Dismissed

Harihar Samal S/O Mathuri Samal Aged About 64 Years v. 1. State of Odisha Represented by Chief Secretary Government of Odisha

NGT10 May 2024Original Application No. 55/2023

Case brief

AI extract

What is this about?

The National Green Tribunal restrained the District Administration from allowing operation of the Kurunti Brahamani Sand Quarry, an old sand source, until the District Survey Report (DSR) is prepared, approved by the SEAC and SEIAA in compliance with Supreme Court directions.

What did the court decide?

Restraint on District Administration from allowing operation of the Kurunti Brahamani Sand Quarry until the District Survey Report (DSR) is approved by SEIAA as per Supreme Court directions.

Harihar Samal S/O Mathuri Samal Aged About 64 Years vs… — Mining and Natural Resources | NGT (2024)

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Item No.09

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Court No.1

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BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA

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(THROUGH PHYSICAL HEARING WITH HYBRID MODE)

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Original Application No.55/2023/EZ

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In the matter of:

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Harihar Samal S/o, Mathuri Samal, Aged about 64 years, At – Kurunti, P.O. – Kusupanga, P.S. – Motanga, Dist. – Dhenkanal Pin – 759121

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….. Applicant(s)

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Versus

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1. State of Odisha

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Represented by Chief Secretary, Government of Odisha, Lokaseva Bhawan, Bhubaneswar;

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2. Member Secretary,

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State Environment Impact Assessment Authority (SEIAA), Odisha

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5RF-2/1, Acharya Vihar, Unit – IX, Bhubaneswar, Odisha – 751022;

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3. The Collector and District Magistrate, Dhenkanal, At/PO/Dist. – Dhenkanal, Odisha, Pin – 759001;

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4. Tahsildar, Odapada,

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At/PO/PS – Odapada, Dist. – Dhenkanal, Odisha, Pin – 759019;

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5. The Member Secretary,

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Odisha Pollution Control Board ,

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Parivesh Bhawan, Neyapalli, Nilakanthanagar Bhubaneswar;

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6. Deputy Director General of Forests (C),

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Ministry of Environment, Forests and Climate Change,

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Integrated Regional Office (EZ), A/3, Chandersekharpur, Bhubaneswar – 751023;

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8. M/s Pankajini International Pvt. Ltd., C/o, Sonal Kumar Sahoo, Director, Flat No.3C, Aditya Palace, Paikanagar, Nayapally;

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….. Respondent(s)

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Date of hearing: 10.05.2024

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CORAM: HON’BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON’BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER

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For Applicant(s) : Mr. Sankar Prasad Pani, Advocate a/w Mr. Ashutosh Padhy, Advocate (in Virtual Mode)

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For Respondent(s) : Mr. Sailaza Nandan Das, ASC for R-1,3&4 (in Virtual Mode), Mr. Apurba Ghosh, Advoate for R-2 (in Virtual Mode), Ms. Papiya Banerjee Bihani, Advocate for R-5 (in Virtual Mode), Mr. Dibyendra Narayan Ray, Advocate for R-6

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ORDER

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Mr. Sankar Prasad Pani assisted by Mr. Ashutosh Padhy, learned Counsel (in Virtual Mode) is present on behalf of the Applicant.

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The Applicant in the present Original Application is stated to be a villager of Kurunti Village of District-Dhenkanal, where an auction notice for the proposed sand mining source has been issued. It is stated that the District Survey Report (‘DSR’ for short) for Dhenkanal was prepared in 2019 with subsequent amendments in 2020. It is stated that the Report is signed by the Sub-Collector, Dhenkanal, District Magistrate, Dhenkanal, Divisional Forest Officer, Dhenkanal and one independent Member, namely, Nilamani Maharana but the Report is not based on the ground realities and no joint field visit has been carried out by the Water Resource Department (Irrigation Department), State Pollution Control Board, Public Works Department, Mining/Geology Department and Tahasildar to assess the ground situation which is stated to be mandatory prior to the preparation of the report. It is also stated that Kurunti Sand Quarry has an area of 50585.71 square meters (12.5 acres).

