National Green Tribunal
Rural Organisation For Social ... vs State Of Odisha on 19 October, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
Original Application No.46/2023/EZ
(I.A. No.25/2023/EZ & I.A. No.33/2023/EZ)
IN THE MATTER OF:
Rural Organisation for Social Empowerment (ROSE),
Represented by its Secretary Mr. Kalakar Barik,
S/o Late Sukhadev Barik,
R/o Sukadeipur, P.O.-Sribantapur,
P.S.-Kuakhia, District-Jajpur, Odisha,
Pin - 755015,
.... Applicant(s)
Versus
1. State of Odisha,
Through Secretary, Revenue and Disaster Management,
Secretariat Building, Bhubaneswar,
Khurda - 751001,
2. Union of India,
Through Secretary, Ministry of Environment, Forest and
Climate Change,
Jor Bagh Road, Aliganj, New Delhi,
Pin - 110003,
3. Chairman,
State Environment Impact Assessment Authority (SEIAA),
Bhubaneswar, District-Khurda,
Pin - 751022,
4. Odisha State Pollution Control board,
Through its Chairman,
Nilakantha Nagar, Bhubaneswar,
Pin - 751012,
5. Collector, Dhenkanal,
At/PO: Dhenkanal,
Pin - 759001,
6. Tahasildar, Gondia,
At/PO-Gondia, District-Dhenkanal, Odisha,
Pin - 759016,
1
7. Director, Vigilance Directorate,
Vigilance Directorate, Nuapatna, Cuttack,
Pin - 753001,
8. Odisha Power Transmission Corporation Limited,
Through its Chairman-cum-Managing Director,
Janpath, Bhubaneswar, District-Khurda, Odisha,
Pin - 751022,
9. M/s Jagabandhu Enterprises Pvt. Ltd.,
Through its Managing Director,
Sri Jagabandhu Muduli,
Plot No.-35/B, Sector-A,
Mancheswar Industrial Estate, Bhubaneswar,
Pin - 751010,
.... Respondent(s)
COUNSEL FOR APPELLANT(S):
Mr. Subir Palit, Sr. Advocate a/w Mr. Abhishek Kejiriwal,
Advocate
COUNSEL FOR RESPONDENT(S):
Mr. Soubhgya Ketan Nayak, AGA for State Respondents,
Mr. Apurba Ghosh, Advocate for R-3,
Mr. Dipanjan Ghosh, Advocate for R-4,
Mr. Prithwish Basu, Advocate for R-5,
Mr. Sankar Prasad Pani, Advocate for R-9
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE DR. ARUN KUMAR VERMA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- October 10th, 2023 Pronounce On:- October 19th, 2023 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes 2 JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. The allegation of the Applicant in this Original Application is that the Respondent No.9, M/s Jagabandhu Enterprisers Pvt. Ltd., is operating the Nilaprasad Road Metal Quarry Nos. V & VI on a temporary permit for 5,000 cum issued on 10.10.2022 by the Odisha Power Transmission Corporation Limited ('OPTCL' for short), Respondent No.8.
3. It is alleged that the Respondent No.9 was granted a tender vide letter dated 16.08.2014 which was completed on 31.07.2021 and valid upto 29.12.2021 and thereafter the said Respondent has obtained fresh temporary permit for 5,000 cum on the basis of another alleged contract granted by the OPTCL, Respondent No.8, vide letter dated 29.12.2021 as stated in para 4.2 of the Original Application.
4. It is further stated that the Applicant made RTI enquiry on which it was informed that no such letter dated 29.12.2021 for grant of quarry permit was issued in favour of Respondent No.9.
5. The contention the Applicant is that under the Odisha Minor Mineral Concession Rules, 2016, (hereinafter referred to as 'the OMMC Rules, 2016'), a temporary permit for quarry can be granted 3 under Rule 34 for three months, only to State Agencies or Project Proponents for public purposes. It is stated that Explanation-I to Rule 34 of the OMMC Rules, 2016, defines 'State Agencies' to mean any Department of the State or Central Government or Company or Corporation under the control of the State or Central Government and shall include any Government Organization as defined in sub- rule (3) of Rule 39.
6. It is further stated that Explanation-II to Rule 34 of the OMMC Rules, 2016, defines 'Project Proponent for public purposes' to mean any person or firm or company executing any Government project and shall include schematic beneficiaries under Government scheme like - IAY, RAY etc.
7. Rule 34 of the OMMC Rules, 2016, reads as under:-
"CHAPTER - V GRANT OF QUARRY PERMITS
34. Application for quarry permit:-- An application for grant of quarry permit shall be made to the Competent Authority in Form-Q and shall be accompanied by:-
(a) treasury challan showing deposit of rupees two hundred (non-refundable) towards application fee;
(b) description of the land shown in a plan from which the mineral is to be extracted and removed;
(c) consent of the owners of the land, if a private land permitting diversion of his land for extraction of minor mineral is proposed to be removed; and
(d) an undertaking by the applicant to the effect that he agrees to abide by the conditions governing extraction and removal of minor minerals under a quarry permit:4
Provided that no quarry permit shall be granted to anybody other than the State Agencies or Project Proponents for public purposes.
Explanation I.-"State Agency" shall mean any Department of the State or Central Government or company or corporation under the control of the State or Central Government and shall include any Government organization as defined in sub-rule (3) of rule 39.
Explanation II. - "Project Proponent for public purposes"
shall mean any person or firm or company executing any Government project and shall include schematic beneficiaries under Government scheme like IAY, RAY etc."
8. The contention of the Applicant further is that the Respondent No.9 does not come either under Explanation-I or Explanation-II to the Rule 34 of the OMMC Rules, 2016 and, therefore, has been carrying on illegal quarrying of stones/road metal.
9. It is also stated that the Respondent No.9 is operating under a permit dated 10.10.2022 (Annexure-A/1(A) to the Original Application), which is stated to be valid upto 09.01.2023. The said document clearly states that 'the permit shall be valid for 3 (three) months' from 11.10.2022 to 09.01.2023'. Therefore, this is in violation of the specific conditions given in Rule 34 of the OMMC Rules, 2016.
