National Green Tribunal
Dattatray Phalke vs Ministry Of Environment Forest And ... on 22 February, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Original Application No. 28/2022 (WZ)
IN THE MATTER OF :
1. Mr. Dattatraya Phalke,
„MANSING RESIDENCY‟
Taljai Pathar Dhankawadi,
Pune 411043
E-mail: [email protected]
.....Applicant
Versus
1. The Union of India,
Through the Secretary,
Ministry of Environment, Forest and
Climate Change Impact Assessment Division,
Government of India,
Indira Paryavaran Bhavan, Jor Bagh Road,
Aliganj, New Delhi-110003.
E-mail: [email protected]
2. State Level Environment Impact Assessment Authority-
Maharashtra(SEIAA)
Through Member Secretary,
Environment Department,
Room No. 217, 2nd floor,
Mantralaya Annexe, Mumbai-400032, Maharashtra
E-mail: [email protected]
3. Maharashtra Pollution Control Board,
Through Member Secretary,
Kalptaru Point, 3rd Floor, Near Sion Circle,
Opp. Cine Planet Cinema, Sion(E),
Mumbai-400022, Maharashtra
E-mail: [email protected]
4. The District Collector,
As district collector and
President of Environment Committee,
Hingoli-431513
E-mail: [email protected]
5. The Nandgaon Tahsildar,
Taluk: Nandgaon, District : Nashik
E-mail: [email protected]
6. Rajendrasinh Bhamboo Infra Pvt. Ltd.
Gat No. 41 and 42,
Devdari, Taluk: Kalamnuri,
District Hingoli-431702
Page 1 of 33
Email: [email protected]
And
Rajendrasinh Bham boo Infra,
Pvt. Ltd. 108, First floor,
Nilkanth Building, Gandhi,
Path, Vaishalinagar,
Jaipur-302021
Email: [email protected]
7. Mr. Ashokkumar Kesarimal Parakh,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
8. Mr. Anand Kesarimal Parakh,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
9. Mr. Ramesh Kesarimal Parakh,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
10. Mr. Dilip Kesarimal Parakh,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- dilip_parakh@gmail. Com
11. Mr. Jasraj Kachardas Parakh,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
12. Mr. Manoharmal (Mohan) Kachardas Parakh
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
13. Mr. Sajanraj Kachardas Parakh,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- sajan.Parakh@gmail.
14. Hukum Parasmal Parakh,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
15. Mr. Narendra Kachardas Parakh,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
16. Mrs. Tara Rajendra Jai,
Email- [email protected]
17. Mr. Mahavir Parasmal Parakh
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
18. Mrs. Vandana Surendra Jain,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
19. Mr. Shanitilal Bhikamchand jain,
At post Hiswal BK Tal- Nandgaon, Dist- Nashik
Email- [email protected]
....Respondent(s)
Page 2 of 33
Counsel for Appellant(s):
Mr. Nitin Lonkar, Advocate
Counsel for Respondent(s):
Mr. Rahul Garg, Advocate for R-1
Mr. Aniruddha Kulkarni, Standing Advocate for R-2
Mr. Vilas Jadhav, Advocate for R-3
Mr. Saurabh Kulkarni, Advocate for R-6
PRESENT:
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 06.02.2023
Pronounced on : 22.02.2023
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Judgment
1. This application has been filed under Sections 14, 15 ,18,19 and 20 of the National Green Tribunal Act, 2010.
2. The brief facts of the case are as follows:
The Respondent No.6/ Rajendrasinh Bhamboo Infra Pvt. Ltd/PP has carried out the „illegal mining‟ at Gat No.81/1 and 80/2, Village- Hiswal Bk, Taluk- Nandgaon, District- Nashik. The Respondent No.4/ District Collector, Nashik had issued temporary mining permit dated 12.01.2022 to the Respondent No.6. The Respondent No.6/ Project Proponent did not deliberately obtain prior EC for the impugned project for having excavated 25,000 Brass of Stones, Murom, Sand, etc, by carrying out the illegal mining activities in the above Gat numbers. Therefore, he is liable to be levied the exemplary environmental compensation in terms of the formula derived by the Central Pollution Control Board (CPCB) in O. A. No. 593 of 2017 in the matter of Paryavaran Suraksha Samiti & Anr. Vs. Union of India & Ors. An Expert Committee is also required to be appointed to calculate the environmental compensation in terms of the formula laid down by the Central Pollution Control Board (CPCB). The Project Proponent is liable to be prosecuted as per the law. The Project Proponent has not calculated the project cost on the basis of the Page 3 of 33 schedule of rates approved by the Public Works Department (PWD) of the State of Maharashtra and the cost of the land as held by the Hon‟ble Supreme Court of India in the case of M/s Goel Ganga Developers India Vs. Union of India through the Secretary & Ors, (Civil Appeal No. 10854 of 2016) para No- 57. The Respondent No.6/ Project was expected to protect the existing trees and plant more trees and to obtain prior permission from Local Authority and Tree Authority before felling any standing trees under the provisions of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 and has felled several 25 years old trees for conducting illegal mining. The Respondent No.6/ Project Proponent has not complied with the provision laid down in Office Memorandum dated 01.05.2018 by not earmarking the requisite fund towards the Corporate Environment Responsibility (CER); Office Memorandum dated 04.01.2019 which provided for the Standard Environment Clearance (EC) conditions; Office Memorandum dated 07.07.2021 by seriously neglecting the Standard Operating Procedure (SOP) in respect of violation and non-compliance; Office Memorandum dated 07.09.2021 by not uploading the Environmental Clearance(EC) conditions on PARIVESH Portal. In Para 32 of the O. A. following violations have been noted which have been done on the part the Project Proponent(PP):-
a. PP has not got proposed mine area and 7.5 meters wide safety zone demarcated in presence of DMO before taking any effective steps on site.
b. PP has not developed the green belt by planting 1000 nos. Of indigenous trees in 7.5 meters wide safety zone on the periphery of the proposed area with facility of drip irrigation and 1,000 nos. Of indigenous trees along the approach road before taking any effective steps on site. c. PP has not provided dry wall of around one meter along with barbed wire fencing to the mining lease area to ensure safety of animals and humans.
d. PP not obtained all the necessary NOC's /permissions from the Competent Authority before commencing work on proposed site.
e. PP has failed to ensure that no mining was done below the depth as approved in the mining plan.Page 4 of 33
f. PP has not ensured that, the quarrying was proposed above the level of aquifer to avoid the ground water contamination/ degradation of water quality of aquifer. g. PP has not taken the adequate measures/ precautions to avoid contamination/ degradation of ground water. h. PP has not adhered to the provisions stipulated in the Maharashtra Minor Mineral Excavation( Development and Regulation) Rules, 2013, guidelines issued by MoEF&CC and any other legal requirements as applicable to the proposed activity.
