National Green Tribunal
Sri Ajit Kumar Dhal vs State Of Odisha & Ors on 6 May, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 10/2021/EZ
IN THE MATTER OF:
Sri Ajit Kumar Dhal,
S/o Sri Aditya Kumar Dhal,
R/o Gajapati Nagar, Police Station-Brajrajnagar,
District-Jharsuguda, Odisha,
Pin - 768216,
....Applicant(s)
Versus
1. State of Odisha,
Through Chief Secretary,
Secretariat Building, Bhubaneswar,
Pin - 751001,
2. The Chairman,
State Pollution Control Board,
Paribesh Bhawan, A/118,
Nilakanthanagar, Unit-VIII,
Bhubaneswar, Odisha,
Pin - 751012,
3. The Regional Officer,
State Pollution Control Board,
Odisha (Dept. of Forest & Environment, Govt. of Odisha),
Plot No. 370/5971, at Babu Bagicha (Cox Colony),
St. Mary's Hospital Road, Post-Industrial Estate,
Jharsuguda - 768203,
4. The Chief Environmental Engineer (C),
State Pollution Control Board,
Paribesh Bhawan, A/118,
1
Nilakantha Nagar, Unit-III, Bhubaneswar,
Pin - 751012,
5. The Principal Secretary,
Water Resources Department,
Govt. of Odisha,
Secretariat Building, Bhubaneswar,
Pin - 751001,
6. The District Collector-cum-Magistrate, Jharsuguda,
NH 10, Jharsuguda, Bijju Nagar, Jharsuguda,
Pin - 768204,
7. The Revenue Divisional Commissioner (RDC),
Kacheri Road, Hans Nagar, Sambalpur,
Odisha - 768001,
8. The Managing Director,
Odisha Development Corporation Ltd.,
Pathanivas (Old Block), Lewis Road,
Bhubaneswar - 751014,
9. The Director,
M/s Vedanta Limited,
Burkhamunda, Jharsuguda,
Odisha - 768203,
....Respondent(s)
COUNSEL FOR APPLICANT:
Ms. Mithu Bhattacharya, Advocate
COUNSEL FOR RESPONDENTS :
Mr. S.K. Nayak, AGA for R-1, 5 & 6
Mr. N.C. Bihani, Advocate a/w Ms. Papiya Banerjee Bihani,
Advocate for R-2 to 4,
Mr. Ratnako Banerjee, Sr. Advocate a/w Mr. Deepan Kumar
Sarkar, Advocate, Mr. Matri Prasad Advocate for R-9,
2
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- 22nd April, 2022 Pronounce On:- 06th May, 2022 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. This Original Application has been filed by the Applicant with the allegation that on 15.04.2021 the Applicant has purchased about 10 acres of land Plot No.12/15, Plot No.18/192 and Plot No. 18/195 under Mouza-Junarimunda, District Jharsuguda within the limits of Rajpur Panchayat but the Respondent No.9, M/s Vedanta Limited, has been dumping fly ash over the land and other ponds in the area thereby completely destroying the land and environment. There are serious allegations made in the Original Application that the Respondent No. 9 is manufacturing aluminum products and in the process of manufacturing, fly ash is being produced which is being dumped on the adjacent land of the Applicant. It is also alleged that the Applicant belongs to the Scheduled Caste category and as a result of dumping of fly ash, the quality of his agricultural land is being destroyed. It is further alleged that a fish pond created 3 by the Applicant, has been severely damaged by large scale dumping of fly ash. It is also alleged that the fly ash is being dumped by the Respondent No. 9 without erecting proper boundary wall and the same is washed with rain water into the fish pond and adjacent plots. The allegation of the Applicant further is that the Respondent No. 9 has established its industry within the residential area whereas it should have been established in an industrial area.
3. The Tribunal at the time of admission formed a committee comprising of the following Members:-
(i) A Senior Scientist, from Odisha State pollution Control Board, Bhubaneswar.
(ii) The District Collector-cum-Magistrate, Jharsuguda,
4. The Committee was directed to inspect the site and submit its report on the following aspects:-
(a) Whether the land on which the Respondent Company has established its industry is in industrial area;
(b) Whether there is any pond created by the Applicant for pisciculture which has now been degraded/polluted due to deposition of fly ash product by the Respondent Company;
(c) Whether fly ash is flowing into the water body and stream, if any, causing environmental damage to soil and water;
(d) Whether fly ash is also covering the agricultural land or other land thereby degrading the quality of the land; 4
(e) Whether environmental norms have been observed by the Respondent No.9, so far as disposal of fly ash is concerned and also for abatement of air and water pollution, and
(f) The Committee shall also acquire soil sample to determine its fertility and water sample for analysis of pollutants.
