National Green Tribunal
Shankaran vs State Of Kerala on 31 July, 2024
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Wednesday the 31st day of July, 2024.
Original Application No. 149 of 2022 (SZ)
(Through Video Conference)
IN THE MATTER OF
Shankaran,
S/o. Ayyappan,
Residing at Athankikkal house,
Chalavara P.O.,
Palakkad District, Kerala- 6795001..
...Applicant(s)
Versus
1. State of Kerala,
Represented by its Principal Secretary,
Department of Environment & Climate Change,
Thiruvananthapuram- 695001.
2. The District Collector, Palakkad,
Civil Station, Palakkad- 678001.
3. Chalavara Grama Panchayath,
Chalavara P.O., Palakkad District,
Kerala- 679505.
4. Vaniyamkulam Grama Panchayath,
Vaniyamkulam, P.O, Malappuram District- 676551.
5. The Geologist,
Department of Mining and Geology,
Sultanpet, Palakkad, Kerala- 678001.
6. The Director,
Directorate of Mining & Geology,
Kesavadasapuram, Pattom Palace, P.O,
Thirvananthapuram- 695004.
7. Kerala State Pollution Control Board,
Pattom P.O, Thiruvananthapuram- 695004.
8. M/s Blue Chip Mines and Industries,
Vembalathupadam, Kailiyad P.O, Ottappalam,
Palakkad District- 679505.
9. M/s Kalpaka Metal Crushers,
Kailiyad P.O, Shornur (via),
Ottappalam, Palakkad District- 679122.
...Respondent(s)
1
For Applicant(s): Mr. K.K. Ashkar.
For Respondent(s): Mr. G. Vignesh for Mr. E.K. Kumaresan for R1, R2,
R5 and R6.
Mr. Sujith Kumar for R4.
Mrs. Rema Smrithi for R7.
Mr. P.B. Sahasranaman for R8.
Judgment Reserved on: 17th May, 2024.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. The applicant has filed the above Original Application alleging the damage caused by the granite stone quarries and metal crusher units of the 8th and 9th respondent to the environment and the agricultural land of the applicant.
2. The applicant claims to be the owner of about 2.5 acres of paddy land at Vembalathupadam, comprised in Sy. No. 454/1, 437/4, 424/7 and 432/5 (124/6, 124/7 and 124/8) of Chalavara Village in Ottappalam Taluk, Palakkad District. The 8th and 9th respondents are operating two granite stone quarries and metal crusher units within a distance of 350 m from the applicant's property. The 8th respondent's granite stone quarry is located in Sy. No. 1/7 of Vaniyamkulam Grama Panchayat and the metal crusher unit is operating within the jurisdiction of Chalavara Grama Panchayat.
3. According to the applicant, most of the specific and general conditions prescribed in the Environmental Clearance are not complied with by the 8th respondent causing siltation and deposit of overburden soil in 2 the adjacent water stream and adjoining paddy field including that of the applicant. The quarry waste, overburden soil and metal crusher wash out from the unit flown through the water channel ultimately deposit in the surrounding paddy fields making the land unsuitable for cultivation.
4. It is also alleged that Environmental Clearance was granted to the 8th respondent for extracting 1,08,041 metric ton granite stone per annum for a period of 05 years but more than the permitted quantity has been extracted by the 8th respondent by indulging in indiscreet mining operations, unmindful to the conditions prescribed in the Environmental Clearance.
5. The granite stone quarry and metal crusher unit of the 9 th respondent is in SY. No. 168/11A of Chalavara Village in Chalavara Village Panchayat and on the northern side of the applicant's property within a distance of 350m. The 9th respondent has been granted quarrying lease to quarry granite building stone for a period of 10 years. The 9 th respondent has not obtained Environmental Clearance from DEIAA. Therefore, the applicant has alleged that the mining activity of the 9 th respondent is illegal and liable to be penalized.
6. It is contended that the quarry is operated very close to the reserve forest within a short distance of 39 meters. There is reserve forest on the northern and eastern side of 9th respondent quarry, covered with variety of endemic flora and fauna and it is damaged by the illegal activity of the 9th respondent.
7. In light of the above contentions, the applicant prayed for:
(i) Restoration of the agricultural land comprised in Sy. No. 124/6, 124/7 and 124/8 in Chalavara Village, Ottapalam 3 Taluk, Palakkad District to its original position by removing the quarry waste, overburden soil from and metal crusher wash out being deposited in the property by their illegal operation and make the land fit for paddy cultivation.
(ii) Declare the mining operations carried over by the 9th respondent after the expiry of quarry lease without obtaining Environmental Clearance as illegal.
(iii) Direct the respondents 1 to 7 to ensure that the respondents
8 and 9 do not discharge wash out effluents from their metal crusher units and quarry waste and overburden soil to the nearby water channels and the land.