10. At the time of admission, the Tribunal constituted a Committee comprising of the following Members:-
a) Senior Scientist from Odisha State Pollution Control Board;5
b) Senior Scientist from the SEIAA, Odisha;
c) Senior Scientist from the Ministry of Environment, Forests and Climate Change, Integrated Regional Office, Bhubaneswar; and
d) Collector, Dhenkanal, or his nominee (not below the rank of Additional District Magistrate),
11. The Committee was directed to visit and inspect the site in question and submit its Report within four weeks with regard to the allegations made in the Original Application and if the allegations are confirmed, the Committee was directed to compute Environmental Compensation against the Respondent No.9, after giving him due notice and an opportunity of being heard.
12. The Office of the Collector, Dhenkanal, was directed to be the Nodal Office for all logistic purposes and for filing the Report of the Joint Committee on affidavit.
13. Mr. Subir Palit, learned Senior Counsel for the Applicant submitted that the quarry permit dated 10.10.2022 granted by the OPTCL has been obtained by the Respondent No.9 by practicing fraud upon the State Authorities and that fraud vitiates every act and transaction and, therefore, the Respondent No.9 would be held liable for violation of environmental norms and the OMMC Rules, 2016.
14. Learned Senior Counsel further submitted that quarry permit dated 10.10.2022 was granted for excavation of 5,000 cum of stone but the Respondent No.9 has excavated more than 2,00,000 cum of road metal.
6
15. It is further submitted by the learned Senior Counsel that the mine is located within 200 meters of the gas pipeline set-up by the Gas Authority of India Limited ('GAIL' for short) but no permission has been taken from the GAIL, since blasting would be required for mining activities to such extent of 5,000 cum or 2,00,000 cum of road metal as actually excavated by the Respondent No.9.
16. I.A. No.33/2023/EZ: This I.A. has been filed by the Respondent No.9 raising a preliminary objection that the Applicant is seeking quashing of the illegal quarry permit dated 10.10.2022 whereas the said permit was granted only for three months and that period of three months has already been expired and, therefore, the Environmental Clearance granted for the said permit being coterminous with the contract and, therefore, the present Original Application is not maintainable.
17. A further plea has been taken by the Respondent No.9 that the order of the Tahasildar dated 10.10.2022 granting permit, if at all illegal, is appealable at the behest of the complainant under Rule 46 of the OMMC Rules, 2016, and on that ground also the present Original Application is not maintainable.
18. Since consideration and decision with regard maintainability of the present Original Application would itself require consideration of the entire controversy in the present Original Application and other issues, therefore, we are taking up the Original Application itself for consideration. 7
19. The record shows that tender was granted to Respondent No.9 vide letter dated 16.08.2014 and this fact has also been admitted by the Collector, Dhenkanal, in his affidavit dated 14.08.2023 and has also not been disputed by the Respondent No.9 in his affidavit. This contract, it is stated that, was completed on 31.07.2021 as would be clear from the letter of the Chief General Manager (CPC), OPTCL, being letter No. Sr.G.M-CPC-e-Tender-Agarpada(Pkg-25-
03)/56/2013/1018 (12) dated 29.12.2021. This letter under the heading 'Completion Period' mentions that 'completion period of the project is hereby extended up to 31.07.2021 to regularize the pending bills and procurement of materials for return to EHT (C) Division, Jaypore & without imposition of LD & without any financial burden to OPTCL'.
20. The contention of the Applicant is that after 31.07.2021 the quarry permit has not been extended and any operation of Respondent No.9 after 31.07.2021 for mining of stone/road metal is absolutely illegal.
21. It is further alleged that the quarry permit dated 10.10.2022 was granted to the Respondent No.9 on the basis of a letter dated 29.12.2021 purporting to have been issued by the OPTCL to show that the permit has been extended till 31.07.2023. This permit order has been filed at page no.30 of the paper book and its letter number is Sr. G.M - CPC-e-Tender-Agarpada (Pkg - 25-03)/ 56/ 2013/ 1014 (12) also dated 29.12.2021.
8
22. Mr. Subir Palit, learned Senior Counsel submitted that the first permit letter dated 29.12.2021 showed that the project has been extended upto 31.07.2021 "only to regularize pending bills and procurement of materials" and, therefore, there could not have been any letter of the same date i.e., 29.12.2021, "extending the completion period of project upto 31.07.2023" and, therefore, the letter No. Sr.G.M-CPC-e- Tender- Agarpada (Pkg-25-03)/ 56/ 2013/ 1014(12) dated 29.12.2021 is a forged document and under this letter impugned quarry permit is shown to have been extended upto 31.07.2023. Learned Senior Counsel, therefore, submits that since fraud vitiates every act, any quarrying under a fraudulent letter would render the Respondent No.9 liable for prosecution as well as payment of Environmental Compensation.
23. Reliance has been placed on the judgment of the Hon'ble Supreme Court in (1994) 1 SCC 1; (A.P. Chengal Varaya Naidu Vs. Jagannath). Para 6 of the judgment reads as under:-
"6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss...................."
24. In (2005) 7 SCC 605; (Bhaurao Dagdu Paralkar Vs. State of Maharashtra & Ors.), in paras 9, 10 & 11, the Hon'ble Supreme Court held as under:-
"9. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself 9 or from ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
(Vimla (Dr.) Vs. Delhi Admn. 1) and (Indian Bank Vs. Satyam Fibres (India) (P) Ltd. 2
10. A "fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (S.P. Chengalvaraya Naidu Vs. Jagannath) 3"
11. "Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights 1 1963 Supp (2) SCR 585: AIR 1963 SC 1572 2 (1996) 5 SCC 550 3 (1994) 1 SCC 1 10 of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.
(Ram Chandra Singh V.s Savitri Devi) 4"
25. In (2005) 6 SCC 149; (State of A.P. Vs. T. Suryachandra Rao), the Hon'ble Supreme Court in para 10 of the judgment held as under:-
"10. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable 4 (2003) 8 SCC 319 11 doctrine including res judicata. (Ram Chandra Singh Vs. Savitri Devi 5)"
26. In (1992) 1 SCC 534; (Shrisht Dhawan Vs. Shaw Bros.,), the Hon'ble Supreme Court in para 20 of the judgment held as under:-
"20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury in Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to 5 (2003) 8 SCC 319 12 be untrue yet he succeeds in misleading to become fraudulent must be of a fact with knowledge that it was false. In a leading English case 6 what constitutes fraud was describes.......
"Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false."
27. It is also stated that the Environmental Clearance for the project for mining of road metal from Nihalprasad Road Metal Quarry located at Village-Nihal Prasad, Tahasil-Gondia, District- Dhenkanala, over lease area of 5.25 acres or 2.125 hectares was granted by the SEIAA, Odisha, on 16.07.2021 (Annexure-A/7, page 42 to the Original Application).
28. Affidavit dated 04.07.2023 has been filed by the Additional District Magistrate, Dhenkanal, stating that the Committee constituted by the Tribunal visited the sites in question on 23.05.2023 details of which are as follows:-
"Site Nihalprasad road metal
Quarry No.V&VI
Area of excavation - 5.25 acres
Kissam of land - Patita
Khata No. - 1433/1134, 1433/1155
Plot No. - 1241/9761, 1241/9780"
29. A Joint Committee Report has also been filed along with the affidavit which reads as under:-
"Report of Committee as per Hon'ble National Green Tribunal orders in the matter of OA No.46/2023/EZ 6 Derry V. Peek, (1886-90) All ER 1: (1889) 14 ac 337 13 in the matter of Rural Organisation for Social Empowerment (ROSE) Vs. State of Odisha and Others ......................xxx..............xxx................xxx.........................
POINT-WISE OBSERVATION OF REPLY TO THE HON'BLE NGT'S REQUIREMENT FROM THE COMMITTEE:
After due field inspection and on verification of documents (relevant files and case record) duly produced by the Tahasildar, Gondia, the Committee observed that,
1. Allegation on quarry permit and violation of specific conditions given in Rule 34 of OMMC Rules, 2016:
i) The OPTCL (Odisha Power Tramission Corporation limited), a Government of Odisha undertaking organization located in Bhubaneswar has awarded erection contract of equipment/materials to M/s Jagabandhu Enterprises Pvt. Ltd. Plot No.35/B, Sec-
A, Mancheswar Industrial AREA, Rasulgarh, Bhubaneswar-10 vide their L. No.4792/Dt.
16.08.2014 and BoQ amended vide letter No.1018(12)/Dt. 29.12.2021.
The OMMC Rules section-34 of chapter-IV says about grant of quarry permits. In this Rules it is mentioned that no quarry permit shall be granted to anybody other than the State Agencies or Project Proponents for public purposes. since, as per Explanation-II under Rule 34 of the OMMC Rules, 2016, "Project Proponent for public purposes" shall mean any person or firm or company executing any Government project and shall include schematic beneficiaries under Government scheme like IAY, RAY etc. here M/s Jagabandhu Enterprises Pvt. Ltd. executing any Government project; here 'Design, 14 Engineering, Supply, Erection, Testing & Commission of Construction 2x20 MVA-132/33 KV Sub-station at AGARPADA & associated 132 KV LILO line from 132 KV Bhadrak-Anandpur Line to 132/33 KV Grid Sub- station of Odisha as per e-tender Notice No.25/2013- 14 and Tender specification No. Sr. GM-CPC-
TENDER-PACKAGE-25-03/2013-14)', And basing on the Contract Award of OTPCL, temporary permit was given to the user agency M/s Jagabandhu Enterprises Pvt. Ltd. (Respondent-9) as per the provisions laid down under Rule 34 of the OMMC Rules, 2016.
ii) The user agency is operating Nihalprasad road metal Quarry V & VI after getting temporary perit for extraction and transportation of 11,111 CuM of Road metal for the period from 30.10.2021 to 28.01.2022 in form R basing on the EC from SEIAA, CTO from SPCB, CONTRACT AWARD of OPTCL vide L.No.2449/Dt. 26.11.2022 and L.No.4792/Dt. 16.08.2014.
Again the user agency was issued another Temporary permit (in Form-R) of 10,000 Cubic Meter on dt. 04.02.2022 for a period of 03 months i.e. from dt. 05.02.2022 to dt. 06.05.2022 basing on the application dated 17.01.2022 of the user agency with reference to the document [OPTCL letter No. Sr. M-CPC-e-Tender-Agarpada (Pkg25-03)/ 56/ 2013/ 1014(12)/Dt. 29.12.2021, OPTCL Letter No.2449(11)/Dt. 26.11.2020 and OPTCL Letter No.4972/Dt. 16.08.2014].
Further, the user agency was issued temporary permit in Form-R of 5,000 Cubic Meter on dt.
10.10.2022 for a period of 03 months i.e. from dt. 11.10.2022 to 09.01.2023 basing on the application dtd. 07.10.2022 by the user agency and work order i.e. OPTCL letter No.Sr.M-CPC-e-Tender-
15Agarpada(Pkg25-03)/ 56/ 2013/ 1014 (12) /Dt. 29.12.2021 and OPTCL Letter No.4792/Dt.
16.08.2014.
Another temporary permit was issued to the user agency in Form R of 10,000 Cum on 31.01.2023 from 01.02.2023 to 30.06.2023 with reference to the document [OPTCL letter No.215/Dt.8.03.2022, and Letter No.1025/Dt. 31.12.2021.
2. Clarification regarding production of forged/fraudulent documents such as Contract Award etc.:
As per documents available in the Tahasil Office inquired, the genuineness of the letter from OPTCL Authority vide the Tahasil Office L. No.1859/Dt. 24.05.2023. In response, the OPTCL clarified vide their L. No. 402/Dt. 02.06.2023 that Letter No. Sr. GM-CPC- e-Tender-Agarpada (Pkg25-03)/56/2013/4792/Dt. 16.08.2014 and Final BOQ Amended vide Letter No. Sr.GM-CPC-e-Tender-Agarpada (Pkg25-03)/ 56/ 2013/ 1018(12)/Dt. 29.12.2021 were issued from their office.
