Disposed

News Report Published in the Newspaper Named "Indian Express Daily News Paper Dated 4 February 2022 Kolkata Late City Edition Which Is About the Non Compliance of Ec Conditions by Kulda Coal Mine Odisha & Tamnar Thermal Plant Chattisgarh" v. Tamnar Power Plant

NGT8 Nov 2024Original Application No. 70/2023

Case brief

AI extract

What is this about?

The Tribunal held that the State must construct and maintain the road using funds from the District Mineral Foundation Trust. It ruled that road transport of coal is permissible under Rule 3(8)(3) until rail infrastructure is available, directing completion of the rail line by April 1, 2025.

What did the court decide?

Directed States to use DMF funds for road construction; confirmed legality of coal road transport pending rail completion; directed rail completion by 01.04.2025.

News Report Published in the Newspaper Named "Indian… — Environment and Pollution | NGT (2024)

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Item No. 01

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BEFORE THE NATIONAL GREEN TRIBUNAL CENTRAL ZONE BENCH, BHOPAL (Through Video Conferencing)

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Original Application No. 70/2023(CZ) (O.A.No.236/2022- PB)

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In Re: News report published in the Newspaper named Indian Express, Daily News Paper dated : 4^th February, 2022, Kolkata, Late City Edition titled “Noncompliance of EC conditions by Kulda coal mine, Odisha & Tamnar Therman Plant, Chhattisgarh.

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Suo Moto….

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Date of completion of hearing and reserving of order : 17.10.2024 Date of uploading of order on website : 08.11.2024

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CORAM: HON’BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER HON'BLE DR. SENTHIL VEL, EXPERT MEMBER

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For Applicant (s): Mr. Brinjendra Kumar Mala, Adv. For Respondent(s) : Mr. Ashwani Kumar, Sr. Adv. (with Ms. Gauri Rasgotra, Adv.) Mr. Gopal Jain, Sr. Adv. (with Mr. Priyashree Sharma, Adv. Ms. Charvi Patni, Adv. Ms. Shubra Sharma, Adv. Ms. Shefali Sangwan, Adv. Mr. Manish Kharbanda, Adv. Ms. Ekta Gupta, Adv. Mr. Gurpreet Singh Bagga, Adv.) Mr. Ninad Laud Adv. (with Mr. Anjuman Tipathy, Adv. Ms. Rahika Narain, Adv. Mr. Ardhendu Pratap Swain, Adv. Mr. Shreeyash U. Lalit, Adv. Ms. Runjhun Garg, Adv. Mr. Lavam Tyagi, Adv. and Mr. Angad Pahel, Adv.) Mr. Abhinoy Sharma, Adv. Ms. Deeksha Prakash, Adv. Ms. Parul Bhadoria Khurana, Adv. Mr. Ishan George, Adv. Ms. Rukma George, Adv. Mr. Archit Jain, Adv. Mr. Ashhab Khan, Adv. Mr. Vineet Tayal, Adv.

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O.A. No. 70/2023(CZ)

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In Re: News report published in the Newspaper named Indian Express, Daily News Paper dated : 4th February, 2022, Kolkata, Late City Edition titled “Noncompliance of EC conditions by Kulda coal mine, Odisha & Tamnar Therman Plant, Chhattisgarh”

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Mr. Nishtha Wadhawa, Adv. Dr. Sapna Aggarwal, Adv. Mr. Shashank Bajpai, Adv. Mr. Ankit Singhal, Adv. Mr. Ashish Mittal, Adv.

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ORDER

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The main issue involved in this Application is non-compliance of the conditions of the environmental clearance by project proponent and continuing transportation of coal by road from Kulda, affecting the respiratory illness and contaminating of water bodies and crop land, leading to loss of productivity and blackening of vegetables and paddy.

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Proceedings have been initiated in the present matter based on media report to the effect that there is violation of environment norms, particularly the EC conditions in operation of Kulda Coal Mine, Odisha & Tamnar Thermal Plant, Chhattisgarh. It is alleged that the violations take place in the course of transportation of coal from Kulda to Tamnar in 200 dumpers of 21 tonnes capacity, requiring 400 daily trips or a truck passing every 3-4 minutes, round the clock, through 14 villages with a combined population of over 15,000 as per census 2011. Construction work on a CCPC from Kulda could not be accelerated due to nonavailability of dedicated coal linkage. JPL has also planned to develop a dedicated railway siding. Pending such work, JPL will continue transportation of coal by road from Kulda. Affected villagers have complained of spike in respiratory illness and contamination of water bodies and cropland, leading to loss of productivity and blackening of vegetables and paddy.

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Vide order dated 30.03.2022, Tribunal constituted a joint Committee of CPCB, State PCBs of Odisha and Chhattisgarh, Regional Officer of

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MoEF&CC at Bhuvneshwar and District Magistrates Sundergarh (Orissa) and Raipur (Chhattisgarh) to ascertain facts and furnish a factual report to this Tribunal.

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The joint Committee filed its report dated 11.07.2022 acknowledging the violations and recommending remedial action as follows:-

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“Observations of the committee –

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During the site visit and discussions held with the project authorities the following points are noted:

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1. With reference to the road, a meeting was called and chaired by the Collector, Sundergarh for maintenance of road as well as reduction of pollution along the settlement area in March, 2021. The collector, Sundergarh, had directed the transporters to ensure the following:

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About 4 km of black top road has been constructed. The balance road is repaired with WBM/slag covering with pot holes. The high rising blue sheets have been installed along the boundary wall of schools in five villages to restrict noise and dust pollution. Strict adherence of proper covering of coal transport vehicle by tarpaulin. Hundred meters of distance is being maintained between the vehicles. Volunteers are deployed by the transporter on the road for proper vehicle movement and speed limit. 17 number of water tankers have been deployed for sprinkling of water on the road for suppression of dust. The coal transportation by vehicles is restricted between 6 am and 1 pm (during school hours).

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2. The alleged road is of length about 25 km and is Major District Road(PWD road)connecting from Bankibahal chowk, Hemgir Block, Odisha to Taparia, Hamirpur, Chhattisgarh. The road in question passes through 14

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nos. of revenue villages, having schools and dispensaries. Major District Road generally connects from the point of a District to State Highway and National Highway. Houses of Villagers, Schools and other social infrastructures which are located adjacent to the Road. 3.

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3. At present, more than 1400 nos. of heavy coal transporting vehicles (both loaded & unloaded trucks) daily passes through this road. Heavy traffic of coal transportation vehicles in the major district road has affected the use of the road by villagers for their basic need purposes. The construction of conveyor belt for transportation of coal from Kulda OCP to Tamnar Thermal Plant (Jindal Power Limited (JPL) has not been made. 4. It has come to the notice of the committee that the road in question was in damaged condition since more than five years. Due to the damaged road condition, Villagers were facing fugitive dust problems & noise issues during plying of vehicles.

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4. During the deliberations it was also noted that M/s JPL was the company purchasing highest quantity of coal from the Kulda mine. Apart from the JPL, the other companies that procure coal along with the quantity during the last two years are given in the list below:

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“Road dispatch report for the FY 2021-22 (Only

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Raigarh Route consumers)

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Consumer ’s	KULDA O	CP	GARJANBAH	AL OCP	Total		Percen tage
Name	Dispatch Qty	Trip	Dispatch Qty	Trip	Dispatch Qty	Trip
Bharat Aluminum Company Ltd.	83,000.00	2,721	45,943.00	1,459	1,28,943.00	4,180	1.58
DB Power Ltd.	2,99,975.00	9,723	2,92,565.08	9,288	5,92,540.08	19,011	7.25
Ind Synergy Ltd.	1,76,321.17	5,642	28,935.95	919	2,05,257.12	6,561	2.51

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Jindal Power Ltd.	22,93,512.63	74,572	20,20,534.39	64,144	43,14,047.02	^13,8716 52.82
Jindal Steel and Power Ltd.	7,47,177.55	24,397	3,40,926.51	10,823	10,88,104.06	35,22013.32
JSW Ispat Special Products Limited	1,35,000.00	4,347	2,09,162.04	6,640	3,44,162.04	10,9874.21
R K M Powergen Private Limited	1,36,702.12	4,387	68,759.76	2,183	2,05,461.88	6,570 2.52
Raigarh Energy Generatio n Ltd.	6,99,843.32	22,274	3,09,539.14	9,827	10,09,382.46	32,55112.36
SKS Power Generatio n	95,635.87	3,118	4,3910	1,394	1,39,545.87	4,512 1.71
Vasundha ra Power and Infrastruc ture	1,19,000.00	3,883	21,500.00	683	1,40,500.00	4,566 1.72
TOTAL	47,86,167.66	1,55,51 4	33,81,775.87	1,07,358	81,67,943.53	2,62,87 2

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Road dispatch report for the FY 2021-22 (Only

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Raigarh Route consumers)

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*Consumer’s*	_KOCP _		_GOCP _		*Total*
*Name*	*Dispatch* *Qty*	*Trip*	*Dispatch* *Qty*	*Trip*	*Dispatch* *Qty*	*Trip*
Bharat Aluminum Company Ltd.	13594	432	4508.35	143	18102.35	575	0.24
DB Power Ltd.	180000	5714	506944.71	16093	686944.71	21807	9.12
Ind Synergy Ltd.	207306.17	6581	30143.83	956	237450.00	7537	3.15
Jindal Power Ltd.	2358901.83	74886	1628317.97	51692	3987219.80	12657	852.95
Jindal Steel and PowerLtd.	690478.92	21920	426598.95	13542	1117077.87	35462	14.84
JSW Ispat Special Products Limited	17020.77	540	0.00	0	17020.77	540	0.23

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R K M Powergen Private Limited	502069.43	15939	48000	1524550069.43	17463 7.31
Raigarh Energy Generatio n Ltd.	222772.61	7072	256747.46	8151479520.07	15223 6.37
SKS Power Generatio n	125194.58	3974	132000	4190257194.58	8164 3.42
Vasundh ara Power and Infrastruc ture	145279.77	4612	33813.01	1073179092.78	5685 2.38
*TOTAL*	*44,62,618* *.08*	*1,41,* *670*	*30,67,074.2* 8	*97,36475,29,692.3* 6	*2,23,0* 34

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It is observed by the Committee that transportation of coal to the state of Chhattisgarh is being carried out through road connecting Kulda to Hamirpur passing through a number of villages. During the site visit and interaction the following points are noted

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1. Bankibahal Taparia road was under construction and the work of improvement of the said road for a stretch of 22.22 Km has been awarded to M/s. RKD Construction by PWD, Sundargarh for a value of Rs.118.34 Crores. At present, only 20% of the work had been completed by the contractor. The work is scheduled to be completed by January, 2024.

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2. It is a fact that plying of trucks carrying coal from the Kulda mine to industries in Chhattisgarh, including Tamnar Thermal Power Plant of M/s Jindal Power Limited is causing high fugitive dust emission resulting in hardship to the people of the villages located all along the road.

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3. There is only one road worthy of transporting the coal through the shortest distance to the state of

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Chhattisgarh. As on date, on an average, there about 700 trips by trucks being carried out per day for carrying coal to Chhattisgarh, apart from other trucks carrying iron ore and other minerals.

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4. A total of 36.48 million tonnes of coal is transported annually from the Basundhara area which includes Kulda OCP, Garjanbahal OCP and Basundhara West Open Cast Mine. Out of this quantity, 19.62 million tonnes of coal is transported by rail through Sardega and Kanika Railway sidings and 8.86 million tonnes is transported through road towards Raigarh in Chattisgarh.

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5. Due to movement of trucks loaded with coal, it is submitted by the villagers that their health is affected. It is also submitted that the movement of the people from the villages is seriously affected including shipment of patients from villages to health centers. This is recorded in report submitted to the Hon’ble High Court of Odisha in the WP (C) No. 6587 of 2021 (Copy attached as Annexure-I).

