National Green Tribunal
Papun Kumar Sahu vs State Of Odisha Represented By ItS ... on 14 March, 2023
Item No.08 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.140/2022/EZ
In the matter of:
Papun Kumar Sahu
S/o: Kalu CharanSahu,
Aged about 29 years,
At/PO:Podamari,
P/S: Pattapur,
Pin -761014,
District: Ganjam, Odisha
.... Applicant(s)
Versus
1. State of Odisha
Represented by it's Chief Secretary to Govt. of Odisha,
State Secretariat,
Bhubaneswar,
Pin - 751001,
Odisha
2. Additional Chief Secretary to Government,
Revenue and Disaster Management Department,
Government of Odisha,
State Secretariat,
Bhubaneswar - 751001
Odisha
3. Member Secretary,
Odisha State Pollution Control Board,
Paribesh Bhawan, A/118,
Nilakantha Nagar, Unit- 8,
Bhubaneswar - 751012,
Odisha
4. Revenue Divisional Commissioner,
Southern Division,
At/Po: Berhampur - 760004,
District:Ganjam,
Odisha
5. Collector-cum-District Magistrate,
Ganjam Collectorate,
At/Po: Chatrapur,
Pin - 761020,
Dist.: Ganjam,
Odisha
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6. Member Secretary,
State Environment Impact Assessment Authority,
Qr. No: 5 RF, 2/1, Unit - 9,
Bhubaneswar - 751022,
Odisha
7. Litu Pradhan,
Proprietor of M/s MaaManekeswari Brick Industry,
At/Po: Pod Amari - 761014,
P/S: Pattapur (SanakhemundiTahasil),
Dist.: Ganjam,
State: Odisha
.... Respondent(s)
Date of hearing: 14.03.2023
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
For Applicant(s) :Mr. Biranchi Narayan Mahapatra, Advocate (in Virtual Mode)
For Respondent(s) :Ms. Samapika Mishra, ASC for R-1,2,4 & 5 (in Virtual Mode),
Ms. Papiya Banerjee Bihani, Adv. for R-3 (in Virtual Mode),
Mr. Apurba Ghosh, Adv.for R-6 (in Virtual Mode),
Mr. Sankar Prasad Pani, Adv.for R-7 (in Virtual Mode)
ORDER
1. The allegation of the Applicant in this Original Application is that the Respondent No.7, Private Respondent, is operating a brick kiln in the name and style of 'M/s MaaManekeswari Brick Industry' along with a 'Brick Earth Quarry' situated at Plot No.810 to 820 (Kissam Agriculture Land/Padar) of Khata No.127/102, Plot No.825(Kissam Agriculture Land/Padar) of Khata No.127/86, Plot No. 821, 822 (Kissam Road/GramyaSadak) of Khata No.174, Plot No.824 (KissamPatita) of Khata No.175, under Nuagaon Mouza of SanakhemundiTahasil of Ganjam District, Odisha.
2. The allegation further is that the Respondent No.7, Brick Kiln has a Consent to Operate for production of 20 lakhs clay bricks per annum from the State Pollution Control Board, Odisha, vide Consent Order dated 07.08.2021 which is valid upto 31.03.2024 but so far as the Brick Earth Quarry is concerned, the Respondent No.7 is excavating earth from the said brick quarry without 2 obtaining any Environmental Clearance (EC) or Consent to Establish (CTE) or Consent to Operate (CTO) from the Board, and is thus, acting in violation of the environmental norms.
3. In support of his contention, the Applicant has filed the notice issued by the State Pollution Control Board, Odisha, dated 28.06.2022 (Annexure-A/2 to the Original Application), to the Respondent No.7, to produce all the relevant documents before the Board within 15 days from the date of issuance of the letter, failing which action will be taken as per law. This notice mentions that the Respondent No.7 is operating M/s Nuagam Brick Earth Quarry without obtaining Consent to Establish/Consent to Operate from the State Pollution Control Board, Odisha.
