The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 10922 of 2023 Rajesh Kumar Khatua ..…... Petitioners Mr. Goutam Mukherji, Sr. Adv. along with associates -Versus- National Green Tribunal Eastern Zone, Kolkata & Ors. .……… Opposite Parties Mr. B.P. Das, Adv. (for O.P.5)) 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 Petitioner has challenged the Judgment dated 13.10.202 passed by the learned National Green Tribunal, Eastern Zone Bench, Kolkata in Original Application No.593 of 2017.
Legal Reasoning
3. The facts of the case in brief is that on 13.06.2015 the Petitioner was considered for lease of Benapura Sand Quary i.e., Khata No.152, Plot No.282 & 284 of Kissam- Nadi in the Subarnarekha Order No. 03. 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 River with a total area of Ac.12.82 dec. in the District of Balasore. Accordingly, the mining plan of the Petitioner was duly approved for a period of 5 years i.e., from 2015-16 to 2019-20 by the 2 Directorate of Geology, Government of Odisha vide letter dated 29.09.2015. Thereafter, the Petitioner obtained the environment clearance and Consent To Operate (CTO) from the State Pollution Control Board. Ultimately on 02.05.2016 a quarry lease agreement was executed in favour of the Petitioner for lease of the aforesaid land for a period of 5 years which expired on 01.05.2021. In the said agreement, the Petitioner was allowed to carry on all operations necessary for extraction, collection, stacking, processing, transportation and disposal of minor mineral/minerals leased in natural or in processed/converted form and also to make roads over the said land. 4. Learned Senior Counsel for the Petitioner submits that as per the mining plan vide Annexure-1, mineable reserve was 7,500m3 which had to be mined out @1,500m3/ annum and the Petitioner started mining operation over his leased out portion in the Subarnarekha River. He further submits that as the mining plan was from 2015-16 to 2019-20, so the mining plan was modified and time of lease was extended vide letter dated 30.06.2020 so as to include the remaining lease period which ultimately ended on 01.05.2021. The Opp. Party No.8 filed a petition before the National Green Tribunal Eastern Bench, Kolkata vide Original Application No.09/2021/EZ alleging that the Petitioner has conducted excess mechanical instream mining by using heavy 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 machineries which are prohibited. He has also created sand bunds which is restricting the flow of river and ultimately the same is resulting in Environmental Damage. Based upon such allegations, the learned Tribunal constituted one committee comprising the (i)District Magistrate/District Collector Balasore, (ii)/Member Secretary, SEIAA Odisha, (iii)Senior Scientist of Odisha State Pollution Control Board and (iv)Mining Officer, Baripada Circle, Baripada. The committee was required to submit its report after conducting spot verification and joint inquiry. The Committee, thereafter, submitted its report after conducting field inquiry by submitting an affidavit on 06.07.2021 addressing all the allegations made by the Opposite Party No.8, who was the applicant before the learned National Green Tribunal Eastern Zone, Kolkata. 5. Learned Senior Counsel for the Petitioner further submits that, the Committee has categorically stated that there is absolutely no damage to the embankment of the river. The report also clearly shows that the Petitioner was fined by the Tahasildar, Basta/Opposite Party No.4 to the tune of Rs.1,30,000/- for creating Sand Bunds. But, as the Committee had not taken the help of satellite images, the learned Tribunal directed the Committee to conduct an inquiry again by taking the help of Satellite imaging and by conducting scientific methods to ascertain the Environmental Compensation. Thereafter, on 24.11.2021 the 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 committee submitted another report in which, it was reiterated the same facts. But in addition to the previous facts it relied on Google Earth images and solely and merely relying on this data, it computed the Environmental Compensation amounting to Rs.2,20,60,000/-. He further contends that apart from Google Earth images, no form of on-ground scientific inquiry was ever conducted by the Committee to compute the Environmental Damage and the formula used by the Committee for Compensation which is based on the principle of “polluter pay” to assess the Environmental Damage is not correct. He further submits that basing upon the two inquiry reports and after hearing the parties on merit the learned Tribunal disposed of the case vide order dated 13.10.2022 in O.A. No.09/2021/EZ directing the Committee to again reassess the Environmental Compensation, as it did not agree with the assessment made. The learned Tribunal had also directed the Petitioner to pay Rs.1 crore as interim compensation to be paid to the State Pollution Control Board which would be used to repair the damaged embankment ignoring the Committee’s report which was absolutely clear that there is no damage to the embankment at all. Based upon such fallacious order of the learned Tribunal, the State Pollution Control Board issued two letters to the Petitioner for realization of Rs.1 Crore. He further submits that there is no exclusive evidence 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 of excavating sand by the Petitioner beyond the leased area. But, the learned Tribunal had gone beyond the materials available on record to come to a conclusion and imposed penalty as an interim measure, although the final assessment is left open to the Committee which has not yet been adjudicated. Hence, the order dated 13.10.2022 passed by the learned Tribunal is unjustifiable. 6. On perusal of the impugned order and considering the facts and circumstances of the case and the submission made by learned Senior Counsel for the Petitioner, this Court is of the view
Legal Reasoning
that the contention raised by the learned counsel for the Petitioner does not appear to be unfounded. 7. Considering the submission made by the learned Senior Counsel for the Petitioner and considering to 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 Petitioner an opportunity of hearing. In such view of the matter, while setting aside the impugned order dated 13.10.2022 under Annexure-5, this Court remits the matter back to the learned National Green Tribunal, Eastern Zone 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 Petitioner a reasonable opportunity of hearing first and thereafter, 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 the National Green Tribunal, Eastern Zone Bench, Kolkata shall pass order in accordance with law.
Decision
8. This Writ Petition is accordingly, disposed of. Judge Murmu ( Dr. S.K. Panigrahi) 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