5. It was also directed that the Committee in its report shall consider the general impact and the damage suffered by the environment and the monetary value and cost of such environmental damage so that the same may be recovered from the polluter if violation is observed. The Committee was also required to suggest remedial measures for restoration of damage caused.
6. An affidavit has been filed by the Odisha State Pollution Control Board, bringing on record the Inspection Report of an inspection carried out on 08.07.2021. The Observation and Conclusion of the Report read as under:-
"Observations:
The Committee has conducted a detailed enquiry in and around the alleged site in presence of the Tahasildar, Jharsuguda & his officials, Chief District Agriculture Officer, Jharsuguda & his officials, Sarpanch, Rajpur, Complainant & the Villagers to verify the aspects as directed in para 10 & 11 of the order dated 15.06.2021 of the Hon'ble NGT, EZB, Kolkata and following observations were made:
Sl. Subjects as para 10 Observations
No. & 11 of the Hon'ble
NGT order dtd.
5
15.06.2021
a. Whether the land on The alleged site (land) is
which the respondent non-industrial area and
company has coming under the category
established its of agriculture land with
industry is in kissam Atta Sadharana,
Industrial area. Mala Sadharana and
Berna Sadharana. A
portion of Govt. village
forest Kisam land
measuring about Ac. 13.00
has also covered with ash
deposit by the M/s
Vedanta Ltd.
b. Whether there is any There is a Kata (Cross pond created by the Bond to harvest & store applicant for rain water for irrigation pisciculture which purpose) existed prior to has now been 1982. As per the statement degraded/polluted of the petitioner a portion of due to deposition of the said kata consisting of fly ash product by the around Ac. 5.00 have been respondent company. developed by him for pisciculture. It was further informed by the petitioner that Pisciculture has been commenced by him for the first time in that year.
c. Whether fly ash is Fly ash had flown to the flowing into the water said water body. However, body and stream if the ash has been settled at any, causing the bottom of the pond. The environmental thickness of ash deposition damage to soil & near the pond water level is water. minimum and is varying 1 cm to 130 cm towards the reclaimed area.6
d. Whether fly ash is There is no private also covering the agriculture land exist agricultural land or around the fly ash other land there by deposited area of M/s degrading the quality Vedanta Ltd. due to breach of land. in the earthen embankment fly ash flown away through the village forest covering Ac. 4.21 & water stream (Nala) measuring Ac. 0.14 towards the Kata (water body) measuring area of about Ac. 4.70.
e. Whether • Vedanta Ltd. has
environmental norms obtained following
have been observed permissions to fill up the
by Respondent No.9 site with fly ash as per
so far as disposal of the provisions of
fly ash is concerned Guideline for reclamation
and also for of low-lying area.
abatement of air & 1. Consent from Land
water pollution. Owner of Khata
No.10,
2. NOC from Sarpanch
of Rajpur Gram
Panchayat,
3. Consent to Establish
from SPCB, Odisha,
4. Consent to Operate
from SPCB, Odisha,
• But Vedanta Ltd.
deposited fly ash over
the govt. village forest
land measuring approx.
Ac. 13.00 adjoining to
the permitted pvt. Land
of Ac. 6.700 for which no
7
permission granted.
• It has completed the
reclamation of the land
with fly ash by March
2020 and provided
earthen embankment
towards the adjacent
low-lying areas for
protection against
surface runoff. However,
M/s Vedanta Ltd. has
not submitted the
completion certificate of
the alleged reclaimed
area for further
verification.
• The earthen
embankment of the
reclaimed site got
breached during the
rainy season in the
month of August 2020.
As a result, surface
runoff of the areas along
with wash outs of fly
ash had flown to the
alleged pond (Kata)
through the low lying
village forest area and
nala.
• It has neither intimated
the date of completion of
reclamation work of
alleged site nor
submitted the completion
certificate to the SPC
Board for further
8
verification.
• It has not properly
maintained the side
slopes of the completed
site in a manner to avoid
erosion or collapse of the
slopes at least up to end
of one monsoon after
completion of the work
as per Clause 4.6 (iv) of
Guidelines for
reclamation of low-lying
areas and abandoned
quarries with fly ash of
SPCB, Odisha.