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6. During the period of Inspection, there was no movement of trucks observed on the road. It was informed that as per the Official Order of the District Collector, Sundergarh, up to 1:00 P.M, there was restriction on the movement of trucks in order to facilitate the movement of the village communities. The road condition was very poor due to development of many rut & pot holes. The condition of the road has huge potential of increasing whole body vibrations of the coal transportation vehicles and spillage of coal dust resulting heavy fugitive road dust during plying of vehicles.

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7. Accumulation of dust on the road as well as side of the road was observed which has also heavy potential of fugitive road dust during plying of vehicles. The road condition does not allow effective mechanical cleaning and hence manual effective cleaning had not been carried out regularly.

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8. It is noted that there is dust emission from the road due to plying of vehicles. It is observed that in compliance to earlier order of the Hon’ble High Court and directions issued by the District Administration, water sprinkling is being carried out on this road in areas near to the villages by the consumers of coal, primarily JPL in addition to MCL which is carrying out sprinkling of water in the buffer zone surrounding 10 kms. However, due to summer season, it is viewed that the frequency of water sprinkling is to be increased as per the requirement.

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9. The MCL authorities should ensure that all the vehicles coming out of their control area are properly covered with Tarpaulin.

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The following points are noted:

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1. The production from the Kulda OCP is being transported from the mine site to the point of sale by M/s MCL authorities, which they claim as their sole responsibility. In the passage, it has been submitted by the project authorities M/s MCL, that there are no villages en-route to the point of sale where the responsibility of M/s MCL ends.

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2. It is also submitted that presently there are two railway sidings in operations viz. Sardega railway siding and Kanika Railway siding. The transportation from the mine site to these railway

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sidings is presently being carried out through four lane road constructed and being operated by M/s MCL and it is not passing through any of the villages.

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The Ministry has subsequently granted EC to the proposal for expansion of Kulda Mine from 16.8 MTPA to 19.6 MTPA vide letter No. J- 11015/10/1995-IA-II(M) dated 14.02.2022 in which Condition No. ix states that “Project Proponent (PP) should not transportation of coal through road passing through any village and further ensure that its consumers of coal are also not using village road and passing through any sensitive location such as schools, hospitals, etc. PP shall take legal undertaking from its consumers accordingly”.

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It is submitted to the committee by the MCL authorities that Notices have been issued by them to the consumers or buyers for submission of legal undertaking as per the stipulated condition. However, M/s. MCL has not ensured for the compliance of the aforesaid EC condition and if not coming under their role & responsibilities, M/s. MCL has not yet submitted its representation for amendment of such EC condition.

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Recommendations:

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1. In view of the above, it is clear that the allegations made in the matter of media report regarding coal transportation by road particularly as mentioned in the EC conditions from Kulda Coal Mine, Odisha to Tamnar Thermal Plant, Chhattisgarh were substantiated.

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2. The works for repair and renovation of the existing road is already in progress. Vehicles, both light and

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heavy are plying on the road from Kulda area to Chhattisgarh. Due to this movement of large nos. of vehicles, especially on the road under construction there is a lot of fugitive road dust emission during plying of vehicles. Following measures may be taken immediately by the transporters/consumers/ project proponent(Coal Producer).

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a. Accumulation of dust by the side of the road as well as along the road needs to be effectively cleaned regularly.

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b. Speed along with PUC along with instant testing of all coal transporting vehicles may be checked on random & surprising basis by Regional Transport Officer time to time.

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c. Frequent water sprinkling all along the roads needs to be carried out and shall be ensured for its adequate dust suppression.

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d. Construction of road passing through or near the villages are to be made at the earliest, preferably during the 1^st phase of construction on priority.

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3. Expedite the road construct work in time bound manner. Heavy Traffic in Road delays the road construction & affects the quality of work during construction phase. Till such time, coal transportation through other road routes (via NH/SH) or rail mode may be preferred.

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4. In future, as new coal mining projects and expansion of Kulda OCP are coming, there are possibilities of increasing load of Coal transportation by Road through this route. Hence, the coal transportation road through this site

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shall pass all the village residential area. Pipe conveyor or other closed belt conveyor system of conveying along with silo system to the major bulk consumers (short distance)may be preferred for abatement of road dust pollution.

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5. Rail route: The transportation of coal to Chhattisgarh is primarily through road at present. There is no railway line/connecting directly to Tanmar Thermal Power Project in Chhattisgarh. The transportation through rail may be done so as to have an environmentally safe, movement of coal, without affecting the village population residing near or all along the road.

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6. Transportation of coal to Tamnar Thermal Power Plant through conveyor Belt had been stipulated to the project. Till date this has not been complied with. The project authorities, M/s JPL has sought extension of time for its compliance and necessary permission for transport through road. The project proponent M/s JPL should prepare an Action Plan along with the implementation schedule for construction and completion of this conveyor belt transport system of coal.

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7. For compliance of environment quality and safety of the roads, especially with respect to water sprinkling all along the roads, a Monitoring Committee headed by a Senior Executive of MCL and comprising of executives from all the consumers/transporters may be constituted and the status of compliance as well as the progress made in this regard may be reported to the Collector of Sundergarh District and General

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Manager Environment, MCL on weekly basis. This would improve the existing status of environment quality.

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8. Since the number of vehicles passing through this single road is very high, it is viewed that the traffic of plying vehicles may be reduced by:-

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i. Finding alternate route, without passing through or near these villages so that the impact of transportation of vehicles is reduced on the community residing in the villages.

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ii. Rail route: The transportation of coal to Chhattisgarh is primarily through road at present. There is no railway line/connecting directly to Tanmar Thermal Power Project in Chhattisgarh. The transportation through rail may be done so as to have an environmentally safe, movement of coal, without affecting the village population residing near or all along the road.

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9. For compliance of environment quality and safety of the roads, especially with respect to water sprinkling all along the roads, a Monitoring Committee headed by a Senior Executive of MCL and comprising of executives from all the consumers/transporters may be constituted and the status of compliance as well as the progress made in this regard may be reported to the Collector of Sundergarh

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District and General Manager Environment, MCL on weekly basis. This would improve the existing status of environment quality.

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10. The committee was of the opinion that a long, term solution to the existing problem needs to be addressed to this problem. It was viewed that a Comprehensive Study may be undertaken through an Institution of National Repute like NEERI, etc. The study may also explore the alternate ways of transportation. The Hon'ble NGT may give necessary direction for bearing the cost of the above-mentioned study.

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Conclusion:

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All the members of the committee agreed to the fact that the existing coal transport from Kulda to Tamnar through the road passing through the villages is not in motorable condition and has an impact on the environment, health and safety of local villagers. This road needs to be repaired and renovated at the earliest. Presently construction works are in progress and the situation has improved in comparison to past keeping in view the coal requirement by various industries in the country at present and the expansion proposals envisaged by the MCI, authorities as well as State/District authorities. It is of the view that a lot% term transport management plan may be prepared after in-depth study in the total area keeping in view the requirement of the transportation of the coal and other commodities in the next 20 years.”

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Tribunal considered the report on 15.07.2022 and accepted the same and further directed remedial action to be taken in terms of recommendation to stop further pollution and to fix liability for the past violations on ‘Polluter Pays’ principle. In particular, road

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needs to be constructed expeditiously, as recommended by the Committee. For this purpose, Tribunal directed Chief Secretaries, Orissa and Chhattisgarh to hold a joint meeting along with the Project Proponents (PPs) and Members of the joint Committee, constituted by the Tribunal, within one month and work out further course of action, including apportionment of the cost for the construction for protection of the environment and enforcement of EC conditions.

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It is also said by Tribunal in order dated 15.07.2022 that in case, there is no consensus in the meeting, joint Committee may apportion the liability of the PPs of both the States so that construction of road takes place speedily. The meeting may be held within one month and to be chaired by the Chief Secretary, Orissa. Other participants will be free to attend physically or online and joint committee was directed to submit action taken report within three months.

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Pursuant to order dated 15.07.2022, MoEF&CC has filed an affidavit sworn on 09.09.2022 and filed before Tribunal on 11.11.2022. It has referred to minutes of meeting held on 16.08.2022 under the chairmanship of Chief Secretary, Odisha and attended by Chief Secretary, Chhattisgarh, Additional Chief Secretary, Environment and Climate Change, Odisha, Deputy Director General of Forest Central, Integral Regional Office of MoEF&CC, Bhubaneshwar, Member Secretary, CPCB, Member Secretary, State PCB, Odisha, Collector, Sundergarh, Raigarh and Jangjir-Champa, CMD of M/s MCL and representatives of

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different project proponents. The salient points of discussion given in the affidavit are reproduced below:

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The Chief Secretary, Odisha, emphasized that the road in issue needs to be properly completed at the earliest in accordance with the Hon'ble NGT's order.

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The Chief Secretary of Odisha asked the District Magistrate of Sundargarh to find an alternate road so that without any hindrance the road can be completed at the earliest. The District Magistrate, Sundargarh said that he has already identified an alternative road but that needs construction - and maintenance. The CMD of MCL assured to take the required actions to make the alternate road motomble (approximately 15 kilometers) at the earliest.

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The Chief Secretaries of Odisha and Chhattisgarh agreed on the formation of a Joint monitoring committees for both states presided by the Concerned District Magistrate with representatives, from the SPCB, MCL, and other user agencies.

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The Chief Secretary, Odisha, insisted upon transportation of coal through conveyer belts and rail. According to the MCL representative, transporting coal by rail is more expensive, hence most project proponents choose the road in the e- auction.

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The Member Secretary CPCB, said as the villagers may have suffered from ailments as a result of the pollution from the transportation of coal, the project's proponents are liable to pay the costs associated with study and mitigation measures.

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The Chief Secretary, Chhattisgarh insisted upon sharing of responsibility of the construction of the road to the project proponents as it is a part of the order of the Hon'ble NGT and the project proponents agreed to share the cost of the construction of the roads.

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The Chief Secretary, Odisha directed the concerned officials and Project Proponents to comply with the decisions taken in the meeting as per the order of NGT.”

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Minutes of meeting has been filed as Annexure A-1/1 and it says as under:

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“The Chief Secretary, Odisha, initiated the discussion highlighting the order of the Hon'ble NGT. He reiterated that as per the order of the Hon'ble NGT, the road in question need to be properly constructed at the earliest and the work near the villages should be done on priority basis. The Chief Secretary, Odisha asked the District Magistrate, Sundargarh to find an alternative road so that without disturbance the road can be completed at the earliest. The District Magistrate, Sundargarh, who was available through VC, said that he has already identified an alternative road, but, that road needs construction and maintenance. The Chief Secretary, Odisha asked the CMD, MCL, present in the meeting through VC, to make that alternative road motorable so that vehicles can run in that road. The CMD, MCL, assured to take necessary steps to make that alternative road (about 15 kms) motorable at the earliest. The Chief Secretary, Odisha, said that the road from Bankibahal to Taparia is in Odisha. He wanted to know the condition of the road in

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Chhattisgarh. The Chief Secretary, Chhattisgarh, said that they are in the process of construction of the road. The total length of the road is 19 kms, out of which in 5 kms, work has already been started and for the rest 14 kms, an estimate has already been prepared. He also insisted that as per the Hon'ble NGT order, there is clear cut direction that *the "polluters should pay", so the cost of the construction of the roads should be shared with Project Proponents using the road.

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The Chief Secretary, Odisha, highlighted on formation of a Joint Monitoring Committee presided by the District Magistrate with representative from SPCB, MCL and other user agencies, He also requested Chief Secretary, Chhattisgarh to have such a monitoring committee for State of Chhatisgarh. The Chief Secretary, Chhattisgarh, agreed upon for monitoring committee presided by the Collector.

