National Green Tribunal
Kuldeep Singh vs State Of Haryana on 20 July, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 03 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 169/2020
Kuldeep Singh Applicant
Versus
State of Haryana & Ors. Respondent(s)
Date of hearing: 20.07.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE M. SATHYANARAYANAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant(s): Mr. Vikas Goyat, Advocate
Respondent(s): Mr. Anil Grover, Senior AAG with Mr. Rahul Khurana, Advocate
for HSPCB
ORDER
1. Grievance in this application is against illegal mining in forest area by M/s Govardhan Mines and Minerals, Hisar at Dadam Hills, Tosham, District Bhiwani and also unscientific mining outside forest area in violation of EC conditions. It is stated that there are FIRs, complaints and letters pointing out such illegalities.
2. Vide order dated 20.08.2020, the Tribunal sought a factual and action taken report from a joint Committee comprising the State PCB, Divisional Forest Officer, Bhiwani and the Additional District Magistrate, Bhiwani.
3. Accordingly, the joint Committee has filed its report dated 16.07.2021 inter alia stating that another application on the same subject being OA No. 132/2020, Rakesh Dalal v. State of Haryana, has been dealt with by this Tribunal vide order dated 02.06.2021. Therein, 1 report was similar to the report now furnished that damage was found but the present project proponent (PP) was not responsible but it was the predecessor of this PP who had caused the damage. The report now filed states that inspection was first conducted by the Committee on 06.10.2020 finding violations by the PP. Based thereon, show cause notice dated 08.10.2020 was issued by the State PCB under Section 5 of the Environment (Protection) Act, 1986 and after considering the reply, the Regional Officer, State PCB recommended closure on 06.11.2020. However, the scenario underwent change after the meeting convened by the Deputy Commissioner, Bhiwani on 01.12.2020. Therein differing stands were presented by the mining, forest and ground water departments at variance with the findings in the site inspection report of the joint Committee. Such differing stands were noted by the Deputy Commissioner, Bhiwani, who directed the stakeholder Departments to examine the presentation of the project proponent for sending a report to the Chairman, State PCB. Accordingly, the Forest Department vide report dated 21.12.2020 and the Mining Department vide report dated 31.12.2020 sent their observations to the Deputy Commissioner, contrary to the findings in the site inspection report dated 6.10.2020. Based on later reports, the present report has been filed to the effect that no illegal mining has been done by the present PP. Illegal mining had been done by the predecessor of the project proponent.
4. We have heard learned Counsel for the parties and perused the record.
5. Learned Counsel for the applicant submitted that order of this Tribunal dated 02.06.2021 in OA No. 132/2020 may not be treated as final as the Tribunal did not have the benefit of any assistance from the side of the applicant and thus patent illegalities which exist in mining by 2 the PP could not be pointed out. The Tribunal has merely directed further action in terms of the report without any discussion in absence of objections thereto. Conclusion in the report is patently perverse and against the record. It is pointed out that the inspection reports submitted on 06.10.2020 by the six-member Committee headed by Addl. Deputy Commissioner, Bhiwani and including Mining Officer, Bhiwani, Assistant Geologist, Ground Water Cell, Bhiwani, Addl. District Forest Office, Bhiwani, SDO Nagina, Water Service and Sub Div. Bhiwani could not be deviated from without any factual basis. The reports clearly find the PP responsible for the violations. The PP is successor of the earlier mining lessee and responsible for the continuing violations which are of serious nature. Subsequent reports by the Mining and the Forest Department cannot be held to be reliable in view of earlier reports. The reports are similar but separate for the two OAs filed before the Tribunal. The Tribunal passed two separate orders in the said OAs seeking reports. In OA 132/2020, report is reproduced below:
"1. Regarding illegal mining by M/s Govandhan Mines at Dadam, Tosham, Bhiwani Haryana.
Observation - During the inspection it is observed that the sand mining project has illegally created ways in the forest area without having any valid permission. At the time of inspection, the mining equipment's/machines are also found standing in the non-minable forest area.
