National Green Tribunal
Human Rights Redemption Society ... vs Union Of India Through Its Secretary on 4 July, 2019
CORRECTED JUDGMENT
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
**********
Original Application No. 117/2016 (CZ)
(M.A. Nos. 457/2017 & 48/2018)
IN THE MATTER OF:
1. Human Right Redemption
Social Welfare Association of India
Through its Acting President
Narayan Das Vishwakarma
Village and Post Odgadi
District - Singrauli (M.P) .... Applicant
Versus
1. Union of India
Through its Secretary
Ministry of Environment & Forest
Prayavaran Bhawan, CGO Complex
Lodhi Road, New Delhi
2. The Secretary, Ministry of Coal
Shastri Bhawan, New Delhi
3. Ministry of Water Resources
River Development and Ganga Rejuvenation
Through its Principal Secretary
626, M/o Water Resources
Shram Shakti Bhawan, Rafi Marg
New Delhi - 110001
4. Ministry of Farmer Welfare
And Agricultural Development
Through Principal Secretary
D-14, 74 Bunglow, Bhopal (M.P)
5. The Chief Conservator of Forest
(Central) Ministry of Environment
And Forest, Regional Office, Link
Road No. 3, E-5 Arera Colony, Bhopal (M.P)
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6. Central Pollution Control Board
Through its Chairman, Parivesh Bhawan
CBD-cum Office Complex
East Arjun Nagar, Delhi
7. M.P Pollution Control Board
Through its Chairman
Parayavaran Parisar E-5 Arera
Colony, Bhopal (M.P)
8. The Collector
District Singrauli (M.P)
9. State Water Resource Department
Through Its Executive Engineer, Region
No.2, Singrauli, (M.P)
10. M/s Hydro-Geological Survey
Consultants Pvt Ltd.
C-103, Shastri Nagar, Jodhpur,
Rajasthan, 34200
11. M/s Jai Prakash Power Ventures Ltd
Through its Director, Office at Complex
Of Jaypee Nigrie Super Thermal Power
Plant Vill-Nigrie, Tehsil- Sarai, Dist-
Singrauli -486669
12. The Director,
Jay Prakash Power ventures Ltd.
Amiliya (North) Coal Mines
Village Majhauli, P.O Bandha
The- Deosar, Dist Singrali (M.P) ...Respondents
COUNSEL FOR APPLICANT (S):
Mr. Dharamvir Sharma, Advocate
COUNSEL FOR RESPONDENTS:
Ms. Nitika Delouri, Advocate for MPPCB
Mr. Naman Nagrath, Sr. Advocate with Mr. Aman Pandey,
Advocate for R-11 & 12
Mr. Om Shanker Shrivastava for Mr. Pramod Saxena
Advocates for MoEF & CC
Mr. Om Shanker Shrivastava, Advocate for CWC
Mr. Sachin K. Verma, Advocate for State of M.P.
Mr. Yadvendra Yadav, Advocate for CPCB
Mr. Sambhav Sogani Advocate R-10 & 11
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Mr. Sushil Kumar Srivastava, Scientist E/ Member Secretary
Coal Mining (discharging the duties of Director, Coal Mining)
JUDGEMENT
PRESENT:
Hon'ble Mr. Justice Raghuvendra S. Rathore(Judicial Member) Hon'ble Dr. Satyawan Singh Garbyal (Expert Member) Reserved on: 28th May, 2019 Pronounced on: 4th July, 2019
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?
