National Green Tribunal
Ramakrishnan N Aged 47 Years S/O Kottan vs The Union Of India Represented By The ... on 24 November, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.01:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 87 of 2015 (SZ)
(Through Video Conference)
IN THE MATTER OF
Ramakrishnan N,
Aged 47 years, S/o. Kottan,
Thalayadukkam, Kollampara P.O.,
Kasargod District - 671 314.
...Applicant(s)
Versus
1) Union of India,
Represented by the Secretary,
Ministry of Environment & Forests,
Paryavaran Bhavan, CGO Complex,
Lodhi Road, New Delhi - 110 003.
2) The State of Kerala
Represented by the Additional Chief Secretary,
Department of Environment and Climate Change,
Secretariat, Thiruvananthapuram - 695 001.
3) The District Collector,
Kasaragod District,
Civil Station, Vidyanagar, Kasaragod.
4) The Geologist,
District Office,
Department of Mining and Geology,
Kasaragod - 67.
5) The Director of Mining and Geology,
Directorate of Mining and Geology,
Kesavadasapuram, Pattom P.O.,
Thiruvananthapuram - 695 004.
6) The Environmental Engineer,
Kerala State Pollution Control Board,
District Office, Kozhikode District.
7) Kinannor-KarinathalamGrama Panchayath,
Kasaragod District
Rep. by its Secretary.
8) Biodiversity Management Committee,
Kinannor-KarinathalamGrama Panchayath,
Rep. by its Member Secretary.
1
9) M/s. Kerala Clays and Ceramics Product Limited,
Clay House, Pappinissery, Kannur - 670 561.
Rep. by its Managing Director.
....Respondent(s)
For Applicant(s): None.
For Respondent(s): Smt. Me. Saraswathy for R1.
Sri. E.K. Kumaresan for R2 to R5.
Smt. V.K. Rema Smrithi for R6.
Sri. E.K. Nandha Kumar Menon along with
M/s. Pooja Menon represented
M/s. King &Patridge for R9.
Date of Judgment: 24th November, 2020.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
Whether the Judgement is allowed to be published on the Internet - Yes/No
Whether the Judgement is to be published in the All India NGT Reporter - Yes/No
JUDGMENT
1. The above case has been filed by the applicant alleging that the 9th respondent was doing laterite quarrying operation in the Kasaragod District without obtaining Environmental Clearance (EC) and Consentto Operate (CTO). While extracting laterite stone, the 9th respondent is also doing bauxite mining, for which they had not obtained necessary clearance. Further, they had obtained Annexure-A1, mining permission but they had not executed the mining lease till 15.03.2005 and also they had started mining even without executing the same. In 2013, the 9th respondent had obtained permission from the 2nd respondent 2 to extract major mineral namely, Bauxite from the same premises and the 2nd respondent had given sanction to conduct Bauxite mineral mining as per G.O. (Ms) No.134/2014/ID dated 25.09.2014 evidenced by Annexure-A2.
2. The property of the applicant is situated very near to the mining site and the 9th respondent was using explosive for the purpose of conducting mining in an area of more 5 Ha. using explosives in an unscientific manner which caused damage to the house of the applicant. The said activity of mining is being conducted in more than 20 Ha of land by the 9th respondent without obtaining the mandatory Environmental Clearance (EC) under the Environment (Protection) Act, 1986 from the 1st respondent. As per the EIA Notification, 1994, which was then in force, the Environmental Clearance (EC) is required for major minerals where the extent is more than 5 Ha. evidenced by annexure-A4.
When lot of complaints were made, the expert committee inspected the area during February 2015 and Annexure-A5, report was filed by Dr. Amruth M, Scientist, Kerala Forest Research Institute (KFRI) and they have mentioned that the area is having rich biodiversity prospects and mining activities will affect the environment. The applicant also relied on Annexure A6, A7 & A8 reports submitted by several persons on this aspect. The local village panchayat by Anexure-A9, Resolution decided to address the Government to take steps to stop the mining activity and relocate the workers in some other work.
But they were doing the same unabatedly and he produced certain representations evidenced by Annexure-A10 submitted by the local people to the authorities regarding these aspects.
3Since, no action was taken that prompted the applicant to file this application seeking the following reliefs:-
i. Direct the 1st and 2nd respondent to prohibit the 9th respondent from conducting any mining activities in resurvey No.89/1A/part of Kinanoor-
KarinthalamGrama Panchayat without obtaining environmental clearance.
ii. Direct the 1st and 8th respondent to take necessary steps to protect the biological biodiversity of the area in Kinanoor-Karinthalam Grama panchayat. iii. Direct the 9th respondent to restore the ecology and biological diversity of the area in Resurvey No.89/1A/part of Kinanoor-Karinthalam Grama panchayat, where the mining was conducted. iv. Directed the 9th respondent to pay an amount of Rs.1,00,000/- (Rupees One Lakh only) as compensation to the applicant for the damages caused in his property.
v. Pass such any other order, direction or reliefs as this Hon‟ble Tribunal may deem fit in the interest of justice, equity and good conscience."
