National Green Tribunal
Pradeep Kumar Singh vs State Of Jharkhand on 21 November, 2019
Bench: Adarsh Kumar Goel, K. Ramakrishnan
Item Nos. 01 to 05 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 23/2017 (EZ)
WITH
Original Application No. 776/2018
WITH
Original Application No. 373/2019
WITH
Original Application No. 162/2019
WITH
Original Application No. 164/2019
Syed Arshad Nasar Applicant(s)
Versus
Union of India & Ors. Respondent(s)
With
Ramchandra Chaurasia Applicant(s)
Versus
State of Jharkhand Respondent(s)
With
Pradeep Kumar Singh Applicant(s)
Versus
State of Jharkhand Respondent(s)
With
Anwar Hussain Ansari, Vice President,
Jhamumo Applicant(s)
Versus
State of Jharkhand Respondent(s)
With
1
Residents of Pichhari Panchayat,
District Bokaro Applicant(s)
Versus
State of Jharkhand Respondent(s)
Heard on : 21.11.2019
Uploaded on : 05.12.2019
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): -
For Respondent(s): Mr. Kumar Anurag Singh, Advocate for
JSPCB with Mr. R.L. Bakshi, Member
Secretary, JSPCB.
Mr. Mukesh Kumar, Advocate for CPCB
Mr. Jayesh Gaurav, Advocate
ORDER
1. Original Application No. 23/2017 (WZ) was initially filed before the NGT, Eastern Zone Bench at Kolkata as it pertains to the Sahebganj District of the State of Jharkhand, where severe damage caused to the environment by operation of quarrying and crushing units had been alleged in the Rajmahal hills of the Vindhya Mountains. The District of Sahebganj is stated to be situated on the southern bank of river Ganga, Sahebganj District (Santhal Parganas), Jharkhand stretching till the boundary of Bhirbhum, West Bengal.
2. The region is stated to be unique in its geological features with rich biodiversity, flora and fauna inhabited by the indigenous Santhal Tribe and is a treasure trove of plant fossils dating 2 between 68 and 145 million years and a source of mineral resources like quartz, coal, mica, iron-ore, etc. including China clay and fire clay due to which the area had also been listed under the Mines and Minerals (Development and Regulation) Act, 1957. It is stated that the private companies to whom areas have been lease out have been indulging in indiscriminate mining and operating crusher units in the process have practically blown-up the hills. The Applicant states that request made to the concerned authorities of the State Government to look into the matter has not been responded to. Even the letters and representations submitted to those authorities including the Prime Minister of India have not borne any result.
3. The other concern expressed by the Applicant is construction of a bridge proposed by the Ministry of Central Land Transportation, Government of India on the river Ganga between Sahebganj and Manihari in the Sahebganj District, Jharkhand as it was apprehended that it would cause threat and danger to the hills which is the home of the Santhal Tribe.
4. On 23.02.2017, which was the very first day when the matter came up before the Tribunal, the State of Jharkhand, the Jharkhand Pollution Control Board, the District Land & Land Reforms Officer, Sahebganj and the Mines & Geology Department, Government of Jharkhand, respectively appeared through their counsel and waived off notices.
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5. It may be relevant to note that as earlier, two O.As being O.A. No. 44/2015/EZ and O.A. No. 88/2015/EZ which also dealt with illegal stone crushing units in the District of Dumka and Pakur were being considered, the Respondent Nos. 4, 6, 7 & 8 were directed to verify as to whether the stone crushing units involved in the present case were also included in the orders passed in the said two O.As.
6. On 08.05.2017, the State PCB clarified that the present case did not involve the areas involved in O.A. No. 44/2015/EZ and O.A. No. 88/2015/EZ. It was also stated that the State PCB had granted Consent to Operate to 156 stone crusher units and 110 stone mines and 74 had been identified as illegal units against which closure orders had been issued and are accordingly closed. List containing stone crusher units and stone mines to whom Consent to Operate had been granted was also filed. The list contained three tables, first of which listed out 110, second containing 36 stone crusher and stone mining units and the third containing 74 units but without information as to whether those 74 were either stone mines or stone crushing units except to mention the name of the units. Further no information was provided as to whether any environmental compensation had been recovered from the illegal mines which had been closed. There was also no information as to whether any steps were taken to remedy the environmental damage caused by the illegal operation of the mines. Obviously, therefore, the list provided was found to be quite vague. By order dated 08.05.2017, we had indicated so 4 and, had accordingly directed that a supplementary affidavit should be filed giving the necessary particulars before the next date.