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It is further stated that the Respondent No.7, Private Respondent, was earlier granted Consent to Operate over an area of 12.5 acres vide letter dated 04.05.2021 (Annexure-9 to the Original Application), which has expired with the lease period.

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It is alleged that the current auction holder of the Kurunti Sand Quarry was also the lessee of the sand quarry in the previous auction until December, 2022, and has been using the village road for sand transportation unauthorisedly over the Rengali Right Canal. It is stated that the heavy vehicles of more than 15 tonnes capacity were moving on the village roads.

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At the time of admission, the Tribunal constituted a Committee comprising of the following Members:-

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i. Senior Scientist, Odisha State Pollution Control Board;

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ii. Senior Scientist, SEIAA, Odisha and

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iii. Collector & District Magistrate, Dhenkanal, or his nominee not below the rank of Additional District Magistrate.

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The Committee was directed to visit the site in question and submit its Inspection Report.

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Notices were issued to the Respondent No.8. No one responded on behalf of the Respondent No.8 and, therefore, a direction was issued for service upon the Respondent No.8 through District Magistrate, Dhenkanal. In compliance, a Report has been submitted showing service upon the Respondent No.8 with his seal.

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The Applicant has also filed affidavit of service showing service upon the Respondent No.8.

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In this view of the matter, service upon the Respondent No.8 shall be deemed to be sufficient.

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The Respondent No.7, Private Respondent, has filed affidavit dated 19.07.2023 stating therein that there is no allegation in the Original Application against him and he is not the auction holder pursuant to the auction notice dated 25.11.2022 and, therefore, he may be deleted from the array of Respondents. Accordingly, by order dated 18.03.2024, the Respondent No.7 was deleted from the array of Respondents.

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The Collector & District Magistrate, Dhenkanal, has filed affidavit dated 08.08.2023 stating that the Kurunti Brahamani Sand Quarry is an old sand source for which environmental clearance was obtained from State Level Environment Impact Assessment Authority (SEIAA), Odisha dated 24.07.2017 and Consent to Operate (CTO) was also issued by the Odisha State Pollution Control Board for five years valid from 06.12.2017 to 05.12.2022. It is also stated that several orders were issued by the Collector, Dhenkanal directing the lessee not to use village road and canal embankment road for transportation of sand.

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It is further stated that pursuant to MoEF & CC notification dated 25.07.2018, District Survey Report (DSR) in respect of Dhenkanal District was prepared and the same was also approved by the Chairperson, DEIAA, Dhenkanal on 24.12.2019 which is required to be updated every five years and, accordingly, the DSR of Dhenkanal will expire on 23.12.2024.

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Reference has been made to the order passed by the Hon’ble Supreme Court in Civil Appeal Nos.3661-3662 of 2020 (State of Bihar Vs. Pawan Kumar & Ors.) which reads as under:-

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“Hon’ble Mr. Justice B.R. Gavai pronounced the order of the Bench comprising Hon’ble Mr. Justice L. Nageswara Rao, Hon’ble Mr. Justice Sanjiv Khanna and His Lordship.

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The directions issued by the Tribunal vide judgment and order dated 14^th October 2020, are substituted as follows:

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(i) The exercise of preparation of DSR for the purpose of mining in the State of Bihar in all the districts shall be undertaken afresh. The draft DSRs shall be prepared by the subdivisional committees consisting of the Sub-Divisional Magistrate, Officers from Irrigation Department, State Pollution Control Board or Committee, Forest Department, Geological or mining officer. The same shall be prepared by undertaking site visits and also by using modern technology. The said draft DSRs shall be prepared within a period of 3 6 weeks from the date of this order. After the draft DSRs are prepared, the District Magistrate of the concerned District shall forward the same for examination and evaluation by the SEAC. The same shall be examined by the SEAC within a period of 6 weeks and its report shall be forwarded to the SEIAA within the aforesaid period of 6 weeks from the receipt of it. The SEIAA will thereafter consider the grant of approval to such DSRs within a period of 6 weeks from the receipt thereon;