3. Clarification regarding blasting activities near the gas pipeline of GAIL:
On the allegation of carrying our blasting permission within 200 meters of a gas pipeline, set up by GAIL without taking permission from the GAIL authorities, raised in the Application, the Committee observed that one clarification was sought from GAIL (India) Ltd. vide Tahasil Office, Gondia Letter No.4915/Dt. 11.11.2020. In response, Gail India has furnished No Objection Certificate and clarified that the proposed land is almost 100 meter away from the GAIL pipe line vide their letter No. GAIL/ BBSR/ Const./ Gondia/2020 Dated 14.12.2020. It is further submitted here that the Respondent No.9 was granted blasting permission from the Competent authority vide Order No.IX-16
04/2022/3383/Dt. 04.04.2022 which was extended till 31.10.2022.
4. Non- compliance of conditions stipulated in the Environmental Clearance granted by the SEIAA vide letter no.1746/SEIAA dated 16.07.2021:
i. During visit mining operation has not been observed.
ii. Demarcation of quarry lease area by posting durable concrete pillar of 1m height not provided all along the boundary, fencing provided in part. iii. During visit top soil dump has not been observed. iv. Toe wall and garland drain to the OB dump not provided.
v. Few plantations observe near the mine office, Plantation as per CPCB guideline as well as EC condition yet to be provided.
vi. Crusher has been installed within one Km of the quarry.
vii. Clearance from Central Ground Water authority for abstraction of ground water has not been furnished.
5. Illegal excavation and transportation of road metal beyond the quarry area in Nihalprasad Road Metal Quarry V & VI:
i) As alleged in the Application that illegal excavation and transportation of road metal was made beyond the quarry area of Nihalprasad Road Metal Quarry V & VI over plot no.1269, the Committee observed that, the Tahasildar, Gondia has realized royalty and penalty of Rs. 3,34,435/- (Rupees three lakh thirty-
four thousand four hundred thirty-five) only from the Respondent No.9 i.e., M/s Jagabandhu Enterprises Pvt. Ltd. relating to illegal extraction and transportation of road metal of 539 cum beyond the quarry area i.e. over the Plot No.1269 under Khata 17 No.1515 which was deposited vide M.R. No.014078/Dt. 07.10.2022 of the Tahasil Office, Gondia, basing on the report submitted by the Committee comprising of Geologist and RQP.
ii) Further the Joint Director Geology, Dhenkanal was requested to make joint field verification with the Tahasildar, Gondia to ascertain exact quantity of extraction of minor mineral from thequarries in question i.e. Nihalprasad Road Metal Quarry Nos. V&VI under Gondia Tahasil and report whether the extraction made beyond permitted quantity and area, approved in the Mining Plan. Accordingly, the joint team comprising of the Tahasildar, Revenue Supervisor, R.I., Nihalprasad, RQP and the Geologist surveyed the area in question and submitted their report dtd. 31.05.2023, where it is mentioned that, total quantity of stone material allowed to permit holder for extraction is 36,222 cum by the Tahasildar, Gondia during the period from the source is approximately 36,045.9 cum out of which approximately 3,724 cum stone material has been extracted beyond the permitted area and 32,321.9 cum within the permitted area. As per environmental clearance (EC) conditions the quantity of material allowed for extraction per annum is 40,000 cum/annum and total production in 5 years lease period is 2,00,000 cum.
6. Assessment of the Environmental Compensation on account of environment degradation:
As per report submitted by Joint Director of Geology, Dhenkanal the committee opinion that the permit holder extracted 3724 cum of stone material from outside the permitted area which illegal and accordingly, environmental compensation has been calculated for Nihal Prasad Stone quarry with reference to the order of 18 Hon'ble NGT in O.A. No.360/2015 and CPCB guidelines:
i) The stone material extracted beyond the lease area = 3724 cum.
ii) Market value of the stone material of Dhenkanal district is Rs.442.00/cum as per the letter No.2005, dtd. 16.06.2023 of Tahasildar, Gondia, Dhenkanal.
iii) Market value of illegally mined out stone material (D)=3724 cum*442/- = Rs.16,46,008.00 As per methodology, if the risk categorization is unavailable for the State, following Risk Factor and Discount Rates may be considered:
Severity Mild Moderate Significant severe Risk Level 1 2 3 4 Risk Factor 0.25 0.50 0.75 1.0 Discount Rate 8% 7% 6% 5% NB: In the present case Risk Factor (RF is considered as 0.50.
Annual Value of Foregone Ecological Values (D*RF):
Rs.823004.00 Present Value (PV) of Forgone Ecological Values @ 7% discount rate (r) and over 5 years) 5 PV = ∑� D∗RF (1+r)𝑡𝑡 � t=1 =∑(823004/(1+0.07)1 + (823004/(1+0.07)2 + (823004/(1+0.07)3 + (823004/(1+0.07)4 + (823004/ (1+0.07)5 = Rs.7,69,162.52 + Rs.7,18,843.57 + Rs.6,71,816.42 + Rs.6,27,865.81 + Rs.5,86,790.48 = Rs.33,74,478.89 or say Rs.33,74,479.00 = PV 19 Net present value (after netting out market value of illegally mined material) i.e., Environmental Compensation to be levied:
NPV = PV - D = 33,74,479 - 16,46,008 = Rs.17,28,471.00
7. Action taken by the Committee as per the direction of Hon'ble NGT in Para15 of the order dtd. 01.05.2023 in the O.A. No.46/2023/EZ.
As per the direction of Hon'ble NGT in para 15 of the present Original Application.
i) Computation of Environmental Compensation:
An amount of Rs. 17,28,471.00/- (Rs. Seventeen lakhs twenty eight thousand four hundred seventy one only) environmental compensation liable to be paid by the permit holder for extraction of stone from the area outside permitted area in contravention to the approved mining plan and Environmental Clearance.
ii) Giving due Notice and opportunity of being heard to the Respondent No.9:
M/s Jagabandhu Enterprises Pvt. Ltd. Represented through its Managing Director, Sri Jagabandhu Muduli, Plot No.35/B, Sector-A, Mancheswar Industrial Estate, Bhubaneswar, Pin - 751010 i.e. Respondent No.9 has been issued notice for hearing vide District Office Letter No.5657/Dt. 27.06.2023.
