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Judgment
The present application was filed by two villagers of Nilamanideipur Sasan, P.O. Pankapal, Dist. Jajpur, Odisha under Section 14, read with section 18, of the National Green Tribunal Act, 2010 alleging non-compliance of the conditions stipulated by State Environment Impact Assessment Authority (in short SEIAA), the Respondent No. 4, in the letter dated 17.08.2015 granting Environmental Clearance (in short, EC) in favour of Pankapal-1 Sand Quarry of Sri Hemanta Kumar Sahu, the Respondent No. 5. It is alleged that the Respondent No.5 was carrying out sand mining operation without obtaining consent to operate from the State Pollution Control Board (in short, PCB), the Respondent No. 6, and also that the Project proponent was non-compliant of the following EC conditions:-
i) use of machines (excavators) when permission is only for manual mining (only through labour and no machine to be used for mining the sand);
ii) Excess mining than the permissible limit,
iii) Mining beyond the designated lease area of 7.28 hactre;
iv) Commencement of mining without consent to establish and consent to operate;
v) Plying of over loaded vehicles on river embankment without approval from Irrigation Department;
vi) Vehicles engaged in mining causing pollution and not covered with tarpaulin causing more pollution'
vii) Sand mining close to embankment in violation of safety zone which is usually 1/5 of the width of the river so as to protect the embankment from erosion and breach";
It is contended that the Brahmani River, being the lifeline of Northern Odisha, has already been a cause of threat to the embankments and has changed its course due to indiscriminate and illegal sand mining resulting in serious environmental degradation and adverse ecological impact. The applicants have further alleged that although consent to establish was granted to the project on 18th January, 2016 by the PCB, the Respondent No.5 commenced with the extraction of sand from October 2015, i.e., prior to the grant of consent to establish, which, as per them, is a blatant violation of the environmental laws.
The applicants have thus prayed for the following:-
"A. Suspend the environment clearance dated 17th August, 2015 granted in favour of the private respondent for non-compliance of EC conditions.
B. Direct the Respondent No.7 to inquire into the illegalities of mining such as mining beyond the designated lease area and in-stream mining, Excess sand mining in violation of the permitted quantity.
C. Direct the Respondent No.4 to take appropriate action for violation of the Environmental Clearance condition including revocation of the Environment Clearance letter dated 17th August, 2015 granted by respondent No. 4 in favour of Respondent No.5 for sand mining in Pankapal-1 sand quarry, Danagadi Tehsil in Brahmani River for non-compliance of conditions in the EC letter.
D. Direct the Respondent No.6, State Pollution Control Board to inquire into the source of Ferochrome Slags and its impact on the river;
E. Direct the private respondent to take out the Ferrochrome slags from the Brahmani River and restore it to its Original condition.
F. Impose heavy penalty on the private respondent for violation of EC conditions, Commencement of operation prior to grant of Consent to Establish and Consent to Operate.
G. Direct the Respondent No.2,3 and 8 to seize the Excavators used for sand mining in Pankapal-1 size."
The PCB, in their affidavit have stated that consent to establish was granted to the Respondent No.5 by the Board under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974, (in short, the Water Act) and section 21 of the Air (Prevention and Control of Pollution) Act, 1981,(in short, the Air Act) vide letter No. 168 dated 18.01.2016 with conditions for strict compliance. Subsequently, when application for consent to operate was filed by the said Respondent, an inspection was conducted by the Asstt. Environmental Scientist of the Board to verify as to whether those conditions had been fulfilled. After considering the inspection report and the recommendations of the Scientist concerned, consent to operate was granted vide letter No. 275 dated 27.01.2016 with a validity upto 31.03.2017. As one of the allegations of the applicants was that of the Respondent No.5 dumping hazardous Ferrochrome slags in the sand mining site to facilitate plying of vehicles and its potential toxic affect on the riverine system due to release of hazardous chromium oxide, the State PCB had analysed the water samples from the quarry area and found that hexavalent chromium was within the tolerance limit for inland surface water, i.e., 0.05 mg/L. The inspection and analysis report of State PCB is reproduced below:-
INSPECTION REPORT ON CONSENT TO OPERATE OF M/S PANKAPAL-1 SAND QUARRY, PANKAPAL DANAGADI
Date of inspection
: 22.01.2016
Name of the Sand Quarry
: Pankapal-1 Sand Quarry of Sri Hemanta Kumar Sahoo
Location of the mine
: At river Brahmani over Plot No. 1075 & 1089 Khata No.224 of Mouza.