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(ii) Needless to state that while preparing DSRs and the appraisal thereof by SEAC and SEIAA, it should be ensured that a strict adherence to the procedure and parameters laid down in the policy of January 2020 should be followed;

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(iii) Until further orders, we permit the State Government to carry on mining activities through Bihar State Mining Corporation for which it may employ the services of the contractors. However, while doing so, the State Government shall ensure that all environmental concerns are taken care of and no damage is caused to the environment.

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List the matter after 20 weeks.”

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It is stated that in pursuance of the directions of the Hon’ble Supreme Court, SEIAA, Odisha vide its order dated 03.03.2023 the

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District Magistrate, Dhenkanal was directed to forward the DSR to SEIAA, Odisha for approval. In compliance thereof, the District Magistrate, Dhenkanal by his letter dated 31.05.2023 submitted the DSR for River Sand, Laterite, Road Metal, Morrum of Dhenkanal as vetted by DEIAA, Dhenkanal to SEIAA, Odisha for approval.

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It is stated that the DSR was returned by SEIAA, Odisha on the ground that it had not been prepared as per the directions specified in the order of the Hon’ble Supreme Court dated 10.11.2021 and, therefore, a direction was given by SEIAA, Odisha to prepare a proper DSR in respect of District Dhenkanal.

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It is further stated in the affidavit of the Collector, Dhenkanal that

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the Kurunti Brahamani River Sand Quarry was settled on long term lease since the year 2015-16 and at that time the Sand Policy, 2016 and 2020 were not enforced. It is, however, stated that the Kurunti Brahamni River Sand Quarry has been settled in the year 2022 and the Sand Mining Policy, 2016 has laid down and Enforcement & Monitoring Guidelines for sand mining issued by MoEF & CC shall be duly followed and the same will be considered by SEIAA, Odisha while granting environmental clearance and replenishment study will be carried out for the source from the year 2023, both premonsoon and post-monsoon.

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The stand of the State Respondents is that in the District Survey Report dated 24.12.2019, the area of the sand source in question was Ac.12.50 dec. On 16.04.2016, the source in question was advertised by the Respondent No.4 and leased out in favour of the Respondent No.7 for the said area valid from 06.12.2017 to 05.12.2022.

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However, for purposes of fresh auction for another term of five years i.e. from 2022-23 to 2026-27, a joint verification by a technical team is required and joint verification was carried out by Joint Director, Geology, Dhenkanal, Regional Office, State Pollution Control Board, Angul, Executive Engineer, Rengali Right Canal, Dhenkanal, Assistant Conservator of Forest (ACF), Dhenkanal in the presence of the Tahasildar, Odpada and Sub-Collector, Dhenkanal to ascertain the potentiality of the source. During the joint verification on 05.09.2022, it was found that due to change in water course, an area of Ac.0.50 is not feasible for sand mining; hence, the total area for source has now been reduced to Ac.12.00 from Ac.12.50.

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It is stated that advertisement for settlement of the sand source for the year 2022-23 to 2026-27 was issued by the Tahasildar, Odapada vide Notice No.6057 dated 25.11.2022 and published vide local Odia Newspaper on 30.11.2022 and keeping in view the approved District Survey Report and the views of the joint enquiry on feasibility of potential sources of minor minerals, the Kurunti Brahamani Sand Quarry has been processed and settled in favour of the highest bidder on 13.12.2022 i.e. the Respondent No.8, M/s Pankajini International Pvt. Ltd., Bhubaneswar who is the present auction holder of quarry in question. It is, however, stated that since environmental clearance and Consent to Operate (CTO) have not yet been obtained by the Respondent No.8, M/s Pankajini International Pvt. Ltd., the sand source in question is still not in operation.