i. PP has deliberately failed to ensure strict compliance of all environmental norms, terms and conditions and the Respondent No: District has also failed to strictly monitor the compliance of the environmental norms, terms and conditions.
j. PP has not ensured that there was no damage to any fauna and its nesting close to the proposed excavation activities.
k. PP has failed to ensure that adequate measures like maintenance of roads, sprinkling of water and plantation was carried out to reduce the dust particulate matter pollution.
l. PP has not provided the solar energy, sanitation facility in the Z. P. School in village- Hiswal BK. m. The Respondent No.4 has not ensured proper approach road to the proposed quarry area before granting final mining lease.
n. The Respondent No.4 has not ensured that, the proposed quarry area did not fall in the Eco Sensitive area notified by the Government before granting final mining lease. o. PP has not ensured additional air quality monitoring station around the periphery of village. p. Blasting, crushing and transportation of crushed material is not being carried out under covered conditions to avoid any kind of dust pollution.
q. PP has not employed dust suppression measures by use of water sprinklers, foggers etc. r. The PP has not undertaken two rows of tree plantation along the lease boundary. Dust absorbing trees shall be planted.
s. PP to ensure that, as submitted in detail in SEIAA meeting, all mitigation and monitoring measures to be followed specially around the vicinity of nearest Village human settlement.
t. The lease holder shall undertake adequate safeguard measures during excavation of material and ensure that due to this activity, the hydro-geological regime of the surrounding area is not affected.
u. PP has not obtained NOC from Forestry & Wild life angle including clearance from the standing committee of National Board for Wild life.Page 5 of 33
Hence, it is prayed that the Expert Committee be appointed to assess damage and degradation caused to the environment by the Respondent No.6/ Project Proponent and that exemplary environmental compensation cost upon them be ordered. Further, it is prayed that legal action may be taken against Respondent No.1 and 5 for gross negligence of their part.
3. This matter was first taken up on 01.04.2022 and direction was issued to send notices to the Respondents and a Joint Committee was also constituted, comprising District Collector and MPCB and the Joint Committee Report was also submitted where- in following is mentioned;
1. "As per the Maharashtra minor mineral extraction ( Development and Regulation) Rules, 2013, under the Chapter No. IV of Clause NO. 58, the committee formed under chairmanship of Hon'ble District Collector, the said Gat No. 81/1 & 80/2 is incorporated in the District Mining plan during the meeting dated 31.12.2021. Then the M/s Rajendra Singh Bamboo Infra Pvt. Ltd. site bearing Gat No. 81/1 & 80/2, A/p- Hiswal(BK), Tal- Nandgaon, Dist- Nashik was granted the mining lease from 12.01.2022 to 15.05.2022 period vide this office letter no kash 15/2GauKhaNi/Kavi 38/2022 issued on 12.01.2022 for 15,000 Brass mining of stone on temporary basis.
2. During visit it is observed that no mining activity is in operation & no blasting is in operation. Fencing is done at Gat No. 81/1 & 80/2, A/p- Hiswal(BK), Tal- Nandgaon, Dist- Nashik. The said site is adjacent to old Manmad- Nandgaon road. There is no residential colony in the 2 km periphery from the mining area site. The surrounding area is hilly and plain plateau. At the said site stone mining is done in the approx. 1 hectare to 1.2 hectare area.
3. It is observed that out of two Gat Nos, in Gat No. 81/1 approx 1 to 1.20 hectare area stone mining was carried out for Manmad- Nandgaon road construction work. It is observed that the approx. Calculated quantum of stone 80,000 Brass to 85,000 Brass stone mining is done. Out of the around 60,000 Brass excavated stone is found stored in the same premises.
4. It seems that Pro. M/s Rajendra Singh Bamboo Infra Pvt. Has violated the terms & conditions mentioned in the mining lease granted order dated 12.01.2022. However, to access the accurate excavation of stone mined measurement through ETS technology is important. Also, to know the actual stock of minor mineral in Gat No. 81/1 & 80/2, A/p Hiswal(BK) Tal Nandgaon, Dist _ Nashik Report shall be sought from PWD department.
Page 6 of 33
5. The Proprietor has started mining activity of stone from 13th Jan. 2022 without Environmental Clearance, Environment department Govt. Of Maharashtra & Consent to Establish & operate for stone mining from the MPCB.
6. Surrounding to the said site hilly & barren land observed. Around mining site no human habitation approximately 2 km to 3 km periphery. In & around the site premises no green vegetation observed.
7. The Project Proponent has dug one bore well in the premises which is dry and presently the source of water is through the tanker. The mine pit area is dry & no water logging observed.
8. The representative informed that, the mining activity is temporary for the Construction of Road (A project by GoI), Road Construction from Manmad to nandgaon(21.375Km - NH-753 J)
9. Industry representative informed that no open blasting is carried out, only controlled nano technology based blasting is carried out with permission from PESO department in day time as per requirement.
10. Considering no compliance observed by the Joint Committee, the board has issued directions to PP dated 29.06.2022 to deposit an amount of Rs. 15,30,000/- (Rupees Fifteen Lack Thirty Thousand) towards the assessment of damage already caused to the environment and recovery of environmental compensation as per "polluter's Pay Principles" to the Maharashtra Pollution Control Board within a period of 7 days."
4. The stand of Respondent No.6/ Project Proponent is as follows:
The Respondent No. 07 to 19/ Private Respondents are original landowners of the land and answering respondent has obtained land on lease. The Project is in respect of rehabilitation & upgradation of Jalgaon- Bhadgaon-Chalisgaon-Nandgaon-Manmad Road NH-753 J. The bid of the answering Respondent is found to be the lowest one and accordingly vide letter of Appointment dated 13.08.2021, the answering respondent was declared to be successful bidder. The answering Respondent was requested to furnish a performance security of Rs. 4.21 crores which was complied with. After following all the terms and conditions as specified in the tender document, on 13th October, 2021; the answering Respondent had made an application to the Collector, Nashik requesting for permission to carry out mining and extraction Page 7 of 33 work at the above Gat numbers, to which No Objection Certificates was issued to the answering Respondent for mining at the said land. On 01.11.2021, Consent to Establish under Section 25 of the Water(Prevention and Control of Pollution) Act, 1974 under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and Authorization/ Renewal of Authorization under Hazardous Wastes and Other Wastes ( Management and Transboundary Movement) Rules, 2016, was given by the Respondent No.4/Maharashtra Pollution Control Board (MPCB). Vide letter dated 13.12.202, addressed to District Mining Officer(DMO), Sub Regional Officer, Maharashtra Pollution Control Board(MPCB) had given consent/ NOC for carrying out temporary construction. The area involved was less than 5 Hectares and the area is outside the Western Ghats Sensitive Area, and accordingly, there is no problem in giving temporary permission to the answering Respondent.
