogte Minerals as well as that of the appellant and perused the record. Learned counsel for respondent No.4 initiated the argument by saying that prayer 1 whereby the impugned order dated 02.09.2015 is sought to be set aside has been rendered infructuous as respondent No.4 has stopped mining since 2016 onwards. Besides that, the lease has also ended in the year 2022. Therefore, there is no mining activity going on, and continuing with the proceeding of the present appeal would amount to flogging a dead horse and is of mere academic interest. With respect to prayer No.2, seeking direction to respondent No.1 to take action against respondent No.4, the same stands deleted by order dated 16.05.2017 of this Tribunal. Besides that, it is further argued that there is no pollution caused by respondent No.4 by the dumping of the overburden/ waste nor is there any effect on record proving that activity resulted in causing harm to the environment.
31. Thereafter, the learned counsel for the appellant began his argument and stated that EC was granted on 31.12.2018. Attention was drawn to the Appeal No.58 OF 2015 (WZ) Page 17 of 26 Judgment of the Hon‟ble Supreme Court in the Goa Foundation Case (supra) and its relevant paragraph was read out which are quoted herein below:
"33. Under Section 4 of the MMDR Act, a person who holds a mining lease granted under the MMDR Act and the Rules made thereunder is entitled to carry on mining operations in accordance with the terms of the lease in the leased area and may carry on all other activities connected with mining within the leased area. Rule 31 of the MC Rules prescribes that the lease deed will be in Form K or in a form near thereto. Part I of Form K delineates the area of the lease and Part II of form K authorizes the activities that can be done by the lessee in the leased area. Thus a hold of a mining lease does not have any right to dump any reject, tailings or waste in any area outside the leased area of the mining lease on the strength of a mining lease granted under the MMDR Act and the Rules made thereunder. Such area outside the leased area of the mining lease may belong to the State or may belong to any private person, but if the mining lease does not confer any right whatsoever on the holder of a mining lease to dump any mining waste outside the leased area, he will have no legal right whatsoever to remove his dump, overburden, tailings or rejects and keep the same in such area outside the leased area. In other words, dumping of any waste materials, tailings and rejects outside the leased area would be without a valid authorization under the lease deed.
34. Moreover, Section 9(2) of the MMDR Act makes the holder of a mining lease granted on or after the commencement of the Act liable to pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee from the leased area. Thus, the moment the mineral is removed or consumed from the leased area, the holder of a mining lease has to pay royalty. By virtue of Section 9 of the MMDR Act, Tailings and rejects excavated during mining operations being minerals will also be exigible to royalty the moment they are removed from the leased area.
35. Rule 64-C of the MC Rules states that on removal of tailings or rejects from the leased area for dumping and not for sale or consumption, outside leased area such tailings or rejects shall not be liable for payment of royalty. Rule 64-C of the MC Rules, therefore, exempts the removal of tailings or rejects from the leased area for the purpose of dumping and not for the purpose of sale or consumption from the levy of royalty. Rule 64-C of the MC Rules does not authorizes dumping of tailings or rejects in Appeal No.58 OF 2015 (WZ) Page 18 of 26 any area outside the leased area. This Court has held in Central Bank of India v. Workmen that "if a rule goes beyond what the section contemplates, the rule must yield to the statute". In our view, if Rule 64- C of the MC Rules suggests that tailings or rejects can be dumped outside the leased area, it must give way to Section 4 of the MMDR Act, which does not authorize dumping of minerals outside the leased area and must give way to Section 9 of the MMDR Act which does not authorize removal of minerals outside the leased area without payment of royalty. We, therefore, hold that dump cannot be kept by the lessees beyond the leased area."
Having cited the above paragraphs, it is clarified by the learned counsel for the appellant, that it clearly lays down that dumping of the waste/ overburden cannot be done outside the lease area, as is clearly settled by the Hon‟ble Supreme Court, vide Judgment i.e. 21.04.2014 in Goa Foundation's Case (supra). Therefore, from the said date onwards respondent No.4 did not have any right to dump overburden/ waste outside the lease area. Hence, dumping at the survey no, in question which was outside the lease area would amount to violation for which, adequate EDC should be levied from respondent No.4.
