National Green Tribunal
Durga Singh Pawar vs Rajendra Singh Dafoti on 28 March, 2025
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
ORIGINAL APPLICATION NO.78/2023
(I.A. No. 746/2023)
IN THE MATTER OF:
1. DURGA SINGH PAWAR
Bajeta Village,
Munsihari Tehsil,
District Pithoragarh,
Uttarakhand-262545
...Applicant
Verses
1. STATE OF UTTARAKHAND
Through Chief Secretary,
Government of Uttarakhand
New Building, Uttaranchal Secretariat,
Fourth, 4, Subhash Road, Dehradun,
Uttarakhand-248001
2. UTTARAKHAND POLLUTION CONTROL BOARD
94, Haridwar Rd, Saket Colony,
Dharampure, Haridwar Rd,
Nehru Colony, Saket Colony,
Dharampure, Dehradun,
Uttarakhand-248001
3. DIVISIONAL FOREST OFFICER (DFO)
Pithoragarh
Mahatma Gandhi Marg,
Pithoragarh,
Uttarakhand-262501
4. DISTRICT MAGISTRATE
Pithoragarh
Simalgair Road, Pithoragarh,
Uttarakhand-262501
1
5. M/S JD MINERALS
Proprietor-Shri Rajendra Singh Dafoti,
Resident of B-54, Judge Farm,
Chhoti Mukhani, District Nainital,
Uttarakhand
...Respondent(s)
COUNSELS FOR APPLICANT(S):
None
COUNSELS FOR RESPONDENT(S):
Ms. Anjali Rajput, Advocate for State of Uttrakhand
Mr. Mukesh Verma, Advocate for Uttarakhand State Pollution Control
Board
Mr. V. K. Shukla, Advocate for respondent 5 (through VC)
CORAM:
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
RESERVED ON: MAY 28, 2024
PRONOUNCED ON: NOVEMBER 08, 2024
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. An application (not as per the format prescribed in National Green Tribunal (Practice & Procedure) Rules, 2011) was filed by applicants Inder Singh, Durga Singh and Deepak Singh etc. on 22.01.2023 after paying Court fees and, therefore, without insisting upon the technical format of pleadings, the said application was registered under Sections 14 and 15 of National Green Tribunal (hereinafter referred to as 'NGT Act, 2010').
2. The complaint is against Rajender Singh Dafoti, S/o Nandan Singh Dafoti, 54-Judge Farm, Chhoti Mukhani, Haldwani, District Nainital. It is 2 said that the above violator-Rajender Singh Dafoti, in collusion with Basant Singh, Ex-Pradhan, Gram Panchayat and others forged "No Objection Certificate" (hereinafter referred to as 'NOC') with fake signatures of villagers, and procured mining lease on an area of 17.967 hectares in village Bajeta. The village is located in extreme slope and comes in the 'Disaster Zone'. Mining at the site in question may lead to land slide, endangering residences of villagers, water stream, gochar, panghat, Government school and passage. Rajender Singh Dafoti i.e., project proponent is carrying on illegal mining on the land, other than leased out land; illegally cutting green Chir (Pine) trees; and throwing over burden in Bujgarh River. The complainants approached higher authorities including District Magistrate and Divisional Forest Officer, Pithoragrah but no action was taken and instead the officers showed favour to the project proponent.
3. Being satisfied that issue of illegal mining and cutting of trees unauthorizedly by project proponent has given rise to substantial question relating to environment arising due to implementation of Scheduled enactments under NGT Act, 2010, Tribunal sought response from the following authorities impleaded as respondents:
i. State of Uttarakhand through Chief Secretary, Government of Uttarakhand, ii. Uttarakhand State Pollution Control Board (hereinafter referred to as 'UKSPCB') iii. Divisional Forest Officer, Pithoragarh (hereinafter referred to as 'DFO, Pithoragarh'), and iv. District Magistrate, Pithoragarh (hereinafter referred to as 'DM, Pithoragarh').3
4. Tribunal also constituted a Joint Committee comprising UKSPCB, DFO, Pithoragarh and DM, Pithoragarh. The said Committee was directed to visit the site, look into the grievance of the complainants, associate them, and the representatives of the concerned project proponent, verify factual position, take remedial action following due process of law after giving opportunity to all concerned including project proponent and submit factual Report within two months.
Joint Committee Report dated 03.05.2023:
5. Pursuant to order dated 14.02.2023, Joint Committee had submitted Report dated 03.05.2023. Report contains facts of various statutory consents/clearances/NOCs issued to M/s. JD Minerals under proprietorship of Rajender Singh Dafoti who was granted mining lease and also the observations recorded at the site, conclusions and remedial action. Relevant observations, conclusions and remedial actions stated in the Report are as under:
"2.0 संयुक्त जााँ च के दौरान प्रभारी खान अधिकारी भू-तत्व एवं खधनकर्म इकाई, धिथौरागढ़ द्वारा अवगत कराया गया धक प्रश्नगत ग्रार्- बजेता, तहसील-तेजर्, धजला-धिथौरागढ़ र्ें र्ै० जे०डी० धर्नरल्स, प्रो० राजेन्द्र धसंह दफौटी को सोप स्टोन के खनन हे तु सशतत अनुमतत प्राप्त है । धकसी अन्य फर्म/व्यक्तक्त को ग्रार्-बजेटा र्ें खनन हे तु अनुज्ञा प्रदान नहीं की गयी है । उक्त फर्म को प्राप्त अनुर्धत / सहर्धत का धववरण धनम्नवत है :-
2.1 भूतत्व एवं खधनकर्म इकाई उद्योग धनदे शालय उत्तराखण्ड़, भोिालिानी, िो० ब़ासी, दे हरादू न के कायामलय ज्ञाि संख्या 1257/र्ु०ख०/खनन/144/ धिथौ/भू०खधन०ई०/2018-2019 धदनां क 24.07.2021 द्वारा खधनज आं कलन, खधनज भण्डारण का सत्यािन हे तु प्रस्तुत खनन योजना एवं उत्तरोतर खान बंद करने की योजना का अनुमोदन तवतिन्न शतों / प्रततबंधों के अधीन अनुमोतदत तकया गया है । (संलग्नक-5) 2.2 राज्य स्तर ियाम वरण सर्ािात धनिाम रण प्राधिकरण, उत्तराखण्ड, 653, इक्तिरानगर कालोनी, सीर्ाद्वार रो़, दे हरादू न (ियामवरण, वन एवं जलवायु िररवतमन र्ंत्रालय, भारत सरकार, नई धदल्ली द्वारा गधित) के ित्रां क E.C.No-266- 01(83)/2019 तदनांक 12.08.2021 के द्वारा मै० जे०डी० तमनरल्स प्रो० राजेन्द्र तसंह दफौटी पुत्र स्व० श्री नन्दन तसंह दफौटी बी-54, जज फामत, छोटी मुखानी हल्द्द्वानी जनपद-नैनीताल के पक्ष में पयातवरण स्वीकृतत 68231 टन प्रतत्त वर्त हे तु प्रदान की गयी है । (संलग्नक-6) 2.3 उत्तराखण्ड शासन औद्योधगक धवकास (खनन) अनुभाग-01 के ित्रां क सं० 1425/VII-A-
1/2021/1(13)/18 दे हरादू न धदनां क 23.09.2021 द्वारा मै० जे०डी० तमनरल्स प्रो० राजेन्द्र तसंह 4 दफौटी पुत्र स्व० श्री नन्दन तसंह दफौटी बी-54, जज फामत, छोटी मुखानी हल्द्द्वानी जनपद- नैनीताल के पक्ष में जनपद-तपथौरागढ़, तहसील-मुनस्यारी के ग्राम-बजेता के क्षेत्रान्तगतत कुल 17.967 हे ०िूतम में सोप स्टोन के खनन पट्टा हे तु उत्तराखण्ड गौण खतनज नीतत-2015 (यथासंशोतधत) के प्रातवधानानुसार सोप स्टोन का 50 (पचास) वर्त की अवतध का खनन पट्टा सशतत स्वीकृत तकया गया है । (संलग्नक-7) 2.4 उत्तराखण्ड उिखधनज िररहार धनयर्ावली-2021 के धनयर्-14 के प्राधविानानुसार खनन िट्टा तवलेख/अनुबंध तदनांक 12.11.2021 को उत्तराखण्ड सरकार (प्रथम पक्ष) तथा मै० जे०डी० तमनरल्स प्रो० राजे न्द्र तसंह दफौटी पुत्र स्व० श्री नन्दन तसंह दफौटी बी-54, जज फामत, छोटी मुखानी हल्द्द्वानी जनपद-नैनीताल (तद्वतीय पक्ष) के मध्य तकया गया। (संलग्नक-8) 2.5 बोडम र्ुख्यालय उत्तराखण्ड प्रदू षण धनयंत्रण बोडम के ित्रां क यूकेिीसीबी / एचओ / एनओसी-7294/2021/635 तदनांक 23.08.2021 के द्वारा र्ै० जे०डी० धर्नरल्स, ग्रार्-बजेता तहसील-र्ुनस्यारी, जनिद-धिथौरागढ़, को ियाम वरणीय प्रदू षण की दृधि से स्थािनाथम सहमतत (Consent to Establish) पत्र तनगतमन तकया गया। तदिश्चात बोडम र्ुख्यालय के ित्रां क यूकेिीसीबी/एचओ/सहर्धत/जे-131/2021/1223 धदनां क 26.11.2021 के द्वारा सशतत तदनांक 31.03.2022 तक संचालनाथत सहमतत तनगतत की गयी है । अग्रेतर बोडम र्ुख्यालय के ित्रां क यूकेिीसीबी / एचओ/सहर्धत/जे-131/2022/1923 तदनांक 31.03.2022 के द्वारा सशतत तदनांक 31.03.2027 तक संचालनाथत सहमतत नवीनीकरण तकया गया है । (संलग्नक-9) 2.6 भूत्तव एवं खधनकर्म इकाई उद्योग धनदे शालय उत्तराखण्ड, भोिालिानी, िो० ब़ासी, दे हरादू न के कायामलय ज्ञाि संख्या 2350/र्ु०ख०/खनन/144/ धिथौ/भू०खधन०ई०/2018-2019 धदनां क 23.09.2022 द्वारा खधनज आं कलन, खधनज भण्डारण का सत्यािन हे तु प्रस्तुत संशोधित खनन योजना एवं उत्तरोतर खान बंद करने की योजना का अनुर्ोदन धवधभन्न शतों / प्रधतबंिों के अिीन अनुर्ोधदत धकया गया है । (संलग्नक-10) 3.0 राजस्व धवभाग, खनन धवभाग तथा वन धवभाग द्वारा िूवम र्ें धदनां क 18.03.2023 को प्रश्नगत स्थल की संयुक्त जााँ च कर आख्या उिधजलाधिकारी र्ुनस्यारी को प्रेधषत धक गयी है । तकये गये तनरीक्षण के कम में तववरण तनम्नवत है :-
3.1 िट्टािारक द्वारा तबना अनुमतत के 500 मी० लंबी सड़क राज्य सरकार की िूतम पर काटी गयी है तथा स्वीकृत खनन क्षेत्र से बाहर 40 मी० लंबाई तथा 15 मी० चौडाई कुल 600 वगत मी० में खनन कायत तकया गया है ।
3.2 पट्टाधारक द्वारा खनन कायत के दौरान तनकले मलवे को ढालदार स्थल पर डाला गया है । तजससे िुजगाढ़ नदी, जल श्रोत, पैदल मागत तथा गौचर प्रिातवत है तथा खनन स्थल से प्राथतमक तवद्यालय की दू री 75 मी० है । (संलग्नक-11) 3.3 संदधभमत स्थल की जााँ च वन क्षेत्राधिकारी र्ुनस्यारी द्वारा िूवम र्ें धदनां क 15.03.2023 को की गयी है । धनरीक्षण र्ें िाया गया धक पट्टाधारक द्वारा तबना अनुमतत के 500 मी० लंबाई व 4 मी० चौड़ी अवैध सड़क का तनमातण तकया गया है तथा खनन व सड़क तनमातण से जतनत मलवे को वन िूतम में 20 मी० लंबाई व 15 मी० चौडाई तथा 50 मी० लंबाई व 10 मी० चौड़ाई क्षेत्र में डाला गया है । तजससे 0-10 से०मी० व्यास गोलाई के 40 पेड़ 10-20 से०मी० गोलाई के 30 पेड़ तथा 20-30 से०मी० व्यास गोलाई के चीड़ के पेड़ों को क्षतत पहं ची है । इस तरह कुल 0.28 है ० वन िूतम तथा 70 शास्य व छोटे पेडों तथा 10 बड़े चीड़ के पेडों को क्षतत पहं ची है ।
वन तविाग द्वारा अवैि खनन तथा िे़ों के क्षधत के संबंि र्ें उत्तराखण्ड वृत उ०कु०वृत अल्मो़ा खण्ड धिथौरागढ़ द्वारा वन अपराध िा0व0अ0 1927 की धारा 32, 33 प्रसूचना सं0 04 तदनांक 15.03.2023 रे न्ज मुनस्यारी के तहत पट्टाधारक के तवरूद्ध कुल मूल्य रू 5 321778.00/- की तवतधक कायतवाही की गयी थी। िट्टािारक द्वारा वन िंचायत बेजता र्ें अवैि खनन व िातन हे तु रू० 105000/- जर्ा धकये गये है । (संलग्नक-12) 4.0 स्थलीय धनरीक्षण र्ें आवेदक के धशकायती ित्र के कथन के क्रर् र्ें धबन्दु वार धनम्नवत क्तस्थधत िायी गयी है ।
1. आवेदक का कथन है तक ग्राम-बजेता, तहसील-मुनस्यारी (तेजम), तजला-तपथौरागढ़ एक दू रस्थ गांव है , जहा के तनवासी मूलतया पशु पालन व कृतर् पर तनितर है । बजेता के तोक रोपासैण में चीड़ का घना जंगल है और नीचे िुजगाढ़ नदी बहती है यह क्षेत्र िू-धसाव के अन्तगतत आता है । िूकंप के तलहाज से यह क्षेत्र अतत संवेदनशील है व जोन 05 में आता है ।
संयुक्त धनरीक्षण के दौरान सधर्धत द्वारा िाया गया धक ग्रार्-बजेता के तोक रोिासैंण र्ें खनन क्षेत्र के आसिास स्थानीय झाध़यां तथा ची़ का जंगल है तथा खनन क्षेत्र से नीचे की ओर पूवत तदशा में िूजगाढ़ नदी बहती है । भूसंवेदनधशल क्षेत्र के संबंि र्ें कायामलय भूवैज्ञाधनक भूतत्व एवं खधनकर्म इकाई, उद्योग धनदे शालय उत्तराखण्ड धजला टास्क फोसम , धिथौरागढ़ द्वारा ित्रां क 17/ धज०टा०फो०-धिथौ०/ खनन/भू०धनरी०/2018-19 धदनांक 25.04.2018 के द्वारा धजलाधिकारी र्होदय धिथौरागढ़ को ित्र प्रेधषत धकया गया है । आख्यानुसार प्रस्ताधवत स्थल भौगोधलक दृधिकोण से सर्ुद्र तल से लगभग 1441 र्ीटर की उचाई िर उत्तर 29°56′53.2 अक्षां श, िूरब 80°14′05.8" दे शान्तर के र्ध्य अवक्तस्थत है क्षेत्र र्ें िूधसाव दृतिगोचर नही ं होता है तथा जनपद तपथौरागढ़ का अतधकांश िाग geotectoniczone के अन्तगतत आता है । सधर्धत उक्त कथन से सहर्त है (संलग्नक-13)
2. यह तक तवपक्षी राजेन्द्र तसंह दफोटी ने पूवत प्रधान बसन्त तसंह से तमल कर बजेता के तोक रोपासैंण में खतड़यI खनन का प्रस्ताव तैयार तकया उस हे तु ग्रामीणों के फजी हस्ताक्षर कर अनापतत्त प्रमाण पत्र हातसल तकया फजी हस्ताक्षरों की ररपोटत थाना नाचनी में दे ने के बाद िी पुतलस प्रशासन ने 2 वर्त बीत जाने के बाद िी कोई कायतवाही नही ं की और अवैध तरीके से खनन को मंजूरी दे दी।
उक्त कथन के संबंि र्ें िट्टािारक प्रो० राजेन्द्र धसंह दफौटी को सोि स्टोन के खनन हे तु धबंदु संख्या-02 के अनुसार सक्षर् स्तर अनुर्धत प्राप्त है । फजी हस्ताक्षर के संबंि र्ें धदनां क 09.03.2022 द्वारा प्रेधषत ित्र के आिार िर थाना नाचनी िर र्ु० एफ०आई०आर० नं० 79/22 िारा-420 भा०द०धव बनार् राजेन्द्र धसंह दफौटी िंजीकृत धकया गया है। प्रकरण र्ें तहसीलदार तेजर् के ित्रांक संख्या 79/जां च - ित्रावली / 2022-23 धदनां क 21.03.2023 के क्रर् र्ें थानाध्यक्ष नाचनी द्वारा अवगत कराया गया है धक र्ु०अिराि संख्या 07/22 िारा- 420 आई०िी०सी० बनार् राजेन्द्र धसंह दफौटी र्ें हस्त लेख तमलान (एफ०एस०एल०) तवतध तवज्ञान अनुसंधान तदल्ली िेजा गया है । ररपोटत अप्राप्त है । धववेचना जारी है। (संलग्नक-
14)
3. यह तक खनन के स्वीकृतत के बाद तवपक्षीगणों के द्वारा स्वीकृतत िूतम से अलग बेनाप िूतम में खनन तकया जा रहा है और इनके द्वारा चीड़ के हरे पेड़ों का अवैध कटान तकया जा रहा है तक अवैध रूप से खनन के तशकायत व पेडों की कटान की ररपोटत तजलातधकारी तपथौरागढ़ व प्रिागीय वनातधकारी को दे ने पर रे न्जर मुनस्यारी मौके पर आये व उन्होने खनन कतात को वेनाप िूतम में खनन न करने व 150 चीड़ के हरें पेडों की िरपाई की बात कही ं परन्तु खनन कतात को इनका कोई असर नही ं हआ व उनके द्वारा अवैध खनन बदस्तूर जारी रखा है ।
6