Name and address of the lease holder
Sri Hemanta Kumar Sahoo, AT/PO/PSJakhapura, Danagadi, Dist. Jajpur.
Area of Mining Lease
Ac.18OOres (7.284 Ha.)
Validity of Mining Lease
:Effect from 03.10.2015 to 02.10.2020
Person present
:Sri Hemanta Kumar Sahoo, Prop.
Consent status
:The unit has obtained consent to establish vide L.No.168 dated 18.10.2015 and applied for consent to operate for the period upto 31.03.2012 with adequate consent fees of Rs.75,000/-
Pollution Potential and Control measures
: The unit has procured one number of water sprayer tanker to wet the internal road inside the sand quarry area to suppress the dust generated during the mining activities. During the quarrying of sand the provision for manual water sprayer has been provided.
Special Conditions
Compliance
1.
This consent to establish granted under Section 25 of Water (Prevention & Control of Pollution) Act, 1974 and Section 21 of Air (Prevention and Control of Pollution) Act, 1981 shall be subject to the mining plan approved by the Deputy Director of Mines, Jajpur road, Jajpur, Odisha uinder Odisha MineraL (Prevention of Theft, Smuggling and Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007
The mining plan has been approved by the Deputy Director of Mines, Jajpur road, Jajpur.
2
The mining activities shall be carried out as per the approved mining plan and any change in mining activities/technology/scope shall not be made without approval of mining authority and SEIAA
Agreed to comply.
3
The sand mining shall not be carried out within 200 m of any existing structure such as bridges, dams, weires, intake structures(s) either for irrigation or drinking water purposes, or any other cross drainage structure.
The Brahmani bridges exist more than 200 meter away and no dams, weires, intake structures, drinking water purposes and any others cross drainage structure exist within 200 meter
4
The mining shall not be carried out in-stream of river
The mining activity for sand quarrying will be done in the sand quarry area where water flow does not exist.
5
The mining of sand shall be done manually and it shall be ensured that mining activities should not disturb the flow pattern of the river.
Agreed to comply.
6
The sand mining should not affect the existing sources for irrigation or drinking water or industrial purposes.
There is no sources for irrigation, drinking water and industrial uses purposes within 500 meter radius of mining areas.
7
The water sprinkling system should be provided in haul road, transportation roads, quarry areas, stocked piles areas and other dust generating areas to control the fugitive dust emission.
The unit has provided a mobile water Tanker for suppression of dust generated from transportation roads and haul road. Manual/water spraying provision has also been made to suppress the dust generated from the other areas.
8
The unit shall maintain the Ambient air quality as per the prescribed standard of National Ambient Air Quality inside the mining lease area.
Agreed to comply
9
The rejected sands if any shall be disposed off on low lying areas inside the lease hold area in proper manner5 without causing any environmental pollution
Agreed to comply
10
The area from which the sand has been extracted be levelled and free of any foreign debris/materials after completion of mining and expiry of lease period
Agreed to comply
11
The proponent shall take necessary measures to ensure no adverse impacts due to mining activities on the human habitations existing nearby.
There is no human habitation within 500 meter distance from the sane mines. The proprietor of the unit has agreed to take necessary measures to avoid the adverse impacts.
12
The mining of sand shall not be done in safety zone beyond the 3 meter depth of the lease area.
Agreed to comply
13
The unit shall abide by provisions of the E(P) Act, 1986 and the relevant rules framed thereunder:
Agreed.
14
The Board may impose further conditions or modify the conditions as stipulated in this order during installation and/or at the time Of obtaining consent to operate and may revoke this order in case the stipulated conditions are not implemented and/or information are found to have been suppressed/wrongly furnished in the application form.
