National Green Tribunal
H S Khatana vs State Of Haryana on 8 February, 2023
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 295/2021
H. S. Khatana Applicant
Versus
State of Haryana Respondent
Date of hearing: 08.02.2023
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Respondent: Mr. Rahul Khurana, Advocate for HSPCB
ORDER
1. Grievance in this application is against illegal mining in private and panchayat land to the detriment of the environment at Village Rithoj, District Gurugram, Haryana. Such mining is being done without requisite permission and in unscientific manner, resulting in depletion of water table, green cover and damage to water bodies.
2. Vide order dated 10.11.2021, the Tribunal sought a factual and action taken report from a joint Committee of Haryana State PCB, SEIAA, Haryana and District Magistrate, Gurugram. Reference was also made to order of this Tribunal dated 26.02.2021 in OA No. 360/2015, NGT Bar Association v. Virender Singh (State of Gujarat) and other connected matters directing taking of steps against illegal mining by continuous vigilance and by constituting a five Member Committee in all States headed by SEIAA, State PCB, two Expert Members of SEAC and nominee of CPCB wherever 1 its Regional Office exists. Further direction was for mechanism for review at the level of Chief Secretary once in every quarter.
3. The matter was last considered on 05.01.2023 in the light of report of the joint Committee of Haryana State PCB, SEIAA, Haryana and District Magistrate, Gurugram acknowledging indiscriminate illegal mining to the detriment of natural ecosystem, wildlife habitat, causing air pollution and adding to global warming. However, no remedial action was shown to have been taken. The Tribunal disapproved the failure of the Authorities, directed remedial action and sought further action taken report from the Mining Department and Forest Department.
4. Accordingly, further report has been filed on 06.02.2023 which further confirms the violations but again without adequate remedial measures. Extracts from the report are as follows:
"A. ATR of Forest Department
1. It is stated in the ATR that Rectangle nos. 24(min), 25(min).
26(min), 44(min) and 45(min) are covered either under Aravalli Plantation or notified u/s PLPA 1900 and thus are forest land, and that `No mining activity in the forest land is permitted and forest department takes action against the offenders as per law. Further, entire area of Sohna tehsil is notified under general section 4 of PLPA wherein felling of trees without permission from the Forest Department is prohibited. It has been stated that Forest Department has not issued any permission of tree felling for carrying out or enable mining in the said land either to panchayat or mining agency.
2. The responsibility of seeking such permission from the Forest Department lies with the land-owning agency or the agency carrying out mining. However, the responsibility of taking action on any violation of PLPA by carrying out any unpermitted activity lies with the Forest Department, which ought to be done timely of their own instead of waiting some committee to point out the violation.
3. As mentioned in the Forest Department's ATR that the time-
series analysis of satellite images does indicate mining and tree felling instances. The value of trees or plants in this sandy tract doesn't lie as much in their timber or fuel value as in the ecosystem services rendered by them in the form of sand dune stabilization, soil binding, addition of organic 2 matter and moisture conservation as shown in photo plate P7 & P8. However, in total indifference to the ecosystem concerns, the plants or trees coming in the way of sand/earth excavating machines are almost certain to be uprooted and removed.
A comparative study of the imagery of Aug 2017 and March 2022 as enclosed in the Forest Department's ATR shows that in kila no. 6 of Rectangle 32 (closed under general Section 4 of PLPA where prior permission for tree felling is required), there was considerable green-cover during 2017 including several trees, but it has disappeared before March 2022 as it is nowhere to be seen in 2022 imagery. Further the green cover also seems to have decreased Rectangle 12, 13, 14 and 15 of village Rithoj in recent years as indicated in satellite imageries of September 2017. October 2020 and March 2022 enclosed as P2.2.
4. The Forest Department's ATR shows several measures adopted to check illegal mining and tree felling. However, the effectiveness of the same in the areas visited on 25.01.2023 was not found satisfactory as shown in following date-time-location stamped photos.
a) The earlier sand mine in Rectangle 7 (P3) is being further extended/deepened inwards. The old mines are being activated as observed in Rectangle 25 (P4& P6). The trees coming in the way of mining operations are being indiscriminately uprooted or rendered vulnerable to falling down as shown in P7 & P8.
b) Some new plantation was noticed but its survival and healthy growth is highly unlikely (P9). About 10 saplings planted near a pond have been provided with brick fencing. The accompanying forest officials told that 1500 Papri saplings have also been planted. However, present average height of the surviving saplings is about three feet and there is no fencing. The saplings are susceptible to browsing and trampling by the intense cattle pressure as indicated by the cattle footmarks and droppings on the sandy terrain.
5. The department has submitted a Restoration Plan (as enclosed) involving plantation of native species during the coming July/August for restoration of green cover in village Rithoj closed u/s 4&5 of PLPA 1900. Besides the proposed plantation, the plan includes various measures for overall protection of the ecosystem and take proactive steps whenever any damage is done. It can be expected that better & adequate technical and protection measures will be taken for restoration and protection of the ecosystem and environment.