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With regard to the allegations of illegal mining and mining beyond the lease area of Kurunti Sand Bed and use of mechanical mining

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and transportation through heavy vehicles, it is stated that the site was inspected by the Tahasildar, Odapada who has submitted a factual report vide his letter dated 06.06.2023 to the effect that no excess or illegal mining or mining beyond lease area has been done at Kurunti Sand Bed by the previous lessee i.e. Respondent No.7 in the previous years and no machines have been found in the lease area or surrounding area of the Kurunti Brahamani Sand Quarry.

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The Respondent No.2, SEIAA, Odisha, has filed affidavit dated 16.03.2024 stating that during the joint visit by the Committee, it was found that the quarry in question was not in operation as the lease period had expired on 05.12.2022; no sand loading vehicles were noticed on the village or the canal road. The submissions already made by the Collector, Dhenkanal, have been reiterated that the District Survey Report (DSR) of Dhenkanal District has not yet been updated and will expire on 23.12.2024 and letter has been issued to all the District Collectors in Odisha for preparation and submission of DSR to the SEIAA, Odisha and SEAC for approval and reminder letter has also been issued on 03.03.2023 but till date no DSR has been received for approval of SEIAA & SEAC except the DSR of Balasore District which is subject matter of consideration in Appeal No.18/2023/EZ, Haripada Manna Vs. State of Odisha & Ors. It is also stated that after issue of letter from SEIAA, Odisha, the District Administration, Dhenkanal had submitted DSR to SEIAA, Odisha vide letter dated 31.05.2023 for approval but the same was turned down by SEIAA as it was not prepared in terms of the directions given by the Hon’ble Supreme Court. It is further stated that thereafter, SEIAA, Odisha is yet to

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receive the revised DSR from the District Administration, Dhenkanal.

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However, the stand of Respondent SEIAA, Odisha in paragraph-5 of its affidavit is that SEIAA, Odisha is allowing environmental clearances basically for sand quarry based on Replenishment Study Report and also in adhoc manner with restriction of quantity if Replenishment Study Report is not correct and not accepted by State Level Expert Appraisal Committee (SEAC). Relevant extract of paragraph-5 of the affidavit reads as under:-

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“5. ………………………xxxxxxxxxxxxxxxxxxxx……………………….

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Presently, the SEIAA is allowing EC basically for sand quarries based on replenishment study report and also in adhoc manner with restriction of quantity if replenishment study report is not correct and not accepted by State Level Expert Appraisal Committee (SEAC).”

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It is stated that Kurunti Brahamani River Sand Quarry is an old source and has been settled on long term lease since 2015-16 and at that time the Sand Policy has not been introduced but now the Kurunti Brahamani Sand Quarry has been settled in the year 2022 and the Sand Policy will be followed meticulously and replenishment study will be carried out for the source from the year 2023 as pre-monsoon and post-monsoon as per the Enforcement & Monitoring Guidelines for Sand Mining issued by MoEF & CC on January, 2020.

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Question is that in the absence of a duly approved DSR in terms of the directions given by the Hon’ble Supreme Court in Pawan Kumar (supra) how is SEIAA, Odisha granting environmental clearance for sand quarry.

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It is surprising that on the one hand the stand of SEIAA, Odisha is that the DSR has not been approved by it and after it raised certain objections with regard to compliance of the directions given by the Hon’ble Supreme Court in Pawan Kumar (supra), no revised DSR has been submitted by the District Administration, Dhenkanal. On the other hand, it is admitted by SEIAA, Odisha that it is allowing Environmental Clearance for sand quarries based on Replenishment Study Report and also in ad hoc manner with restriction of quantity if Replenishment Study Report is not correct and not accepted by SEAC.

