Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Online)(NGT) 4801

NATIONAL GREEN TRIBUNAL KOLKATA (EASTERN ZONE BENCH)
B. AMIT STHALEKAR, JUDICIAL MEMBER, ARUN KUMAR VERMA, EXPERT MEMBER
Satrughan Meher – Appellant
Versus
State of Odisha – Respondent
ORIGINAL APPLICATION No. 109/2023/EZ

Advocates:
For the Appellants/Petitioners:Mr. Sankar Prasad Pani, Advocate
For the Respondents:Mr. Satyabrata Mohanty, AGA for R-1, 2, 5 to 7, Mr. Dipanjan Ghosh, Advocate for R-3, Mr. Apurba Ghosh, Advocate for R-4, Ms. Rashhmi Singhee, Advocate for R-8, Mr. Ashok Prasad, Advocate for R-10, Mr. Ankur Upadhyay, Advocate for R-9 & 11

Railway contractors excavating soil from external borrow areas for projects require prior environmental clearance; exemption under Railways Act Section 11 applies only to railway administration, not contractors.

Headnote:(A) Environment (Protection) Act, 1986 - Section 24 - Railways Act, 1989 - Section 11 - EIA Notification, 2006 - Exemption from environmental clearance for extraction of ordinary earth for linear projects - Contractor executing railway project works by excavating soil/morrum from external borrow areas without prior environmental clearance held liable - Blanket exemption under Section 11 of Railways Act available only to railway administration, not to contractors who must obtain environmental clearance for excavation activities as per EIA Notification, 2006 - Non-obstante clause in Section 11 does not extend to contractors distinct from railway; special contract conditions requiring statutory licenses confirm contractor's separate liability - Office Memorandum dated 08.08.2022 and SOP held subject to EIA Notification rigour post Supreme Court striking down blanket exemptions in item 6 of Appendix-IX (Paras 40-62)

(B) Environmental Compensation - Computation - Joint Committee report estimating 4,55,000 cum excavation without clearance; compensation recalculated excluding pre-contract period (prior to 03.11.2022) unless proved otherwise; opportunity to project proponent for hearing on quantum (Paras 63-66)

Facts of the case:
Applicant alleged illegal extraction of approx. 20 lakh cum morrum/soil from specified plots including revenue forest land for fourth railway line construction without environmental clearance, in violation of EIA Notification and minor mineral rules. Joint Committee confirmed 4,55,000 cum excavated from 13 ha in plots totalling 109.69 acres, no ongoing activity post-2024 inspection; partial royalty/penalty paid by project proponent (contractor).

Findings of Court:
Contractor liable for environmental compensation on 4,55,000 cum extracted post contract award (03.11.2022); Joint Committee to recompute within two months after hearing project proponent.

Issues: Whether railway project contractors exempt from environmental clearance for borrow area excavation under Section 11 Railways Act; validity of environmental compensation computation over five years.

Ratio Decidendi: Railway exemption under Section 11 inapplicable to contractors excavating external materials, who remain bound by EIA Notification; principal-agent relationship does not shield unlawful acts; computation limited to post-contract extraction period.

Result: Original Application disposed directing recomputation of environmental compensation.

Table of Content
1. illegal morrum extraction for railway project alleged. (Para 1 , 2 , 3 , 4 , 5)
2. eia exemptions challenged; sop for earth borrowing required. (Para 6 , 7 , 8 , 9)
3. joint committee confirms illegal excavation without ec. (Para 10 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19)
4. responses deny violations; project awarded to jv. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27)
5. railway projects claim ec exemption under railways act. (Para 28 , 29 , 31 , 32 , 33 , 34)
6. evidence confirms unauthorized extraction and penalties paid. (Para 35 , 36 , 37 , 38 , 39)
7. section 11 railways act inapplicable to contractors. (Para 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47)
8. contractors must obtain statutory clearances independently. (Para 48 , 49 , 50 , 51 , 52 , 53 , 54)
9. agent-principal relationship does not exempt violations. (Para 55 , 56 , 57 , 58 , 59)
10. blanket ec exemptions for earth extraction struck down. (Para 60 , 61 , 62)
11. recompute ec from contract date on admitted quantity. (Para 63 , 64 , 65 , 66)
12. application disposed; no costs ordered. (Para 67 , 68)

__________________________________________________________________

Reserved On:- January 2^nd, 2025 Pronounce On:- January 10th, 2025 __________________________________________________________________

1. Whether the Judgment is allowed to be published on the net? Yes

2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes The allegation of the Applicant in the present Original Application is that the Respondent No.9, RSA Infra Project Private Limited, is executing the fourth Railway Line Track from Jharsuguda to Bilaspur for which earthbed has been constructed by excavating earth/morrum from various places including Khata No.59 Plot No.233/331, Khata No.60 Plot No.255/333, Khata No.1 Plot No.287/346.

2. It is stated that about 20 lakh cubic meters of morrum have been illegally lifted/extracted from various places in Jharsuguda. It is stated that the Applicant made a complaint to the Additional Chief Secretary, Water Resource Department, mentioning that one company, namely, Radheshyam Agarwal (RSA) Group, is continuously extracting soil and earth from the acquired area of the Hirakud Reservoir in Jamuapali and Singhabaga, Pudapali, IB and other villages illegally in connivance with local officials of the Irrigation Department.

3. It is alleged that illegal morrum mining has been carried out in the Revenue Forest land of different villages and trees have been felled by the Private Respondent for mining of morrum.

4. The details of the Khata number and Plot number of the land from where morrum and soil are alleged to be lifted in the Jharsuguda Tahasil have been given in para 13 of the Original Application which read as under:-

5. It is also stated that the illegal lifting and transportation of Morrum for use in Railway Project Works was also highlighted by the Tahasildar, Jharsuguda, vide his letter dated 16.06.2023 (Anneuxre-1, page 26, to the Original Application), addressed to the Project Proponent, RSA SKJV Pvt. Ltd. (Respondent No.11 herein), and Royalty + Additional Charges for 45,018 cum of Morrum have been computed totalling Rs.31,91,170/- (Rupees Thirty One Lakhs Ninety One Thousand One Hundred Seventy only).

6. Reference has also been made to the Office Memorandum dated 08.08.2022 (Annexure-5, page 42, to the Original Application), issued by the Ministry of Environment, Forest and Climate Change, in the nature of a clarification on the applicability of EIA Notification, 2006, for excavation of ordinary earth from borrow area for linear projects.

7. Mr. Sankar Prasad Pani, learned Counsel for the Applicant submitted that this Office Memorandum was issued in pursuance of a challenge given to Ministry’s earlier Notification S.O. 1224 (E) dated 28.03.2020, whereby Appendix IX of the EIA Notification, 2006, had been amended providing, inter-alia, exemption from Environmental Clearance for “extraction or sourcing or borrowing of ordinary earth for line