National Green Tribunal
Sarat Mohapatra vs State Of Odisha on 15 December, 2020
1
Item No. 02
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 35/2020/EZ
Sarat Chandra Mohapatra & Ors. Applicant(s)
Versus
State of Odisha & Ors Respondent(s)
Date of hearing: 15.12.2020
CORAM: HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): Mr. Sankar Prasad Pani, Advocate
For Respondent(s): Mr. Gora Chand Roy Chowdhury,
Advocate for Respondent No. 3.
Mr. Dipanjan Ghosh, Advocate for
Respondent No. 5.
ORDER
1. This is the second case filed by the Applicants with regard to illegal sand mining in the Baitarani River, Sanala Mouza, Vyasnagar Tehsil, Jajpur District, Odisha. The earlier case was O.A. No. 162/2016/EZ which was disposed off vide order dated 22.05.2017. It is alleged that the regulatory authorities have failed to curb the illegalities and violations of pollution norms, conditions of the Environmental Clearance and Consent to Operate 2 committed by the Respondent No. 4, Mr. Debendra Ghadai, while operating the Baitarani River Sand Mining. The Applicant alleges that the order of the Tribunal dated 22.05.2017 in O.A. No. 162/2016/EZ has also been violated. The non-compliances of the environmental norms have been summarised as follows:
"i) Use of machines (excavators) when permission is only for manual mining (only through labour and no machine to be used for mining the sand).
ii) Excess mining of around 200CuM/day when the permissible limit is of only 6.12CuM/day.
iii) Mining beyond the designated lease area of 5.05 hectares and in plot number 2489, 2490 which are not part of lease deed and in deviation of approved mining plan.
iv) Plying of over loaded uncovered vehicles on river embankment, through densely populated habitation, School and PMGSY Road threatening life of villagers and causing pollution.
v) Sand mining close to embankment in violation of safety zone which is usually 1/5 of the width of the river so as to protect the embankment from erosion and breach.
vi) Obstructing and diverting the flow of river by creating embankment and sand inside the river, Lessee Using dredging Machine for Sand Mining thereby changing the scope of the project for which no approval is there.
vii) Stockpile outside the river bed without scarified and evenly graded, Sand extracted earlier has not been levelled thereby making those as death trap for people.3
viii) Half yearly compliance report were not submitted and not in public domain, No greenbelt developed by the proponent along the roadside or near mining site.
ix) Tahasildar and local administration are hand in glove with the lessee and wilfully violating the order of Hon'ble NGT as well as flouting the conditions of Mining Lease, Mining Plan, EC and CTO.
x) Operating the Sand Mine even after completion of the lease period that was upto 2019-20 financial year ended on 31st March, 2020. Also the present ongoing mining is without any approved mining plan, consent to operate and valid environment clearance which is no more in force after 31st March, 2020."
2. The Applicant also alleges that the mining lease which had earlier been closed as a consequence of the order dated 22.05.2017 in O.A. No. 162/2016/EZ, was permitted to commence again after relaxation of Covid-19 norms with mechanical mining despite protests from the villagers. Also, no permission had been obtained from the Water Resource Department, Government of Odisha, to transport the sand carrying vehicles over the river embankment.
3. Having considered the facts and circumstances set out in the Application, notice was issued which was made returnable in 30 days. Notice in respect of the SEIAA, 4 Odisha had been dispensed with as Mr. Gora Chand Roy Chowdhury, Ld. Advocate had waived notice.
4. In the meanwhile, a Committee was constituted by order of the same date comprising of (i) the District Collector, Jajpur; (ii) the State Environment Impact Assessment Authority (SEIAA), Odisha and, (iii) the Odisha State Pollution Control Board (State PCB) to ascertain the factual aspects set out in the Application.
5. If the allegations were found to be correct, it was left open for the Committee to take appropriate action against the Respondent No. 4 in accordance with law. Action taken report was also to include closure of the mining lease, seizure of all implement and machinery, seizure of the trucks and JCBs and other machinery being utilized for the illegal mining including the mined out sand.
