Raghu Nath And Ors vs Hindustan Zinc Ltd. And Ors

These two O.As had been filed by two Applicants who are the residents of village Bherukhera (II), Agucha Tehsil Hurda District Bhilwara with the allegations that after the establishment and as a result of the mining activities being carried out by the Respondent Hindustan Zinc Limited in their mines granted for excavation of lead, zinc and associated minerals near Agucha - Rampura in an area of 1200 hectares of land since 1980 and this site being in close proximity of distance of 100 to 200 meters from the village Bherukhera (II), as a result of the mining activity and non-compliance of preventive measures and directions of the PCB toxic dust results in severe air pollution which is affecting the whole surroundings and the environment as well as the crops, grass, animals and the human-beings.

Apart from the above it has been submitted that the tank water and the underground water have also been adversely affected and the water level in the entire area has gone down and some of the wells had even dried up resulting in the loss of crops and depriving both humans and animals of precious drinking water and affecting their health.

It has further been stated that the Respondent Company undertakes the supply of drinking water through tankers but the said water is polluted as a result of which the villagers and animals are forced to drink the polluted water which has resulted in both diseases and death.

Thus, it is alleged that due to the non-compliance of the environmental conditions by the Respondent Company there has both air pollution and water pollution. It is also alleged that about 111 persons have died and 150 persons are suffering as a result of the above pollution on account of various diseases. It is further alleged that there has been major loss to the crops and since the area is mainly dependent upon animal husbandry about 1100 animals have died. It has further been alleged that the mining activity has affected the soil quality and as a result of the blasting being carried out in the mines many houses have been damaged and even broken.

Having stated so it was further submitted that the individuals who may be adversely affected may be permitted for filing their claims individually for seeking compensation.

It has been prayed by the Applicants as follows:

The Hindustan Zinc Limited / Sterlite Opportunities & Venture may please be directed regarding control the pollution at this polluted area and village.

And the Court / Tribunal may also be pleased to pass such orders and other relief which it may think appropriate taking into accounts the circumstances and the age of the case & a gross loss within the claim to be presented by the Applicants.

And compensation may also be granted u/s 15 read with Section 18 (1) of the N.G.T Act 2010.

After hearing the Applicants notices were ordered to be issued to the Respondents vide order dated 22.07.2014. Pursuant to the issue of notices the Respondent No. 1 put in his appearance on 20.08.2014 on which date noticing the fact that the Respondent No. 2 had not appeared in proceedings were ordered to be withdrawn ex-parte against the Respondent No. 2. Also since the matter involved and the relief claimed was in respect of compliance of pollution control measures the Tribunal directed that the RSPCB as well as the RO of the RSPCB, Bhilwara to be impleaded as party Respondents and accordingly after impleading them as party, notices were ordered to be issued to the newly added Respondents No. 3 & 4. Opportunity was granted to the Respondent No. 1 to file their reply.

On the next date of hearing Respondent No. 1 filed his reply. The PCB had put in their appearance in pursuance of the notice issued on the previous date and was directed to look into the complaints made in these two Applications. It was further directed that for ascertaining the grievances of the Applicants the RO has to contact the Applicants and after noting down their specific points regarding their grievances and taking the assistance of the concerned officers of the respective departments in the District submit a report before the Tribunal after carrying out detailed inspection. On 19.11.2014 the inspection report in pursuance of the order dated 23.09.2014 was submitted. Counsel for the Applicant as well as the Respondent No. 1 prayed for time to go through the compliance report and the inspection report and submit their response.