On 20th December 2021, Work Order was issued in favour of the answering Respondent and that the letter did not include any condition precedent to obtain Environment Clearance for commencing the work. Vide letter dated 01.11.2021, the Maharashtra Pollution Control Board(MPCB) granted Consent to Operate under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and Authorization / Renewal of Authorization under Hazardous Wastes and Other Wastes (Management and Transboundary Movement) Rules, 2016. The Respondent No.4/Maharashtra Pollution Control Board(MPCB) did not direct the answering respondent to obtain EC for mining activity before granting consent. On 12th January, 2022, the District Mining Officer (DMO) Nashik granted permission for commencement of mining work from 12.01.2022 to 12.05.2022, subject to fulfilment of 19 conditions. The said permission also did not speak of any prior EC to be obtained, therefore, the answering Respondent commenced the mining activity for construction of road project after payment of royalty charges to the Page 8 of 33 Revenue Department. On 10.06.2022, the Respondent No.4/Maharashtra Pollution Control Board (MPCB), issued a show cause notice to the answering Respondent to show as to why action be not initiated against him under the Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981, to which detailed reply was sent on 16.06.2022. The Respondent No.4/ Maharashtra Pollution Control Board (MPCB), while according Consent to Establish and Consent to Operate, did not insist for EC as the project was less than five(5) hectares of land and the EC was not prerequisite for such a small-scale activity. All the allegations made in the application are said to be false and baseless. Further, it is mentioned that Entry 1(a) and 7(f) which pertains to mining of minerals and highways under EIA Notification 2006 are as follows:
Project Activity Category with threshold limit Conditions if any A B
1. Mining, extraction of natural resource and power Generation (for a specified production capacity) 1 2 3 4 5 1(a) (i) Mining of > 50 Ha. < 50 ha.> General Minerals Of mining 5 ha. Of condition
(ii) Slurry lease area mining shall apply.
piplelines in respect lease
(coal of non-coal area in Note:
lignite mine lease. respect Mineral
and other > 150 ha. of non- prospecting
ores) Of mining coal is exempted;
passing lease area mine
though in respect lease.
national of coal
parks/ mine lease.
sanctuari > Asbestos < 150 ha.
es/ coral mining > 5 ha.
reefs, irrespective Of
ecological of mining mining
ly area lease
sensitive area in
areas. All projects respect
of coal
Page 9 of 33
mine
lease.
7(f) Highways i) New national i) All the
Highways, state
and Highwa
ii) Expansion of ys
national Project;
Highways, and
greater than ii) State
30 km, Highwa
involving y
additional expansi
right of way, on
greater than projects
20 m in hilly
involving terrain
land (above
acquisition 1,000
and passing m
through AMSL)
more than and or
one state. ecologic
aly
sensitiv
e areas.
And thereafter it is submitted that the above provision would show that there was no requirement to obtain prior EC under EIA Notification 2006, as the area required for temporary mining is less than five(5) hectares as the construction of the road in question was for only 21.375 Kms which also did not involve additional right of way, greater than 20m, and also does not pass through more than one State. It is further mentioned that as per Page No. 154, Annexure- IV (Schedule-A) of the tender document, with respect to environment and Forest, no EC was required for the present project as project road length is less than 100 km and it is further clarified that the said document is attached as Exhibit-R. But we find that the same has not been annexed. Further, it is submitted that in the Maharashtra State Government Resolution, dated 14.06.2017 issued by the Forest and Revenue Department, it has been stated that permission for extracting minor minerals upto 25,000 Brass, would be granted by the District Collector. Rule 58 of Maharashtra Minor Mineral Extraction (Development and Regulation) Page 10 of 33 Rules, 2013, provides for a Committee in every district under the chairmanship of District Collector. Once permission has been granted by the committee, with respect to temporary permit for mining, then there would be no approval/ permission required from District Environment Impact Assessment Authority(DEIAA). On 13.10.2011, the answering Respondent had approached the District Collector, Nashik for grant of permission to carry out mining for construction of the road.
On 12.01.2022, following due procedure as mandated by Government Resolution dated 14.06.2017, the District Collector, Nashik, after getting approvals from Officers of Forest Department, Mining Officer, Maharashtra Pollution Control Board, through the District Mining Officer, Nashik, Ground Water Survey and Development Agency, granted permission for commencement of mining work from 12.01.2022 to 12.05.2022 subject to fulfilment of 19 conditions which does not include any precondition to obtain prior EC. The answering respondent has carried out mining activity with utmost care for protection of the environment. It is further submitted that the answering Respondent had made an application under Right to Information Act (RTI) 2006, and obtained reply dated 21.06.2022 which indicated that Collector Nashik passed an order on an application made by one Mrs. Suvarna Dnyaneshwar Jagtap that under Clause 30 of the order it would be the responsibility of Mrs. Suvarna to obtain environmental clearance / permission from SEIAA, before commencing mining. But from the order 12.01.2022 of the District Collector, Nashik, it is evident that there was no stipulation to take prior permission (EC) from the SEIAA. Thus, with due diligence, the answering Respondent followed all the directions issued by the District Collector. Based on the above facts, it is prayed that the application be dismissed.
5. It is further submitted by the answering respondent that averment made in the Joint Committee Report is inconsistent or contrary to the present Page 11 of 33 reply. The Show Cause Notice issued by the Maharashtra Pollution Control Board (MPCB) on 30.06.2022 as well as the Joint Committee Report are quite contradictory. Para 1 and 2 of the Joint Committee Report, should be proved independently by the Committee. A communication dated 26.05.2022, was made by Tehsildar, Nashik, who had visited the project site and asked the answering Respondent to pay royalty to the tune of Rs. 4,70,81,000/- which was paid. The answering Respondent has followed all the conditions mentioned in the order granting mining lease dated 12.01.2022 and it is wrong to say on the part of the Joint Committee that answering Respondent has violated the terms and conditions mentioned in the mining lease. Consent granted by Maharashtra Pollution Control Board (MPCB) dated 13.12.2021 to the District Mining Officer (DMO) for Respondent No.6/ answering Respondent would indicate that the MPCB is bound by principle of estoppel in levying penalty and the answering Respondent was under
the bona-fide impression that he was not required to obtain prior EC for setting up this establishment of mining on temporary basis. The borewell which is alleged to have been done is not operational. It is evident from the fact that no electricity connection was taken for the said borewell and that the source of water was through water tankers. The amount which has been computed by the Joint Committee as per the direction which has been issued by the Maharashtra Pollution Control Board(MPCB) to the answering Respondent vide notice dated 29.06.2022 to deposit a sum of Rs.15,30,000/-is baseless and without any merit and that the Joint Committee Report should be quashed.