• It has not provided
proper earthen
embankment with
adequate geo-technical
features Guidelines of
SPCB, Odisha for
reclamation of low-lying
areas and abandoned
quarries with fly ash.
• In some part of the
reclaimed area, it has
raised the height of ash
deposition than the
surrounding level as
well as the earthen
embankment. It has not
done proper compaction,
leveling & covering of
soil of at least 200 mm
thickness of the entire
reclaimed area to
prevent the chance of
9
mixing of fly ash in the
surface runoff during
rainy reason.
• It has not complied to
the Board's direction to
take remedial action
vide letter no. 1205
dated 15.12.2020.
f. The committee shall • The water sample from also acquire soil the alleged pond was sample to determine collected during the field its fertility and water visit and submitted to sample for analysis the laboratory of of water pollutants. Regional Office, State Pollution Control Board Odisha, Jharsuguda for analysis of pollutants.
It is revealed from the analysis report of the water sample that the parameters are within the standard prescribed by CPCB for Pond water.
• Three nos. of soil sample @ one each from the affected area of the village forest land, Kata land and one from the unaffected area of the Kata have been collected and submitted to the laboratory of Agriculture Department of Government to determine its fertility.
The analysis report of Soil sample indicates 10 that it has not much hampered its fertility rate. However, there is only one parameter namely Boron was found to be deficit in the land covered with fly ash.
Para General impact and • The ash deposited land
11. damage suffered by area was non-
the environment and agricultural land and no the monetary value cultivation was carried and cost of such out. The soil analysis environmental report indicates that it damage so that same has not much impacted can be recovered. the fertility of land below the Ash. However, it has impacted much to the fish farming area of the Kata for more than one year. The committee consulted the local Sarpanch for the monetary losses and it was calculated to be Rs.
50,000/- per annum
towards the fishing
activity in the said kata
for the initial years. The
Govt. village forest land
restoration work, the
earthen embankment
around the ash deposit
and removal of excess
fly ash from Govt. land,
compaction and earth
coverage of the Ash
11
deposit area with earth
& proper slopping may
be imposed on Vedanta
or, further time may be
given to involve the
Deptt. of Forest &
Environment. to workout
the cost of reclamation
/restoration.
• Ash deposit from the
Govt. village forest
kisam land of Ac. 17.210
(Ac. 13.00 & Ac. 4.210)
and water stream (nala)
kisam land of Ac. 0.14
may be removed
completely and the land
may be restored by M/s
Vedanta at its own cost.
Remedial measures Following steps need to be
for restoration of taken as Remedial
damage caused Measures for restoration of
the damage caused in a
time bound manner and
action taken has to be
verified from time to time
by officers of SPCB.
• Ash deposition has to
be completely lifted or
removed from the
land as well as from
the pond area in a
manner to maintain
the natural profile of
the land & with no
soil excavation. The
kata shall be made
12
habitable for fish
farming and
irrigation.
• The entire reclaimed
area along with its
slope shall be
thoroughly
compacted,
leveled
uniformally within
300 mm of proper soil
covering to prevent
such incidence in
future. Wherever
necessary, the excess
fly ash may be
removed.
• Earthen embankment
of adequate
geotechnical strength
has to be provided
and maintained at
least up to end of one
monsoon after
completion of the
work as per the
Clause 4.6 (iv) of the
Guidelines for
reclamation of low-
lying areas and
abandoned quarries
with fly ash of SPCB,
Odisha.
• Ash deposit from the
Govt. village forest
kisam land of Ac.
13
17.210 (Ac. 13.00 &
Ac. 4.210) and water
stream (Nala) kisam
land of Ac. 0.14 may
be removed
completely and the
land may be restored
by M/s Vedanta at its
own cost.
• A technical dedicated
team of M/s Vedanta
Ltd. comprising of
Civil Engineering and
Environment
professional shall
supervise, monitor
and perform the
aforesaid remedial
works for restoration
of the damage
caused.
Conclusion:
In view of the above, it is clear that M/s Vedanta Ltd. has violated consent conditions. As a result, earthen embankment of the reclaimed area got breached and surface runoff along with ash has flown to the nearby area and kata (pond). The respondent industry may be directed to pay the restoration cost along with fish farming compensation for the monetary loss of the petitioner and to take the aforesaid remedial measures immediately for restoration of the damage caused to the Govt. Land in an time bound manner."