The Dadam Hill Minor is a protected forest area under IFA, 1927 and same is found illegally mined at the time of the inspection.
2. It is alleged that mining is done upto 150 meters which is not permissible.
Observation - During the inspection, the concerned mining officer stated that the mining is done at the site about 200 feet depth. But actual depth of the mining pits will be assured by the inspection of the mining surveyor from Mining Dept., Head Office, Panchkula within 7 days as mentioned by concerned mining officer.
3. The Mining Company has not given a closure plan. Observation - During the inspection the concerned mining officer stated that an approved mining plan as well as a progressive closure plan of same is already submitted by the said mining 3 project and the mining project is still in progress and closure plan will be implemented after closure of the mining.
4. In the progressive closure plan, the depth is shown to be up to 42 meters.
Observation - During the inspection the concerned mining officer stated that the said mining project has given following dimensions of mining pit as per approved mining plan:
(i) Length: 536 meters (ii) Width : 528 meters (iii) Depth : 78 meters (from ground level). But no record provided at the site during inspection in this regard.
5. Mining is not being done in a scientific manner. Observation --During inspection the concerned mining officer stated that the mining is not done in scientific manner i.e. benches of 9- meters height and 9-meter width are not properly formed.
6. Ground water is also being illegally extracted. Observation - During the inspection the concerned Assistant Geologist, Ground Water Cell reported that no bore well found in the lease mining area. The project is meeting water requirement for plantation, dust suppression and domestic etc. through tankers from outside the mining area and also using the waters stored within mining pits and water stored in pits cannot be identified at spot whether it is groundwater or rain water and same will be identified within 7 days as assured by the concerned Assistant Geologist, Ground Water Cell.
7. The applicant has annexed a letter addressed to the Additional Chief Secretary, Mines and Geology Department pointing out irregularities in the process of mining. Observation -- During the inspection the concerned officer stated that he is not aware about the said communication because the letter number and date are not mentioned. During the inspection the concerned SDO, Irrigation Department stated that the said mining project is using the land of Dadam distributary illegally for mining purpose."
Report on same day in OA 169/2020 on the subject of illegal mining in the forest area is as follows:
"Point: Grievance in this application is against alleged illegal mining in forest area by M/s Govardhan Mines and Minerals, Hisar at Dadam Hills, Tosham. District Bhiwani. The applicant has relied upon FIR, complaints and letters in support of the allegation.
Observation -- During the inspection it is observed that the said mining project has illegally created ways in the forest area without having any valid permission. At the time of inspection, the mining equipment's/machines are also 'found standing in the non-minable forest area.
The Dadam Hill Minor is a protected forest area under IFA,1927 and same is found illegally mined at the time of the inspection.4
At the time of inspection, the team has also reported following observations:
During the inspection, the concerned mining officer stated that the mining is done at the site about 200 feet depth. But actual depth of the mining pits will be assured by the inspection of the mining surveyor from Mining Dept., Head Office, Panchkula within 7 days as mentioned by concerned mining officer. At the time of inspection the concerned mining officer also stated that an approved mining plan as well as a progressive closure plan of same is already submitted by the said mining project and the mining project is still in progress and closure plan will be implemented after closure of the mining.
During the inspection the concerned mining officer stated that the said mining project has given following dimensions of mining pit as per approved mining plan:
(i) Length: 536 meter (ii) Width: 528 meter (iii)Depth: 78 meter (from ground level).
At the time of inspection, the concerned mining officer mentioned that the mining is not done in scientific manner i.e. benches of 9- meter height and 9-meter width are not properly formed. During the inspection the concerned Assistant Geologist, Ground Water Cell reported that no bore well found in the lease mining area. The project is meeting water requirement for plantation, dust suppression & domestic etc., through tankers from outside the mining area and also using the water stored within mining pits and water stored in pits cannot be identified at spot whether it is groundwater or rain water and same will be identified within 7 days as assured by the concerned Assistant Geologist, Ground Water Cell.