3. The Ministry of Environment, Forests & Climate Change/1st respondent has filed reply statement contending as follows:-
"Reply Affidavit on behalf of Ministry of Environment, Forest and Climate Change i.e. Respondent No.1 Most Respectfully showeth:
I, Dr. S.K. Susarla, D/o. Shri. S.S. Sastry (Late), aged about 59 years working as Director with Ministry of Environment, Forests & Climate Change, Regional Office (Southern Zone), KendriyaSadan, Kormangala, Bangalore - 560 034, do hereby solemnly affirm and stated as under:-
1) That I, in my official capacity of Adviser in the Ministry of Environment, Forest and Climate Change i.e. Respondent No.1 in the above mentioned matter, am conversant with the facts and circumstances of the case on the basis of the official records, and as authorized and competent to swear this affidavit.
2) That the applicant has filed the above mentioned application before this Hon‟ble Tribunal and prayed 4 to prohibit the mining activity in Re-Survey No.89/1A/part of KinanoorKarinthalaGrama Panchayat without obtaining Environmental Clearance and also take necessary steps to protect the biological diversity of the area.
3) That, in reply of issue raised by the applicant in the present matter, it is humbly submitted that the Ministry of Environment, Forest and Climate Change has notified Environment Impact Assessment (EIA) Notification, 2006 under the Environment Protection Pact, 1986 which deals with the process to grant Environmental Clearances. The projects of mining of minerals as stated in the schedule require prior environmental clearance under this notification. Category „A‟ projects are being handled in the MoEF&CC and Category „B1‟& „B2‟ projects are being handled in the respective State Environment Impact Assessment Authorities (SEIAA‟s) and District Impact Assessment Authorities (DEIAA‟s) notified by the MoEF&CC and following the procedure prescribed under the EIA Notification., 2006.
4) That, the Ministry has constituted the Expert Appraisal Committee (EAC)/ State Expert Appraisal Committee(SEAC)/ District Expert Appraisal Committee (DEAC) in pursuance to the EIA Notification, 2006. That the EAC/SEAC/DEAC follow due procedure contained in the EIA Notification, 2006 while appraising a developmental project requiring prior environmental clearance and making appropriate recommendations.
5) That it is humbly submitted that during appraisal of a project proposal by the EAC/SEAC/DEAC, the Environmental Impact Assessment Report, declaration made in Form-I, Pre-Feasibility Report and presentation made before the EAC/SEAC/DEAC etc. form the basis for appraisal and making appropriate recommendations. That the EAC/SEAC/DEAC makes appropriate recommendations based on the facts submitted and their presentation before the Committee by the project proponent.
6) That, it is humbly submitted that as per the provisions of the EIA Notification, 2006 and as amended from time to time, the non-coal mining projects including minor minerals as stated in the schedule require environmental clearance 5 irrespective of the size of the lease area and type of mineral.
7) That in view of the aforementioned facts and circumstances, this Hon‟ble Tribunal may kindly be pleased to pass appropriate order(s)."
4. The District Collector, Kasaragod District/3rd respondent filed reply statement in form of memorandum which reads as follows:-
"Memorandum filed on behalf of the 3rd
respondent
The counsel for the 3rd respondent, on
instructions, begs to submit as follows:
1) All the averments in the above numbered application, filed on behalf of the Applicant, except those which are specifically admitted hereunder, are not correct and hence denied.
2) It is respectfully submitted that vide Government Order No. G.O. (MS) No. 111/2004/ID dated 25.09.2004 a mining lease was sanctioned to M/s.
Kerala Clays and Ceramic Products Limited, Pappinisseri, Kannur for extracting Laterite mineral from an area of 20.242 Ha. of land (50 acres) comprised in R.S. No.89/1A of Karindalam Village, Hosdurg Taluk, (now in Vellarikund Taluk) Kasaragod District. Consequently the company had executed the lease deed on 15.06.2005. The lease deed is valid up to 26.06.2025. Vide G.O. (Ms) No.134/2014/ID dated 25.09.2014 Govt. have accorded sanction for the inclusion of the newly discovered Mineral (Bauxite) in the existing mining lease.