32. During the argument it also emerged that the dumping was being done even after coming into force of the Judgment of the Hon‟ble Supreme Court in Goa Foundation's case (supra), for at least one year i.e. up to April 2015, when respondent No.4 stated to have stopped dumping the overburden. Therefore, this one year would certainly be treated as period of violation.
33. Having found this dumping being done even after the Judgment of the Hon‟ble Supreme Court, a show cause notice was issued by the MOEF which is at page 142-143 of the paper book wherein it is clearly recorded by MOEF&CC that no permission for dumping outside the mine lease area was given. It was found that dumping was being done by respondent No.4 on survey No. 177/1 in Ajgaon village in contravention of the EP Act, 1986. Reply dated 17.06.2015 to this notice was given at pages 163 to 174 by respondent No. 4 wherein in para 7 it was submitted that the MOEF was in the know of Appeal No.58 OF 2015 (WZ) Page 19 of 26 the issue of maintaining dumps outside the lease area since the very beginning as the mining plan of the PP, approved by IBM, relevant sheet enclosed as Annexure-1, specifically mentions and marked the area where external dump would be maintained. It is also recorded that the PP, prior to maintaining the said dump, also took permission from the District Mining Officer Sindhudurg, permission of which was granted on 12.03.2010, annexed at page 48 as annexure-2.
34. Then attention was drawn to para 10, 11, and 17 of reply dated 17.06.2015, wherein, it is clearly stated that MOEF was in full knowledge about this dumping being done outside the lease area at five places as per the approval of the mining plan, and the dump site was shown even outside the mining lease area. After considering this reply the impugned order was illegally passed which is annexed at pages 36-37, wherein it is recorded that under bona fide impression respondent No.4 had permission to dump outside the lease area because the said area was shown in mining plan approved by IBM, and till the passing of the Judgment of the Hon‟ble Supreme Court in Goa Foundation case (supra) position of law was not clear, hence respondent No.4 continued to dump overburden/ waste outside the leased area. The said notice was dropped. It is said that it was illegally dropped as there was no power lying with the MOEF to drop the proceeding being a supervisory and regulatory authority because they should have at least penalized the PP by levying adequate EDC for, at least, the period when the Judgment was delivered till April 2015, when it is said that the operation of dumping outside the mining lease was suspended. It is also argued that 10% of proceeds should be the norm for realizing the EDC amount.
35. Further it is argued by the appellant that EC condition never permitted that the dump be allowed outside the lease area. The approval of the mining plan will not entitle respondent No.4 to throw the dumping waste/ overburden outside the mining area, as the said condition was not incorporated in the EC conditions. Even a letter written to the Tehsildar Appeal No.58 OF 2015 (WZ) Page 20 of 26 informing about the dump being done outside the lease area would not entitle respondent No.4 to throw overburden outside the lease area.
36. From the side of respondent No.4, rebuttal arguments were made saying that no perversity could be shown in the impugned order by the learned counsel for the appellant; the appellant wants his own views to be substituted in place of the views of MOEF&CC in the light of the Goa Foundation case (supra), the same is not possible till any perversity is found to be there in the impugned order. Simply because some different views can also be drawn, would not entitle the appellant to get the said alternative view substituted. In fact, respondent No.4 had been granted permission to dump outside the leased area. During the lifetime of the project or 50 years, whichever is later, is the period till the mining could be done. In the case in hand life of EC was 15 years which has come to an end. Therefore, there is no possibility that any further mining could be undertaken by respondent No.4. The dumping that was done of waste was on arid land and was not on forest land which too belonged to respondent No.4, which was a wasteland and therefore, no environmental loss is caused by respondent No.4. No toxic waste was thrown/ accumulated there so as to damage the environment; whatever loss, if at all, may have happened would be to his own land. A 15-year period has lapsed since the dumping was started. That area has now been covered by respondent No.4 by plantation and other activities and has turned into a lush green area. These were the points learned counsel for respondent No.4 wanted to argue on and to show the evidence on record in that respect and stated that because the EC had lapsed there was no possibility of further mining activity to be undertaken at their end. But at this stage, learned counsel for the appellant desired that an undertaking must be filed by the respondent No.4 to the effect that they would surrender their lease which still remains valid for any outstanding period so that there would be no future threat of illegal mining/ dumping being done, to which the learned counsel for respondent No.4 acceded to. With respect to permission being there to dump Appeal No.58 OF 2015 (WZ) Page 21 of 26 outside the lease area, our attention was drawn to pages 33, 37, 52, and 71 of the paper book, which we have already considered above while dealing with the facts of the case. It was also been stressed by the learned counsel for respondent No.4 that with the EIA Report, he had submitted a mining plan, therefore, it should be treated to be a part of the EC. We have reservations about this argument being done because no stipulation is there in the EC to that effect. Learned counsel for the appellant had taken us through the previous history of the litigation between the two parties, which we have already taken into consideration while dealing with the facts of the appeal, hence, it need not be referred here again.
