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Judgment
Proceedings in the matter have been taken up Suo Motu in the light of above media report of death of seven persons on account of limestone mine collapse in Village Maalgaon, District Bastar, Chhattisgarh.
Vide order dated 19.12.2022, the Tribunal took up the matter for consideration after advance notice and constituted a fact-finding Committee comprising Principal Secretary (Environment), Chhattisgarh (as Chairman) and CPCB, CECB, District Magistrate and SSP, Bastar (as Members) to ascertain cause of incident and persons responsible for the same, particulars of the victims and relief to them and preventive measures for future.
Accordingly, the joint Committee has filed its report on 05.04.2023 identifying the victims and cause of death. Relevant extracts from the report are:
“In compliance of the above order, the committee has conducted online meeting with all the committee members on dated 06.01.2023. In the meeting, Collector Bastar and SSP Bastar made submissions about the incidence, action taken and further steps taken to prevent such incidence. It has been informed that necessary investigation like forensic test, post mortem has been conducted which shows that 6 persons had died and the cause of death was suffocation due to soil collapse. As per police investigation report the incident happened due to sudden collapse of soil bed under which white clay (known as chhui mitti in local language) was being excavated by the villagers for their personal use. District administration has dispersed the compensation of Rs. 4.0 Lakhs to the family members of all the deceased. The issue of preventive measures to be taken in the future was also discussed in the meeting. The committee advised as below : -
Constitution of the committee in Village Panchayat for advising the villagers, to conduct no such excavation in the future.
Conduction of survey to identify all such places in the District and ensure its complete wire fencing to restrict the approach for any further excavation of white clay.
The committee comprising of following members has conducted the field (site of incident) visit on dated 17.02.2023 to have a meeting with stakeholders and verify the facts on ground:-
i. Member Secretary, Chhattisgarh Environment Conservation Board, Atal Nagar Nava Raipur.
ii. Joint Director, Geology and Mining, Chhattisgarh, Atal Nagar Nava Raipur.
iii. Collector, District- Bastar.
iv. Senior Superintendent of Police, District-Bastar.
v. Additional Director, Regional Directorate, Central Pollution Control Board, Bhopal.
vi. Regional Officer, Regional Office, Chhattisgarh Environment Conservation Board, Jagdalpur.
It is to be noted that, Secretary, In-charge, Department of Housing and Environment was not available for the joint inspection due to his engagement in Nagaland election duty.
The members of the committee inspected the site of incidence and interacted with the relatives of the victims and Gram Sarpanch of village - Malgaon. It was observed that the accident site area has been properly fenced with sign board displaying 'Restricted Area'. The members of affected family acknowledged the receipt of compensation paid by the district administration. The Collector, Bastar presented a report about the identification of other such sites in the district. He submitted that district administration has prohibited all such areas for any further excavation activities. The detailed report comprising of cause of incident, compensation paid to the family members of deceased and preventive measure taken to prevent such incident in future has been prepared by the district administration and also been endorsed by the committee. The copy of the report is enclosed as Annexure-I.
The committee suggested district administration that the Gram Sarpanch should be made responsible for launching awareness campaign and prevention for such activities. They shall also be made responsible for any such type of incident in future.
The committee also appraised the action taken for identification of other such areas in the district as mentioned in the above report and expressed satisfaction on the action taken by the district administration. The photographs taken during the field visit by the committee is enclosed as Annexure-II.”
Names of the victims – six deceased and three injured are as follows:
Sr.
No.
Name of deceased/injured and father/husband name
Gender (female/male)
Age (approx.)
Name of the deceased
1.
Dashmati husband Dileshwar
Female
40 years
2.
Kamli husband Banshidhar
Female
30 years
3.
Shanti husband Hari
Female
42 years
4.
Kumari husband Ishwar
Female
25 years
5.
Sayato husband Kamalsay
Female
30 years
6
Rameshwar father Tulsiram
Male
48 years
Name of injured
1.
Purnima father Dileshwar
Female
14 years
2.
Manmati father Rameshwar
Female
32 years
3.
Lakhmi Kashyap
Female
35 years
Heirs of six deceased have been paid compensation of Rs. 4 lakhs each and the injured have been given medical treatment without any compensation.
We have heard learned Counsel for CECB and District Magistrate, Bastar who have appeared in person.
It is clear from the report that death of six persons has taken place due to collapse of soil bed in the course of excavation of soil. The report mentions that accident site area has been fenced with sign board of restricted area. The excavation activities are prohibited in the area.