The concerned SDO, Irritation Department at time of inspection stated that the said mining project is using the land of Dadam distributary illegally for mining purpose."
6. Show cause notice for closure dated 08.10.2020 issued by the State PCB issued as follows:
"Whereas an NGT order dated 21.07.2020 OA No. 169/2020 titled as Kuldeep Versus State of Haryana and order dated 20.08.2020 OA No. 132/2020 titled as Rakesh Dalai Versus State of Haryana Whereas a joint team constituted by Worthy Deputy Commissioner, Bhiwani and headed by Addl. Deputy Commissioner, Bhiwani including Mining Officer, Bhiwani, Assistant Geology, Ground Water Cell, Bhiwani, Addl. District Forest Office, Bhiwani, and SDO Nigana, Water Service, Sub Div. Bhiwani visited the site of mining project on 06.10.2020 Whereas during inspection, following deficiencies are observed by the joint team :-5
1. You have created illegal ways in the forest area without having any valid permission.
2. The mining equipment's/machines are also found standing in the non-minable forest area.
3. The Dada Hill Minor is a protected forest area under IFA, 1927 and same is found illegally mined at the time of inspection.
4. During the inspection the concerned mining officer stated that the mining is not done in scientific manner i.e. benches of 9-meter height and 9-meter width are not properly formed.
5. During inspection water found standing in mining pits clarify your position whether it is ground water or rain water.
6. Your project is found using land of Dadam Distributary illegally for mining purpose.
Whereas unit will be liable to pay the environmental compensation in the terms of direction of the Board issued by order no. HSPCB/PLG/2019/6043-75 dated 29.04.2019 as assessed by the Board as per methodology defined.
Whereas you are not complying with the conditions of Env. Clearance issued by Competent Authority i.e. MoEF & CC, New Delhi.
In view of the above, you are hereby directed to show cause for 15 days, as to why closure/legal action may not be taken under Section 5 of 15 of EP Act, 1986 taken against your unit besides disconnection of electric supply and captive powers for non-compliance of the provisions of the said Acts and CTO granted previously vide No. 7841923 dated 08.08.2020 for the period 01.10.2020 to 30.09.222 may not be withdrawl. Section 5 of 1986 notwithstanding anything contained in any other law, But subject to the provision of this Act. The Central Government may, in the exercise of its powers and performance of its function shall be bound to comply with such directions. Explanations; For the avoidance of doubts, it is hereby declared that the power to Issue directions under this section includes the power to direct:-
(a) The Closure, prohibition or regulation of any industry operation or process or
(b) The stoppage or regulation of supply of electricity, water or any other service."
7. The minutes of the meeting dated 01.12.2020 presided over by Deputy Commissioner, Bhiwani show that the Deputy Commissioner noticed the contradictory stands of the Forest Department - stand in the report dated 06.10.2020 based on the site inspection and contradictory 6 stand in the report in the letter dated 17.11.2020. The observations are reproduced below:
"
• During the meeting Worthy Deputy commissioner, Bhiwani has raised concerned over dismantling of Dadam miner canal and SDO Irrigation, Bhiwani was present during the meeting on 01.12.2020 has stated that the said canal lying dismantled since for long time and Mining project is using land of this canal area without taking any permission from Irrigation department. The Ld. Deputy Commissioner, Bhiwani directed irrigation department to verify the exact time period in the said when the said canal was dismantled & list of officers responsible for not taking appropriate action against the violators during that period. The Deputy Commissioner also directed to irrigation department, Bhiwani to rebuilt the said canal and to ensure the availability of water for irrigation upto the tail.
• At the time of meeting Ld. Deputy Commissioner, Bhiwani asked forest department to clarify the exact time period when Illegal mining was carried out and who has done illegal mining & also directed to assess total area & quantity of mineral illegally extracted and approximate cost of the material.
The worthy Deputy commissioner, Bhiwani also shows concern regarding self contradictory reports submitted by forest department, Bhiwani in last three months which may bring adverse remark against the officers involved in verification of compliance status of Hon'ble NGT orders.