6. The stand of Respondent No.1/ MoEF&CC is as follows:
Nothing much has been stated in this affidavit which would throw light on the present dispute except the position of law.
7. The stand of Respondent No.3- MPCB is as follows:
The reliance has been placed by Maharashtra Pollution Control Board (MPCB) on the Circular vide letter dated 24.03.2017 where-in for stone Page 12 of 33 quarry activity to be conducted, following decisions for grant of Consent to Establish and Consent to Operate were taken-
I. Stone quarry having area 5 hector and above are covered under the Consent regime.
II. Stone quarry having area below 5 hector will comes under the purview of the District Collector/s in the State of Maharashtra, as per their jurisdiction and they will implement the guidelines for Environmentally Sound Operations for Stone quarries issued by the Maharashtra Pollution Control Board.
III. The stone quarry activity is not allowed in the eco sensitive area declared by the Government of India/ Government of Maharashtra/ and any other Government competent authority.
And in the end, it is submitted that in view of the Notifications issued by the MoEF&CC, orders passed by the Hon‟ble Supreme Court of India & Hon‟ble NGT, mandating prior EC for mining of minor minerals irrespective of size of the area of mining lease, the Hon‟ble NGT may issue appropriate directions as may be deemed fit for grant of temporary mining lease permits for extraction of minor minerals. In the reply, in the rejoinder affidavit of the applicant dated 10.09.2022it is submitted that the Maharashtra Pollution Control Board (MPCBP) has issued a Circular dated 03.08.2020 regarding siting criteria for stone quarry in the State of Maharashtra which prohibits permission of mining of stone 1 km from the National Highway and yet in the present case the quarry permission has been granted without following the criteria prohibiting mining within 1 km from the National Highway. The amount of quantity i.e. 80,000 Brass to 85,000 Brass stone which have been extracted as per the Joint Committee Report is wrong as the Circle Field Officer has drawn Panchanama of this site on 25.05.2022 which clearly mentioned that the extracted quantity is 96,000 Brass. The Project Proponent has dug more than one bore well and draws water from this illegal bore well without any permission having been obtained by Central Ground Water Authority. The Project Proponent has started mining activity one month prior to making application to District Mining Page 13 of 33 Officer(DMO) Nashik. The mining has been done through open blasting in violations of norms without taking separate permission for blasting. The amount which has been calculated by the Joint Committee is of Rs. 15,30,000/- towards the assessment of damage caused to the environment which is negligible and shows complicity of the officers concerned with the Project Proponent who are mining mafiya. The Project Proponent had started mining activity of stone from 13th January 2022 without EC, Consent to Establish and Consent to Operate. The Project Proponent is repeatedly violating the EC norms for commercial benefits as previously also, he was punished in O. A. No. 53/2018(PB) for violating the environmental norms apart from in O. A. No. 15/2022(WZ) with RA 02/2022 and O. A. No. 54/2022(WZ). Therefore, Project Proponent‟s Company should be blacklisted. The Project Proponent has violated the conditions relating to depth of excavation which is provided under Maharashtra Mines Mineral Act, 2013 to be 6 meter at the most while the Project Proponent has excavated more than 6 meters at every point of quarry, using explosive for blasting devices. The statement with respect to the tree plantation around the lease boundary is false. CTE and CTO shall not be issued to any category of work where prior EC is mandatory as per the EIA Notification, 2006. This regulation has been breached in the present case by the Maharashtra Pollution Control Board authority because the Maharashtra Pollution Control Board(MPCB) ought to have directed to Project Proponent obtain prior EC before according it the said permission. The Project Proponent has also breached the terms and conditions of temporary lease on 12.01.2022, according to which lease holder was required to applicable royalty before commencement of the mining work. The prior EC was required in terms of the judgment of the Hon‟ble Supreme Court in Deepak Kumar‟s case.
The illegally extracted mining stone is 96,0000 Brass and would stand at worth Rs. 26,88,00,000/- in terms of money and that the proposed penalty under Maharashtra Land Revenue Code 1966 was calculated as Page 14 of 33 five(5) times of the Market value of the mineral extracted which would stand at Rs.134,40,00,000/-. Further, it is submitted that the Project Proponent is indulging in mining activity without clearance from forest department as well. As regards the allegation against the applicant that he is extortionist, the allegation is stated to be false against the applicant but it is admitted by him that he is presently on bail in the case of extortion. In para 36 of the affidavit the compliances which were required to be done on the part of the Project Proponent have been indicated from (a to k). The above requirements are said to have not been fulfilled by the Project Proponent. Rest part of the affidavit contains various judgments delivered by the Hon‟ble Supreme Court as well as this Tribunal and various cases under the provision of EIA Notification and provisions of PMLA Act, 2002, under which it is prayed that the Project Proponent should be proceeded against.
8. With respect to the quantum which is found to have been extracted by the Project Proponent from the area in question for which permission was granted, the Joint Committee has assessed that the Project Proponent has extracted between 80,000 to 85,000 Brass stone which is being disputed by the applicant saying that the same is 96,000 Brass but we find that there is no adequate basis provided by the applicant of having arrived at the above mentioned quantity while in the Joint Committee Report the quantity which has been said to be 85,000 Brass on higher side, is the quantity arrived at by the Joint Committee comprising members of the Maharashtra Pollution Control Board (MPCB) and District Mining Officer, therefore the said report would appear to be more authentic to us. Therefore, we go by the quantum as mentioned by the said Joint Committee, which is found to have been extracted by the Project Proponent in violation of the norms. Therefore, we would like to discard the Joint Committee Report only with respect to the mode which has been adopted by it to calculate the amount of Environmental Page 15 of 33 Compensation and would prefer to go by the mode which was adopted by the Principal Bench of this Tribunal in O. A. 360/2015.
9. On the basis of the above pleadings, the questions which need to be decided in the present case are as follows:
1. Whether The Respondent No.6/ Project Proponent was required to obtain prior EC before undertaking the mining activity in Gat numbers in question?
2. Whether the Respondent No.6/PP has committed any violation of the provisions of law related to environment ?
if yes, its effect ?
3. Whether any damage to environment has happened on account of the activity of the Respondent No.6/ PP ? if yes, its effect ?
10. In order reach the conclusion on the above issues we have to take into consideration the legal position which appears to exist as on date.