Dr. S.S. GARBYAL, (EXPERT MEMBER)
1. In this application, the applicant has raised the issue of dumping and layering of over burden by Respondent no. 11 and 12- M/s Jaiprakash Power Ventures Ltd., on the catchment and command area of the Kanchan River. Further, depositing of coal sand, rocks, dust, mud, sludge and overburden and explosive residue into the river thereby polluting and shrinking it day by day. It has been stated that the Japypee Nigrie Super Thermal Power Project comprising 2 X 660 MW super-critical unit was setup by M/s Jaiprakash Power Ventures Ltd., at Village Nigrie, Tehsil Deosar, District Singrauli in State of Madhya Pradesh. The coal requirement of the Power Plant is being met from Amelia (North) Coal Block which is 70 kms from the Nigrie Power Plant. The Amelia (North) Coal Block was earlier allotted to M/s Madhya Pradesh State Mining 3 Corporation Ltd., and later on it was cancelled in pursuance of the Hon'ble Supreme Court's order. The Block has now been vested with M/s Jaiprakash Power Ventures Ltd. The Environmental Clearance (EC) was initially granted on 20.07.2007 to M/s. Madhya Pradesh State Mining Corporation Ltd., and subsequently on allocation of the coal block, it was granted to M/s Jaiprakash Power Ventures Ltd. on 13.05.2015.
2. The applicant alleges that due to dumping of overburden by Respondent no. 11 - M/s Jaiprakash Power Ventures Ltd., the natural water gets destroyed at source due to flow of mines effluents, explosive wastes, coal waste, workshop waste like grease, vehicular dust and other waste. Therefore, the natives and local people of 28 villages of Singrauli districts have been facing acute shortage of water, not only for irrigation but also for drinking and allied purposes. Few photographs showing mine dumps on bank of the river have also been annexed. The applicant has, therefore, prayed as follows:
"i. To call the entire records for kind perusal of this Hon'ble Tribunal lying in possession of State Government, Jaypee Power Ventures, water resource department, Agriculture Department, M/s Hydro-geosurvey consultants private Ltd Jodhpur, MoEF and MPPCB to ascertain the situation of rivers, rivulets and streams, within the leased boundary of the Mining company and 4 also to ascertain that what impact has been caused due to mining over the ecology, surface water, wild animals and agriculture in the area spreading forest cover and several adjoining villages.
ii. To issue appropriate direction to Jaypee Power Ventures ltd (JPCL) to stop carry out mining in derogation to the statutes and for mining only at a safe distance from Kanchan River and Other Rivulets and streams flowing within lease boundary.
iii. To issue appropriate direction to respondents, in particular respondent (JPVL) to immediately desist from dumping the overburden into Kanchan River particularly the area of 2-3 kms stretching from Bhaisa Darri Hills.
iv. To issue appropriate Direction to MoEF and water resource department for rejuvenation of Kanchan River/Reservoir and to restore the water ways of small rivulets streams and water bodies.
v. To issue appropriate direction to respondents, to follow Sustainable Development policy and to immediately take action for compensatory forestation and green belt development all along the periphery of mining area and at every such place which is proposed as compensatory forestation or green belt are in Environment Clearance and Environment impact assessment. vi. To constitute Rehabillitation Programme and Committee for rehabilitating wild life of the Reserved forest area including spoted deer, jackal, wild boar, wild pigs, hyenas, monkeys, langoors, rhesus macaques, bear and jungle cats etc. vii. To supervise and intervene in the utilization of corporate Social Responsibility Fund in the area. viii. The petitioner prays liberty to raise issues if any which inadvertently could have been relied upon in this application during the course of arguments.
ix. To award the cost of the petition to the petitioner. x. To grant any other relief which this Hon'ble Tribunal deems fit and proper under the facts 5 and circumstances of the case, and in the interest of justice. "
3. On 10.10.2016, Tribunal had directed Respondent No. 6- Central Pollution Control Board (CPCB) and Respondent No. 7- M.P Pollution Control Board (MPPCB) to conduct a joint inspection to see whether there has been any violation of the Environmental Clearance conditions with regard to water quality in the River Kanchan and at overburden dumping sites. In compliance of our direction, a Committee comprising of Members from Ministry of Environment, Forest and Climate Change (MoEF & CC), CPCB and MPPCB was constituted to conduct joint inspection of Amelia (North) Coal mines at Village Majhauli, Tehsil Deosar, District Sidhi, Madhya Pradesh, being operated by M/s Jaiprakash Power Ventures Ltd. A Joint Inspection was conducted on 10.11.2016 and Report was filed on 22.12.2016. The observations and recommendations of the Joint Inspection are as follows:
"1. The sumps created for retention of suspended solids present in mine water seepage are of inadequate capacity and hence, the capacity may be enhanced at the earliest though design review by an expert body/institute.