On 18.12.2014 the Applicant prayed for time to file his rejoinder / objections to the inspection reports submitted by the RSPCB. Since one of the issues pertained to the quality of drinking water being supplied through tankers by the Respondent No. 1 the RSPCB was directed to take samples of the water provided through the tankers and that stored in Bherukhera (II). While perusing the reports with regard to the various ailments as complained the reports of the Chief Medical Health Officer (CMHO) stated that " level of respiratory disorders, skin diseases and other type of disease are not beyond the average prevailing of diseases". It was also mentioned that out of 12 cases of respiratory diseases found 9 were smokers. Sputum examination was done for 7. In so far as the, other diseases were concerned it was directed that the Medical Officer who has given his opinion whether the patients who are suffering from the diseases noted in the report could be attributed to any activity of the Respondent No. 1 or as a result of any alleged pollution from the same. Since the allegations in the Original Application were not specific and no names or details of specified persons were disclosed, it is not possible in this Original Application to give any finding on these issues of loss or compensation. As such the petition was heard for the purposes of general relief and taking precautionary measures and ensuring compliances of EC conditions. In the meanwhile, individually affected person have file Original Application under Section 15 of the National Green Tribunal Act which on being heard and dealt with separately.

While noting the dust emissions and the Air Ambient Quality from the report of the RO, RSPCB Bhilwara, and his findings that "fugitive emission of dust due to mining cannot be denied". It was directed that the Air Ambient Quality monitoring report of Bherukhera (II) for the year 2014 be filed. Accordingly, in the meanwhile on the basis of the precautionary principle remedial measures were ordered to be taken by the Respondent No.1. In the remedial measures as suggested it was inter-alia provided for water sprinkling system, water spray and plantation along the tail dam and road side be carried out. The Respondent No. 1 was directed accordingly to file the affidavit whether these corrective measures have been put into place and made operational.

During the course of hearing one of the issue raised in O.A. No. 129/2014 Davad Neelgar & Ors. V/s Hindustan Zinc Ltd. & Ors. was in respect of alleged seepage of water from the tail dams into the fields of the Applicants. It was accordingly directed that the Collector Bhilwara will depute the Agriculture Extension Officer and the Tehsildar to visit the land of the Applicant and submit the report before the Tribunal.

In pursuance of the order dated 18.12.2014 during the course of hearing on 23.03.2015 the PCB submitted the affidavit in which as far as the issue regarding the Air Ambient Quality was concerned it was observed that the dust may be occasioned as a result of vehicular traffic on the road to village Bherukhera (II) as well as the area being pre-dominantly dependent upon Animal Husbandry and their being large number of cattle sheeps and other animals in the area. Due to the movement of cattle & sheeps also excessive dust could be attributed.

It was pointed out by the Learned Counsel appearing for the Respondent No. 1 that they had approached the District Administration for construction of Pakka roads to village Bherukhera (II) from the junction point to the village which is at a distance of about 1 Km. and also alleged that the villagers would not permit the Respondent No. 1 to carry out this work of CSR and as such they were willing to do the work of construction of the road. Learned Counsel for the Applicant refuted the aforesaid charge and submitted that the Applicants and the villagers would have no objection to the Respondent No. 1 undertaking the CSR activity in Bherukhera (II) and construction of the road.

Based on the above the Respondent No. 1 submitted that they would be willing to undertake the CSR activity in Bherukhera (II) for the construction of the road. This it was submitted would be undertaken at an estimated cost of Rs. 70.60 lakhs. It was further submitted that the Respondent in addition to the above would construct two toilets separate for boys and girls in the school in village Bherukheda (II) and also install a RO plant for drinking water in the school.

Taking these facts into account the Collector Bhilwara was directed to depute the SDO to monitor the above works and in case any modifications or alterations were necessary to allow the same in consultation with the village Panchayat. The Tribunal directed the Respondent No. 1 also to undertake the plantation of trees on both sides of the road up to a depth of 3 meters of local species in consultation with the Forest Department. Learned Counsel for the Respondent No. 1 further submitted that in the mining leased area the project proponent Respondent No. 1 Company was going to undertake plantation of 5000 trees in the year 2015-2016. On this the direction was given to the Respondent No. 1 to carry out plantation on the south eastern parameter within the mining lease area where such plantation has not been carried out. The plantation was also ordered to be carried out so as to act as wind breaker and prevent any soil erosion.