6. Pursuant to the above direction, report has been filed by the Committee which is reproduced below:-
"Observations made during joint visit conducted on 13.08.2020 in pursuant to the order of Hon'ble NGT, Principal Bench New Delhi in O.A. 35/2020/EZ The Hon'ble NGT, Principal Bench, New Delhi vide their order dated 19.06.2020 passed in the matter of O.A No. 35/2020/EZ, have constituted 5 a Committee comprising of (i) the District Collector, Jajpur: (ii) the State Environment Impact Assessment Authority (SEIAA), Odisha and , (iii) the Odisha State Pollution Control Board (State PCB) and directed the committee to conduct a joint inspection and verify before the next date of hearing. In pursuant to the above order, a joint visit was conducted 13.08.2020 as per schedule fixed by the nodal agency i.e. State PCB.
Following officers were present during joint visit.
1. Er. P.K Behera, Regional Officer, SPCB, Kalinganagar (Representative of State PCB)
2. Sri Narayan Chandra Dhal, Sub-
Collector, Jajpur (Represenative of district Collector, Jaipur)
3. Dr. Pradeep Kumar Nayak, Environmental Scientist (Representative of SEIAA, Odisha) The sand quarry was found not in operation during the visit.
The sand quarry The Sanla Baltarani River Sand Quarry bearing Salrat Lease Case No. 02/2015-16 of Vyasanagar Tahasil in the district of Jajpur, Odisha has been awarded tender to Sri Debendra Ghadal, S/o Harihar Ghadai of village Sanla, PO, Tulasipur, Dist. Jajpur, Odisha. The sand quarry has been granted Environmental Clearance vide letter No. SEIAA/539, dated 30.01.2020 valid for the lease period as recommended by the lease granting authority, Mining Plan was approved by the Deputy Director of Mines, Jajpur road for the plan period 2015-16 to 2019-20. The sand quarry was also granted consent to operate by the State PCB for the period up to 31.03.2020. The Quarry lease deed made between the Governor of Odisha, represented by Tahasildar, Vyasanagar and Sri Debendra Ghadal, Lessee was registered on dated 28.03.2016. The Additional Chief Secretary to Govt. of Odisha, in Revenue & Disaster Management Department, subsequently, vide letter No. RDM-MMS-CLRFIC- 6 0003-2020/15040, dated 02.05.2020 clarified the validity of lease for five years from the date of registration of the lease deed. Accordingly, the validity of the lease period of the said quarry is from 28.03.2016 to 28.03.2021 i.e. five years and no fresh EC is required. The Lessee has submitted online application for consent to operate for the period up 28.03.2021 and copy of the modified mining plan for extended period approved by the Deputy Director Geology, Bhubaneswar. The application for consent to operate is under process.
Following were observed during the visit with respect to allegation of violation of the order of the Hon'ble NGT, Easter Zone Bench, Kolkata dated 22.05.2017 in O.A. No. 162/2016/EZ and non-compliances as alleged in the O.A. No. 35/2020(EZ) Sl. Non-compliances Observation No.
1) Use of machines i. During the (excavators) when inspection no permission is only mining were for manual (only found in the mine through labour lease area and and no machine to nearby area as be used for mining the sand mining the sand). was not operating and the lease area was found submerged with river flooded water.
ii. Earlier, the lessee
was found guilty
of using
machinery. The
lessee was
penalized for
mechanical
mining of the
sand and
machineries as
well as vehicles
were also seized
as evident from
the records
available with
7
Vyasanagar
Tahasil (Copy
attached as
Annexure-I).
2) Excess mining of i. No excess mining
around 200 beyond the
CuM/day when the permissible limit
permissible limit is has been done
of only 6.12 within the lease
CuM/day area and the same
has been verified
with the Tahasil
Record. The
concerned Revenue
Inspector inspects
the sit e from time
to time and record
excavation of sand
on quarterly basis.
No violation of
excess mining has
been recorded.