3) Some people (Environmentalist) belong to various special political parties have formed an action committee in the name of SarvakakshiJanakeeya Samithi and started agitation against the mining operation of KCCPL at Karindalam District. District Collector, Kasaragod has convened two meeting including both parties to find an amicable solution. In the meeting held on 19.02.2015 it was decided to constitute an expert committee including Geologist Kasaragod, District Officer Ground Water Department and an expert from Kerala Forest Research Institute to conduct a preliminary study 6 on the impact of mining in the area. The Geologist and District Officer Ground Water Department reported that there is no major environmental impacts due to mining. The expert from KFRI has recommended to resume operation only on the basis of a study report. The degradation of environment and biodiversity in the area as alleged by the applicant can be ascertained only after conducting a detailed Environmental Impact Assessment study.
4) The expert from KFRI has recommended to resume operation only on the basis of a study report. The representative of SarvakakshiJanakeeya Samara Samithi did not agree with the request of District Collector to halt the agitation till a detailed study is conducted. On the inspection conducted by Geologist Kasaragod cracks are noticed in the walls of residential houses in the south and south western parts of mine at an approximate distance of 150 to 250 metres. On preliminary inspection it cannot say that these cracks are due to mining activity because such cracks are seen where there is no mining activities at all. Moreover these houses are situated at a lower soil filled area compared to flat toped mining areas. The most of the houses where cracks may be due to constructional flaw or due to age of the building. The most residential houses in the northern parts of mine are also almost of old houses. Minor cracks are noticed in these houses. These cracks are also may be due to the constructional flaw and due to old age. Residents fear the minor tremors during blasting. Cracks are not noticed in the two houses at the northern side of P.W.D road that is in the flanks of the flat top of terrain which are nearer to mine.
5) The District Officer GWD has reported that since the mining area is a baren land, lose of vegetation is not prominent except the reported lose of tall true which has some historical importance. It is further reported that the lateritic duri crust is impervious in nature hence the removal of this top cap layer helped vary much for the percolation of rain water to the water table. Planting of vegetation in the mined area can enhance this process. The observatory wells (non pumping) of the department in the nearby area show a steady trend in water levels. This shows in general ground water level is stable in the region. But declining is reported in the 7 south western region of the mining area. This reported declining shall be analyzed in due course after constant monitoring process. Not much fluctuation observed in the northern area indicates recharging contributes to the ground water table. KCCP mining area has created an artificial bawl shaped terrain which allows all the precipitation to recharge in situ. In this process large quantity of water is recharged in a specified area. But it is seen that the benefit of this much ground water recharge is not been seen effected in the south western regions. This may be due to the north eastern gradient of the mining terrains.
6) The expert from KRFI has reported that there is a general feeling that the ground water availability in the area has declined perceptibly over past decade however it is necessary to take into consideration may other factors such as increase in the number of house holds in the vicinity, number of households in the vicinity, number of bore well in the area, actual increase in the consumption (both domestic and irrigation) which require a wall focused and detailed study of the phenomenon. Round the year data covering all the seasons on the water level fluctuations and detailed study comparing water level in the area prior mining, increase in well density, extraction and consumption is needed to decide and ascertain the impact of the mining on the progressive reduction in water level in the open wells and bore wells in the region.
7) The permission to M/s. KCCP Ltd was issued by the Govt. vide G.O. (MS) No. 111/2004/ID dated 25.09.2004. District Collector has provided police protection to the company on request of Manager of the Company. Moreover, the Hon‟ble High Court of Kerala in the Judgment in WP (C) Nos. 3971 of 2015 and 6493 of 2015 dated 11.06.2015 have ordered that "the jurisdictional police will ensure that necessary protection is extended to the company and its employees to carry out necessary activities in conformity with this order". It was further ordered that "The District Collector who is the District Magistrate, having jurisdiction in the area will also do the needful to ensure that law and order is maintained". The company had agreed to get EIA study done. But at present the company is not functioning due to the protest of public.
8) It is submitted that District Collector has acted upon the Government directions only and there is no 8 lathes on the part of the District Collector. Hence, the case is devoid of merits and may be dismissed. Hence, it is respectfully prayed that the above facts and circumstances may be kindly taken note of, and in the light of the same, this Hon‟ble Tribunal may be pleased to dismissed the above application as against the 5th respondent and thus render justice."
5. The Kerala State Pollution Control Board/6th respondent earlier filed inspect cum status report which reads as follows:-
"Status Report submitted by the Environmental Engineer, District Office, Kerala State Pollution Control Board, Kasargod I, Sindhu Radhakrishnan, aged 46 years, D/o. Sri. R. Radhakrishnan Nair, am the Environmental Engineer of District Office of Kerala State Pollution Control Board, Kasaragod and I humbly submit as follows:-
1) This application filed by Sr. Ramakrishnan. N. is against the mining activities carried out by the 9 th respondent M/s. Kerala Clays and Ceramics Product Limited at Thalayadukkam in Karinthalam Village of Kinanoor Karinthalam Panchayat.