The Deputy commissioner, Bhivani directed DFO, Bhiwani to submit the clear-cut recommendation/report on the reply submitted by the unit personally.
• During inspection worthy Deputy commissioner, B hiwani asked Assistant Geologist groundwater table, Bhiwani to clarify whether the said mining project has intersected the ground water cell. The Ld. Deputy Commissioner, Bhiwani also directed to verify where the water reported by the team on 06.10.2020 disappeared. The assistant Geologist ground water cell told that he will recommend case of the project for further verification from central ground water Board.
• At the time of inspection the mining officer, Bhiwani stated that as per recent survey conducted on 03.11.2020 by the team consisting of Senior Geologist Head office, Mining officer, Bhiwani, Senior surveyor, Surveyor and official of HARSAC, the detail survey of the mine area was carried out with the help of DGPS instruments in the presence of concerned revenue official i.e. HaIka Girdawar & Patwari, The revenue officials gave the 7 reference point as red stone chakbandi for detail survey. But no illegal mining was found. The boundary pillars of the mining lease area were found in the order with GPS coordinates as per approved mining plan.
The mining officer stated that to verify scientific mining status, the case of this project already recommended to Director General Mines & Safety, Ghaziabad because the matter regarding scientific mining relates to DG mines and safety, Ghaziabad and reminder has also sent in this regard.
The mining officer, Bhiwani was asked by Ld. Deputy commissioner regarding dues of the M/s Goverdhan Mines & Minerals, Dadam, Mining officer stated that 73.49 Crore are pending on account of royalty/dead rent, R & R and interest against M/s Goverdhan Mines & Minerals, Dadam. Which is already intimate to Director General Mines & Geology, Panchkula for necessary action and Worthy Deputy commissioner, Bhiwani directed to send reminder to higher authority again for necessary compliance immediately.
• The Ld. Deputy commissioner directed to all the stake holder departments to examine the presentation received from the said project proponent within 15 days from date of meeting i.e. 01.12.2020. So that report can be sent to the Chairman, HSPCB, Panchkula to decide closure case of the unit."
8. Further report of the Forest Department dated 21.12.2020 is as follows:
"3. As far as the extent of illegal mining area is concerned, RFO, Tosham has reported vide letter no. 364 dated 21.12.2020 that illegal mining has been done near point B & C in an area of about 0.8 hectare by the then lease holder (KSL Sunder Marketing Associate) prior to M/s Goverdhan Mines and Minerals. Further 300 Sqm area of illegal mining was found for which FIR No.587 dated 23.12.2019 has been registered. Further, it is informed that forest department does not have any technique to estimate the quantity of mineral extracted and its cost. Hence for the extent of illegal mining i.e. 0.8 hectare in area and 300 sqm of area, the quantity of minerals extracted and cost may be sought from the Mining department."
9. Report of the Mining Department dated 28.12.2020 is as follows:
"6.0 Observations:
i. There were 25-30 numbers of pits dug within the lease hold area. The pit name was locally numbered for 8 identification and convenience. The size of these pits was about 80-200 m X 100m-200m.
ii. The size of pit no. 38 was about 80mx60mx18m. The height of benches were 5-9m and width was about 5- 7m. A haul road leading to benches was provided. The Aravali forest land was located on the western part of the excavation. Men' and machinery were deployed by contractor. The size of pit no. 35 was about 60- 65m(L)x40-45m(W)x8m-9m(D). The height of bench was about 8-9m. Adjoining to this pit, forest land of Aravali was located on western side. The size of pit no. 31 was about 100-110 m(L}x80- 90m(W)x 16-18m(D). The height of bench was about 8-10m. Adjoining to this pit, forest land of Aravali was located on southern side. Loading of stone was being carried on in these pits. iii. The size of pit no. 22 was about 200mx200mx20m(D) The height of benches were about 9-10m. Drilling of holes were being carried on the bottom bench. The drill machine was provided with wet drilling arrangement (photograph enclosed) Management informed that the drill machines whose wet drilling mechanism was out of order were under repair.