11. From the side of the learned counsel for the Respondent No.6/ Project Proponent, our attention is drawn to the judgment of this Tribunal (PB) dated 17.02.2022 passed in O. A. No. 68/2020(WZ) Shri. Rajiv Babasaheb Waman & 11 Ors. Vs. Ministry of Environment, Forest & Climate Change Union of India through Secretary & 11 Ors. which pertains to operation of stone quarry and stone crushing activity by the Respondent No.11 & 12 in that O.A. in violation of the environmental norms. Allegation were also made in that, regarding blasting to have been conducted without safeguards.
12. The Para- 8 of the said judgment is relevant for our consideration where-in it is recorded that the legal action needs to be taken for mining without EC. EC has to be followed irrespective of the circular of State of Maharashtra dated 12.12.2013 addressed to all Divisional Commissioners and Collectors for grant of temporary permits, in view of the law laid down by the Hon‟ble Supreme court in Deepak Kumar's case (Supra). It is recorded in this order that the circular of the State of Page 16 of 33 Maharashtra for issuing temporary permits does not and cannot dispense with the judgment of the Hon‟ble Supreme Court in Deepak Kumar's case (Supra). Doing so will be contempt of order of the Hon‟ble Supreme Court. It is duty of the State of Maharashtra to issue clarification in view of the fact that this circular is in defiance of judgment of the Hon‟ble Supreme Court to the detriment of environment and rule of law.
13. Further, in this judgment a joint committee which was constituted, was directed to ascertain the status of compliance of stone crusher in terms of requirement of EC/ Consent as per law. Accordingly, the said application was disposed of.
14. In pursuance of this direction issued by the Principle Bench, Revenue and Forest Department State of Maharashtra issued a circular dated 24th March, 2022 which is annexed page No. 1884 of the paper book where-in it has been stipulated that as per the NGT order in O. A. No. 68/2020 dated 17.02.2022 temporary permits without EC shall not be granted.
15. Thereafter, one party by the name of Orange City Stone Crusher Owners‟ Association, Nagpur approached Hon‟ble Bombay High Court at Nagpur Bench through filing Writ Petition No. 2153/2022 together with it other Writ Petition No. 2163/2022 and 2731/2022 were also considered, where-in prayer is made for quashing of communication dated 24th March, 2022. While considering the state prayer, the Hon‟ble High Court framed following question "Whether it is permissible for the State Government to require a person interested in obtaining quarry permit under Rule 59 of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 (for short Rules, 2013) to submit environmental clearance as a condition precedent by issuing an executive instruction in the nature of impugned communication dated 24th March, 2022."
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16. In these three(3) Writ Petitions submission was made by the petitioners that they till very recently, were being granted quarry permits for extraction and removal of minor minerals from the specified area for temporary period of time, not more than 30 days at a time, under Rule 59 of the Rules, 2013, without submitting EC, but with the issuance of communication dated 24th March, 2022 by Respondent No.4 in those writ petitions, the quarry permits were not being issued to them unless they first submitted environmental clearance certificate from the Competent Authority. The contention made before the Hon‟ble High Court was that quarry permits were different from quarry leases in the sense that quarry leases were granted usually for five (5) years initially, and extendable upto twenty (20) years, making the quarry leases as long term grants, but in case of quarry permits, the permission is granted only for a period of 30 days at a time, which is limited to the areas specified. Because of this difference, there was prescription of precondition that EC certificate will have to be obtained by quarry owner for obtaining a quarry lease under the Rules of 2013, but no such requirement is there in case of a quarry permit. Further, it was submitted by the petitioners before Hon‟ble High Court that Rules of 2013 have been framed following directions of Hon‟ble Apex Court in the case of Deepak Kumar and others Vs. State of Haryana reported in (2012) 4 SCC 629, therefore, Rules of 2013 now govern the issue. It was further contended that in any case, executive instructions cannot supersede the Rules of 2013, framed under Section 15 of the Mines and Minerals Extraction ( Development and Regulation) Act, 1957 (for short, "Act, 1957")
17. It was also mentioned in that judgment that the stand taken by the State Government for issuance of a quarry permit under Rule 59 of the Rules of 2013, it was not necessary to obtain prior EC, the permit being for a short term. According to the State Government, the impugned communication dated 24th March, 2022 had been issued in view of the Page 18 of 33 above directions of National Green Tribunal vide order dated 17th February, 2022 in O. A. No. 68/2020(WZ)
18. It was also contended from the side of petitioner that National Green Tribunal (NGT) has not considered the nature of the directions issued by the Hon‟ble Supreme Court in the case of Deepak Kumar (Supra) and has held per incuriam that it was the duty of the State Government to issue a suitable clarification in view of the fact that in the Circular dated 12.12.2013 which clarified that for the grant of temporary quarry permits, there was no requirement of prior submission of EC certificate, goes against the above judgment of the Supreme Court. Further, it was contended that the judgment of the National Green Tribunal (NGT) has been stayed in relation to the appellants there-in by Hon‟ble Supreme Court vide order dated 09.09.2022 passed in Civil Appeal Diary No.(S) 25543/2022. Further, it was contended that direction of the Hon‟ble Supreme Court regarding submission of the prior EC from MoEF, in the case of leases of minor minerals, has been implemented by the State Government by framing Rules of 2013 as Clause (f) of Rules 11 (5) of the Rules of 2013, provides for making an application for grant of quarry lease as well as the manner in which the application should be made. It was further contended that in case of quarry permits, there was no such requirement of prior EC Certificate, as would be clear from Rule 59 of the Rules of 2013 and the Rule 59 still governs the field as it has not been struck down by any court. Further, it was contended that if an executive instruction is issued in conflict with a statutory provision or any Rule having force of law, it would be the latter which would prevail. The interim direction given by the Apex Court in the case of Deepak Kumar's case (Supra) was there only till the time the rules were framed under Section 15 of the Act, 1957.
19. After consideration of the matter by Hon‟ble High Court, to give answer to the question framed above, it was thought proper to examine Page 19 of 33 the background of Rules of 2013 and the nature of the provisions contained therein.