8. Recommendation:
i. Therefore the amount of Rs.17,28,471.00/-
(Rupees seventeen lakhs twenty eight thousand four hundred seventy one only) environmental compensation is liable to be paid by the permit holder for extraction of stone from the area 20 outside permitted area in contravention to the approved mining plant and EC.
ii. The lessee should comply the non-compliance conditions of accorded environmental clearance (EC).
Conclusion:
The members of the committee unanimously are of the view that there are certain lapses by the user agency, M/s Jagabandhu Enterprises Pvt. Ltd. as above with respect to abiding the Laws on Environment and Mining and Revenue laid down by the State. Necessary action will be initiated as per the direction of the Hon'ble NGT."
30. This Report mentions that the User Agency (Respondent No.9 herein), was issued temporary permit for a period of three months i.e., from 11.10.2022 to 09.01.2023 based on the application of the Respondent No.9 dated 07.10.2022 and work order i.e., OPTCL Letter No. Sr.G.M-CPC-e-Tender-Agarpara (Pkg 25-3)/ 56/ 2013/ 1014(12) dated 29.12.2021 and OPTCL letter No.4792 dated 16.08.2014. It is stated that another temporary permit was issued to the User Agency in Form R of 10,000 cum on 31.01.2023 from 01.02.2023 to 30.06.2023 with reference to the OPTCL letter No.215 dated 28.03.2022 and letter No.1025 dated 31.12.2021.
Queries were also made with regard to the genuineness of the letter dated 29.12.2021 and it was clarified by the OPTCL that final BOQ Amendment vide letter No. Sr. GM-CPC-e-Tender-Agarpada (Pkg25-
03)/56/2013/1018(12) dated 29.12.2021 was issued from its office mentioning therein that it was a genuine document. 21
31. With regard to the non-compliance of the conditions stipulated in the Environmental Clearance dated 16.07.2021 granted by the SEIAA, it is mentioned that demarcation of quarry lease area by posting durable concrete pillars of 1 meter height was not provided all along the boundary, fencing was provided in part; toe wall and garland drain to the Over Burden (OB) dump were not provided; plantation as per CPCB guideline as well as EC condition was yet to be provided; and clearance from the Central Ground Water Authority for abstraction of ground water was not furnished.
32. With regard to the illegal excavation and transportation of road metal beyond the quarry area of Nihalprasad Road Metal Quarry V & VI , the findings of the Committee is that the Tahasildar realized royalty and penalty of Rs. 3,34,435/- (Rupees Three Lakhs Thirty Four Thousand Four Hundred and Thirty Five only) from the Respondent No.9 i.e., M/s Jagabandhu Enterprises Pvt. Ltd., relating to illegal extraction and transportation of road metal of 539 cum beyond the quarry area i.e., over the Plot No.1269 under Khata No.1515.
33. It is stated that a further Joint Field Verification comprising of; Tahasildar, Gondia, Revenue Supervisor, R.I., Nihalprasad, RQP and the Geologist, surveyed the area in question and submitted their report dated 31.05.2023 wherein it is mentioned that total quantity of stone material allowed for extraction to the permit holder was 36,222 cum by the Tahasildar-Gondia, during the period from 31.10.2021 to 30.06.2023 and quantity of material 22 extracted from the source is approximately 36,045.9 cum out of which approximately 3,724 cum stone material has been extracted beyond the permitted area and 32,321.9 cum has been extracted within the permitted area.
34. The Joint Committee further noted that as per Environmental Clearance conditions the quantity of material allowed for extraction per annum is 40,000 cum and the total production in five years lease period is 2,00,000 cum. However, since the Respondent No.9 has extracted stone material beyond the lease area to the extent of 3724 cum, the Committee has computed Environmental Compensation @ Rs. 17,28,471/- (Rupees Seventeen Lakhs Twenty Eight Thousand Four Hundred and Seventy One only), for which notice has also been issued to the Respondent No.9 on 27.06.2023. This fact has not been disputed by Mr. Sankar Prasad Pani, learned Counsel for the Respondent No.9 who submitted that the matter is still pending before the District Office.
35. The State Respondents have filed further affidavit dated 14.08.2023 wherein it is stated that the work order dated 10.10.2022 (Khata No.1433/1134, Plot No.1241/9761, Area Ac.3.00 decimal, Kissam-Patita of Mouza-Nihalprasad), was granted to the Respondent No.9 by the OPTCL on the basis of e-tender letter No. Sr.G.M-CPC-e-Tender-Agarpada (Pkg:25-03)56/2013/1014(12) dated 29.12.2021. It is also stated that the OPTCL sought clarification from the Tahasil Office Gondia vide letter dated 24.05.2023 seeking clarification of the genuineness of the said 23 contract order. The OPTCL clarified that the Sr.GM-CPC-e-Tender- Agarpada (Pkg25-03)/56/2013/4792 dated 16.08.2014 and Final BOQ Amended vide letter No. Sr.GM-CPC-e-Tender-Agarpada (Pkg25-03)/56/2013/1018(12) dated 29.12.2021 were issued from their office vide letter dated 02.06.2023 addressed to the Tahasildar-Gondia.
36. It is further stated that on receipt of intimation from the OPTCL, the Tahasildar-Gondia, issued a show cause notice to the Respondent No.9 for misleading the competent authority by submitting fabricated document for grant of temporary permit and violating the legal provisions of the OMMC Rules, 2016, and other statutory provisions (documents filed colly at page no.344 of the paper book).
37. Mr. Sankar Prasad Pani, learned Counsel for Respondent No.9 submitted that the said Respondent had a valid Consent to Establish dated 03.08.2021 and a valid Consent to Operate dated 20.05.2022 which were granted after the SEIAA granted Environmental Clearance dated 16.07.2021.
38. Learned Counsel further submitted that in the Environmental Clearance letter dated 16.07.2021 it was itself mentioned under Condition No.9.33 that the Project Proponent shall obtain Consent to Operate from the Odisha State Pollution Control Board and effectively implement all the conditions stipulated therein. It was further stipulated that mining activity shall not commence prior to 24 obtaining Consent to Establish and Consent to Operate from the State Pollution Control Board.