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The Chief Secretary, Odisha, expressed his concern over transportation of coal through road. He insisted upon transportation of coal through conveyer belts and rail. He said that in the EC, there are conditions to transport coals through conveyer system and rail. He wanted to know regarding the status of construction of conveyor belts from the project proponents.' The representative from Jindal Power said that though there is a condition for construction of conveyer belt, but for non-confirmation of source they are not able to construct the conveyer belt. The Chief Secretary, Odisha directed Jindal Power to prepare an action plan for conveyer system of transportation from M/s MCL within 3-4 months. The representative from Jindal Power agreed to prepare the action plan. The Chief Secretary, Odisha also

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directed MCL to provide necessary help to Jindal Power in preparation of the action plan. The Chief Secretary, Odisha, wanted to know that why coal is being transported by road, not by rail. The representative from the MCL said that transfer of coal by rail are costlier, so most of the project proponents opt for road in e-auction. The Chief Secretary, Odisha said that this point should be taken into consideration while doing e-auction. The representative from DB Power said that their plant is connected through rail. But if MCL can provide coal to the nearest rail siding then transportation through road can be minimized. The Member Secretary, Central Pollution Control Board said that because of pollution by transportation of coal, people might have suffered from ailments. A study should be conducted and accordingly mitigation measures should be done to cure as well as to prevent such disorders of the villagers. The project proponents should pay the cost for the study as well as expenditure required. The Chief Secretary, Chhattisgarh insisted upon sharing of responsibility of the construction of the road to the project proponents. He said that it is a part of the order of the NGT.

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The Chief Secretary, Odisha wanted to know the view of the project proponents. The project proponents agreed to share the cost of the construction of the roads. The Chief Secretary, Odisha, requested State Pollution Control Board, Chhatisgarh to make a list of such roads and to give it to IRO, MoEF&CC, Bhubaneswar/Raipur. The Chief Secretary, Chhattisgarh, wanted to know from Collector, Raigarh regarding any grievance of villagers. in Chhatisgarh due to transportation of coal. The Collector, Jangjir-Champa said that no such

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grievances have been reported till now. The Chief Secretary, Odisha directed the concerned officials and Project Proponents to comply with the decisions taken in the meeting as per the order of NGT.”

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While considering the matter and direction by the Tribunal for construction of road, ensuring Plantation and a provision for dust separation on the side of the road, as per office memorandum of MoEF&CC dated 28.08.2019 providing “Guidelines for disposal/utilization of fly ash for reclamation of low lying area and in stowing of abandoned mines/quarries, March 2019” and the Notification of MoEF&CC dated 21.05.2020 relating to use of coal by Thermal Power Plants laying down provisions relating to transportation of coal, the Tribunal further directed that the entire road in question shall be constructed and completed within a time frame and the cost be bound by the State of Chhattisgarh and Odisha, subject to certain liberty for recovery of the cost of the construction of road. Aggrieved by the order, petitions were filed before Hon’ble High Court of Chhattisgarh, Bilaspur (W.P. Civil No. 672/2023, 835/2023, 931/2023, 985, 987, 1066, 1117, 1085 of 2023) and the Hon’ble High Court vide order dated 06.05.2024, passed the order as follows :-

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i. “Since the issue raised in the above-captioned Writ Petitions is common, they are heard together and decided by this common order.

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ii. Facts of the present cases are that the petitioners are power/electricity generating units and their plants are situated within the territory of the State of Chhattisgarh. The petitioners used to transport coal by road from Kulda Mines to Tamnar,

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therefore, various complaints were made against the petitioners with regard to dust emission, pollution etc. The National Green Tribunal (N.G.T.), Principal Bench Delhi took suo moto cognizance and registered Original Application No. 236 of 2022. Vide order dated 12.01.2023, taking into consideration the dilapidated condition of the road from Kulda Mines to Tamnar the NGT, Principal Bench Delhi directed the State of Chhattisgarh and Odisha to bear the construction cost equally and construct the road. Further liberty was granted to both States to recover the said cost from the concerned proponents proportionately.

¶153

iii. Learned Senior Counsels appearing for the petitioners submitted that pursuant to the order passed by the Chhattisgarh Environment Conservation Board/respondents No. 1 & 2 in all petitions recovery/closure notices were issued against the petitioners on 20.01.2023 and 22.02.2023, respectively. The petitioners, when they came to know about the orders passed by the N.G.T., Principal Bench Delhi, approached the Court and filed a Review Petition. The N.G.T., Principal Bench Delhi vide Order dated 19.07.2023 re-called the Order dated 12.01.2023. At present, the matter is pending before the Central Zone N.G.T, Bhopal. Learned Senior Counsels further submitted that as the original the N.G.T., Principal Bench Delhi has already been recalled, the subsequent recovery/closure Orders issued by respondents No. 1 & 2 cannot survive. They also submitted that the matter is subjudice before the Central Zone N.G.T, Bhopal and the next

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date of hearing is 24th May, 2024. They also contended that recovery/closure orders issued by respondents No. 1 & 2 may be quashed.

¶158

iv. On the other hand, learned counsels appearing for the respective respondents would oppose. They submitted that though the matter is pending before the Central Zone N.G.T, Bhopal, the recovery/closure orders have been issued by respondents No. 1 and 2 as the petitioners failed to pay the environmental compensation.

¶159

v. I have heard learned counsel appearing for the parties and perused the documents available on the record.

¶160

vi. From a perusal of the Order dated 12.01.2023 passed by N.G.T., Principal Bench Delhi, it is quite vivid that the State of Chhattisgarh and Odisha were directed to construct the road and recover the said cost from the concerned proponents proportionately as environmental compensation. Though the construction of the road has not been completed, the recovery/closure notices were issued to the respective petitioners by respondents No. 1 & 2. Some of the petitioners approached the Hon'ble Supreme Court against the order passed by the N.G.T., Delhi wherein the liberty was granted to some of the petitioners to approach the a Review Petition. The N.G.T., Principal Bench Delhi vide order dated 19.07.2023 recalled the Order dated 12.01.2023. The original order passed by N.G.T., Principal Bench Delhi is not in existence; therefore, the subsequent orders issued by the authorities cannot stand on their own legs. Consequently, the recovery/closure

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notices/orders issued by respondents No. 1 & 2 are hereby quashed. Accordingly, the present petitions are hereby allowed.

¶165

vii. However, the petitioners as well as respondents would be at liberty to appear and defend their cases before Central Zone N.G.T, Bhopal, where the case is pending and the next date of hearing is 24 May, 2024.”

¶166

and thereafter, the parties submitted their pleading and argued the matter before this Tribunal on various points with regard to utilisation of DMF account fund and responsibilities of maintenance of the roads.

¶167

During the period when the matter was pending before the Hon’ble High Court the Chief Secretary held a meeting and constituted a committee to keep watch on the condition of road and to ensure the proper maintenance of the road. The Member Secretary, Chhattisgarh Environmental Conservation Board has further communicated that Government at Chhattisgarh has taken all necessary steps for construction of the road from Hamirpur to Dhoura Bhata to Hukaradeepa to Tamnar. The joint team which was constituted to look after the transportation of the coal, vide its report dated 12.04.2023 has submitted that the transportation of coal is being done with proper provision of covering it by tarpolin and there was no dust due to transportation of coal mines by the road.

¶168

Some part of the road is running within the State of Odisha and in

¶169

compliance of the order the Chief Engineer Civil, Odisha vide letter correspondence dated 13.05.2023 has informed that Bankibahal Taporia road, connecting the Kulda Coal Mine Odisha to Chhattisgarh, is under construction and the work of improvement of the said road for a stretch of 22.358 Km has been awarded to M/s. RKD Construction bearing

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Agreement No.01 EPC of 2021-22. The total agreement value of this project is Rs.102.65 cr. The date of commencement of the work is 21.01.2023 and the stipulated date of completion is 20.01.2024. The road in question is under the jurisdiction of the Superintending Engineer Sundergarh R&B Division, Sundbrgarh. In compliance to the Order of this Tribunal dated 12.01.2023, the following submissions are made:

¶174

Sl. No.	Order/Recommendation	Compl	iance
1	Para 2 (d) of recommendation :- Construction of road. passing through or near the villages are to be	i. The road about 14 nos ii. The road p near the ha 7 villages.	passes through . of villages. asses through or bitations in about
	made at the earliest, preferably during the 1^st phase of construction on priority	iii. Out of 7 vil villages/habi construction work (concre completed. iv. In the case	lages case of five tations the of rigid pavement te road) has been of the rest two
		village th expeditiously and is likely by end of Au The detail status is	e work is under progress to be completed gust 2023. stated as below:-
Sl. No	Chainage	Village/ Name Habitation	Work Status
1.	From9l2l} km to 10/110 km	Gopalpur	Rigid Pavement Completed (Concrete Road)
2.	From 13/010km to 13/560km	Ratansara	Work under progress & likely
3.	From 14/510 km to 14/710km.	Ratanpur	to be completed August2023.

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4.	From 15/76	l4/710 0km	km	to	Poda Jalanga	Rigid work c	pavement ompleted
5.	From 20/46	19/010 0km	km	to	Bileimunda	Rigid work c	pavement ompleted
6.	From 21/86	21/210 0km	km	to	Kandaduda	Rigid work c	pavement ompleted
7.	From 26146	25/710 0km	km	to	Toparia	Rigid work c	pavement ompleted
8.	From 28156	28/510 4km	km	to	Toparia (Part)	Rigid work c	pavement ompleted

¶179

With respect to the recommendation under Para - 3 this is to submit that out of the total stretch 22.358 KM, work has been completed for 18.858 km i.e. to say 84% of the work. The total road work is expected to be completed within the stipulated period of completion, January 2024. The chief Construction Engineer, R&B Circle Keonjhar – cum - Authority Engineer is having periodical monitoring of the work along with extension of all support to the EPC Contractor for completion of the work in time.

¶180

Learned counsel for respondent no. 1 has submitted that Respondent No. 1, Jindal Power Limited is a company registered under the Companies Act, 1956, having its office at Tamnar, District Raigarh, Chhattisgarh. Respondent No. 1 has been operating the 4 x 250 MW and 4 x 600 MW units of the coal at Thermal Power Plant in Tamnar, Gharghoda Tehsil, Raigarh District, Chhattisgarh. Respondent No. 1 provides employment to 5423 direct and indirect employees and has contributed Rs. 122.12 Cr. in FY 2020-21 & FY 2021-22 towards duty and taxes in the State. The Respondent No. 1 has already invested a substantial amount in the State of Chhattisgarh for the development of economy and interest/ welfare of

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the people by providing employment. Further, the Respondent No. 1 has taken all reasonable measures to protect and preserve the Environment.

¶185

It is further argued that the joint committee in its report has raised the issues of construction and maintenance of the road, in response to the observation and recommendations of the joint committee respondent no. 1 has submitted that the Respondent No. 1 has constructed a 14.4 km stretch of 2 lane road from Hamirpur Border to Hukradeepa at a cost of Rs. 27.04 Cr (till 2014) and thereafter, this road has been regularly maintained at an expenditure of Rs. 8.84 Cr (till 2022). Further, a stretch of 3.7 km of 4 lane road from Hukradeepa to the Respondent No. 1’s plant is already constructed and black top by the Respondent No. 1 at a cost of Rs. 8.3 Cr. The Respondent No. 1 has thus spent around Rs 44 Cr in the construction and maintenance of the said road.

¶186

The Respondent No. 1 has been taking the following measures to mitigate any environmental damage and pollution at its own cost:

¶187

i. The Respondent No. 1 uses and deploys water sprinklers to settle the dust and the same has been clearly recorded in the findings of the Joint Committee Report;

¶188

ii. The vehicles used for transporting coal are always covered with tarpaulin and ply within the regulated speed limit. It is evident that transportation of coal is being done in an environmentally sound manner. The Respondent No. 1 has taken all the measures necessary to safeguard the environment and has

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always complied with all the conditions imposed by the

¶193

Ministry and the Board from time to time.

