National Green Tribunal
Santanu Kumar Bhukta vs State Of Odisha on 12 November, 2021
Item No. 03 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No. 110/2020/EZ
Santanu Kumar Bhukta Applicant(s)
Versus
State of Odisha & Ors. Respondent(s)
Date of hearing: 12.11.2021
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Mr. Sankar Prasad Pani, Advocate
For Respondent(s) : Mr. S.K. Nayak, AGA for R-1, 2, 5, 6, 7 & 9,
Mr. Dipanjan Ghosh, Advocate for R-3,
Mr. Gora Chand Roy Choudhury, Advocate for R-4,
Mr. Debashis Ghosh, Advocate for R-8,
Mr. Surya Prasad Mishra, Sr. Advocate a/w
Mr. Ashutosh Mohanta, Advocate for R-10
ORDER
1. Mr. Sankar Prasad Pani, learned Counsel is present for the Applicant.
2. Mr. S.K. Nayak, learned Additional Government Advocate for Respondent No.1, State of Odisha, Respondent No.2, District Collector, Dhenkanal, Respondent No.5, Superintendent of Police, Dhenkanal, Respondent No.6, Tahasildar, Parjang, Respondent No.7, Divisional Forest Officer, Dhenkanal and Respondent No.9, Tahasildar, Kamakshyanagar, District Dhenkanal, Mr. Gora Chand Roy Choudhury, learned Counsel for Respondent No.4, State Environment Impact Assessment Authority (SEIAA), Odisha, Mr. Dipanjan Ghosh, learned Counsel for Respondent No.3, Odisha State Pollution Control Board, Mr. Debasish Ghosh, learned Counsel for Respondent No.8, Ministry of Environment, Forests and Climate Change and Mr. Ashutosh Mohanty, learned Counsel for Respondent No.10 are present.
3. An affidavit dated 30.08.2021 has been filed by Respondent No.8 along with Joint Inspection Report carried out on 22.07.2021, same is taken on record.
14. Recovery of fine and penalty for unauthorized extraction and transportation of soil has been made which is as under:
"1. Site-Badjhara Area of excavation -3.00 acres Kissam of land -Revenue Forest Plot No. -1684,526,282 It is observed by the committee that Tahasildar, Parjang instituted 3 nos. of Touzi Misc. Cases, 2 nos. of vehicles detained & Rs.247721.00 was collected towards fine and penalty for unauthorized extraction and tranaporation of soil as per Rule 51 of OMMC, Rules 2016.
2. Site - Ambapalas/Kankadasoda Khata -9 Plot No. - 698/7406 Status - Village Pond, Private Land Owner - Sh. Kunal Mahapatra In this regard Tahasildar, Parjang instituted one no. of Touzi Misc. Case & Rs. 103455.00 was collected towards fine and penalty for unatuorised extraction and transporation of the earthen soil as per Rule 51 of OMMC, Rules 2016.
3. Site - Kankadasoda (Proposed Morrum quarry to project proponent) Status - Private land Khata - 315 Plot No. - 719 Name - Kankadasoda proposed morrum mining quarry (no permission obtained) It is observed by the committee that in above noted khata & plot, the Project Proponent applied for temporary permit as per Chapter-V of OMMC Rules, 2016. In this regard, Environment Clearance has been obtained from SEIAA, it has been in DSR report with approved mining plan & registered agreement was executed, but CTO has not been obtained. During the field enquiry, it is found that there is no mining/excavation in above noted plot.
4. Site - Ambapalas (Nuabandha) Khata - 313/1, 334 Plot - 445/5010, 529 Status - Village Pond Dimension - 70x100x4 mtrs In this regard 2 nos. of Touzi Misc. cases have been instituted by the Tahasildar, Parjang and an amount of Rs. 251374.00 has been collected for unauthorized extraction and transportation of ordinary earth under rule- 51 of OMMC Rules, 2016.
5. Site - Pitri Source - Earth Owner - Private, Late Hrudananda Behera Khata - 225, Plot No. 24 Kissam - Jalasaya/Pond 2 In this regard one no. of Touzi Misc. case has been instituted and a sum of Rs. 216938.00 has been collected for unauthorized extraction and transpiration of ordinary earth.
