National Green Tribunal
Jatindra Kumar Singh vs State Of Odisha on 24 January, 2025
Item No.01 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.10/2025/EZ
IN THE MATTER OF
Jatindra Kumar Singh,
S/o Mr. Kshirod Chandra Singh,
R/o Sansaratikira, Sahajbahal,
P.O.- Charpali-Barpali, Via B.B. Colony,
District - Jharsuguda, Odisha,
PIN-768211
..........Applicant(s)
Versus
1. State of Odisha,
Through Chief Secretary,
Government of Odisha, General Administration Department,
Odisha Secretariat, Bhubaneswar,
PIN-751001
2. Ministry of Environment, Forest and Climate Change
Through its Secretary, New Delhi,
Indira Paryavaran Bhawan, Jor Bag, New Delhi,
PIN-110003
3. Central Pollution Control Board,
Through its Member Secretary,
Parivesh Bhawan, East Arjun Nagar,
New Delhi-110032
4. Odisha State Pollution Control Board,
Through Member Secretary,
Paribesh Bhawan, A/118, Nilakantha Nagar,
Unit-8, Bhubaneswar-751 012
5. District Magistrate, Jharsuguda,
Office of the District Magistrate and Collector,
Jharsuguda, Odisha,
PIN-768204
6. Municipal Commissioner of Jharsuguda,
Jharsuguda Municipality, Mangal Bazar Rd,
District - Jharsuguda, Odisha,
PIN-768201
7. M/s JSW (Energy) Ind-Barath Energy (Utkal) Limited,
Through Promoter/Vice President
Mr. K Rajashekara Rao and Mr. C Venkatarama Reddy,
Sahaibahal, P.O.-Charpali Barpali, Bandhbahal,
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District - Jharsuguda, Odisha,
PIN-768211
8. JSW (Energy) Limited,
Through MD and CEO - Mr. Prashant Jain
JSW Centre, Bandra Kurla Complex,
Bandra (East), Mumbai (400051)
9. Mr. Prashant Jain,
Joint Managing Director and CEO of JSW (energy) ltd.,
JSW Centre, Bandra Kurla Complex,
Bandra (East), Mumbai (400051)
...........Respondent(s)
Date of hearing: 24.01.2025
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s) : Ms. Sweksha Prakash, Adv. (in Virtual Mode)
For Respondent(s) : Mr. Prabhu Prasanna Behera, ASC for State of Odisha
(in Virtual Mode),
Mr. Surendra Kumar, Adv. for R-3 (in Virtual Mode),
Ms. Papiya Banerjee Bihani, Adv. for R-4 (in Virtual Mode),
Mr. Barath Ashok K. Parija, Sr. Adv. for R-7, 8 & 9
(in Virtual Mode)
ORDER
1. The Applicant has filed this Original Application alleging that the Respondent No.7, namely, "M/s JSW (ENERGY) IND-BARATH ENERGY (UTKAL) LIMITED" established at Sahaibahal, PO- Charpali Barpali, Bandhbahal, District- Jharsuguda, Odisha has been operating as a power plant industry in the district Jharsuguda which is an "industrial unit" constructed illegally on forest land and has been polluting the environment of the region with smoke, ash, silo, dust and untreated trade effluents through its industrial operations.
2. It is stated that the Respondent No.7 is situated in close proximity to the residential population within only 30 meters of distance from village Sahajbahal, 120 meters from village Munda Pada and 350 meters from village Sansaratikra, 200 meters distance from the 2 government school of the village which is not only impacting the health of the residents of the village but also the children of the 2 government schools due to dense smoke from coal combustions, emissions from silo and dust in the air. It is also alleged that the Respondent No.7, "industrial unit" has been constructed on forest land
3. It is stated that ash and smoke has covered the residential houses, roads and infrastructure in the area and that the silo, chimney, boiler and ash pond of the Respondent No. 7 is only 50 meters from Sansaratikra village and the track hopper is 60 meters from Munda Pada.
4. It is stated that with regard to the same issue W.P.(C) No. 4167 of 2014 (in the matter of Anchalika Jana Kalyan Anusthan vs. Union of India and others) was filed in the Hon'ble High Court of Odisha at Cuttack in which an order has been passed by the Hon'ble High Court on 14.08.2023 directing the Opposite Party No.12, (i.e., the Respondent No.7 in the present Original Application) to vacate the forest land by removing all the structures and machineries from the encroached forest land within fifteen days. It is however, stated that till date the order of the High Court has not been complied with.
5. The relief claimed in the present Original Application reads as under:-
1. That the Hon'ble Tribunal may be pleased to declare operations of the respondent no.7 as illegal and unauthorised and prohibit any further emission of toxic gases and smoke into the atmosphere.