(iv) Direct the respondents to initiate penal action and recover environmental compensation from respondents 8 and 9 for indulging in illegal mining operations in violation of the rules and conditions prescribed in the Environmental Clearance
8. In response, the District Collector, Palakkad filed its report dated 08.05.2023 stating that quarrying lease was granted to the 8 th respondent, M/s Blue Chip Mines and Industries to extract 01 lakh MT of granites building stone per year over an area of 1.6100 ha of land comprised in SY. No. 168/11A of Chalavara village, Ottappalam Taluk, Palakkad District. On the basis of the lease and other statutory licenses, the Geologist, Palakkad issued movement permits to 8th respondent for extracting and transporting granite building stone.
9. It is submitted that the 8th respondent has valid 'Consent to Operate' which is valid up to 31.05.2023. On inspection done by Kerala State Pollution Control Board, it is reported that 8th respondent is currently 4 doing only quarrying activity and the crusher of the unit has stopped functioning. The crusher has been dismantled.
10. The District Collector has further stated that the quarry lease was obtained in the year 2009 that is prior to the Judgment dated 27.02.2012 of the Hon'ble Supreme Court in Deepak Kumar Vs State of Haryana, (2012) 4 SCC 629. Based on the said Judgment, the quarry can operate without Environmental Clearance and requirement of Environmental Clearance would arise only while seeking renewal of mineral concession.
11. Similarly, the quarrying permit was granted to the 9th respondent to extract granite building stone over an area of 97.07 acres of land comprised in Sy. No. 1/7 pt of Vaniyamkulam 1 village, Ottappalam Taluk, Palakkad District. The consent to operate was granted to the 9th respondent by the Kerala Pollution Control Board.
12. The 8th and 9th respondents are operating granite stone quarries and metal crusher units within a distance of 400m from the applicant's land. On physical verification done through village officers, it is reported that chances of draining quarry waste and metal crusher wash out from 8th and 9th respondent quarry to the applicants land is very less. It is not predominantly seen that the field were covered or made unfit with deposits from quarry. During the floods in 2018 and 2019 a little sludge had deposited in small area through the nearby water channel. This channel is not connected with the quarrying area.
13. It is also submitted that the validity of quarrying permit to the 9 th respondent expired in November, 2022. There was no mining activity in the 9th respondent's quarry. Since there was no production in the 5 quarry, the crusher which runs using the boulders brought from the quarry has also stopped functioning. Hence there was no production activities in crusher or quarry during the time of Kerala State Pollution Control Board officials inspection.
14. The 5th respondent, the Geologist, Department of Mining and Geology, filed its report stating that quarry lease was granted to M/s Blue Chips Mines and Industries, Vembalathumpadam, Kayiliyad PO, Palakkad, 8th respondent, by the Director of Mining and Geology, Thiruvananthapuram to extract 01 lakh of Granite Building stone per year over an area of 1.6100 ha of land comprised in Survey No. 168/11A of Chalavara Village, Ottappalam Taluk, Palakkad District for 12 years on 31.01.2009.
15. Similarly, a quarrying permit was granted to C.K Kunhipocker, managing Partner, Kalpaka metal Crusher, Kailiyad, P.O. Shornur, Palakkad, 9th respondent, to extract Granite Building stone over an area of 97.07 acres of land comprised in survey no. 1/7pt of Vaniyamkulam-1 Village, Ottappalam Taluk, Palakkad District.
16. It is submitted that on 07.02.2023 the sites in question was inspected and it was found that the 8th respondent's quarry is working by violating the conditions stipulated in the quarrying lease and mining plan. It is also found that the topsoil, overburden materials, quarry waste etc., has been dumped unsafely and unscientifically in an area 65 m south of boundary pillar no. 3. Show Cause notice was issued to the 8th respondent to show cause whether there is any reason not to take actions as per Mines and Mineral Development and Regulation Act, 1957, Kerala Minor Minral Concession Rules, 2015 and Kerala 6 Minerals Prevention of Illegal Mining Storage and Transportation Rules, 2015.
17. It is further submitted that since the quarrying permit of the 9 th respondent expired there was no mining activity in the 9th respondent's quarry. It was also noticed that 9th respondent was conducting mining activity by violating conditions stipulated in Mining plan and Rule 10 of Kerala Minor Mineral Concession Rules, 2015.
18. The 7th respondent, Kerala Pollution Control Board, filed several reports. The initial report states as follows:
(i) Both 8th and 9th respondents have 'Consent to Operate' valid upto 31.05.2023 and 28.02.2023 respectively.
(ii) The Pollution Control Board has not received any complaint against these two quarries from local residents on the matter of air pollution during the last three years. On 04.02.2023, Board Officials inspected these two units and it was found that the 9th respondent has stopped production due to expiry of quarry permit. Since there was no production, the crusher which runs using the boulders has also stopped production.
(iii) In the case of 8th respondent, it was found that the unit was operating whereas the crusher of this industry has stopped production. The crusher has been dismantled, the machineries are replaced. The location of the crusher is also falling in the mining area. The unit was doing their quarrying activities in the location where crusher building stood and no specific air pollution threats were observed.
