National Green Tribunal
Sudhanshu Sekhar Kuanr vs State Of Odisha Represented By Forest ... on 9 July, 2021
Item No. 05 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No. 11/2019/EZ
Sudhansu Sekhar Kunar & Anr. Applicant(s)
Versus
State of Odisha Respondent(s)
Date of hearing: 09.07.2021
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) : Ms. Sampika Mishra, ASC for
Respondent Nos. 2,3,4 & 5,
Ms. Papiya Banerjee Bihani, Advocate
For Respondent No.6,
Mr. Gora Chand Roy Chodhury, Adv.
For MoEF&CC,
Mr. Surendra Kumar, Advocate
For CPCB,
ORDER
1. Mr. Sankar Prasad Pani, learned Counsel is present for the Applicant.
2. Ms. Sampika Mishra, learned Additional Standing Counsel is present for Respondent Nos. 2, 3, 4 & 5, State Respondents, Govt. of Odisha, Ms. Papiya Banerjee Bihani, learned Counsel is present for Respondent No.6, Odisha State Pollution Control Board, Mr. Gora Chand Roy Choudhury, learned Counsel is present for Ministry of Environment, Forest and Climate Change and Mr. 1 Surendra Kumar, learned Counsel is present for Central Pollution Control Board.
3. This Tribunal in its order dated 16.10.2019 had observed that the recovery of Rs. 23, 53, 364/- (Rupees Twenty Three Lakh Fifty Three Thousand Three Hundred Sixty Four only) was made towards the royalty and penalty and did not cover the amount of Environmental Compensation as well as the cost of restitution, remediation and restoration of the environment under the Environment (Protection) Act, 1986.
4. Subsequently, an affidavit was filed on 16.12.2019 by the Central Pollution Control Board indicating that for the area of 29.90 acres in Madanpur Mouza, Tehsil Ghasipura, District-Keonjhar, Odisha, a sum of Rs. 7, 30, 00, 000/- (Rupees Seven Crore Thirty Lakhs only) has been assessed towards Environmental Compensation. However, there is nothing on record to show whether this amount has been recovered till date or not. The compliance report of the Committee to that effect is reproduced herein below:-
"Compliance report in the matter of OA No. 11/2019/EZ filed by Sudhansu Sekhar Kunar & Ors. Vs. State of Odisha & Ors. before the Hon'ble National Green Tribunal, Principal Bench, New Delhi (Video Conferencing) and Order dtd. 16.10.2019 thereof of the Hon'ble NGT.
1.0 Background:
The Ho'nble NGT, Principal Bench, New Delhi vide order dated 16.10.2019 in para 8(iii) (Enclosed as Annexure 1) has 2 directed as follows: The State PCB, the District Collector and the District Mining Officer Keounjhar District and the CPCB shall collectively assess (a) the damage caused to the environment and (b) the cost of remediation, restitution and restoration of the damages caused and the net present value of the ecological foregone.
In compliance to the above said direction and subsequent order of Collector and District Magistrate, Keonjhar vide letter no. 2233/Judl. Dtd. 22.11.2019, the following officials have visited the alleged site on 02.12.2019 to assess the damage caused to the environment and the cost of remediation. Sri Madhab Chandra Birua, Tahasildar(1/C), Ghasipura, representative of District Collector, Keounjhar, has accompanied with team.
1. Ms. Susmita Ekka, Scientist D, Central Pollution Control Board,
2. Sir P.C. Behera, Regional Officer, State PollutioN Control Board, Keonjhar, Odisha,
3. Sri D.C. Sahoo, Mining Officer, Keonjhar, Odisha Before inspection to the alleged site, the committee had discussed the case matter with Tahasildar, Ghasipura. After field visit, the committee along with Tahasildar Ghasipura had also discussed the case matter with Sub-Collector, Anandpur.
Sub-Collector instructed to the Tahasildar Ghasipura to provide necessary information to the committee. 2.0 Field Observation:
(a) The committee visited the site cashew forest land known as Kisam Jungle in Madanpur Mouza in Ghasipura Tehsil of Keonjahr District in Khata No. 754, Plot nO. 2824 on 02.12.2018. However, no mining activities was observed during the date of inspection.3
(b) Excavation of minor mineral i.e., laterite was observed patch wise in the affected area.
(c) Trench has been developed presently around the affected area to restrict the illegal mining.
(d) Tahasildar Ghasipura has collected a sum of Rs. 23, 53, 364/- form the offenders towards royalty and penalty during the last 3 years from alleged land. (Report of Tahasildar is enclosed as Annexure 2). 3.0 Assessment of Environmental Compensation The Hon'ble NGT vide order dated 13.09.2018 in OA No. 186 of 2016 (Satendra Pandey Vs. MoEF&CC, Govt. of India) has inter alia directed as follows:
The MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mine out areas along with the net present value of Ecological Services foregone because of illegal or unscientific mining. In absence of the above said guidelines, it was attempted to assess the cost of restoration taking assumption and references form the available following Rule and methodology.