¶194

iii. Respondent No. 1 has also deployed traffic marshals and around 43 road sweepers between Hamirpur Border to Tamnar for sweeping of road.

¶195

iv. The Respondent No. 1 has strictly complied with all statutory in compliance with the directions notified by the District Magistrate & Collector, Sundargarh dated

¶196

11.03.2021 and has never violated any

¶197

directions/conditions at any point of given time.

¶198

It is submitted that Respondent No. 1 has incurred expenses for construction and maintenance of the road as a responsible corporate person so that no hardship is caused to the people of the villages through which the said road passes. The Respondent No. 1’s pro-active efforts have resulted in not even a single complaint being filed by the villagers impacted by the said transportation as has been admitted by the Collector, Raigarh, which has also been recorded in the minutes of meeting dated 16.08.2022 and that the Respondent No. 1 has functioned strictly in lines with the principles of sustainable development, as on one hand the Respondent No. 1 is involved in the generation of power which has to be kept at an economical cost for keeping the plant functional and for constant supply of power, both in public interest and on the other hand, the Respondent No. 1 has ensured that all measures are taken so that no harm is caused to the environment for instance water sprinkling on roads, tree plantation along the road, transportation of coal by trucks covered by tarpaulin, regulating traffic through field marshals, optimizing the various sources of transportation etc.

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With regard to transportation of coal in compliance with environmental clearance condition and requirement of installation of converter wealth, it is submitted that the Respondent No. 1 has always operated its Thermal Power Plant in accordance with the EC conditions and has actively undertaken initiatives and steps in the interest of environmental protection and that all environmental audit compliances conducted over the years have not reported any instance of non-compliance of the EC conditions on part of the Respondent No. 1.

¶203

There exists no better alternative mode of transportation of coal from MCL’s Kulda mines to the Respondent No 1’s Thermal power plant apart from the existing road route. Therefore, it is submitted that Respondent No. 1 has meticulously adhered to the EC conditions for transporting coal by ensuring minimal environmental impact and safety. The Respondent No. 1 has undertaken coal transportation through road as permitted by the MOEF & CC vide the EC amendments dated 10.01.2014, 27.03.2015, 22.12.2016, 26.04.2017 & 28.08.2020 to the terms of the EC dated 18.03.2011 and 04.11.2011.

¶204

Vide notification dated 21.05.2020, Ministry of Environment and Forest and Climate Change issued the Environment (Protection) Amendment Rules, 2020. The Rules, 2020, inter alia, provided that:

¶205

i. The transportation of the Coal from the Coal Mines shall happen through covered railway wagon or covered conveyors, however, till the time such infrastructure is not available, the road transportation may be undertaken in trucks, covered by tarpaulin or other means.

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ii. It shall be the duty of the thermal power plant that rail siding or conveyor facility is put in place and if the same is not available then it can transport the coal through road using covered trucks.

¶210

iii. Point no. (i) & (ii) herein shall be deemed to be the additional conditions of any Environmental Clearances for projects from financial year 2020-21.

¶211

Thus, the transportation of coal carried out by Respondent No. 1 is as per the Environment (Protection) Amendment Rules, 2020.

¶212

The Respondent No. 1 has 4 units of 250MW and 4 units of 600 MW at Tamnar for which 10.26 MT coal has been purchased in FY 20-21 and 12.35 MT in FY 21-22. It is submitted that the Respondent No. 1 has Fuel Supply Agreements for 2600 MW units each with Mahanadi Coalfields Ltd. Dated 28.08.2013 and South Eastern Coalfield Ltd. 29.08.2013 respectively. Pertinently, the remaining 4250 MW units and 2*600 MW units of Respondent No. 1’s power plant do not have any FSA and have been running on coal procured through multiple sources through auctions. Further, as per the FSAs, Respondent No.1 is permitted to transport the coal by road.

¶213

It is further argued that transport of coal by rail is not feasible for the following reasons:

¶214

i. The nearest railway siding to Kulda mine is the Sardega siding, which was commissioned on 05.04.2018. The distance of the route from Sardega Railway siding being 136 Km to Nalwa railway siding, which is further at a distance of 42 Km from the Respondent No. 1’s power plant at Tamnar

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and has to be again traversed by road. Whereas, the road distance from MCL Kulda mine to Respondent No. 1’s Power Plant is 43 Km.

¶219

ii. The Government had planned to develop East Corridor to facilitate the coal mines located in Chhattisgarh to transport coal by railway route. In light of the above, the Respondent No. 1 had proposed to develop a private railway siding at Bhalumuda. However, the connectivity upto Bhalumuda Station is yet to be fully developed and operationalized by the Government, pending which the Respondent No. 1 cannot develop and/or utilize the siding for transportation of coal.

¶220

It is submitted that transportation of coal through CCPC is not feasible due to the following reasons:

¶221

i. The Respondent No. 1 has FSAs with SECL and MCL for supply of coal for 2 units of 4600 MW each as already mentioned above. It is submitted that Respondent No. 1 had anticipated to get a FSA for supply of coal for the entire 4600 MW from MCL, and had accordingly considered a possibility of constructing a CCPC from Kulda Mines.

¶222

ii. However, the Government did away with the FSA system and replaced it with system of auction for the power sector. Therefore, in the new system there is no likelihood for the Respondent No. 1 to procure the entire quantity of coal from MCL, Kulda and consequently the construction of a dedicated CCPC from Kulda is not feasible or

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reasonable at all and that there is no alternate route by which coal could have been transported and met with the demands of the end- use power plants which would have resulted in closure of the power plants. This would have worsened the acute power crisis in the State of Chhattisgarh and in the country. It would have further resulted in huge job losses. Thus, it was in public interest that the plant be operated at its best utilization level and coal be transported by road. It is also the duty of the State to take decisions in overall public interest and any steps which have the potential to disrupt raw material supply to the Respondent No. 1’s plant would result in closure of some units, leading to loss of employment and finances to the State.

¶227

After the amendment of the MMDR Act in 2015, every mining leaseholder has to contribute DMF at the rate of 10% or 15% of royalty as the case maybe towards the development of mining areas. Every State has come up with guidelines for utilization of DMF which includes black topping of roads to avoid pollution. Therefore, the cost of construction of roads should be borne from the DMF which has been accumulated by the State. It is the State’s duty to develop necessary infrastructure in the interest of the industry which is in larger public interest. The Chhattisgarh District Mineral Foundation Trust Ru1es, 2015, clearly provide as follows:

¶228

“22. Expenditure from the Trust Fund. - The Funds available with the Trust shall be used for :- (1) The overall development of the area affected by mining or mining related operations in accordance with the Annual Action Plan prepared by the

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Managing Committee and approved by the Governing Council of the Trust for the purpose; (2) At least 60 % of the funds available with the Trust shall be utilized for High Priority areas like:... (b) Environment preservation and pollution control measures:- effluent treatment plants, prevention of pollution of streams, lakes, ponds, ground water, other water sources in the region, measure for controlling air and dust pollution caused by mining operations and dumps, mine drainage system, mine pollution prevention technologies, and measures for working or abandoned mines and other air, water & surface pollution control mechanisms required for environment-friendly and sustainable mine development. ... (3) Rest 40% of the Trust fund shall be spent on other priority areas like: (a) Physical infrastructure- providing required physical infrastructure such as roads, bridges, railways, waterways, airports, industrial parks/ clusters and other industrial infrastructure etc.;”

¶233

The Respondent No. 1 has been transporting coal from MCL Kulda mine after taking all necessary actions to prevent any damage to the environment and/ or villagers in the vicinity by adopting modern techniques and has also proactively acted in the best interest of the environment and villagers by constructing and black topping the road and maintaining it at its own cost. The road transportation is essential for maintaining power generation operations in the State which is in public interest and presently there exist no other viable alternate route.

¶234

Learned counsel for the respondent no. 1 has further submitted that vide notification dated at 28.08.2020, MoEF&CC has considered the traffic impact and the air quality while passing the order for transportation of coal and in para 8, 9 and 10 it was observed and noted as follows :-

¶235

¶236

¶237

i. It has been noted that Traffic Impact Assessment Study was conducted for the proposed routes. Though the total coal requirement is 4.81 MTPA, the actual consumption is 4.23 MTPA out of which 1.24 MTPA is brought by closed pipe conveyor from Gare Pelma mines. The coal quantity of approx.. 3 Million Tonnes/Annum is anticipated to transport by road. The quantity of coal transported through various routes is as mentioned below:

¶238

Route	Source	Distance (km)	Quantity (TPD)	No. of trucks/ day (21 T)	No. of trucks/ day (to & fro)
Route- 1	Kulda (MCL)	41.3 km	4187	200	400
	Basundhara (MCL)	43.1 km
Route- 2	Baroud (SECL)	38.1 km	4009	191	382
Route- 3	Chhal (SECL)	50.8
			8196	391	782

¶239

ii. The incremental air quality due to proposed traffic is within the National Ambient Air Quality Standards. It has been noted that the road stretches at Kudumkara village, Baroud Village, Samaruma Village and Jhingolpara villages along the routes of Kulda/ Basundhara mines and Cbaal /Baroud mines, the traffic (including traffic from proposed transportation) is exceeding the design service volume. However, it was informed that the traffic is within the maximum capacity of the road.

¶240

iii. The matter was placed before the Expert Appraisal Committee (Thermal Power) in its meeting held on 27.3.2019, 21.2.2000 and 10.04.2000. In acceptance of the recommendations of the Expert Appraisal Committee in its meeting held on 27.3.2019, 21.2.2020 & 10.4.2020 and in view of the information / clarifications furnished by you with respect to the above mentioned project, the Ministry hereby grants a) Ex-post facto approval for one year (from 26.4.2019

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till 25.4.2020) for using existing ash pond b) further extension till October, 2021 for using the existing ash pond of 4x250 MW Power Plant for disposal of unutilized ash generated from 4x600 MW TPP, and c) Ex- post facto approval to transport coal by road w.e.f. 26.10.2019 till 20.05.2020 for maximum quantity of 3 MTPA from MCL mines (Kulda / Basundhara-43.1 km) and SECL mines (Baroud/Jampalli-44.6 km & Chhal-50.8 km) and remaining quantity of 1.24 MTPA is to be transported by Pipe Conveyor (CCPC) from Gare Palma mines, subject to following additional conditions:

¶245

a) The coal transportation from 21.5.2020 onwards is governed by Ministry’s Gazette Notification vide S.O. 1561(E) dated 21st May, 2020.

¶246

b) The details of quantities of ash generation, utilisation to various purposes such as brick manufacturing, constructions, soil condition & cement manufacturing and disposal shall be provided for six months (April-September & OctoberMarch) in the six monthly compliance report.

¶247

c) As per the Ministry’s fly ash amendment Notification vide SO. 254 (E) dated 25.01.2016, the company shall upload the details of stock of each type of ash generated/available from all the units (4x250 MW and 4x600 MW) on their website and shall update the stock position regularly.

¶248

d) As per the Ministry’s fly ash amendment Notification vide SO. 254(E) dated 25.01.2016, the fly ash shall be supplied to various utilising units. The cost of transportation of ash for road construction projects or for manufacturing of ash based products or use as soil conditioner in agriculture activity within a

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radius of hundred km from Thermal Power Station shall be borne by the company and the cost of transportation beyond the radius of hundred km and up to three hundred km shall be shared equally between the user and the company.

¶253

e) For achieving compliance of fly ash notification, a map and details of ash utilising units within 100 kms radius and 100-300 km along with quantity of ash required for each unit shall be prepared and submitted to the Ministry within 3 months.

¶254

f) A public notice in major daily newspapers shall be published in both vernacular and English that the fly ash/bottom ash will be supplied free of cost for ash utilising units located within 100 km radius and the cost of transportation will be shared equally between user and company for ash utilising units located in the radius of 100-300 km, in compliance to the fly ash amendment notification dated 25.01.2016.