2) It is humbly submitted that the 9 th respondent has been carrying out laterite mining as per the Government Order (MS) No.111/2004./ID dated 25.09.2004 at Thalayadukkam in Karinthalam Village, Hosdurg Taluk of Kasaragod District in an area of 50 acres in Survey No.89/1A Part for a lease period of 20 years. The copy of Government Order is produced herewith and marked as Annexure 1. Even though, they have 50 acres of lease land, it is understood that only less than 10 acres have been mined. As per the Government Order (MS) No. 134/2014/ID dated 25.09.2014. Government of Kerala have accorded sanction for mining of Bauxite in the existing mining lease granted as per Annexure
1. The copy of Government order is produced herewith and marked as annexure 2.
3) It is submitted that the alleged site of the mines of the 9th respondent was inspected by the Assistant Environmental Engineer of this office on 22.06.2015. It was found that mining activities has been stopped for the past 5 months due to the strong protest by the residents of Karinthalam Village. The petitioner Sri. Ramakrishnan. N was not present the time of 9 inspection. His wife about 20 other local people were present at the time of inspection. The complainants mainly informed of the heavy fall in the ground water table resulting in water scarcity in all the surrounding wells and pond of a religious kavu, land slide/flow of soil beneath houses etc. along with water due to collection of rain water in the mined area, loss of flora and fauna in the area and vibration and smell caused due to the large scale usage of explosives. They further informed that mining was carried out even to odd hours with overnight traffic in the panchayath roads due to trucks movement. They also claimed that excessive mining is carried out, that more depth and more quantity than permitted is mined. They also informed that the mining area reclamation is not proper. During the inspection it was found that about more than 30 houses are situated within 50 m radius from the boundary of the mining area of 50 acres. Of the 50 acres of land only less than 10 acres was found mined. The depth of the mines could not be exactly measures, but it seems to be less than 10m. The mines were found partially filled with rain water. Rubber and banana plants were found planted in part of mined area. But the reclamation seems not be adequate as entire area is not planted. The public demand that a proper Environmental Impact Assessment (EIA) study is to be conducted before restraining the mining works in the area.
4) It is humbly submitted that as per this office records the 9th respondent has not submitted any application for the consent of the Kerala State Pollution Control Board under relevant statutes and the mining work is carried out without obtaining consent to operate of the Board.
All the above stated facts are true to the best of my knowledge information and belief."
6. The Sixth respondent filed additional reply statement which reads as follows:-
"Additional Reply filed by the 6th respondent Kerala State Pollution Control Board I, Sindhu Radhakrishnan, D/o. R. Radhkrisnan Nair aged about 47 years working currently as Environmental Engineer of District Office of Kerala State Pollution Control Board, District Office, Kasaragode do hereby states as follows:-10
1) That this Hon‟ble Tribunal had directed the KSPCB to explain the reasons whereby the Board is issuing "Integrated Consent to Establish/ Operate" for various projects as against individual consents under the Air Act and the Water Act respectively.
2) That the State Pollution Control Board is vested with the authority of granting Consent for Industries/ other activities under the Water Act, 1974, Air Act, 1981 and Rules there under. Authorization is also issued as per the various Rules under Environment (Protection) Act, 1986 viz., Bio Medical Waste Rules, 2016, MSW Rules, 2016, Hazardous Waste (Management and Handling) Rules, 2008, Plastic Wastes (Management and Handling) Rules, 2011.
3) That since all environment segments are inter related, environmental pollution control is to be implemented in an integrated and comprehensive manner. The industrial units generating effluents and exhaling air emissions and also generating hazardous waste come under the purview of the Water Act, Air Act and Hazardous Waste (Management and Handling) Rules under the Environment Protection Act. Hence, while considering a consent application of industries a gamut of pollution from hazardous aspects like pollution from effluents, emission and pollution from hazardous waste generated under various environmental aspects are to be taken into account.
Hence, a holistic approach seems inevitable. Though the individual rules provided for submission of individual application to achieve overall compliance in all segments of environmental pollution control consent/authorization for effluent, emission and solid waste need to be integrated. This would simplify the consent mechanism giving the Board more time for consent administrations and further monitoring.
4) That Section 64 of the Water (Prevention and Control of Pollution) Act, 1974 provided for the State Government to make Rules in consultation with the State Board for the purposes of the said Act. Likewise Section 54 of the Air (Prevention and Control of Pollution) Act, 1981 provides for the State Government to make suitable Rules for the purposes of the Act.