Agreed
REMARKS/OBSERVATIONS:-
1.The unit was granted consent to establish by the Board vide L. No. 168 dated 18.01.2016 and 1st time consent to operate has been applied for the period upto 31.03.2020 along with adequate consent fees of Rs.75000/
The unit has developed the internal road and watch & ward for quarrying of sand.
The mobile water tanker has been provided for water sprinkling to suppress the dust generated during the plying of vehicles inside the sand mining areas.
The mining of sand will be stopped during the rainy season and river flooding.
The vehicles engaged for transportation of sand will be covered with tarpaulin during the transportation.
Recommendations:-
The unit has submitted application for 1st time consent to operate and deposited adequate consent fees of Rs.75000/- adequate upto 31.03.2020. The unit has complied most of the special conditions imposed in the Consent to establish order, so grant of consent to operate for the first time in favour of the unit may be considered by imposing the proper conditions.
WATER ANALYSIS REPORT
CENTRAL LABORATORY
STATE POLLUTION CONTROL BOARD
TEST REPORT
(Water and Wastewater)
9
(Form-5)
Report No. :OS/152/05/2016
Date :12.05.2016
Sample Submitted by : Dr. Anup Kumar Mallick, RO
(Name and Address) Regional Office, SPC Board Odisha Kalinga
Nagar, Jajpur
Reference Letter No.1608 dated 10.05.2016
Date of sample receipt : 11.05.2016
Analysis Results
(Attach separate sheet if necessary)
Pankapal, Dangadi
Parameters (with Unit)
PH TSS Cr+6 T.Cr
(mg/1) (mg/1). (mg/1)
Date of analysis
11.05.16
Method No* of analysis
4500-H*-B 2540 D 3500 Cr-B
Uncertainty
Sl. No. Sampling Locations & Result
1
Active Sand quarry area
8.9
8.0
0.005
0.018
2
U/s of sand quarry near water intake point of IDCO
9.1
9.0
0.01
0.01
3
D/s of sand quarry near village Digambarpur
8.9
12.0
0.013
0.024
*APHA 21st Edn. 2005
7 Deviation from test method, if any: No.
8 If Sampling Conducted by the Central Laboratory, No.
(a) Date of Sampling
(b) Method Used
(c) Schematic Diagram of Sampling locations-
Board Analyst"
The Govt. Respondents, the Respondent No. 2 &3, apart from raising preliminary objections on the maintainability of the application, emphatically denied the allegations against the Respondent No.5 and submitted that (i) there was no violation of the terms and conditions contained in the licence, (ii) the allegation of damage to the embankment was false as the Water Resource Department had never raised any such apprehension of damage to river embankment, (iii) there was no transportation of sand through village road, (iv) there was no habitation site nearby, (v) the lessee was extracting the sand only from the designated place and (vi) that there was no over-extraction as the monthly records of sand lifting are verified by the appropriate authority. It was, therefore, stated that allegation of indiscriminate mining was false, fabricated and baseless.
The Govt. respondents would further submit that a team of experts from Water Resource Department, State Pollution Control Board, Dy. Director of Mines and ADM, Kalinganagar, Tehasildar, Danagadi & SDO Irrigation Jarka Divn. had conducted a joint inspection of the quarry of the Respondent No.5 on 10.05.2016 to verify on the allegations made by the applicants. The report of the team reads as follows:-
"JOINT INSPECTION REPORT OF PANKAPAL-1 SAND QUARRY UNDER DANAGADI TAHASIL OF JAJPUR DISTRICT ON 10/052016
A joint inspection was conducted on 10.05.2016 at Pankapal-I Sand Quarry (Brahmani River) under Damagadi Tehsil of Jajpur District vide letter No. 2055 dated 07/05/2016 of Collector & D.M., Jajpur in respect to the compliance on National Green Tribunal case No. 48 of 2016/EZ- Uday Kumar Mallick & An. Vs. State of Odisha & Ors. regarding operation of Pankapal Sand Quarry-1 (Brahmani River). The following members present at Joint verification:-
Abdul Alim Khan, Additional District Magistrate, Kalinga Nagar, Jajpur
Bijoy Kumar nandi, Dy. Director of Mines, Jajpur Road, jajpur Circle.