By way of showing the compliance on the next date of hearing 20.07.2015 the Respondent No. 1 filed an affidavit indicating the extent of work that had been carried out.

Sl.

Nature of Work

Status of the

Cost to

Documents in

No.

work

Respondent

support

No. 1

1

Construction of metal road in

Finished the

Rs. 99 lakhs

Annexure A :

village Bherukheda II,

construction of

(approximate)

[Pp5-27]

including bye-lanes and

metal road

Copy of Work

construction of drains along

admeasuring

Order dated

the road

900 metres in

01.05.2015 for

length and 4-5

Rs. 127

meters in width

lakhs.*

Annexure B :

[Pp5-28-32]

Photographs

2

Plantation on both sides of

300 saplings of

Rs. 2.7 lakhs

Annexure C :

the metal road mentioned

8-10 feet of

[Pp-33-35]

under Sl. No. 1 above

neem variety

Photographs

have been

planted and tree

guards have

been installed

3

Construction of two toilets in

Work done

Rs. 3 lakhs

Annexure D :

the primary school in village

[Pp-36-37]

Bherukheda II, separate for

Photographs

boys and girls, with water

and flush facility

4

Installation of water cooler

Work done

Rs. 0.6 lakhs

Annexure E :

with RO plant in the primary

[Pp-38-41]

school in village Bherukheda

Photographs

II for drinking water

5

Additional work in village

Work done

Rs. 8 lakhs

Annexure F :

school

[Pp-42-49]

(a)

Complete renovation

Photographs

of the primary school

building, including

re-plastering,

replacing doors and

windows, flooring

and construction of

boundary wall (130

meters in length X

2.1 meters in height)

with steel gate

(b)

Construction of

Work done

Rs.

0.55 lakhs

underground water

storage facility with

a capacity of 8000

litres.

(c)

Planting of 60

Work done

Rs.

0.55 lakhs

saplings of height of

8-10 feet

6.

Additional work in village

Under

Rs. 12.2 lakhs

Annexure C :

construction

[Pp-50]

Construction of community

Photographs

hall for use by the villagers

of Bherukheda II

7

Plantation of 5000 trees

Plantation

Rs. 8.44 Lakhs

Annexure H :

within the mining lease area

completed.

[Pp-51-70]

for the year 2015-16

Plant varieties

Additional order

Work Order

include

placed for

dated

Shesham,

12500 trees in

10.03.2015

Jambul,

2015-16

Karanj, Khair,

Annexure I :

Acasia, Khejri,

[Pp-71-72]

Gugal and Gular

Photographs

8

Additional work in village

Under

Rs. 3.23 Lakhs

construction

Construction of verandah in

the village temple

9

Additional work in village

Under process

Rs. 2 Lakhs.

Solar lights (10 numbers)

It was submitted by the Respondent No. 1 that for the above works that was carried out and which were in progress the estimated cost is about Rs. 140 lakhs. It was also submitted that regular Air Ambient Quality monitoring shall be done and also monitor the drinking water quality supplied in villages by the Respondent No. 1 and a monitoring report were filed along with the affidavit as Annexure J and K. As per the said reports all the parameters were found to be within the specified limits. Similarly, the water sample testing reports were also found to be in order. In respect of the above, the Collector Bhilwara, was directed to carry out an physical verification with regard to the completion of the works and file an affidavit. Some of the points with regard to the works done in the school pertaining to the provision of providing drinking water were ordered to be streamlined and improved and measures for maintenance of the RO and the water coolers as well as covering of the water tanks in the school were also directed. CC roads were constructed in the villages with drains along the said CC roads which were joined to the drains connected to the every house along the road. This resulted in the flow of the water from the households and proper drainage and sanitation.