6. Site - Odasingha village Status - Private Plot, owner Late Manas Sahoo Source - Earth Khata - 177/56, Plot-1695/1759, 1690 Area - 54 decimals and 70 decimal In this regard 1 nos. of Touzi Misc. case has been instituted and Rs. 179766.00 amount has been collected for unauthorized extraction and transportation of ordinary earth.
7. Site - Jatia village Status - Private land Owner - Kuna Sahoo Khata - 138, Plot No. 171, 176, 126 Source - Earth/Soil In this regard 1 nos. of Touzi Misc. case has been instituted by the Tahasildar, Parjang and an amount of Rs. 120950.00 has been collected for unauthorized extraction and transportation of ordinary earth as per rule-51 of OMMC Rules, 2016.
8. Site - Kualo Status - Revenue Forest Khata - 822, Plot No. 324 In this regard 1 nos. of Touzi Misc. case has been instituted by the Tahasildar, Parjang and an amount of Rs.55000.00 has been collected for unauthorized extraction and transportation of ordinary earth as per rule-51 of OMMC Rules, 2016.
9. Site - Saranga Khata - 657, Plot-5068 Status - Private plot In this regard 1 nos. of Touzi Misc. case has been instituted by the Tahasildar, Parjang and a sum of Rs.70082.00 has been collected for unauthorized extraction and transportation of ordinary earth as per provisions under rule-51 of OMMC Rules, 2016.
10. Site - Barihapur village In this petition, it is alleged that the private agency excavated soil/morrum unauthorized from village Barihapur. However, no particulars have been submitted with respect to the site location and quantity of soil removed. In this regard, two persons from the village Panchayat were asked about the allegation and on enquiry, it has been stated by them that no soil or morrum has been excavated by any private agency from their village.
It is alleged by the applicant that in 13 nos. of locations, morrum and soil had been lifted unauthorisedly, whereas the committee visited to 10 nos. of locations and no specific details like Khata & Plot are not mentioned in the petition about the other 3 locations namely Kantor Nuasahi, Kandheikhola and Rangathali.
It is emphatically clear that Kunal Structure India Ltd. has deposited Rs. 46,10,823.00 (Rupees forty six lakhs ten thousand eight hundred 3 twenty three) only in 36 nos. of enforcement cases as per OMMC Rule, 2016. In addition to that an amount of Rs. 1,95,26,677.00 (Rupees one crore ninety five lakhs twenty six thousand six hundred seventy seven) only has been deposited by Kunal Structure India Ltd. as Royalty.
As regards to illegal extraction of morrum from Govt. land in Baunspal, Saradhapur and Kanpur village of Kamakhyanagar Tahasil, there is no specific details like khata & plot no. Hence, it is decided by the committee that it is difficult to ascertain the illegality. However, for unauthorized extraction and transportation of minor mineral Rs. 33,63,344.00 (Rupees thirty three lakhs sixty three thousand three hundred forty four) only has been collected in 66 nos. of enforcement Case. In addition to that Kunal Structure India Ltd. has deposited an amount of Rs. 1,83,68,830.00 (Rupees One crore eighty three lakhs sixty eight thousand eight hundred thirty) only as Royalty.
EIA Notification 2006 has been amended by Notification No. 1224/dt. 28.03.2020 of Govt. of India, Ministry of Environment, Forest & Climate Change. Appendix-IX has been substituted by a new one. As per provision of Appendix-IX, extraction or sourcing or borrowing of ordinary earth for linear project like roads, pipeline etc. is exempted from requirement of prior environmental clearance. The amended provisions were communicated to all District Collectors vide R&DM letter no. Govt. of Odisha RDM-DRTMM-Misc-0030-2020-28424/R&DM 28.09.2020.
Further Apendix-IX has been broadly elaborate below:
1. Exempting of requirement of Environment Clearance for extraction or sourcing or borrowing or ordinary earth for linear project like roads, pipeline etc.