Subas Chandrfa Nath Sharma, Tahasildar, Danagadi, Dist. Jajpur
Dr. Anup Kumar Mallick, Regional Officer, SPCB Kalinga Nagar, Jajpur
Sri Gayanidhi Patra, SDO, Irrigation, Jaraka Division, Jajpur.
Besides: Er. S. Mohanty, Env. Engineer, SPCB, Kalinga nagar, B. Marndi, Asst. Env. Scientist,SPCB, Kalinga Nagar, Ashit Kumar Behera, Mining officer, jajpur Road, Abhimanyu Mishra, Asst. Engineer Irrigation, the Revenue Supervisor, Danagadi and Surendra Biswal, Revenue Inspector, Mantira Circle, under Danagadi Tahasil, of Jajpur district were present. During visit Hemanta Kumar Sahoo, Lessee of the Pankapal-1 sand quarry was also present. The detailed observations are given as follows:-
1 The sairat source Case No.10/2015-16 of Pankapal, Khata No. 224, Plot No. 1075 & 1089, Kissam Nadi, over an area of 18 acres or 7,284 ha has been settled on 30.03.2015 in favour of Sri Hemanta Kumar Sahoo, s/o Sri Bauribandhu Sahoo, At/PO/P.S. Jakhapura, Dist. Jajapur.
2 The mining plan along with mine closure plan of this mining project has been approved by Dy. Director of Kines, Jajpur Road vide letter No. 1700 dated 22.07.2015.
3 The lessee of Pankapal-1 sand quarry has obtained Environmental Clearance from State Environmental Impact Assessment Authority (SEIAA) vide no. SIEAA/4240 dated 17.08.2015 for production capacity 1,80,000 m3 of sand over lease area of 18 acres.
4 The lessee has obtained consent to establish from the state Pollution
Control Board vide No. 168 dated 18.01.2016 for production capacity 36,000 m3 of sand per annum.
5 The lessee has obtained consent to operate from the State Pollution Control Board vide No. 275 dated 27.01.2016 for production capacity 36,000 m3 of sand per annum.
6 It is observed that mining is done in designated lease area over 7.284 hectares by manual mining method and maximum depth of quarry is 1.35 meter.
7 The sairat source is not affecting the river embankment, irrigation canal, aycut etc. There is no forest growth over the land and there is an approach road connecting to source. There is potentiality for lifting of minor minerals. Besides, that the sand sairat source is not coming under the safety zone taking into account the structural parameter, locational aspect flow rate etc. for carrying out mining in proximity to any bridge or embankment. The bridge at Kabatbandha on NH-200 is located at a distance of 1000 meters from this quarry area.
8 No unauthorised quarry operation is going on and the source ful fills the criteria as per OMMC Amendment Rule-2014 for long term quarry lease.
9 The Pankapal-1 Sand Quarry is situated at about 204 met5er distance away from the river embankment. There is a sluice gate which is under construction and the distance from the sluice gate to the Pankapal-1 sand quarry is about 205 meter distance.
10 The loaded vehicles carrying sand from the quarry is transported through river course of about 400 meter and then it passes through River embankment road upto 600 meter to reach NH-200. This 600 meters of embankment road is tar taped.
11 No sand traffic is passing through village road and there is no habitation site nearby.
12 The National Highway Bridge over the Brahmani River at Kabatabandh is situated at about 1 km distance from the Pankapal-1 sand quarry. The bridge is a part of NH-200 which connects from Paradeep & NH-16 to Kalinga Nagar Industrial area, Sukinda Chromite mines valley, and Keonjhar District. So all the heavy vehicles in these industry and mines belt are dependent on this bridge.
13 There is no excess mining than the permissible limit. The permissible limit of lessee is 36000 cu.m/Annum. The lessee has mined around 28,776 cu.m till the end of April 2016. During the month of March the quarry was not in operation since 05.03.2016 to 31.03.2016 due to discharge of water from the Rengali Dam and the sand quarry was merged in water. Hence the transportation activities were also not being carried out.
14 During the Joint Inspection dated 10.05.2016 it was verified that the ferrochrome slag were dumped outside the lease hold area in Quarry No.-2 of Pankapal sand quarry which is not started operation till date. At Pankapal-1 sand quarry, there is very less presence of the ferro-chrome slag which were dumped earlier before the grant of lease.
