National Green Tribunal
Om Pal And Ors vs State Of U.P & Ors on 27 March, 2023
Item No. 4 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
(Through Physical Hearing with Hybrid VC Option)
Original Application No.160/2022
(I.A. No. 75/2023)
Om Pal & Ors. ...Applicants
Versus
State of U.P & Ors. ...Respondents
Date of hearing: 27.03.2023
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER.
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER.
Applicants: None.
Respondent: Mr. Mukesh Verma, Advocate for respondent no. 2-
Mining Department, State of U.P.
Mr. Sunny Kaushal, Mining Officer, Ghaziabad
(through VC).
Mr. Pradeep Mishra, Advocate for respondent no. 3-
UPPCB (through VC).
Mr. Ravi Prakash Mehrotra, Senior Advocate with Ms.
Pallavi Pratap and Mr. Akshay Singh, Advocates for
respondent no. 5-Mumtaz Ali.
None for the respondents no. 1 and 4.
ORDER
1. Grievance of the applicants is regarding illegal sand mining at Khasra no. 8, 9, 10, 11, 12, 13, 37 and 38 in village Pachayarha Khand- 1, District Ghaziabad, Uttar Pradesh by contractor Mr. Mumtaz Ali up to the depth of 15-20 feet in river bed of River Yamuna in violation of environmental norms.
2. Vide order dated 10.03.2022, this Tribunal constituted a Joint Committee comprising of Uttar Pradesh Pollution Control Board (UPPCB), and District Magistrate-Ghaziabad (Uttar Pradesh) and directed the same to submit factual and action taken report within three months. O.A No. 160/2022 Om Pal & Ors. Vs. State of U.P. & Anr. 2
3. In compliance thereof, the Joint Committee inspected the area on 04.04.2022 in the presence of applicant-Om Pal and submitted report vide email dated 25.05.2022.
4. Vide order dated 12.07.2022, the Joint Committee was directed to look into the aspects mentioned therein and submit further Factual and Action Taken Report within two months.
5. Pursuant thereto, the Joint Committee inspected the area on 03.11.2022 and submitted report vide email dated 11.11.2022.
6. Vide order dated 16.11.2022, notices were ordered to be issued to the State of Uttar Pradesh through the Chief Secretary, Government of Uttar Pradesh; the Director, Directorate of Mining and Geology, Uttar Pradesh; UPPCB; the District Magistrate, Ghaziabad and the Project Proponent-Mr. Mumtaz Ali and the project proponent was restrained from carrying out any further mining from the mining site in question till further orders to the contrary.
7. The project proponent filed Civil Appeal No. 8872/2022 titled Mumtaz Ali Vs. Ompal and Others. before Hon'ble Supreme Court and the following order was passed by Hon'ble Supreme Court:-
"The proceedings before the National Green Tribunal are re-listed on
08.12.2022. Learned Counsel for the appellant has drawn our attention to the reports, which, he states, are in his favour. He submits that given these facts, the direction passed that the appellant should stop mining would cause immense prejudice to the appellant. Conditions can be imposed to ensure mining in accordance with rules, as the reports indicate that the appellant has been complying with the rules."
8. The project proponent filed I.A. No. 319/2022 for passing order in compliance of above mentioned order of Hon'ble Supreme Court which was allowed vide order dated 08.12.2022 and the Project Proponent was O.A No. 160/2022 Om Pal & Ors. Vs. State of U.P. & Anr. 3 allowed to carry out the mining strictly in accordance with rules and in compliance with the conditions imposed at the time of grant of EC by SEIAA and CTE/CTO by UPPCB and the statutory environmental norms. The Project Proponent was directed to file compliance affidavit within one month and Director, Mining and Geology, State of Uttar Pradesh and UPPCB were directed to verify compliance status and file status reports within two months.
9. I.A 75/2023 has been filed by respondent no. 5-Project Proponent for placing on record the documents in compliance of order dated 08.12.2022. For the reasons mentioned I.A 75/2023 is allowed and the document mentioned therein are taken on record.
10. Joint Status report has been filed by the AEE and RO, UPPCB, Ghaziabad and Senior Mining Officer, Ghaziabad vide email dated 24.03.2023.