7. Another Inspection Report of inspections carried out on 25.09.2021 and 19.10.2021, has been filed as Annexure-R2/2 (page 14 no. 160 of the paper book), along with the affidavit of the Odisha Pollution Control Board dated 21.10.2021, which reads as under:-
• The petitioner (Ajit Kumar Dhal) has a total land of Ac.
7.00 land (plot no. 18/192, area Ac. 400 & Plot No. 18/195, area Ac. 3.00) of Khata No. 12/15 in the Village-
Junanimunda coming under Kata Kisam (Water Body). As per revenue record, Kata is a water body and it is a traditional water harvesting structure to preserve the rain water through cross bond and used for irrigation and fishing purpose. Copy of ROR is enclosed for kind reference as Annexure-I. There is no private agricultural land affected due to breach of the earthen embankment of the reclamation site of M/s Vedanta Ltd., Brajarajnagar, Jharsuguda.
• The thickness of the ash deposition at the land under question was 1 cm to 130 cm in a slope. The thickness of ash deposition was 1 cm at the eastern end in the kata and 130 cm at the western end and deposited in a manner of slope.
• The detail of the restoration cost of the affected area is estimated as follows:-
Sl. Type of land Affected area Restoration cost/ No due to ash Environmental . deposition compensation (Approximate)
1. Govt. Village Ac. 17.210 dec 20,82,427/-
Forest Kisam land
2. Govt. Land Water Ac. 0.114 dec 13,794/-
stream (Nala)
Kisam
3. Total Kata Land Ac. 7.00 dec 4,23,504/-
(Pond) of
petitioner
4. Compensation for - 1,00,000/-
pisciculture for
15
financial year
2020-21 & 2021-
22
Total Rs. 26,19,725/-
• However, it is found on field verification that the ash deposited over the government forest kisam, water stream land and the private kata land have already been removed by M/s Vedanta Ltd. at its own cost. The photograph from the field is attached as Annexure-III for reference.
• The entire reclaimed area along with its slope was found to be thoroughly covered with soil and no exposed ash surface was found. The photograph from the field is attached as Annexure-IV for reference.
• The prevailing practice for pisciculture in the Govt. owned ponds is carried out by the Gram Panchayat through annual auction process."
8. This report was conflicting in as much as in one paragraph of the report it was mentioned that thickness of fly ash deposition on the land in question was 1cm to 130cm in a slope. The thickness of ash deposition was 1cm at the Eastern end in the Kata and 130cm at the Western end and deposited in a manner of slope. However, in the next para it is mentioned that during field verification the ash deposition was found to be over the Government forest kisam land, water system land and private kata land which have been removed by M/s Vedanta Ltd., Respondent No.9 the Project Proponent (PP).
9. The Odisha Pollution Control Board has calculated an amount of Rs.26,19,725/- (Rupees Twenty Six Lakhs Nineteen Thousand Seven Hundred Twenty Five) towards restoration and remedial 16 measures of the affected area. The Tribunal observed that in so far as the observations of the Committee and the remedial measures suggested by the Committee that the Kata (pond) in question shall be made habitable for fish farming and irrigation but the report is silent in this regard and all that has been stated is that pisciculture in Government owned pond is the same as carried out by the Gram Panchayat concerned through annual auction process as per the prevailing practice. The Tribunal, however, further noted that the report was silent as to whether the pond had been excavated/cleaned for grant of auction and whether it has been made habitable for fish farming. The remedial measure/action suggested by the Committee was also that the entire reclamation area along with its slope be thoroughly compacted, leveled uniformally with 300 mm of proper soil covering to prevent such incidence in future. The report was also silent with regard to what action has been taken in that regard. It was also noted that the remedial measure/action further suggested was that the earthen embankment of adequate geotechnical strength has to be provided and maintained at least up to the end of one monsoon after completion of the work as per Clause 4.6(iv) of the Guidelines for reclamation of low-lying areas and abandoned quarries with fly ash. The report was also silent in this regard. Therefore, the Tribunal granted further time to the Odisha State Pollution Control Board for filing a comprehensive affidavit including all points in the Terms of Reference given in para 10 & 11 of the order dated 15.06.2021 and also showing compliance of the remedial measures suggested 17 by the Committee for restoration of the damage caused and recovery of the Environmental Compensation of Rs. 26,19,725/- (Rupees Twenty Six Lakhs Nineteen Thousands Seven Hundred Twenty Five only). It was also noted that the amount of Rs. 26,19,725/- (Rupees Twenty Six Lakhs Nineteen Thousands Seven Hundred Twenty Five only) did not refer to the inaction of the Respondent No.9 with regard to the entire remedial measures for restoration of the damage caused to the environment and, therefore, a fresh financial assessment of damage caused would have to be made for purposes of recovery from the Respondent No.9, M/s Vedanta Limited.