Though the Committee has failed to identify the violator, there is no dispute that death is in the course of illegal excavation. There is a failure on the part of State machinery in preventing such hazardous activities and also identifying the persons undertaking such activities. In such situation, there is no reason to deprive the heirs of the deceased from just compensation to be paid by the State with liberty to recover the same from violators. While primary liability for such deaths is of the persons undertaking illegal excavation activities, State cannot avoid its responsibility for safety of human lives for failure of its vigilance and regulatory mechanism. It appears that acknowledging this responsibility, the State has given some amount of compensation i.e. Rs. 4 lakhs in respect of each death which cannot by any standard be considered to be adequate. Even on adhoc basis and in absence of particulars of loss of earning, compensation in such cases has to be atleast Rs. 20 lakhs for each death. This is the view taken by this Tribunal in number of cases, including vide order dated 28.03.2023 in OA No. 204/2023, In re: News item published in Newspaper The Hindu dated 07.03.2023 titled “Three children die during illegal mining in West Bengal”. The Tribunal held:
“xxx ……………………………….xxx…………………………………xxx
The Tribunal has dealt with number of cases of deaths and injuries to victims by failure to follow environmental norms and enforce right to environment which is part of right to life, heirs of the deceased and the victims have been held entitled to compensation on the principle of absolute liability arising out of doing hazardous commercial activity. Though such liability basically is of violator of law, where law violator is not made to pay compensation, the State has also been held to be liable to pay compensation as per its duty as welfare State to protect the citizen and also for failure to take steps to protect the citizens against hazardous illegal activities to prevent which is duty of the State. The Tribunal has acted consistently with parens patriae duty of the State in terms of law laid down inter alia in MCD v. Uphaar Tragedy Victims Association, (2011) 14 SCC 481 and Vadodra Municipal Corporation v. Purshottam v. Murjani & Ors. (2014) 16 SCC 14. Some of the observations from Supreme Court judgements are:
“T.N. Centre for Public Interest Litigation v. State of T.N., (2017) 6 SCC 734
The State stands on the position of a loco parentis to the citizens and when there are so many deaths of farmers in the State of Tamil Nadu, it becomes obligatory on the part of the State to express concern and sensitiveness to do the needful and not allow the impecunious and poverty-stricken farmers to resign to their fate or leave the downtrodden and the poor to yield to the idea of fatalism. The concept is alien in the welfare State and the social justice which is required to be translated in a democratic body polity. As is manifest from the assertions and the grievances that have been agitated, deaths are due to famine backdrop and other natural causes and also due to immense financial problem. The State, as the guardian, is required to see how to solve these problems or to meet the problems by taking curative measures treating it as a natural disaster. Silence is not the answer.
MCD v. Uphaar Tragedy Victims Assn., (2011) 14 SCC 481
The law is well settled that a constitutional court can award monetary compensation against the State and its officials for its failure to safeguard fundamental rights of citizens but there is no system or method to measure the damages caused in such situations Compensatory damages are intended to provide the claimant with a monetary amount necessary to recoup/replace what was lost, since damages in tort are generally awarded to place the claimants in the position he would have been in, had the tort not taken place; which are generally quantified under the heads of general damages and special damages. Punitive damages are intended to reform or to deter the wrongdoer from indulging in conduct similar to that which formed the basis for the claim. Punitive damages are not intended to compensate the claimant which he can claim in an ordinary private law claim in tort. Punitive damages are awarded by the constitutional court when the wrongdoer’s conduct was egregiously deceitful.”
We may also refer to some earlier orders of the Tribunal dealing with industrial and other accidents on account of violation of environmental norms in the State of West Bengal 1. News item published in the “Times of India” dated 20.11.2020 entitled “Six killed as blast tears through Malda Plastic recycling factory”, OA No. 272/2020 decided on 18.12.2020. 2. In re: News item published in The Economic Times dated 21.12.2021 titled “3 dead, 44 injured in flash fire at IOC’s Haldia refinery”, OA No. 440/2021 decided on 07.01.2022., where the Tribunal awarded compensation to the victims. Some extract from order dated 18.12.2020 in O.A. No. 272/2020, News item published in the “Times of India” dated 20.11.2020 entitled “Six killed as blast tears through Malda Plastic recycling factory” is reproduced below:-
“xxx……………………………..xxx…………………………xxx
The Tribunal dealt with the issue by requiring payment of compensation to the victims, restoration of environment and adopting suitable safety measures to avoid such recurrence in the light of Expert Committee reports. In the present case, the State PCB has acknowledged that the activity was illegal and the unit has now been found to be demolished. This cannot be sufficient step for enforcement of law and for remedy to the victims. The Tribunal fixed minimum interim compensation in such cases at Rs. 15 Lakhs in case of death, Rs. 5 Lakhs in case of serious injury and Rs. 2.5 Lakhs for simple injuries as follows Order dated 08.06.2020 in O.A. No. 22/2020 (WZ), Aryavart Foundation through its President v. Yashyashvi Rasayan Pvt. Ltd. and Anr.:
“6. … we assess interim compensation for death to be 15 lacs each (taking into account multiplier of around 16 and loss of earning of about one lac a year, taking the minimum wage, apart from conventional sums), for grievous injury Rs. 5 lac per person, for other injuries of persons hospitalized Rs. 2.5 lac per person and for displacement at Rs. 25000/- per person.”
