Dismissed

Dipak Mahapatra v. West Bengal Mineral Devlopment and Trading Corporation Limited

NGT5 Jan 2024Review Application No. 5/2023

Case brief

AI extract

What is this about?

The National Green Tribunal dismissed a review filing by the dredging contractor. The court rejected the grounds that environmental clearance was unnecessary for commercial disposal of excess sand, noting that the activity effectively involved mining operations.

What did the court decide?

The Review Application No. 05/2023/EZ was dismissed as it lacked merit.

Dipak Mahapatra vs West Bengal Mineral Devlopment and… — Mining and Natural Resources | NGT (2024)

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Item No.08

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Court No.1

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BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA

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(THROUGH PHYSICAL HEARING WITH HYBRID MODE)

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Review Application No.05/2023/EZ

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Original Application No.99/2022/EZ

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IN THE MATTER OF:

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M/s Reach Dredging Limited, Through the Directors, 1, Garstin Place, Orbit Room No.3B, B.B.D. Bagh, Kolkata, West Bengal, Pin – 700001

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….. Applicant(s)

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Versus

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1. Dipak Mahapatra

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Son of Prashanta Mahapatra, Residing at Vill – Nayabasan, P.O. & P.S. – Gopiballavpur, District – Jhargram, Pin – 721506

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2. West Bengal Mineral Development and Trading Corporation Ltd. (WBMDTCL),

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Through the Chairman and Managing Director, 3^rd Floor, DJ – 10 (WBIIDC Building), DJ Block, Sector II, Salt Lake City, Kolkata - 700 091

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3. Directorate of Mines and Minerals,

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Through the Director, 4, Abanindranath Tagore Sarani, 2^nd Floor, Kolkata - 700 016

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4. Department of Environment, Government of West Bengal,

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Through the Chief Environmental Engineer, Prani Sampad Bhaban, Block – LB-II, 5^th Floor, Salt Lake Sector-3, Kolkata - 700 106

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5. The Ministry of Environment, Forest & Climate Change,

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Government of India, Integrated Regional Office, Through the Deputy Director General of Forests (C), Kolkata IB – 198, Sector-III, Salt Lake City, Kolkata - 700 106

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6. The District Magistrate & Collector, Jhargram,

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District – Jhargram, West Bengal, Pin – 721507

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7. The Additional District Magistrate and District Land & Land Reforms Officer, Jhargram, District – Jhargram, West Bengal, Pin – 721507

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8. The District Magistrate & Collector, Paschim Medinipur, P.O. & Dist – Paschim Medinipur, West Bengal, Pin – 721101

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9. The Additional District Magistrate and District Land & Land Reforms Officer, Paschim Medinipur, P.O. & Dist – Paschim Medinipur, Pin - 721101

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10. Office of the Executive Engineer, Kangsabati Canals Division No. V, Through the Executive Engineer, Irrigation & Waterways Department, Ghoradhara, Jhargram, Pin – 721507

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11. State Environment Impact Assessment Authority (SEIAA), West Bengal, Through Member Secretary, Office at Prani Sampad Bhavan, Block-LB-II, 5^th Floor, Salt Lake, Sector-3, Kolkata-700106

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12. West Bengal Pollution Control Board, Through Member Secretary Having office at 10A, Block-LA, Sector-3, Salt Lake, Kolkata-700106 ……..Respondent(s) Date of hearing and reserving of order : 05.01.2024 Date of uploading of order on the website : 15.01.2024

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CORAM: HON’BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON’BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER For Applicant(s) : Mr. Sanjay Mukherjee, Advocate a/w Mr. Suvradal Choudhury, Advocate and Mr. Indradeep Ghosh, Advocate (in Virtual Mode)

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For Respondent(s) : Ms. Paushali Banerjee, Adv. for Applicant (in O.A.No.99/2022/EZ) (In O.A. No.99/2022/EZ) Mr. Sudip Kumar Dutta, Advocate for R-2,3,5 to 9 & 19, Mr. Apurba Ghosh, Advocate for R-11 (in Virtual Mode),