¶255

g) While commissioning the proposed project, the compliance of applicable revised emission norms vide Notification dated 07.12.2015, shall be achieved along with specific water consumption as per the notification issued vide dated 28.06.2018. The FGD System, NOX control measures such as SCR/SCNR/De-NOX burners shall be installed to achieve the revised emission norms.

¶256

h) Coal crusher inside the plant premises is permitted which is to be set up with bag filters / dust suppression to control air pollution generated due to coal crushing, coal transfer etc. Air quality

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monitoring is to be done in and around the Crusher house once a month to assess the pollution causing in the vicinity.

¶261

i) The progress and readiness of railway line being constructed by M/s. Chhattisgarh East Railway Limited from Gharghoda till Bhalumuda shall be submitted along with compliance report. X. The physical and financial progress of private siding by the company and take off line from Bhalumuda station shall be submitted.

¶262

j) Traffic marshals at Kudumkara village, Baroud Village, Samaruma Village and Jhingolpara village along the route of Kulda / Basundhara mines and Chael / Baroud mines shall be deployed at the cost of Project Proponent to streamline the traffic as the total traffic is exceeding the Design Volumes of the existing roads.

¶263

k) Water sprinkling on the road shall be done during transportation along the routes.

¶264

l) Avenue plantation shall be carried out in consultation with Social Forestry Department of the State Govt. along the proposed routes.”

¶265

The matter was further considered by the NITI Aayog (Ministry of Environment, Forest and Climate Change) and following issues were also considered which was part of the notification dated 21.05.2020 (annexure R/15) of the petition which contains as follows:-

¶266

1. “And Whereas, the Ministry of Environment, forest and Climate Change, after deliberating the representations from Ministry of

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Power, Ministry of Coal, report of NITI Aayog and various stakeholders and after careful considerations & in larger public interest, arrived at the following:

¶271

(i) The extent of ash content in mined coal remains the same. With washeries, the ash content gets divided at two places (washeries and the power plant), whereas if unwashed coal is used in power plant, the ash content is handled at only one place viz. the power plant;

¶272

(ii) Thermal power plants are technologically equipped to address pollution control, ash management as they have high efficiency equipment to capture fly ash, dry ash evacuation and handling systems, ash supply systems for ash utilisation and tall stacks for wider dispersal of flue gases:

¶273

(iii) The Ministry of Environment, Forest and Climate Change has notified emission norms, mandating respective thermal power plants to adhere to such norms in a time bound manner;

¶274

xx……………….xx……………….xx

¶275

Transportation:

¶276

(i) Coal transportation may be undertaken by covered Railway wagon (railway wagons covered by tarpaulin or other means) and/or covered conveyer beyond the mine area. However, till such time enabling Rail transport/conveyer infrastructure is not available, road transportation may be undertaken in trucks, covered by tarpaulin or other means.

¶277

(ii) It shall be ensured by the thermal power plant that –

¶278

a. Rail siding facility or conveyor facility is set up at or near the power plant, for transportation by rail or conveyor; and

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b. If transportation by rail or conveyor facility is not available, ensure that the coal is transported out from the Delivery Point of the respective mine in covered trucks (by tarpaulin or other means), or any mechanized closed trucks by road.

¶283

2. This shall also be deemed to be additional conditions of the relevant Environmental Clearances for respective projects for financial year 2020-21 and onwards. The existing Environmental Clearances shall stand modified so ns to make the above conditions operative for relevant sectors. The Consent to Operate shall be issued by respective State Pollution Control Boards accordingly.”

¶284

It is further submitted by the learned counsel for the respondent that the Chhattisgarh District Mineral Foundation Trust Rules, 2015 has been notified on 22.12.2015 which has been updated on 20.09.2019 which provides the utilization of this fund for affected persons and the definition of affected persons contribution and fund has been described as follows:-

¶285

a)"Affected Areas/People" means areas/people affected by mining or mining related operations from a mine oi cluster of mines within the District as notified by the Collector and areas/people affected by mining or mining related operations from a mine or cluster of mines beyond the District as notified by the State Government from time to time;

¶286

b)"Contribution" means the contribution to be collected in the Trust from the holders of a mining lease or a composite license (prospecting" license-cum-mining lease) in case of Minerals or a mining lease or a quarry lease or a quarry permit in the case of Minor

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Minerals in the District at such percentage of the royalty to be paid in terms of the Second Schedule of the Act, as may be prescribed by the Central Government in the case of Minerals and such percentage of royalty to be paid in the case of Minor Minerals as may be prescribed by the State Government from time to time;

¶291

c) "Contribution Fund" means the funds collected through contribution from the holders of a mining lease or a composite license (prospecting licensecum-mining lease) in the case of Minerals or a mining lease or a quarry lease or a quarry permit in the case of Minor Minerals in the District at such percentage of the royalty paid in terms of the Second Schedule of the Act, as may be prescribed by the Central Government in the case of Minerals and such percentage of royalty paid in the case of Minor Minerals as may be prescribed by the State Government from time to time, or any other funds received by the Trust;”

¶292

The contribution fund shall comprise of the funds collected through contribution from the holders of the mining lease or a composite license in the case of minerals or a mining lease or a query lease or a query permit or composite license in the case of minor mineral in the district and to be controlled, and managed by the trust under the monitoring of the State Level Monitoring Committee. The utilization of the funds shall be in the following manner –

¶293

i. Expenditure from the Trust Fund. - The Funds available with the Trust shall be used for:-

¶294

1. The interest and benefit and overall development of affected area/people] by mining or mining related

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operations in accordance with the Annual Action Plan prepared by the Managing Committee and approved by the Governing Council of the Trust for the purpose;

¶299

[(1 a) At least 50 percent of the funds received in the trust fund shall be spent on directly affected area/people and remaining fund can be spent in the indirectly affected area/people. In special circumstances, additional 10 percent of fund can be spent on indirectly affected area/people with prior approval of the Governing Council:

¶300

Provided that, if it is necessary and in the best interest of directly affected areas/people, Education, Health, and such others services/ schemes/project of public interest could be sanctioned anywhere else, fund may be utilized with prior approval from Governing Council, priority shall be necessary given to people of directly affected area such expenditure shall be treated as incurred on people of directly affected area.]

¶301

2. At least 60% of the funds available with the Trust shall be utilized for High Priority areas like :-

¶302

i. Drinking water supply. - centralized purification systems, water treatment plants, permanent/temporary water distribution network including standalone facilities for drinking water, laying of piped water supply system.

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[Solar energy based Drinking water project, in large drinking water schemes/projects village from indirectly affected areas/other areas can be included as per the geographical condition.]

¶307

ii. Environment preservation and pollution control measures. - effluent treatment plants, prevention of pollution of streams, lakes, ponds, ground water, other water sources in the region, measure for controlling air and dust pollution caused by mining operations and dumps, mine drainage system, mine pollution prevention technologies, and measures for working or abandoned mines and other air, water and surface pollution control mechanisms required for environmentfriendly and sustainable mine development.

¶308

[Intensive plantation on river banks and other public places, streams/rivulets (Narwa) improvement and conservation related works;]

¶309

iii. Health care. - the focus must be on creation of primary/secondary health care facilities in the affected areas. The emphasis should not be only on the creation of the health care infrastructure, but also on provision of necessary staffing, equipment and supplies required for making such facilities effective. To that extent, the effort should be to supplement and work in convergence with the existing health care infrastructure, the expertise available with the National Institute of Miners' Health may also be drawn upon to

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design special infrastructure needed to take care of mining related illnesses and diseases. Group Insurance Scheme for health care may be implemented for mining affected persons.

¶314

[Upgradation of health related facilities in government hospitals, such as intensive care related facilities. Creation of infrastructure facilities and all other measures to make health services effective;]

¶315

iv. Education. - construction of educational institutes and

¶316

vocational training centres, additional class rooms, laboratories, libraries, Art and crafts room, toilet blocks, drinking water provisions Residential Hostels for students/teachers in remote areas, sports infrastructure, engagement of teachers/other supporting staff, e-leaming setup, other arrangement of transport facilities for students (bus/van/cycles/rickshaws etc.) and nutrition related programs.

¶317

[Payment of educational fees and hostel fees m Universities/Government Colleges/ Government Institution for the nursing, medical, education, engineering, law, management, Higher Education, vocational courses, Technical education, skill development and arrangement of coaching classes/training with residential facilities for all competitive exams for family members of the directly affected areas;]

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v. Agriculture and allied activities. - Development of activities related to agriculture and allied activities and agro forestry. Assistance to farmers through provision of seed mini kits, financial assistance for agricultural implements and micro irrigation facilities including drip irrigation, financial assistance for bore wells and pump energisation. Assistance to farmers for allied activities of agriculture such as dairy, poultry, fisheries agro forestry etc. Forest right holders under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) AcJ, 2006 (No. 2 of 2007) shall also be eligible for these assistance.

¶322

[Promotion of collection, storage and processmg unit of agriculture produce, food processing, minor forest produce processing, processing of medicinal plant, works related to use of upgradation technique of the agriculture, Cattle breed improvement, fodder development, work of promotion of the animal husbandry, Gothan development, value addition, forward and backward linkages, Farmers' Producer Organization (FPO) works, kisan bazar, work related to training and capacity building of farmers. Measures to improve the standard of living and livelihood for the mining affected forest rights leaseholders, measures to increase the production/ cultivation of coarse cereals, pulses, oilseeds, jowar, millet, maize, kodo kutki etc.

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and to promote organic farming, plantation of fruit bearing trees;]

¶327

vi. Welfare of Women and Children. - Special programmes for addressing problems of maternal and child health, malnutrition, infectious diseases, etc.

¶328

vii. Welfare of aged and disabled people. - Special program for welfare of aged and disabled people.

¶329

[Provisions for expansion of facilities for elderly people and skill development and livelihood measure programmes for the disabled, corrective surgeries and equipment/instruments for the disabled;]

¶330

viii. Skill development and Employment. - skill development

¶331

for livelihood support, income generation and economic activities for local eligib!e persons. The projects/schemes may include training, development of skill development centre, self employment schemes, support to Self Help Groups and provision of forward and backward linkages for such self-employment economic activities, promotion of Innovation, Entrepreneurship and Assistance to Incubation centre.

¶332

ix. Sanitation. - collection, transportation and disposal of waste, cleaning of public places, provision of proper drainage and Sewage Treatment Plant, provision for disposal of faucal sludge, provision of toilets and other related activities.

¶333

x. Public welfare : - Provision, as per the direction of State Government, for programmes and schemes related

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with public welfare activities of Central Government and State Government.

¶338

xi. Sustainable livelihood. -works related to measures to improve the income and standard of living of the local community in the directly affected areas, and various measures for livelihood and capacity building, rural industry and handicrafts, measures to improve the standard of living of forest rights holders;

¶339

1) for works related to sub rule

¶340

2) for gap filling of human resources such as doctors, paramedics, nurses and teachers, etc. as per the government approved set-up.

¶341

3) Rest 40% of the Trust funds shall be spent on other priority areas like :-

¶342

(a) Physical infrastructure. - providing required physical infrastructure such as roads, bridges, railways, waterways, airports, industrial parks/ clusters and other industrial infrastructure etc.; [Under the other priority areas, maximum 20 percent of the trust funds can be utilized in physical infrastructure such as construction of all types of building, roads, bridges, railways, waterways, airports, industrial parks/clusters and other industrial infrastructure etc.]

¶343

(b) Irrigation. - developing of irrigation, adoption of suitable and advanced irrigation techniques; [Minor irrigation projects, lift irrigation (including installation of solar power pumps), water shed, priority will be given to work related to sustainable irrigation facilities in the directly affected areas.]

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(c) Energy and Watershed Development. - Electrification of households from conventional electricity and renewable sources of energy and strengthening of electricity infrastructure. Development of alternate source of energy (including microhydel) and rainwater harvesting system. Development of orchards, integrated farming and economic forestry and restoration of catchments.