The State is under obligation to secure atleast this amount of compensation to the victims and if it is not able to do so, the State must pay this much amount of compensation out of its own funds, with liberty to recover the same from the persons responsible for the situation.
Accordingly, we direct the District Magistrate, Malda to give compensation in above terms to the victims within three months out of the State funds, excluding the amount already paid. It will be open to the District Magistrate to recover the amount from the concerned violators by taking coercive measures, as per law. The victims will be at liberty to seek any other relief in appropriate proceedings. This direction is without prejudice to the criminal liability of the management and the operators of such activities.”
In the present case, death of the children is patently due to violation of established norms. The State Authorities failed to enforce the law and prevent the incident. Apart from illegal engagement of children, the mining in the river bank is not shown to be by any Authority of Law, such as, mining lease, replenishment study, DSR and Environment Clearance. No safeguards have been used in the process. Thus, the State cannot escape liability for violation of environmental norms. While primary liability is of the persons engaged in illegal mining on ‘Absolute Principle’ laid down in M.C. Mehta vs. Union of India & Ors., (1987) 1 SCC 395, when the violators have not been made to pay, it is the liability of the State to pay the compensation and recover the same from the violators. Liability for compensation is in addition to liability under the Criminal Law.
Further, vide order dated 11.06.2021 passed in O.A. No. 44/2021 titled as In re: News item published in The News Indian Express dated 12.02.2021 titled “At least 19 dead in Virudhunagar firecracker factory blast, more than 30 injured” the Tribunal held:-
“xxx ……………………..…..…….xxx……………….………….xxx
…Compensation can be assessed on reasonable basis guided by restitution principle atleast at floor level, leaving other remedies of the victims open. Thus, broadly agreeing with the Committee, we direct that the scale of compensation should be Rs.20 lakhs in respect of each of the deceased victims and Rs.15 lakhs to persons who have burns in excess of 50% and Rs.10 lakhs for persons who have burns from 25 to 50% and Rs.5 lakhs for persons who have injuries between 5 to 25%. Victims who were treated as outpatients and who had but minor degree of burns or other forms of simple injuries shall be paid Rs.2 lakhs.”
The Tribunal had dealt with series of industrial and accidental matters directing environmental compensation for deceased and injured in recent past.
In re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh, OA No. 73/2020 decided on 01.06.2020.
Aryavart Foundation through its President vs. Yashyashvi Rasayan Pvt. Ltd. & Anr., OA No. 85/2020 (Earlier OA 22/2020) (WZ) decided on 03.02.2021.
Bonani Kakkar vs. Oil India Limited & Ors., OA No. 43/2020(EZ) decided on 19.02.2021.
News item published in the local daily “Economic Times” dated 30.06.2020 titled “Another Gas Leakage at Vizag Factory kills two, critically injures four…”, OA No. 106/2020 decided on 22.12.2020.
News item published in the “Indian Express” dated 01.07.2020 titled “Tamil Nadu Neyveli boiler blast: 6 dead, 17 injured”, OA No. 108/2020 decided on 22.12.2020.
News item published on 13.07.2020 in the local daily named “India Today” titled “Massive fire engulf Vizag chemical plant, explosions heard, injuries reported”, OA No. 134/2020 decided on 22.12.2020.
News item published in the “Times of India” dated 20.11.2020 entitled “Six killed as blast tears through Malda Plastic recycling factory”, OA No. 272/2020 decided on 18.12.2020.
News item published in the “Indian Express” dated 23.11.2020 entitled “Maharashtra: Two Killed, eight injured in methane gas leak in sugar factory”, OA No. 274/2020 decided on 16.08.2021.
In RE: News item published in the local daily “Indian Express Sunday Express” dated 28.06.2020 titled “Gas Leak in Agro Company Claims life of one”, O.A No. 107/2020 decided on 08.01.2021.
In re : News item published in Navbharat Times dated 24.12.2020 titled “Gas leaks in IFFCO Plant, 2 Officers dead”, O.A. No. 04/2021 decided on 04.06.2021.