37. After having considered the full facts which are on record and in the light of the arguments made by the parties, the facts which have emerged are that EC dated 31.12.2008 contain condition No. xxvii which says that overburden/ waste shall be stacked at the earmarked dump site(s) only and these dumping site were to be within the area of 5.98 ha of the total leased area of 34.4812 ha. The pretext which is taken by respondent No.4 that till the grant of EC, it was not clear as to whether these dumps sites were to be identified inside leased area or could be outside it. Even later on, when revived EC was granted dated 27.05.2013, which is annexed at page 140 of the paper book, same conditions were kept as it is which were there stipulated in the EC dated 31.12.2008 but it was vehemently argued by learned counsel for respondent No.4 that at the time of the revival of EC, the mining plan approved by the office of Controller of Mines (South Zone) dated 12.04.2011, extract of which is annexed at page 653 to 659 of the paper book, was also considered, wherein it was laid down that the waste generated at the mine during the first few years of the plan period would be dumped at barren area of private land which is 4 km away in Ajgaon village, which is relatively flat land. The dumping will be in two stages of 15m in height each and shall be provided with a garland drain and retaining wall all along the bottom periphery. The location and dimensions of the proposed dumps are given Appeal No.58 OF 2015 (WZ) Page 22 of 26 therein. Further, it is recorded that the proposed dumping yard is outside the mining leased area however the management measures as detailed in the conceptual plan shall be carried out and along with this, there is a map also showing the dumping site outside the leased area at page 657. Besides that, it is also argued by him that representation was given at the time of the grant of the revived EC, which is at page 693 of the paper book, which clearly shows the spot of external dumping. So, on the basis of documentary evidence, it is urged by learned Counsel that it should be treated to be a part of the EC granted and therefore it can be very well concluded that the dumping which was being done of the overburden was in accordance with EC condition. But we fail to appreciate these arguments because there is no stipulation made in the EC conditions that the dumping of the overburden/ waste can be done outside the mining lease area. Had it been the case, certainly one of the terms and conditions would have been included permitting the PP to dump the overburden outside the leased area.
38. Much emphasis was laid by the learned counsel of respondent No.4 that it was well within the knowledge of all the relevant authorities including MOEF and the District Mining Officer that the dumping was being done by the PP outside the lease area. Even six monthly report submitted contains this fact, but no objection had ever been raised. Therefore, it should be treated to have been agreed terms and conditions that the overburden could have been dumped outside the leased area. We cannot accept this argument because the Ministry itself in their affidavit, which is cited above, stated that the permission has never been taken by respondent No.4 for dumping the overburden/ waste outside the mining lease area. It is also stated that when the Judgment of the Hon‟ble Supreme Court in the Goa Foundation case (supra) was delivered, notice was also issued to the PP asking as to whether they had taken EC for dumping the waste outside the leased area, they admitted not to have taken the same and thereafter they had suspended the activity of dumping the overburden from April 2015. When a show cause Appeal No.58 OF 2015 (WZ) Page 23 of 26 notice was issued to them, the same was dropped by the MOEF on the ground that the undertaking has been submitted by respondent No.4 that they would not, in future, dump outside the leased area, which was accepted and hence no action was needed to be taken against them. The MOEF also took this fact of dumping outside the mining leased area, to be not at fault because till the time the Judgment of the Hon‟ble Supreme Court was delivered, there being general practice of dumping the overburden/ waste being done outside the mined lease area and even the Government was not raising any objection to that, therefore, it was treated to be under „bona fide impression‟ that permission was granted already and therefore, respondent No.4 was dumping overburden/ waste outside the leased area. We are not in agreement with the said argument because on such date i.e. 21.04.2014 when the Judgment was delivered by the Hon‟ble Supreme Court in the Goa Foundation case (supra), the position of law was made very clear that no dumping could be done outside the mining lease area but in the case in hand, the respondent No.4 continued to dump overburden outside the mining lease area because of which notice was issued and thereafter the impugned order was passed. Therefore, from that date of the Judgment till the activity was stopped i.e. April 2015, the quantum of EDC needs to be calculated to be levied from respondent No.4.