संयुक्त जााँ च र्ें िाया गया धक पट्टाधारक द्वारा खनन क्षेत्र के अततररक्त लगी राज्य सरकार की िूतम पर 40 मीटर लंबाई तथा 15 मीटर चौड़ाई कुल 600 वगत मीटर क्षेत्र में अवैध खनन तकया गया है तथा तबना अनुमतत के 500 मीटर लंबाई तथा 4 मीटर चौडी सड़क काटी गयी है तथा जतनत मलवे को वन िूतम में ढलानी क्षेत्र में 20 मी० लंबाई तथा 15 मी० चौडाई तथा 50 मी० लंबाई व 10 मी० में डाला गया है , तजससे 2800 वगत मीटर वन िूतम प्रिातवत हई है । तजससे 0-10 से०मी० व्यास गोलाई के 40 पेड़, 10-20 से०मी० व्यास गोलाई के 30 पेड़ व 20-30 से०मी० व्यास गोलाई के 10 पेड़ों को क्षतत पहं ची है । तजसकी र्ौके िर िैर्ाईस व आं कलन राजस्व, खनन एवं वन धवभाग द्वारा धकया गया है । जो िूवम प्रेधषत आख्यानुसार है । धनरीक्षण के दौरान खनन तथा अन्य कायम नहीं धकया जा रहा था।
4. यह तक तजला अतधकारी महोदय के आदे श पर पट्टी पटवारी व कानूनगो बासबगड़ मौके पर तवपक्षी गणों के गड़ी में आयें , तवना खनन पर रोक लगाए उन्ही के वाहनों में चले गये।
सधर्धत के सर्क्ष आवेदक प्रधतधनधि द्वारा कोई तथ्यात्मक अधभलेख प्रस्तुत नहीं धकये गये है ।
5. यह तक खनन कतात के अवैध खनन का सारा मलुवा सीधे नीचे िुजगाढ़ नदी में डाला जा रहा है , तजससे िुजगाड़ नदी ं मैली हो चुकी है जो समाचार पत्रांक में प्रकातशत हआ है । िुधसाव से पूरे गांव का धसने का खतरा उत्पन्न हो गया है तथा लोगों का गौपचर पनघट, आम रास्ता बन्द कर तदया है ।
संयुक्त जााँ च के दौरान अधितु खनन कायम नहीं धकया जा रहा था। तथातप पूवत में खनन से जतनत मलवे को ढालधार वन िूतम में डाला गया है , तजससे बजेता से बासबगढ़ पैदल सम्पकत मागत तथा जल श्रोत तथा गौचर प्रिातवत है तथा समीप गधैरे के माध्यम से मलवा िुजगाढ़ नदी के तट तक पहं चा है , धनरीक्षण के दौरान भुजगाढ़ नदी सार्ान्य प्रवाह से प्रवाधहत थी। सधर्धत उक्त कथन से सहर्त है (संलग्नक-15)
6. यह तक ररपोटत रों ने अवैध खनन की कई बार तशकायत तजला प्रशासन तपथौरागढ़ को की है परन्तु तजला प्रशासन अवैध खनन रोकने व फजी दस्तावेजों के आधार पर खनन हातसल करने के तवरूद्ध कोई कायतवाही नही ं कर रहा है ।
उक्त कथन के संबंि र्ें राजस्व, खनन तथा वन धवभाग धिथौरागढ़ द्वारा िूवम र्ें धनरीक्षण कर आख्या प्रेधषत धक गयी है । फजी दस्तावेजों के संबंि र्ें धववेचना थाना िुधलस नाचनी, धिथौरागढ़ र्ें धववेचना जारी है । खनन धवभाग द्वारा पट्टाधारक का ई रवन्ना पोटत ल तत्काल Suspend तकया गया है तथा वन तविाग द्वारा पट्टाधारक के तवरूद्ध अवैध खनन तथा अवैध पातन के संबंध में रू0 321778/- की तवतधक कायतवाही तक गयी है ।
7. यह तक ररपोटत रों की तकसी िी अतधकारी व संस्थान के द्वारा नही ं सुना जा रहा है । यतद अवैध खनन इस तरह चलता रहा तो कुछ ही महीनों में संबंतधत क्षेत्र के ग्रामीणों की िूतम जल श्रोत मकान स्कूल वन इत्यातद संसाधन जल्दी ही समाप्त हो जाएगें तथा ग्रामीणों बेघर व संसाधन तवहीन हो जाएगें।
उक्त कथन के संबंि र्ें उिक्तस्थत खनन धवभाग के अधिकाररयों द्वारा अवगत कराया गया धक िट्टाधारक के तवरूद्ध स्वीकृत खनन क्षेत्र से बाहर खनन कायत तकये जाने के 7 संबंध में अथतदण्ड अतधरोतपत तकये जाने की कायतवाही गततमान है तथा प ट्टाधारक ई- रवन्ना पोटत ल तत्काल Suspend तकया गया है । वन धवभाग द्वारा अवैि खनन तथा िातन के संबंि र्ें धवभागीय कायमवाही की गयी है । (संलग्नक-16) 5.0 प्रकरण के मुख्य तबन्दु , तथा तनष्कर्त 5.1 संयुक्त जााँ च र्ें िाया गया धक पट्टाधारक द्वारा तनधातररत खनन क्षेत्र के अततररक्त लगी िूतम पर (40 मीटर लंबाई तथा 15 मीटर चौड़ाई कुल 600 वगत मीटर) क्षेत्र में सोप स्टोन का खनन तकया गया है तथा (500 मीटर लंबाई तथा 4 मीटर चौड़ी) सड़क काटी गयी है तथा जधनत र्लूवा को ढालादार वन भूधर् र्ें (2800 वगम र्ीटर) डाला गया है । तजससे चीड़ के 70 छोटे वृक्ष तथा 10 बड़े वृक्ष क्षततग्रस्त है । जााँ च के दौरान खनन िट्टािारक प्रधतधनधि द्वारा उक्त संबंि र्ें कोई वैि प्रित्र प्रस्तुत नहीं धकये गये।
5.2 संयुक्त धनरीक्षण के दौरान स्थल िर सोि स्टोन खनन तथा अन्य कायम नहीं धकया जा रहा था। पूवत में खनन से जतनत मलवे को ढालधार वन क्षेत्र में डालने से स्थस्थत पैदल मागत, जल स्रोत व गौचर प्रिातवत है । मलवा समीप गधैरे के माध्यम से िुजगाढ़ नदी के तट तक पहं चा है , धनरीक्षण के दौरान भुजगाढ़ नदी सार्ान्य प्रवाह से प्रवाधहत थी।
5.3 प्रश्नगत स्थल का िूवम र्ें संयुक्त धनरीक्षण राजस्व, खनन व वन धवभाग धिथौरागढ़ द्वारा जााँ च कर आख्या प्रेधषत धक गयी है । खनन धवभाग द्वारा िट्टािारक का ई- रवन्ना िोटम ल धदनां क 21.03.2022 को बंद धकया गया है । वन तविाग द्वारा पट्टाधारक के तवरुद्ध तवतधक कायतवाही कर रू0 321778/- की रातश आरोतपत की गयी है । तदक्रम में पट्टाधारक द्वारा रू0 105000/- जमा तकये गये है ।
5.4 स्पि है तक संदतितत स्थल में तनधातररत खनन क्षेत्र से अततररक्त स्थल में सोप स्टोन खनन व सड़क काटी गयी है व जतनत मलवे को समीपस्त वन क्षेत्र में डाला गया है । तजससे स्थस्थत पैदल मागत , गौचर, जल स्रोत व वन िूतम प्रिातवत है तथा पट्टाधारक द्वारा पूवत में तनगतत अनुमतत / सहमतत शतों का अनुपालन नही ं तकया गया है ।
6.0 उपचारात्मक उपाय 6.1 िट्टािारक को धवरुद्ध िूवम र्ें धनगमत अनुर्धत/सहर्धत र्ें धनधदम ि शतों के अन्तगमत कायमवाही की जायें। अवैि खनन को बंद धकया जायें तथा अवैि खनन से हुई राजस्व क्षधत की प्रधतिूधतम िट्टािारक से की जाये।
6.2 खनन से िूवम र्ें धनस्ताररत र्लवे को रोकने हे तु सुरक्षा दीवार का तनमातण तकया जाये तथा वर्ात जल के तनष्कासन की उतचत व्यवस्था तक जायें तजससे समीपस्थ गधैरा तथा िुजगढ नदी प्रिातवत न हो। यह कायम प्राथधर्कता के आिार िर धकया जायें।
6.3 ियाम वरणीय संतुलन हेतु अनुउियोगी भूधर्, राजस्व, वन िंचायत भूधर् र्ें कायम योजना तैयार कर वृक्षा रोिण धकया जायें तथा उिरोक्त हे तु िनराधश की प्रधतिूधतम िट्टािारक से की जाये।
6.4 क्षेत्र र्ें अवैि खनन की धनगरानी हे तु धजला स्तर िर टास्क फोसम द्वारा धनयधर्त अनुश्रवण सुधनधश्चत धकया जायें।"
English Translation by Tribunal:
"2.0 During the joint investigation, the In-charge Mining Officer, Geology and Mining Unit, Pithoragarh informed that M/s JD Minerals, 8 Prof. Rajendra Singh Dafauti has received conditional permission for mining of soap stone in the questioned village Bajeta, Tehsil Tejam, District Pithoragarh. No other firm/person has been granted permission for mining in village Bajeta. The details of permission/consent received by the said firm are as follows:-
2.1 The approval of the mining plan submitted for mineral assessment, verification of mineral storage and the plan for gradual closure of the mine has been approved in reference of the office memorandum no. 1257/ Mu.kh./Mining/ 144/Pithau/ Bhu.Khani.i./ 2018-19 dated 24.07.2021, Geology and Mining Unit, Directorate of Industries, Uttarakhand, Bhopalpani, PO Barasi, Dehradun, has been approved under various conditions/restrictions. (Annexure-5) 2.2 State Level Environmental Impact Assessment Authority, Uttarakhand, 653, Indiranagar Colony, Seema Dwar Road, Dehradun (constituted by Ministry of Environment, Forest and Climate Change, Government of India, New Delhi) vide letter no. E.C.No-266- 01(83)/2019 dated 12.08.2021 has granted environmental clearance in favour of M/s J.D. Minerals Prof. Rajendra Singh Dafauti son of late Shri Nandan Singh Dafauti B-54, Judge Farm, Chhoti Mukhani Haldwani District-Nainital for 68231 tonnes per annum. (Annexure-6) 2.3 As per the provisions of Uttarakhand Minor Mineral Policy-2015 (as amended), a conditional mining lease of soap stone for a period of 50 (fifty) years has been approved by letter No. 1425/VII-A- 1/2021/1(13)/18 Dehradun dated 23.09.2021 issued by Uttarakhand Government Industrial Development (Mining) Section-01 in favour of M/s JD Minerals Prof. Rajendra Singh Dafauti S/o Late Shri Nandan Singh Dafauti B-54, Judge Farm, Chhoti Mukhani Haldwani District-Nainital for the mining lease of soap stone in a total area of 17.967 hectares of land falling under village Bajeta, Tehsil- Munsyari, District-Pithoragarh. (Annexure-7) 2.4 As per the provision of Rule-14 of Uttarakhand Sub Mineral Avoidance Rules-2021, mining lease deed/contract dated 12.11.2021 was made between Uttarakhand Government (First Party) and M/s J.D. Minerals Prof. Rajendra Singh Dafauti son of Late Shri Nandan Singh Dafauti B-54, Judge Farm, Chhoti Mukhani Haldwani District- Nainital (Second Party). (Annexure-8) 2.5 By letter no. UKPCB/HO/NOC-7294/2021/635 dated 23.08.2021 of Board Headquarters Uttarakhand Pollution Control Board, Consent to Establishment letter was issued to M/s J.D. Minerals, Village-Bajeta Tehsil-Munsiyari, District-Pithoragarh, in view of environmental pollution. Subsequently, the Board Headquarters issued a conditional consent to operate till 31.03.2022 vide letter no. UKPCB/HO/Consent/J-131/2021/1223 dated 26.11.2021. Further, the Board Headquarters issued a conditional 9 consent to operate till 31.03.2027 vide letter no. UKPCB/HO/Consent/J-131/2022/1923 dated 31.03.2022. (Annexure-9) 2.6 Exorcism and Mining Unit, Directorate of Industries Uttarakhand, Bhopalpani, PO Barasi, Dehradun, vide office memo number 2350/ Mukhyamantri/ Mining/144/ Pithau/ Geomining/ 2018-2019 dated 23.09.2022, has approved the revised mining plan presented for mineral assessment, verification of mineral storage and the plan for gradual closure of the mine under various conditions/restrictions. (Annexure-10) 3.0 The Revenue Department, Mining Department and Forest Department had earlier conducted a joint investigation of the site in question on 18.03.2023 and sent the report to the Sub-Divisional Magistrate Munsiyari. The details of the inspection done are as follows:-
3.1 The lessee has cut a 500 m long road on the land of the state government without permission and mining work has done in a total area of 600 sq. m with a length of 40 m and a width of 15 m outside the approved mining area.
3.2 The lessee has dumped the debris generated during mining work on a sloping site, due to which Bhujgarh river, water source, footpath and grazing land are affected and the distance of primary school from the mining site is 75 m. (Annexure-11) 3.3 The referenced site has been inspected earlier by the Forest Officer Munsiyari on 15.03.2023. During inspection, it was found that the lease holder has constructed an illegal road of length of 500meters and width of 4meters width without permission and the debris generated from mining and road construction has been dumped in the forest land in an area of length of 20 meters and width of 15meters and length of 50 meters and width of 10 meters, due to which 40 trees of 0-10 cm diameter, 30 trees of 10-20 cm diameter and pine trees of 20-30 cm diameter have been damaged. A total of 0.28 hectares of forest land and 70 agricultural and small trees and 10 big pine trees have been damaged.
In relation to illegal mining and damage to trees by the Forest Department, Uttarakhand Circle Almora Division Pithoragarh had taken legal action against the lessee under Section 32, 33 of Forest Crime IPC 1927, notification no. 04 dated 15.03.2023 Range Munsiyari, for a total value of Rs. 321778.00/-. The lessee has deposited Rs. 105000/- for illegal mining and felling in Forest Panchayat Bejta. (Annexure-12) 4.0 In the field inspection, the following point-wise situation has been 10 found in the applicant's complaint letter.
1. The applicant states that village Bajeta, tehsil Munsiyari (Tejam), district Pithoragarh is a remote village, where the residents are mainly dependent on animal husbandry and agriculture. There is a dense pine forest in Bajeta's Tok Ropasain and Bhujgarh river flows below. This area is prone to landslides. This area is very sensitive in terms of earthquake and comes in zone 05.
During the joint inspection, the committee found that there are local bushes and pine forest around the mining area in Tok Ropasain of village Bajeta and the Bhujagarh river flows in the east direction down the mining area. Regarding the geo- sensitive area, a letter has been sent to the District Magistrate of Pithoragarh by the Office of Exorcism and Mining Unit, Directorate of Industries, Uttarakhand District Task Force, Pithoragarh through letter no. 17/G.T.F.-
Pithau/Khanan/Bhu.Niri./2018-19 dated 25.04.2018. According to the report, the proposed site is located between 29°56′53.2"
north latitude and 80°14′05.8" east longitude at a height of about 1441 meters above sea level from geographical point of view. Landslides are not visible in the area and most of the part of district Pithoragarh falls under geotectonic zone. The committee agrees with the above statement (Annexure-13)
2. The opposition leader Rajendra Singh Dafoti, in collusion with former Pradhan Basant Singh, prepared a proposal for mining of stone from Tok Ropasain khariya of Bajeta and obtained No Objection Certificate by forging the signatures of the villagers. Even after giving a report of the fake signatures to the Nachni police station, the police administration did not take any action even after two years had passed and approved the mining illegally.