10. In compliance of the order of the Tribunal dated 21.01.2022, the Odisha State Pollution Control Board has filed an additional affidavit dated 03.03.2022 bringing on a report (Annexure-R-2/3 page nos. 173 to 177 of the paper book), on low lying area reclamation site by utilizing ash by the Respondent No.9, M/s Vedanta Limited, inspection of which was carried out on 21.02.2022. The report reads as under:-
"A report on Low-lying a area reclamation site by utilizing ash by M/s. Vedanta Ltd., Junanimunda, Brajarajnagar, Jharsuguda in the matter of O.A. No.10/2021/EZ.
In response to the order dtd.21.01.2022 of the Hon'ble Green Tribunal, EZB, Kolkata in the matter of O.A. No. 10/2021/EZ and in reference to the report of the inspection conducted on 08.07.2021 by the Committee, a site visit was conducted on 21.02.2022 in and around the alleged site to verify the various aspects as pointed out in 18 the aforesaid Hon'able NGT the order and following observations were made.
SI. No. Para of the Hon'ble Observations NGT the order dtd.21.01.2022
1. We find it very • Thickness of ash surprising that in one deposition at the paragraph of the report land in question it is mentioned that the was 130cm at thickness of ash western end near deposition at the land in the breach point question was 1 cm to down to 1 cm at 130cm in a slope. The the tail end on the thickness of ash Eastern Part in a deposition was 1 cm at slope manner.
the eastern end in the • The parcel on Kata and 130 cm at the which this deposit western end and had been spread deposited in a manner of comprised of 17.21 slope. However, in the acres of Forest subsequent para, it is land, Kata land of mentioned that during 04.70 acres out of the field verification the the total area of ash deposition was 07.00 acres and found to be over water stream Government Forest (Nalah area) 0.14 Kisam land, water acres. It is stream land and the pertinent to private kata land which mention that the have been removed by Kata land in toto is Ms/ Vedanta Ltd. at its 07.00 acres out of own cost. which the cover of ash was on 04.70 acres. Now on site visit it is ascertained and 19 evident on the field that the entire ash deposition has been removed by M/s Vedanta Ltd.
from the total
parcel consisting of
Govt. (Forest +
Water Stream) and
private (Kata land).
2. So far as the • As per revenue
observations of the record, Kata is a
Committee and the water body and it
remedial measures is traditional water
suggested by the harvesting
Committee that the kata structure to
(pond) in question shall preserve the
be made habitable for rainwater through
fish farming and cross bond existed
irrigation, the report is prior to 1982.
silent in this regard and • The water sample all that has been stated from the alleged is that as per the kata land was prevailing practice for collected during pisciculture in the Govt. the field visit on owned pond the same is 08.07.2021 for carried out by the Gram analysis and it is Panchayat concerned revealed from the through annual auction analysis report of process. Whether the the water sample pond has been that the excavated/cleaned for parameters are grant of auction and within the whether the pond has standard been made habitable for prescribed by fish farming has also not CPCB for Pond been stated in the water.
20
report. • Further, it is
mentioned in the
last report that
"However, it is
found on filed
verification that
the ash deposited
over the
government forest
kisam, water
stream land and
the private kata
land have already
been removed by
M/s Vedanta ltd.
at its own cost."
• Again, it is verified
by the Committee
on 21.02.2022, the
Kata land has
been cleaned and
o0nly clay was
found as it has
been dried up. This
type of Kata land
is not suitable for
pisciculture as the
property is not
bound by bund on
all sides. Bunds
are present on two
sides and other
two sides are
open. To make the
pod suitable for
pisciculture,
certain conditions
21
are required to be
fulfilled as per the
report of Fishery
Department of
Govt. of Odisha.
Since this is a
private land it all
depends upon the
land owner
whether he will be
going for earth
work at own
investment for
pisci-culture in
future. Detail
report of the same
is enclosed for
reference.