On 24.08.2015 the affidavit of the collector Bhilwara, was filed in which the progress made in the 3 affected villages Kotia, Bherukhera (II) and Agucha were mentioned. Since, one of the issue raised in the Application pertained to the alleged adverse impact on the health of the residents of the area and two villages Augcha and Kotia having been identified with a population of 6200 and 5700 respectively, their primary health centers were sought to be strengthened. The District Administration was directed to furnish the information with regard to the existing infrastructure. The Learned Counsel appearing for the Respondent No. 1 submitted that they would also look into the possibility for strengthening the existing infrastructure and removing deficiencies if any in consultation with the District Administration. Since the primary health centers were also required to keep certain medicines under refrigeration and looking to the power shortages and power cuts providing solar panels of sufficient capacity or running the said equipment was also directed to be explored and installed or alternates that may be suitable.

Since one of the grievances raised was with regard to the adverse impact on the cattle and their yield, the State was directed to provide information about the yield of milk and it was submitted that after 2010 there had been an increase in the production of milk as also efforts have been made for improving the quality of cattle and increasing the yield through artificial insemination. In all these activities the Respondent No. 1 agreed to participate and provide necessary assistance. Learned Counsel for the Respondent No. 1 also submitted that in consultation with the headmasters of the senior secondary school in village Agucha and Kotia they would provide additional computers as also contractual teachers for computer studies. It is also submitted that in the Aanganwadi camp food was being supplied by the Respondent No. 1 as also in the schools.

One of the issues raised in the Application was with regard to the pollution and also supply of polluted water through tankers by the Respondent No. 1. It was submitted before us by the Learned Counsel for the Respondent No. 1 that the entire area is deficient of water. Water for the colony of the Respondent No. 1as also in the adjoining villages is being brought by pipeline from the Banas river from the distance of about 60 kilometers and the said water is treated at the plant of the Respondent No. 1 and subsequently supplied through tankers on daily basis in the areas around the listed areas of the Respondent No. 1 including the villages in question on a day to day basis. Keeping this in mind the Tribunal directed the Respondent No. 1 to create a facility for construction of water storage tanks for drinking water in the villages concerned and separate arrangements be made for drinking water for human beings as well as for the cattle and other animals. The capacity of such water tanks be based upon the per capita need and looking to the population of the villages. The feasibility of installation of RO in consultation with the Public Health Engineering Department (PHED) of the Government was also ordered to be examined. This was ordered to take care of the allegations in the Original Application on account adverse health impact as a result of drinking polluted water.

On 8.10.2015 the Respondent No. 1 pursuant to the directions given on 24.08.2015 filed a compliance along with an affidavit according to which it was submitted that in compliance of the directions for upgrading the facilities at the primary health centers a letter was written to the Medical Officer on 28.08.2015 for which the replies were received by the two Medical Officers on 03.09.2015 and 10.09.2015 giving their list of requirements. It was stated by the Respondent No. 1 that in accordance with the above an amount of Rs. 13.66 lakhs and Rs. 15.50 lakhs for the two primary health centers at Kotia and Agucha had been sanctioned for improving the infrastructure and the work was in progress. The order for procurement of freezer, mattresses, RO, refrigerator, air-conditioners, ceiling fans and computer along with invertors for power back-up has also been placed.

So far as the, directions for the facilities in the school is concerned likewise, teaching staff at the school at village Agucha, Kotia and Bherukhera (II) construction of chemistry and physics laboratory in the senior secondary school at Kotia had been initiated for which an estimated cost of Rs. 13 lakhs had been sanctioned. Orders had also been placed for procuring the computers and printers and RO system for the drinking water in the said school. As regards the, Aanganwadi camps the construction of the building as per Government request is in the planning stage and about 24 Aanganwadi camps under the Nandghar project of the Women and Child Development Department of the State has been undertaken.