B. ATR of Mining and Geology Department
1. In the context of fresh mining observed on 10.05.2022, the mining officer has cited certain letters written to the SHO 3 Police Station Bhondsi vide Memo No. 375 dt. 11.05.2022. 1147 dt. 29.08.2022 & 2221 dt. 09.01.2022 with copies to the Forest Range Officer and BDPO Sohna for necessary action. Above letters of the mining officer have finally resulted in registration of an FIR no. 0023 dated 25.01.2023 PS Bhondsi. The culprits involved in the said illegal activities should be identified by the police and action should be taken as per law.
2. The mining officer's plea of (i) consent of the owner for the excavation and (ii) use of the earth in the development of a National Highway Project do not justify violation of the mining rules in vogue and eventual damage to the ecosystem and environment.
3. The claim of the Mining Officer regarding compliance of STP conditions is unacceptable. The uprooting/damage of trees during mining is apparent albeit there is no instance of obtaining prior permission from the forest department. Similarly, the depth of digging far above the height of the excavators' bucket and exceeding the permissible 9' is more than apparent. Further, there is no record of any action taken against any permit holder for violation of the permit rules/conditions, like imposing penalty etc.
4. There is no explanation viz., any right, privilege, concession, permit or license issued under any rule for the new mining operations and the activation of old mines noticed by the joint committee on 25.01.2023.
5. Besides registration of the FIR on 25.01.2023, on recommendation of the BDPO Sohna. the Gram Panchayat Rithoj constituted a local committee on 17.01.2023 comprising the Sarpanch, Panch, Panchayat Secretary, village Chaukidar, Mining Guard and Forest Guard to stop the illegal mining. This committee should work earnestly to ensure prevention of illegal mining.
6. Other measures reported in the ATR include deputing a mining guard for strict vigil over illegal mining, erecting a sign-board and digging trenches at the entry and exit points of Panchayat Land dunes. The signboard and the trenches dug at the mining entry and exit points are shown in photo P1. However, these measures have been taken very late after the previous committee visit on 10.05.2022 because in the meantime, the mine in Rectangle 7 (P3) has been further extended/deepened whereas in Rectangle 25, fresh-mining operations (P4) and activation of old mines (P6) were observed.
7. The mining officer has estimated the quantity of the theft of earth on three sites as 2860, 588 and 274 MT. The loss of royalty to the government @ Rs. 3.50 per MT as per Mining Rule of 2012 works out to Rs. 10010, 2058 and 959 respectively further totaling to Rs 13,027/-. Besides the loss of revenue to the government, there is much more ecosystem loss in terms of disturbing the stabilized sand dunes, moisture 4 conservation and green cover. It is expected that the Police and Mining department will find the real culprits and recover the revenue loss, besides ensuring that such revenue and ecosystem loss will not recur.
5. Findings and Conclusion: -
1. Present quantum of fresh excavation of soil as observed on 25.01.2023 on the site is far less than that seen in the previous visit of the committee on 10.05.2022 even-though new mining operations and activation of some old mines is still a reality.
2. The police FIR on the 10.05.2022 incidence has been registered only now on 25.01.2023 after 8 months. Similarly, a local committee has been constituted only recently on 16.01.2023, trenches have been dug across paths, a mining guard has been deputed and public notice board have been fixed. This committee should work earnestly to ensure prevention of illegal mining and Police Department should take immediate action.
3. The mining officer seems to be helpless in controlling illegal mining thus far. Now, deputation of a Mining Guard with Local Committee in this area may help in prevention of illegal mining activity. District Administration must review the functioning of this committee.
4. The concerns expressed by the committee in its previous report about importance of the narrow Aravalli hill ecosystem as a threatened wildlife habitat and corridor requires seriousness consideration. The sand dunes of this village form a protective buffer for the Aravalli hills situated further high in the east. The onus of implementation of the proposed Restoration Plan lies with the Forest Department but the expenditure should be shared by the beneficiary departments of mining revenue, primarily the Mining & Geology Department."
5. From the above, it is seen that there is continuing illegal mining but the Administration is not controlling the same. Inspite of acknowledged ecological significance of Aravali Hills and threat to wildlife habitat and corridor, remedial measures are not being taken. This shows paralysis of administration on the subject in breach of Public Trust doctrine obligating the State to protect environment. Plea of lack of resources is poor substitute for compliance of mandatory constitutional duties of the State.
6. Accordingly, we are left with no option except to direct Chief Secretary, Haryana to personally look into the matter and take remedial measures including providing of necessary infrastructure in terms of manpower, equipments, and taking prompt remedial measures to plug the 5 failures, including restoration measures such as afforestation, soil and water conservation. A senior level nodal officer/agency be assigned for the purpose. Continuous surveillance and monitoring be ensured in the light of failures mentioned above. It will be appropriate that the Chief Secretary and DGP hold a joint meeting of the District Magistrate and SSP of the area to prepare necessary road map which may include checking of vehicles carrying illegally mined material and forest produce, drone mapping, setting up of CCTV cameras at appropriate vulnerable locations, requiring vehicles carrying such material to have GPS, permitting only vehicles having valid mining licenses to transport mined material, providing machinery for seizing the violating vehicles and taking action against their drivers and owners and deployment of additional Police force or other staff as per requirement. An action taken report be filed before this Tribunal within one month by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
List for further consideration on 11.04.2023.
A copy of this order be forwarded to the Chief Secretary, Haryana, DGP, Haryana, State PCB, District Magistrate, Gurugram and SSP Gurugram by email for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM February 08, 2023 O.A. No. 295/2021 A 6