Regarding the above, the lessee Prof. Rajendra Singh Dafauti has received permission from the competent level for mining soap stone as per point number-02. On the basis of the letter sent on 09.03.2022 regarding fake signature, FIR No. 79/22 Section-420 IPC vs Rajendra Singh Dafauti has been registered at Police Station Nachani. In the case, in the sequence of Tehsildar Tejam's letter number 79/Investigation - File / 2022-23 dated 21.03.2023, the SHO Nachani has informed that in FIR number 07/2 Section-420 IPC vs Rajendra Singh Dafauti, Handwriting Matching (FSL) has been sent to Forensic Science Research Delhi. The report is not received. Investigation is going on. (Annexure-14) 11
3. After approval of mining, the opposite parties have been carrying out mining in Benap land apart from the approved land and they are illegally cutting green pine trees. After giving the complaint of illegal mining and report of cutting of trees to the District Magistrate Pithoragarh and Divisional Forest Officer, Ranger Munsyari came to the spot and asked the miner not to mine in Benap land and compensate for the loss of 150 green pine trees but it had no effect on the miner and he has continued illegal mining as usual.
In the joint investigation, it was found that the lessee has done illegal mining in an area of 600 square meters, length of 40 meters and width of 15 meters, on the state government land adjacent to the mining area and has cut a road of length of 500 meters and width of 4 meters without permission and the debris generated has been dumped in the sloping area of forest land in an area of length of 20 meters and width of 15 meters and length of 50 meters and 10 meters, due to which 2800 square meters of forest land has been affected. Due to which 40 trees of 0-10 cm diameter, 30 trees of 10-20 cm diameter and 10 trees of 20-30 cm diameter have been damaged. The measurement and assessment of which has been done on the spot by the Revenue, Mining and Forest Department which is as per the report sent earlier. Mining and other work was not being done during the inspection.
4. As per the orders of the District Magistrate, the Patti Patwari and Kanungo Basbaghad came to the spot in the vehicles of the opposition and left in their vehicles without stopping the mining.
No factual records have been presented by the applicant's representative before the committee.
5. All the debris of illegal mining by the miner is being dumped directly in the Bhujgarh river, due to which the river has become dirty. It has been published in the newspaper. Due to the landslide, the entire village is in danger of sinking and the people's Gauchar Panghat, common path has been closed.
During the joint investigation, mining work was not being done. However, earlier the debris generated from mining has been dumped in the sloped forest land, due to which the 12 pedestrian connecting path from Bajeta to Basabgarh and water sources and Gauchar are affected and the debris has reached the banks of the Bhujgarh river through the nearby gadhera. During the inspection, the Bhujgarh river was flowing with normal flow. The Committee agrees with the above statement (Annexure-15).
6. The reporters have complained about illegal mining several times to the district administration of Pithoragarh, but the district administration is not taking any action to stop illegal mining and against acquiring mining on the basis of fake documents.
Regarding the above statement, the Revenue, Mining and Forest Department Pithoragarh has already inspected and sent a report. Investigation regarding fake documents is going on at Police Station Nachani, Pithoragarh. The Mining Department has immediately suspended the e-Ravanna portal of the lease holder and the Forest Department has taken legal action of Rs 321778/- against the lease holder in connection with illegal mining and illegal felling.
7. The reporters are not being heard by any officer or institution. If illegal mining continues like this, the land, water sources, houses, schools, forests etc. resources of the villagers of the concerned area will soon be exhausted and the villagers will become homeless and resource less in a few months.
Regarding the above, the present officials of the mining department informed that the process of imposing penalty against the lessee for carrying out mining work outside the approved mining area is underway and the lessee e-Ravanna portal has been suspended immediately. Departmental action has been taken by the Forest Department in relation to illegal mining and felling. (Annexure-16) 5.0 Main points of the case and conclusion 5.1 In the joint investigation, it was found that the lessee has mined soap stone in an area (40 meters long and 15 meters wide, total 600 square meters) on the land adjacent to the designated mining area and has cut a road (500 meters long and 4 meters wide) and dumped the debris in the sloped forest land (2800 square meters). Due to which 70 small pine trees and 10 big trees are damaged. During the 13 investigation, no valid documents were presented by the mining lease holder representative in this regard.
5.2 During the joint inspection, soap stone mining and other work was not being done at the site. Due to dumping of debris generated from mining in the sloped forest area in the past, the footpath, water source and grazing land located are affected. The debris has reached the banks of the Bhujgarh river through a nearby gadhera, during the inspection. The Bhujgarh river was flowing with normal flow.
5.3 The joint inspection of the site in question has been done earlier by the Revenue, Mining and Forest Department, Pithoragarh and a report has been sent. The Mining Department has closed the e-Ravanna portal of the lessee on 21.03.2022. The Forest Department has taken legal action against the lessee and imposed a sum of Rs. 321778/-. In this sequence, Rs. 105000/- has been deposited by the lessee.
5.4 It is clear that in the referenced site, soap stone mining and road have been done in an additional area from the designated mining area and the debris generated has been dumped in the adjacent forest area. Due to which the footpath, grazing land, water source and forest land are affected and the lessee has not complied with the previously issued permission/consent conditions.
6.0 Remedial measures 6.1 Action should be taken against the lessee under the conditions specified in the permission/consent issued earlier. Illegal mining should be stopped and the loss of revenue caused due to illegal mining should be reimbursed from the lessee.
6.2 A protective wall should be constructed to stop the debris disposed before mining and proper arrangements should be made for drainage of rainwater so that the nearby Gadhera and Bhujgarh rivers are not affected. This work should be done on priority basis.
6.3 For environmental balance, tree plantation should be done by preparing an action plan in unused land, revenue, forest panchayat land and the amount for the above should be reimbursed from the lessee.
6.4 Regular monitoring should be ensured by the task force at the district level to monitor illegal mining in the area."14
Report dated 08.05.2023 filed by DM Pithoragarh:
6. DM Pithoragarh has also filed separate Report by way of affidavit dated 08.05.2023 stating that vide OM dated 23.09.2021, State government granted approval for 50 years mining lease on the land measuring 17.967 hectares at village Bajeta, Tehsil Munsiyari (Tejam), District Pithoragarh in the name of M/s. JD Minerals, Proprietor Rajender Singh Dafoti. Further, DM Pithoragarh has given extract from Joint Committee Report in para 6 of its affidavit and summarized the same as under:
(i) That there are local shrubs and pine trees situated around the mining area, and on below eastern side of the mining area, the Bhujgadh river is flowing. As per report with regard to geosensitive area, received from the District Task Force, Pithoragarh, Geology and Mining Unit, Directorate of Industries, Uttarakhand, the proposed area in question is situated mid longitude about 1441 Meter height at north 29°56'53.2" parallel 80*14'0.58" located on centre side, in the area subsidence is not observed and maximum area of District Pithoragarh comes under geotectoniczone.
(ii) That the conditional permission have been granted to the lease-holder Shri Rajendra Singh Dafoti for mining of Soap Stone. The F.I.R. no.79/22 under section 420 I.P.C. has been registered against Rajendra Singh Dafoti in Police Station Nachni with regard to forged signatures. The matter has been sent to S.F.L. Research Lab, New Delhi for matching the handwriting and Investigation is going on in the matter.
(iii) The illegal mining of 40 X 15 meter = 600 square meter has been done by the lease-holder on the parallel land of the State Government and 500 meter length and 4 meter width road have been cutted by the lease holder, without having any permission and the muck generated from the same have been dumped in the 20 meter length and 15 meter width area and 50 meter length and 10 meter width area on the slope area of forest, resulting the same, the 2800 square metre land of forest area have been affected, and 10 trees are damaged, in this regard, as per report received from Forest Department, the Divisional Forest Area, Pithoragarh vide its report dated 1.4.2023 levied the penalty of amount of Rs.3,21,778/- (Rupees three lakhs 15 twenty one thousand seven hundred and seventy eight only) has been imposed on the lease holder, out of the same Rs.1,05,000/- (Rupees one lakh five thousand only) has been recovered and the action is under process for recovery of rest of the amount of penalty.
(iv) That according to the report received from the committee, it was informed that no factual record was presented by the applicant representative In connection with the fact of arrival of Patwari and Kanungo Bansababad in the vehicles of the opposite parties and regarding ban on mining.
(v) That during the site Inspection it was found by the joint committee that mining activities not carried out by the lease holder, however, in the past, the debris generated from mining has been dumped on the slope area of forest land, due to which the Bajeta to Bansbagad pedestrian access road and the water source and Gauchar are affected, the debris has reached on the riverbed of the Bhujgarh through Gadhera, and the joint committee also found there is no obstruction on the flow of river Bhujgadh.
(vi) That the Mining Department has suspended e-ravanna portal of the mining lease holder due to earlier illegal mining found at the time of inspection.
(vii) It is also pertinent to mention herein that penalty of Rs.
14,74,200/- (Rupees fourteen lakhs seventy four thousand two hundred only) has been imposed under the recent provisions of Uttarakhand Mining (Prohibition of Illegal Mining, Transportation and Storage) Rules, 2021 on the lease holder for past illegal mining found at the time of earlier Inspection, against the same Rs.7.74,200/- (Rupees seven lakhs seventy four thousand two hundred only) has been recovered in compliance of the order dated 25.04.2023 passed by District Magistrate, Pithoragarh, Uttarakhand as the lease holder deposited is as first installment and for recovery of rest of the penalty, the action is in process.
(viii) It is pertinent to mention herein in addition to the above action, in compliance of the suggestion given by the joint committee, the action for ensuring to stop the illegal mining action, the Anti- mining Force has been directed to regularly watch the illegal mining."
16
7. Tribunal's Order dated 12.05.2023: In view of the above Reports, Tribunal found that project proponent was in fact M/s. JD Minerals whereof Rajender Singh Dafoti was proprietor and, therefore, it was necessary to implead it as respondent 5 and passed order accordingly. Notices were issued to M/s. JD Minerals i.e., newly impleaded respondent
5. Respondents 1 to 3 were also granted time to file their reply. Reply dated 21.06.2023, by respondent 5, filed on 05.09.2023:
8. Pursuant to the above order dated 12.05.2023, respondent 5 filed its response dated 21.06.2023, replying to the affidavit of DM Pithoragarh and also Joint Committee's Report.
9. In the preliminary objections, it is said that respondent 5 was granted mining lease for 50 years by State Government's OM dated 23.09.2021; EC was granted by State Level Environment Impact Assessment Authority, Uttarakhand, Dehradun (hereinafter referred to as 'SEIAA UK') on 12.08.2021; Consent to Establish (hereinafter referred to as 'CTE') was issued by UKSPCB on 23.08.2021; and, Consent to Operate (hereinafter referred to as 'CTO') was issued by UKSPCB on 31.03.2022.
10. Applicant raised the issue before SC/ST Commission. Against the order of SC/ST Commission, respondent 5 filed Writ Petition (M/s) No. 403/2023, M/s. JD Minerals vs. State of Uttarakhand & Others in the High Court of Uttarakhand at Nainital. Writ Petition was allowed vide judgement dated 28.04.2022 (annexure R5/1 at page 209 of the paper book) holding that SC/ST Commission has no authority to create any impediment in the mining activities carried out by petitioner (i.e., respondent 5 before us). Operative part of the judgment reads as under:
"Hence, the writ petition for the reasons aforesaid would stand 17 allowed. The writ of mandamus is issued to respondent nos. 2 & 3, that they would ensure, that no impediment in the functioning of the petitioner to excavate the soaps stone which has been created in his favour by the Government Order of 12.10.2018 and the Government Order dated 23.09.2021 culminating to the execution of the lease deed of 12.11.2021, is created or obstructed by the respondent- executives, i.e. respondent nos. 3 & 4 until and unless, there happens to be any other legal impediment against the petitioner, so far the life of the lease is surviving, executive will not restrain any act of mining based on recommendations of the SC/ST Commission, as it has already been held and I am of the view, that the SC/ST Commission has got no authority, as such thus the writ petition stands allowed and a writ of mandamus is issued accordingly as directed above."
11. It is further said that in respect of deficiencies found in the course of mining activities, mentioned in para 6(iii) of DM's Affidavit, penalty of Rs.3,21,778/- was imposed out of which Rs.1,05,000/- has been paid by respondent 5. It has also undertaken before the authority that in future, no such incident shall be repeated.
12. In reference to the facts stated in para 6(vii) and (viii) of DM's affidavit, respondent 5 in para 17 of its reply has said that it had already paid entire amount of Rs.14,74,200/- in compliance of DM's order dated 25.04.2023. Copies of the receipts dated 29.04.2023 for Rs. 7,72,200/- and dated 11.07.2023 for Rs.7,00,000/- have been filed as annexure R5/2 at page 222 and 223.
13. In respect of the Joint Committee's Report, the objections/response of respondent 5 are contained in para 18 to 21 and we may reproduce the same as under:
"18. That so far as the allegations made against the answering respondent in the report have already been dealt with herein above in response to the reply of DM, Pithoragarh (Resp.No.4).18
19. That so far as the suggestions given by the Joint Committee are concerned, the answering respondent, as duty bound, shall comply the same in letter and spirit. The answering respondent shall ensure that no illegal mining shall be done and the officials and staff of the answering respondents have already been given warning to ensure the recommendations of the Committee in this regard.
20. That the safety wall which was broken due to heavy rain etc. shall be repaired/ constructed as directed in recommendation No. 6.2 to ensure that no water body nearby is affected and natural flow of the water is maintained.
21. That the answering respondent shall also carry out the forestation work as directed in point No.6.3. It is respectfully submitted that part of the forestation work has already been undertaken and remaining shall be completed as per recommendations, within 6 months."
14. Tribunal's Order dated 06.09.2023: Tribunal considered the above Report and replies in its proceedings dated 06.09.2023. It found that project proponent has not specifically adverted to the environmental violations pointed out by Joint Committee and also nothing was stated regarding remedial measures. Respondent 5 therefore was directed to file an additional affidavit giving details of remedial measures already taken/planned with reference to the observations made by Joint Committee. Since there were apparent violations on the part of respondent 5 which were not seriously disputed, Tribunal also passed an interim order restraining respondent 5 from carrying out any further mining activity at the mining site in question. DM, Pithoragarh and Superintendent of Police, Pithoragarh were directed to take appropriate steps to ensure the above restrain order.
Additional Affidavit dated 23.09.2023 of respondent 5:
15. Additional Affidavit dated 23.09.2023 has been filed by respondent 5 on 24.09.2023 before Tribunal. It gives in the form of chart, action 19 taken/planned vis-a-vis the observations made by Joint Committee as under:
Observations made by Measures taken by the the Joint Committee Authorities/Respondent No. 5
1. Action may be taken Action has been taken and holder a against lease holder total penalty Rs. 14,74,200/- has according to conditions Imposed by Pithoragarh vide order mentioned in dated 25.04.2023. The said penalty consent/NOC. has been deposited by the Respondent No.5 vide receipts dated 29.04.2023 & 11.07.2023. A copy of the receipts i.e. E-challan i.e. 29.04.2023 for Rs. 7,72,200 and dated 11.07.2023 for Rs. 7,00,000/- (Rupees Seven Lacs) are annexed ANNEXURE:(Colly). as R5/3
The Forest Department registered a case u/s 32 & 33 of Indian Forest Act on 15.03.2023 against the respondent No.5 for illegal felling of trees in the mining area. Thereafter, on 16.03.2023, the Forest Department, without issuing show-cause and without seeking any explanation, imposed a penalty of Rs.3,21,778/-
upon the Respondent No.5. A copy of the order dated 16.03.2023 passed by Forest Range Officer, Munsiyari imposing penalty is annexed as ANNEXURE: R5/4.
Despite repeated request of the respondent No.5 the Forest Department did not provide any details as to how many trees were allegedly fell by Resp.
No.5. What was the material before the Forest Range Officer to come to the conclusion that this much of penalty was to be imposed.
However, the Respondent No.5 was left with no option but to deposit the said penalty which was deposited by him on 18.03.2023 and 20 21.09.2023 for a sum of Rs. 105000 and 216778/- respectively. A copy of the letter dated 21.09.2023 issued by the Forest Range Officer, Munsiyari is annexed as ANNEXURE: R5/5.
It is important to bring to notice of this Hon'ble Tribunal that the Respondent No.5 conducted the mining activity for the total period of 4½ months i.e. from October 2022 to first week of Feb, 2023.
2. Before starting further The respondent No.5 has not conducted mining activity retaining any mining activity till today. Because wall should be of stoppage of mining activity and constructed to retain because of rainy season, the over burden. repair/construction work of the retaining wall, where ever it is required, could not be completed.
However, the respondent No.5 undertakes not to start the mining activity without proper repair/ construction of retaining wall, wherever it is required, so as to avoid slipping of over burden on the downhill.
Over burden is kept near the site because the same is utilized for refiling the mined area as per directions of the Govt. between period 15 June to 30 June, every year i.e. before start of rainy season, to avoid any mis happening and storage of water etc. in the mined area.
No mining activity is conducted during the period 15 June to 30 September as per the Govt. guidelines. However, during non-rainy season if the rain comes, then also mining is stopped.