At one stage it was submitted that there was a requirement for a girls hostel in the school. However, subsequently it was felt that since the students are coming from nearby villages there was no need for a girls hostel at this stage. However, the Respondent No. 1 has submitted that as and when such a decision is taken for opening a girls hostel the Respondent No. 1 would look into the feasibility and provide all support so far as water supply to village Bherukhera (II) is concerned the Respondent No. 1 has stated that they are exploring the feasibility of installing the RO plant in the village itself on a sustainable basis. For providing veterinary facilities already suitable measures are being undertaken in consultation with the Animal Husbandry Department of the Government by the Respondent for improving the production of milk and the productivity and quality of the cattle.

The PCB on its part firstly submitted their reports along with the reply that was filed on 18.11.2014.

In so far as, the issue regarding the contamination of the water in the two tanks popularly known as Thakadia Ji Ki Nadi and Dev Nandi are concerned the PCB after taking the samples and examining the same has given the finding that nothing adverse detected. At the same time, it has further been stated that there is no direct flow into these water tanks from the mining area of the Respondent No. 1 and there is no direct channel from the mine area towards these ponds. It was submitted that all along the waste dumps of the overburden garland drains have been constructed which channelize the storm water to the collection area created by the Respondent No. 1 and as such there is no direct flow of the storm water to these ponds from the mining area of the Respondent No. 1.

On the issue of alleged deaths of animals as well as drinking water of polluted water the report from the SDO, Gulabpura was obtained on 31.10.2014 according to which it was submitted that there was no recorded evidence of any death of animal as a result of consumption of polluted water or fodder and also there was no postmortem report conducted at any veterinary center in this behalf which could substantiate the aforesaid claims.

In so far as, the damage to the crops is concerned in the report of the SDO, Gulabpura District Bhilwara, it was stated that there has not been any shortfall in the production of agriculture crops as alleged by the Applicant. Also that no water-logging has been observed in the agriculture land of the Applicant and the yield of the land of the Applicants remains satisfactory as compared to the average crops yield in the area. On the question of air pollution and monitoring it was admitted that due to heavy vehicular movement and there being Kaccha roads and movement of animals in large number, it could not be denied that dust particles were present as a result to the same. For this corrective measure such as sprinkling of water through water sprinklers system regular water spraying and carrying out plantation along the road side had been suggested. As regards the use of sprinklers the direction was given for using waste water as against fresh water. On the question of pollution of the water it was submitted that to the local residents water is being supplied by the Respondent No. 1 after filtration and treatment through their water tankers after having been brought by pipeline from the Banas river and it was the same water which was utilized in the colony of the Respondent No. 1 for drinking by their staff and employees.

We have given out our thoughtful consideration to the issues that have been raised. Primarily, as quoted above, the prayer is with regard to the direction for compliance and adherence to the pollution control measures liable to be complied with and adopted by the Respondent No. 1 Company while carrying out its activities in the area and protection of environment and preventing loss or injury to the residents. We have already outlined the plantations required to be undertaken by the Respondent No. 1 Company, so far as the question of containing the dust and improving the Air Ambient Quality, which has been found to be within the norms. It has already been submitted that the major contribution of dust is as a result of the vehicular traffic and the movement of cattle and other animals. So far as dust is concerned directions were issued by the Tribunal for construction of Pakka road from the point of the highway to the village and in the mining area and in the village. As has been noted above this work has been carried out. We would further direct, that the PCB may wherever it feels necessary on account of finding vehicular traffic of the Respondent No. 1, it may give further directions or constructions of the road metal / pakka road to the Respondent No. 1 if new routes are used from the mining areas.

The allegation that as a result of blasting lot of dust is created is also taken note of by us. While it has been stated that controlled blasting is carried out. We may also take note of the fact which is not disputed that the height of the waste deposit of the overburden excavated from the mines is of approximately 150 to 200 feet and the depth of the mine which is presently being mined and excavated has gone down below the ground level in the open cast area to nearly 300 to 400 feet. Thus in all about 450 to 500 feet high barrier is there before the dust can spill out and therefore we would agree to some extent with the submission of the Learned Counsel for the Respondent that in these circumstances the possibility of the dust from the mines reaching the inhabited areas is considerably reduced and minimized.