iv. There were three portable foggers machines installed near the pit where loading operation was being carried on to settle the dust being generated during loading. It was informed that these foggers are moved to different pits where loading operations are carried on. Two to three dedicated tractor mounted water wanker was available for supplying water to these fogger machine. v. Three water tankers with water spraying arrangement on the top (whirling type) were provided for wetting the haul roads and benches (photograph enclosed). Water spraying was being done on the haul roads and benches.
vi. The danger zone was demarcated by means of red flag (photograph) enclosed). The lease boundary was fenced by barbed wire. During inspection it was observed that a staffs and work persons were wearing safety gadgets like helmet and shoes.
vii. An order under section 22(3) of the Mines Act, 1952 was imposed in pit no. 12 vide this Directorate's letter no. 2169 dated 28.05.2019. No work was being carried out at in this pit. Men and machinery were not found deployed in this pit.
viii. The records of attendance in form D were kept maintained. The employment register in Form-B was kept maintained (copy enclosed).
ix. The deep hole drilling and blasting was carried out under the personnel supervision of assistant manager and foreman. The blasting time was reported to be between 1-4pm. A signage of blasting time was displayed on board at several places (photograph enclosed). Transport of explosive in license van for blasting in the mine was done by the explosive supplier that was in agreement with the owner of mine. The records of explosive used and return in RE-13 were being maintained by the explosive supplier (copy 9 enclosed) and firings of shot were done by statutory persons appointed by the owner of mine. x. An efficient means of signaling by siren within the radius of 300m from the place of firing was provided and in use (photograph enclosed).
xi. High mast tower consisting of clusters of bulb was found installed on the haul roads around the quarry of the mine (photograph enclosed for lighting arrangement to work beyond day light hours.
xii. There were crushers not belonging to owner of mine within the danger zone in north eastern and north western side. However, the crusher were located outside the danger zone from active working face. The fly rocks generated during the, blasting was towards free face. It was informed by the management that the adjoining field to the lease were acquired by the lessee on rental basis. No signs of fly rocks were seen near the adjoining field to the lease.
7. CONCLUSION
1) It is to be noted that, Mining lease for Dadam Stone Mine, Khasra No. 132, Ms. Goverdhan Mires& Minerals was granted by department of Mines & Geology, Government of Haryana. Consent to operate, consent to establish and environment clearance was granted by the state authority simplified Mining Scheme for working the mine in a scientific way by method of opencast mining has been approved by department of Mines B Geology, Haryana.
2) Inspection of Dadam stones Mines, Ms. Goverdhan mines &Minerals was carried out in accordance with the Mines Act, 1952.
3) Under constitution of India, Safety welfare and health of workers employed in the mines is regulated by the Mines Act, 1952 and subordinate legislations framed under it. This Directorate, a subordinate office under Ministry of Labour & Employment, Government of India administers and oversees the compliance of the provisions of the Mines Act, 1952 & the Rules, Regulations and Bye-laws framed there under. Beside this Directorate grants permission under certain Regulations for specific mining operations like Deployment of Heavy Earth Moving Machinery & deep hole blasting.
4) Inspections are carried out in accordance with Mines Act, 1952 to oversee compliance.
5) Scientific study is not carried out by this Directorate. However, Department of Mines & Geology may Engage recognized scientific organization or institutions to carry out scientific study of the mine.
6) This inspection was carried out solely on the request of mining, officer, Bhiwani without prejudice to any other law in place.
7) Mining officer, Bhiwani may be addressed. Letter is put up."