¶348

(d) Any other infrastructure work that the State Government may direct from time to time.

¶349

(e) Public Transport- expansion of transportation facility projects through individuals and societies of directly affected areas.

¶350

(f) Conservation of Cultural Values - measures for protection of basic cultural values of the communities and the residents of mining affected areas.

¶351

(g) Promotion of Youth Activities - Work related to the promotion of social/economic/educational and other activities of the youth of the mining affected areas.

¶352

(h) Training for capacity building of Gram Sabha for making and monitoring of various development schemes to be implemented under the trust fund.]

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4) Various development and infrastructure related projects of Government departments, Corporations and Boards through direct funding method, Public Private partnership mode;

¶357

5) Matching/gap filling of arrangement for qualified human resources like doctors, paramedics and teachers etc.;

¶358

6) Supplementing Government schemes/programmes related to areas mentioned in sub-rule (2) and (3);

¶359

7) Training and capacity building of Gram Sabhas for planning and monitoring of various developmental schemes executed under the Trust Funds;

¶360

8) An amount not exceeding 5% or Rs. One crore, whichever is less, of the Trust Fund actually received by the Trust in the financial year in a District may be spent by the Trust for meeting its administrative or establishment expenses in that financial Year Provided that the upper limit for meeting its administrative or establishment expenses may be increased from time to time by the Settlor; and

¶361

9) A reasonable sum of annual receipt should be kept as endowment for providing sustainable livelihood.

¶362

10) Sanction order for the works approved by the Governing Council for expenditure from the Trust Fund shall be issued by the Ex-officio Chairperson of the Managing Committee.

¶363

i-A The Works carried out under District Mineral Foundation Trust shall be monitored by the District Development Coordination and Monitoring Committee constituted by the Ministry of Rural Development, Government of India for the concerned District.

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ii. Works prohibited. - The State Level Monitoring Committee may prohibit certain work/works or activities which may not be beneficial to fulfil the objectives of the Trust.”

¶368

Contention of the learned counsel for the respondents and project proponent are that this fund should be utilized for the interest and benefit and overall development of affected people by mining or mining related operation in accordance with the annual action plan and there must be provision of drinking water supply, solar energy based drinking water, environment preservation and pollution control measures, health care, education, payment of education fee and hostel fee for the nursing, medical education, engineering, management, higher education and other courses, development activities in the field of agriculture and allied activities, welfare of women and children, disabled persons, skill development and employment skill program, sustainable livelihood, physical infrastructure, irrigation, energy and water set development and all other activities which is enumerated in the act and should not be shifted to the project proponent in-spite of the rules and regulation framed by the legislatures.

¶369

The contention of the learned counsel for respondent no. 2 Jindal Steel and Power Limited are that the respondent no. 2 has always operated its captive power plant in accordance with the EC conditions and has taken initiatives and steps in the interest of environment protection. The respondent no. 2 has always been permitted to transport coal to road as per amendment issued by the MoEF&CC and there are no violation of EC conditions. It is further submitted that there are no better and alternate

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mode of transportation of coal from MCL Kuldamine to the respondent no. 2 Thermal Power Plant apart from the existing road route.

¶374

It is further submitted and argued that transport of coal by rail is not feasible from the Kulda sector even after the nearest siding to Kulda mine i.e., the Sardega siding, was commissioned on 05.04.2018. This is due to the distance of this route being 136 Km to Nalwa railway siding, which is at a distance of 49 Km from the Respondent No. 2’s power plant at Dongamahua, Tamnar and has to be again traversed by road. Whereas, the road distance from MCL Kulda mine to Respondent No. 2’s Power Plant is 37 Km.

¶375

After the amendment of the MMDR Act in 2015, every mining leaseholder has to contribute DMF at the rate of 10% or 15% of royalty as the case maybe towards the development of mining areas. Every State has come up with guidelines for utilization of DMF which includes black topping of roads to avoid pollution. Therefore, the cost of construction of roads should be borne from the DMF which has been accumulated by the State. It is the State’s duty to develop necessary infrastructure in the interest of the industry which is in larger public interest.

¶376

That the Respondent No. 2 has been transporting coal from MCL Kulda mine after taking all necessary actions to prevent any damage to the environment and/ or villagers in the vicinity by adopting modern techniques and has also proactively acted in the best interest of the environment and villagers. The road transportation is essential for maintaining power generation operations in the State which is in public interest and presently there exist no other viable alternate route.

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Submission of the respondent no. 5 are that the respondent does not operate in Tanmar and thus the question of transporting coal to Tanmar does not arise. The respondent no. 5 operates in an entirely different village in Naharpali District - Raigarhi, Chhattisgarh. The transportation of coal from Kulda coal mine to the answering respondent’s plant takes place through a distinct route which falls in Odisha. It is further submitted that the transportation vendor engaged by the answering respondent cover the coal with good quality tarpaulin and tie it with good quality ropes during transportation.

¶381

So far as the payment of cost of maintenance of the road is concerned, it is submitted that it is not tenable for the following reasons :-

¶382

i. “Art. 265 of the Constitution bars the imposition of a tax, except by authority of law.

¶383

ii. The imposition of a fiscal levy, be it tax, cess or fee, is the sole preserve of the competent legislature i.e., Parliament or the State legislature.

¶384

iii. Notwithstanding the width of the powers of Tribunal under Section 15, 18 and the like, such an imposition has not been conceived by the Parliament, under the NATIONAL GREEN TRIBUNAL ACT, 2010. Hence, such an imposition, by this Tribunal, is beyond the jurisdiction of this Tribunal.”

¶385

It is further submitted that the responsibility of construction of roads is of the State Government and the consumers of coal from Kulda coal mine cannot be asked to pay for the construction of the roads.

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Learned Counsel for respondent no. 8 has submitted that Respondent No. 8 is a Public Limited Company incorporated under the provisions of the Companies Act 1956 and is engaged in the business of generation and sale of power. Respondent No. 8 has setup a 1200 MW Coal Based Thermal Power Plant at Village Badadarha in district Janjgir - Champa Chhattisgarh (Power Plant). The Power Plant of Respondent No. 8 comprises of two units i.e., Unit 1 and Unit 2 of600 MWs and both of the Units are in commercial operation. Respondent No. 8 conducts its business with all due legal compliances and is respected for its integrity and business ethics. It would be pertinent to highlight that Respondent No. 8 is widely acknowledged in the power sector for being environment conscious and eco- friendly. It would not be out of place to highlight that the initiatives undertaken by Respondent No. 8 as part of its Corporate Social Responsibility have had far reaching positive influence upon the community and the society and that Respondent No. 8 procures coal from South Eastern Coalfields Limited, Chhattisgarh as well as from Mahanadi Coalfields Limited, Odisha for operating its Power Plant. To facilitate transportation of coal in an environment friendly manner, Respondent No. 8 has laid a dedicated railway line and built a railway siding at a huge cost of about Rs. 300 Crores from Respondent No. 8’s Power Plant to Robertson station. The said railway line and railway siding was built exclusively for catering to receiving coal from sidings of coal suppliers. It is only where coal companies (i.e SECL, MCL) do not have railway infrastructure available to load coal at the mine end, that Respondent No. 8 is constrained to transport the coal by road despite having built the option to transport coal by rail at its Power Plant end at huge capital expenditure (as stated above). It is submitted that since the present

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matter pertains to Kulda mines, Respondent No. 8 is restricting its submissions to the transportation of coal from the Kulda mines.

¶394

Respondent No. 8 is sourcing coal from MCL through Spot auction and Special Forward e-auction, through various coal supply agreements entered into with MCL. It is submitted that while offering the coal through the aforementioned auctions, the mode of transportation of coal from Kulda mines was prescribed by MCL. It is submitted that the details for FY 2020-21 and FY 2021-22 prescribing mode of transportation of coal are provided below:

¶395

“FY 2020-21

¶396

a) In FY 2020-21, spot auction of coal was conducted by MCL on 10 occasions, out of which the coal offered vide auction notices dated 21.04.2020, 20.08.2020 was exclusively under road transportation method. Furthermore, even the remaining auction notices majorly provided for transportation of coal by road.

¶397

b) In FY 2020-21, coal was offered by MCL through Special Forward EAuction on 8 occasions wherein vide auction notice dated 19.03.2021, coal for Kulda mines was offered exclusively through road transportation basis. Furthermore, even the remaining auction notices majorly provided for transportation of coal by road.

¶398

FY 2021-22

¶399

a) In FY 2021-22, spot auction of coal for Kulda mines was conducted by MCL on 9 occasions, out of which the coal offered for the months of August till March, 2022 (i.e. through 7 auction notices) was exclusively under road transportation method.

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Furthermore, even the remaining auction notices majorly provided for transportation of coal by road.

¶404

b) In FY 2021-22, coal was offered by MCL through Special Forward E-Auction on 5 occasions wherein vide auction notice dated 23.10.2021, coal for Kulda mines was offered exclusively through road transportation basis. Furthermore, even the remaining auction notices majorly provided for transportation of coal by road.”

¶405

The aforementioned data reveals that it is MCL that prescribes the mode of transportation of coal. Moreover, MCL has offered coal majorly through road transportation method. As such, Respondent No. 8 has no choice but to purchase coal on the terms and conditions prescribed by MCL including transportation of coal by road. Thus, in such circumstances Respondent No. 8 could not be faulted for transportation of coal by road, despite having built a Railway Siding to receive coal through Rail and any liability cannot be fastened upon it.

¶406

Without prejudice to the above, it is submitted that from Basundhara area (where Kulda mines are located) currently only two railway sidings are available from which coal from Kulda and Garjanbahal mines can be transported to Chhattisgarh, namely:

¶407

a) Sardega Siding : Due to a single railway line at Sardega siding only 24000 - 28000 MT (6-7 rakes per day) of coal can be dispatched. This siding is majorly a dedicated corridor for National Thermal Power Corporation and therefore mostly unavailable to power generators like Respondent No. 8.

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b) Kanika Siding : MCL is at most able to dispatch 8-9 rakes of coal per day from Kanika siding to various industries in Punjab, Odisha, Chhatisgarh and West Bengal. Moreover, the said siding is heavily saturated.

¶412

As the aforementioned railway sidings are heavily saturated and on the basis of the data provided above, it is evident that MCL rarely offers coal loading through railway and hence there is very little scope of transporting coal from these sidings to the power plants and industries located in Chhattisgarh. Apart from the aforementioned railway sidings, there is no alternate rail route available to transport coal from Kulda and Garjanbahal mines of MCL. Thus, Respondent No. 8 is compelled to transport coal through road for no fault on its part despite having constructed a Railway Siding (from Robertson Station till its Power Plant) to receive 100% of its coal requirement, as part of its Power Plant premises at huge capex.

¶413

As per Rule 3(8)(3) of the Environment (Protection) Rules, 1986 (as amended by the Environment (Protection) Amendment Rules, 2020), a power plant operator may transport coal through road where rail infrastructure is not available. Furthermore, such transportation is permissible provided that the trucks carrying coal are covered by tarpaulin.

¶414

Furthermore, even while transporting the coal via road, Respondent No. 8 has ensured and continues to ensure compliance with all environmental laws to protect and preserve the environment, including inter alia :

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a) Ensuring that the trucks transporting coal are covered and sealed with tarpaulin to ensure that no coal dust falls on roads;

¶419

b) Ensuring availability of water sprinklers to reduce dust particles while loading and unloading;

¶420

c) Deputation of several watchguards (deployed by Respondent No. 8) along the highway to ensure speed limits;

¶421

d) Respondent No. 8 also ensures that roads are repaired near its Power Plant at Chhattisgarh from time to time and any patches/potholes are immediately filled up for safe commutation of villagers as well as smooth and safe transportation of coal.