In addition to the above as has been submitted in the affidavit of the Respondent No. 1 that large scale plantation both on the waste dumps which are not in use and also in the periphery area along these waste dumps has been carried out and large scale plantation has been carried out in mine site creating a wind barrier between the mining area and the village. Apart from the above, the old plantation of the Forest Department was also taken over for improvement and plantation carried out by the Respondent No. 1 was shown from the photographs filed along with the affidavit. Sufficient plantation has been carried out to act as a buffer and wind breaker by way of dust containing measure between the mines and the village. In that view of the matter we are prima-facie satisfied that dust suppression measure taken by way of above that is construction of the pakka roads and creating wind breakers by extensive plantation. The dust as a result of the mining can be sufficiently controlled.

Be that as it may it would still be the responsibility of the RSPCB through its local office at Bhilwara to carry out quarterly monitoring of the Air Ambient Quality and in case the same is found to be excessive not necessarily beyond the prescribed standards consequential remedial measures by way of directions to be issued by the PCB to the Respondent No. 1 for being implemented. Learned Counsel for the Respondent No.1also informed us that this would not be a problem as in the near future the Company would be undertaking underground mining operations as against surface opencast mining and the existence of dust particles would be sufficiently controlled.

As regards the issue of water contamination we are satisfied from the report of the PCB that the measures adopted by the Respondent No. 1 company for supply of drinking water to the residents of the area and of the affected villages in particular and also in compliance of the directions issued by this Tribunal from time to time for improving the present infrastructure and taking additional precautionary measures both for providing drinking water to the local population as well as separately for the cattle and other animals, the possibility of consumption of any contaminated water can reasonably be said to have been ruled out. We may add that the reports filed however do not at present show any water pollution. However, this shall need to be closely monitored as a continuous basis. There again the PCB shall continuously monitor the quality of the water being supplied and also in the ponds and also monitor measures that are being undertaken by the Respondent No. 1 company in this behalf. In addition to the above wherever necessary the PCB would be free to issue directions for improvement of the water quality and taking additional measures that may be necessary. The Medical and Health Department shall also monitor and keep record of any water borne diseases or ill health and adverse impact reported in the area as result of such water being consumed by any person in and brining the same to the notice of the PCB as well as to the District Collector and remedial steps shall immediately be taken in this behalf. Failure on the part of the local Medical Officer and the primary health center to report these matters to the PCB and the District Administration shall be viewed seriously in the event of any complaint being received by this Tribunal.

One of the complaints raised in the Application was with regard to the damage to property on account of blasting while we have noted the reply filed by the Respondent PCB, we would not like to at this stage deal with the aforesaid issue for lack of material and separate Applications for awarding of compensation by affected persons have been filed under Section 15 of the NGT Act 2010, before us and the same shall be dealt with in accordance with law in those proceedings.

In the end we would direct the RO of the PCB to monitor the progress and the maintenance of the steps undertaken by the Respondent No. 1 Company in terms of the directions given in our various orders during the pendency of this Application and noted herein. We may add that CSR is not a onetime obligation and needs to be carried out continuously. For the aforesaid purpose the District Administration in consultation with the local village Panchayat and the representatives of the people and considering the need for the same would ensure that CSR activities are undertaken and completed to the satisfaction and for the best use and benefit of the local people. So that they too may benefit from the same. Learned Counsel for the Respondent No.1 submitted that whatever additional measures by way of CSR or compliances are required shall also be given effect to by the Respondent No.1.

We would accordingly dispose of both these Original Applications No. 128/2014 & 129/2014, with the aforesaid direction with respect to the prayer made in the Application primarily for observance and implementation of environmental laws and maintaining the pollution level within the limits. At the same time, the prayer made by both the Applicants that they may be permitted to independently raise the grievances with regard to the damage that may have been suffered by them and for being awarded compensation independently by means of an Application under Section 15, as far as that is concerned the said prayer is allowed and the Applicant would be free to move any such Application in accordance with law.

No order as to costs.