(Copy attached as
Annexure-II)
3) Mining beyond the i. The Lessee has
designated lease been awarded
area of 5.05 tender to excavate
hectares and in sand from Plot NO.
plot number 2489, 2/2488 & 2 of
2490 which are Khata No 301
not part of lease (AAJA) in Sanla
deed and in Mouza. No mining
deviation of of sand has been
approved mining carried out by the
plan. lessee outside the
lease hold area as
informed by the
Tahasildar. The
site is enquired by
the Revenue
inspector from time
to time & by other
revenue officer
sand no mining of
sand outside the
lease hold area has
not been observed
as submerged lease
area.
4) Plying of over i. The team has not
loaded uncovered observed any
vehicles on river vehicle used for
8
embankment, transporting of
through densely sand of the said
populated quarry.
habitation, School ii. The sand carrying
and PMGSY Road vehicle is plied
threatening life of through river
villagers and course about 400m
causing pollution. distance to reach
RD Road and then
to village road
because there no
other for
transportation.
The sand is
transported further
to destination in
vehicles covered
with tarpaulin and
sprinkles water on
the approach and
haulage road
deploying a tanker
as observed by
SPCB, Odisha
v) Sand mining close i. It has been
to embankment in observed that the
violation of safety some portion of the
zone which is river embankment
usually 1/5 of the cut at the lease
width of the river area and no pillar
so as to protect the posting are seen,
embankment from as the lease area
erosion and was found
breach. submerged.
ii. The lease holder
area was found
submerged with
flood water and no
mining of sand was
noticed close to the
embankment.
iii. The sand
quarry mine, as
reported in earlier
joint visit
conducted on dated
26.12.2016 as per
the order passed in
OA No.
162/2016/EZ, is
located at a
distance of 204 m
9
away from
embankment on
southern side near
to village Sanla
and 369 m from
the embankment in
northern side.
vi) Obstruction and i During the
diverting the flow inspection no such
of river by creating type of observation
embankment and were found.
sand inside the
river. Lessee using
dredging machine
for sand mining
thereby changing
the scope of the
project for which
no approval is
there.
vii) Stockpile outside i. No stockpile of the river bed sand, outside the without scarified river bed, was and evenly graded, found.
sand extracted ii. As per approved earlier has not mining plan been levelled period will be thereby making 0.514 ha. The those as depth mined out area trap for people. will be reclaimed naturally every year during rainy season.
The river will
carry sand and
sediments which
will be
eventually filled
in the quarry for
which no
reclamation is
proposed and
there is no
question of depth
trap.
iii. However, the
levelling of area
from where sand
has been
excavated could
not be verified as
the lease area
10
was found
submerged.
viii) Half yearly i. Half yearly
compliance report compliance
were not submitted report has not
and not in public been submitted
domain. No by the Lessee.
greenbelt ii. As per the
developed by the approved mining
proponent along plan programme
the roadside or of plantation
nearby mining site. was nil during
the plan period.
ix) Tahasildar and i. Action as per
local law has been
administration are taken by the
hand in globe with appropriate
the lessee and authority, when
wilfully violating violation has
the order of been observed.
Hon'ble NGT as (Attached as
well as flouting Annexure-II)
the conditions of
Mining Lease,
Mining Plan, EC
and CTO.
x) Operating the i. The Quarry lease
Sand Mine even deed made
after completion of between the
lease period that Governor of
was up to 2019-20 Odisha,
financial year represented by
ended in 31st Tahasildar.
March, 2020. Also Vyasanagar and
the present Sri Debendra
ongoing mining is Ghadai, Lessee
without any was registered on
approved mining dated 28.03.2016.
plan, consent to The Additional
operate and valid Chief Secretary to
environmental Government of
clearance which is Odisha in Revenue
no more in force & Disaster
after 31st March, Management
2020. Department vide
letter No. RDM-
MMS-CLRFIC-0003-
2020/15040,
dated 02.05.2020
clarified the
validity of lease
for five years from
11
the date of
registration of the
lease deed.
Accordingly, the
validity of the
lease period of the
said quarry is
from 28.03.2016
to 28.03.2021 i.e.
five years and no
fresh EC is
required. The
Lessee has
submitted online
application for
consent to operate
for the period up
to 28.03.2021 and
copy of the
modified mining
plan for extended
period approved
by the Deputy
Director Geology,
Directorate of
Geology,
Bhubaneswar.