39. Mr. Sankar Prasad Pani, learned Counsel with regard to his objection to the maintainability of the present Original Application, submitted that the whole foundation of the case is that the quarry permit has been obtained by fraud from the OPTCL, even though the Project Proponent, Respondent No.9, has valid Environmental Clearance, Consent to Establish, Consent to Operate and Mining Plan and in any case matter relating to forgery does not fall within the ambit of the National Green Tribunal, Act, 2010, and any person aggrieved by the grant of permit had a right to file appeal under Section 46 of the OMMC Rules, 2016.
40. In (2009) 13 SCC 569; (Rani Aloka Dudhoria & Ors. Vs. Goutam Dudhoria & Ors.), the Hon'ble Supreme Court has held that if there is an allegation of fraud, the same must be examined and the matter being before the High Court in that case it was held that the High Court should have examined the correctness of the question of fraud. Para 78 of the judgment reads as under:-
"78. If any auction had taken place by fraud or collusion the same is non est in the eye of the law. We are not suggesting that mere suspicion of fraud would amount to proof thereof but the High Court in our opinion should at least have gone into such a question. the Division Bench, in our opinion, should also have gone into this question. if it required proof, the question should have been clearly answered by referring to the documents and other materials on record so as to enable it to arrive at a finding that no fraud or collusion had taken place. A finding to 25 that effect one way or the other was required to be arrived at. The Division Bench proceeded on the basis that despite notices the plaintiffs did not participate in the proceeding without considering as to whether their plea that they did not receive any notice was correct or not."
41. We may relate back to the affidavit filed by the State Respondents dated 14.08.2023, Annexure-A/1 (page no.295) thereto, which is the letter of the Respondent No.9 dated 07.10.2022 addressed to the Tahasildar, Gondia, Dhenkanal, for renewal of quarry permit for extraction of 5,000 cum road metal from Nihalprasad Road Metal Quarry-V & VI. This letter mentions that the Respondent No.9 has been granted work order from the OPTCL, Bhubaneswar, Odisha, to supply 80,000 cum of road metal for the project Design, Engineering, Supply, Erection, Testing and Commissioning of construction of 2x20 MVA-132/23 KV Sub- station at Agarpada & associated 132 KV LILO line from 132 KV Bhadrak-Anandpur line to 132/23 Grid Sub-station, Agarpada (Line length 12.7 kilometers approximately) on turnkey basis in the State of Odisha. Along with this letter, application for quarry permit in Form Q has also been filed and an undertaking to follow the rules and regulations of the OMMC Rules, 2016, during excavation of minor mineral has also been filed. Page no.299 of the paper book is the letter of the OPTCL dated 29.12.2021 Sl. No. of which is Sr.G- CPC-e-Tender-Agarpada (Pkg-25-03)/56/2013/1014(12), the subject of which is Final BOQ Amendment to Letter of Award of First contract & Second Contract for the same work for which the application dated 07.10.2022 has been filed. In this letter, the 26 completion period is shown as extended upto 31.07.2023 for completion of balance Sub-station & Line work of Agarpada Project without imposition of LD and without any financial burden to OPTCL.
42. The categorical stand of the State Respondents is that this letter being No. Sr.G-CPC-e-Tender-Agarpada (Pkg-25-
03)/56/2013/1014(12) dated 29.12.2021 is a forged document which was filed by the Respondent No.9 along with his application dated 07.10.2022 along with undertaking and other documents on which the work contract was granted by the OPTCL to the Respondent No.9.
43. The stand of the State Respondents further is that the original letter which is also dated 29.12.2021 was having Sl. Sr.G-CPC-e- Tender-Agarpada (Pkg-25-03)/56/2013/1018(12) which under the heading 'Completion Period' mentioned that the completion period of the project is hereby extended up to 31.07.2021 to regularize the pending bills and procurement of materials for return to EHT (C) Division, Jaypore & without imposition of LD & without any financial burden to OPTCL.
44. The submission of Mr. Saubhagya Ketan Nayak, learned Additional Government Advocate appearing for State Respondents is that this order was passed on 29.12.2021 only for purposes of regularization of pending bills and procurement of material and not for extension for completion of balance sub-station and line work of Agarpada project upto 31.07.2023 as contained in the forged letter 27 No. Sr.G.M-CPC-e-Tender-Agarpada (Pkg-25-03)/56/ 2013/ 1014 (12) dated 29.12.2021.
45. The submission of the learned Additional Government Advocate further is that the Respondent No.9 has manipulated the letter dated 29.12.2021 and has committed forgery by producing the same letter dated 29.12.2021 showing extension of the project upto 31.07.2023 for completion of balance sub-station and this letter was filed by him along with his application dated 07.10.2022. It is on this letter that work period was extended upto 31.07.2023. The Respondent No.9 thereby deliberately committed a fraud upon the Department by forging the letter dated 29.12.2021 inducing the OPTCL to grant him extension upto 31.07.2023. Fraud vitiates every act and renders all proceedings based on the fraud non-est, therefore, the present Original Application is maintainable.
46. We have considered the matter in great detail and are of the firm view that the Respondent No.9 had obtained quarry permit dated 10.10.2022 on the basis of the fraudulent letter No. Sr. G.M- CPC-e-Tender-Agarpada (Pkg-25-03)/ 56/ 2013/ 1014(12) dated 29.12.2021 and, therefore, extraction of road material from the quarry in question is wholly illegal and in violation of environmental norms.
47. Mr. Sankar Prasad Pani, learned Counsel for Respondent No.9 submitted that matters of fraud are beyond the scope and jurisdiction of the Tribunal and the complainant has a right to 28 approach the authorities under Section 46 of the OMMC Rules, 2016.
48. The submission of the learned Counsel is absolutely misconceived and is rejected for the reason that the National Green Tribunal established under the National Green Tribunal Act, 2010, has jurisdiction to enquire into all questions relating to environment and violation of environmental norms and extraction of mineral under a fraudulent work permit obtained by the Respondent No.9 by deliberate misrepresentation of the State authorities would fall within the jurisdiction of the National Green Tribunal and, therefore, we hold that the present Original Application is maintainable. Even otherwise, the Hon'ble Supreme Court in Rani Aloka Dudhoria (Supra) has held that if in a transaction fraud is alleged, the Court (High Court therein) must decide the question of fraud.