4. Likewise, notice was also issued to the Tahasildar-Sanakhemundi, District-Ganjam, Odisha, on 28.06.2022, directing him to look into the matter with regard to a complaint filed (Annexure-A/2 Series) by Sri Papun Kumar Sahu, Applicant herein, regarding illegal operation of the brick earth quarry known as M/s Manikeswari Brick Industry.
5. Mr. Biranchi Narayan Mahapatra, learned Counsel for the Applicant, submits that in spite of the notice being issued by the State Pollution Control Board, Odisha, on 28.06.2022 (Annexure- A/2, page no. 92 of the paper book), the Respondent No.7 is still operating his Brick Earth Quarry in violation of environmental norms.
6. He further submits that in response to the notice dated 28.06.2022 (Annexure-A/2, page no.93 of the paper book) issued by the State Pollution Control Board, Odisha, no action has been taken by the Tahasildar-Sanakhemundi, District-Ganjam, Odisha, till date. 3
7. Considering the allegations made in the Original Application, the Tribunal directed the Respondent No.5, Collector-cum-District Magistrate, Ganjam District, to file his personal counter-affidavit. In his affidavit, he was also required to indicate as to what action had been taken against the Tahasildar-Sanakhemundi, in whose Tahasilan illegal Brick Earth Quarry was being operated by the Respondent No.7.
8. Affidavit dated 03.11.2022 has been filed on behalf of the Respondent No.3, State Pollution Control Board, Odisha. Along with this affidavit, an Inspection Report of an inspection carried out on 17.10.2022 has been filed. The findings, Observations, Conclusion and Recommendations of the Inspection Report read as under: -
"Also during the site inspection, the Tahasildar, Sanakhemundi and the Revenue Supervisor and Revenue Inspector of the Circle were present.
M/s MaaManikeswari Brick Industry is a fixed type Clay brick manufacturing unit which has been established in Mouza- Nuagaon under TahasilSanakhemundi in the District of Ganjam under the proprietorship of Sri Litu Pradhan, At/P.O.- Podamari, Sanakhemundi, Dist. Ganjam.
A) The Unit has obtained sitting criteria certificate from the Collector and District Magistrate, Ganjam vide Revised Order No.2852 dtd. 28.08.2017 in favour of Sri Litu Pradhan, Proprietor over Plot No. 823/1189 under Khata No. 127/81, comprising of area Ac.0.405, (Kisam-
Gharabari), Mouza-Nuagaon, Tahasil:Sanakhemundi, Dist. Ganjam as per the sitting criteria fixed by the State Government vide Notification No. 20949 dtd. 06.12.2005 of Forest and Environment Department, Government of Odisha.
4 B) Based on the sitting criteria certificate, requisite documents and adequate consent fees, Consent to Establish under Section 25 of Water (Prevention & Control of Pollution) Act, 1974 and Section 21 of Air (Prevention & Control of Pollution) Act, 1981 was granted by Regional Office, SPCB, Berhampur to the unit vide Board's letter no. 2475 dtd. 07.08.2021 for the production of Clay Kiln Bricks-20,000,00 Nos./Annum over Plot No. 823/1189 under Khata No. 127/81 of area Ac.0.405 dec, Mouza-Nuagaon, Tahasil- Sanakhemundi in the District of Ganjam.
C) Subsequently Consent to Operate under Section 25/26 of Water (Prevention & Control of Pollution) Act, 1974 and Section 21 of Air (Prevention & Control of Pollution) Act, 1981 has been granted by Regional Office, SPCB, Berhampur to the Brick Kiln unit vide Board's letter no.2477 dtd. 07.08.2021 for the production of Clay Kiln Bricks-20,000,00 Nos. / Annum valid upto 31.03.2024. D) Mining Plan for Nuagaon Brick Earth Quarry for & on behalf of Sri Litu Pradhan has been duly approved by the Authorized Officer, Joint Director, Geology, Berhampur on 28.08.2019 for the period of five years. E) Sri Litu Pradhan has obtained the Environmental Clearance for mining of brick earth from Nuagaon Earth Quarry over an area of 3.3 acres /1.347 hectares at village-Nuagam, Tahasil, Sanakhemundi. Dist-Ganjam from SEIAA, Odisha, Bhubaneswar vide letter No.137/SEIAA dtd. 21.01.2021.