20. While doing so, it has been recorded in the said judgment that in Deepak Kumar's case (Supra), the validity of the auction notice dated 03.06.2011 proposing to auction the extraction of minor minerals, boulders, gravel and sand quarries of an area not exceeding 4.5 hectares in the district of Panchkula, and auction notices dated 08.08.2011 for extraction of minor minerals in the districts of Panchakula, Ambala and Yamnuna Nagar exceeding five (5) hectares was in question. One of the auction notices, which referred to mining leases of less than five(5) hectares stated that the area envisaged under mining leases being of five(5) hectares, no environmental clearance was required to be obtained as per MoEF Notification dated 14.09.2006. The Hon‟ble Supreme Court while deciding question, took into consideration recommendations made by the Ministry of Environment and Forest (MoEF) which was stated in its report. The Hon‟ble Supreme Court, after taking into consideration the recommendations of the MoEF observed that operation of mines of minor minerals needed to be subjected to strict regulatory measures and that it was also felt necessary to have a relook at the definition of, "minor minerals". It was also observed by the Hon‟ble Apex Court, there was necessity of preparation of "comprehensive mines plan" for contiguous stretches of mineral deposits by the respective State Governments and they could also be encouraged to make inclusion of the plan by their appropriate incorporation in the Mineral Concession Rules, 1960 framed by the Ministry of Mines. With the above observations, the Hon‟ble Supreme Court issued a direction to the Central Government to take steps to bring into force the Minor Minerals Conservation and Development Rules, 2010 at the earliest and further directed the State Governments and Union Territories to take immediate steps to frame necessary rules under Section 15 of the Act, 1957 taking into consideration the recommendations of MoEF given in its report of March Page 20 of 33 2010 and model guidelines framed by the Ministry of Mines. The relevant directions given by the Hon‟ble Supreme Court is as follows:
"29. We, in the meanwhile, order that leases of minor minerals including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from MoEF."
21. The Hon‟ble High Court thereafter has recorded in this judgment that the Rules of 2013 have been framed by the State of Maharashtra by issuing Notification dated 18th July, 2013 in compliance with the directions contained in Para-28 of the judgment of Deepak Kumar's case (Supra) in exercise of powers conferred upon the State Government under Section 15 of the Act, 1957.
22. Thereafter, the Hon‟ble High Court considered the incidental question as to whether Rules of 2013 give effect to the interim direction of the Apex Court regarding granting of lease of minor minerals and renewal of such a lease for an area of less than five hectares only upon submission of environmental clearance certificate obtained from MoEF or not.
23. The answer to the said question was said to have been indicated in the provisions made in Chapter II of the Rules of 2013 which deals with the procedure for grant of „quarry lease‟. Rule 11 of the said Rules of 2013 provides for the application of „quarry lease‟ which as per Clause (f) of the same provides for environmental clearance certificate.
24. The Hon‟ble High Court thereafter has recorded in its judgment that it would be clear from the list of documents which were submitted with an application for grant of „quarry lease‟ that it must be accompanied with EC Certificate as well, which means that no „quarry lease‟ could be granted under Rule 11 (5), unless the application was accompanied with EC certificate. Accordingly, the question framed above has been answered in affirmative
25. Thereafter, the Hon‟ble High Court considered the next incidental question by which regimen now the issue of exploitation and extraction of minor minerals is governed ?. Thereafter, considering the same it has Page 21 of 33 been recorded that the issue of exploitation and extraction of minor minerals would be governed by the regulatory mechanism prescribed in the Rules of 2013.
26. The Hon‟ble High Court considered the relevant provisions of Rules of 2013 and has recorded that it finds that these rules contemplate two kinds of regulatory measures for exploitation and extraction of minor minerals. One is that of "quarry lease" and the other is of "quarry permit"
which are defined under Rule 2 (r) and Rule 2 (t) respectively, as under:
"Rule 2(r) "Quarry Lease" means a lease to mine, quarry, bore, dig, search for, win, work and transport or carry away any minor mineral specified therein."
"Rule 2 (t) "Quarry permit" means a permit granted under Chapter- IV of these rules to extract and remove any minor mineral in specified quantities and specified time."
27. Thereafter, the Hon‟ble High Court went on to clarify that the above definitions would indicate that apparent distinction has been made in Rules of 2013 between „quarry lease‟ which is granted under Chapter II and „quarry permit‟ under Chapter IV of the said Rules. A „quarry lease‟ is about full exploitation of a minor mineral right from searching for it through its excavation and mining to it‟s transportation and includes such operations, as mining, quarrying, boring, digging, searching for, and transporting; while a „quarry permit‟ is about obtaining a mined minor mineral and includes only limited operations like extraction and removal of the minor mineral.
28. The Hon‟ble High Court has further recorded in its judgment the permit granted for extraction and removal of minor minerals is of short term and is restricted to the specified land with ceiling put on the quantity of minerals to be extracted and removed and is also confined to specific time and volume and Rule 59 read with Rule 61 does not specify the requirement of submission of environmental clearance certificate. It is further held in the said judgment the rule making authority has made Page 22 of 33 a distinction between „quarry lease‟ and „quarry permit‟ to the effect that while „quarry lease‟ is for a long term period of time, wider in scope of operations, the „quarry permit‟ is for a very short and temporary period of time and is confined to limited operations and is intended to achieve the object of urgent and immediate need of minor minerals for various developmental works by striking a balance between the need of protection of environment and the need for undertaking developmental works which are in larger public interest. It is further recorded that for grant of „quarry permit‟ under Rule 59, there is another distinguishing feature that it does not have requirement of prior submission of EC certificate. Further, it has been emphasized by the Hon‟ble High Court that this distinguishing feature of „quarry permit‟ in particular, has rational and proximate relation with the purpose for which „quarry permit‟ is granted. The purpose of obtaining an already mined mineral serves the object of meeting an urgent and immediate need for the minor mineral for various developmental works. When an already minor mineral is to be extracted and removed from a limited area and in specific volume and specific time, the rationale behind no requirement of prior submission of environmental clearance certificate would be one of sustainable development where environment and development both go hand in hand. Thus, the question which has been framed by the Hon‟ble Court reproduced by us at the beginning has been answered accordingly.
29. This judgment of Hon‟ble High Court dated 14.10.2022 has been assailed before Hon‟ble Supreme Court in Go Green Foundation Vs. The State of Maharashtra & Ors., where-in notices have been issued but no stay has been granted.
30. Now, in view of above, we are of the opinion that the position of law which should be treated to exist as on date should be the view taken by the Hon‟ble Bombay High Court in Orange City Stone Crusher Owners Association case (Supra), according to which the „quarry permit‟ which is Page 23 of 33 issued under rule 59 and rule 61 of the Rules of 2013 does not require prior EC, subject to condition that the distinction made by the Hon‟ble High Court is very clear between the „quarry lease‟ and „quarry permit‟. „Quarry lease‟ has been held to be a long term grant for quarry for minimum five years extendable upto twenty (20) years which includes mining activity apart from other activity as well. But as against that, the „quarry permit‟ is interpreted to mean that it would not include the mining activity rather it has been clarified that only the already mined mineral may be permitted to be extracted and transported from specific area for specific time period for the purpose of development work on urgent basis in case of „quarry permit‟. Now, in the case in hand we have to see as to whether the temporary permits which were granted to the Respondent No.6/ Project Proponent include the permission of mining as well or do they permit the Project Proponent only to extract and transport already mined mineral.