39. Now we have to decide as to which mode should be adopted by us to reach the quantum of EDC to be levied from respondent No.4. One way possible therefor could be the turnover of the company which could have been taken into consideration, but no such evidence has been led from the side of either the applicant or respondent No.4 as to what was the turnover of respondent No.4. Therefore, we have to fall back on the Judgment of this Tribunal delivered in Tanaji B. Gambhire v. Union of India 2016 (SCC Online) NGT 4213 read with the Judgment of the Hon‟ble Supreme Court in Goel Ganga Developers India Pvt. Ltd V. UOI 2018 (SCC) 257. The Tribunal in above cited Judgment had held as below:
Appeal No.58 OF 2015 (WZ) Page 24 of 26
"54. ........
1. ........In addition to this, it shall also pay a sum of Rs. 5 crores for contravening mandatory provision of several Environment Laws in carrying out the construction activities in addition to and exceeding limit of the available environment clearance and for not obtaining the consent from the Board...........
2. .....
3. ...
4. ....."
40. The said directions of this Tribunal were upheld by the Hon‟ble Apex Court in the above cited Judgment in the case of Goel Ganga Developers India Pvt. Ltd (supra) in para 59(ix) as follows:
"We impose damages of Rs.100 crores or 10% of the project cost, whichever is higher on the project proponent, and in addition thereto, project proponent will pay Rs.5 crores as levied by the NGT in its order dated 27.09.2016"
41. Much emphasis was laid by the learned counsel for respondent No.4 that the overburden/ waste which was dumped outside the leased area, was not toxic and the same was also thrown on barren land belonging to respondent No.4 itself, therefore there was no environmental damage caused by it. As against this, PP had made a huge plantation at their end which we have cited above in this order, to bring greenery in the area and lot of activities have been done by respondent No.4 to improve the environment over the area in question. Therefore, there is no question of any imposition of Environmental Damage Compensation (EDC) to be levied from them. But we are of the view that as a deterrent measure, appropriate compensation amount needs to be levied as violations of environmental laws have definitely taken place. So, we deem it appropriate to at least levy an amount of Rs.5 crores by way of Environment Damage Compensation (EDC) from respondent No.4.
42. One more point raised by learned counsel for respondent No.4 was that prayer No.1 seeking setting aside the order dated 02.09.2015 does not survive because the mining activity was stopped since 2016. But we note that EC is Appeal No.58 OF 2015 (WZ) Page 25 of 26 still valid as the same was granted in the year 2008 and as per EIA Notification 2006, validity for mining projects is 30 years and the appellant apprehends that the mining activity could be restarted by respondent No.4 or his transferee. Therefore, the surrender of the EC should be made, to which the learned counsel of respondent No.4 also assured that he would surrender the same to MOEF&CC. We direct respondent No.4 to surrender the same to the MOEF&CC in accordance with the procedure laid down in the Office Memorandum dated 29.03.2022 issued by MOEF&CC, within one month.
43. Some rulings were relied upon by respondent No.4 but we do not find any relevance thereof herein in view of the admitted facts.
44. We dispose of this appeal with the following directions:
i. Appeal is partly allowed.
ii. Respondent No.4 - M/s. Gogte Minerals (PP) is directed to deposit
an EDC amount of Rs.5 crores (Rupees Five Crores) with the MPCB within period of one month from the date of uploading of this Judgment which will be utilized by MPCB in consultation with District Collector Sindhudurg for environmental improvement in project affected area. iii. EC dated 31.12.2008 shall be surrendered by the PP within period of one month in accordance with law, stated herein above.
iv. No order as to cost.
Dinesh Kumar Singh, JM
Dr. Vijay Kulkarni, EM
September 25, 2024
APPEAL NO.58 OF 2015(WZ)
Pratik Bobade
Appeal No.58 OF 2015 (WZ) Page 26 of 26