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It is further stated that certain allegations were made by the local residents of the villages on the issue of transportation of sand loaded vehicles through village road and also safety of embankment of Rengali Right Canal, surprise visits were carried out and two vehicles were detected on canal road carrying sand and a sum of Rs.2,00,000/- (Rupees Two lakhs only) by way of fine was imposed and collected from the owner of the vehicle and strict instructions were issued to the lessee not to use any further village road as well as canal road. It is also stated that tender process was published for the Kurunti Brahamani Sand Quarry over an area of 4.85 Ha. and ToR was issued by SEIAA, Odisha on 06.11.2023 for EIA study and public hearing; it is stated that the Project Proponent is yet to submit application seeking environmental clearance to SEIAA, Odisha.

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Heard the learned Counsel for the parties and perused the documents on record.

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The case of the SEIAA, Odisha is that the Kurunti Brahamani Sand Quarry over an area of 12.50 acres or 5.06 Ha. at Village-Kurunti,

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Tahasil-Odapada, District-Dhenkanal was an old source for which Environmental Clearance (EC) was issued by SEIAA, Odisha on 30.01.2016 in favour of one Sri Pulin Bihari Nayak, the successful bidder/lessee for five years lease period i.e. 2016-17 to 2020-21 which expired on 05.12.2022. Thereafter, new auction notice was issued for settlement of fresh lease for five years period vide letter dated 25.11.2022 and vide an online application dated 06.09.2023 the Project Proponent Tahasildar, Odapada has applied to SEIAA, Odisha for Terms of Reference (ToR) as a B-1 category project for both Kurunti and Kusupanga sand bed falling under cluster with total cluster area of 8.740 Ha. as per EIA Notification, 2006. Terms of Reference has been issued on 06.11.2023 for the said project proposal for EIA studies, Annual Rate of Replenishment Study (ARRS) of sand including public hearing. The Sustainable Sand Mining Management Guidelines, 2016 were not in force at that time and the said sand lease granted for the period 2016-17 to 2020-21 expired on 05.12.2022. Thereafter, auction for the sand source for the years 2022-23 to 2026-27 auction has been held in which Respondent No.8, M/s Pankajini International Pvt. Ltd., Bhubaneswar, emerged as the successful bidder.

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The fact remains that environmental clearance has not been issued by SEIAA, Odisha so far in favour of Respondent No.8 and Consent to Operate (CTO) is also required to be obtained by the Respondent No.8 from the Odisha State Pollution Control Board. It is stated that there has been no illegal mining in previous years but on the complaint of the villagers during a surprise visit, two vehicles were seized carrying sand on the Rengali Canal road and a sum of

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Rs.2,00,000/- (Rupees Two lakhs only) was recovered by way of fine.

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However, in view of the categorical stand of SEIAA, Odisha that the revised District Survey Report (DSR) has not been submitted yet for its approval by the District Administration, Dhenkanal, we are of the firm view that the Kurunti Brahamani Sand Quarry i.e. the quarry in question, cannot be operated unless a replenishment study has been carried out and District Survey Report (DSR) is prepared and approved by SEAC and SEIAA, Odisha as per the directions given by the Hon’ble Supreme Court in its order dated 10.11.2021.

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We, therefore, dispose of the present original application with a clear direction restraining the District Administration, Dhenkanal from allowing operation of the sand source of the Kurunti Brahamani Sand Quarry in District Dhenkanal, even on ad hoc basis, unless and until the District Survey Report (DSR) is approved by SEIAA, Odisha as per directions given of the Hon’ble Supreme Court in Pawan Kumar (supra).

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Interlocutory Applications if any, stand disposed of accordingly.

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There shall be no order as to costs.

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..................................... B. Amit Sthalekar, JM

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….......................................... Dr. Arun Kumar Verma, EM

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May 10, 2024, Original Application No.55/2023/EZ MN

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Harihar Samal S/O Mathuri Samal Aged About 64 Years v. 1. State of Odisha Represented by Chief Secretary Government of Odisha

Case brief

What is this about?

What did the court decide?

Harihar Samal S/O Mathuri Samal Aged About 64 Years v. 1. State of Odisha Represented by Chief Secretary Government of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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