7. On 06.07.2017 time was sought for by the State PCB which was allowed and by order of the same date all stone quarries and stone crushing units operating illegally in the district of Sahibganj were prohibited from further operation until further orders granting liberty to the owners of the stone quarries and crusher units to approach the Tribunal for modification, variation and the recall of the order in case they were in possession of necessary clearances. This order was passed despite the fact that they were not parties to the proceedings and was passed keeping in view the principal of natural justice. The District Magistrate (DM), the Superintendent of Police (SP), Sahibganj and the District Mining Officer (DMO) were directed to ensure compliance of the order and to submit action taken report before the next date. However, no report was filed by them and by order dated 09.08.2017 the order of prohibition issued on 06.07.2017 was reiterated. On 03.10.2017 neither were the Respondent Nos. 4, 7 & 8 represented nor report filed by them. Thus notices were issued upon them to show cause as to why appropriate action in accordance with law should not be taken against them. On 08.11.2017 instead of filing show cause further time was sought for by these respondents. Direction was issued upon the DM and the DMO to also file report on the question as to whether 30 stone crushing units against whom closure notices said to have been issued had indeed been closed. 5
8. At this stage, we may note that in an additional supplementary affidavit filed on behalf of the State of Jharkhand in terms of order dated 06.07.2017. The number of stone crusher units and stone mines to whom Consent to Operate had been granted were 156 and 110 respectively, a list of which was filed with the supplementary affidavit. Again on 08.11.2017, further supplementary counter affidavit was filed by the State PCB stating that Consent to Establish had been granted to 28 stone crushers and stone mines. Further 89 stone crushers with stone mine units and 39 stone mine units had been granted Consent to Operate. Also that 30 additional number of stone crusher units in Sabhibganj District had been issued with the closure directions.
9. Strong exception was taken by the Tribunal when even as on 17.04.2018 orders dated 06.07.2017 had not been complied with despite notices to show cause issued against the Respondent Nos. 4, 6, 7 & 8. Time was granted to do so on payment of cost of ₹25,000/- by each of them. When it was found that the Respondents had still not complied with the orders including the payment of cost of ₹25,000/-, bailable warrants of arrest were issued against them with further direction to pay penalty of ₹1,00,000/- each. On 22.01.2019 when the infractions continued, the cost of ₹25,000/- was enhanced to ₹50,000/- and of ₹1,00,000/- to ₹2,00,000/- against each of them to be deposited before the next date apart from the officers being present in person. By the said order, a Committee was also constituted comprising of (a) Senior Scientist/ Engineer form 6 CPCB; (b) Regional Office, EZ, MoEF&CC, Bhubneswar and, (c) Experts from SEIAA and Jharkhand State PCB to undertake a detailed study to address the serious environmental concerns in the area. The terms of reference referred to the Committee were as follows:
"i) Undertake Carrying Capacity Assessment of the area viz-a-viz stone mines and stone crushing units.
ii) Undertake Ambient Air Quality Assessment in atleast 10 representative locations of the area.
iii) Assess (a) the pollution control devices of the stone mining and stone crushing units in the area and the environmental damage caused and (b) the cost of restoration of such damage.
iv) Any other relevant studies cognate to the above.
In undertaking the task, the Committee may co-opt expert/experts from any institution identified by it."
10. The State PCB on its part was directed to submit report on the action taken against the non-compliant units within three months. On 19.02.2019 the DM/Dy. Commissioner, the Superintendent of Police and the DMO, Sahibganj appeared in person in compliance of the earlier orders. Application for review to the dated 22.01.2019 directing them to pay costs was heard and dismissed. On 07.05.2019 it was clarified that cost shall be deposited with the CPCB. The report filed by the DMO was also taken on record and it was noted that the action taken by the authorities and the State PCB were apparently lacking and inadequate in many aspects having regard to the undeniable fact that a large number of illegal stone mines and crusher units were operating in the area which had either been reported to have been closed or at the stages of compliance of the pollution norms. 7 Thus, environmental compensation was directed to be assessed against such units by the Committee on the following parameters:
"i. The quantum of minerals extracted and crushed.
ii. Damage on account of Net Present Value (NPV) against the ecological loss forgone forever.
iii. The ecological damage caused on account of the operation of the illegal unit.
iv. Cost against restoration of the environment."
11. O.A. No. 23/2017 (EZ) was directed to be listed before the NGT, Principal Bench with O.A. No. 776/2018 and O.A. No. 373/2019 as the questions involved were the very same.