3. For disposal of rain So far as the disposal of rain water is water, suitable concerned, the same is disposed of arrangement should be through natural passage of water which made so that the nearest connects to the nearest gadhera water body and river carrying the rain water. As per EC Bhujgarh is not affected. condition there is prohibition on 21 changing the course of the natural flow of the water.
It is important to mention that when there is a rain, the dust of soap stone are carried with the water and flow along with gadhera.
However, the over burden is retained for refilling the pit.
If the rain water is allowed to retain in the mining pit, it may cause serious damage to the nearby area, if it spills out from the mining site. That even sometimes, water pumping motor is being used to take out the rain water from the mining site which is filled in the mining pit and is connected to the gadhera, otherwise it will cause damage not only to the mining site but also to the nearby area/ houses down the hill, if the entire rainwater is allowed to retain in the pit.
However, it is submitted that no hard material/ over burden is allowed to carry through gadhera, it is only the water mixed with the dust of the soap stone that naturally flow with the rain water only in rainy season.
4. For balancing the In July 2023, respondent No.5 carried environmental issues, the basic extensive plantation an action plan may be activity on the Van Panchayat land prepared and plantation and unutilized land near the mining site may be done in the in an area of approx. 2 to 2.5 hectors unutilized land of about 1000 trees. Further to this, the revenue and Van respondent No.5 also distributed plants panchayat. to the villagers for plantation on their land which is in their use and control near the mining site.
Further, the respondent No.5 has also made an arrangement to ensure that the tree planted are protected.
For this purpose the respondent No.5 has employed 2 persons namely:22
1. Govind Pawar
2. Kuwar Singh Koranga
5. The District Level task The Govt. has constituted special task force may be constituted force to ensure stoppage of any illegal to look after the illegal mining in the entire state of mining and regular Uttarakhand which has become inspection may be functional. However, since no mining ensured activity has conducted by been the Respondent no.5 since, first week of February, 2023.
16. Additional Affidavit has further stated that respondent 5 started mining activity in October 2022 and continued the same till first week of February 2023 i.e., the mining was carried out only for about 04 months.
As per data available on mining lease monitoring system of State of Uttarakhand, total material mined at the site was 3237.760 tons. On the question that the area is being sensitive and in Geotectonic zone, respondent 5 has stated in para 5 that maximum area of District Pithoragrah comes in Geotectonic zone. As per District Survey Report (Soapstone) of District Pithoragrah, not only respondent 5 but there are more than 27 operational Soap stone units functioning in District Pithoragrah and carrying mining activities with the permission of concerned Departments, State and Central Government. Respondent 5 is meeting the conditions of EIA and EMP.
17. So far as mining beyond lease area, it is said that it happened inadvertently because there was fault in demarcation and displacement of marking points by miscreants in the area. After the authorities pointed out the said unauthorized mining, it was immediately stopped and order imposing penalty was complied with by respondent 5. Thereafter, mined area was replenished, filled and plantation was done. 23
18. Respondent 5 has denied of constructing any road. Mined mineral, it is said, transported from pit head to approach road through mules. However, in para 10, it is stated that passage (not a road) which has been allegedly constructed by respondent 5, was used only once for carrying machines, as the same could not be brought at site through the path from where the mined material is transported through mules.
19. Respondent 5 has done several works under CSR/CER and shall abide by all the conditions of EC, EMP and EIA in letter and spirit.
20. The annexure to the reply shows that vide order dated 16.03.2023, Forest Officer, Munsyari imposed penalty of Rs.3,21,778/- upon respondent 5 for illegal cutting of trees and also registered criminal case under Sections 32 and 33 of Indian Forest Act, 1927 as Range Case No. 14 dated 15.03.2023. The said amount has been deposited by respondent 5 and this is evident from Forest Officer, Munsyari's letter dated 21.09.2023 which is on record as annexure R5/5 at page 244.
21. Copy of EC dated 12.08.2021 is also on record at page 246 which shows several conditions including general conditions for operational phase, entire operation and specific conditions and some of the relevant conditions are quoted as under:
"2-Conditions for operation phase
3. The mining/extraction of soapstone shall not be done without approved mine plan from designated authority. The mine plan should be revised every 5 years and no fresh mine plan shall be prepared without site inspection by designated authority.
5. The mining shall be carried out by open case mechanized method without adopting drilling and blasting operation. The use of hand held mechanically driven equipment is permitted. The use of any 24 electrically driven machinery shall remain prohibited and only hand held tools shall be used for extraction of the mineral.
13. The project proponent shall regulate and maintain record of the quantity of soapstone extracted during a season. The monitoring shall be ensured by Mines Department/District Administration from time to time.
27. Project proponent will strictly comply with EMP/EIA.
28. Project proponent will have to submit EMP/EIA report to Mining Department (Lessee) and Pollution Control Board before getting work order/Consent to Established or Operate.
29. The Project proponent shall submit half yearly compliance report of stipulated conditions of Environmental Clearance in soft copy through PARIVESH PORTAL given link: https://parivesh.nic.in.
3- Entire Operation
1) The Environmental Clearance is being granted for mining/extraction of Soapstone in the approved Mine Lease Area.
Legal status of the mining lease area shall remain unchanged and the Environmental Clearance is being granted only for the lease period. The mined lease area shall not be used for any purpose other than that specified in the proposal."
22. Tribunal's Order dated 26.09.2023: The above additional affidavit of respondent 5 was considered by Tribunal on 26.09.2023 and it observed that still respondent 5 has not given details regarding remedial measures taken by him in compliance with EC/Consent conditions and recommendations made by Joint Committee, whereupon, on the request of Learned Counsel for respondent 5, further time for additional reply was given.
23. Tribunal's Order dated 31.10.2023: Tribunal vide order dated 31.10.2023 allowed further time to respondent 5 to file additional reply and considering his IA 746/2023 modified interim order dated 06.09.2023 to the extent that if due verification by the authorities concerned shows 25 requisite environmental compliance, project proponent may be allowed to commence its mining while ensuring strict compliance with EC/consent conditions and environmental terms.
Additional reply dated 17.11.2023 by respondent 5:
24. Respondent 5 submitted its reply to the recommendations made by Joint Committee as under:
"4. The committee made recommendation that an action may be taken against lease holder according to conditions mentioned in consent/ NoC.
In this regard this is respectfully submitted that an action was taken. A penalty of Rs.14,74,200/- was imposed by DM, Pithoragarh vide order dated 25.04.2023, which was deposited by the Respondent No.5 vide receipts dated 29.04.2023 & 11.07.2023. The receipts dated 29.04.2023 for Rs. 7,72,200 and dated 11.07.2023 for Rs. 7,00,000/- have already been annexed as annexure: R5/3 (colly) with the reply dated 23.09.2023.
The Forest Department also registered a case U/s 32 & 33 of Indian Forest Act on 15.03.2023 against the respondent No.5 for illegal felling of trees in the mining area. Thereafter, on 16.03.2023, the Forest Department, imposed a penalty of Rs.3,21,778/ upon the Respondent No.5. A copy of the order dated 16.03.2023 passed by Forest Range Officer, Munsiyari imposing penalty has already been annexed as annexure: R5/4 (colly) with the reply dated 23.09.2023.
The respondent No. 5 has deposited the said penalty on 18.03.2023 and 21.09.2023 for a sum of Rs. 105000 and 216778/- respectively. A copy of the letter dated 21.09.2023 issued by the Forest Range Officer, Munsiyari have already been annexed as annexure: R5/5 (colly) with the reply dated 23.09.2023.
It is important to bring to notice of this Hon'ble Tribunal that the Respondent No.5, as of now, has conducted the mining activity for only a period of 4 and a half months i.e. from October 2022 to first week of Feb, 2023.
5. The committee made recommendation that before starting further mining activity, a retaining wall should be constructed to retain over burden.
26 In this regard this is respectfully submitted that the respondent No. 5 has constructed a retaining wall in the mining area where ever it was required.
It is further submitted that not only the retaining wall has been constructed but the respondent No. 5 has also strengthened the demarcation pillars properly as per the plan. The alleged illegal mining area has been replenished and plantation has been done after replenishment in the alleged illegal mining area. The photographs of the alleged illegal mining area after replenishment and plantation and newly constructed retaining wall are annexed as ANNEXURE: R5/12 (colly).
The alleged over burden which fell on the Gochar, Panghat and on the path way, have been removed by the respondent. Thereafter, the respondent No. 5 sent a letter dated 04.11.2023 to the District Magistrate Pithoragarh with a CC to Mining Officer and RO, PCB with regard to the compliance made by the respondent No.5 in pursuant to the recommendation of the joint committee and EC. A copy of the letter dated 04.11.2023 sent to the District Magistrate Pithoragarh is annexed as ANNEXURE : R5/13.
Thereafter the DM Pithoragarh has issued an order dated 08.11.2023 nominating the SDM Munsiyari to conduct a verification of the details provided by the respondent No. 5 and submit a report on or before 18.11.2023. A copy of the order dated 08.11.2023 issued by District Magistrate Pithoragarh is annexed as ANNEXURE : R5/14.
6. That on 16.11.2023 a team of the officials from the office of DM Pithoragarh and other departments inspected the site and verified the information given by respondent No.5 on 04.11.2023 regarding compliance as directed by this Hon'ble Tribunal. The officials have found everything in order except that a suggestion has come that respondent No.5 shall increase the height of retaining wall by 2 feets and shall also conduct plantation activity in a separate forest land which shall be allocated to him by 17.11.2023.
7. That there has been a delay of 7 days in filing this additional reply, however, the same has happened because the respondent No.5 was waiting for the outcome of the verification of the information of compliance already submitted to DM Pithoragarh on 04.11.2023 and the same has been received only on 16.11.2023 and this additional reply is being filed on the very next day i.e. 17.11.2023 without any further delay.
27
8. The committee made recommendation that for disposal of rain water, suitable arrangement should be made so that the nearest water body and river Bhujgarh is not affected.
As stated above, the respondent No.5 has already removed the over burden which was allegedly fallen on the Gochar, Panghat and on the path way. Everything has been cleared. Thus, there is no possibility of any further falling of over burden from the mining area on the nearest water body river Bhujgarh.
9. The committee made recommendation that for balancing the environmental issues, an action plan may be prepared and plantation may be done in the unutilized land of revenue and Van panchayat.
As stated herein above, the plantation has already been done in the entire area including the area of replenishment of the alleged illegal mining and the letter dated 04.11.2023 has already been written to the DM Pithoragarh for its verification. Thereafter, on 08.11.2023 DM Pithoragarh had already directed SDM Munsiyari to conduct verification and submit a report before 18.11.2023.
In July 2023 also, the respondent No.5 had carried extensive plantation activity on the Van Panchayat land and unutilized land near the mining site in an area of approx. 2 to 2.5 hectors about 1000 trees. Further to this, the respondent No.5 also distributed plants to the villagers for plantation on their land which is in their use and control near the mining site. Further, the respondent No.5 has also made an arrangement to ensure that the tree planted are protected. For this purpose the respondent No.5 has employed 2 persons namely Govind Pawar and Kuwar Singh Koranga.
10. The committee made recommendation that the District Level task force may be constituted to look after the illegal mining and regular inspection may be ensured.
The Govt. has already constituted special task force to ensure stoppage of any illegal mining in the entire state of Uttarakhand which has become functional. However, no mining activity has been conducted by the Respondent no.5 i.e. first week of February, 2023."
25. It has further stated that mining commenced by respondent 5 in October 2022 and continued till first week of February 2023. The maximum area of District Pithoragarh comes in Geotectonic zone. There 28 are 27 operational soap stone mines in District Pithoragarh with due permission of concerned departments. Respondent 5 is meeting conditions of EIA and EMP. Route of transportation of mined mineral and approach road to mining site is different and separate. There is distance of about 2 kms from the pit head to approach road which is covered through mules. Several CSR/CER works have been executed by respondent 5 for public welfare spending about 8.5 lakhs, duly acknowledged by Village Pradhan, Bajeta vide letter dated 18.09.2023. He furnishes an undertaking that all conditions of EC, EMP and EIA shall be abided by him in letter and spirit and no mining activity shall be conducted at the site without ensuring adequate measures including construction of retaining wall wherever it requires.
