National Green Tribunal
Hanuman Sahay Gurjar Son Of Shri Heera ... vs State Of Rajasthan Through Principal ... on 21 August, 2023
Item No.03
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONAL BENCH, BHOPAL
(By Virtual Mode)
Original Application No.44/2023(CZ)
Hanuman Sahay Gurjar Applicant(s)
Versus
State of Rajasthan & Ors. Respondent(s)
Date of hearing: 21.08.2023
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant(s) : Mr.Vaibhav Pancholy, Advocate
For Respondent(s) : Mr.Nishant Kesharwani, Advocate for Mr.
Shoeb Hassan Khan, Advocate, State of
Rajasthan
Mr. Rohit Sharma, Advocate for R-2
Mr. Shrey Kapoor, Advocate for R-5
ORDER
1. This Original Application (hereinafter referred to as 'OA') has been filed by Hanuman Sahay Gurjar, alleging that his agriculture land is being destroyed by illegal operation of stone crusher machine by respondent 5 i.e., M/s Khatana Stone Pvt. Ltd., Tala Mode Achrol, village Kalwar, Tehsil Amer, District Jaipur and is violating fundamental rights of applicant. It is also said that respondents 1 to 4 i.e., State of Rajasthan through Principal Secretary, Department of Mines and Geology, Mining Engineer Jaipur, Member Secretary, RSPCB and Collector, Jaipur are not taking any action to protect agriculture land of applicant and prevent illegal activity carried out by respondent 5. 1 Inaction of respondents is contrary to law and violates legal rights of applicant.
2. It is said that applicant has agriculture land bearing Khasra Nos. 899, 904, 905, 906, 907, 909 and 910 to 913 at village Kalwar, Gram Panchayat Kaant, Tehsil Amer, District Jaipur with a total area measuring 4.11 hectares. Applicant is a farmer, earn his livelihood from agriculture. He is growing different crops from time to time at the said agriculture land. Presently, crop of lemon (small trees) and other crops are standing on the agriculture land of applicant. Adjoining to applicant's land, respondent 5 has set up stone crusher machines, operating the same illegally and due to such operations, causing stone dust, generating dirty water, and, polluted articles are spreading on the field of applicant, causing damage to agriculture of the applicant which is dying and not yielding progress. The agriculture land of the applicant is likely to be turned into 'barren land'. The basic livelihood of the applicant and his source of livelihood by proceeds of agriculture land is being marred and jeopardized due to illegal operations conducted by respondent no.5.
3. From record, it appears that land at Khasra No.837 was allotted for mining bearing mining lease no.297/97, to Shri D.P. Khatan, but the said mining lease was not operated, still it has been renewed in violation of mining rules and in particular, Rule18-A of Mining Concession Rule, 1986.
4. Presently, respondent no.5 is operating Stone Crusher Machines in the area adjacent to agriculture field of applicant, on the basis of No Objection Certificate (hereinafter referred to as 'NOC') issued by Sarpanch, Gram Panchayat Kaant, on 29.06.1997, to operate mining 2 activities and stone crusher machines at village Kalwar, at Khasra No.199 (new no.837).
5. Applicant has made several complaints to the authorities concerned. Matter was inquired by Patwari who submitted Report dated 23.11.2016 and 01.02.2017, wrongly stating that agriculture fields of applicant are vacant though crop was standing on the said land.
6. Applicant also made complaint to Collector but no action was taken. It has been brought to our notice that applicant also filed a Writ Petition No.11928 of 2018 in Rajasthan High Court (Jaipur Bench) which was disposed of vide judgment dated 24.03.2023, permitting applicant to approach this Tribunal for redressal of his grievance which he had raised in Writ Petition. Order of High Court dated 24.03.2023 reads as under:
"The petitioner has preferred this writ petition with the prayer to issue directions to the respondents no.1 to 4 to take appropriate action against the respondent no.5, to prevent the operation of stone crusher machine in village Kalwar, Gram Panchayat Kaant, Tehsil Amer, District Jaipur and further to constitute a Committee to inspect the premises of mining lease and stone crusher of respondent no.5.