F) Lease agreement was made between the Tahasildar, Sanakhemundi and lessee on dated 25.03.2022 for quarrying of brick earth over an area of 3.3 acres / 1.347 hectares at village-Nuagam, Tahasil, Sanakhemundi. Dist-Ganjam.
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In the meantime, a compliant petition has been filed by Sri Papun Kumar Sahu, S/o-Kalu CharanSahu, At/P.O.-Podamari, Dist-Ganjam addressed to the Revenue Divisional Commissioner, Southern Zone, Berhampur along with copies to the Collector & District Magistrate Ganjam, Regional Officer, SPCB, Berhampur, The Member Secretary, SEIAA, Odisha and The Member Secretary, SPCB, Odisha regarding quarrying of Nuagaon Brick earth mine on prime agricultural land and establishment of Brick Kiln over agricultural land/Govt. land under Nuagaon Mouza of SanakhemundiTahasil. Regional Office, Berhampur had communicated the allegation petition made by the compliant vide letter no. 1819 dtd. 28.06.2022 to TahasildarSanakhemundi to inquire about the matter and to take appropriate follow up action in this matter and Sri Litu Pradhan, Proprietor of M/s MaaManikeswari Brick Industry was also directed not to operate M/s Nuagam Brick Earth Quarry without obtaining Consent to Establish/Consent to Operate from the Board and asked to apply for Consent to Establish/Consent to Operate through online (https://odocmms.nic.in) as per the provisions under section 25/26 of Water (PCP) Act, 1974 and under section 21 of Air (PCP) Act, 1981 and rules framed there under with all relevant documents to the Board vide letter no.1809 dtd. 28.06.2022. Similarly, Additional District Magistrate, Revenue, Ganjam has also directed TahasiladarSanakhemundi to take appropriate action in this matter.
In compliance to the above and as per direction from Tahasildar, Sanakhemundi the alleged matter was inquired by the Revenue Inspector, Pudmari and during filed verification by the RI, it was found that M/s MaaManikeswari Brick Industry was not in operation and the unit has been established over Plot No. 823/1189 under Khata No. 127/81 of extent area Ac.0.405, Mouza-Nuagaon, Tahasil- Sanakhemundi and Sri Litu Pradhan, Lessee of M/s Nuagam Brick Earth Quarry has also applied for obtaining of Consent to Establish and Operate of M/s Nuagaon Brick Earth Quarry through online portal of State Pollution Control Board.
6 During inspection following observations have been made by the Committee: -
1. M/s MaaManikeswari Brick Industry was not in operation.
2. From the surrounding and as per the available record, it was found that the brick kiln manufacturing unit was not in operation since one and half year.
3. Sri Papun Kumar Sahu has alleged that the brick kiln manufacturing unit and Brick earth Quarry are operating over the prime agriculture land/ Government Land over the Plot No. 810, 811, 812, 813, 814, 815, 816, 817, 818, 819 and 820 of Khata No. 127/102, Plot No.825 of Khata No. 127/86, Plot No. 821, 822 of Khata No. 174, Plot No. 824 of Khata No. 175 under Nuagam Mouza.
4. But during verification it was found that the chimney and the trench area of brick kiln manufacturing unit (operational area) has been established over Plot No.823/1189 under Khata No.127/81 of area Ac.0.405, Mouza-Nuagam, Tahasil: Sanakhenmundi.
5. The Brick kiln manufacturing unit is not established over any agriculture land as per revenue record and as observed during inspection.
6. Raw material like rice husk, coal and sand etc. have been stacked outside its brick operational area in haphazard manner.
7. The adjacent area of brick kiln manufacturing area has been changed its kissam from agriculture to Gharabari (Non-agriculture) type. Plot Number 823 of Khata Number 127/8, Plot Number 810, 811, 814, 815, 816, 817, 818 and 820 of Khata Number 127/102 has changed its Kissam from Class-IV 7 Agriculture land/Non-Prime Agriculture land to Gharabari (Non-Agriculture) Kissam.