49. Mr. Sankar Prasad Pani, learned Counsel for Respondent No.9 has also relied upon the judgment of this Tribunal passed in Original Application No.140/2022/EZ (Papun Kumar Sahu Vs. State of Odisha & Ors.) decided on 14.03.2023 and submitted that in that case the allegation of the complainant was that no tenders were invited before the grant of lease in favour of Mr. Litu Pradhan and, therefore, mining lease issued in his favour without public notice and without inviting tenders is wholly illegal and the Tribunal held that 'we cannot enter into questions of validity of the process of issuance of mining lease in favour of Respondent No.7 and whether 29 open tenders were invited or not, the question being beyond the jurisdiction of the National Green Tribunal'.
50. In our opinion, the said judgment has no application to the facts of the present case. In fact, in that case the allegation of the complainant was that the mining lease was issued in favour of Respondent No.7 therein without public notice and without inviting tenders and it was on that ground that Tribunal declined to examine the question as to whether the tenders were invited validly and whether public notice had been given. There was no allegation therein of tender having been obtained by fraud.
51. In the present case, on the other hand, we find that the work permit/quarry permit order has been obtained by the Respondent No.9 by producing a fraudulent and manufactured letter No. Sr. G.M-CPC-e-Tender-Agarpada (Pkg - 25-03)/ 56/ 2013/1014(12) dated 29.12.2021 mentioning the period of completion upto 31.07.2023 whereas the actual letter dated 29.12.2021 bore the Serial Number Sr.G.M-CPC-e-Tender-Agarpada (Pkg-25-03)/ 56/ 2013/ 1018(12) which only mentions that the completion period of the project was extended upto 31.07.2021 for regularization of pending bills and procurement of material. The period of completion of work was itself never extended upto 31.07.2023. The work permit, therefore, having been obtained by fraud and since fraud vitiates every action and every transaction, the work permit/quarry permit dated 10.10.2022 is non-est and the present Original Application is, therefore, maintainable in the Tribunal. 30
52. Mr. Sankar Prasad Pani, learned Counsel then submitted that the Respondent No.9 has already been served a notice to which a reply has also been filed with the OPTCL on 24.07.2023. Without prejudice to the proceedings before the OPTCL, since the matter is before us and we have examined the question with regard to the illegal extraction of road metal by the Respondent No.9 by practicing fraud which we hold to be in affirmative and to have caused damage to environment. We direct the State authorities to initiate appropriate criminal proceedings against the Respondent No.9 under the provisions of Rule 51 of the OMMC Rules, 2016.
53. Rule 15 of the OMMC Rules, 2016, reads as under:-
"51. Penalties:-- (1) (i) Whenever any person is found extracting or transporting any minor mineral or on whose behalf such extraction or transportation is being made otherwise than in accordance with these rules, shall be presumed to be a party to the illegal extraction or removal of such minor minerals and every such person shall be punishable with simple imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees or with both and in case of a continuing contravention, with an additional fine which may extend to five thousand rupees for every day during which such contravention continues after conviction for the first such contravention.
(ii) The Collector or Sub-Collector or Tahasildar or Director or Joint Director or Deputy Director or Mining Officer or Senior Inspector of Mines or Divisional Forest Officer or Assistant Conservator of Forest or Range Officer or Police Officer not below the rank of Sub-
Inspector of Police may seize the minor minerals and 31 its products together with all tools, equipments and vehicles used in committing such offence within their respective jurisdiction.
(iii) No court shall take cognizance of any offence punishable under these rules except upon complaint in writing made by such officer or authority mentioned under clause (ii) of this sub-rule having jurisdiction.
(iv) Where the offender agrees in writing to compound the offence punishable under these rules, the Tahasildar or Deputy Director or Mining Officer or Divisional Forest Officer, within their respective jurisdiction, shall, either before or after filing the complaint, compound the offence on payment of such sum, as determined by the officers mentioned under clause (ii), not exceeding the maximum amount of fine prescribed under these rules and value of the mineral and other properties seized and on payment of such fine and value, the seized mineral and properties shall be released forthwith: Provided that the accused shall be liable to furnish an undertaking or bond to the effect that he shall not commit such offence in future:
Provided further that, in case the offender fails to pay the value of mineral and any other property, such properties shall be confiscated to Government and disposed of through public auction.
(v) Where an offence under these rules is compounded, no proceeding or further proceeding, as the case may be, shall be initiated against the offender in respect of the offence so compounded and the offender, if in custody, shall be released forthwith.
(vi) If no person claims the mineral and other property, if any, so seized within a period of thirty days, the authority competent to compound the offence may confiscate the same to the State and dispose of the same through public auction."32
(2) Whenever any person trespasses into any land in contravention of the provisions of these rules, such trespasser may be served with an order of eviction by the Tahasildar or Sub-Collector or Collector or Deputy Director or Mining Officer or Assistant Mining Officer or Divisional Forest Officer or Assistant Conservator of Forest or Range Officer within their respective jurisdiction and such Government Officer, if necessary, may obtain the help of the police to evict the trespassers from the land.
(3) Any mineral, tool, equipment, vehicle or any other things seized under these rules in respect of which complaint has been filed under clause (iii) of sub-rule (1), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence and shall be disposed of in accordance with the directions of such court.
(4) Whenever the person wins, without any lawful authority, any mineral from any land, the Tahasildar or Mining Officer or Deputy Director or Divisional Forest Officer, as the case may be, may recover from such person the mineral so won, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
(5) If the person committing an offence under these rules is a company, every person, who at the time the offence was committed, was in charge of and was responsible to the company for the conduct of business of the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished as per the provisions of the Act and these rules:
Provided that nothing contained in this sub-rule shall render any such person liable to any punishment, if he 33 proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(6) Notwithstanding anything contained in sub-rule (5), where an offence under these rules has been committed with the consent or connivance of any Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation:- for the purposes of this rule -
(a) "Company" means anybody, corporate and includes a firm or other association of individuals;
(b) "Director" in relation to a firm means a partner in the firm.