Counsel for the respondents submits that in view of the observations of the Apex Court in case of Bhopal Gas Peedith Mahila Udyog Sangthan and Ors. Vs. Union of India and Ors. Reported in (2012) 8 SCC 326, the petitioner should approach the national Green Tribunal for the grievance raised in this writ petition. The Hon'ble Apex Court in the aforesaid judgment has held as under:
40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the 'NGT Act'). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and the NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and /or in Schedule 1 to the NGT Act shall stand transferred and can be instituted only before the NGT. This will help in rendering expeditious and specialized justice in the field of environment to all concerned."
Counsel for the petitioner also does not dispute the argument raised by the counsel for the respondents. 3
In view of the above, the writ petition is disposed of with liberty to the petitioner to approach the National Green Tribunal for redresssal of his grievance, which he has raised in this writ petition.
Since the main writ petition has been disposed of, the stay application also stands disposed of".
7. Learned Counsel for applicant submitted before us that there is no issue of mining since no mining has been carried out but due to operation of stone crusher, respondent no.5 is generating dust which is damaging agriculture crop of applicant but since said damage requires evidence, that matter can be examined by Civil Court and he may permitted to avail remedy before Civil Court.
8. We find above submission, misconceived. If any proponent, in furtherance of operating its commercial/industrial activities, causes any air pollution by emitting dust and thereby cause damage to person or property of any individual, victim is entitled to claim compensation under Section 15 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010') which reads as under:
"15. Relief, compensation and restitution.- (1) The Tribunal may, by an order, provide,
(a) Relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
(b) For restitution of property damaged;
(c) For restitution of the environment for such area or areas, as the Tribunal may think fit.
(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).4
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority."
9. In the present case, complaint of applicant is that respondent 5 is illegally operating stone crusher without any statutory permissions, emanating dust, causing damage to the agriculture crops.
10. Thus, this Tribunal has to and can examine following issues:
(I) Whether respondent no.5 is operating stone crusher illegally without any statutory consent etc.?
(II) Whether it is causing any air pollution? and;
(III) Whether there is any damage to the property of applicant, justifying award of compensation under Section 15 of NGT Act, 2010?
11. Coming to the first issue, we find that respondent no.5 has filed a reply, giving details of earlier proceedings, stating that earlier also applicant filed a complaint on 24.10.2016 before SDO, Amer, Jaipur which was also enquired and finding no substance, the same was disposed of.
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12. Another complaint dated 22.04.2018 was investigated by police and disposed of, finding complaint to be baseless. Copy of the complaint made to station SHO, PS Chandwaji on 22.04.2018 is placed on record as Annexure-R-5/1 to the reply by respondent 5. It was enquired into by investigating officer and he did not find any substance in the complaint after possessing all requisite clearance/permission/NOC from the Competent Authorities. Mining lease was granted in 1997 extended up to 14.07.2047, vide letter dated 02.05.2018 and copy of extension of mining lease is placed on record as annexure R-5-9.
13. For the purpose of operating stone crusher, applicant has been granted Consent to Operation by Rajasthan State Pollution Control Board (hereinafter referred to as 'RSPCB') to operate crusher vide letter dated 07.02.2019, which is valid upto 31.07.2024. Environmental Clearance under Environmental Impact Assessment Notification dated 14.09.2006 (hereinafter referred to as 'EIA 2006') was granted by State Level Environment Impact Assessment Authority, Rajasthan (hereinafter referred to as 'SEIAA Rajasthan') vide letter dated 17.05.2016. Therefore, we do not find that operation of stone crusher is without statutory permissions etc.
14. We answer issue (I) accordingly.
15. Now coming to issues (II) and (III) together, we find that no material has been placed on record to show that respondent 5 is causing air pollution and there is any damage to the crop of applicant's. Neither any documentary evidence nor otherwise material has been placed on record to substantiate the above complaint. In absence of any material to substantiate the claim of applicant, no relief under Section 15 can be granted.
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16. Issues 2 and 3, therefore, are answered against applicant.
17. In view of the above discussion, we find no merit in the application. It is accordingly dismissed.
Sudhir Agarwal, JM Dr. Afroz Ahmad, EM August 21, 2023 Original Application No.44/2023(CZ) MK 7