8. Government Road is used for transportation of raw material including its final product to outside.
9. The minor mineral source i.e. Nuagam brick earth quarry has not started its operation till now.
10. Sri Litu Pradhan, Proprietor of M/s MaaManikeswari Brick Industry cum Lessee of M/s Nuagam Brick earth quarry has applied for consent to establish/operate through online on dtd. 14.10.2022 to State Pollution Control Board.
Conclusion & Recommendation:
From the above observation it was found that M/s MaaManikeswari Brick Industry is established over Plot No.823/1189 under Khata No.127/81 of area Ac.0.405, Mouza- Nuagaon, Tahasil-Sanakhemundi based on the sitting criteria certificate issued from the Collector and District Magistrate, Ganjam vide Revised Order No.2852 dtd. 28.08.2017. The minor mineral source i.e. M/s Nuagam Brick Earth Quarry has not started its mining operation. The TahasiladarSanakhemundi has inquired the alleged matter by the concerned Circle Revenue Inspector as per direction issued from the Additional District Magistrate, Revenue, Ganjam and also communication received from Regional Officer, SPCB, Berhampur and accordingly follow up action has been initiated by the TahasildarSanakhemundi.
In view of the above observations, the committee recommended the followings: -
1. The Nuagam Brick earth quarry shall operate after obtaining valid consent to establish/operate from the Board.
2. The Brick Kiln manufacturing unit shall dispose the solid wastes properly without causing any nuisance or environmental pollution in the surroundings. 8
3. The Brick Kiln manufacturing unit has been asked to resume its operation in compliance to consent conditions issued vide Board's letter no. 2477 dtd. 07.08.2021 and after obtaining of CTE/CTO of M/s Nuagaon Brick Earth Quarry."
9. The Applicant in his rejoinder affidavit dated 30.11.2022 has submitted that the Mining Plan for Nuagam Brick Earth Quarry of Respondent No.7 with reference to Plot No.499 and 501 under Khata No.127/13 of Mouza-Nuagam, Tahasil-Sanakhemundi, District-Ganjam, is recorded in the name of one Radha Damodar Panda but illegally Environmental Clearance has been issued in favour of the Respondent No.7 ignoring these facts. It is also submitted that the Respondent No.7has no authority to submit Mining Plan before the Deputy Director, Geology, Southern Zone, Berhampur, Ganjam, with reference to Rule 28 (4) of Odisha Minor Mineral Concession Rules, 2016(hereinafter referred to as 'Rules 2016') and the Deputy Director has no authority to approve the Mining Plan of the Respondent No.7. It is also alleged that the statutory authorities have ignored to the provisions of Rule 34 (d)
(ii) of the Rules, 2016.
10. The Respondent No.7, Litu Pradhan, has filed affidavit dated 08.12.2022 stating therein that the Unit has obtained Siting Criteria Certificate from the Collector &District Magistrate, Ganjam, over Plot No.823/1189 under Khata No.127/81, Tahasil-
Sanakhenundi, District-Ganjam, vide order dated 28.08.2017. The Regional Office, Odisha State Pollution Control Board, has also granted Consent to Establish (CTE) and Consent to Operate (CTO) on 07.08.2021valid upto 31.03.2024 for production of Clay Kiln Bricks-20,00,000 per annum. It is also stated that the Mining 9 Planfor Nuagam Brick Earth Quarry has been duly approved by the Authorized Officer, Joint Director, Geology, Berhampur, on 28.08.2019 for a period of five years over an area of 3.3 acres/1.347 hectares in Village-Nuagam, Tahasil-Sanakhemundi, District-Ganjam and Environmental Clearance has also been granted by State Environment Impact Assessment Authority, Odisha dated 21.01.2021. Lease agreement has also been entered into between the Tahasildar, Sanakhemundi and the lessee on 25.03.2022 for quarrying of brick earth over the area of 3.3 acres in Village-Nuagam.