3. The remedial action • The entire
suggested by the reclaimed area
Committee was also that with its slope was
the entire reclamation thoroughly
area along with its slope compacted, leveled
be thoroughly and covered with
compacted, leveled soil as per visual
uniformly with 300 mm observation on the
of proper soil covering to day of inspection.
prevent such incidence The Committee is
in future. The report is of opinion that a
silent as to what action study may be
has been taken in that carried out to
regard. verify the
thickness of soil
covering of the
entire reclaimed
area by National
Accreditation
22
Board for Testing
and Calibration
laboratories
(NABL) certified
Laboratories or
Institute of
National Repute
like NITs/IITs at
its own cost of the
respondent
industry. The
detail report may
be submitted
directly to Hon'ble
NGT by the
respondent
industry.
4 The remedial action • It has provided a
further suggested was solid earthen
that the earthen embankment as a
embankment of protection
adequate geotechnical measure. The
strength has to be Committee is of
provided and opinion that a
maintained at least up study may be
to the end of one carried out to
monsoon after verify the
completion of the work geotechnical
as per the Clause 4.6 (iv) strength of earthen
of the Guidelines for embankment by
reclamation of low-lying National
areas and abandoned Accreditation
quarries with fly ash of Board for Testing
SPCB, Odisha, the report and Calibration
is silent in this regard. laboratories
(NABL) certified
laboratories or
23
Institute of
National Repute
like NITs/IITs by
the respondent
industry at its own
cost. The detail
report may be
submitted directly
to Hon'ble NGT by
the respondent
industry.
5 Ms. Papiya Banerjee • A detail
Bihani, learned Counsel comprehensive
appearing for Odisha report on
State Pollution Control inspection dtd.
Board as well as Mr. 08.07.2021 has
Saubhagya Ketan already been
nayak, learned AGA submitted for all
appearing for State the points in the
Respondents, Govt. of Terms of Reference
Odisha, pray for and are given in para 10 &
granted three weeks 11 of the order
time for filing further dated 15.06.2021.
comprehensive affidavits Further,
which should include all clarification on the
the points in the Terms aforesaid report &
of Reference given in a field verification
para 10 & 11 of the report of
order dated 15.06.2021 19.10.2021 has
and also showing also been
compliance of the submitted.
remedial measures • Again, a field visit
suggested by the was conducted on
Committee for 21.02.2022 to
restoration of the verify the status of
damage caused and the site and
recovery of the parawise
24
Environmental observations has
Compensation of been mentioned. It
Rs.26,19,725/- (Rupees is observed on the
Twenty Six lakhs day of inspection
Nineteen Thousand i.e. 21.02.2022 tat
Seven Hundren Twenty the ash deposited
Five). over the
government forest
Kisam, water
stream land and
the private kata
land have already
been removed by
M/s Vedanta Ltd.
at its own cost.
• The entire
reclaimed area
with its slope was
thoroughly
compacted, leveled
and covered with
soil as per visual
observation on the
day of inspection.
The Committee is
of opinion that a
study may be
carried out to
verify the
thickness of soil
covering of the
entire reclaimed
area and to verify
the geotechnical
strength of earthen
embankment by
National
25
Accreditation
Board for Testing
and Calibration
laboratories
(NABL) certified
laboratories or
Institute of
National Repute
like NITs/IITs by
the respondent
industry at its own
cost. The detail
report may be
submitted directly
to Hon'able NGT
by the respondent
industry.
• There is no
agriculture private
land affected due
to breach of the
earthen
embankment of
reclamations site.
• The private kata
land has been
cleaned and only
clay was found as
it has been dried
up. This type of
kata land is not
suitable for
pisciculture as the
property is not
bound by bund on
all sides. Bunds
are present on two
26
sides and other
two sides are
open. To make the
pond suitable for
psiciculture,
certain conditions
are required to be
fulfilled as per the
report of Fishery
Department of
Govt. of Odisha.
Since this is a
private land it all
depends upon the
lad owner whether
he will be going for
earth work at own
investment for
pisci-culture in
future. Detail
report of the same
is enclosed for
reference.
6 We also find that this • To assess the
amount of damage caused,
Rs.26.19,725/- (Rupees three nos. of soil
Twenty Six lakhs sample @ one each
Nineteen Thousand from the affected
Seven Hundred Twenty area of the village
Five does not refer to the forest land, Kata
inaction of the land and one from
Respondent No.9 with the unaffected
regard to the entire area of the Kata
remedial measures for and water sample
restoration of the was collected on
damage caused which 08.07.2021 during
we have already noted the visit of the
27
hereinabove, and which Committee. It is
entail a fresh financial evident from the
assessment of the analysis reports
damage caused which is that the
required to be recovered parameters are
from M/s Vedanta Ltd. within the norms.