Report dated 25.11.2023 by DM Pithoragarh:
26. DM Pithoragarh has also filed Report vide e-mail dated 25.11.2023 appending a report of Joint Committee appointed by him which visited the site on 16.11.2023 and made observations to the following effect:
"निरीक्षण के दौराि पट्टाधारक द्वारा पट्टाक्षेत्र में नकये गये कायों/अिपु ालि की नथिनि निम्िवि् पाई गई:
मा० राष्ट्रीय हररि प्रानधकरण के आदेश नदिाक ां 06.09.2023 के अिपु ालि में पट्टा क्षेत्र ग्राम यजेिा, िहसील मिु थयारी (िेजग), जिपद नपिौरागढ़ क्षेत्रान्िगगि खिि/निकासी कायग प्रनिबांनधि नकया गया है। निरीक्षण के दौराि क्षेत्रान्िगगि खिि कायग बन्द पाया गया। (अिल ु ग्िक-01)
1. पट्टाधारक द्वारा ग्राम बजेिा, िहिी िहसील मिु थयारी (िेजग), जिपद नपिौरागढ़ अन्िगगि थवीकृ ि सोपथटोि खिि पट्टाक्षेत्र से बाहर 600 वगगमीटर क्षेत्र में अवैध खनन किये जाने पर उत्तराखण्ड (अवैध खिि, पररवहि एवां भण्डारण का निवारण) नियमावली-2021 में उनललनखि प्रानवधािों के अिसु ार आदेश सांख्या-म०ु फौ०सां०-20/2023 नदिाक ां 25.04.2023 के द्वारा िुल ₹14,74,200.00 िी धनराकि अकधरोकपत िी गई थी।
अकधरोकपत धनराकि को पट्टाधारक श्री राजेन्र नसांह दफौटी द्वारा चालाि सांख्या- 08530423E0054654 नदिाक ां 29.04.2023 एव चालाि सांख्या-08530723E0025630 29 नदिाांक 11.07.2023 से शासि के निधागररि लेखाशीर्गक में जमा राजिोष िी जा चुिी है। निरीक्षण के दौराि क्षेत्रान्िगगि खिि / अवैध खिि कायग िहीं पाया गया। (अिल ु ग्िक-02)
2. पट्टाधारक मै० जे०डी० नमिरलस प्रो० श्री राजेन्र नसांह दफौटी, बी0-54 जज फामग, छोटी मख ु ािी हलद्वािी, जिपद िैिीिाल के पक्ष में कनगगत ई-रवन्ना आई०डी० सख् ं या-M062023894 िे अनुसार पट्टाधारि द्वारा पट्टाक्षेत्र से अभी ति िुल 3237.76 टन खकनज सोपस्टोन िा कनिासी िी गई है। (अिल ु ग्िक-03)
3. उत्तराखण्ड शासि, औद्योनगक नवकास अिभु ाग-1, देहरादिू के कायागलय ज्ञाप सांख्या-
2248/VII-I/2018/1(13)/18 नदिाांक 12.10.2018 के द्वारा पट्टाधारक मै०जे०डी० नमिरलस प्रो० श्री राजेन्र नसहां दफौटी, बी0-54 जज फामग, छोटी मख ु ािी हलद्वािी, जिपद िैिीिाल के पक्ष में जिपद नपिौरागढ़, िहसील मिु थयारी, के ग्राम बजेिा में कुल 17.967 है० भनू म पर 50 वर्ग की अवनध के नलए उपखनिज सोपथटोि का खिि पट्टा थवीकृ ि है। निदेशक, भिू त्व एवां खनिकमग इकाई, उद्योग निदेशालय, उत्तराखण्ड देहरादिू के कायागलय ज्ञाप सख्ां या- 1257/ग०ु ख०/खिि/144/नपिौ०/भ०ू खनि०ई०/2018-19 नदिाांक 24.07.2023 के द्वारा खिि योजिा अिमु ोनदि की गई है। राज्य थिर पयागवरण सिाघाि निधागरण प्रानधकरण, उत्तराखण्ड, देहरादिू के ई०सी० िम्बर-266-01(83)/2019 नदिाक ां 12.08.2021 के द्वारा पट्टाधारक के पक्ष में ई०सी० (पयागवरणीय अिमु नि) निगगि की गई है। (अिुलग्िक-04)
4. प्रनिवादी सांख्या-05 की अिपु ालि आख्या नदिाांक 07.11.2023 द्वारा उपलब्ध कराये गये अनभलेखों के अिसु ार उिके द्वारा पट्टा क्षेत्र में वृक्ष रोनपि नकये जािे सम्बन्धी फोटोग्राफ एवां 1500 वृक्षों क्रय नकये जािे सम्बन्धी देयक उपलब्ध कराये गये हैं। कनरीक्षण िे दौरान पट्टा क्षेत्रान्तगगत मलवा जकनत क्षेत्र में लगभग 170-180 संख्या में वृक्षारोपण किया जाना पाया गया, परन्तु रोकपत पौधों िा उकचत रख-रखाव न होने िे िारण अकधिांि पौधे सूखने िी अवस्था में पाये गये। इसके अनिररक्त पट्टाधारक के प्रनिनिनध द्वारा निरीक्षण के दौराि बिाया गया नक कनिपय फलदार वृक्ष थिािीय ग्रामवानसयों को नविररि नकये गये हैं, नजन्हें ग्रामीणों द्वारा पट्टा क्षेत्र के समीप अपिी निजी िाप भनू म में रोनपि नकया गया है। पट्टा क्षेत्र के समीप ग्रामीणों द्वारा अपिी निजी िाप भूनम में रोनपि वृक्ष ठीक अवथिा में पाये गये। (फोटोग्राफ अिल ु ग्िक-05) पट्टाक्षेत्र के समीप वि पांचायि की भनू म पर नियमािसु ार शिों के अिरुु प वृक्षारोपरण कर उनचि प्रकार रख-रखाव / देखभाल नकये जािे हेिु पट्टाधारक के प्रनिनिनध को मौके पर निदेनशि नकया गया है।
5. खिि से पवू ग में निथिाररि मलबे को प्रनिवादी सांख्या-05 द्वारा रोकिे के नलये ढालदार भ-ू भाग में सीडीिमु ा आकार के नवनभन्ि थिरों में 14 जालीनुमा तारयुक्त 14 दीवारों िा कनमागण किया गया है, कजनिी औसतन लम्बाई 3.60 मी०, चौड़ाई 0.70 मी० एवं ऊंचाई 1.30 मी० पाई गई, परन्िु ऊपरी भाग में दीवार की ऊँ चाई अपेक्षाकृ ि कम होिे ििा क्षेत्र की प्रवणिा अत्यकधि ढालदार होने िे िारण कनकमगत दीवार से खनन जकनत मलबे िा रूिना सम्भव प्रतीत नहीं होता है। मलबे को रोकिे हेिु ऊपरी भाग के दीवार की ऊँ चाई 1.5 से 02 30 गीटर ऊँ ची की जािी आवश्यक होगी, नजस हेिु पट्टाधारक प्रनिनिनध श्री कोरांगा को मौके पर निदेनशि नकया गया। इसके अनिररक्त एि अन्य स्थान पर भी मलवे िो ढालदार भू-भाग में कगरने से रोिने हेतु सरु क्षा दीवार िा कनमागण किया जाना होगा। सनमनि द्वारा इस थिल पर भी दीवार निनमगि नकये जािे हेिु पट्टाधारक के प्रनिनिनध को मौके पर निदेनशि नकया गया, नजससे भनवष्ट्य में भुजगाड िदी प्रभानवि ि हो। (फोटोग्राफ अिलु ग्िक-06)
6. खनन पट्टा क्षेत्र से बाहर अवैध खनन तथा अवैध पातन के सांबांध में वि नवभाग द्वारा भारिीय वि अनधनियम-1927 की धारा-32, 33 प्रसचू िा-04 रें ज के सांख्या-14 नदिाक ां 15.03.2023 दजग करिे हुए प्रकतवादी संख्या-05 पर ₹ 3,21,748.00 िी धनराकि अकधरोकपत िी गई, नजसे प्रनिवादी सख्ां या-05 द्वारा नदिाक ां 21.09.2023 को जमा राजिोष किया जा चुिा है। (अिल ु ग्िक-07) जाांच में पाये गये उपरोक्त िथ्यों के आधार पर प्रनिवादी सख्ां या-05 मै०जे०डी० नमिरलस प्रो० श्री राजेन्र नसांह दफौटी, निवासी बी0-54 जज फामग छोटी मख ु ािी, हलद्वािी, जिपद िैिीिाल द्वारा पट्टाक्षेत्र में पवू ग में खिि से निथिाररि मलबे को रोकिे हेिु सरु क्षा दीवार का निमागण, वर्ाग जल की उनचि निष्ट्कासि की व्यवथिा ििा पट्टाक्षेत्र के समीप वि पांचायि क्षेत्र में वृक्षारोपण करिे हुए रोनपि वृक्षों की सरु क्षा एवां देख-रे ख की जािी होगी।
English Translation by Tribunal:
"During the inspection, the status of the work done/compliance by the lessee in the leased area was found to be as follows:-
In compliance with the order of Hon'ble National Green Authority dated 06.09.2023, mining/extraction work has been banned in the leased area of village Bajeta, Tehsil Munsiyari (Tejag), District Pithoragarh. During the inspection, mining work was found to be closed in the area. (Annexure-01)
1. A total amount of ₹14,74,200.00 was imposed by order number-
M.F.No.-20/2023 dated 25.04.2023 as per the provisions of the Uttarakhand (Prevention of Illegal Mining, Transportation and Storage) Rules-2021 on illegal mining by the lessee in an area of 600 square meters outside the approved soapstone mining lease area under village Bajeta, Tahthi Tehsil Munsyari (Tejag), District Pithoragarh. The imposed amount has been deposited in the treasury by the lessee Shri Rajendra Singh Dafauti in the prescribed account head of the government through challan no.- 08530423E0054654 dated 29.04.2023 and challan no.- 08530723E0025630 dated 11.07.2023. No mining/illegal mining work was found in the area during inspection. (Annexure-02)
2. As per the e-Ravana ID No.-M062023894 issued in favour of the lessee Mr. JD Minerals Prof. Rajendra Singh Dafauti, B-54 Judge 31 Farm, Chhoti Mukhani Haldwani, District Nainital, a total of 3237.76 tonnes of mineral soapstone has been extracted by the lessee from the leased area till now. (Annexure-03)
3. The mining lease of sub-mineral soapstone has been approved for a period of 50 years on a total area of 17.967 hectares of land in village Bajeta, Tehsil Munsiyari, District Pithoragarh in favour of the lessee M/s JD Minerals Prof. Rajendra Singh Dafauti, B-54 Judge Farm, Chhoti Mukhani Haldwani, District Nainital vide OM No. 2248/VII-I/2018/1(13)/18 dated 12.10.2018 of the Government of Uttarakhand, Industrial Development Section-1, Dehradun. The mining plan has been approved vide OM No. 1257/GK/Mining/144/Pithora/Geomining/2018-19 dated 24.07.2023 of the Director, Geology and Mining Unit, Directorate of Industries, Uttarakhand, Dehradun. EC (Environmental Permission) has been issued in favour of the lessee by the State Level Environmental Hazard Assessment Authority, Uttarakhand, Dehradun vide EC No.-266-01(83)/2019 dated 12.08.2021. (Annexure-04)
4. According to the records of compliance report dated 07.11.2023 of respondent no.-05, photographs of planting of trees in the leased area and bills related to purchase of 1500 trees have been provided by them. During the inspection, about 170-180 number of trees were found to have been planted in the debris generated area under the leased area, but due to lack of proper maintenance of the planted plants, most of the plants were found to be in a state of drying. Apart from this, during the inspection, it was informed by the representative of the lessee that some fruit trees have been distributed to the local villagers, which have been planted by the villagers in their private measured land near the leased area. The trees planted by the villagers in their private measured land near the leased area were found in good condition. (Photograph Annexure-05) The representative of the lessee has been directed on the spot to plant trees and take proper care of the same as per the rules and conditions on the forest panchayat land near the leased area.
5. In order to stop the debris disposed before mining by respondent no. 5, 14 wire mesh walls have been constructed at different levels in a staircase like shape in the sloping terrain, whose average length is 3.60 m, width 0.70 m and height 1.30 m. However, due to the relatively low height of the wall in the upper part and the slope of the area being very sloping, it does not appear possible for the constructed wall to stop the debris generated from mining. To stop the debris, the height of the upper wall will have to be increased by 1.5 to 02 litres, for which the leaseholder representative Mr. Koranga was instructed on the spot. Apart from this, a safety wall will have to be constructed at 32 another place also to prevent the debris from falling on the sloping terrain. The committee instructed the leaseholder representative on the spot to construct a wall at this place also, so that the Bhujgad river is not affected in future. (Photograph Annexure-06)
6. In relation to illegal mining and illegal felling outside the mining lease area, the Forest Department registered Section 32, 33 of the Indian Forest Act-1927, Notice-04 Range No. 14 dated 15.03.2023 and imposed a sum of ₹3,21,748.00 on respondent no.-05 and the same has been deposited in the treasury by respondent on 21.09.2023. (Annexure-7) On the basis of the above facts found in the investigation, the respondent no.-05 M/s JD Minerals Prof. Rajendra Singh Dafauti, resident of B-54 Judge Farm Chhoti Mukhani, Haldwani, District Nainital will have to construct a protective wall to prevent the debris disposed of earlier from mining in the lease area, make arrangements for proper drainage of rainwater and plant trees in the forest panchayat area near the lease area and will have to protect and take care of the planted trees."
Joint Committee Report dated 07.12.2023:
27. Joint Committee also filed its Report dated 07.12.2023 after making site inspection on 16.11.2023.
28. Tribunal's Order dated 13.12.2023: The above material was considered by Tribunal on 13.12.2023 when Tribunal found that Joint Committee had made certain recommendations which have yet to be complied by respondent 5 and, therefore, till further orders to the contrary, respondent 5 was restrained from carrying out any further activities at the mining site lease out.
Joint Committee Report dated 01.02.2024:
29. Again, Joint Committee visited site on 25.01.2024 and recorded its observations as under:
"धनरीक्षण के दौरान िट्टािारक द्वारा िट्टाक्षेत्र र्ें धकये गये कायों/अनुिालन की क्तस्थधत धनम्नवत् िाई गई :-
र्ा० रािरीय हररत प्राधिकरण के आदे श धदनांक 06.09.2023 एवं धदनांक 13.12.2023 33 के अनुिालन र्ें िट्टा क्षेत्र ग्रार् बजेता, तहसील र्ुनस्यारी (तेजर्), जनिद धिथौरागढ़ क्षेत्रान्तगमत खनन/धनकासी कायम प्रधतबक्तित धकया गया है। तनरीक्षण के दौरान क्षेत्रान्तगतत खनन कायत बन्द पाया गया। (अनुलग्नक-02)
1) प्रधतवादी संख्या-05 की अनुिालन आख्या धदनांक 22.01.2024 के अनुसार िट्टा क्षेत्र र्ें वृक्ष रोधित धकये जाने के सम्वि र्ें ित्र संख्या-470/ तीस-खनन /2022-23 धदनांक धदसम्बर 20, 2023 के द्वारा स्वीकृत सोिस्टोन के खनन िट्टा क्षेत्र के आस-िास वृक्षारोिण हेतु उिलब्ध वन िंचायत की भूधर् िट्टािारक / प्रधतवादी संख्या-05 को उिलब्ध कराते हुए सम्बक्तित वन िंचायत के सरिंच एवं वन क्षेत्राधिकारी की दे ख-रे ख र्ें वृक्षारोिण कायम सम्पन्न कराये जाने हेतु प्रभागीय वनाधिकारी, धिथौरागढ़ वन प्रभाग, धिथौरागढ़ को धनदे धशत धकया गया। धनरीक्षण के सर्य वन धवभाग के प्रधतधनधि द्वारा अवगत कराया गया धक स्वीकृत खनन िट्टा क्षेत्र के आस-िास वृक्षारोिण हेतु वन िंचायत की भूधर् को िट्टािारक / प्रधतवादी संख्या-05 को उिलब्ध कराये जाने हेतु भूधर् चयन की कायमवाही की जा रही है। िूतम चयन उपरान्त वृक्षारोपण तकया जायेगा। (अनुलग्नक-03)
2) खनन से िूवम र्ें धनस्ताररत र्लवे को प्रधतवादी संख्या-05 द्वारा रोकने के धलये िूवम र्ें ढालदार भू-भाग र्ें सीडीनुर्ा आकार के धवधभन्न स्तरों र्ें तारयुक्त 14 दीवारों का धनर्ामण धकया गया था, धजनकी औसतन लम्बाई 3.60 र्ी०, चौ़ाई 0.70 र्ी० एवं ऊाँचाई 1.30 र्ी० िाई थी। सधर्धत द्वारा सुझाये गये उिायों के अनुरुि प्रधतवादी संख्या-05 द्वारा स्थल िर धनस्ताररत र्लवे को रोकने के धलए िूवम धनधर्मत दीवारों के ऊिर 01 अधतररक्त जालीनुर्ा तारयुक्त सुरक्षा दीवार का धनर्ामण धकया गया है धजसकी लम्बाई 39.00 र्ी०.
चौडाई 1.30 र्ी० एवं ऊाँचाई 1.50 र्ी० औसतन िाई गई। उिरोक्त के अधतररक्त सधर्धत द्वारा िूवम र्ें सुझाये गये उिायों के अनुरुि िट्टािारक / प्रधतवादी संख्या-05 द्वारा एक अन्य स्थान िर भी र्लवे को ढालदार भू -भाग र्ें धगरने से रोकने हेतु सुरक्षा दीवार का धनर्ामण धकया गया है , धजसकी लम्बाई 35.00 र्ी०, चौडाई 1.40 र्ी0 एवं ऊाँचाई 1.50 र्ी० औसतन िाई गई। इस प्रकार स्थल की िौगोतलक स्थस्थतत के अनुरुप तनस्ताररत मलवे को ढालदार िू-िाग में तगरने से रोकने हेतु तनतमतत दीवार उतचत प्रतीत होती है । (फोटोग्राफ अनुलग्नक-04) जांच र्ें िाये गये उिरोक्त तथ्यों के आिार िर प्रधतवादी संख्या-05 र्ै० जे०डी० धर्नरल्स प्रो० श्री राजेन्द्र धसंह दफौटी, धनवासी बी0-54 जज फार्म छोटी र्ुखानी, हल्द्द्वानी, जनिद नैनीताल द्वारा िट्टाक्षेत्र र्ें िूवम र्ें खनन से धनस्ताररत र्लवे को रोकने हेतु सुरक्षा दीवार का धनर्ामण धकया गया है तथा पट्टाक्षेत्र के समीप वन पंचायत क्षेत्र में वृक्षारोपण करते हए रोतपत वृक्षो की सुरक्षा एवं दे ख-रे ख की जानी होगी।"
English Translation by Tribunal:
"During the inspection, the status of the works/compliance done by the lessee in the leased area was found to be as follows:-
In compliance with the orders of Hon'ble National Green Tribunal dated 06.09.2023 and dated 13.12.2023, mining/extraction work has been prohibited in the leased area of Village Bajeta, Tehsil Munsiyari (Tejam), District Pithoragarh. During the inspection, mining work was found to be closed in the area. (Annexure-02) 34
1. According to the compliance report dated 22.01.2024 of respondent no.-05, regarding plantation of trees in the lease area, the Divisional Forest Officer, Pithoragarh Forest Division, Pithoragarh was directed to get the plantation work done under the supervision of Sarpanch and Forest Range Officer of the concerned Forest Panchayat by providing the land of Forest Panchayat available for plantation around the mining lease area of soapstone approved by letter no.-470/30-Mining/2022-23 dated December 20, 2023 to the lessee/respondent no.-05.
During inspection, the representative of the Forest Department informed that the process of land selection is being done to make the forest panchayat land available to the leaseholder/respondent number-05 for plantation around the approved mining lease area. After the selection of land, plantation will be done. (Annexure-03)
2. In order to stop the debris disposed before mining by respondent no. 5; 14 wire walls were constructed at different levels in the shape of CD in the sloping terrain. Their average length was 3.60 m, width 0.70 m and height 1.30 m. As per the measures suggested by the committee, respondent no. 5 has constructed an additional wire mesh security wall on top of the previously constructed walls to prevent the debris from being disposed at the site. Its length is 39.00 m, width 1.30 m and height 1.50 m on an average. Apart from the above, as per the measures suggested earlier by the committee, the leaseholder/respondent no.-05 has constructed a protective wall at another place also to prevent the debris from falling on the sloping terrain, whose length is 35.00 m, width 1.40 m and height 1.50 m on an average. Thus, as per the geographical condition of the site, the wall constructed to prevent the disposed debris from falling on the sloping terrain seems appropriate. (Photograph Annexure-04) On the basis of the above facts found in the investigation, the respondent no. 05 M/s JD Minerals, Pro. Shri Rajendra Singh Dafauti, resident of B-54 Judge Farm, Chhoti Mukhani, Haldwani, District Nainital, has constructed a protective wall in the leased area to prevent the debris disposed of from earlier mining. And by planting trees in the forest panchayat area near the leased area, the planted trees will have to be protected and looked after."