12. O.A. No. 776/2018 had been taken up for the first time on 04.12.2018 when the Jharkhand Pollution Control Board and the Divisional Forest Officer, Sahebganj were directed to jointly look into the matter and take appropriate action in accordance with law. Even in that case the Jharkhand Pollution Control Board failed to submit its report as directed on 24.07.2019, i.e., after a long period of almost seven months leading to the Tribunal directing the personal presence of the Member Secretary, Jharkhand Pollution Control Board on the next date making it clear that in the case of default, non-bailable warrant may be issued against him. A copy of the order was also sent to the Chief Secretary, State of Jharkhand for compliance. On 11.09.019 the facts emerging in O.A. No. 23/2017(EZ) had been recorded with which we have already referred to earlier and need not be repeated again for the sake of brevity.
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13. The recommendations of the Committee constituted vide order dated 22.01.2019 in O.A. No. 23/2017(EZ) were noted which clearly show wide scale flouting of the norms by stone crushing and stone mine units. The Committee clearly noted that while the mines were run un-systemically and unscientifically, the crushing units did follow the environmental protection norms and, therefore, could not be allowed to continue and opined that the State could have granted only a few mining leases in the Rajmahal hills which was a unique place for biodiversity.
14. During the course of the hearing on 11.09.2019, the Member Secretary, State Pollution Control Board informed that there were 407 stone crushers and 300 stone mines and according to him many of those were compliant with the environmental norms but, no data was provided regarding this. It was noted that the joint Committee had also not given specific particulars about compliance of the environmental norms by the individual stone crushers and mines. Thus, further report was called for from the Committee containing specific details of non-conforming stone crushers and mines and the State PCB directed to take action against such non-conforming stone crushers and mines which would include prohibition of polluting activities, prosecuting the polluters and assessing and recovering compensation for damage to the environment on 'Polluter Pays' principle.
15. O.A. No. 23/2017(EZ) was also deferred to 08.11.2019 along with O.A. No. 776/2018 and O.A. No. 373/2019. The Member 9 Secretary, Jharkhand Pollution Control Board who was present in person was also directed to remain present on the next date.
16. The State PCB filed a fact sheet in terms of the order dated 11.09.2019 indicating the following:
a. The Committee had visited 21 stone crusher units and 11 stone mining units and action had been initiated against them.
b. There were 402 sand mines, out of which 212 had valid mining lease and 282 were not operational.
c. 111 stone mines had applied for Consent to Operate, out of which 87 had been granted Consent to Operate and in case of 14, it had been rejected and in respect of 10 stone mines Consent to Operate was pending consideration.
17. As regards stone crusher units, there were 508 which had applied for Consent to Operate out of which 445 had been granted and the case of 24 had been rejected, while in the case of 39, applications for grant of Consent to Operate were under consideration. 293 stone crusher units and stone mining units had been found to be non-compliant during the inspections between 11.11.2019 to 17.11.2019 and, therefore, show cause notices had been issued. 106 units had been imposed with interim environmental compensations. Total environmental compensation of ₹6,33,57,000/- had been imposed by the State PCB cumulatively 10 on the stone mines and stone crusher units out of which ₹2,36,25,000/- was upon 55 stone mines and ₹3,97,32,000/- against 141 stone crushing units. The District Task Force had demolished 34 illegal crusher units and sealed and demolished another 107 where illegal storage, processing and dispatch of minerals were being indulged in. 70 such illegal processing units (stone crushers) had been sealed and demolished. Apart from lodging FIRs, further 47 numbers of illegal stone crushers were also sealed and demolished as observed during the inspection undertaken on January, 2019. It is stated that Consent to Operate has been granted to those units which had satisfactorily complied with environmental norms.
18. Upon consideration of the entire facts and circumstances borne out of the record of O.A. No. 23/2017/EZ and O.A. No. 776/2018, it is more than evident that the State machinery and the regulatory authorities had allowed a free run to the operation of mines and crusher units resulting in the present sordid condition. Even after the present cases were filed, they had been reluctant in dealing with the matters as directed by the Tribunal. They had to be perforce made to discharge their responsibilities and perform the duties. The actions taken by them are as a result of repeated orders passed by the Tribunal from time to time. The reports filed by the regulatory authorities are found to be far from satisfactory, mutually conflicting, bereft of clarity and inconsistent. The Member Secretary, State PCB who had appeared before the Tribunal was unable to answer questions put by the Tribunal and 11 chose to be adamant in not furnishing the requisite information with clarity. As would be quite apparent from what had been noted earlier, the State PCB and the District authorities including the District Mining Officer did not appear to be clear as to how many stone mines and stone crusher units are in operation. The Member Secretary was also unable to answer on the distance maintained between the stone crusher units as well as the individual leases granted for stone mines. Taking the figure provided by the Member Secretary on 11.09.2019, there are more than 407 stone crushers and 300 stone mines operating in the area notwithstanding the fact that actual figures have not been provided as admittedly detailed inventorization of all such units have not been undertaken thus far.