2. Overburden from the OB Dumps 'A' is reaching Kanchan reservoir due to their steep slope and proximity to reservoir especially during monsoon season. Simultaneously, presence of OB outside garland drain of OB Dump B and lack of toe wall beyond the sump, the silt and sediments from OB dump B reaching Kanchan river through the RF also cannot be ruled out. A scientific study through a reputed expert agency like DGMS should, therefore, 6 be undertaken to suggest adequate control measures to prevent any silt/sediments from OB dump 'A' and OB Dump 'B' reaching adjoining water bodies, with a special emphasis on creation of garland drains/sumps of adequate capacity designed keeping 50% safety margin over and above peak sudden rainfall as well as creation of toe walls/Gabion walls/sumps of adequate capacity. Feasibility for construction of Gabion wall may also be explored on each bench of OB dumps to avoid flow of overburden in case of heavy rain in the area. For biological measures, grass, capping and adequate plantation with appropriate species shall have to be done before the commencement of monsoon to prevent any soil erosion from the OB dump A reaching Kanchan reservoir. Also, construction of toe wall/retaining wall of adequate height to be explored specially on the river/reservoir side to ensure the dumps do not find way into the river/reservoir The results of water samples collected reveals increase in concentration of COD, BOD and solids confirming contamination of reservoir water by mining activity. In order to ensure permanent prevention of reservoir water quality it may be appropriate to review the mining plan and shift the OB dump A away from the River and Reservoir.
3. M/s JVPL shall provide a certified copy from competent authority/ agency like DGMS w.r.t. compliance of norms stipulated for stacking of OB dumps 'A' and 'B'
4. The reports of the Ground Water level revealed gradual depletion of levels of ground Water at all 9 dug wells, but was attributed to the scant rainfall. However, in light of the heavy rains during the recent monsoons, JPVL shall submit the latest monitoring reports to ascertain the impact of mining on the depletion of ground water level, if any.
5. The monitoring process of ambient air quality was inspected and found unsatisfactory as flow measurement devices of the instruments being used were not operational. Three numbers of Continuous Ambient Air Quality Monitoring Station should be installed linked with web site of MPPCB and CPCB to ensure proper ambient air monitoring.7
6. JPVL has provided railway siding without shed and wind breaking walls for ground bunkers. Physical status of fugitive emission could not be verified as coal transportation was not in operation on the day of visit. Wind breaking walls should be provided to control generation of fugitive emission.
7. JPVL has mentioned in report that 4000 plants were used for afforestation in 2015-16 but the field observations are not in consonance with statement. During visit no area was found confirming the EC norms of 2500 plants per hectare.
8. M/s JPVL should make efforts to increase the manpower with environmental background to ensure a more effective implementation of environmental management plan."
4. On 19.07.2017, the Tribunal directed that the recommendations made in the Joint Inspection Report be sent to Directorate General of Mines Safety (DGMS) requesting them to inspect the area and suggest remedial measures that may be necessary for preventing any water pollution in river Kanchan because of erosion of overburden mounds, both at overburden dumps site 'A' and 'B'. The Tribunal also directed Respondent No. 11 and 12 to undertake plantations in consultation with Forest Department on both these dumps during the monsoon season of 2017 and to ensure prevention of erosion of the overburden and to prevent galli formation geonets be used over these dumps. Meanwhile, Respondent no. 11 and 12 were restrained from utilising both the dump sites 'A' and 'B' for the purpose of dumping till the recommendations from the DGMS are received. They were, however, given 8 liberty to locate alternate site within the lease area for dumping of overburden.