5) That it was though fit and necessary for the reasons stated above and it was thereby decided in the 149 th Board meeting to integrate the consent procedures. The proposal for integration of consent thereafter forwarded to the State Government to make the necessary amendments to the State Water Rules and Air Rules. The proposal was accepted by the 11 Government and the Water Rules, 1976 and the Air Rules, 1984 were amended vide Notification No.43799/G3/05/H&FWD dated 09.06.2006 (SRO No.435/2006 and 436/2006). The integrated application is of 5 types to cater to the following type of units.
i. Industries/Establishments ii. Health Care Establishments iii. Hotels/Offices/Commercial Establishments/ Residential Apartments.
iv. House Boats/Passenger Boat v. Stationary diesel generators.
6) That the above mentioned applicants are numbered as Form IV A, IV B, IV D & IV E under the Water Rules and the same format was notified under Air Rules also but numbered as Form IA, IB, IC, ID & IE. The applicant is at liberty to apply for consent in Form IV series or I series but has to mention therein which all the clearances are being applied for. The integrated applications are for the following clearances:
Consent under Water Act Consent under Air Act Authorization under Hazardous Waste Rules Authorization under Bio Medical Waste Rules Registration under Plastic (Management & Handling) Rules.
7) That the new procedure provides for the combined application form for obtaining consents, registration, authorization and includes aspects of water pollution, air pollution, bio medical waste management, manufacture of plastic carry bags and hazardous waste handling and management. Instead of separate application forms for obtaining consents (to establish and operate) under the Air Act and Water Act authorization under Bio Medical Waste Rules, registration under Plastic Rules and authorization under Bio Medical Waste Rules, registration under Plastic Rules and authorization under Hazardous Waste (Management & Handling) Rules, the industrial units will now require one integrated application form for clearance. For authorization under Hazardous Waste Rules, Bio Medical Waste Rules and Plastic Rules, the Form I under the Hazardous Waste Rules, Bio Medical Waste Rules, MSW Rules and Plastic Rules prescribed by the MoEF maybe used and made part of the integrated application. Information 12 required in Form I under the Hazardous Waste / Bio Medical Waste/ Municipal Solid Waste/ Plastic Rules need not be repeated if indicated elsewhere in the earlier part of the integrated application but may be signed at the end of Form I. In respect of units do not fall under the purview of Hazardous waste, Bio Medical Waste, MSW Rules or Plastic Rules, it is not necessary to obtain those authorization or permits as the case maybe.
8) That the MoEF had on December 20, 1999 brought out draft notification No. SO (E) 1253 regarding uniform consent procedure in pursuance of the decision of the 42nd Conference of the Chairman and Member Secretaries of the State PCB/PCCs held on 14 th July,1988. The draft rules were the outcome of the recommendations of a committee of State Pollution Control Board Chairmen constituted by the Central Pollution Control Board. Draft rules seeks to bring about uniformity in the consent applicant form, consent fee structure, level of disposal of consent application, period required for disposal, validity period, categorization of industries, etc. Comments/ objections/ Suggestions were received in the Ministry in response to the draft notification which were examined by a committee constituted by the CPCB. The committee observed that the initiative towards rationalization in consent management by State PCB would help expeditious decision making and ensure great transparency of SPCB functioning. The committee raised a point about the legality and desirability of Central Legislation in matters which have been specially provided for action by the State Government under the Air and Water Act. The committee felt that it would not be desirable to make a legislation on uniformity in consent management procedure and that the consent management and its day to day procedure should be totally left to the wisdom of the SPCB/PCCs. Further, it was also observed that prescribing a street legal frame work for procedure for consent management would take away the functional flexibility of SPCB/SPCCs. The powers given to State Boards and State Governments should not be curtailed or taken away by Central Government. Hence, it was suggested that guidelines may be issued.
9) That in view of the views expressed/made by some SPCBs on draft rules, the said rules were issued in the form of guidelines for adoptions by SPCBs/PCCs.
1310) That the main feature of the revised draft rules now guidelines include common application for consent and for authorization.
11) Hence, it can be seen that integrated consent procedure was though off by other PCBs and CPCB as well. It may be noted that atleast 15 SPCBs through the country are using integrated consent management method as of today.
12) That the Central Government has now come with "ease of doing business" policy wherein it is proposed to bring down the time limit for issuing of consents and to make it more applicant friendly. Integrated system of consent is inevitable for bringing about ease in doing business. Hence, it is submitted that the effectiveness for environmental provisions are enhanced in following such a integrated system of clearance and the same system should be allowed to be continued in the larger interest of the environment.
13) That the Hon‟ble Tribunal may take the above explanation on record and issue suitable orders.
14) All the statements made above are true to my best of my knowledge and belief."
7. The ninth respondent namely, M/s. Kerala Clays and Ceramics Product Limited filed counter statement contending as follows:-
"Reply Statement on behalf of M/s. Kerala Clays and Ceramics product Limited - 9th Respondent It is respectfully submitted as follows:
The address for service of all notices and processes on the 9th respondent is that of its advocates M/s. King & Partridge, "Catholic Centre", 108 Armenian Street, Chennai - 600001.