19. The photographs placed before us by the Applicant demonstrate an alarming situation where hills had been found to have been flattened due to mining out of the stones. The terms of reference which had been referred to the Committee vide order dated 19.01.2019 have also not been considered by the Committee so far except to give general recommendations in the report filed through the CPCB on 30.04.2019.
20. As regards undertaking carrying capacity assessment, ambient air quality assessment and effectiveness of pollution control devices, it has been stated in a note of the Committee as follows:
"Regarding Carrying Capacity Assessment, Ambient Air Quality Assessment and effectiveness of Pollution Control Devices is a study of one year to arrive at a certain conclusion. This in-depth study requires 'Secondary Data Base' of at least last five years and one 'Primary Data 12 Base' to arrive at a meaningful conclusion through 'Time Series' analysis. Already in the World Bank project- National Ganga River Basin Authority (NGRBA) a project on industrial monitoring and assessment is given to Jadavpur University. Considering the gravity, similar study may be awarded to Department of Environmental Engineering, Jadavpur University or any other reputed Institute."
We find the observation of the Committee to be unreasonable and an attempt to delay the entire process.
21. The Member Secretary instead of answering the questions upfront chose to hedge around to deflect the questions posed to him. Considering the obvious ineptitude of the Member Secretary, option before this Tribunal is either to take coercive measures for failure and negligence of the Member Secretary or to require the Chief Secretary to look into the matter and take decision whether such important office as Member Secretary, State PCB should be headed by any other suitable, technically sound person with the ability of effective environmental governance. Such decision may be taken at the earliest so that public service functions assigned to such high office are discharged in a responsible manner.
22. In the case of Techi Tagi Tara v. Rajendra Singh Bhandari1 Hon'ble Supreme Court had directed as follows:
"24. On the second grievance relating to the issue of guidelines by the NGT, the meat of the matter concerns the appointment of officials who are experts in their field and are otherwise professional. This is for each State Government to consider and decide what is the right thing to do under the circumstances-Should an unqualified or inexperienced person be appointed or should the SPCB be a representative but expert body? The Water Act and the Air Act as well as the Constitution give ample guidance in this regard. We have already adverted to the provisions of the Constitution including Article 48-A, Article 51-A(g) and Article 1 (2018) 11 SCC 734 13 21 of the Constitution. So, the entire scheme of the various provisions of the Constitution adverted to above, including the principles that have been accepted and adopted internationally as well as by this Court such as the principles of sustainable development, public trust and intergenerational equity are a clear indication that in matters relating to the protection and preservation of the environment (through the appointment of officials to the SPCBs) the Central Government as well as the State Governments have to walk the extra mile. Unfortunately, many of the State Governments have not even taken the first step in that direction - hence the present problem.
25. While it is beyond the jurisdiction of the NGT and also beyond our jurisdiction to lay down specific rules and guidelines for recruitment of the Chairperson and members of the SPCBs, we are of opinion that there should be considerable deliberation before an appointment is made and only the best should be appointed to the SPCB. It is necessary in this regard for the Executive to consider and frame appropriate rules for the appointment of such persons who would add lustre and value to the SPCB. In this connection we refer to the State of Punjab v. Salil Sabhlok 2 in which it was observed with reference to appointments to the Public Service Commission that besides express restrictions in a statute or the Constitution, there can be implied restrictions in a statute or the Constitution and the statutory or constitutional authority cannot, in breach of such implied restrictions, exercise its discretionary power. In our opinion this would be equally applicable to an appointment to a statutory body such as the SPCB - the State Government does not have unlimited discretion or power to appoint anybody that it chooses to do.
