This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the jurisprudence surrounding the polluter pays principle and its application by the NGT in the dolomite mining case in Uttarakhand.

Introduction

This case relates to the pollution caused by dolomite mining in Uttarakhand. The National Green Tribunal after taking into account the careless attitude of N.B Minerals Corporation Ltd (the mining entity) during the course of the project and their lack of concern for the environment, ordered them to pay a total compensation of ₹14 crores out of which an interim compensation of ₹2 crores was to be filed within a month.

Before delving into the facts and other circumstances of the case, let us first try and understand the jurisprudence governing this area of law.

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The polluter pays principle

This principle was explained in detail for the first time in the case of the India Council for Enviro-Legal Action vs. Union of India (1996).  The Supreme Court observed that if a person is carrying out any activity that is inherently dangerous and due to this activity, some other person has faced some loss, the person carrying out the activity is liable to compensate for the same irrespective of whether he had taken reasonable care while performing the activity. The Court held that the polluting party is liable to compensate for the damage caused to the environment and also has to pay for its restoration.

In Deepak Nitrate Limited vs. State of Gujarat (2004), the Supreme Court while explaining this principle observed that compensation awarded in cases of pollution should be determined on the basis of the harm caused to the environment and not on the basis of the ability of the polluter to make the payment.  The Court further noted that this principle can be applied only in those cases where some form of harm has been caused to human beings, animals or the environment.

Payment of exemplary damages/compensation

In Sterlite Industries (India) Limited vs. Union of India (2013), the Supreme Court applied this principle and ordered for a compensation of ₹100 crores to be paid by the polluting party. It noted that such punishments should have a deterrent effect and also ordered the polluting party to deposit the amount in a bank as a fixed deposit and to use the interest generated for the restoration of the environment.  In M.C Mehta vs. Kamal Nath (2002), observed that if public interest litigation has been filed under Article 32 of the Constitution for the protection and preservation of the environment, the Court is empowered to order for payment of exemplary damages so that such a punishment acts as a deterrent for others.

Now, let us discuss how these principles are applicable in the present case. 

Chander Singh v. Union of India (2021)

Joint report of the 1st joint committee

  1. A joint report was sought from the Uttarakhand State Level Environment Impact Assessment Authority (SEIAA), State Pollution Control Board (SPCB) and a representative of the Indian Bureau of Mines and Ministry of Mines, Government of India regarding the alleged illegal mining of Dolomite by N.B Minerals Corporation Ltd. (NBMC Limited) in Dundu village, Uttarakhand.
  2. The joint report was submitted on 27th January 2020. It noted that there were violations of environmental norms, including disposal of muck.       

Observations of the Tribunal based on the 1st joint report

  1. The Joint report has acknowledged multiple violations of environmental norms.
  2. The Tribunal noted that compensation should be recovered from the NB Mineral Corporation to remedy the situation. The Tribunal further noted that a remediation plan should be made for the purpose of restoration of the environment.
  3. In furtherance of the same, for the purpose of ascertaining compensation and for the formation of a remediation plan, the Tribunal ordered for the constitution of another joint committee comprising of the Central Pollution Control Board (CPCB), Indian School of Mines, Bureau of Mines, Ministry of Mines, Government of India, and SEIAA, Uttarakhand. The CPCB was appointed as the nodal agency for the purpose of coordination and compliance with this order.
  4. A time period of 3 months was given for the submission of the report.

Joint report of the 2nd joint committee

The report acknowledged the illegality in mining and in furtherance of the same, made the following recommendations:

  1. Carry out a geo-referenced drone survey of the leased area along with its surroundings so as to determine the effects of spillage.
  2. Take measures to avoid further spillage outside the leased premises that may be caused due to rainfall.
  3. NBMC Limited should give an undertaking that they would not dump muck outside the leased premises.
  4. NBMC Limited should take appropriate measures to shift the muck dumped outside the leased premises back into the leased premises and store it in a safe and stabilised manner.
  5. NBMC Limited should construct walls/sitting ponds so as to ensure that the dolomite mined in the leased area does not enter the Dundu stream along with rainwater.
  6. NBMC Limited should construct walls so as to ensure that the dolomite mines shall not roll outside the leased premises from the hillside.
  7. NBMC Limited should submit an action plan for repairing the roads and irrigation channels that were blocked/affected due to the dumping of muck outside the leased premises.

Observations of the Tribunal based on the 2nd joint report

  1. The Tribunal accepted the recommendations of the committee and directed NBMC Limited to act upon the recommendations.
  2. The Tribunal extended the time for the tribunal for submitting the report relating to the formation of the remediation plan.

Replies of NBMC Limited to the recommendations

NBMC Limited had submitted that they had followed the recommendations made under the joint committee report and was in the process of forming action plans to deal with the recommendations. The following replies were filed by NBMC Limited to the recommendation made by the committee.