5. In compliance of our direction, the overburden dump sites 'A' and 'B' of Amelia (North) Coal mines have been inspected by DGMS on 02.08.2017 and 03.08.2017. In the inspection report, they have observed that dumping of overburden on site 'A', which was adjacent to Kanchan river, has been stopped since December, 2016. However, dumping in the site 'B' was being continued, as per the stipulation. The Kutcha garland drains were found to have been made and kept maintained around the periphery of dump site 'A' and 'B'. It has also been submitted that all the recommendations of scientific report of dumps stability at Amelia (North) Coal mines, made by Department of Mining Indian Institute of Technology (BHU) in Varanasi, have been complied with. It has been stated that at the time of inspection, no dumping of overburden on OB dumped sites 'A' and 'B' was observed. They have further observed and recommended as below:
"5.1 Further Observation:
i. At the time of inspection, no dumping of overburden on OB dump sites 'A' and 'B' was observed.
ii. Toe of the overburden Dump B was at a distance varying from about 115m to 150m from River Kanchan. Kutcha garland drain has also been provided and maintained around Dump B. In between toe of the dump and Kanchan river, a retaining was of about 1.793 km length has been constructed on 9 southern side and western side of the Dump B, and a gabion wall has also been provided in addition to the toe-wall over a length of about 380 m on the western side of the Dump B, to arrest flow of rain wash, should there be such an eventuality in case of heavy rains.
iii. Toe of the over burden Dump A was at a distance varying from about 60m to 250 m from River Kanchan. Kutcha garland drain have been provided and maintained around Dump A. Wherever required, in between toe of the dump and Kanchan river, retaining walls and Gabion walls have been constructed on eastern side and western side of the Dump A, to arrest flow of rain wash, should there be such an eventuality in case of heavy rains.
iv. Scientific Study conducted by IIT BHU has found that the factor of safety of dump slopes at various sections varied from 1.30 to2.12 and it has been concluded that Dump 'A' and 'B' are stable in long term. Dump A which was not found stable initially in long term at two sections on analysis had been re-graded at these two sections in order to make it stable in long term.
6.0 Agent and manager of the mine informed that dumping of overburden in Dump A has been stopped since December 2016 and there is no plan to dump overburden in this Dump in future.
7.0 Recommendations:
i. In view of order dated 19.07.2017 of Hon'ble NGT, Director of Mines safety, DGMS, Varanasi Region, inspected overburden Dump A and Dump B of Amelia (North) Coal Mine on 02.08.2017 and 03.08.2017.
ii. Scientific study conducted by IIT, BHU, Varanasi of overburden Dumps A and B found both the dumps stable in long run and this Directorate agrees with the findings of the scientific study.
iii. Except for lining of drains by cement mortar, other conditions stipulated in Directorate's letter no. S29011/012017-18/VR(NZ)/11011/1542 dated 10 12.07.2017, on construction and maintenance of dumps were found complied satisfactorily.
iv. At places where required, retaining walls and Gabion walls were provided between the toe of the dumps and Kanchan River, to arrest flow of rain wash, should there be such an eventuality in case of heavy rains.
v. Dumping of overburden material in Dump A shall be kept stopped specially adjacent to the Kanchan River area.
vi. The matter connected with issues concerning water pollution of Kanchan River is beyond the purview of role and function of this Directorate, as mandated by the Mines Act, 1952, although it is agreed that at places where required, retaining walls and Gabion walls were provided between the toe of the dumps and Kanchan River, to arrest flow of rain wash, should there be such an eventuality in case of heavy rains. Appropriate agency having expertise on environmental issues / water pollution may perhaps need to be contacted for commenting on the issue."