26. to 32. ----xxxx----
33. Unfortunately, notwithstanding all these suggestions, recommendations and guidelines the SPCBs continue to be manned by persons who do not necessarily have the necessary expertise or professional experience to address the issues for which the SPCBs were established by law. The Tata Institute of Social Sciences in a Report published quite recently in 2013 titled "Environmental Regulatory Authorities in India: An Assessment of State Pollution Control Boards" had this to say about some of the appointments to the SPCBs:
"An analysis of data collected from State Pollution Control Boards, however, gives a contrasting picture. It has been observed that time and again across state governments have not been able to choose a qualified, impartial, and politically neutral person of high standing to this crucial regulatory post. The recent appointments of chairpersons of various State Pollution Control Boards like Karnataka (A a senior BJP leader), Himachal Pradesh (B a Congress party leader and former MLA), Uttar 2 (2013) 5 SCC 1 : (2013) 2 SCC (L7S) 1 14 Pradesh (C appointed on the recommendation of SP leader X), Arunachal Pradesh (D a sitting NCP party MLA), Manipur Pollution Control Board (E a sitting MLA), Maharashtra Pollution Control Board (F a former bureaucrat) are in blatant violation of the apex court guidelines. The apex court has recommended that the appointees should be qualified in the field of environment or should have special knowledge of the subject. It is unfortunate that in a democratic set up, key enterprises and boards are headed by bureaucrats for over a decade. In this connection, it is very important for State Governments to understand that filling a key regulatory post with the primary intention to reward an ex-official through his or her appointment upon retirement, to a position for which he or she may not possess the essential overall qualifications, does not do justice to the people of their own states and also staffs working in the State Pollution Control Boards. The primary lacuna with this kind of appointment was that it did not evoke any trust in the people that decisions taken by an ex-official of the State or a former political leader, appointed to this regulatory post through what appeared to be a totally non- transparent unilateral decision. Many senior environmental scientists and other officers of various State Pollution Control Boards have expressed their concern for appointing bureaucrats and political leader as Chairpersons who they feel not able to create a favourable atmosphere and an effective work culture in the functioning of the board. It has also been argued by various environmental groups that if the government is unable to find a competent person, then it should advertise the post, as has been done recently by states like Odisha. However, State Governments have been defending their decision to appoint bureaucrats to the post of Chairperson as they believe that the vast experience of IAS officers in handling responsibilities would be easy. Another major challenge has been appointing people without having any knowledge in this field. For example, the appointment of G with maximum qualification of Class X as Chairperson of State Pollution Control Board of Sikkim was clear violation of Water Pollution and Prevention Act, 1974."3
34. ----xxxx----
3 The names have been deliberately left out by us. 15
35. Keeping the above in mind, we are of the view that it would be appropriate, while setting aside the judgment and order of the NGT, to direct the Executive in all the States to frame appropriate guidelines or recruitment rules within six months, considering the institutional requirements of the SPCBs and the law laid down by statute, by this Court and as per the reports of various committees and authorities and ensure that suitable professionals and experts are appointed to the SPCBs. Any damage to the environment could be permanent and irreversible or at least long-lasting. Unless corrective measures are taken at the earliest, the State Governments should not be surprised if petitions are filed against the State for the issuance of a writ of quo warranto in respect of the appointment of the Chairperson and members of the SPCBs. We make it clear that it is left open to public spirited individuals to move the appropriate High Court for the issuance of a writ of quo warranto if any person who does not meet the statutory or constitutional requirements is appointed as a Chairperson or a member of any SPCB or is presently continuing as such."
23. We are of the view that the direction requires to be complied with urgently by the State if the environmental laws are to be effectively enforced in the State of Jharkhand.
24. In O.A. No. 606/2018, the Chief Secretaries of each State have been directed inter alia to look into all cases of mining in view of the rampant illegal units operating in the States.
25. In view of the above, we direct the Chief Secretary to take appropriate measures to ensure that the orders of the Tribunal are complied with strictly.
26. We direct the Committee constituted vide order dated 22.01.2019 to place before us a table giving the details of the stone mines and the stone crushers separately containing the following particulars: 16
a) Name of the mines and crusher units and its locational depiction on the map of appropriate scale.
b) Dates of grant of Consent to Establish, Consent to Operate and, also Environmental Clearance (EC) in respect of stone mines. The area of stone mines and distance with adjoining mine(s) may clearly be stated.
c) Adequacy of pollution control devices of stone cruising units.
d) Details of individual violations of conditions of EC/Consent to Operate w.r.t. mining units and details of violation of Consent to Operate w.r.t. Stone Crushing units.
e) Action taken against those which do not have EC and Consent to Operate and against those which have violated the conditions of EC/Consent to Operate w.r.t. mining units.
f) The amount of environmental compensation assessed and recovered along with the individual computation sheets indicating period of default.
27. The report shall be filed before the next date.
28. A copy of this order be transmitted to the Chief Secretary for compliance.
29. List on 30.01.2020.
17 O.A. No. 162/2019 & O.A. No. 164/2019
30. The State Pollution Control Board shall file action taken report in terms of report dated 19.11.2019 before the next date.
31. List on 30.01.2020.
Adarsh Kumar Goel, CP S.P. Wangdi, JM K. Ramakrishnan, JM Dr. Nagin Nanda, EM Saibal Dasgupta, EM 5th December, 2019 O.A. No. 23/2017 (EZ) & other connected matters avt 18