15 During the visit the water samples were collected by the authority of SPCB from the quarry area, upstream of the quarry and downstream of the quarry to know the presence of Hexavalent Chromium. The analysis report will be submitted by SPCB."
As per their submission, it is crystal clear from the report that there has been no violation and no threat to the river as alleged by the applicants. The Chief Engineer, Flood Control and Basin Manager, Lower Mahanadi Basin, Bhubaneswar also filed an affidavit taking a similar view as that of the Govt. Respondents No. 1&2 denying the allegations of the applicants.
The Respondent No.5, the project proponent, while refuting the entire allegations of the applicants, placed before us all the requisite documents like lease deed, approved mining plan, Environment Clearance, consent to establish, consent to operate, copy of the working permission, etc., and asserted that the Applicant No.1, who was the highest bidder for the very same sand quarry for the year 2014-15, and a failed bidder for the present term being a defaulter, has resorted to filing this application with malafide intent to obstruct the legal sand mining of the Respondent No. 5. Similarly, the applicant No. 2 was also a bidder for the year 2013-14 and that both the applicants had failed to comply with the mandatory requirements of the bid documents. During the course of his arguments, Mr. Prafulla Kumar Rath, Ld. Counsel for the Respondent No.5 would further submit that the Applicant No.1, Shri Udaya Kumar Mallick, was a habitual offender of law who had been imposed penalties by the authority for illegally transporting sand from the river bed.
Heard Learned Counsel for the parties, perused the documents on record and considered the various affidavits of the parties. From the documents as well as the submissions of the respective respondents, we are unable to find any violation of the statutory norms having been committed by the Respondent No.5 including the alleged non-compliance of EC conditions except for one, i.e., commencement of extraction of sand before the grant of consent to establish and consent to operate by the PCB. There is no denial of the fact that the Respondent No. 5 had executed the lease deed on 3.10.2015 and obtained approved mining lease permission /sanction of competent authority dated 22.07.2015, environmental clearance on 17. 08.2015, consent to establish from the PCB on
01.2016 and consent to operate on 27.01.2016. It is the allegation of the applicants that the respondent No.5 had started mining sand much before the grant of consent to establish. The Respondents No. 1 &2 in their affidavit have stated that the lessee had extracted only 28776 cm of sand out of 36000 cm prescribed in the mining plan during the period commencing from October 2015 to April 2016.. The relevant portion under paragraph 7 of the affidavit is reproduced below:-
"7....................Till the end of the month of April, since the beginning of the quarry operation in the month of Oct. 2015, the lessee has extracted only 28776 cm of sand out of 36000 cm prescribed in mining plan................"
During the course of hearing, the ld. Counsel for the Respondent No.5 fairly conceded that the Respondent No.5 had commenced with the mining operation from October, 2015 after obtaining the Environmental Clearance, lease permission and sanction order from the competent authority under a bonafide belief that he was operating legitimately. It was submitted that being an unemployed post graduate and new to the business, he was keen to start with the mining operation unaware of the law that necessitated obtaining consent to establish and consent to operate from the SPCB before doing so and that, as soon as he became aware of such requirement, he discontinued with the sand mining activities forthwith and filed applications before the Board for consent to establish and consent to operate. He resumed with the operation only after he was granted consent to operate by the PCB. The ld. Advocate would thus earnestly pray that a lenient view be taken and condone the Respondent No. 5 for his inadvertent minor transgression.
As already observed earlier, we find that there has been no violation of the EC conditions by the Respondent No.5 as alleged by the applicants except commencing with the operation of sand mining about three months from 3. 10.2015 before consent to operate was granted on 27. 01.2016 for the purpose. This infraction has been fairly conceded on behalf of the Respondent No.5 as having been committed unintentionally for the reasons alluded to above.
In view of the honest approach and fair concession, we are persuaded to accept the explanation that the infraction committed by the Respondent No.5 which was for an insignificant period, as a result of inadvertence on his part and not deliberate.
Under these circumstance, we find no merit in the O.A. and accordingly has to fail.
In the result the O.A. is dismissed.
No order as to costs.