¶422

That Respondent No. 8 provides employment to 1386 direct and 1473 indirect employees and has contributed Rs. 43.54 Cr & Rs. 53.58 Cr in FY 2020-21 & FY 2021-22 respectively towards duty and taxes in the State of Chhattisgarh. Respondent No. 8 has already invested a substantial amount in the State of Chhattisgarh for the development of economy and interest/ welfare of the people by providing employment. Further, Respondent No. 8 has taken all reasonable measures to protect and preserve the environment.

¶423

Learned counsel for respondent has further submitted that it is for the State to utilise the District Mineral Fund in accordance with the Rule 22 of the Chhattisgarh District Mineral Foundation Trust Rule, 2015 for welfare and development of the affected mining area.

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Respondent No. 8 has till date deposited a sum of Rs.

¶428

162,10,32,221(approx.) in the DMF as under:

¶429

DB Power Contribution to District Mineral Fund (DMF) of MCl & SECL

¶430

Sl. No	FY	MCL	SECL
1.	2015-16 (Dec - 2015 Onwards)	2,60,03,086	2,70,14,989
2.	2016-17	9,33,88,591	9,96,53,385
3.	2017-18	3,45,45,820	15,00,42,795
4.	2018-19	6,89,53,267	20,79,71,589
5.	2019-20	8,10,80,024	13,07,36,935
6.	2020-21	5,97,23,756	13,90,77,898
7.	2021-22	10,40,32,395	15,39,83,125
8.	2022-23	8,90,33,137	15,57,91,429
	G.TOTAL	55,67,60,077	106,42,72,144
	INR CRORE	55.68	106.43

¶431

A bare perusal of the aforementioned Rules reveals that the cost of construction of the road is to be borne by the State by utilizing funds from DMF. Therefore, shifting such liability on Respondent No. 8, would be no less than a double whammy on it, and would also lead to unjust enrichment of the State at the expense of Respondent No. 8. Hence, no such cost can be fastened upon Respondent No. 8.

¶432

That as per the statistics published by Ministry of Mines on 13.03.2023, the State of Chhattisgarh has collected a sum of Rs. 10,513.42 crores as DMF till January, 2023 out of which it has utilized only Rs. 7,928.46 crores. Similarly, the State of Odisha has collected a sum of Rs.

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21,374.69 crores as DMF till January, 2023 out of which it has utilized only Rs. 12,050.44 crores. Thus, as of January, 2023, the State of Chhattisgarh has a surplus amount of Rs. 2,584.96 crores (Rs. 10,513.42 crores- Rs. 7,928.46 crores) and the State of Odisha has a surplus of Rs. 9,324.25 crores (Rs. 21,374.69 crores- Rs. 12,050.44 crores) which can be utilized for the construction of the road. Hence, the said liability cannot be shifted upon Respondent No. 8. A copy of the statistics dated 13.03.2023 issued by Ministry of Mines and available at https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1906447 .

¶437

Main contention in the newspaper article contains the non-compliance of EC conditions and not transporting the coal through the rail and in reply thereof learned counsel for respondent no. 6 has submitted that the answering respondent is a public limited company incorporated under the provisions of the Companies Act and generate energy and supply it for public use.

¶438

It is further submitted that aggrieved by the order with regard to sharing the cost of the construction of roads was challenged before the Hon’ble High Court of Chhattisgarh in Writ Petition of 835/2023 and order has been modified and later on it was recalled by the Tribunal. It is further submitted that the respondents are complying the conditions of environmental rules and there are no violation of at all on part of the respondents and that the Answering Respondent procures coal from Mahanadi Coalfields Limited, Odisha for operating its Power Plant. In respect of the same and also to elucidate the prevailing constraints, it is submitted that the surrounding area – ‘Basundhara’, housing the Kulda mines, presently avails itself of a meager two railway sidings for coal transportation which are:

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i. Sardega Siding , which is constricted by a sole railway line, effectively limiting its coal dispatch capacity to a mere 24,000 to 28,000 metric tons (equivalent to 7-8 rakes per day). Regrettably, this siding is predominantly dedicated to the Thermal Power Plants and consequently, access for power generators such as the Answering Respondent remains exceedingly restricted.

¶443

ii. Kanika Siding , which operates at a slightly elevated capacity, permitting the dispatch of only 8-9 rakes of coal per day to various industries in disparate regions. It is pertinent to underscore that even this alternative is beleaguered by a state of pronounced saturation.

¶444

It is evident that owing to such critical saturation of these pivotal railway sidings, the Answering Respondent's avenues for coal transportation are severely constrained. It becomes manifestly clear that MCL, under whose purview the Kulda and Garjanbahal mines fall, infrequently offers coal loading via the railway medium due to limited availability of railway infrastructure. This is also reflected in the dispatch figure given below:

¶445

(Figures in million tonnes)

¶446

Financial	Kulda		Total
Year	Rail	Road
2020-21	6.90	10.30	17.20
% Share	40%	60%	100%
2021-22	9.02	10.92	19.94
% Share	45%	55%	100%
2022-23	9.43	11.76	21.18
% Share	45%	55%	100%
Financial	Kulda		Total

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Year	Rail	Road
2020-21	6.24	5.77	12.01
% Share	52%	48%	100%
2021-22	9.08	6.32	15.40
% Share	59%	41%	100%
2022-23	9.78	7.71	17.48
% Share	56%	44%	100%

¶451

This stark reality leaves scant room for the conveyance of coal from said sidings to the power plants and industrial establishments domiciled in Chhattisgarh.

¶452

With equitable consideration for the legal framework, it is contended that Rule 3(8)(3) of the Environment (Protection) Rules, 1986, as amended by the Environment (Protection) Amendment Rules, 2020, confers upon power plant operators the prerogative to resort to road-based coal transportation in scenarios wherein rail infrastructure remains inaccessible. Importantly, the law mandates the usage of tarpaulincovered trucks for such road-based conveyance, which has been diligently adhered to by the Answering Respondent.

¶453

A pertinent excerpt from Rule 3(8)(3) of the aforementioned rules is hereinafter provided for ready perusal:

¶454

“(3) Transportation:

¶455

i. Coal transportation may be undertaken by covered

¶456

Railway wagon (railway wagons covered by tarpaulin or other means) and/or covered conveyer beyond the mine area. However, till such time enabling Rail transport/conveyer infrastructure is not available, road

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transportation may be undertaken in trucks, covered by tarpaulin or other means.

¶461

ii. It shall be ensured by the thermal power plant that:

¶462

a) Rail siding facility or conveyor facility is setup at or near the power plant, for transportation by rail or conveyor; and

¶463

b) If transportation by rail or conveyor facility is not available, ensure that the coal is transported out from the Delivery Point of the respective mine in covered trucks (by tarpaulin or other means), or any mechanized closed trucks by road.”

¶464

It is further argued that any conceivable alternative route, had it existed, would have inevitably culminated in the precipitous closure of the Power Plant, thereby exacerbating the already tenuous power crisis plaguing not only Chhattisgarh but also the entire nation. The concomitant repercussions, encompassing substantial job losses and socio-economic adversity, loom large, underscoring the unassailable imperative of operationalizing the Power Plant at its optimal efficiency, thereby necessitating the road-based coal transportation method herein adopted.

¶465

The harmonious equilibrium struck by the Answering Respondent between the imperatives of cost-effective power generation, enshrined within the paradigm of sustainable development, and the meticulous preservation of environmental sanctity is a hallmark of its operational ethos. While acting with full responsibility, the Answering Respondent not only satiates the public's yearning for accessible power but also undertakes judicious measures to forestall any environmental despoliation. In light of the same the tag of being a "polluter" and any

O.A. No. 70/2023(CZ)

concomitant liability warrant a reassessment, given the Answering Respondent's steadfast allegiance to environmentally responsible conduct.

¶470

Moreover, it is incumbent to acknowledge the paradigm shift brought forth by the amendment of the Mines and Minerals (Development and Regulation) Act, 1957 in 2015. This legislative amendment mandates each mining leaseholder, including the Answering Respondent, to contribute a substantial 30% of the royalty to the District Mineral Fund (DMF) aimed at the development of mining regions. It is germane to underscore that the utilization guidelines of the DMF, as instituted by each state, encompass infrastructural enhancements such as road surfacing to ameliorate pollution concerns.

¶471

Respondent is receiving linkage coal supplies from coal mines of MCL mainly through Rail mode up to the nearest Rail head however partial quantity is mandatorily offered by MCL through Rode Mode. The Coal quantity offered through Rail Mode is transported by Indian Railway Rakes up to the Bhupdeopur and / or Vimla Railway siding and from there, coal is being transported through road to the Power Plant for a shorter distance. Further, Answering Respondent’s Power Plant is having dedicated Coal handling system, Crusher house, Stock yard facility, conveying system & Bunker feeding System as required for operation of 600 MW. Currently, due to unavailability of railway infrastructure, MCL is unable to offer 100% linkage coal to all the power plants including Answering Respondent’s Power Plant through rail mode. MCL is transporting /offering nearly 50% coal from Basundra area (Kulda, Garjanbhal, Basundra) through road mode and balance 50% from rail mode via Sardega and Kanika siding. Further MCL has planned to

O.A. No. 70/2023(CZ)

dispatch 100% coal through belt from in-pit after commissioning of Barpali loop in 2025-26. However, till commissioning of Barpali loop, as an intermediate arrangement, Coal transportation from Kulda OCP will be done from nearby Sardega railway siding through dedicated Coal corridor of 6-7 km by MCL.

¶476

Considering the need of transportation of Coal 100 % by Rail mode up to the plant, REGL has already taken firm steps and are in very advance stage of laying new Railway line up to the plant. Following is the status summary of various milestones in this regard:

¶477

Railway line feasibility study has been completed.

¶478

Digital route survey has been completed.

¶479

Application for permission from South East Central Railway (SECR), Bilaspur has been submitted.

¶480

The proposed Railway line is from Kirodimal Nagar Railway station (KDTR) which is situated on Raigarh-Bilaspur section in Bilaspur Division of SECR Railway.

¶481

Land acquisition is also in advance stage and 75% of the required land has already been acquired.

¶482

After the development of siding at REGL plant entire coal from Kulda area will be transported through Rail mode up to the plant.

¶483

Detailed Topographical Survey from Kirodimalnagar station to REGL's In-plant yard has been completed.

¶484

Railway Alignment Plan of the proposed rail connectivity has been finalized.

¶485

Longitudinal section CL-section and Engineering Scale Plan (ESP) preparation done.

O.A. No. 70/2023(CZ)

Feasibility Study Report (FSR) has been prepared and submitted to the SECR. Bilaspur Division on 31.01.2023 under GCT Policy-2022 for faster implementation.

¶490

Based on our GCT application a joint site survey was conducted on 06.02.2023 by all concerned branch officers of Bilaspur Division to assess the feasibility on operational and technical ground.

¶491

FSR has been approved by Bilaspur division of SECR in March 2023.

¶492

DPR approval is in advanced stage of approval.

¶493

After DPR approval, construction activities to begin by 01.11.2023.

¶494

The Railway Line Construction is expected to be completed by 01.04.2025.

¶495

It is reiterated that the transportation of coal from ‘Kulda Coal Mine’ to the Answering Respondent’s plant is carried out in compliance with the procedures/conditions prescribed by the MoEF&CC vide Notification dated 21.05.2020 (S.O. 1561 (E). In strict adherence to the conditions mentioned in the said notification, the Answering Respondent ensures that the transportation vendors engaged by the Answering Respondent cover the coal with good quality tarpaulins and tie it with good quality ropes during transportation.