2. That the Hon'ble Tribunal may be pleased to direct to respondent no 7 and 8 to close down their industrial unit which is operating illegally on forest land and to demolish the illegal structure and machinery.
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3. That the Hon'ble Tribunal may be pleased to direct the respondent no 7 to stop all activities which are causing air pollution and immediately shift the chimney, ash pond and silo from the residential area and take other corrective actions to prevent further damage to the environment.
4. That the Hon'ble Tribunal may be pleased to direct the respondent no 4,5,6,7,8,9 to take corrective actions to clear the water of pond (Kata).
5. That the Hon'ble Tribunal may be pleased to direct the respondent no 7 to compensate for adversely impacting the environment by assessing the damage according to the polluter pays principle.
6. Any other Relief which this Hon'ble Tribunal deems fit and proper in the interest of justice.
6. From the reliefs claimed, we find that the Applicant is also seeking a direction to the Respondent Nos.7 and 8 to close down their industrial unit which is operating illegally on forest land and to demolish the illegal structure and machinery.
7. We have heard the learned Counsel for the parties and have perused the documents on record.
8. From the documents on record, we find that W.P.(C) No. 4167 of 2014 (in the matter of Anchalika Jana Kalyan Anusthan vs. Union of India and others) had been filed in the Hon'ble High Court of Orissa at Cuttack alleging therein that the Opposite Party No.12 therein (the Respondent Nos.7 and 8 herein) had encroached on forest land and had constructed buildings on forest land. The Hon'ble Division Bench of the High Court after calling for a counter-affidavit passed the following order dated 14.08.2023:-
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"IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 4167 of 2014 Anchalika Jana Kalyan Anusthan Petitioner Mr. Gokulananda Pattnaik, Advocate
-versus-
Union of India and others .... Opposite Parties Mr. Debakanta Mohanty, A.G.A. for State Mr. B.S. Rayaguru, CGC for OP Nos.1 & 3 Mr. Ramesh Singh, Senior Advocate assisted by Mr. Venugopal Mohapatra and Ms. Aishwarya Ray,Advocate for Opposite Party No.12 CORAM:
THE CHIEF JUSTICE JUSTICE SAVITRI RATHO Order No. ORDER 14.08.2023
07. 1. This matter is taken up through Hybrid Mode.
2. Heard Mr. Gokulananda Pattanaik, learned counsel appearing for the Petitioner, Mr. Debakanta Mohanty, learned Additional Government Advocate (AGA) appearing for the State Opposite Parties, Mr. B.S. Rayaguru, learned CGC for Opposite Parties No.1 & 3 and Mr. Ramesh Singh, learned Senior Counsel assisted by Mr. Venugopal Mohapatra and Ms. Aishwarya Ray, learned counsel for Opposite Party No.12.
3. In this Public Interest Litigation (PIL), the allegation has been made by the Petitioner that Opposite Party No.12 has encroached the forest land. The encroachment has been admitted by Opposite Party No.12 in their counter affidavit filed on 15th May, 2023. In the said affidavit, in para-12(c), it has been stated by Opposite Party No.12 that the total land requirement of the power plant project is 239.90 ha which includes 35.985 ha of revenue forest land. The said revenue forest land comprises an area of 21.898 ha in the village 5 Sahajbahal and an area of 14.087 ha in village Barpali under the Lakhanpur Tahasil of Jharsuguda district.
4. It has also been admitted that having encroached the land, Opposite Party No.12 had constructed buildings, thereafter, Opposite Party No.12 has applied for diversion of the forest land measuring 35.985 ha for establishment of the power plant. It has also been admitted by Opposite Party No.12 that they had carried on construction for the power plant unit and for setting up transmission towers for linking the power plant with the eastern power grid.
5. On 4th September, 2013 and 19th November 2013, Opposite Party No.12 had received notices from the District Forest Officer, Jharsuguda to stop their construction activities being carried on forest land. Thereafter, on 22 nd January, 2014 an inspection of the alleged construction was undertaken by the Range Officer, Brajrajnagar and the Revenue Department staff of Lakhanpur Tahasil. In the report submitted pursuant to the joint enquiry, it was alleged that Opposite Party No.12 had constructed boiler, turbine, track hopper, chimney etc., over the forest lands admeasuring Ac 14.52 in Mouzas Sahajbal and Barpali.
6. It has also been admitted by Opposite Party No.12 that eight encroachment cases were instituted against them and they were levied fine. At this juncture, we asked Mr. Debakanta Mohanty, learned AGA appearing for the State to state what has happened after levying fine and whether Opposite Party No.12 is still in encroachment of the land or not. Mr. Mohanty, learned AGA could not give any answer off-hand. It is obvious that Opposite Party No.12 did not remove the structure and the machineries that they had set up on the said forest land.