Joint Committee Report dated 26.04.2024:
30. Further inspection was conducted by Joint Committee at the site of respondent 5 on 24.04.2024 to ensure compliance with recommendations 35 made by Joint Committee and it submitted report through DM Pithoragarh's letter filed vide e-mail dated 26.04.2024. The observations recorded by Joint Committee in Report dated 24.04.2024 are as under:
"1. िट्टािारक द्वारा ग्रार् बजेता, तहसील र्ुनस्यारी (तेजर्), जनिद धिथौरागढ़ अन्तगमत स्वीकृत सोिस्टोन खनन िट्टाक्षेत्र से बाहर 600 वगमर्ीटर क्षेत्र र्ें अवैि खनन धकये जाने िर उत्तराखण्ड (अवैि खनन, िररवहन एवं भण्डारण का धनवारण) धनयावर्ली-2021 र्ें उक्तल्लक्तखत प्राधविानों के अनुसार आदे श संख्या-र्ु०फौ०सं०-20/2023 धदनांक 25.04.2023 के द्वारा कुल ₹14,74,200.00 की धनरातश अतधरोतपत की गई थी। अतधरोतपत धनरातश को िट्टािारक श्री राजेन्द्र धसंह दफौटी द्वारा चालान संख्या- 08530423E0054654 धदनांक 29.04.2023 एवं चालान संख्या- 0863072E0025630 धदनांक 11.07.2023 से शासन के तनधातररत लेखाशीर्तक में जमा राजकोर् की जा चुकी है । धनरीक्षण के दौरान क्षेत्रान्तगमत खनन/अवैि खनन कायम नहीं िाया गया। (अनुलग्नक-02) खनन िट्टा क्षेत्र से बाहर अवैि खनन तथा अवैि िातन के सम्बि र्ें वन धवभाग द्वारा भारतीय वन अधिधनयर्-1927 की िारा-32, 33 प्रसूचना-04 रें ज के संख्या-14 धदनांक 15.03.2023 दजम करते हुए, प्रततवाची रांख्या-05 पर ₹3,21,748.00 की धनरातश अतधरोतपत की गई, तजसे प्रततवादी संख्या-05 द्वारा तदनांक 21.09.2023 को जमा राजकोर् तकया जा चुका है । (अनुलग्नक-03)
2. खनन से िूवम र्ें धनस्ताररत र्लवे को प्रधतवादी संख्या-05 द्वारा रोकने के धलये िूवम र्ें ढालदार भू-भाग र्ें सी़ीनुर्ा आकार के धवधभन्न स्तरों र्ें तारयुक्त 14 दीवारों का धनर्ामण धकया गया था, धजनकी औसतन लम्बाई 3.60 र्ी०, चौ़ाई 0.70 र्ी० एवं ऊाँचाई 1.30 र्ी0 िाई थी। सधर्धत्त द्वारा सुझाये गये उिायों के अनुरुि प्रधतवादी संख्या-05 द्वारा स्थल िर धनस्ताररत गलवे को रोकने के धलए िूवम धनधर्मत दीवारों के ऊिर 01 अधतररक्त जालीनुर्ा तारयुक्त सुरक्षा दीवार का धनर्ाम ण धकया गया है , धजसकी लम्बाई 39.00 र्ी०, चौडाई 1.30 र्ी० एवं ऊाँचाई 1.50 र्ी० औसतन िाई गई। उिरोक्त के अधतररक्त सधर्धत द्वारा िूवम र्ें सुझाये गये उिायों के अनुरुि िट्टािारक / प्रधतवादी संख्या-05 द्वारा एक अन्य स्थान िर भी र्लवे को ढालदार भू -भाग र्ें धगरने से रोकने हेतु सुरक्षा दीवार का धनर्ाम ण धकया गया है , धजसकी लम्बाई 35.00 र्ी०, चौडाई 1.40 र्ी० एवं ऊाँचाई 1.50 र्ी० औसतन िाई गई। इस प्रकार स्थल की िौगोतलक स्थस्थतत के अनुरुप तनस्ताररत मलवे को ढालदार िू -िाग में तगरने से रोकने हेतु तनतमतत दीवार उतचत प्रतीत होती है। (फोटोग्राफ अनुलग्नक-04)
3. खनन क्षेत्र के समीप वृक्षारोपण हेतु कायामलय प्रभागीय वनाधिकारी, धिथौरागढ़ वन प्रभाग, धिथौरागढ़ के ित्र संख्या-7174/9-2 धदनांक अप्रैल 25, 2024 के द्वारा प्रधतवादी संख्या-05/िट्टािारक श्री राजेन्द्र धसंह दफौटी, बी0-54, जज फार्म छोटी र्ुखानी हल्द्द्वानी, जनिद नैनीताल को ₹45,07,160.00 की मांग प्रेतर्त की गई है , जो पट्टाधारक द्वारा वततमान तक जमा नही ं तकया गया है। धनरीक्षण के दौरान खननिट्टा क्षेत्र के सर्ीि वृक्षारोिण नहीं िाया गया। (अनुलग्नक-05) 36
4. र्ा० रािरीय हररत प्राधिकरण के िूवम धनगमत आदे शों के अनुिालन र्ें िट्टा क्षेत्र ग्रार् बजेता, तहसील र्ुनस्यारी (तेजर्), जनिद धिथौरागढ़ क्षेत्रान्तगमत खनन / धनकासी कायम प्रधतबक्तित धकया गया है । धनरीक्षण के दौरान भी क्षेत्रान्तगमत खनन कायम बि िाया गया। (अनुलग्नक-06)"
English Translation by Tribunal:
1. A total amount of ₹ 14,74,200.00 was imposed vide order M.F.No.-
20/2023 dated 25.04.2023 as per the provisions mentioned in the Uttarakhand (Prevention of Illegal Mining, Transportation and Storage) Rules-2021 on illegal mining by the lessee in an area of 600 square meters outside the approved soapstone mining lease area under village Bajeta, Tehsil Munsiyari (Tejam), District Pithoragarh. The imposed amount has been deposited in the treasury in the prescribed account head of the government by the lessee Shri Rajendra Singh Dafauti through challan no.- 08530423E0054654 dated 29.04.2023 and challan no.- 0863072E0025630 dated 11.07.2023. During inspection, no mining/illegal mining work was found in the area. (Annexure-02) In relation to illegal mining and illegal felling outside the mining lease area, the Forest Department registered Section 32, 33 of the Indian Forest Act-1927, Notice-04 Range No. 14 dated 15.03.2023, and imposed a sum of ₹ 3,21,748.00 on respondent no.-05, which has been deposited in the treasury by respondent no.-05 on 21.09.2023. (Annexure-03)
2. In order to stop the debris disposed before mining by respondent no. 5; 14 wire walls were constructed at different levels in the shape of CD in the sloping terrain. Their average length was 3.60 m, width 0.70 m and height 1.30 m. As per the measures suggested by the committee, respondent no. 5 has constructed an additional wire mesh security wall on top of the previously constructed walls to prevent the debris from being disposed at the site. Its length is 39.00 m, width 1.30 m and height 1.50 m on an average. Apart from the above, as per the measures suggested earlier by the committee, the leaseholder/respondent no.-05 has constructed a protective wall at another place also to prevent the debris from falling on the sloping terrain, whose length is 35.00 m, width 1.40 m and height 1.50 m on an average. Thus, as per the geographical condition of the site, the wall constructed to prevent the disposed debris from falling on the sloping terrain seems appropriate. (Photograph Annexure-04)
3. For plantation near the mining area, a demand of ₹45,07,160.00 has been sent to respondent no.-05/leaseholder Shri Rajendra Singh Dafauti, B-54, Judge Farm Chhoti Mukhani Haldwani, 37 District Nainital vide letter no.-7174/9-2 dated 25th April, 2024 of the Office of Divisional Forest Officer, Pithoragarh Forest Division, Pithoragarh, which has not been deposited by the leaseholder till date. During inspection, plantation was not found near the mining lease area. (Annexure-05)
4. In compliance with the earlier orders of Hon'ble National Green Authority, mining/extraction work has been prohibited in the lease area of village Bajeta, Tehsil Munsiyari (Tejam), District Pithoragarh. During inspection, mining work was found closed in the area. (Annexure-06)"
31. Thereafter, compliance/Status Report dated 29.04.2024 has been submitted by respondent 5 stating as under:
RECOMMENDATIONS COMPLIANCES MADE BY THE
OF JOINT RESPONDENT NO.5
COMMITTEE IN ITS
REPORT DATED
03.05.2023 @Pg.
105
1. Action may be taken Action has been taken and a total penalty
against lease holder of Rs.14,74,200/- has been imposed by
according to conditions DM, Pithoragarh vide order dated mentioned in consent/ 25.04.2023. The said penalty has been NoC. deposited by the Respondent No.5 vide receipts dated 29.04.2023 & 11.07.2023. A copy of the receipts i.e. E-challan i.e. 29.04.2023 for Rs. 7,72,200 and dated 11.07.2023 for Rs. 7,00,000/- (Rupees Seven Lacs) are annexed @Pg. 241-242.
The Forest Department registered a case u/s 32 & 33 of Indian Forest Act on 15.03.2023 against the respondent No.5 for illegal felling of trees in the mining area and imposed a penalty of Rs.3,21,778/ upon the Respondent No.5. The Respondent No.5 deposited the said penalty on 18.03.2023 and 21.09.2023 for a sum of Rs. 1,05,000 and 2,16,778/- respectively.
A copy of the letter dated 21.09.2023 issued by the Forest Range Officer, Munsiyari is annexed @ Pg. 244.
2. Before starting The respondent No.5 has duly further mining activity constructed the retaining wall which 38 retaining wall should has been noted in the Joint Inspection be constructed to report dated 25.01.2024 @ Pg.503 and it retain over burden and has been categorically stated by the Joint for disposal of rain Committee that as per geographical water, suitable condition of the area the retaining wall arrangement should constructed by the respondent No.5 to be made so that the retain the over burden is sufficient. nearest water body Therefore, as a result of constructing and river Bhujgarh is retaining wall, it has been ensured that not affected. over burden and rain water from the mining area may not reach to the water body/ river.
3. For balancing the In July 2023, the respondent No.5 has environmental issues, carried out extensive plantation activity on an action plan may be the Van Panchayat land and unutilized prepared and land near the mining site in an area of plantation may be approx. 2 to 2.5 hectors by planting 1000 done in the unutilized trees. Further to this, the respondent No.5 land of revenue and also distributed plants to the villagers for Van panchaya plantation on their land which is in their use and control near the mining site.
Photographs of plantation are @Pg. 324 to 332 and 349 to 366.
Further, the respondent No.5 has also made an arrangement to ensure that the tree planted are protected. For this purpose the respondent No.5 has employed 2 persons namely:
1. Govind Pawar
2. Kuwar Singh Koranga For the plantation, as directed by this Hon'ble Tribunal and by the Joint Committee, the respondent No.5 had written a letter dated 22.11.2023, 20.01.2024 and 22.01.2024 to District Magistrate as well as DFO, Pithoragarh. A copy of letters dated 22.11.2023, 20.01.2024 and 22.01.2024 written by Respondent No.5 to District Magistrate and DFO, Pithoragarh are annexed as ANNEXURE: R5/15 (Colly) 39 On 20.12.2023, DM, Pithoragarh written a letter to DFO for providing the Van Panchayat land to the respondent No.5 for plantation. Copy of which is annexed @Pg.487.
However, instead of providing land, the DFO, Pithoragarh after a lapse of more than 3 months on 08.04.2024 wrote a letter to Respondent No.5 asking for deposit of Rs. 10.52 Lacs for plantation. A copy of letter dated 08.04.2024 written by DFO to Respondent No.5 is annexed as ANNEXURE: R5/16.
Again on 25.04.2024, DFO, Pithoragarh wrote another letter to the Respondent No.5 seeking deposit of Rs.45.07 lacs for plantation. A copy of letter dated 25.04.2024 written by DFO to Respondent No.5 is annexed as ANNEXURE: R5/17.
On 26.04.2024, the Respondent No.5 wrote a letter to DFO, Pithoragarh which was duly received in his office on 27.04.2024, requesting that as directed by DM, Pithoragarh in letter dated 20.12.2023 and as per EC condition No.2.18, instead of demanding Rs.45.07 Lacs which is about 67% of the project cost, kindly provide the Van-Panchayat land where the respondent no.5 may carry out plantation activity in the guidance of Forest Department. A copy of the letter dated 26.04.2024 written by Respondent No.5 to DFO, Pithoragarh is annexed as ANNEXURE: R5/18.
The Govt. has The Govt. has constituted special task force constituted special to ensure stoppage of any illegal mining in task force to ensure the entire state of Uttarakhand which has stoppage of any illegal become functional.
mining in the entire state of Uttarakhand which has become functional.
40
32. Tribunal's order dated 01.05.2024: Tribunal considered the material placed on record by the parties as noticed above.
33. DM Pithoragarh was present virtually and when enquired whether the violations pointed out by Joint Committee regarding damage to trees, construction of illegal road, throwing of waste on non-designated placed etc. have been remediated, she replied that remedial measures are yet to be taken by respondent 5.
34. Similarly, Divisional Forest Officer, Pithoragarh informed that the amount of compensatory afforestation of Rs.45,07,160/- has not been deposited by respondent 5.
35. In the circumstances, Tribunal permitted respondent 5 to submit its additional reply.
36. District Magistrate, Pithoragarh submitted its report vide e-mail dated 10.05.2024 stating as under:
"...प्रधतवादी संख्या-05/ िट्टािारक र्ै० जे०डी० धर्नरल्स प्रो० राजेन्द्र धसंह दफौटी, बी0-54 जज फार्म छोटी र्ुखानी हल्द्द्वानी, जनिद नैनीताल द्वारा ग्रार् बजेता, तहसील तेजर् जनिद धिथौरागढ़ अन्तगमत िट्टाक्षेत्र तक िहुाँच हेतु राज्य सरकार की िूतम पर तबना अनुमतत के काटी गई सड़क पर तजला खान अतधकारी, तपथौरागढ़ की चालानी आख्या के कम में प्रततवादी संख्या-05 / पट्टाधारक मै० जे०डी० तमनरल्स पर तनयमानुसार ₹7,78,800.00 की धनरातश अतधरोतपत की गई है तथा स़क कधटं ग एवं खनन से िूवम र्ें डाउलधहल धदशा र्ें धगराये गये र्लवे को खनन योजना के अनुसार धनिामररत डक्तम्पग याडम र्ें वैज्ञाधनक धवधि से धनस्ताररत धकये जाने हे तु धदनांक 08.05.2024 एवं धदनांक 10.05.2024 को धनदे धशत धकया गया है। (अनुलग्नक-01) इसके साथ ही र्ा० अधिकरण के आदे शानुसार प्रधतवादी संख्या-05 िट्टािारक र्ै० जे०डी० धर्नरल्स प्रो० राजेन्द्र धसंह दफौटी, बी0-54 जज फार्म छोटी र्ुखानी हल्द्द्वानी, जनिद नैनीताल को खनन िट्टा क्षेत्र के सर्ीि वन पंचायत की िूतम पर वृक्षारोपण हेतु प्रिागीय वनातधकारी, वन प्रिाग, तपथौरागढ़ के माध्यम से वन पंचायत बजेता में 20 है0 वृक्षतवतहन िूतम उपलब्ध कराते हए खनन योजना/ई०सी० की शतों के अनुरुप वृक्षारोपण कायत सुतनतित तकये जाने हेतु पत्र तदनांक 09.05.2024 को तनदे श तदये 41 गये हैं। (अनुलग्नक-02)"
English Translation by Tribunal:
"... a sum of ₹7,78,800.00 has been imposed on the defendant no.- 05/leaseholder M/s JD Minerals, Prof. Rajendra Singh Dafaoti, B-54 Judge Farm Chhoti Mukhani Haldwani, District Nainital, in accordance with the challan report of the District Mining Officer, Pithoragarh, on the road finalised (cut) without permission on the land of the State Government for access to the lease area under village Bajeta, Tehsil Tejam, District Pithoragarh, and instructions have been given on 08.05.2024 and 10.05.2024 to dispose of the debris dumped in the downhill direction before road cutting and mining in a scientific manner in the designated dumping yard as per the mining plan. (Annexure-01) Along with this, as per the order of the Hon'ble Tribunal, respondent no.-05 leaseholder M/s JD Minerals Prof. Rajendra Singh Dafauti, B-54 Judge Farm Chhoti Mukhani Haldwani, District Nainital has been directed to provide 20 hectares of treeless land in Van Panchayat Bajeta through Divisional Forest Officer, Forest Division, Pithoragarh for plantation on Van Panchayat land near the mining lease area and to ensure plantation work as per the conditions of mining plan/EC by letter dated 09.05.2024. (Annexure-
02)"
37. Respondent 5 vide e-mail dated 30.05.2024 submitted a Plantation Plan which provided that 18000 plants will be planted in the first year and next 3 years, it will be maintained. Other details of plantation are given in the Plan.
Reply filed by UKPCB dated 25.05.2024:
38. Reply dated 25.05.2024 has been filed by UKSPCB at the enquiry made by Tribunal vide order dated 13.05.2024 as to what action, it has taken for various violations on the part of respondent 5 with regard to imposition of environmental compensation and other action. 42
39. UKSPCB has stated that vide order dated 10.05.2024, it has imposed interim environmental compensation of Rs. 1.60 lakhs. Copy of the letter dated 10.05.2024 is at page 577.