• There is no
agricultural private
land affected due
to breach of the
earthen
embankment of
reclamations site.
• The Industry (M/s.
Vedanta ltd.0 has
done all the
remediation &
restoration cost at
its own cost.
However, the
financial
assessment was
estimated to be Rs.
26,19,725/- as per
the observation of
the Committee.
In view of the
analysis results of
soil & water
sample ad
observation of the
committee made
earlier on
08.07.2021, the
ash deposition has
not impacted to the
28
fertility rate of soil
of the affected
Govt. land. Under
such
circumstances, a
fresh financial
assessment based
on the previous
observations made
earlier on
08.07.2021 may
not be feasible.
11. The applicant in his affidavit dated 05.04.2022 has laid great stress upon the findings and the remedial measures suggested by the Committee.
12. The Respondent No.9, M/s Vedanta Limited, Project Proponent (PP), in its affidavit dated 20.04.2022, has further stated that it had carried out all remedial measures at its own cost and as per letter of the District Collector-cum-Magistrate , Jharsuguda, dated 10.08.2021, the Respondent No.9 had also paid compensation of Rs. 5,00,000/- (Rupees Five Lakhs only) to the Applicant, Sri Ajit Dhal, for damage caused to the Applicant towards soil filling and levelling and compaction in the reclaimed area (Ac. 8.20 decimal). Further, the Respondent No.9 has also claimed to have paid Rs.5,46,31,596/-(Rupees Five Crore Forty Six Lakhs Thirty One Thousand Five Hundred Ninety Six Only) for remedial measures towards removal of ash from Government village forest Kisam land (Ac.17.210 decimal) and removal of ash from 29 Government land water stream (Nala) Kisam (Ac. 0.114 decimal). Thus, it is stated that by the Respondent No.9 that he had paid a total amount of Rs.5,51,31,596/-(Rupees Five Crore Fifty One Lakh Thirty One Thousand Five Hundred Ninety Six Only).
13. The learned Counsel for the Respondent No.9 has submitted that having paid Rs.5,51,31,596/-( Rupees Five Crore Fifty One Lakhs Thirty One Thousand Five Hundred Ninety Six Only), the said Respondent has paid much more than Rs.26,l9,725/- (Rupees Twenty Six Lakhs Nineteen Thousand Seven hundred Twenty Five Only) computed towards Environmental Compensation by the Committee and, therefore, the imposition of Environmental Compensation of this amount was absolutely incorrect.
14. From the documents on record and the Inspection Report which has not been disputed by the Learned Counsel for the Respondent No.9, we find that damage caused to the Kata Land (Pond) of the Applicant and damage caused to the Government village forest kisam land is admitted by the Respondent No.9.
Though the said Respondent claimed that he has paid a total sum of Rs. 5,51,31,596/- (Rupees Five Crore Fifty One Lakhs Thirty One Thousand Five Hundred Ninety Six Only) towards remedial measures and compensation to the Applicant, however, the same cannot be equated with Environmental Compensation which the Project Proponent would be liable to pay. Environmental Compensation is for the illegal and unlawful acts of the Project Proponent causing damage to the environment. Cost of restoration 30 towards remedial measures is the cost of ameliorating the ill-effects of the damage caused to the land, water, air, flora and fauna, etc., by the Project Proponent. Environmental Compensation on the other hand is a charge for the deliberate disregard by the Project Proponent to the excesses committed by him which have resulted in damage to the environment which he ought to have anticipated and taken care of under the Precautionary Principle.
15. The Respondent No.9, Project Proponent, in his affidavit has further stated that the amount of Rs. 5,51,31,596/- (Rupees Five Crore Fifty One Lakhs Thirty One Thousand Five Hundred Ninety Six Only), is far in excess of the amount suggested by the Committee. However, we find that the Committee has recommended Rs. 26,19,725/- (Rupees Twenty Six Lakhs Nineteen Thousand Seven Hundred Twenty Five), as the restoration cost, though in Annexure R-2/2 (page no. 268 of the paper book) to the affidavit, it is referred to as restoration cost/environmental compensation. However, a reading of the report would show that this amount is not towards Environmental Compensation rather it is the cost of restoration. In fact, the chart itself carries the heading 'The detail of the restoration of the affected area is estimated as follows'. We also find that the amount of Rs. 5,00,000/- (Rs. Five Lakhs) paid by the Respondent No.9, Project Proponent, to the farmer, the Applicant, is not under the direction of the Committee since there is no such direction for determination of such amount. The report of the Committee filed as Annexure-R-2/3 (page no. 292 to 296) to the affidavit of the Odisha State Pollution Control Board dated 31 03.03.2022, also mentions that the industry has done all the remediation and restoration measures at its own cost. However, the financial assessment was estimated to be Rs. 26,19,725/- as per the observation of the Committee and this amount cannot be equated with Environmental Compensation.