6. The Tribunal had, therefore, ordered on 23.08.2017 as below:
" We have perused the reports given by the DGMS. The issue with regard to the distance of the over burden dump from the boundary of the leased area needs to be examined. During the course of the hearing our attention was drawn to the map submitted by the Respondents No. 11 & 12 along with their reply Annexure R/3 wherein brown colour indicating the boundary of the lease has been given and in purple colour the boundary of the over burden dump has been given. As per the scale that has been shown in the map the distance of the leased area from the over burden dump at several cases visually appears to be 50 meters or even less whereas as per the condition the same is required to be minimum of 60 meters as mentioned in the inspection report of DGMS. Though, the DGMS in their inspection has stated the distance of the over burden dump site 'B' varies from 100 meters to 150 meters and that of dump 'A' varies 60 to 250 meters however, this need to be verified.11
Before we proceed in the matter further from the perusal of the map Annexure R-3 submitted by the Respondent NO. 11 & 12 the salient facts that emerge are as follows:
1. That the boundary of the leased area at certain points runs at zero distance from the bank of the river Kanchan i.e river in the boundary of the lease.
2. The Kanchan river for a considerably long distance is incorporated and included within the leased area itself.
These two aspects need to be examined.
Learned Counsel for the State shall file an affidavit as to whether or not it is permissible to have the leased area at zero distance from the banks of the river / water body and whether the leased area can include within itself certain length of the river / water body as per the mining laws prevalent in the State and the siting guidelines in that behalf notwithstanding the fact the earlier the same lease area was given to the State Mining Corporation."
7. On 30.08.2017, The Tribunal had observed as follows:
" As has been stated by us in our order dated 23.08.2017 while raising the two questions we find that the evidence that has been brought on record shows that at some points from the OB dumps there has been found to be debris entering into the river Kanchan and that is why the two questions that has been raised by us assumes importance. Apart from the above in several cases that have been brought before this Tribunal cases of siting norms with regard to the mining leases of minor as well as major minerals have also been brought to our notice where distances from water bodies are required to be given which in our opinion are significant with regard to the pollution factors to be considered while considering the applications for grant of the renewal of the mining lease and permission of the same in order to grant the EC for the same.
In the light of these issues we would direct that the two questions which have been raised in our order of 23.08.2017 be referred to the EAC coal in order to seek their opinion on the same. For this purpose we would 12 also direct the team of members of EAC coal, MoEF to visit the site in particular and give their opinion as to whether the mining operations particularly dumping of over burden by the Respondent No. 11 and 12 have any adverse impact on the Kanchan river as also whether the mining lease could be allowed to continue with its existing condition or with any modifications to the same. This in particular is relevant for our consideration in respect of the overburden dump site as the major issue before us is in respect of the erosion from the dump site into the river and pollution as a result of the same. For seeking the aforesaid opinion we would direct that the Registry send the copy of this order along with the set of the third file of this Tribunal to the EAC coal MoEF and CC."
8. Thereafter the matter came up before us on 25.04.2019 and we directed Director Coal Division, MoEF & CC and Officer incharge to remain present with all relevant records. Today, Mr. Sushil Kumar Srivastava, Scientist E, who is also discharging the duties of Director, Coal is present before us in compliance of our order dated 25.04.2019. It is clear from the records made available in this case that river Kanchan flows through the mining lease. We had put a specific question to the Officer present as to how a water body (river) could be part of any mining lease when there is specific siting criteria given in the Madhya Pradesh Mines and Mineral Rules, 1996, that no mining can be allowed within 100 mt of any water body. To this, the Officer had no answer. It was sought to be explained by the learned Counsel appearing on behalf of the MoEF & CC that the Environmental Clearance granted to M/s Jaiprakash Power Ventures Ltd., on 13.05.2015 states that all conditions 13 stipulated in the Environmental Clearance dated 20.07.2007 shall remain unchanged and in the specific conditions of the said Environmental Clearance, which was originally granted to M/s. Madhya Pradesh State Mining Corporation Ltd. and was later allotted to M/s Jaiprakash Power Ventures Ltd., it has been stated that "mining shall be carried out as per statuette at a safe distance from Kanchan Nala and the rivulets and streams flowing within lease boundaries. At the time of depillaring, protective bunds and garland drains shall be provided so that no water from the surface enters the subsidence area and the shaft." The learned Counsel for the MoEF & CC submitted that mining is being done only at a safe distance from the river and it has further being stated that safe distance means 60mt from the river. Respondent (MoEF & CC) has failed to explain that when Madhya Pradesh Minor Mineral Rules, 1996 provides no mining can be allowed within 100 mt from the water bodies why safe distance of 60ms from the river has been provided in this case. The Report of DGMS clearly states that the OB dump site 'A' is at a distance of 60 mt from the river Kanchan.