40. On the Plantation Plan submitted by respondent 5, Divisional Forest Officer, Pithoragarh has submitted its reply dated 27.05.2024 pointing out several shortcomings therein as under:
"प्रस्तुत वृक्षारोिण योजना के अवलोकन करने िर धनम्न कधर्यां िाई गई हैं , धजनका धनराकरण धकया जाना धनतान्त आवश्यक है -
1. Project Proponent के Mining Plan के अनुसार 05 वर्ों में प्रततवर्त 60 पौधों का रोपण अथातत कुल 300 पौधों का रोपण तकया जाना प्रस्तातवत है , तजसको उक्त वृक्षारोपण योजना में सस्थितलत नही ं तकया गया है। अतः प्रस्तुत वृक्षारोिण योजना र्ें 300 अधतररक्त िौंिो का भी रोिण सक्तिधलत धकया जाए।
2. वृक्षारोपण योजना में तकसी िी प्रकार का अतग्रम मृदा कायत (Advance Soil Work) सस्थितलत नही ं तकया गया है। अधग्रर् र्ृदा कायम के अंतगमत वृक्षारोिण के घेरबा़, िौि रोिण हेतु गढ् ढे खुदान इत्याधद कायम भी धकये जाते हैं , धजससे वृक्षारोिण की सफलता सुधनधश्चत की जा सके। अतः वृक्षारोिण योजना र्ें अधग्रर् र्ृदा कायम को भी सक्तिधलत धकया जाए।
3. वृक्षारोिण योजना र्ें रोपण की जाने वाली प्रजाततयों का चयन स्थलानुसार उपयुक्त नही ं पाया गया है। उक्त प्रजाधतयों के स्थान िर बांज, बुरांश, तेजिात, आं वला, रीिा, दे वदार, अखरोि, िदर्, फल्ांट, हऱ आधद प्रजाधतयों का रोिण वृक्षारोिण योजना र्ें सक्तिधलत धकया जाना उधचत होगा।
4. एनवायरनमेंट क्लीयेरेंस (EC) में अतधरोतपत शतत के अनुसार Project Proponent द्वारा खनन स्थल के चारो ओर 5 मी० चौड़ाई में झातड़यों का रोपण तकया जाना है। अतः खनन स्थल के चारो ओर 5 मी० चौड़ाई में झातड़यों का रोपण िी वृक्षारोपण योजना में सस्थितलत तकया जाए।
5. एनवायरनर्ेंट क्लीयरें स (EC) र्ें अधिरोधित शतम के अनुसार कराये जाने वाले वृक्षारोिण का 03 वषों तक अनुरक्षण भी धकया जाना है , धजस हेतु वृक्षारोिण चौकीदार की व्यवस्था आधद को भी वृक्षारोिण योजना र्ें सक्तिधलत धकया जाना आवश्यक है ।"
English Translation by Tribunal:
"On reviewing the presented plantation plan, the following deficiencies have been found, which need to be resolved-
1. According to the Mining Plan of Project Proponent, it is proposed 43 to plant 60 saplings every year in 05 years, i.e. a total of 300 saplings, which has not been included in the said plantation plan. Hence, plantation of 300 additional saplings should also be included in the presented plantation plan.
2. No advance soil work of any kind has been included in the tree plantation plan. Under advance soil work, works including fencing of tree plantation, digging of pits for planting saplings etc. are also done so that the growth of tree plantation can be ensured. Therefore, advance soil work should also be included in the tree plantation plan.
3. The selection of species to be planted in the tree plantation scheme has not been found suitable as per the site. Instead of the above species, it would be appropriate to include species like oak, rhododendron, bay leaf, amla, reetha, deodar, walnut, padam, phalyant, myrobalan etc. in the tree plantation scheme.
4. As per the condition imposed in the Environment Clearance (EC), the Project Proponent has to plant bushes in a width of 5 meters around the mining site. Therefore, planting of bushes in a width of 5 meters around the mining site should also be included in the tree plantation plan.
5. As per the condition imposed in Environment Clearance (EC), the plantation has to be maintained for three years, for which arrangement of tree plantation watchman etc. is also required to be included in the tree plantation plan."
ARGUMENTS:
41. Case of applicant is that mining activities have been carried out by respondent 5 illegally and, therefore, it should be restrained from carrying out further mining activities.
42. Learned Counsel appearing for respondent 5, however, submitted that proponent has already been saddled liability of penalty by District Mining Authorities and Forest Authorities for carrying out mining activities beyond the mining lease area, illegal cutting of trees and it has also taken steps to comply other violations and now there is no violation at all, hence, 44 no further order is required to be passed in the matter and the application be disposed of accordingly.
ISSUES:
43. In the light of above facts and submissions, in our view, the issues required to be answered in this Original Application are, as under:
I. Whether respondent 5 has violated environmental laws, undertook illegal mining and caused damage to environment?
II. What are other violations of environmental laws and norms on the part of respondent 5 besides extraction of minerals from the area outside the mining lease area?
III. Whether respondent 5 is liable to pay environmental compensation and any other proceedings are required to be initiated against it?
IV. What appropriate order is required to be passed in this matter?
44. We propose to consider issues I and II together. ISSUES I and II:
45. Uttarakhand Government issued an order dated 12.10.2018 approving mining lease for 50 years to M/s. JD Minerals (proprietor Rajender Singh Dafoti) over an area of 17.967 hectares in village Bajeta, Tehsil Munsiyari (Tejam), District Pithoragarh. Admittedly the area where mining was permitted comes in geotectonic area and hence fragile in nature. Mining plan was approved by Directorate, Geology and Mining, Uttarakhand, Dehradun vide letter dated 24.07.2021 (page/113) permitting mining activities with semi-mechanised system without drilling 45 and blasting. The annual production approved vide letter dated 24.07.2021 was as under:
First Year - 9435 tonnes
Second Year - 11511 tonnes
Third Year - 13404 tonnes
Fourth Year - 15631 tonnes
Fifth Year - 16250 tonnes
46. There is nothing on record to show that Director, Geology and Mining considered at all whether mining in the geotectonic area would be safe, ecologically sustainable and would not damage environment.
47. EC was granted by SEIAA UK vide letter dated 12.08.2021 (page/115). SEIAA UK also did not consider impact of mining in fragile area of mountain which falls in geotectonic area.
48. Since after the initial approval of mining lease vide letter dated 12.10.2018, more than two and a half years have passed, therefor, vide OM dated 23.09.2021, State Government again sanctioned/approved 50 years' mining lease commencing from the date of registration of lease deed for extraction of soap stone. Lease deed was executed on 12.11.2021 (page/124). Lease deed contains details of 17.967 hectares lease land which shows that land forms part of cultivator's land, State Government' land and public utility land, as per the following details:
क्र० जोतदार के नार् दजम भूधर् राज्य सरकार की भूधर् सावमजधनक उियोग की भूधर् कुल योग (है ० सं० र्ें) श्रेणी 1 (क) श्रेणी 7 (क) श्रेणी 9 (ड) श्रेणी 10 (4) श्रेणी 10 (1) श्रेणी 10 (2) (है ० र्ें) (है ० र्ें) (है ० र्ें) (है ० र्ें) (है ० र्ें) (है ० र्ें) 1 13.685 1.353 0.168 2.422 0.078 0.283 17.967 46 English Translation by Tribunal:
Sr. Land registered in the Land belongs to State Land for Public Use Grand Total No. name of the farmer Government (in hectares) Category Category Category Category Category Category 1 (a) (in 7(a) (in 9 (D) (in 10 (4) (in 10 (1) (in 10 (2) (in hectares) hectares) hectares) hectares) hectares) hectares) 1 13.685 1.353 0.168 2.422 0.078 0.283 17.967
49. UKSPCB issued CTE vide letter dated 23.08.2021 (page/159). Later, a Consolidated Consent to Operate and Authorisation (hereinafter referred to as 'CCOA') was issued by UKSPCB by letter dated 26.11.2021. This CCOA was valid upto 31.03.2022. For the subsequent period upto 31.03.2027, another CCOA was issued by UKPCB on 31.03.2022 (page
151).
50. During the course of mining activities, proponent constructed 500 meters length of road on State Government's land. It also carried out mining activities beyond the lease area in 600 m2 i.e., 40 meters length and 15 meters width. Joint Committee's Report filed vide e-mail dated 23.05.2023 shows following violations on the part of respondent 5:
(i) mining of 600 m2 area beyond the mining lease area;
(ii) construction of 500 meters length and 4 meters wide road on Government land;
(iii) disposal of muck on the slope which affected Bhujgarh river, water bodies, gochar;
(iv) Waste generated during mining and construction of road was dumped on forest land measuring 20 meters length, 15 meters width and 50 meters length and 10 meters width.47
(v) Dumping of malba/muck in forest land caused damage to 40 trees of 0-10 cm radius and 30 trees of 10-20 cm radius and some trees of Chir with radius of 20-30 cm.
(vi) In total respondent 5 has damaged/cut 70 green and smaller trees and 10 big trees in forest land of 0.28 hectares.
51. The above violations have virtually been admitted by respondent 5 as is evident from the following:
(i) Forest Department levies the penalty of Rs. 321778 for illegal cutting of trees and the same has been deposited by respondent 5 vide receipts dated 18.03.2023 (Rs. 105000/-) and 21.09.2023 (Rs. 216778/-).
(ii) For mining carried out in the area outside mining lease area, mining authorities imposed penalty of Rs. 14,74,200/- which has been paid by respondent 5 vide receipts dated 29.04.2023 (Rs. 7,72,200/-) and 11.07.2023 (Rs.7,00,000/-).
(iii) For cutting of Government land and construction of road, District Mining Officer, Pithoragarh has issued a challan imposing penalty of Rs. 7,78,800/- as is mentioned in District Magistrate, Pithoragarh's report dated 10.05.2024. However, there is nothing on record to show that the said amount has been deposited by respondent 5.
(iv) As per EC condition i.e., condition no. 18 under the heading "conditions for operation phase", respondent 5 was required to plant 18000 trees in nearby Van Panchayat first and second year followed by their maintenance in the next three years. Further it was required to develop 5 meters wide dense plantation of 48 shrubs around the mining site but this condition has not been complied with by proponent.
52. The facts with regard to violations are uncontroverted and, therefore, Joint Committee Report to this effect is accepted.
53. It is stated on behalf of respondent 5 that it has constructed a retaining wall to ensure that over burden may not fall in the water body/river. Be that as it may, the fact remains that serious violations have been found on the part of respondent 5 in execution of the mining lease in question in respect whereof District Mining authorities have imposed penalty and Divisional Forest Officer has also levied penalty for illegal cutting of trees but till date, environmental compensation on account of damage caused to environment has neither been assessed nor computed nor levied upon respondent 5.
54. We answer issues I and II against respondent 5 and hold that it has violated various environmental norms and carried out mining activities by causing serious damage to environment by committing violations as noticed above.
ISSUE III:
55. Our attention has been drawn to UKSPCB's reply filed vide e-mail dated 25.05.2024 wherein an interim environmental compensation of Rs. 1,60,000/- has been demanded from respondent 5 but violations for which the said amount has been computed and the method of computation has not been disclosed. The quantum of interim compensation does not commensurate to the serious violations and extent of damage to environment. It does not consider all the relevant aspects necessary to be 49 taken into account for computation of environmental compensation. It is nobody's case that even this amount has been deposited by respondent 5. In these facts and circumstances, we are clearly of the view that considering serious violations/damages on the part of respondent 5 and by application of principle of 'Polluter Pays', respondent 5 is liable to pay environmental compensation and it is a fit case where this Tribunal must exercise its jurisdiction under Section 15 read with Section 20 of NGT Act, 2010 to compute and levy environmental compensation upon respondent
5.
56. When environment is damaged on account of act of anyone, on account of illegal activities which are in violation of environmental laws and norms, such violator is liable to share the cost which may be incurred for remediation and rejuvenation of damaged environment. Supreme Court on this aspect has categorically has said that the violator is liable to share cost which may be required for remediation of environment which is damaged on account of illegal activity of such violator. For this purpose, Supreme Court has recognized the principle of 'Polluter Pays'.
57. This Principle was recognized as part of environmental law in India in Indian Council for Enviro-Legal Action vs. Union of India, (1996) 3 SCC 212. Certain industries producing assets were dumping their waste. Even untreated waste water was allowed to flow freely polluting atmosphere and sub-terrain supply of water which ultimately caused darkening and dirtiness of wells and the streams water rendering it unfit for human consumption. Certain environmentalists' organizations broadly alleging severe damage to villager's health, filed a Writ petition as PIL in 1989 before Supreme Court. By that time, some of the units were already 50 closed. Referring to Article 48-A in Directive Principles of State Policy and 51-A in the Fundamental duties of citizens, Supreme Court observed that said provisions say that State shall endeavour to protect and improve environment and to safeguard the forest and wildlife of the country. One of the fundamental duties of citizens is to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creature. Where a Proponent has established its commercial unit and operate contrary to law flouting norms provided by law, Statutory Regulator is bound to act and if it fails, a judicial forum can direct it to act in accordance with law.
58. Referring to Oleum Gas leak case, i.e., M.C. Mehta vs. Union of India, (1987) 1 SCC 395, Court observed in para 58 that the constitution bench held that enterprise must be held strictly liable for causing such harm as a part of social cost of carrying on the hazardous or inherently dangerous activity. Hazardous or inherently harmful activities for private profits can be tolerated only on the condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of carrying on of such hazardous or inherently dangerous activity, regardless of whether it is carried on carefully or not.
59. Court also referred to its earlier decision in Indian Council for Enviro Legal action vs. Union of India, (1995) 3 SCC 77, wherein concerned Pollution Control Board identified about 22 industries responsible for causing pollution by discharge of their effluent and a direction was issued by Court observing that they were responsible to compensate the farmers. It was the duty of State Government to ensure 51 that this amount was recovered from the industries and paid to the farmers. In para 67 of the judgment, Court said that the question of liability of respondent units to defray the costs of remedial measures can also be looked into from another angle which has now come to be accepted universally as a sound principle, for example, 'Polluter Pays' principle. On this aspect, Court further observed as under:
"67. ...The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The 'Polluter Pays' principle was promoted by the Organization for Economic Co- operation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialized society. Since then, there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.
Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme ([1987] OJC 328/1) makes it clear that the cost of preventing and eliminating nuisances must in principle be borne by the polluter', and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventative action; the need for environmental damage to be rectified at source; and that the polluter should pay."
60. Court further said that according to the above principle of 52 'Polluter Pays', responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 of Environment (Protection) Act, 1986 empower Central Government to give directions and take measures for giving effect to this principle. Court further said:
"...In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment [Protection] Act, 1986. It is, of course, open to the Central Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit."
61. The above principle has been followed in Vellore Citizen Welfare Forum vs. Union of India, 1996 (5) SCC 647. In para 25, direction no. 2 reads as under:
2. The authority so constituted by the Central Government shall implement the "precautionary principle" and the "polluter pays"
principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.
62. In Bittu Sehgal and Another vs Union of India & Others, (2001) 9 SCC 181, referring the earlier judgments, Supreme Court has said that 'Precautionary Principle' and 'Polluter Pays Principle' have been accepted as part of the law of the land.
63. In Research Foundation for Science vs. Union of India & Ors., (2005) 13 SCC 186, in para 26 and 29, Court, on 'Polluter Pays' Principle, 53 has said as under:
"26. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter-pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation.
29. The polluter-pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case."
64. In Karnataka Industrial Areas Development Board vs. C. Kenchappa & Others, (2006) 6 SCC 371, principle of 'Polluter Pays' has been explained in detail referring to the earlier judgments in Indian Council for Enviro-Legal Action vs. Union of India (supra) and Vellore Citizen Welfare Forum (supra).
65. Even this Tribunal under Section 20 of NGT Act 2010 has been empowered to decide matters by applying the principle of 'sustainable development', 'precautionary principle' and principle of 'Polluter Pays'.
66. Now the question is what should be environmental compensation which should be imposed by respondent 5.
67. In this regard, no specific provision has been made in NGT Act, 2010 and the rules framed thereunder laying down the mode and manner the 54 computation of environmental compensation. A general guideline is given that environmental compensation can be assessed by this Tribunal by application of principle of 'Polluter Pays'.
Methodology for Computation of Environmental Compensation:
68. The question of assessment of environmental compensation includes the principles/factors/aspects, necessary to be considered for computing/assessing/determining environmental compensation. Besides judicial precedents, we find little assistance from Statute. Section 15 of NGT Act, 2010 talks of relief of compensation and restitution. It confers wide powers on this Tribunal to grant relief by awarding compensation for the loss suffered by individual(s) and/or for damage caused to environment. Section 15 reads as under:
"15. Relief, compensation and restitution-(1) The Tribunal may, by an order, provide-
a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
b) for restitution of property damaged;
c) for restitution of the environment for such area or areas, as
the Tribunal may think fit.
(2) The relief and Compensation and restitution of property and environment referred to in clauses (a), (6) and (c) of sub-section of (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose:55
Provided that the Tribunal may, if it is satisfied that the' applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may, be, compensation or relief received from, any other Court or authority."
69. Sub-section 1 of Section 15 enables Tribunal to make an order providing relief and compensation to (i) the victims of pollution, (ii) other environmental damage arising under the enactments specified in the Schedule I.
70. Tribunal is also conferred power to pass an order providing relief for restitution of property damaged. Section 15(1)(c) enables Tribunal to pass an order providing relief for restitution of the environment for such area or areas, as Tribunal may think fit. Section 15 sub-section 4 says that Tribunal may divide compensation or relief payable under separate heads specified in Schedules II, having regard to the damage to public health, property and environment so as to provide compensation or relief, (i) to the claimants and (ii) for restitution of the damaged property or environment, as it may think fit.