In re: News item published in The Indian Express dated 07.01.2021 titled “Four workers dead due to toxic gas leak in Rourkela Steel Plant”, O.A. No. 09/2021 decided on 11.02.2021.
In re: News item published in The News Indian Express dated 12.02.2021 titled “At least 19 dead in Virudhunagar firecracker factory blast, more than 30 injured, O.A. No. 44/2021 decided on 03.03.2022. 13. In re: News item published in Times Now News dated 23.02.2021 titled “Karnataka: Six killed in quarry blast in Hirenagavalli, Chikkaballapur”, O.A. No. 59/2021 decided on 22.04.2022.
In re: News item published in The Hindu dated 23.02.2021 titled “Two dead, 5 missing in fire at UPL Plant”, O.A. No. 60/2021 decided on 14.12.2021.
In re: News item published in The Times of India dated 28.02.2021 titled “Delhi : Man charred to death as illegal factory catches fire”, O.A. No. 65/2021 decided on 31.08.2021.
In re: News item published in The Hindu dated 14.03.2021 titled “Safety lapses led to reactor blast at pharma unit”, OA No. 79/2021 decided on 31.08.2021.
In Re: News item published in the “Indian Express” dated 04.11.2020 titled “Ahmedabad: Nine killed as godown collapses after factory blast”, OA No. 258/2020 decided on 23.03.2021.
In re: News item published in The Times of India dated 08.06.2021 titled “18, mostly women, killed in fire at Pune chemical unit”, OA 130/2021 decided on 01.02.2022.
Rakesh Suresh Chandra Kapadia v. Gujarat Pollution Control Board & Ors., OA No. 31/2021 (WZ), decided on 08.11.2021.
In re: News item published in The Hindustan Times dated 17.06.2021, titled “Blast in firecracker unit in Maharashtra’s Palghar, at least 10 injured”, OA No. 134/2021 decided on 25.06.2021.
In re: News item published in The Indian Express dated 12.07.2021 titled “Six killed in factory fire: Owner held, raids on to nab second accused”, OA No. 171/2021 decided on 07.09.2021.
In re: News item published in The Indian Express dated 07.01.2022 titled “Gujarat: At least 06 dead, 20 sick after gas leak at industrial area in Surat”, OA No. 05/2022 decided on 18.01.2022.
In re: News item published in India Today dated 26.12.2021 titled “7 dead in boiler explosion at noodle factory in Bihar’s Muzaffarpur, probe ordered”, OA No. 02/2022 decided on 22.04.2022.
In re: News item published in The Economic Times dated 21.12.2021 titled “3 dead, 44 injured in flash fire at IOC’s Haldia refinery”, OA No. 440/2021 decided on 07.01.2022.
In re: News item published in The Tribune dated 22.02.2022 titled “7 killed in blast at firecrackers factory in Himachal Una”, OA No. 143/2022 decided on 08.03.2022.
In re: News item published in Hindustan Times dated 05.03.2022 titled “Bhagalpur: 14 dead in firecracker unit blast”, OA 198/2022 decided on 27.05.2022.
In re: News item published in The Times of India dated 12th April, 2022, titled “Six killed in chemical factory blast in Gujarat”, OA No. 272/2022 decided on 12.04.2022.
In re: News item in NDTV dated 14.04.2022 titled “6 killed, 12 injured after fire breaks out at Andhra Pradesh Pharma Unit”, OA No. 284/2022 decided on 20.04.2022.
In re : News item published in Business Standard dated 09.02.2023 titled “Blast at JSPL’s Raigarh plant kills two workers, two others injured”, OA No. 110/2023 decided on 28.02.2023
In view of above, we direct the District Magistrate, Siliguri/Darjeeling to ensure payment of compensation @ ₹20 Lakh each to the heirs of the deceased and ₹5 Lakh to the injured, after deducting the amount already paid. The payment may be made within one month and make the violators accountable under Environmental Law be taken simultaneously at the earliest.
The State PCB may exercise its regulatory authority under the environmental laws - the Water (Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981, the Environment (Protection) Act and Rules 1986, in coordination with any other concerned authority.”
Accordingly, we direct that the District Magistrate, Bastar may disburse further amount of Rs. 16 lakhs to the heirs of each of the deceased and Rs. 2 lakhs each to the injured within one month from today. It will be open to the District Magistrate to identify the violators and proceed against them in accordance with law, including for recovery of compensation. The State may review its vigilance and regulatory regime to prevent such incidents in future.
The application is disposed of.
A copy of this order be forwarded to MoEF&CC, CPCB, Chief Secretary, Chhattisgarh, CECB, District Magistrate and SSP, Bastar, Chhattisgarh and State Legal Services Authority by e-mail for compliance.