The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 1913 of 2023 The District Collector, Balasore and Others ..…... Petitioners Mr. J. Katakia, AGA -Versus- Saral Kumar Parida & Ors. .……… Opposite Parties Mr. S.P. Pani, Adv. (Caveator) CORAM: DR. JUSTICE S.K. PANIGRAHI ORDER 05.02.2024 1. This matter is taken up through hybrid arrangement. 2. In filing this Writ Petition, the Petitioners have challenged the Judgment dated 13.10.2023 passed by the learned National Green Tribunal, Eastern Zone, Kolkata in Original Application No.09/2021/EZ. 3. The brief fact of the case is that the Petitioners were the Respondents in the proceeding vide Original Application No.09/2021/EZ before the learned National Green Tribunal, Eastern Zone Bench, Kolkata (hereinafter referred to as “the Order No. 03.
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: High Court of Orissa Cuttack Date: 16-Feb-2024 11:59:17 Tribunal” for brevity). The learned Tribunal in Paragraphs 45 and 46 of the judgment while directing the SEIAA to determine the final environmental compensation against the Respondent No.10. 2 The Opposite Party No.5 herein also directed the said Respondent No.10 to deposit Rupees One Crore towards environmental compensation which shall be utilized for restoration of the damaged embankment and for other damages caused to the river action. While passing the said order, the learned Tribunal in Paragraph-47 has suddenly arrived at a perverse conclusion inasmuch as the basis and the documents upon which the aforesaid conclusion has been arrived at. The Learned Tribunal does not disclose any sort of latches and negligence played by the Tahasildars continuing there during the period 2017 to 2021, which renders the impugned order as bad in the eye of law. 4. Learned Additional Government Advocate for the State/ Petitioners submits that as per the direction of the learned Tribunal, a committee was being constituted for the said purpose which visited the site of the source, prepared reports and produced the same before the learned Tribunal for arriving at a justifiable conclusion with regard to illegal mining. The violation of the statutory norms which does not clearly suggest the direct or indirect involvement of the Government officers/Tahasildars who were posted during the said period 2017 to 2021 as well as illegal mining activity and the steps taken by the Government functionary to check the use of machines and illegal extraction of sand from the lease hold area as well as violation of the statutory Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: High Court of Orissa Cuttack Date: 16-Feb-2024 11:59:17 3 rules governing the field. However, for the reasons best known to it, the learned Tribunal ignored and overlooked the same and emphasized on the documents produced by the applicant which have no basis at all to form a correct opinion against the Government Officers and has passed the impugned order. He further submits that the direction contained in para-47 of the judgment discourages the public servants in discharging their public duties and also affects their future promotional avenues. 5. Learned Additional Government Advocate for the State/Petitioners further contends that from the materials available on the Original Application it appears that the photographs enclosed as Annexures-6 to the said original application do not relate to the issue involved in the matter as the said photographs have been taken from the area coming under the Jaleswar Tahasil, which does not have nexus with the objects sought to be achieved in respect of the present source i.e. Benapura-I Sand Bed. In fact, the said Sand Bed comes within the jurisdiction of Basta Tahasil. The applicant in the original application enclosed those photographs which formed as the basis of allegation of illegal mining extraction from Benapura-I Sand Bed. By relying such photograph wrongly, the Tribunal believed the same to be true while passing the impugned judgment. He further submits that when the committee submitted its reports twice disclosing the true Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: High Court of Orissa Cuttack Date: 16-Feb-2024 11:59:17 4 state of affairs and the role and activities played by the public servants to take utmost care to check illegal mining and
Legal Reasoning
observance statutory norms. The Tribunal, however, instead of appreciating the efforts made by the Government Officers during the relevant point of time, has taken a view which goes against the materials available on record. Such a direction contained in the order is nothing but a sheer abuse of the process of law. The Tribunal being a creation of the statute should act as per the prescription of the statute but not in derogation of the same. It is not understood as to what prompted the Tribunal to arrive at a perverse conclusion in the absence of any findings made by the committee twice. Hence, the impugned order renders nugatory in the eye of law. 6. Learned Additional Government Advocate for the State/Petitioner further submits that the applicant was one of the signatories to the agreement executed between the Tahasildar, Basta and the project proponent, the Opp. Party No. 10, who came out as a successful bidder in the auction sale process. The applicant who happens to be the nearby relative was acting at the instance of the project proponent for operating the source. Hence, with false and baseless allegations the original application was filed by the applicant, who was one of the signatories to the agreement, as would be evident from the copy of the agreement. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: High Court of Orissa Cuttack Date: 16-Feb-2024 11:59:17 5 Malafide is explicit in the mind of the Opposite Party No.1, who is no way affected and was supporting for running of the source. He, for no justifiable reason tried to masquerade himself as a public spirited citizen and is keen for the protection of environment, filed the original application before the Learned NGT with untenable grounds which have no basis for which the impugned order is liable to be set aside. 7. Learned Additional Government Advocate for the State/Petitoners submits that the Opposite Party No.1, herein, as the applicant filed an Original Application before the learned Tribunal with the following prayers; “1. Restrain the Private Respondent from sand mining and plying its sand loaded vehicles through river embankment. 