1) The above application has been filed by the applicant alleging that the mining operation for extraction of Bauxite at the Karindalam unit of this respondent is illegal. It is humbly submitted that the allegation raised by the applicant in the above application are absolutely false and devoid of all merits.
2) At the very outset it is submitted that the above application is not maintainable in light of the limitation prescribed in Section 14(3) & 15(3) of the National Green Tribunal Act, 2010. The claims have been made after the limitation period prescribed in Section 14(3) & 15(3) of National Green Tribunal Act, 2010. The mining operation of the 9th respondent in the mining area commenced in the year 2005 and the cause of action for the dispute had first arisen admittedly in 2005.14
Section 14 (3) of the National Green Tribunal Act, 2010 clearly stipulate that no application for adjudication of dispute under Section 14 shall be entertained by this Hon‟ble Tribunal unless the same have been made within a period of six months from the date on which the cause of action for such dispute had first arisen. An additional sixty days is further stipulated for filing of the application, if the Hon‟ble Tribunal was satisfied that the applicant was prevented by sufficient cause from filing the application within six months. Section 15(3) of the National Green Tribunal Act, 2010 lays down that the application for compensation under Section 15 cannot entertained by the Hon‟ble Tribunal, unless the application has been filed within a period of five years from the date on which the cause for such compensation or relief first arose. The applicant alleges that the mining activities, which had commenced from 2005, had caused damages to the house of the applicant. It is pertinent to note that the above application has been filed only in the year of 2015 and the first date on which the cause for such compensation or relief has first arose in 2005. Thus it is amply clear the above application is hopelessly barred by limitations mandated in Section 14(3) and Section 15(3) of the National Green Tribunal Act, 2010. It is humbly submitted that in light of the aforementioned reasons, the application may be dismissed as stipulated is Section 14(3) and Section 15(3) of the National Green Tribunal Act, 2010 for being barred by limitation.
3) It is submitted that the issues raised in the present application is being adjudicated by the Hon‟ble High Court of Kerala in WP(C) No. 3971 of 2015 (filed by the 9th respondent here in), in WP(C) No. 11913 of 2015 filed by (Shri. Kunhambu. N), in WP(C) No. 14160 of 2015(filed by the 9th respondent here in), and in WP(C) No. 13859 of 2015 (filed by the 9th respondent here in). The Hon‟ble High Court of Kerala has passed a detailed order dated 11.06.2015 permitting mining operations in respect of Laterite on certain terms and conditions. True copy of the Interim order dated 11.06.2015 of the Hon‟ble High Court of Kerala in WP(C) No. 3971 of 2015 is produced herewith and marked as Annexure R9(1) for identification.
4) This respondent is a Govt. of Kerala undertaking, incorporated under the Companies Act, 1956, having its registered office at Pappinissery, Kannur. It has mines rich in China Clay suitable for Ceramic, Rubber, Pesticides, Ultramarine at Payangadi, Kannapuram 15 and Nileshwar. This respondent also has a Ceramic Division at Mangattuparamba where refractory bricks and grinding balls are manufactured, a wire cut brick making unit at Kannapuram in Kannur District and an Aluminious Laterite mine at Karindalam in Kasargod District.
5) On the Strength of Annexure A-1 order dated 25.09.2004, this respondent was sanctioned mining lease for extracting laterite mineral in an area of 20.242 hectares of land comprised in R.S.No.89/IA/ Part of Karindalam Village of Hosdurg Taluk of Kasargod District for a period of 20 years. During the course of mining, bauxite was encountered and in compliance to Rule 27(1)(b) of the Mineral Concession Rules, 1960, the respondent herein initiated steps for including the bauxite in the existing lease. Pursuant to the steps taken, the second respondent sanctioned inclusion of Bauxite mineral in the existing Annexure- A1 mining lease vide Annexure-A2 order.
6) The method of mining is the simple opencast mining by formation of benches 1.5 meter height and the depth of the pit not exceeding average 4.5 meters. The rock fragmentation is achieved by drilling 32 mm blastholes (smallest possible size) and blasting using class 2 explosives. The blasted rock is excavated and transported out of the mine to stock yards. A buffer zone of 7.5 meter is left unmined in the western boundary. The mine is supervised by Graduate Mining Engineer with second class mines managers certificate and the blasting operations are carried out by an authorized Mining Mat as stipulated under Mines Act 1952.
7) Without prejudice to what is stated above, this respondent denies each and every averment in the application save to the extent herein after admitted to be true.
8) The averments in Paragraph 1 are purely factual in nature and hence merit no reply.