31. We find that the provision of application for „quarry permit‟ provided under Rule 61 of Rules of 2013, provides that such an application shall be made in Form- P to the Competent Officer and the Form-P which is part of that rule stipulates as follows:
(1) "xxxxxx (2) xxxxxx (3) xxxxxx
(i) xxxx
(ii) xxxx
(iii) xxxx
(iv) xxxx
(v) "Minor mineral or minerals which the applicant intents to mine:-"
(vi) Xxx
(vii) Xxx
(viii) Xxx
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(ix) Xxx
(x) Xxx
(xi) Xxx
(xii) Xxx
(xiii) Xxx
(xiv) Xxx"
32. It appears from this rule that for purpose of issuance of the grant of short-term permit in respect of minor mineral, it is provided that the applicant needs to disclose the purpose of mining and details of the area etc. Therefore, how could it be taken that the temporary permit would not include the mining activity, rather it would include only extraction and transportation of already mined material, as has been interpreted by the Hon‟ble High Court of Bombay? But we are constrained to go by the view which has been taken by the Hon‟ble High Court of Bombay, though the same as of now is sub-judice before Hon‟ble Supreme Court.
But till the Hon‟ble Supreme Court comes out with final view on this, we would have to abide by interpretation made in this regard by Hon‟ble High Court of Bombay that „quarry permit‟ is only for extraction and transportation of already mined minor mineral and includes only limited operations like extraction and removal of the already mined minor mineral.
33. From the side of the Applicant, it was vehemently argued that since the „quarry permit‟ issued under Rule 59 read with 61 of the Rules of 2013 grants permission for exploitation, extraction and transportation, the same would also include act of mining because extraction would be possible only when the mineral has been mined. Therefore, in the case in hand Respondent No.6/ Project Proponent was required to obtain EC in view of the judgment of Hon‟ble Supreme Court in the Deepak Kumar‟s case.
34. Per contra, the learned counsel for the Respondent No.6/ Project Proponent as well as that of Respondent No.1- MoEF&CC, Respondent Page 25 of 33 No.2- SEIAA and Respondent No.3-MPCB have argued orally before us that the prior EC is not required in the case of „quarry permit‟. However, we find that in Joint Committee which comprised of SEIAA /MPCB /District Magistrate Hingoli, it has submitted that there is violation on the part of Respondent No.6/ Project Proponent of not obtaining prior EC before undertaking the mining activity under the grant of „quarry permit‟. Accordingly the Joint Committee has held that violation has been committed on the part of the Respondent No.6/Project Proponent.
35. First of all we would like to consider temporary permit which has already been granted in favour of the Project Proponent which has already been cited by us above at page No. 6 & 7 of this judgment. The said permit shows that 15,000 Brass stone has been permitted to be mined for the period between 12/01/2022 and 12/05/2022. This permit has been granted on temporary basis with condition No. 10 saying that permit holder will not be allowed to carry out the „mining activity‟ within 50 meter from public road, public buildings, rivers, nalla, water body, railway track etc. The said conditions reflect that in fact the said permit has been given for „mining activity‟ while in the subject of that it is recorded „Temporary Permission for Extraction‟. As per the interpretation made by the Hon‟ble Bombay High Court Nagpur Bench in case Orange City Stone Crusher Owners Association (supra), the temporary permit would not include the permission for „mining activity‟ because that is permissible only under the „quarry lease‟ and not under the „quarry permit‟. Pursuant to the said quarry permits, Respondent No.6/Project Proponent has carried out mining activity and has extracted minerals to the tune of 80,000 to 85,000 Brass from Gat No. 81/1 and Gat No. 80/2. It is apparent that this quantity has been extracted after mining activity having been resorted to, which was not permissible under quarry permit as per the Hon‟ble High Court of Bombay. Therefore, we find that the quarry permits which have been granted in the form of „temporary permission for extraction‟ are not in accordance with the „quarry permit‟ Page 26 of 33 as has been interpreted by the Hon‟ble High Court of Bombay and is not supposed to include mining activity, rather permission has been granted only to exploit, extract and transport already mined minor mineral. Therefore, we find these temporary permissions for extraction are not in accordance with the judgment of the Hon‟ble High Court of Bombay cited above, these permits need to be quashed.
36. The Principle Bench of this Tribunal in Original Application No. 360/2015 (with Report dated 30.01.2020) vide order dated 26.02.2021 dealt with environmental compensation for illegal sand mining and observed-
"Scale of compensation for violations on polluter pays principle
10. Vide order dated 17.08.2020, the Tribunal considered the CPCB report dated 30.01.2020, in pursuance of earlier orders on scale of compensation to be recovered for violation of norms for mining on polluter pays principle and the matter was deferred for further consideration of such scale and further orders in the light of the EMGSM 2020. On the issue of scale of compensation for violations, the Tribunal held that the same has to be calculated having regard to the polluter pays principle and not mere loss of royalty. This requires taking into account value of the illegally mined material and cost of restoration of the environment. CPCB did the exercise by constituting an expert Committee. The Tribunal considered the report as follows:-
"8. The Committee considered two approaches:
(I) Approach 1: Direct Compensation based on the market value of extraction, adjusted for ecological damages.Page 27 of 33
(II) Approach 2: Computing a Simplified NPV (Net Present Value)for ecological damages.
9. In the first approach, the criteria adopted is:
• Exceedance Factor (EF).
• Risk Factor (RF).
• Deterrence Factor (DF).
10. Approach-I is demonstrated by Table 1 as follows "Table No. 01: Approach 1 Permitte Total Excess Exceeda Compensation d Extractio Extracti nce in Charge (in Rs.) Quantity n (in MT on (in Extractio (in MT or or m3) MT or n:
m3) m3)
X Y Z = Y-X Z D (Market Value)
/ * (1+RF + DF)
X Where
D = Z x Market
Value- of the
material-per-MT- or-
m3
DF = 0.3 if Z/X = 0.11
to 0.40
DF = 0.6 if Z/X = 0.41
to 0.70
DF = 1 if Z/X >= 0.71
RF = 0.25, 0.50. 0.75,
1.00 as per
table 2)
11. Approach-II is demonstrated by following formula:-
"Till such time as data and information for a comprehensive NPV is worked out in a site specific manner to account for all (or at least the major) ecological damages, a simplified NPV, proxied on the market value of the illegally extracted amount may be computed. In this case the NPV approach would imply that the total benefits from the activity of sand mining (as represented by the market value of the extracted amount) be deducted from the total ecological costs imposed by the activity. In the absence of data on benefits and costs separately, we recommend a modification of the formula as shown below:
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Total Benefits (B) = Market Value of illegal extraction: D (refer Table 1) Total Ecological Costs = Market Value Adjusted for risk factor: D✱RF (refer Table1).