7. By the order dated 17th May 2023, this Court had directed that the proposals submitted by Opposite Party No.12 for diversion of the forest land be considered in accordance with law and after hearing learned counsel for Opposite Party No.12, a reasoned order shall be passed in that regard by 1st July, 2023. It was also 6 directed that the State Government shall file an affidavit.
Accordingly, the affidavit has been filed by Opposite Party No.2 on 1st August, 2023 stating that the proposals submitted by Opposite Party No.12, i.e. M/s. Ind-Barath Energy (Utkal) Ltd. for diversion of the forest land will be considered in accordance with law.
8. It has been stated that the appropriate authority for according approval for diversion of 34.63 ha out of 35.985 ha of the Revenue Forest land for establishment of 2x350 MW coal based Thermal Power Plant at Sahajbahal and Barpali villages under Lakhanpur Tahasil in Jharsuguda district is the Ministry of Environment, Forest & Climate Change, Integrated Regional Office, Bhubaneswar, i.e. Opposite Party No.3. We have gathered from the records that no such approval for diversion has been granted so far. But, surprisingly, Opposite Party No.12 is still on encroachment over the forest land.
9. Having noted the encroachment, as admitted by Opposite Party No.12, we direct the Opposite Party No.12 to vacate the forest land by removing all the structures and machineries from the encroached forest land within fifteen days from today.
10. The Opposite Party No.12 is also directed to file an affidavit indicating whether the Opposite Party No.12 has vacated the encroached forest land or not.
11. Let the matter be listed on 4th September, 2023 at 2 pm for passing further orders.
12. A copy of this order be supplied to Mr. Debakanta Mohanty, learned AGA, free of cost forthwith."
(S. Talapatra)
Chief Justice
S. Behera (Savitri Ratho)
Judge
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9. It is not disputed that the said Writ Petition is still pending before the Hon'ble High Court of Orissa at Cuttack.
10. Ms. Sweksha Prakash, learned Counsel for the Applicant submitted that the Applicant in the present Original Application is also alleging environmental violations by the Respondent No.7, M/s JSW (ENERGY) IND-BARATH ENERGY (UTKAL) LIMITED and that the Respondent No.7 is causing extreme air pollution by emitting toxic gases, ash, silo and untreated smoke in the open air and is also draining trade effluents in the industrial water bodies including River Mahanadi and open agricultural fields leading to contamination of water bodies and causing toxicity to soil and ground water of the region and therefore, the matter would be admissible before this Tribunal.
11. We are not in agreement with the learned Counsel for the Applicant. The Applicant has sought direction to the Respondent No.7 and 8 to close down their industrial unit which is stated to be operating illegally on forest land and to demolish the illegal structure and machinery which is also the relief in the W.P.(C) No. 4167 of 2014 (in the matter of Anchalika Jana Kalyan Anusthan vs. Union of India and others) and therefore, this Original Application before this Tribunal on a particular issue relating to air pollution and water pollution is not maintainable.
12. The Hon'ble Supreme Court in Civil Appeal No.4522-4524 of 2022 (The State of Andhra Pradesh Vs. Raghu Ramakrishna Raju Kanumuru (M.P.)), has held that when an issue which is pending before the National Green Tribunal is already under consideration before the Hon'ble High Court, the continuation of the proceedings before the National Green Tribunal for the same cause of action 8 would not be in the interest of justice. Paragraph nos. 12, 13 and 14 of the judgment of the Hon'ble Supreme Court dated 01.06.2022 reads as under:-
"IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 4522-4524 OF 2022 (@ DIARY NO. 16486/2022) THE STATE OF ANDHRA PRADESH APPELLANT(S) VERSUS RAGHU RAMAKRISHNA RAJU KANUMURU (M.P.) RESPONDENT(S) JUDGMENT B.R. GAVAI, J.
XXXXXXX "12. We are, therefore, of the considered view that it was not appropriate on the part of the learned NGT to have continued with the proceedings before it, specifically, when it was pointed that the High Court was also in seisin of the matter and had passed an interim order permitting the construction. The conflicting orders passed by the learned NGT and the High Court would lead to an anomalous situation, where the authorities would be faced with a difficulty as to which order they are required to follow. There can be no manner of doubt that in such a situation, it is the orders passed by the constitutional courts, which would be prevailing over the orders passed by the statutory tribunals.
13. In that view of the matter, we are of the considered view that the continuation of the proceedings before the learned NGT for the same cause of action, which is seized with the High Court, would not be in the interest of justice.
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14. We, therefore, quash and set aside the proceedings pending before the learned NGT in O.A. No.361 of 2024."
13. In this view of the matter, the Original Application No.10/2025/EZ is dismissed as not maintainable.
14. I.As., if any, stand disposed of accordingly.
15. There shall be no order as to costs.
.....................................
B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM January 24, 2025, Original Application No.10/2025/EZ OM 10