9) The averments in Paragraph No 2 of the above application are baseless and hence denied. Kasargod district in to 4 blocks i.e. Manjeswar, Kasargod, Kanhangad and Nileshwar blocks. The Aluminious Laterite mine of this respondent at Karindalam falls in the Nileshwar block. Out of the 4 blocks in the district, only Nileshwar block is considered safe for large scale future developments. The same is evident from the data and information provided in Ground Water Information Booklet of the Kasargod District issued by Ministry Of Water Resources, Government of India. True copy of the 16 Ground Water Information Booklet of the Kasargod District issued in July, 2007 by Ministry of Water Resources, Government of India is produced herewith and marked as Annexure-R9(2) for identification.
10) The averment that the degradation of bio-diversity in the area is due to the expensive mining activities is absolutely baseless and hence denied. The Laterite capping in the State of Kerala especially the hard duricrust at Karindalam, do not support growth of vegetation over it. The removal of hard duricrust during the process of mining and refilling of the pits with loose soil makes the area fertile and support the growth of vegetation. This is evident from the filled and afforested mine pit at Karindalam Laterite mine. This sustainable and environment friendly mining practices have received appreciation and is been considered to be the one of the best practices in sustainable environment friendly mining practice. In light of the afore mentioned reasons, the allegation that the mining activity caused environmental degradation is baseless and is not legally sustainable.
11) Furthermore, the averment that Bauxite deposits are extensive in Ananthapuram and at KinanoorKarindalam in Nileshwar is incorrect. Bauxite, as an individual deposit is not found occurring the State of Kerala in Ananthapuram and at KinanoorKarindalam in Nileshwar, Bauxite is always found occurring with Laterite and as cappings over the crystallines and sedimentary rocks and they form Laterite Plateau ranging from 50m to 150m above mean sea level.
12) The averments in Paragraph No 3 of the above application are incorrect and not legally sustainable and hence denied. The averment that the mining being done in the KinanoorKarindalam area is unscientific and is causing heavy environmental degradation and destruction of the rich bio-diversity and causing huge threat to the lives of the several localities is baseless and incorrect and devoid of all merits and hence denied. Even though Aneexure-A1 mining lease was granted for an area of 50 acres, hardly 10 acres has been utilized for mining during the last 10 years. The mining activities are conducted in the lease area by adopting eco-friendly back filling and afforestation practice. The mining is also conducted under the supervision of experienced and qualified Mines Manager, Mining Mat and other Personnel. The guidelines and Indian Bureau of Mines are also adhered to by this respondent. The Karindalam mining 17 unit has been recipient of awards from Central Government Agencies for adopting environmental friendly mining practices. Furthermore, no threat to the life of the localities has been reported during the 10 years period of mining from 2005 to 2015.
13) It is pertinent to note that the Laterite capping in the State of Kerala, especially the hard duricrust at Karindalam, do not support growth of vegetation over it. It is only due to the removal of hard duricrust during the process of mining and refilling of the pits with soil the areas in the mining unit became fertile and supports growth of vegetation, rubber, coconut and mahogany trees and plantain cultivation. Infact, the sustainable mining practices of this respondent increased the bio-diversity and replenished the bio- diversity that otherwise could not have sustained due to the hard duricrust that does not support vegetation or cultivation.
14) The averments in Paragraph No 4 of the above application are incorrect and not legally sustainable and hence denied. It is evident from the special conditions in Annexure-A1 order that Bauxite when encountered during the course of mining, shall be separately stacked and stabilized in accordance with the proviso of MCDR, 1988.It is humbly submitted that the 9th respondent has stacked and stabilized Bauxite accordingly and appropriate proviso had been incorporated in the approved mining plan.
15) The averments in Paragraph No 5 of the above application are incorrect and not legally sustainable and hence denied. Although the lease was granted in 2004, the mining lease deed was executed only in 2005 as there was delay in obtaining the survey plan of the lease area from the Revenue Authorities. It is pertinent to note that the mining lease deed was executed within 6 months from the date of order i.e., on 15.03.2005 as mandated in the conditions in Annexure A1 Order. The averment that the mining activities were stopped as a result of large scale protest and resumed again within a short span of time is not the true representation of facts and the averments are only to mislead the Hon‟ble Tribunal. There was an agitation from the local inhabitants apprehending that the mining activities were causing environmental issues. The 9th respondent herein, to alleviate the aforesaid apprehensions, requested the 5th respondent conducted an appraisal of the impact of mining in the Karindalam Unit. The Geotechnical and Environment wing of the 5 th respondent conducted a reconnaitory survey during the 18 month of October 2005. The findings and observations in the reconnaitory survey was submitted vide a detailed report. True copy of the report titled, "Report on the reconnaitory survey conducted at Karindalam related to public protest against bauxite mining"
prepared by the 5th respondent is produced herewith and marked as Annexure R9(3) for identification. Annexure R9(3) report had categorically stated that the Laterite mining will boost the permeability character of the terrain. It was also reported that the blasting or mining was unlikely to affect the settlements adjoining the area at the mining as the mining operations are restricted to shallow depth. Annexure R9(3) report Quelled the concerns of the local inhabitants and the mining had resumed till 2015 without any protest from the localities.