11. The Collector& District Magistrate, Ganjam, has filed counter-
affidavit dated 13.12.2022the brick kiln in question is situate on plot no.823/1189 which is non-agricultural land (GharabariKissam) but at present the brick kiln is not in operation since the last one and half years. Mining of Brick Earth Quarry has also not started till now. It is also stated that the fixed chimney of M/s MaaManikeswari Brick Industry has been constructed over plot no.823/1189 under Khata No.127/81 of Mouza-Nuagamwhich is a private land and there is no construction of chimney over Government land. Along with this affidavit, the Consent to Establish (CTE) of the M/s MaaManekeswari Brick Industry dated 07.08.2021 has been filed mentioning that the capacity of Clay Kiln Bricks-20,00,000as Annexure-II. Consent to Operate (CTO) also dated 07.08.2021 for 20,00,000 Clay Kiln Bricks per annum,has been filed as Annexure-III. The Environmental Clearance dated 21.01.2021 has also been filed as Annexure-V, for the proposed activity of Brick Earth Mining/Quarry.
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12. The Respondent No.7 has filed a supplementary affidavit dated 17.01.2023. Annexure-I thereto is the Consent to Establish (CTE) dated 15.12.2022 for M/s Nuagam Brick Earth Quarry, for Mining of Brick Earth-1772 Cum/Annum over plot no.499 & 501 under Khata No.127/13 (Minor Mineral) Mine Lease Area acres 3.330/1.347 hectares at Mouza-Nuagamunder Tahasil- Sanakhemundi, District-Ganjam. The Environmental Clearance is valid for a period of five years. Annexure-IA dated 19.12.2022 is the Consent to Operate (CTO) granted in favour of M/s Nuagam Brick Earth Quarry of Sri Litu Pradhan, over plot no.499 & 501 under Khata No.127/13 (Minor Mineral) Mine Lease Area acres 3.330/1.347 hectares at Mouza-Nuagaon under Tahasil- Sanakhemundi, District-Ganjam, for Mining of Brick Earth-1772 Cum/Annum.
13. The Applicant have filed rejoinder affidavits dated 25.01.2023 and 04.02.2023 reiterating the allegations made earlier.
14. The Joint Enquiry Report refers to the Environmental Clearance (EC), the Consent to Establish (CTE) and the Consent to Operate (CTO) which have already been referred to hereinabove which havebeen granted in favour of the Respondent No.7 for production of Clay Kiln Bricks-20,00,000. Lease agreement was entered into between Tahasildar and lessee on 25.03.2022 for quarrying of brick earth over the area of 3.3 acres/1.347 hectares at Village-Nuagam.
15. Along with rejoinder affidavit dated 04.02.2022the Applicant has filed document dated 28.08.2017 which shows that an application was made by Respondent No.7, Litu Pradhan, for issuance of a revised Siting Criteria Certificate in his name for fixed chimney Brick Kiln Unit over plot no.823/1189 of Khata No.127/81 11 comprising areas Ac.0.405 in Mouza-Nuagamon account of death of his father late Bhaskar Pradhan. The previous Siting Criteria Certificate was issued on 22.03.2017 in favour of Bhaskar Pradhan, father of Litu Pradhan. This letter also mentions that the proposed site conforms to the Siting Criteria fixed by the State Government vide Notification No.20949 dated 06.12.2005 of Forest & Environment Department. The documents on record show that the Respondent No.7 not only hasthe Consent to Establish (CTE) and Consent to Operate (CTO) but he also has Environmental Clearance (EC) issued in his favour on21.01.2021.
16. Mr. Biranchi Narayan Mahapatra, learned Counsel for the Applicant thensubmitted that the proviso to Rule 34 lays down that no quarry permit shall be granted to anybody other than State Agencies or Project Proponents for public purposes and in Explanation-II, "Project Proponent for public purposes" has been explained to meanany person or firm or company executing any Government Project and shall include schematic beneficiaries under the Government schemes likeIndira Awas Yojana (IAY), Rajiv Awas Yojana (RAY) etc. and therefore, quarry permit could not have been granted to the Respondent No.7.
17. Mr. Sankar Prasad Pani, learned Counsel for the Respondent No.7 submitted thatRule 34 of the Rules, 2016, has no applicationto the facts of the present case inasmuch asthe said Rule applies only to grant of quarry permits under Chapter-V of the Rules, 2016 and Rule 36 of the said rules, further provides that the period of a quarry permit shall not exceed three months at a time.