71. Schedule II of NGT Act, 2010 gives a list of heads under which compensation or relief for damage may be granted. It has 14 heads in total out of which items (a) to (f), (l), (m) and (n) relate to loss, damage etc. sustained to the person or individual or their property. Items (i) to (k) relate 56 to harm, damage, destruction etc. of environment or environmental system including soil, air, water, land, and eco-system. Items (i) to (k) of Schedule II of NGT Act, 2010 are as under:
"(i) Claims on account of any harm, damage or destruction to the fauna including milch and draught animals and aquatic fauna;
(j) Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards;
(k) Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-systems;"
72. Items (g) and (h) relate to expense and cost incurred by State in providing relief to affected person; and loss caused in connection with activity causing damage.
73. The damage to environment covers a very wide variety of nature as is evident from definition of 'Environment' under Section 2(c) which is inclusive and says; 'environment includes water, air, and land and the interrelationship, which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property'.
74. Even Rules framed under NGT Act, 2010 are silent on this aspect. Issue of determination of environmental compensation is significant in the sense that it should be proportionate to or bears a reasonable nexus with the environmental damage and its remediation/restoration. Similarly in case of compensation to be determined for a victim, it needs to co-relate to injury caused or damage suffered by such person as also cost incurred for treatment/remediation. Computation of environmental compensation may 57 involve some degree of subjectivity but broadly it must be based on objective considerations as it saddles financial liability upon the violator.
75. Taking into consideration multifarious situations relating to violation of environmental laws vis-a-vis different proponents, nature of cases involving violation of environmental laws can be categorized as under:
(i) Where Project/Activities are carried out without obtaining requisite statutory permissions/consents/clearances/NOC etc., affecting environment and ecology. For example, Environmental Clearance under Environment Impact Assessment Notification dated 14.09.2006; Consent under Water Act, 1974 and Air Act, 1981; Authorisation under Solid Waste Management Rules, 2016 and other Rules; NOC for extraction and use of ground water, wherever applicable, and similar requirements under other statutes.
(ii) Where proponents have violated conditions imposed under statutory Permissions, Consents, Clearances, NOC etc. affecting environment and ecology.
(iii) Where Proponents have carried out their activities causing damage to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc.
76. The above categories are further sub-divided, i.e., where the polluters/violators are corporate bodies/organizations/associations and 58 group of the people, in contradistinction, to individuals; and another category, the individuals themselves responsible for such pollution.
77. Further category among above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc.
78. The next relevant aspect is, whether damage to environment is irreversible, permanent or is capable of wholly or partial restoration/remediation/rejuvenation.
79. Determination/computation/assessment of environmental restoration/remediation/rejuvenation should also take care of damage caused to the environment, to the community, if any, and should also be preventive, deterrent and to some extent, must have an element of "being punitive". The idea is not only for restoration/remediation or to mitigate damage/loss to environment, but also to discourage people/proponents from indulging in the activities or carrying out their affairs in such a manner so as to cause damage/loss to environment.
80. To impose appropriate 'environmental compensation' for causing harm to environment, besides other relevant factors as pointed out, one has to understand the kind and nature of 'Harmness cost'. This includes risk assessment. The concept of risk assessment will include human- health risk assessment and ecological risk assessment. U.S. Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people. For the purpose of human- health risk assessment, it comprised of three broad steps, namely, planning and problem formulation; effects and exposure assessment and 59 risk categorization. The first part involves participation of stakeholders and others to get input; in the second aspect health effect of hazardous substances as well as likelihood and level of exposure to the pollutant are examined and the third step involves integration of effects and exposure assessment to determine risk.
81. Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities. Here also we can find answer following three major steps, i.e., problem codification; analysis of exposure and risk characterization. First part encompasses identification of risk and what needs to be protected. Second step insists upon crystallization of factors that are exposed, degree to exposure and further comprised of two components, i.e., risk assessment and risk description.
82. In totality, problem is multi-fold and multi-angular. Solution is not straight but involves various shades and nuances and vary from case to case. Even Internationally, there is no thumb-rule to make assessment of damage and loss caused to environment due to activities carried out individually or collectively by the people, and for remediation/restoration. Different considerations are applicable and have been applied. As the term suggest, compensation means a return for loss or damage sustained. Therefore, it must always be just and not based on a whim or capricious.
83. In India, where commercial activities were carried out without obtaining statutory permissions/consents/clearance/NOC, Courts have determined, in some matters, compensation by fixing certain percentage of cost of project. In some cases, volume of business transactions, turnover, magnitude of establishment of proponent have also been 60 considered as guiding factors to determine environmental compensation. In some cases, a lump sum amount has been imposed.
84. In an article, 'the cost of pollution-Environmental Economics' by Linas Cekanavicius, 2011, it has been suggested, where commercial activities have been carried out without consent etc., and pollution standards have been violated, Total Pollution Cost (hereinafter referred to as 'TPC') can be applied. It combines the cost of abatement of environmental pollution and cost of pollution induced environmental damage. The formula comes to TPC(z)=AC(z)+ED(z), where z denotes the pollution level. Further, clean- up cost/remediation cost of pollution estimated to be incurred by authorities can also be used to determine environmental compensation.
85. When there is collective violation, sometimes the issue arose about apportionment of cost. Where more than one violator is indulged, apportionment may not be equal since user's respective capacity to produce waste, contribution of different categories to overall costs etc. would be relevant. The element of economic benefit to company resulting from violation is also an important aspect to be considered, otherwise observations of Supreme Court that the amount of environmental compensation must be deterrent, will become obliterated. Article 14 of the Constitution says that unequal cannot be treated equally, and this principle must also be given due consideration and be taken care.
86. Determination/assessment/computation of environmental compensation cannot be arbitrary. It must be founded on some objective and intelligible considerations and criteria. Simultaneously, Supreme Court also said that its calculations must be based on a principle which is simple and can be applied easily. In other words, it can be said that 61 wherever Court finds it appropriate, expert's assessment can be sought but sometimes experts also go by their own convictions and belief and fail to take into account judicial precedents which have advanced cause of environment by applying the principles of 'Sustainable Development', 'Precautionary Approach' and 'Polluter Pays', etc. In such circumstances, it is the ultimate responsibility of Court's to assess and compute environmental compensation, rationally.
87. Clean-up cost or TPC, may be a relevant factor to evaluate damage, but in the diverse conditions as available in this Country, no single factor or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to polluter/violator and though there is some element of subjectivity but broadly assessment/computation must be founded on objective considerations. Appropriate compensation must be determined to cover not only the aspect of violation of law on the part of polluter/violator but also damage to the environment, its remediation/restoration, loss to the community at large and other relevant factors like deterrence, element of penalty etc.
88. This Tribunal vide order dated 31.08.2018 passed in OA 593/2017, Paryavaran Suraksha Samiti and another vs. Union of India and others observed that "CPCB may also assess and recover compensation for damage to the environment and said fund may be kept in a separate account and utilized in terms of an action plan for protection of the environment".
89. Pursuant thereto, CPCB published a Report on 15.07.2019 suggesting methodology for assessment of environmental compensation which may be levied or imposed upon industrial establishments who are 62 guilty of violation of environmental laws and have caused damage/degradation/loss to environment. The above Guidelines do not encompass individuals, statutory institutions and Government etc. Since in the present case, we are concerned with an individual stone crusher, therefore, we are not going into the details of the said Guidelines as the same have no application to the present case.
90. In some cases, compensation has been awarded by Tribunal on lump sum basis without referring to any methodology. For example: (i) in Ajay Kumar Negi vs. Union of India, OA No. 183/2013, Rs.5 Crores was imposed. (ii) In Naim Shariff vs. M/s Das Offshore, Original Application no. 15(THC) of 2016, Rs.25 Crores was imposed (iii) Hazira Macchimar Samiti vs. Union of India, Rs.25 Crores was imposed.
91. In Goa Foundation vs. Union of India & Others (supra), Supreme Court relied on Samaj Parivartana Samudaya & Others vs. State of Karnataka & Others, (2013) 8 SCC 209 and held that 10% of the sale price of iron ore during e-auction should be taken as compensation. To arrive at the above view, Court observed that this was an appropriate compensation given that mining could not completely stopped due to its contribution towards employment and revenue generation for the State. Further, Court directed to create a special purpose vehicle, i.e., "Goan Iron Ore Permanent Fund" for depositing above directed compensation and utilization of above fund for remediation of damage to environment.
92. In Goel Ganga Developers vs. Union of India and Others, (2018) 18 SCC 257, Tribunal imposed Rs.195 Crores compensation since construction project was executed without EC. Supreme Court made it Rs.100 Crores or 10% of project cost whichever is higher. Supreme 63 Court also upheld Rs.5 Crores imposed by Tribunal vide order dated 27.09.2016. Thus, total amount exceeded even 10% of project cost.
93. In Mantri Techzone Private Limited vs. Forward Foundation & Others, (2019) 18 SCC 494, Supreme Court affirmed imposition of environmental compensation by Tribunal, considering cost of the project, where there was violation regarding EC/consent and proponent proceeded with construction activities violating provisions relating to EC/Consent. Tribunal determined environmental compensation at 5% and 3% of project cost of two builders. 5% of project cost was imposed where project proponent had raised illegal constructions while 3% was imposed where actual construction activity was not undertaken by project proponent and only preparatory steps were taken including excavation and deposition of huge earth by creating a hillock. Besides, Tribunal also directed for demolition and removal of debris from natural drain at the cost of project proponent.
94. On the issue of assessment of compensation for damage to environment in the matter of illegal mining, recently Supreme Court in Bajri Lease LOI holders Welfare Society vs. State of Rajasthan and others, SLP (Civil) No. 10584 of 2019 (order dated 11.11.2021) has said that compensation/penalty to be paid by those indulging in illegal sand mining cannot be restricted to be value of illegally mined minerals. The cost of restoration of environment as well as the cost of ecological services should be part of compensation. 'Polluter Pays' principle as interpreted by this Court means that absolute liability for harm to the environment extends not only to compensate victims of pollution but also cost of restoring environmental degradation. Remediation of damaged environment is part of the process of "sustainable development" and as 64 such the polluter is liable to pay the cost the individual sufferers as well as the cost of reversing the damaged ecology.
95. Recently, in respect of pollution of River Yamuna due to violations caused by Nagar Nigam, Agra and Nagar Nigam, Mathura-Vrindavan in OA 840/2022, Sanjay Kulshresthra vs. Government of Uttar Pradesh & Ors. and OA 773/2022, Rajesh Pareek vs. Government of Uttar Pradesh & Ors. passed on 24.04.2024, this Tribunal has computed environmental compensation by applying the rate of compensation at Rs. 0.01 per MLD since that was a case of discharge of untreated sewage in River Yamuna.
96. As we have already discussed, in Goa Foundation vs. Union of India & Others (supra), Supreme Court has said, where environment is damaged due to illegal mining, environmental compensation is payable at the rate upto 10% of the sale price of the mineral illegally extracted/disposed and this dictum appropriately apply in this matter.
97. However, neither respondent 5 has disclosed sale price of the mineral i.e., soap stone nor UKSPCB or mining authorities have thrown any light on this aspect. Further with regard to quantity of mineral illegally extracted by respondent 5 by carrying out mining activities outside the mining lease area, nothing has been stated by any of the parties. Respondent 5, though, has said that it could carry out mining activities only for a short period of about 04 and a half months i.e., October 2022 to first week of February 2023 but in respect of the quantity of mineral extracted from the outside mining area, no reliable material has been placed on record.
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98. District Magistrate in its order dated 25.04.2023 (page/444) while computing penalty for extraction of mineral from the area outside the mining lease area has computed quantity of mineral extracted as 1638 tonnes. Rate of royalty on soap stone mineral as per the above letter is 450 per tonne but the sale price of soap stone is not mentioned therein.
99. Joint Committee's Report submitted vide e-mail dated 07.12.2023 contains annexure 3 which is copy of e-ravanna issued to respondent 5 in respect of the mineral extracted from the lease area and quantity mentioned therein is 3237.76 tonnes i.e., 3238 tonnes. Annexure 3 shows the sale price of the mineral at Rs. 500/- per quintal i.e., Rs. 5000/- per tonne.
100. We accordingly find it appropriate to compute environmental compensation at the rate of 5% of Rs. 5000/- per tonnes, and it is computed on the total quantity of 1638 tonnes (quantity taken by District Magistrate which has not been disputed by respondent 5), as under:
1638 tonnes × Rs.5000 per tonne × 5% = Rs.4,09,500/-.
101. This is the environmental compensation for damage caused to environment due to illegal mining.
102. For other violations i.e., illegal felling of trees in forest area and thereby causing damage to environment, cutting of Government land for construction of road and thereby, causing damage to environment, non- compliance of condition of plantation as per EC conditions etc., we find it appropriate to impose environmental compensation at 1% of the entire quantity of mining i.e., 3238 + 1638 = 4876 tonnes and computation is as under:
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4876 tonnes × Rs.5000 per tonne × 1% = Rs.2,43,800/-.
103. We also direct that till all the conditions of EC and consent are complied with by respondent 5, and aforesaid amount of environmental compensation is paid, no mining activities shall be allowed to be carried out by respondent 5.
104. Total amount of environmental compensation as directed above i.e., Rs. 6,53,300/- (Rs.4,09,500/- + Rs.2,43,800/-) shall be deposited by respondent 5 within two months failing which UKSPCB and District Magistrate, Pithoragarh i.e., respondents 2 and 4 shall take steps for recovery of the said amount by taking coercive steps against respondent
5.
105. The amount of environmental compensation after realisation shall be spent for remediation of the environment in the area concerned in accordance with the restoration plan which shall be prepared by a Joint Committee comprising CPCB, UKSPCB and District Magistrate, Pithoragarh which shall be prepared within two months after realisation of the amount of environmental compensation and executed within next three months thereafter.
106. Compliance/Status report of the above directions shall be submitted by UKSPCB and District Magistrate, Pithoragarh by 15.02.2025.
107. Issue III is answered accordingly.
ISSUE IV:
108. Now the question is what appropriate order need be passed in this matter. We have already answered Issue III by directing for payment of 67 environmental compensation by application of principle of 'Polluter Pays' and following the principle laid down in Section 20 of NGT Act, 2010 besides the principle of 'Polluter Pays' recognised by Supreme Court in catena of authorities discussed above.
109. Violation of environmental laws including EP Act, 1986, Water Act, 1974 and Air Act, 1981 also is an offence under the provisions of the said enactments. Therefore, wherever there is violation of such a serious nature, Statutory Regulator is under an obligation to initiate prosecution against the violator. However, in the present case, no such action has been taken and a very lenient attitude has been shown towards the violator in the present case. UKSPCB, therefore, must take appropriate action with regard to prosecution against the violator for past violations.
110. We also find that in geo-tectonic area i.e., fragile area ecologically, mining activities must not be allowed without proper study of seismic impact on the ecology and environment else the consequences will be very serious.
111. In the present case, District Magistrate, Pithoragarh in a mechanical manner has permitted mining activities and EC has also been granted by SEIAA UK without application of mind as to whether in geo-tectonic sensitive area without seismic study whether mining activities will be probable or feasible or environmentally sustainable or not.
112. In these facts and circumstances, we direct UKSPCB, SEIAA UK, Principal Secretary, Forest, Environment and Climate Change, Uttarakhand, Dehradun and Principal Secretary, Mining to ensure that no mining activities shall be allowed in such area which comes within geo- 68 tectonic zones like Himalayan Mountain System, Indo-Gangetic Plains, and Peninsular Plateau unless a proper study on ecological and environmental sustainability in such area is conducted by an experts committee comprising of seismology experts from reputed and recognised institutions and in the light of their observations and recommendation, appropriate decision is taken by SEIAA UK.
113. In respect to the existing mining continuing in the State of Uttarakhand in areas which falls in geo-tectonic zones, all such mining activities shall be reviewed/revisited within next 04 months by getting study as directed above conducted through experts committee and thereafter only, the mining activities, if permitted, with or without precautionary conditions, shall be allowed. This exercise shall be completed by 15.03.2025 and all existing mining activities shall be revisited by the concerned mining authorities accordingly.
114. The study of geo-tectonic zones by seismology experts before allowing any mining activities shall be a condition applied PAN India and for this purpose, we direct communication of this order to MoEF&CC, all Chief Secretaries of different States and Union Territories as also SEIAAs of all the concerned States/Union Territories.
115. Issue IV is answered accordingly.
116. With the above directions, this OA is disposed of.
117. Pending IA also stands disposed of.
118. Copy be forwarded to MoEF&CC, all Chief Secretaries of different States and Union Territories as also SEIAAs of all the concerned States/Union Territories to apply it PAN India and UKSPCB; SEIAA UK; 69 Principal Secretary, Forest, Environment and Climate Change, Uttarakhand, Dehradun; and Principal Secretary, Mining for information and compliance.
SUDHIR AGARWAL, JUDICIAL MEMBER DR. AFROZ AHMAD, EXPERT MEMBER November 08, 2024 Original Application No.78/2023 R 70