16. The Hon'ble Supreme Court in (1987) 1 SCC 395; M.C. Mehta and Another Vs. Union of India and Others, has held that the rule for compensation by reason of an accident or persons dying or suffering injury caused by the industrial enterprise cannot be determined in terms of the judgment passed in Rylands Vs. Fletcher (1868) LR 3 HL 330; 19 LT 20; (1861-73) All ER Rep 1. Para 31 of the judgment reads as under:-
"31. We must also deal with one other question which was seriously debated before us and that question is as to what is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands v. Fletcher apply or is there any other principle on which the liability can be determined. The rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he falls to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing 32 escaped without that person's wilful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. Of course, this rule applies only to non- natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. Vide Halsbury Laws of England, Vol. 45 para 1305. Considerable case law has developed in England as to what is natural and what is non-natural use of land and what are precisely the circumstances in which this rule may be displaced. But it is not necessary for us to consider these decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry out part of the developmental programme. This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel 33 inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms Which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence and we cannot countenance an argument that merely because the new law does not recognise the rule of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down in Rylands v. Fletcher as is developed in England recognises certain limitations and responsibilities. We in India cannot hold our hands back and I venture to evolve a new. principle of liability which English courts have not done. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant 34 to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England. We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity. If the enterprise is permit- ted to carry on an hazardous or inherently dangerous activity for its 35 profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its over-heads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an acci- dent in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher."
17. The Hon'ble Supreme Court also held that the measure of compensation must be co-related to the magnitude and capacity of the enterprise and such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be 36 the amount of compensation payable by it for the harm caused. Para 32 of the judgment reads as under:-
"32. We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deferent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise."
18. In the present case the damage caused to the environment has been caused by dissipation of fly-ash in the atmosphere as also on the agricultural land of the Applicant. It was the duty of the Respondent No.9, Project Proponent, if carrying on a hazardous or inherently dangerous activity, to take reasonable care and to ensure that no damage was caused either to the land or air in the vicinity of his industry and if any harm is caused to the air and land due to generation of fly-ash by the Respondent No.9 industry, it is the abundant duty of the Respondent No.9 to compensate those losses on the principle of 'Polluter Pays' as held by the Hon'ble Supreme Court in (1996) 3 SCC 212; Indian Council for Enviro-Legal Action and Others Vs. Union of India and Others.
19. In this view of the matter, we are of the view that if the cost of remedial measures itself is 5,51,31,596/- (Rupees Five Crore Fifty One Lakhs Thirty One Thousand Five Hundred Ninety Six Only), 37 the Environmental Compensation cannot be less than at least Rs.1,00,00,000/-(Rupees One Crore). We, therefore, determine the cost of Environmental Compensation @ Rs.1,00,00,000/-(Rupees One Crore). The said amount shall be deposited by the Respondent No.9, Project Proponent, with the Odisha State Pollution Control Board within one month, failing which the same shall be recovered from him by due process of law.
20. We further direct the Respondent No.9, Project Proponent, to conduct a study to verify geotechnical strength of earthen embankment by National Accreditation Board for Testing and Calibration Laboratories (NABAL), certified Laboratories or institute of national repute like NITs/IITs. The Respondent No.9 is further directed to carry out a study through any national institute of repute like NITs/IITs to verify the thickness of soil covering of the entire reclaimed area. The cost of both the studies to be conducted shall be borne by the Respondent No.9, Project Proponent, and the report thereof may be submitted to the Odisha State Pollution Control Board for future direction.
21. The Odisha State Pollution Control Board is also directed to regularly monitor the situation and in case further violation is found, action in accordance with law may be taken.
22. With the aforesaid directions, the Original Application No. 10/2021/EZ is accordingly disposed of.
23. There shall be no order as to costs.
38
....................................... B. AMIT STHALEKAR, JM ..................................... SAIBAL DASGUPTA, EM Kolkata, May 6th, 2022, Original Application No.10/2021/EZ AK 39