The application
for consent to
operate is under
process
Recommendation
1. The Lessee shall submit half yearly compliance report on post environmental monitoring in respect of the stipulated terms and conditions in the Environmental Clearance to the SEIAA, Odisha, SPCB and Regional Office of the Ministry of Environment & Forest, Odisha."
7. Considering the facts emerging from the report, we were of the opinion that the Respondent No. 4 was in violation in as much as the said respondent was yet to obtain 12 Consent to Operate upto 28.03.2021 which led us to issue direction upon the Respondent No. 4 to stop further mining operation until appropriate clearances were obtained. The Committee was thus directed to submit further report after examining as to whether the lessee, Respondent No. 4 had obtained Consent to Operate from the State PCB for the period commencing from 28.03.2016 until now or till such date, mining was being undertaken. Action as per law was directed to be taken against the lessee, with the Respondent No. 4 for recovery of Environmental Compensation, if it was found that the Consent to Operate had not been obtained or, if obtained, whether its validity had expired. Further the quantum and value of the illegally mined out sand was directed to be assessed to be recovered from the Respondent No. 4 along with the royalty payable under the rules.
8. Reports in terms of the above directions have been filed by the State PCB, the relevant portion of which reads as follows:-
"Details of examination:
1. All the records available with Regional Office, SPC Board, Odisha, Kalinganagar and Tahasil Office, Vyasanagar were examined.13
2. From the records available with RO, SPCB, Kalinganagar the Lessee was granted continuous consent to operate from 28.06.2016 to 31.03.2020. The Lessee further submitted application for renewal of consent to operate for the extended lease period on dated 16.03.2020. The application of the Lessee was under process. The State Pollution Control Board by virtue of powers u/s 25 of Water (PCP) Act, 1974 and u/s 21 of Air (PCP) Act, 1981 extended the validity of consent to operate vide office order no. 4029 dtd. 31.03.2020 of all the units who have valid consent to operate up to 31.03.2020 and have applied to the Board for renewal of consent to operate in view of extraordinary circumstances due to outbreak of Corona Virus (COVID-19) and subsequent declaration of lockdown. Further, the Lessee has again obtained renewal of consent to operate for the extended period up to 28.03.2021 from SPC Board on dated 13.11.2020.
3. It is observed from the records available with Tahasildar, Vyasanagar that the Lessee has not operated the sand quarry without consent to operate of the Board.
4. The Environmental Clearance has been accorded for excavation of sand of quantity 6424 cum (ROM) during the lease validity period as recommended by the lease granting authority. Till date, as examined from the records available with Tahasildar Vyasanagar, the Lessee has obtained permission for excavation of sand of quantity 5155 cum in 636 days and accordingly royalty has been collected from him and the of year wise sand excavation are as follows:
a. From 01.04.2016 to 31.03.2017-1050 cu.m.
b. From 01.04.2017 to 31.03.2018-1090 cu.m.
c. From 01.04.2018 to 31.03.2019-1252 cu.m.
d. From 01.04.2019 to 31.03.2020-1400 cu.m.14
e. From 01.04.2020 to 30.06.2020-363 cu.m.
5. There is no record found neither from Tahasil Office nor submitted by the lessee that the no. of vehicles used per day and quantity of sand excavated per day.
6. After examining all the available records, the sand quarry site was visited by the Committee. The sand quarry was found in operation and four no. of vehicles are used that day.
7. It was observed during the site visit that the sand is being excavated manually within the lease hold area and the excavated sand is loaded into vehicles (tractors) manually for transportation.
Remarks:
The Lessee has not operated the sand quarry without consent to operate of the Board."
9. As would appear from the above, it is quite apparent that the concern expressed by the Applicant is unfounded as the mining operation is being undertaken legally. In view of this, the O.A. stands disposed off with no order as to costs.
S.P. Wangdi, JM Saibal Dasgupta, EM 15th December, 2020 O.A. No. 35/2020/EZ avt