I. Report of the CPCB In-house Committee on Methodology for assessing Environmental Compensation and action plant to utilize the fund. II. Orrissa Minor Mineral Concession Rule, 2016 A. Environmental Compensation as per Methodology developed by CPCB A report was prepared by the in-house Committee of Central Pollution Control Board (CPCB), on Methodology for assessing Environmental Compensation and action planto utilize the fund (enclosed as Annexure 3), in compliance to the orders of Hon'ble NGT, Principal Bench in the matter of OA No. 593/2017(WP (civil) No. 375/2012), Paryavaran Suraksha Samiti & Anr. Vs. Union of India & Ors. Environmental Compensation has been assessed adopting the following formula:
Formula:
EC = PIXNXRXSXLF Where:
EC = is Environmental Compensation in Rupees PI = Pollution Index of Industrial sector 4 N = Number of days of violation took place R = A factor in Rupees for EC S = Factor of scale of operation LF = Local Factor Location of Total Pollution Number of A factor in A Factor Local EC=PIXN alleged site Mine Index of days violation Rupees for for scale Factor XRXSXLF out Industrial took place EC of (in area Sector (operating operation Rupees) without EC/CTO Factor PI N R S LF Madanpur in 29.9 80 7300 250 0.5 1 7,30,00, Ghasipura 0 000/-
Tehsil Note:
a. The mining activities are coming under Red Category of Industries as specified in Sl.No. 35 as per the SPCB, Odisha Notification No. 8333 dated 11.07.2018. Therefore, for above cases PI is enclosed as 80.
b. The Number of days of violation as reported by Joint Inspection report on 29.04.2019 by District Collector, Keonjhar and DFO, Keonjhar Wildlife Division, Anandpur in the matter of O.A. No. 11/2019(EZ) i.e. 20 years or 20 x 365 = 7300 days (Reported enclosed as Annexure-4). No information about the number of working days/year has been provided, so 365 days has been considered for calculation.
c. A factor in Rupees for EC has been assumed as Rs. 250/-
for cases of violation.
d. Factor of scale of operation has been considered as 0.5 (Small) assuming excavation of the top soil and mining of laterite. The average depth of quarries is 5-20 ft depth.
e. Local Factor has been assumed as I (for city/town having population less than one million) B: For Environmental Management Fund:
As per the sub-rule (2) of Rule 49 of the Odisha Minor Mineral Concession Rule, 2016 it states that "An amount equal to 5% of the royalty payable shall be collected from the lessees and shall be paid to the Environment Management Fund in such manner, as may be specified in the notification, issued by the Govt. and such amount shall be realized along with the royalty. As per the sub rule (3) of the said Rule, the Environment Management Fund shall be utilized for the following objects, namely;
(i) Restoration;
5
(ii) Repair, reclamation and rehabilitation work required to
be undertaken for adjoi8ning or external, outside the quarry, caused by mining activates.
Moreover it has also been provided that any casualty by the lessee due to his negligence or non-compliance of conditions made in the lease deed shall be compensated or re-habilitated by the lessees.
In the above circumstances, as the alleged area has not been lease out by the revenue authority for mining activities and illegal mining was carried out by the local people. Tahasildar Ghasipura has collected a sum of Rs. 23,53,364/- towards royalty and penalty during the last 3 years from the offenders. 5% of the said penalty amount may be deposited in the Environmental Management Fund as per Odisha Minor Mineral Concession Rule, 2016.
4.0 Conclusion:
In view of the above, it is concluded as follows:
Based on the methodology recommended by the in-house committee of the CPCB, the Environmetnal Compensation is assessed to be of Rs. 7,30,00,000/- (Rupees seven crore thirty lakhs only)"
5. So far as restoration, repair, reclamation and rehabilitation work is concerned which was required to be undertaken for adjoining or external damage outside the quarry caused due to illegal mining activities, the same does not find mention in the Committee's report.
6. Subsequently, another Committee was constituted and the report of that Committee has been brought on record on 18.12.2020 through an affidavit sworn by the Assistant Conservator of Forest, Keonjhar Wildlife Division, Anandapur, known as Action Taken Report which contains the rehabilitation plan. It also mentions that this rehabilitation plan has been submitted to the 6 Collector and District Magistrate, Keonjhar District, Odisha for allotment of funds to the tune of Rs. 2, 01, 57, 500/- (Rupees Two Crore One Lakh Fifty Seven Thousand Five Hundred only). There is nothing on record to show whether this amount has been received from the State Government and whether the rehabilitation work has started/completed or not.
7. Ms. Sampika Mishra, learned Additional Standing Counsel for State Respondents, Govt. of Odisha, prays for and is granted two weeks time to file a fresh affidavit clearly indicating whether the Environmental Compensation as assessed has been recovered and the rehabilitation plan has been executed or not and what is its latest status, and also whether any criminal action has been taken against the defaulters/illegal miners.
8. Let such affidavit be filed within two weeks.
9. List on 28.07.2021.
................................... B. Amit Sthalekar, JM ................................. Saibal Dasgupta, EM July 09, 2021 Original Application No. 11/2019/EZ AK 7