For present purposes, it is assumed that the Benefits would accrue only in the first year (in which the extraction of the illegally mined material takes place), while the ecological costs would continue to be felt over a period of time. NPV is to be calculated for a period of 5 years on the net value, Σ (C-B), at a discount rate ranging from 8%- 5%, varying in inverse with the risk factor. Thus, where the highest risk factor (say 1) is applicable, the discount rate applicable would be the lowest (say 5% in this case)."
12. Final recommendation is as follows:
"Thus, it is recommended that the annual net present value (NPV) of the amount arrived at after taking the difference between the costs and the benefits through the use of the above approach, maybe calculated for a period of 5 years at a discount rate of 5% for mining which is in a severe ecological damage risk zone. The rationale for levying this NPV is based on expert opinion that reversal and/or restoration of the ecological damages is usually not possible within a short period of time and rarely is it feasible to achieve 100% restoration, even if the sand deposition in the river basin is restore through flooding in subsequent years. The negative externalities of the mining activity are therefore to be accounted for in this manner. Ideally, the worth of all such damages, including costs of those which can be restored should be charged. However, till data on site- specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorization charged. However, till data on site-specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorization is unavailable or pending calculation, the following Discount Rates may be considered:
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Severity Mild Moderat Significan Severe
e t
Risk Level 1 2 3 4
Risk Factor 0.25 0.50 0.75 1.0
Discount 8% 7% 6% 5%
Rate
13. Annexure-A appended to the report gives the calculation asfollows:
"Compensation Charge (Scenario II - explicit accounting of NPV) Market Value of Illegally Mined Material (D) 5000*400 = 2000000/ Annual Value of Foregone Ecological Values D*RF = 2000000/-
Present Value of Foregone Ecological Values (@ 5% discount rate and over 5 years) Net Present Value (after netting out market value of illegally minedmaterial) -i.e., Total Compensation to be levied = NPV=PV-D = Rs. 66,58,953/-
Compensation Charge in above case:
Approach 1 Approach 2
(no explicit accounting of NPV) (explicit accounting of NPV)
D*(1+RF+DF) @ 5% discount rate and over 5 years
Rs. 46,00,000/- Rs. 66,58,953/-
14. The Tribunal directed undertaking of scenario
analysis, as suggested on behalf of the applicant and to furnish a further report accordingly. Further report dated 12.10.2020 has been filed by the CPCB reiterating its earlier report. We propose to approve Page 30 of 33 approach- 2 in the report. Apart from the above, a report dated 15.01.2021 has been filed by the Oversight Committee for the State of UP3 to which reference will be made later."
37. Following the above procedure in the present case we have computed EDC as follows-
Compensation as per Approach-1 Permitted TotalExtr ExcessExt Exceedan Market Market EcologicalD TotalCompensatio Quantity action raction ce in % Rate Valueof amages2 n illegallyMined Material Rs Brass Brass Brass perBra ss1 E=(Z/X)* ED=MV*DF TC=D+E X Y Z = Y-X M MV=Z*M 100 +MV*RF 0 85000 85000 Infinity 900 76500000 114750000 191250000 1as per Joint Committee Report PB page 987 in OA 54 of 2022 2Deterrence factor =1 as exceedance is more than 100% and Risk factor =0.5 as risk isconsidered moderate.
Compensation as per Approach -2 -
Market Value ofillegally Mined Factor (F) in Present Value (PV)
Year Material(MV) x RF denominator
F=(1+DR)^Year = Market Value / Factor
1 38250000 1.07 35747664
2 38250000 1.14 33409031
3 38250000 1.23 31223394
4 38250000 1.31 29180742
5 38250000 1.40 27271721
PV 156832552
NPV PV-MV 80332552
* Discount rate is taken as 7% as risk is considered moderate Compensation Charges in present case as per the two approaches are as follows:-
Approach 1 Approach 2
(no explicit accounting of NPV) (explicit accounting of NPV)
Rs. 19,12,50,000/- Rs 8,03,32,552/-
38. Since in the Original Application No. 360/2015, the amount of compensation charge has been calculated from Approach- I & Approach -II and the higher one was taken to be the compensation charge, which was made chargeable in the case in hand also, Page 31 of 33 following the same, we are of the view that the environmental compensation charge of the higher amount, which has been arrived at by adopting Approach-II, should be realized from the Project Proponent.
39. We have also considered EDC worked out by the Joint Committee as Rs. 15,30,000/- However we consider methodology used in Original Application No. 360/2015 (With Joint Committee report dated 30.01.2020) order dated 26.02.2021 more appropriate and hence EDC to be recovered is Rs 19,12,50,000/-
40. We conclude that-
1. In view of the above, Issue No.1 is decided in affirmative to the effect that, EC was required since the activity involved mining of the minor mineral.
2. As per issue No.2 we have to decide as to whether Respondent No.6 has committed any violations of the provision of law related to environment ? if yes, its effect. In this regard, we find that since the activity of mining has been conducted by the Respondent No.6/ Project Proponent without taking prior EC, the same is treated to be violation which impacts environment adversely. Therefore, this issue is decided accordingly. The Joint Committee report has also concluded that the prior EC was required to be obtained by the Respondent No.6/ Project Proponent before the carrying out the mining activity.
3. As per the issue No.3 we have to decide as to whether any damage to environment has been caused on account of the activity of the Respondent No.6/PP ? if yes, its effect?. In this regard, we are relying on EDC calculated by us based on the several earlier judgments passed by this Tribunal, and we decide this issue in affirmative, holding that on account of the illegal mining damage caused to the Environment is rightly Page 32 of 33 quantified at Rs. 19,12,50,000/- We decide this issue accordingly.
41. In view of the above findings, we dispose of this application with following directions:
1. The MPCB shall realize a sum of Rs. 19,12,50,000/- from the Respondent No.6/ Project Proponent who is directed to deposit the said amount with the Maharashtra Pollution Control Board(MPCB) within a period of one month from today and in the case the said amount is not deposited, the MPCB would be at liberty to take appropriate action for its realization.
2. The said amount shall be utilized by MPCB in consultation with District Collector and District Mining Officer for restoration of the environmental damage due to activities of Respondent No.6/ Project Proponent within a period of six months, after the said amount is deposited.
3. Report of remediation actions implemented along with benefits achieved shall be submitted by MPCB to the Registry of this Tribunal. This report shall also be posted on MPCB website.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM February 22, 2023.
Original Application No. 28/2022 Sachin J.
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