9. It would, therefore, appear that the safe distance of 60mt has been kept because dump is located at a distance of 60mt from the river. The report of the joint inspection team 14 clearly brings out that the debris from the dumps are flowing into the river thereby causing its pollution. It has been clearly stated that the water samples collected reveal increase in concentration of COD, BOD and solids confirming contamination of water reservoir by mining activity. The Joint Inspection Team also found ambient air quality to be unsatisfactory. Even the garland drains and gabion wall appear to have failed to check the mining waste from flowing into the river. Joint Inspection Team also observed that the tree plantation on the mining dumps to be inadequate and no area was found conforming to EC norms of 2500 plants per hectare. It is, therefore, clear that Respondent No. 11 and 12 have not taken any effective steps to check the flow debris and wastes into Kanchan river and other water streams. Therefore, they have not complied with the conditions stipulated in the EC in this regard.
10. Second important aspect that appears to be very serious is how mining lease area includes the river as the map which is annexed, clearly shows that Kanchan river flows through the lease area and there is mining activity on the both sides of the river.
11. The third important aspect is how the overburden has been allowed to be dumped within the mining lease area. It is 15 admitted by all the parties that normally in any mining lease, sites for the overburden dumping are identified outside the mining lease area which are acquired by the mining agencies for this purpose.
12. In case of the present mining lease, even if the mining overburden is allowed to be dumped within the mining area it has not been satisfactorily explained why the dumping site was selected close to the river. The total mining lease area is 728.75 hectares and the dumping site could have been conveniently selected in the far corner of the lease area, away from the river. It has been clearly observed by the Joint Inspection team that the garland drains which are constructed along the periphery of the dumping sites have not been effective at all as debris have been found to be flowing into the river. Moreover, the photographs annexed do not give any evidence of plantation of trees or grass having been grown on the dumping slopes to stabilise the dump, which is a gross violation of environmental clearance condition.
13. We are of the considered opinion that there has been total disregard of the environmental norms, with respect to the dumping of overburden, by Respondent No. 11 and 12. We, therefore, direct as follows:
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i. There shall be no dumping of overburden at site 'A' and 'B', henceforth.
ii. For the dumping of overburden the Respondent No. 11 and 12- M/s Jaiprakash Power Ventures Ltd., may either acquire non forest land outside mining lease area or if they have to dump the overburden within the lease area, it has to be at a distance of at least 1 km from the river.
iii. The river Kanchan or any other stream which is flowing through the lease area should be excluded from the mining lease. There shall be no mining activity including dumping of overburden within 100 mt of Kanchan River or any other water body as given in the Madhya Pradesh Mines and Mineral Rules, 1996. Accordingly, mining lease boundary may be redrawn and the lease be amended.
iv. There shall be no discharge of any effluents or wastes of any kind from the lease area into the river. State Pollution Control Board and the District Mining Officer will strictly ensure compliance of this direction.
v. The Joint Inspection by the Central Pollution Control Board (CPCB), the State Pollution Control Board and the District Mining Officer be conducted once in every three months to ensure none of our 17 directions and the environmental conditions are contravened.
14. With the abovementioned directions, this Original Application No. 117/2016 is disposed of, with no order as to costs. These Miscellaneous Application Nos. 457/2017 & 48/2018 do not survive for consideration as the main application itself is disposed of.
............................................ Raghuvendra S. Rathore, JM .................................................. Dr. Satyawan Singh Garbyal, EM Dated: 04.07.2019 Place : New Delhi 18