18. Learned Counsel further submitted that in the present case the Respondent No.7 has not been granted a quarry permit but rather 12 he has been granted a lease executed in his favour by the Tahasildarwhich is confirmed in the Joint Inquiry Report filed with the affidavit of the Odisha State Pollution Control Board which mentions that the lease was executed between the Tahasildar and the lessee on 25.03.2022 for quarrying of brick earth over an area of 3.3 acres/1.347 hectares at Village-Nuagam, Tahasil- Sanakhemundi, District-Ganjam.
19. Copy of the lease deed has been filed as Annexure-VI (page no.393 of the paper book) to the affidavit of Collector & District Magistrate, Ganjam, which shows that the lease deed has been executed between the Tahasildar and Sri Litu Pradhan,Respondent No.7 herein on 25.03.2022, therefore, the contention of the Applicant that no quarry permit could have been granted in favour of the Respondent No.7 under Rule 34 is thoroughly mis-conceived and is rejected as Rule 34 of the Rules, 2016 has no application to the facts of the present case. We find that Consent to Establish (CTE) has been granted to the M/s MaaManekeswari Brick Industries on 07.08.2021 and Consent to Operate (CTO) also dated 07.08.2021 has been grantedin the name of the occupier Litu Pradhan, Proprietor of M/s MaaManekeswari Brick Industries, issued by the Odisha State Pollution Control Board, both documents have been filed with the affidavit of the Collector & District Magistrate, Ganjam.
20. The Respondent No.7 has also filed the Consent to Establish (CTE) in respect of M/s Nuagam Brick Earth Quarry, issued by the Odisha State Pollution Control Board on 15.12.2022 and the Consent to Operate (CTO) dated 19.12.2022, both documents have 13 been filed as Annexure along with the affidavit of the Respondent No.7 dated 17.01.2023.
21. We may also observation that the direction by the Odisha State Pollution Control Board to the Respondent No.7 vide its letter dated 28.06.2022 not to operate the brick kiln, was in response to the complaint of the Applicant and not based on a factual inspection. In fact, in the Inspection Report of inspection carried out on 17.10.2022 there is a clear finding recorded that the Brick Kiln in question was not in operation since one and a half years.
22. The learned Counsel for the Applicant next contended that the Mining Planissued in favour of the Respondent No.7is in violation of Rule 28 of the Rules, 2016. The submission is thoroughly mic- conceived since the Joint Enquiry Report clearly mentions that Mining Plan for M/s Nuagam Brick Earth Quarry, for and on behalf of Litu Pradhan has been duly approved by the Authorized Officer, Joint Director, Geology, Berhampur, on 28.08.2019 for a period of five years. Document to that effect has been filed as Annexure-IV (page no.156 of the paper book), to the affidavit of the Odisha State Pollution Control Board dated 03.11.2022 and it mentions that the same has been issued under Rule 28 sub-Rule (4) of the Rules, 2016.
23. Learned Counsel for the Applicant then submitted that no tenders were invited before grant of lease in favour of Sri Litu Pradhan, Respondent No.7, and therefore, the mining lease issued in favour of Respondent No.7, without public notice and without inviting tenders is wholly illegal and MiningPlan itself is in violation of Rule 15 of the Rules, 2016 which lays down the procedure for grant of mining lease.
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24. In our opinion, we cannot enter into questions of validity of the process of issuance of mining lease in favour of Respondent No.7, and whether open tenders were invited or not,the said question being beyond the jurisdiction of the National Green Tribunalas the National Green Tribunal can only examine questions of environmental violations and violation of environmental norms and whether the Project Proponent has a valid Environmental Clearance (EC), Consent to Establish (CTE) and Consent to Operate (CTO), which in the present case,we have already noted hereinabove that the Respondent No.7 is in possession of.
25. For aforesaid reasons, we find no merit in the present Original Application and the same is accordingly dismissed.
26. Interlocutory Applications, if any, stand disposed of accordingly.
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B. Amit Sthalekar, JM .......................................
Prof. A. Senthil Vel, EM March14, 2023 Original Application No.140/2022/EZ MN 15