10
10. After referring to the above, it is pointed out on behalf of the applicant that the conclusion in the report that no illegal mining has been done by the PP is perverse for the following reasons:
i. On inspection of the site on 06.01.2020 by a six-member Committee, encroachment of the protected forest area has been found. Further, mining has been found to have been done even beyond depth of 150 meters. Closure plan has not been given by the predecessor of the PP which was the responsibility of the Chief Secretary of the State. If mining closure plan has not been filed, the Chief Secretary of the State must explain or the successor i.e the PP must be held responsible in terms of the EC conditions and as required in terms of order of the Hon'ble Supreme Court in order dated 11.08.2017 in SLP (C) No. 19166/2017, M/s. Sunder Marketing Associates v. State of Haryana & Ors. inter alia directing:
"33. Keeping in view the prayer made:
(i) We permit the petitioner to continue its mining operations till 30th November, 2017 in accordance with the Mining Plan. On or before that date, it shall ensure implementation of the mining closure plan to the satisfaction of the concerned authorities in the State of Haryana.
xxx.............................xxx................xxx...........
(iv) All the laws applicable to the petitioner shall be strictly enforced by the State Government regardless of its apparent influence in high places. We make it clear that we will hold the Chief Secretary of the State of Haryana responsible for any lapse in this regard."
(ii) Mining was not being done in scientific manner. Ground water was being illegally extracted. Mining equipments were found in the non-mineable forest area. In IA No. 76/2021, which has been allowed by a separate order today, the applicant has inter alia filed 11 a copy of order of Mining Department dated 05.08.2020 directing the project proponent to close deep mining pits along the Eastern Boundary of the Mine, which also contradicts the report that the PP is not responsible for the violations. Further, report of the Assistant Geologist, Ground Water Cell, Bhiwani is to the effect that water table data of selected wells available on record in surrounding alluvial formation is from 9.41 mtrs to 18.52 mtrs., whereas the depth of mining pits is approx. 60 mtrs, as told by mining officer at the site.
(iii) The report of the investigating officer in the FIR, exonerating the PP is unacceptable as equipments were seized on the spot in the mining area during the currency of the mining operations by the present project proponent.
11. We have considered the objections of the applicant and find that the same require consideration after due opportunity to the PP and after obtaining a further credible report.
12. Accordingly, while issuing notice to the PP - M/s. Govardhan Mines and Minerals, Hisar, we direct further inspection by eight-member joint Committee to be headed by Justice Pritam Pal*, former Judge of Punjab and Haryana High Court and comprising Ms. Urvashi Gulati,*1former Chief Secretary, Haryana, Regional Officer, MoEF&CC, Chandigarh, nominees of CPCB, Indian Institute of Soil and Water Conservation, Research Centre, Chandigarh, Haryana State PCB, SEIAA Haryana and District Magistrate, Bhiwani. The CPCB and State PCB will act as nodal agency for coordination and compliance. The first meeting of the Committee may be convened within two weeks. The Committee may * They comprise Monitoring Committee for several environmental issues in the State of Haryana 12 peruse the record, undertake visit to the site (by such of the members as may be decided by the Chairman) and conduct other proceedings online. The Committee may interact with the stakeholders and take assistance from any other individual/institution. The Committee may also study the satellite imagery maps, in coordination with the concerned authorities. The report of the Committee may be furnished within two months by e- mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF with a copy to the Chief Secretary, Haryana for remedial action in the light of the said report following due process of law.
13. The Chief Secretary, Haryana may give action taken report in the light of the report of the Committee. The report may also comment on the conduct of the Forest and Mining Departments in giving contradictory reports and also contradictory stand of the investigating officer that no mining was done by the present project proponent while equipments were seized during currency of the mining by the present project, based on which FIR was lodged and during site inspection by six-member Committee on 6.10.2020 violations were recorded.
List for further consideration on 28.10.2021. A copy of this order be forwarded to Justice Pritam Pal, former Judge of Punjab and Haryana High Court, Ms. Urvashi Gulati, former Chief Secretary, Haryana, Chief Secretary, Haryana, Regional Officer, MoEF&CC, Chandigarh, CPCB, Indian Institute of Soil and Water Conservation, Research Centre, Chandigarh, Haryana State PCB, SEIAA Haryana and District Magistrate, Bhiwani by e-mail for compliance.
Adarsh Kumar Goel, CP 13 Sudhir Agarwal, JM M. Sathyanarayanan, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM July 20, 2021 Original Application No. 169/2020 DV 14