RecommendationReply
Mining operations shall not be continued until the recommendations of the committee are complied with.Mining operations were shut down from 22nd March 2020. Operations shall be continued as and when an order is received by the committee.
Carry out a geo-referenced drone survey of the leased area along with its surroundings so as to determine the effects of spillage.We are trying to find a suitable company that has the expertise to conduct such a survey.
Take measures to avoid further spillage outside the leased premises that may be caused due to rainfall.Retention walls and toe walls have been built to trap the water and prohibit it from flowing outside the leased premises.
NBMC Limited should give an undertaking that they would not dump muck outside the leased premises.The undertaking has been already submitted and no muck has been dumped outside the leased premises thereafter.
NBMC Limited should take appropriate measures to shift the muck dumped outside the leased premises back into the leased premises and store it in a safe and stabilised mannerIn monsoon, due to heavy rainfall, some muck has flowed down to the neighbouring lands. In furtherance of the same, one of such lands was acquired by the company and the owner of the other land was compensated. Appropriate measures to stabilise the muck in the leased premises are being taken by developing a green belt around it. Muck from neighbouring lands will be collected and stabilised once mining begins.
NBMC Limited should construct walls/sitting ponds so as to ensure that the dolomite mined in the leased area does not enter the Dundu stream along with rainwater.Discussions are ongoing with the district administration regarding the construction of walls to stop the flow of muck into the stream.
NBMC Limited should construct walls so as to ensure that the dolomite mines shall not roll outside the leased premises from the hillside.We will construct walls to prevent such occurrences.
NBMC Limited should submit an action plan for repairing the roads and irrigation channels that were blocked/affected due to the dumping of muck outside the leased premises.Muck has already been recovered from the village roads and we have already undertaken activities for cleaning the affected water bodies and irrigation channels.

Restoration/remedial plan suggested by the committee

  1. Only those mining operations will be allowed which will allow NBMC Limited to comply with the recommendations and restore mining activities.
  2. The muck lying outside the leased premises should be stabilised by creating a green belt around it. NBMC Limited should ensure the healthy growth of this green belt.
  3. To increase the height of walls so as to prevent the muck from rolling over the hillside.
  4. Construction of a settling tank to collect the muck that has been mixed with rainwater before it enters the Dundu stream.
  5. NBMC Limited should submit a time-bound action plan for compliance and execution of the aforesaid activities.
  6. The designated joint committee shall review the work on completion and report the same to the IBM, CPCB and the mining department who shall then allow the commencement of mining operations on a full scale.
  7. After the commencement of mining, NBMC Limited should ensure that all the guidelines and conditions as set by the appropriate authorities are followed.

Factors that were considered in the final order

  1. The expert committee report stated that NBMC Limited has continued to violate the recommendations and had filed an application seeking remedial action in this regard.
  2. NBMC Limited, on the other hand, filed an application for the withdrawal of the application for remedial action on the ground that they had complied with the requirements.

The final order of the Tribunal

  1. The Tribunal noted that the expert committee had filed the application for the protection of the environment and thus NBMC Limited cannot seek its withdrawal at their whims and fancy.
  2. The burden of conducting the geo-referenced drone survey should not be borne by NBMC Limited. The committee should conduct the same in consultation with the appropriate bodies.
  3. During the inspection by the expert committee, it was found that the muck that had been extracted in the past was dumped outside the leased area on the neighbouring agricultural lands. No measures were taken by NBMC Limited to stop this practice or recover the muck that was dumped outside. The inspection report of the committee is deemed to be correct.
  4. For estimating the damage caused by NBMC Limited to the surrounding areas, the quantity of muck dumped in these lands and the area of land covered should be taken into consideration.
  5. According to the records of NBMC Limited, out of the 1,73,134 T Magnesite mined by NBMC Limited, 5,17,012 has been recorded as waste. The report of the expert committee confirms the same and states that the estimated area that has been damaged is around 18,263 square meters.  
  6. The land on which the muck had overflowed were agricultural lands and the farmers could not use the land for a long period of time due to the lands being flooded by muck.
  7. In Samaj Parivartana Samudaya vs. State of Karnataka & Ors (2013), the Supreme Court had held that compensation for environmental damage due to mining would be equal to 10% of the sale price of the mined material.
  8. In light of the same, the Tribunal noted that the total amount of mined material coupled with the waste is around 6,90,146 MT. The minimum price of ₹2000 per MT was applied by the Tribunal to determine the total cost which comes to around ₹140 crores. Therefore, the total compensation payable in this case is ₹14 crore.
  9. The Tribunal ordered NBMC Limited to deposit interim compensation of ₹2 crores within one month and further directed that no mining activity shall commence until the restoration plan is complied with and the entire compensation has been paid.

Conclusion

For the survival of human beings on this planet, the survival of the environment is the first and foremost necessity. Therefore, any act that is degrading or harming the environment should be taken very seriously and severe measures should be adopted for resolving the same. This case is a prime example of that wherein the NGT has stood up and taken a stand for the environment. By awarding such a high compensation, the NGT has also attempted to deter others from following in the footsteps of NBMC Limited.

References

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