(7) In case of breach of any condition of the lease deed, the Competent Authority may give notice of sixty days to the lessee to rectify the defects within the time specified and if the lessee fails to rectify the defects within the specified time, the Competent Authority may cancel the lease and/or levy a penalty not exceeding rupees fifty thousand. (8) In case of breach of any condition mentioned in rule 37 of these rules and other conditions which the Competent Authority might have specified while granting a quarry permit, the Competent Authority may impose a penalty which may extend to rupees five thousand per day and in the event of continuing contravention, the Competent Authority may cancel the permit and in such case the minerals lying on the land from which the same are extracted shall thereafter become the property of the Government and be disposed of by public auction."
54. Mr. Sankar Pani, learned Counsel further submitted that the quarry permit was valid till 09.01.2023 and, therefore, no cause of 34 action survives till 09.01.2023 and the Original Application filed on 15.03.2023 is not maintainable.
55. This plea of the learned Counsel is rejected for the reason that under the fraudulent letter dated 29.12.2021 the work period is shown to have been extended upto 31.07.2023 and, therefore, the present Original Application cannot be said to be barred by limitation and the Tribunal can examine issues relating to illegal extraction of stone material/road metal upto 31.07.2023.
56. The learned Counsel for Respondent No.9 next submitted that the Applicant is not an aggrieved person and the Original Application is, therefore, not maintainable.
57. This plea of the learned Counsel is rejected. The present Original Application has been filed under Section 14 read with Section 15 of the National Green Tribunal Act, 2010, which does not restrict the exercise of jurisdiction to examine questions of environmental damage and degradation to 'person aggrieved'. Section 16 of the Act, 2010, which deals with appellate jurisdiction mentions "person aggrieved". Section 18 deals with application or appeal to Tribunal and sub-section (2) thereof mentions that without prejudice to the provisions contained in Section 16, an application for grant of relief or compensation or settlement of disputes may be made to the Tribunal by .....
(e) any person aggrieved including any representative body or organization.
35
58. The Applicant, before us in the present Original Application is Rural Organisation for Social Empowerment (R.O.S.E) situated at Kukadeipur, P.O.-Sribantapur, P.S.-Kuakhia, District-Jajpur, and it is the case of the Applicant in the Original Application that Nihalprasad Road Metal Quarry-V & VI from Plot No.1269 has been demarcated for allotment to villagers of Nua Kastipal & Srimantpur. We are, therefore, of the view that the villagers of Srimantpur can maintain the present Original Application in a representative capacity through the Rural Organisation for Social Empowerment (R.O.S.E.) as provided in Section 18 (e) of the Act, 2010, and, therefore, the objection of the Respondent No.9 with regard to the maintainability of the present Original Application at the behest of the Applicant's society is total misconceived and is rejected.
59. The learned Counsel for Respondent No.9 has further referred to an order of the Hon'ble High Court of Orissa at Cuttack passed in WP(C) No. 2753 of 2023 (M/s Jagabandhu Enterprises Pvt. Ltd., Bhubaneswar Vs. State of Odisha & Ors.) dated 09.02.2023 in which the Hon'ble High Court had issued status quo order in respect of demarcation of the quarry land. Beyond making a bald averment in para 47 of the affidavit of the Respondent No.9 dated 16.08.2023, it has not been stated as to whether the Writ Petition before the Hon'ble High Court pertains to the present plot for which Environmental Clearance has been granted and for which the work permit/quarry permit has been granted. Even otherwise, the issue in the present Original Application is not about land allotment to 36 some persons under Vasundhara Scheme and those issues are beyond the jurisdiction of the Tribunal.
60. The Joint Committee Report has computed Environmental Compensation against the Respondent No.9 @ Rs.17,28,471/- (Rupees Seventeen Lakhs Twenty Eight Thousand Four Hundred and Seventy One only). Mr. Sankar Prasad Pani, learned Counsel submitted that the said computation of Environmental Compensation is incorrect as he was permitted extraction of material upto 40,000 cum/annum and, therefore, it cannot be said that the extraction of 3742 cum has been extracted beyond the lease area.
61. We have already held that the work order/quarry permit dated 10.10.2022 has been obtained by the Respondent No.9 by practicing fraud upon the State authorities and the OPTCL, by furnishing a fraudulent letter No. Sr. G.M-CPC-e-Tender-Agarpada (Pkg-25-03)/ 56/ 2013/ 1014(12) dated 29.12.2021 and, therefore, any road metal extracted under the aforesaid work permit/quarry permit will be held to be environmental violation and damage and degradation of environment and, therefore, Environmental Compensation will have to be re-assessed and re-computed against the Respondent No.9 in the light of the observations made hereinabove.
62. So far as the allegation that the quarry in question is being operated within 200 meters of a gas pipeline set-up by the Gas Authority of India Limited (GAIL), the Joint Committee observed that a clarification was sought from GAIL (India) Ltd. from the Office 37 of the Tahasildar, Gondia, dated 11.11.2020 in response thereto the GAIL (India) Ltd. has furnished 'NOC' (No Objection Certificate) and clarifying that the proposed line is almost 100 meters away from the GAIL pipeline vide their letter dated 14.12.2020. The Joint Committee has also observed that the Respondent No.9 was granted blasting permission from the competent authority vide order dated 04.04.2022 by the District Magistrate, Dhenkanal, (page no. 168- 169 of the paper book), which was extended upto 31.10.2022.
63. In the light of the facts and circumstances of the case, we dispose of this Original Application with a direction to the State Respondents to re-assess/re-compute Environmental Compensation against the Respondent No.9 in the light of the observations made hereinabove. The State Respondents shall also initiate criminal proceedings against the Respondent No.9 in exercise of powers conferred in Section 51 of the OMMC Rules, 2016.
64. I.As. if any, stand disposed of accordingly.
65. There shall be no order as to costs.
......................................... B. AMIT STHALEKAR, JM ................................................. DR. ARUN KUMAR VERMA, EM Kolkata, October 19th, 2023, Original Application No.46/2023/EZ (I.A. No.25/2023/EZ & I.A. No.33/2023/EZ) AK 38