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Mr. Dipanjan Ghosh, Advocate for R-11, Mr. Sibojyoti Chakraborty, Advocate for R-12

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ORDER

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Review Application No.05/2023/EZ has been filed by the Respondent No.10, seeking review of the judgment and order of the Tribunal dated 04.09.2023 passed in Original Application No.99/2022/EZ. The main ground taken for review is that the order of the Tribunal dated 04.09.2023 is an ex parte order passed in the absence of the Counsel for Respondent No.10 (Review Applicant herein) who had not appeared in the proceedings on the date judgment was reserved by the Tribunal.

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Reliance has been placed by the Review Applicant on the judgments of the Hon’ble Supreme Court reported in AIR 1981 SC 140, Rafiq and Anr. vs. Munshilal and Anr. and AIR 1984 SC 41, Smt. Lachi Tewari and Ors. vs. Director of Land Records and Ors.

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The other ground for review taken by the Review Applicant is that under the terms of the contract for desilting, dredging and removal of river bed materials the same was on sharing arrangement with the Respondent No.2 herein, West Bengal Mineral Development and Trading Corporation Limited (WBMDTCL), and the remaining portion of the sand separated from the dredged material and the remaining dredged material served as a means for the contractor to recover operational costs associated with execution of the dredging and desilting activities and this activity should be interpreted as a secondary operational activity pertaining to the disposal of dredged material.

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The Review Applicant has also taken another ground that desilting, dredging and removal of river bed material does not require

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Environmental Clearance in view of the MoEF&CC Notification No.S.O.1224 (E) dated 28.03.2020.

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It is also claimed by the Review Applicant that the findings recorded by the Tribunal are in the face of the law laid down by the Hon’ble High Court of Uttarakhand at Nainital in Writ Petition (PIL) No.93 of 2015, Jai Prakash Badoni vs. Union of India & Ors. along with connected Writ Petition (PIL) No.95 of 2015, Shakti Sangh Priya vs. State of Uttarakhand & Ors.

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Mr. Sanjay Mukherjee, learned Counsel for Review Applicant, Respondent No.10 in O.A., advanced his arguments and submitted that the work order was granted in favour of the Review Applicant, Respondent No.10 in O.A., by the Respondent No.2 being the highest bidder in a tender floated by it for dredging/desilting/removal of the river bed materials from the Subarnarekha river at Sankrail. It is stated that as per the contract agreement (Annexure-A/1, page 26 to the O.A.) the Floor Volume for the bidder was 1,16,90,000 cubic feet of sand (coarse + medium) out of the total estimated volume of 6,08,00,000 cubic feet (approximately) to be dredged/de-silted/removed.

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Learned Counsel has also referred to the contract agreement wherein the Floor Volume (Annexure-A/2, page 104 to the O.A.) for the bidder is 15,40,000 cubic feet of sand (coarse + medium) out of the total estimated Volume of river bed material of 2,27,00,000.

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Learned Counsel also submitted that under the Ministry of Environment, Forests and Climate Change Notification dated 28.03.2020, dredging and de-silting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management is exempted from requirement of

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Environmental Clearance under the Appendix IX of MoEF&CC Notification. It is stated that this notification also came up for consideration before the New Delhi Bench of the Tribunal in Original Application No.190/2020 ( Nobel M. Paikada Vs. Union of India & Ors .), wherein the Tribunal while disposing of the said Original Application vide order dated 28.10.2020, inter-alia , held that “….. the exemption shall strike balance and instead of being blanket exemption, it needs to be hedged by approximate safeguards such as the process of excavation and quantum… .” and directed the MoEF&CC to revisit the impugned notification dated 28.03.2020.