2. Exemption of requirement of Environment Clearance for community works like de-silting of village pond or tanks, construction of village roads, ponds or bunds undertaken in MGNERGS schemes, other govt.
sponsored scheme and community work.
Further it is raised by the petition in para No. 06 that the private respondent lifted stone chips and sand from various sources for which demand notice has also been issued by the Tahasildar, Parjang. It is a fact that no demand notice has been issued to the private respondent in connection to lift of stone chips and sand. In this regard, the private respondent transported sand from various legal sources with valid Y-Form. As regards to stone chips, the private respondent procured from different crusher units with GST bills. Further, it has come to the notice of the committee that the private respondent had made an agreement in the form of memorandum of understanding (MoU) in between the lessee of Jhilli Stone Quarry under Kankiadahad Tahasil and the project manager of Sri Sumant Patro to extract quantity of 50,000 MT in abiding the terms and conditions. Further for the better appraisal, the details of ordinary earth and soil extraction is given below in a tabular manner.
Collection of Royalty & Penalty against extraction and transportation of ordinary earth/soil/morrum for the year 2019-20, 2020-21 and 2021-22 Deposited amount Sl. Quantity Royalty Penalty Total Remarks No. in cum.
1. 2800 98000.00 32000.00 130000.00 Enforcement
2. 4000 14000.00 45000.00 185000.00 Enforcement
3. 1000 35000.00 10000.00 45000.00 Enforcement
4. 1085 38000.00 12000.00 50000.00 Enforcement
5. 1000 35000.00 20000.00 55000.00 Enforcement
6. 2857 100000.00 0.00 100000.00 Enforcement 4
7. 142 5000.00 0.00 5000.00 Enforcement
8. 2000 70000.00 67520.00 137520.00 Enforcement
9. 2500 87500.00 32210.00 119710.00 Enforcement
10. 2000 70000.00 25000.00 95000.00 Enforcement
11. 2500 87500.00 23000.00 110500.00 Enforcement
12. 2500 87500.00 27000.00 114500.00 Enforcement
13. 3000 105000.00 21000.00 126000.00 Enforcement
14. 3000 105000.00 21429.00 126429.00 Enforcement
15. 4000 140000.00 20000.00 160000.00 Enforcement
16. 5000 175000.00 20000.00 195000.00 Enforcement
17. 16 3440.00 36560.00 40000.00 Enforcement
18. 16 3440.00 36560.00 40000.00 Enforcement
19. 2000 70000.00 27806.00 97806.00 Enforcement
20. 2000 70000.00 20000.00 90000.00 Enforcement
21. 1000 35000.00 35000.00 70000.00 Enforcement
22. 2000 70000.00 20000.00 90000.00 Enforcement
23. 1400 49000.00 15000.00 64000.00 Enforcement
24. 2000 70000.00 25000.00 95000.00 Enforcement
25. 3000 105000.00 31000.00 136000.00 Enforcement
26. 2500 87500.00 10098.00 97598.00 Enforcement
27. 5000 175000.00 40000.00 215000.00 Enforcement
28. 1000 35000.00 12000.00 47000.00 Enforcement
29. 1000 35000.00 59900.00 94900.00 Enforcement
30. 10 350.00 19650.00 20000.00 Enforcement
31. 10 350.00 19650.00 20000.00 Enforcement
32. 1200 42000.00 15000.00 57000.00 Enforcement
33. 800 280000.00 150000.00 430000.00 Enforcement
34. 2598 181860.00 0.00 181860.00 Enforcement
35. 20000 700000.00 270000.00 970000.00 Enforcement
36. 357007 13386003.00 0.00 13386003.00 Suo Motto deposited by NHAI
37. 6140674 0.00 6140674.00 Suo Motto deposited by NHAI Total 451141.00 3391440.00 1219383.00 24137500.00 POINT-WISE SUBMISSION OF REPLY TO THE HON'BLE NGT'S REQUIREMENT FROM THE COMMITTEE:
I. Illegal mining of ordinary earth & soil:
It was noticed by the committee that extraction of earth/soil has been carried out by the private agency mostly from the private lands and ponds, with the consent from the owners. For this purpose, no statutory permission is required. However, whenever extraction of soil has been carried out from revenue forest land, Tahasildar has imposed penalties under OMMC Rules, 2016 to M/s Kunal Structure India Pvt. Ltd. for non-compliance to the provisions of law.