7
19. Since, the Tribunal was not satisfied with the reports filed and there were certain violations noted regarding the illegal operation by the project proponent, the Tribunal directed to inspect the units and find out whether the direction given were carried out in its letter and spirit and if no what are all the violations committed by the project proponent. Based on the above direction, the Pollution Control Board filed another report stating that inspection was conducted in the premises of respondents 8 and 9 on 14.11.2023. Vide order dated 26.06.2023 direction was given to the 9th respondent to remove the top soil and overburden deposited near the crusher and use it for the remediation of the quarry pit. The top soil and over burden stacked near the premises of 9th respondent now removed and used for restoration of the closed quarry and the area was leveled.
20. In the quarry of 8th respondent no mining activities found as the validity of the Mining lease expired on 25.08.2023. In compliance with the direction issued regarding the drainage and managing slurry the control measures like geo textiles provided in the slopes, delay ponds and settling tanks provided in the boundary area to prevent debris and slurry going out with the storm water are maintained properly.
21. The 8th respondent filed its reply denying all the allegations made by the applicant. It is stated in the reply that there is no threat to the property of the applicant as alleged by the applicant. The property of the applicant is on upper level from the land where quarry operation are carried out. There are several lands between the applicant's land and others and none of them have raised any complaint for the reason that they are not affected by any quarrying operations. The property of the applicant is 500 m away from the property of quarrying site of the 8th respondent. No water course has been found damaged. 8
22. 8th respondent has further submitted that they have given a reply to the show cause notice issued by the Department of Mining and Geology stating that the overburden and quarry waste are stocked only in the designated areas as provided in the mining plan. Strong protective walls are constructed to see that no waste should go near the neighboring properties. Thick vegetation is there throughout the periphery of the property. It was also propose to plant local plant species and laying coir mat along the slopes to reinforce and increase the stability of the slopes. It further submitted that protection works are made and is being maintained as directed by the Pollution Control Board.
23. Similarly, the 9th respondent has filed the reply denying the allegations made by the applicant. It is stated in the reply that they have stopped operations of quarrying unit after the expiry of the quarry lease. They have also removed the topsoil and overburden stacked near the quarry premises and completed the protection works by constructing a concrete embankment to prevent run off and soil erosion as per the direction of the Kerala Pollution Control Board.
24. In W.P. No.11400 of 2020 on the file of Hon'ble High Court of Kerala filed by a registered Society against the 8th and 9th respondent, herein, a direction was issued to the District Collector, Palakkad to consider whether the mining activities can be permitted in the subject lands vide in its order dated 31.03.2023. Pursuant to the above, the District Collector, Palakkad passed the following order on 26.09.2023 which reads as follows:
"As referred in the judgment of the Rafi John Vs. Land Revenue Commissioner, and also from the report of Ottappalam Tahsildar, Vaniyamkulam 1 Village Officer and Chalavara Village Officer, it is clear that the quarries of Bluechips Mines & Industries and Kalpaka 9 Metal Crushers are not working in the assigned lands as per Kerala Government Land Assignment Act 1960, Kerala Land Assignment Act 1964, Special Rules for Assignment of Government Land for Rubber Cultivation Act 1960, Arable Forest Land Assignment Act 1970 for agriculture or house construction. And hence there is no need to take action according to Land Assignment Act 1960 or Land Assignment Rule 1964. It is also ordered that this order does not prevent the Mining and Geology Department from taking appropriate action as per law regarding the operation of the quarries. Thus, the order of the Hon'ble High Court has been implemented."
25. In the action taken report of the District Collector, it is stated that upon enquiry the 8th and 9th respondent were found to be carrying on quarry activities by violating the conditions of mining lease and mining plan. The reply given by them to the show-cause notice was not satisfactory and their transition Permission given to the quarry was banned w.e.f 01.04.2023. The District Collector has already stated that their quarries were prior to the judgment dated 27.12.2012 in Deepak Kumar's case and no Environmental Clearance is required. The Collector had also said to have issued direction to the 8 th and 9th respondent to take necessary arrangements for leveling the soil to ensure that it may not get washed away to the nearby fields which was also duly complied with.
26. The Collector has further stated after inspection that the lands are not polluted to render it unfit for cultivation as alleged by the applicant. The sludge deposit found is not from the quarry sites but from the nearby water channel. Above all the District Collector has categorically found that there was paddy cultivation and harvest in the lands belonging to the applicant family. Therefore there's no loss or damage to the applicant's agricultural activity.
27. From the above pleadings, it is evident that the 8th and 9th respondents had complied with the directions issued by the Kerala Pollution Control Board. But there was a specific direction to the 10 Pollution Control Board to find out the extent of damage caused and compensation levied on the project proponent for illegally operating the quarry activities.
28. Since, the Department of Geology and Mines and Kerala Pollution Control Board are silent about the levy of penalty and Environmental Compensation for the violations committed by the 8th and 9th respondents, they are directed to levy the same as per rules in vogue within a period of 45 days, collect the same and file a compliance report to the Tribunal within a period of 03(three) months.
29. In view of the above, the Original Application is disposed of.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.149/2022(SZ) 31st July, 2024. (AM) 11 Before the National Green Tribunal Southern Zone (Chennai) O.A. No. 149 of 2022 (SZ) Shankaran, Vs. State of kerala & Ors.
O.A No. 149/2022(SZ) 31st July, 2024. (AM) 12