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Office Memorandum dated 12.07.2023 noting the above directions is already on record and in pursuance thereof a National Framework for Sediment Management was issued by the Ministry of Jal Shakti, Department of Water Resources, River Development and Ganga Rejuvenation, on October, 2022.

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Mr. Mukherjee took us to para 2.2 Sediment Management in Rivers and its sub-paras under the National Framework for Sediment Management. Learned Counsel also referred to para 5.0 Disposal of Dredged/Desilted Materials. Learned Counsel, therefore, submitted that in view of the MoEF&CC Notification dated 28.03.2020 and the subsequent Office Memorandum dated 21.08.2023 and the National Framework for Sediment Management, there was no requirement for obtaining Environmental Clearance in the matter of dredging/desilting operations carried out by the Review Application, Respondent No.10 in O.A.

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However, we find that the crux of the case in the Original Application revolves around the specific stipulation in para 8.1 of the Request for Proposal (RFP), which provided that the successful

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bidder after sharing the volume of sand with the West Bengal Development Mineral Development and Trading Corporation Limited (Respondent No.1 in O.A.), may utilize the remaining volume of dredged/de-silted sand and total volume of other dredged/de-silted materials at its own discretion after complying with relevant statutory rules/regulations including payment of royalty, cess and other statutory items. This issue has already been considered in paras 35 and 36 of the Tribunal’s judgment dated 04.09.2023 and thereafter the Tribunal held that para 8.1 of the Request for Proposal (RFP) conveys a blanket power to the successful bidder to utilize the remaining volume of dredged/desilted sand at his own discretion i.e., commercially. The MoEF&CC notifications do not deal with the peculiar facts and circumstances existing in para 8.1 of the Request for Proposal. In this view of the matter, the Tribunal observed that the successful bidder was required to have a valid Environmental Clearance prior to disposal of the excess or remaining volume of dredged/de-silted sand and total volume of other dredged/de-silted materials.

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It is in the same stream that the Tribunal held that if the contractor is being permitted to utilize the excess sand ‘at its own discretion’, Sustainable Sand Mining Management Guidelines 2016 and the Enforcement and Monitoring Guidelines for Sand Mining 2020 would have to be followed. Para 4.0 of the Guidelines 2020 provides that the operator must have Environmental Clearance.

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Mr. Mukherjee repeatedly sought to impress upon us that the activity undertaken by the Review Application, Respondent No.10 in O.A., was one of the dredging/de-silting and was not a mining operation.

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We cannot overlook the fact that if the contractor/operator is allowed to dispose of excess dredged/de-silted sand at its own discretion, beyond the amount covered by dredging/desilting, the process would involve the element of mining even though the contract agreement may not mention the word ‘mining’ as such and, therefore, such ostensible mining activity under the garb of dredging/desilting cannot be countenanced without complying with the provisions of the Sustainable Sand Mining Management Guidelines, 2016 and the Enforcement and Monitoring Guidelines for Sand Mining 2020, and the requirement of possession of Environmental Clearance.

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So far as the MoEF&CC Notification dated 28.03.2020 is concerned, the same has been duly considered by the Tribunal in its judgment dated 04.09.2023.

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So far as the judgments of the Hon’ble High Court of Uttarakhand are concerned, the same have been duly considered by the Tribunal in its judgment and order dated 04.09.2023.

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In the light of the above, we are satisfied that there is no error of fact or law apparent on the face of the record for review of the judgment and order of the Tribunal dated 04.09.2023. The Review Application No.05/2023/EZ lacks of merit and is accordingly dismissed.

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There shall be no order as to costs.

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B. Amit Sthalekar, JM

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Dr. Arun Kumar Verma, EM

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January 05^th , 2024, Review Application No.05/2023/EZ In Original Application No.99/2022/EZ AK

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Dipak Mahapatra v. West Bengal Mineral Devlopment and Trading Corporation Limited

Case brief

What is this about?

What did the court decide?

Dipak Mahapatra v. West Bengal Mineral Devlopment and Trading Corporation Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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