11. We have gone through the compliance report filed by the Project Proponent and the joint status report filed on behalf of the Director, Mining and Geology, State of Uttar Pradesh and UPPCB. We find that our order has been observed more in breach than in compliance. Vide order dated 08.12.2022, we directed the Project Proponent to file compliance report within one month but the Project Proponent has filed I.A 75/2023 on 10.03.2023 after expiry of more than three months. Vide order dated 08.12.2022, the Director, Mining and Geology, State of Uttar Pradesh and UPPCB were directed to verify compliance status and file status reports within two months but the Joint Status Report has been filed on 24.03.2023 after expiry of more than three months. Vide order dated 16.11.2022 the Project Proponent was restrained from carrying out further mining against which the Project Proponent filed appeal before O.A No. 160/2022 Om Pal & Ors. Vs. State of U.P. & Anr. 4 Hon'ble Supreme Court by misrepresenting the facts regarding compliance with the environmental norms while relying upon the reports submitted by the Joint Committee before this Tribunal to be in his favour but as per the Joint Status Report now filed before this Tribunal there are serious environmental violations on the part of the Project Proponent who had not even obtained CTE/CTO from UPPCB prior to 05.01.2023. We find the present case to be a classical example of inaction/non- application of mind and also misrepresentation of facts before this Tribunal by the concerned State Authorities/the Joint Committee. In its report dated 25.05.2022, the Joint Committee did not mention the relevant facts regarding particulars of EC, validity period of the lease as well as grant of CTE/CTO by UPPCB and merely reported in well-crafted manner that there was no illegal mining. In its report filed vide email dated 11.11.2022, the Joint Committee mentioned that the lease was valid from 14.10.2020 to 13.10.2025 but did not mention the relevant facts regarding particulars of EC and also grant of CTE/CTO by UPPCB. It is stated before this Tribunal that the Project Proponent obtained CTO in January 2023 from UPPCB. There was serious violation of the environmental laws/norms as the Project Proponent commenced and carried out mining without obtaining CTE/CTO from the UPPCB which fact was completely ignored by the State Authorities for extraneous consideration. In the Joint Status Report now filed on behalf of the Director, Mining and Geology, State of Uttar Pradesh and UPPCB serious violations on the part of the Project Proponent have been mentioned but the Joint Status Report has been prepared and submitted after expiry of the EC and discontinuance of the mining and no justification has been given for not carrying out of requisite inspection for verification of the compliance status during continuance of the mining. O.A No. 160/2022 Om Pal & Ors. Vs. State of U.P. & Anr. 5
12. In the present case EC is stated to have been transferred in favour of the Project Proponent which was valid upto 31.01.2023 but lease dead was executed in favour of the Project Proponent which is valid from 14.10.2020 to 13.10.2025 and was not executed for period co-terminus with EC.
13. The Project Proponent is stated to have applied to SEIAA for grant of EC for further mining in terms of the lease dead but this Tribunal is not informed as to what is the present status thereof.
14. In view of the mandate in Section 20 of the National Green Tribunal Act, 2010 requiring this Tribunal to apply precautionary principle and also the provisions made in Section 19 (4) (j) of the National Green Tribunal Act, 2010 empowering this Tribunal to require any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I thereof, respondent no. 5 is directed to desist from carrying out any further mining activity in the mining site leased out to it and environmental clearance if any granted by SEIAA, Uttar Pradesh to respondent no. 5 in respect of the above said mining site shall also remain in abeyance till further orders to the contrary.
15. The District Magistrate and the Senior Superintendent of Police, Ghaziabad are also directed to take appropriate steps to ensure that no illegal mining takes place in the mining site in question.
16. List for further consideration on 26.04.2023.
17. In view of the facts and circumstance of the case, we also consider personal appearance of the Director, Mining and Geology, State of Uttar Pradesh and the Member Secretary, UPPCB, before this Tribunal on the O.A No. 160/2022 Om Pal & Ors. Vs. State of U.P. & Anr. 6 date fixed to be essential for assisting this Tribunal in just and proper adjudication of the questions involved in the case and they are accordingly directed to remain present before this Tribunal on that date.
18. A copy of this order be sent to the Director, Mining and Geology, State of Uttar Pradesh, the Member Secretary, UPPCB, the District Magistrate and Senior Superintendent of Police, Ghaziabad and Respondent no. 5-the Project Proponent by email for information/compliance.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM March 27 2023 AG