With respect to extraction of morrum, it is observed that morrum is a minor mineral and is governed by the Notification No. S.O. 141 (E) dated 15.01.2016 issued by the Ministry of Environment Forest and Climate Change. Further this also comes under the purview of Odisha Minerals Concession 2016. It is observed by the committee that the private agency M/s Kunal Structure (India) Pvt. Ltd. has extracted/excavated mostly soil or ordinary earthy for renovation of ponds and high land to low land for cultivation.5
II. Felling of trees:
The Committee, with the help of DFO and the Google images, over a time period of four years, has checked and noticed that there was not any appreciable cutting of trees during the period of operation by the private agency in the revenue forest land. It was observed at site that cultivation of paddy was underway along with vegetable cropping in the adjacent areas. However, it was viewed by the DFO that the above noted sites i.e. Plot No. 1684 which belongs to revenue forest was viewed from the satellite image and observed that there were some excavation over the aforesaid plot for cultivation of land. It is seen from the satellite image that the land is under cultivation with Sal trees on the bunds in 2010 images. Further it is also observed from the satellite image of 2018, 2019, 2021 that 05 Nos. of Sal trees are removed from the bunds.
The observation made during the visit and from the support taken through Google images/pictures of the area over a period of last 4 years indicate that the area at Badajhara, which is revenue forest land, has been primarily used by the encroachers for cultivation purpose. Since the excavation of soil from the forest area is not a permissible activity, the Tahasildar has imposed a penalty on this activity.
III. Report on environment degradation caused:
From the observations made during the visit, it is viewed that there has been felling of 5 trees in the revenue forest land. The soil excavated from the private ponds and private lands in fact, as revealed by the villagers, the company has helped them to increase the capacity of the village pond, its water retention capacity and also aid in the recharging of the ground water. This has also facilitated them in their storage of water for agriculture also.
However, since there has been felling of some trees in the process of extraction of soil, it is viewed by the committees that the private agency should rehabilitate to revenue forest and therefore, plantation need to be taken up with an outlay of 2.5 lakh.
IV. Cost of Restitution:
It is viewed by the Committee that the private agency should deposit money and bear the cost for raising plantation in the revenue forest land, which is basically encroached by the people.
V. Appropriate action against the violation:
The committee is of the view that there have been certain lapses by the private agency with respect to:
a. Seeking prior permission from the tahasildar for extraction of soil from revenue land b. Extraction of soil from the revenue forest land.
The Controlling Authority, District Collector & District Magistrate, to initiate action against the above violations.6
Environment Compensation:
Show cause Notice u/s 19 of Environment (Protection) Act, 1986 has been issued to the private agency for illegal extraction of morrum which is the minor mineral in contravention of the provisions of EIA Notification 2006 by the Collector, Dhenkanal.
Conclusion:
The members of the committee unanimously are of the view that there are certain lapses by the private agency, M/s Kunal Structure (India) Pvt. Ltd. with respect to abiding the laws on Environment and Mining and Revenue laid down by the State. Necessary and sufficient punitive action will be initiated as per the direction of the Hon'ble NGT.
Collector & DM Divisional Forest Officer
Dhenkanal Dhenkanal
Member Secretary Senior Scientist (IRO of MoEF&CC)
SEIAA Bhubaneswar
5. From the report of the Joint Inspection Committee reproduced
hereinabove, we find that Environmental Compensation for degradation of land for illegally extraction of morrum has not been computed. We also find that the cost of restitution of the forest and revenue forest area has not been computed.
6. We, therefore, direct the Committee Members to compute Environmental Compensation for illegal extraction of morrum as well as cost of restitution of forest land as well as revenue forest land and ensure recovery of the amount. An affidavit of compliance shall be filed by the next date of listing.
7. List on 24.12.2021.
..................................... B. Amit Sthalekar, JM ...................................
Saibal Dasgupta, EM November 12, 2021 Original Application No. 110/2020/EZ MN 7