2. Direct the independent Committee to inquire into the illegalities of mining such as mechanical mining such as mechanical mining and in-stream mining, Excess sand mining in violation of the permitted quantity. 3. Direct the Respondent 1 to initiate Criminal Proceedings against Pvt. Respondent and Respondent No.5 and 6 to take appropriate action including suspension or revocation of environment clearance letter and consent to operate order for violation of the Environment Norms and conditions imposed for sand mining. 4. Impose exemplary penalty on the private respondent for violation of Environment Clearance and Consent to Operate conditions. 5. Fix the accountability of Government Respondents such as Tahasildar Basta for lapses on their part for their inaction in enforcing the laws regulating the sand mining. 6. Direct the Respondent No.1, and to seize the Excavators used for Sand Mining in Benapura Sand Quarry.” Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: High Court of Orissa Cuttack Date: 16-Feb-2024 11:59:17 6 8. Learned Additional Government Advocate for the State/Petitioners further submits that while the matter stood thus the learned Tribunal considering the allegations made in the original application and in order to ascertain the veracity of the same allegations, vide order dated 2.6.2021 directed to constitute a committee comprising the members such as (1) the Collector, Balasore, (2) Member Secretary, State Environment Impact Assessment Authority(SEIAA), Odisha, (3) Senior Scientist of Odisha State Pollution Control Board and (4) Mining Officer, Baripada Circle, Baripada, in which the State Environment Impact Assessment Authority (SEIAA), Odisha, shall act as the nodal officer for all logistic purpose. Accordingly, as directed by the learned Tribunal, a committee was constituted taking the aforesaid functionaries as members of the committee. He further contends that while directing for constitution of the committee, the learned Tribunal had clearly directed that the committee shall submit its report with regard to illegal sand mining in the Subarnarekha River, Balasore as well as division of river and construction of sand bars/ bonds/ diversion or road in the river and other violations. Further, the committee shall also determine as to whether mining activities are being carried out in excess of the mining plan/area and loss caused to the State Revenue. Pursuant to the direction of the learned Tribunal, a committee Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: High Court of Orissa Cuttack Date: 16-Feb-2024 11:59:17 7 comprising those five members was constituted and they visited the site on 24.06.2021 and ascertained the present status of the site/source and, accordingly, they prepared a report. The members of the team reported that the river Subarnarekha was full of water and no mining activities were going on. Further, the said term ascertained from the Tahasildar, Basta that the mining activities have been stopped since 01.05.2021. Further, the committee found that as there was no mining activity and the leased out area was submerged in flood water, the assessment of damage could not be done on the basis of allegation at the time of joint inspection. However, it was found that since the project proponent has violated the rules and operated the source by constructing artificial sand bars/bunds in the river and used machines, the Tahasildar removed the temporary sand bunds and collected fine of Rs.1,30,000/- from the said project proponent. He further submits that while ascertaining the status of the source and indicating the reasons, the committee observed certain aspects at the time of inspection, which have been mentioned in the joint inspection report and the Tahasildar was directed to ensure no further extraction of sand from the said source. In order to appreciate the facts, the joint inspection report dated 24.6.2021 is Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: High Court of Orissa Cuttack Date: 16-Feb-2024 11:59:17 extracted below: “i. The lease period of the said sand bed has been expired since 01.05.2021 and at present the river is full of water. 8 ii. No mining activity was going on and there is no machine found in the mine lease area. iii. From the photographs submitted by the petitioner and Tahasil record it reveals that during the lease period the lessee was used JCB for excavation of river sand and created a sand bondh in river for which the Tahasildar, Basta has seized the JCB, removed the sand bondh and collected the fine amount of Rs. 1,30,000/- from lessee for such illegal activity. iv. There was proper pucca pillar stone making has been fixed for the demarcated boundary of lease hold area was observed and no damage of river embankment also found. v. It has been observed that some sand stock piling was done near the NH for which the fine has been realized from the lessee of Rs. 25,000/- on dated 30.04.2021. vi. Presently transportation route for transporting sand from Benapura river sand bed was blocked by the Railway Authority after getting allegation and also lease period has already been expired and no further operation will be made from the said bed as ensured by Tahasildar, Basta.” 9. Considering the submission made by the learned Additional Government Advocate for the State/Petitioners and considering the factual and legal aspects of the case, this Court finds that the Committee constituted by the learned National Green Tribunal has violated the principles of natural justice by not affording the Petitioners an opportunity of hearing. 10. In such view of the matter, while setting aside the impugned order dated 13.10.2022 under Annexure-1, this Court remits the matter back to the learned National Green Tribuna, Eastern Zone Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: High Court of Orissa Cuttack Date: 16-Feb-2024 11:59:17 Bench, Kolkata for adjudication of the issue afresh. It is also made clear that the Committee constituted by the National Green Tribunal, Eastern Zone Bench, Kolkata shall afford the Petitioners 9 a reasonable opportunity of hearing first and, thereafter, the National Green Tribunal, Eastern Zone Bench, Kolkata shall pass order in accordance with law.
Decision
11. This Writ Petition is accordingly, disposed of. Murmu ( Dr. S.K. Panigrahi) Judge Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: High Court of Orissa Cuttack Date: 16-Feb-2024 11:59:17