¶496

The submission of the respondent no. 9 Bharat Aluminium Company Limited are that they have not transported any coal via Kolda, Tamnar road during the year 2020-21 and 2021-22. The total quantum of coal transport it from Kulda open cast coal mine and Garjanbhal Open Cast Coal Mine was solely via rail mode or rail or road-cum-rail mode by

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utilising the Mine Balinga Branch Post Office Basundhara fuel point Laikera siding. The total quantum of coal transported from Kulda Open Cast Coal Mine and Garjanbahal Open Cast Coal Mine was solely via rail mode or Road cum Rail (RCR) mode by utilizing the Mine-Balinga Branch Post Office- Basundhara Fuel Point-Laikera Siding and for transportation of coal from Laikera Siding to answering Respondent’s Plant site, Kulda – Tamnar road is not used by answering Respondent and hence, the damage caused to the Kulda – Tamnar road and the consequent impact on the surrounding and health of the inhabitants is not attributable to the answering Respondent.

¶501

Since the proceedings in the present matter has been initiated on the basis of a media report with regard to violation of environmental norms and environmental conditions, a report was called from the MoEF&CC and the respondent MoEF&CC has filed the reply. It is argued on behalf of the learned counsel for the MoEF&CC that as per SoP a report/action taken report has been called from the concerned Regional Officer which has been submitted to the department. It is further argued that respondent has granted EC to the Tamnar Power Plant and at the different point of time the application for amendment was considered by the MoEF&CC and an appropriate order has been passed with regard to EC conditions and its compliance.

¶502

It is further submitted that a specific condition no. (xxvi) of the EC issued on 18.03.2011. was later modified by an amendment EC dated 10.01.2014. This amendment EC permitted the company to transport coal by road for a limited period of three years by which time the Pipe conveyor shall be put in place for coal transportation. Subsequently. this permission for road transportation was extended for another two years

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through an amendment EC dated 27.03.2015. Additionally, another condition no (vi), was added vide amendment EC dated 26.04.2017, which extended the road transportation period by 30 months and emphasized that coal transportation should preferably shift to rail or pipe/belt conveyor after the extended period. On 21.05.2020, the Ministry issued Notification No. S.O. 1561 (E) allowing the continued transportation of coal by road in trucks covered with tarpaulin or other means until rail transport or conveyor infrastructure becomes available. 61. Later on the permission to transport coal by road was extended by the Ministry vide letter dated. 28.08.2020 wherein the Ministry granted an ex-post facto approval for coal. transportation of coal by road for one year (from 26.10.2019 to 20.05.2020) for a maximum of 3 MTPA of coal to be transported by road from MCL mines (Kulda/Basundhara-43.1km) and SECL mines (Baround/Jampalli 44.6 km & Chhal 50.8 km) while the remaining 1.24 MTPA would be transported by Pipe Conveyor (CCPC) from Gare Pelma mines. Further, vide O.M. dated 29.10.2020 clarification regarding coal transportation by Thermal Power Plants was set out which was in line with Ministry's Gazette Notification S.O. 1561(E) dated 21.05.2020. The O. M. dated 29.10.2020 stated that "the Ministry's Notification dated 21.05.2020 aims at achieving coal transportation by railway wagons and/or belt conveyors from delivery point of coal mine to thermal power plant and it is the responsibility of power plant operators to set up such infrastructure pertaining to rail or conveyor belt system. Therefore, the condition in the Environmental Clearance, as regards setting up rail infrastructure or conveyor belt system, shall remain operative. However, till such time infrastructure regarding rail/conveyor

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system is not established. coal may be transported by road with tarpaulin covered trucks.

¶511

Considering the above-mentioned facts and the inspection conducted by the Ministry officials on 10.07.2023, the ATR verification report dated 10.07.2023, was examined in the Ministry and it was observed that there is improvement in the environmental compliance status of the said project and the EC conditions appeared to be complied. Subsequently, in light of the observations made upon examination of ATR verification report dated 10.07.2023 an Action Closure Letter dated 09.10.2023 was issued to the Project Proponent which stated that no further action is being contemplated in the matter at present by the Ministry. However, M/s Jindal Power Ltd. shall continue with submission of updated six monthly compliance report for the said project with respect to ECs granted by the Ministry. Further, it was also stated that the Action Closure Letter is subject to the review of documents/information submitted by the Project Proponent, which at any stage if found to be false/misleading will make the Project Proponent liable for action under the Environmental (Protection) Act, 1986 which inter-alia include action under section 5, 15, 19 of the Act.

¶512

With regard to Kulda Coal Mine, Odisha, the MoEF&CC has granted EC and further granted EC with for extension of the Kulda Open Cast Coal Mining project. With regard to the compliance of the environmental conditions the respondent MoEF&CC directed the authority concerned at Bhuvneshwar to submit the compliance report. In response to the aforementioned letter monitoring was conducted by the concerned regional officer an upon examination of the said report in the Ministry, it was observed that the said report was with reference to EC dated

O.A. No. 70/2023(CZ)

14.02.2022 and 24.05.2022 and further specific details have been called from the regional officer concerned and that is under scrutiny and further submitted that the MoEF&CC will ensure the compliance of the environmental conditions.

¶517

Main thrust in this news reporting was the construction / maintenance of the road which has been narrated by the respondents that 14.4 km stretch of two lane road from Hamirpur border to Hukradeepa has been constructed and a stretch of 3.7 km of four lane road from Hukradeepa to the JPL plant is already constructed and to mitigate the environmental damage the water sprinklers have been utilized and vehicles transporting the coal are using tarpaulin and ply within the regulated speed limit. Traffic marshals, road sweepers have been deployed to comply the statutory compliances with the directions notified by the District Magistrate and Collector, Sundargarh and all necessary measures have been taken to safeguard the environment. The Government has planned to develop east corridor to facilitate the coal mines located in Chhattisgarh to transport coal by railway route and in light of the above facts private railway siding at Bhalomunda are being developed.

¶518

The latest report has been called from the CECB and the CECB after calling the report from the Public Work Department has communicated that necessary construction work has been completed in June, 2024 and that the four lanes work will be completed by November, 2024. We have also considered and examined Rule 3 (8)(3) of the Environmental (Protection) Rules, 1986 as amended by the Environment (Protection) Amendment Rule, 2020 which confers a power upon the power plant operators to resolved to road-based transportation in cases where rail infrastructure remains inaccessible. This demonstrates that when the

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MoEF&CC itself provides for a road-based transportation of coal the same cannot and should not be penalized for no fault of the project proponent on the principle of sustainable development.

¶523

It is incumbent upon the state to institute requisite infrastructure conducive to the industry’s growth. A bare perusal of Rule 22 of the Chhattisgarh District Mineral Foundation Trust Rule, 2015 and Rule 10 (1)(b)(1) of the Odisha District Mineral Foundation Rules, 2015 reveals that the onus of road construction expenditure squarely rests upon the state soldiers to be financed through DMF resource. The construction of road is a public function which ought to be discharged by the state. The state can use the DMF resource to construct roads. The industries and project proponents are paying the DMF fund in addition to separate royalty and expenditures of transportation and as such reimbursement of the construction cost of roads only from industries transporting coal would be violative of Article 14 of the Constitution of India and such demand of road construction cost would also violate Article 265 of the Constitution of India. Now, there are two points which requires to be considered by this Tribunal –

¶524

i. Utilization of the DMF fund

¶525

ii. Completion of the rail project.

¶526

We have gone through the rival contention of the parties concerned and found that the rail construction is underway and vide amendment issued by the MoEF&CC dated 21.05.2020 transportation of coal may be undertaken by covered railway wagons railway wagons covered by tarpaulin or other means however till such time enabling rail transport/ conveyer infrastructure is not available, road transportation may be

¶527

¶528

¶529

undertaken in trucks, covered by tarpaulin or other means. It is further provided that if transportation by rail or conveyor facility is not available, the respondents will ensure that the coal is transported out from the delivery point of the respective mine in covered trucks by tarpaulin or other means or any mechanized closed truck by road and this is being done in accordance with the MoEF&CC guidelines.

¶530

The report has been called from the MoEF&CC with regard to the compliances and it is under scrutiny and we direct that the MoEF&CC shall periodically call a report from the project proponents and to take necessary actions in accordance with rules.

¶531

We have also considered that the transportation of coal for power plants are necessary and if this is not done by the road it may cause the closure of the power plant and thereby creating power crisis in the state. The concomitant repercussions, encompassing substantial job losses and socio-economic adversity, loom-large, underscoring the unassailable imperative of operationalizing operation the power plant at its optimal efficiency, thereby necessitating the road-based coal transportation method was adopted by the project proponents. We have also called the report with regard to the progress of the rail project and it is submitted that :-

¶532

“Considering the need of transportation of Coal 100% by Rail mode up to the plant, REGL has already taken firm steps and are in very advance stage of laying new Railway line up to the plant. Following is the status summary of various milestones in this regard:

¶533

Railway line feasibility study has been

¶534

completed.

¶535

Digital route survey has been completed.

O.A. No. 70/2023(CZ)

Application for permission from South East Central Railway (SECR), Bilaspur has been submitted.

¶540

The proposed Railway line is from Kirodimal Nagar Railway station (KDTR) which is situated on Raigarh-Bilaspur section in Bilaspur Division of SECR Railway.

¶541

Land acquisition is also in advance stage and 75% of the required land has already been acquired.

¶542

After the development of siding at REGL plant entire coal from Kulda area will be transported through Rail mode up to the plant.

¶543

Detailed Topographical Survey from Kirodimalnagar station to REGL's In-plant yard has been completed.

¶544

Railway Alignment Plan of the proposed rail connectivity has been finalized.

¶545

Longitudinal section CL-section and Engineering Scale Plan (ESP) preparation done.

¶546

Feasibility Study Report (FSR) has been prepared and submitted to the SECR. Bilaspur Division on 31.01.2023 under GCT Policy-2022 for faster implementation.

¶547

Based on our GCT application a joint site survey was conducted on 06.02.2023 by all concerned

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branch officers of Bilaspur Division to assess the feasibility on operational and technical ground.

¶552

FSR has been approved by Bilaspur division of SECR in March 2023.

¶553

DPR approval is in advanced stage of approval.

¶554

After DPR approval, construction activities to begin by 01.11.2023.

¶555

The Railway Line Construction is expected to be completed by 01.04.2025.”

¶556

Since the railway line construction is expected to be completed up to 01.04.2025, thus, we dispose of this application with the following directions:-

¶557

i. MoEF&CC is directed to periodically monitor the compliances of the environmental conditions and after scrutiny of the environmental conditions to take necessary / proper action in case of violation.

¶558

ii. The state is directed to strictly comply Rule 22 of the Chhattisgarh District Mineral Foundation Trust Rule, 2015 and Rule 10(1)(b)(1) Odisha District Mineral Foundation Trust Rule, 2015 which provides the expenditure from the trust fund of the District Mineral Foundation Trust for the overall development of the area affected by the Mining or mining is related operations in accordance with the annual action plan prepared by the Managing Committee and approved by the Governing Council of the Trust. The DMF fund must be utilised in accordance with

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rules and for proper maintenance of the roads and welfare for the public.

¶563

iii. The railway route must be completed by 01.04.2025 and MoEF&CC with the Railway Board will regularly monitor the progress of the completion of the railway route.

¶564

iv. The South East Central Railway (SECR) Bilaspur is directed to periodically monitor the progress of the railway construction and to ensure its completion before 01.04.2025.

¶565

With these observations Original Application No. 70/2023 stands disposed of .

¶566

Sheo Kumar Singh, JM

¶567

Dr. Senthil Vel, EM

¶568

08^th November, 2024 O.A. No. 70/2023(CZ) PN

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O.A. No. 70/2023(CZ)

News Report Published in the Newspaper Named "Indian Express Daily News Paper Dated 4 February 2022 Kolkata Late City Edition Which Is About the Non Compliance of Ec Conditions by Kulda Coal Mine Odisha & Tamnar Thermal Plant Chattisgarh" v. Tamnar Power Plant

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News Report Published in the Newspaper Named "Indian Express Daily News Paper Dated 4 February 2022 Kolkata Late City Edition Which Is About the Non Compliance of Ec Conditions by Kulda Coal Mine Odisha & Tamnar Thermal Plant Chattisgarh" v. Tamnar Power Plant

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