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2011 DIGILAW 752 (JHR)

Court on its own Motion v. State of Jharkhand

2011-08-01

D.N.UPADHYAY, PRAKASH TATIA

body2011
ORDER 1. By the Court.--Heard learned counsel for the parties. 2. In view of the filing of the reply on behalf of M/s. Tata Steel Limited in response to the order of this Court dated 21.06.2011, this Court perused the minutes of the meeting dated 25.3.2011 convened in pursuance of the order passed by this Court in present W.P.(PIL) No. 1325 of 2011 and found from the minutes of the said meeting that there were allegations that M/s. Tata Steel Limited is dumping slag in the river Swarnrekha by which the bed width of the said river Swarnrekha has narrowed already. Today it has also been noticed from the reply filed by M/s. Tata Steel Company that there is another river Kharkai whose bed width also has been adversely affected because of the dumping of the slag. Not only this, this Court considered the report of the National Environment Engineering Research Institute of India (NEERI), Nagpur dated 15.6.2004, reference of which has come on record wherein it was observed that by putting slag no pollution is created as the slag produced by the Tata Steel Limited contains no such element which can pollute, in chemical sense, the water of the river and referring that report of the NEERI, this Court observed that we are shocked to know that the said company is dumping the slag in the river since years and this fact came to the knowledge of the Pollution Control Board as back as in the year 2004, seven years from today and it was apprehended that said activity is going on to the extent that width of the river has narrowed down. This Court observed that even if it is not a pollution as such in the definition of Pollution Control Act, yet this is nothing but encroachment over the part of the river by putting it to the use of the company. 3. In the reply filed by the said company, the stand has been taken that the Provincial Government acquired 15,725 acres of land under the Land Acquisition Act, 1894 and the acquisition of the land stretched upto the midstream of both the rivers Kharkai and Swarnrekha and said land was acquired at the cost of the company and conveyed by virtue of two registered deeds of conveyance dated 19.1.1912 and 23.9.1929. It is stated that during the Revisional Survey settlement of 1934-37, the said lands of the rivers were recorded in the Record of Rights in the name of the company. Then pursuant to the amendments in Bihar Land Reforms Act. 1972 and 1983, the absolute rights over the acquired lands vested in the State, where after, the company has become the deemed statutory lessee of the State in respect of such lands. Thus, the original lease executed in favour of the company by the State on 1.8.1995 and the Indenture of Renewal of Lease on 20.8.2005 which contains the details of the revenue plot numbers of both the rivers up to midstream (Central line) the company is lessee of the land which include the half width of the two rivers. It is stated that in new survey, the said lands of the rivers have been recorded in the name of State with Tata Steel as lessee. 4. Prima facie we are of the opinion that even if the land was acquired under the Act of 1894 and its acquisition was effected by Bihar Reforms Act, 1972 and 1983 and a company became the lessee in pursuance of the lease deed executed in the company's favour, we doubt whether the company still has any right to obstruct the natural flow of the water of those rivers? 5. Be that as it may, contention of the learned counsel for the Tata Steel Company is that they have not put any slag in the river itself and they, in the public interest put the slag to give strength to the bank of the two rivers. However, we have our own doubt in view of the fact that indirectly it has been admitted in the reply filed by the company that because of that activity width of the river must have been narrowed and, therefore, the Tata Steel Limited, in its reply, has admitted that over this area where slag has been dumped, some brick kilns have been established which were objected by the administration and were subject matter in the disputes before the Deputy Commissioner, Chaibasa (now Singhbhum East) and, thereafter, before the Mines Commissioner wherein also orders have been passed indicating only that such activities which may include the dumping of the slag by the company and installation of the brick kilns over that part of the land resulted into public nuisance. Those matters were also subject matter in the writ petitions. However, according to company, they stopped putting slag even in the side of the river since the year 2003. This fact is contrary to report of NEERI and other reports. The company also in sub para (b) of para 16 of the reply gave reference to the report of NEERI and with the help of said report, again reiterated that slag is not causing pollution in the water. 6. We have already observed that even if said activity of the company is not creating any pollution because of the absence of any soluble substance in the slag or even if any soluble substance is in the slag, it is not detrimental to the human being or even animals, as we have already observed that we are concerned with the natural flow of water in the river and now we observe that even if it is a lease hold property of the company, even then we want to examine whether they have any right to put any obstruction in the free flow of the water and whether this right of the public to take maximum advantage of the water of the river without any hindrance and obstruction has been vested. 7. In sub-para (d) of para 16 of the reply of M/s. Tata Steel Limited it has been stated, which is as under : Several culverts and as many as 14 number of sluice gates have been constructed by the company alongside both the rivers on the outer peripheral road at its own expense of about Rs. 237 lakhs, in order to strengthen the banks of the rivers Kharkai and Swarnrekha. This strengthens our apprehension that in fact the width of the river must have been affected because of putting of the slag. 8. In these facts and circumstances, we direct the Tata Steel Limited to disclose the volume of the slag discharged by them per month in height wise as well as quantity (measurement) wise and also to disclose since when they started production of their product resulting into generation of the slag. 8. In these facts and circumstances, we direct the Tata Steel Limited to disclose the volume of the slag discharged by them per month in height wise as well as quantity (measurement) wise and also to disclose since when they started production of their product resulting into generation of the slag. The company is also directed to submit affidavit and they may also file any document in support of their mention that the slag was utilized in construction of the national highway by the National Highway Authority so that we may find out whether in fact the slag was utilized in road construction and if so, then how much quantity of slag was utilized in road construction to know that how much quantity of the slag may have been dumped in the river. 9. Learned counsel for the State has submitted that the length of the river bank is 11 (sic) and they also want to survey and as per their survey at one of the places, they did not find any encroachment but from other place they have removed the encroachment. 10. Be that as it may be, we direct the Deputy Commissioner, Jamshedpur to complete the survey within a period as requested by him and may take help of the Water Resource Department as well as if necessary, from the Executive Engineer of Irrigation Department or any relevant department as well as from the revenue authorities to find out whether the river width has been affected because of the putting of the slag in these two rivers or not. The Deputy Commissioner will also be free to take help of any other expert which is needed, without further order of this Court. 11. The Deputy Commissioner of the area will also take assistance even from the Tata Steel Limited to know the total slag production and to know the measurement/width of the river which was in existence and which is now. The Deputy Commissioner concerned shall also indicate in which of the direction this slag is dumped and in which of the direction the brick kilns are situated. He is also directed to state whether the brick kilns have been established with the permission of any Government authority or not. The Deputy Commissioner concerned shall also indicate in which of the direction this slag is dumped and in which of the direction the brick kilns are situated. He is also directed to state whether the brick kilns have been established with the permission of any Government authority or not. The Deputy Commissioner may also take help of the Pollution Control Board and may obtain their report wherein it was found that slag was dumped in the river and in that sequence may take assistance of the report of the NEERI referred above. The Deputy Commissioner may also obtain any further report from the Pollution Control Board. One of the communication received by learned counsel for the Pollution Board today is taken on record. 12. In pursuance of the order dated 21.06.2011, the High Court should have registered a separate Public Interest Litigation and should have listed before this Court today on 01.08.2011. This has not been done, therefore, office is directed to register a separate Public Interest Litigation today itself by annexing the copy of the order dated 21.06.2011 and put up before this Court today itself. 13. Put up this case on 01.09.2011. 14. A copy of this order be supplied to the learned counsel who is amicus curiae in this case as also counsel for the parties.