16) It is petitioner to note that Rule 27(1)(b) of the Mineral Concession Rules, 1960, mandates that when any mineral not specified in the mining lease is discovered in the leased area, the lessee shall not win or dispose such minerals unless such mineral is included in the lease or a separate lease is obtained for the same. 9th responded herein stacked the low grade bauxite found in the least mining area and initiated steps for getting the low grade bauxite to be included in the existing mining lease. Mines and Minerals (Development and Regulation) Act, 1957 does not mandate the prior approval of the Central Government for the inclusion of mineral discovered during the course of mining in the existing mining lease. It is pertinent to note that both Laterite and low grade Bauxite were major minerals and it was only in 2015 Laterite was included under the category of minor mineral.
17) The averments in Paragraph No 6 of the above application are incorrect and not legally sustainable and hence denied. The averment that the mining operations since obtaining of Annexure A2 sanction have resulted in damages to the property of the applicant is incorrect and baseless and hence denied.
The mining operations and use of explosives remains the same even after the Annexure A2 was sanctioned. Hence, it is evident that the mining operations conducted in the mining lease area after Annexure A2 sanction would not cause damages to the properties of the applicant. Furthermore, the house of the applicant, even according to the applicant, as stated in the Annexure A7 is 300 meters away from the mining areas. The actual distance is around 400 meters and it is evident from Annexure R9(3) report of the 5 th 19 respondent herein, that blasting or mining is unlikely to affect the settlements adjoining the area as the mining operations are restricted to shallow depths. The explosives used are Nitrate mixture and only 125gm per hole is used and the length of the safety fuse is 04 feet. The depth of the hole is 4 feet with a diameter of 32mm. On a daily basis from 08.00AM to 10.00AM around 60 holes are blasted, 10.00 to 12.00PM. 65 holes are blasted, from 2.00PM to 3.00PM around 60 holes are blasted and from 03.30PM to 4.15PM around 10 holes are blasted. The aforementioned blastings are done only at shallow depths of 4 feet. Thus it is evident at any rate the blastings could not cause any damage to the properties of the applicant which is situated 400 meters away from the area of blasting. It is also pertinent to note that the houses nearer to the mining operations and even the office premises of the 9 th respondent, which is nearest to the mining operations, have no damages due to the blastings. Furthermore, Rule 27(1)(h) of the Mineral Concession Rules, 1960, mandates only 50 meters distance needs to be kept within the area of mining operations and the buildings. It is thus evident that no damages could be caused to the house of the applicant situated 400 meters away from the mining unit.
18) The averment that the use of explosives and unscientific mining caused damages to the property of the applicant is baseless and hence denied. Blastings have been conducted since 2005 with use of explosives in small quantities and under the supervision of licenced and experienced statutory personnels. The applicant has grossly failed to establish any nexus to damages to the house of the applicant and mining operations of the 9th respondent.
19) Furthermore, in the report submitted by the 4th Respondent herein to the 3rd respondent on 26.02.2015, it has been reported that cracks were not found in the houses nearer to the mining areas. It was also reported that no mining operations were being conducted nearer the houses in which cracks were found and that the houses were 15 years old, that the cracks could be due to ageing of the house or due to constructional flaws. True copy of the report titled, "Report on the preliminary study conducted in the Laterite mine and surrounding areas in Karindalam village" prepared by the 4th respondent on 26.02.2015 along with the covering letter is produced herewith and marked as Annexure R9(4) for identification.
2020) The averment that the explosives are used in more than 5 hectares of area is incorrect and hence denied. On a daily basis 9th respondent conducts mining in less than 80 sq. mts i.e., roughly in 2 cents of the mining area.
21) The averment of the mining activities have caused heavy fall in the ground water level is devoid of all merits and hence denied. In Annexure R9(2), it is stated that the growth rate of the bore well, after eighties increased steadily at an alarming rate. Because of the highly porous nature of the Laterite, the dug well tapping Laterite gets recharged past in the initial stages of monsoon. However this water escapes as sub-surface flow and the water level falls quite fast especially in wells located on topographic high and slopes. Thus at any rate, the fall in ground water level cannot be attributed to the mining activity in the mining area as the mining is carried out only up to an average depth of 4 ½ m. Furthermore in Annexure R9(3) it has been clearly stated that the mining being conducted several meters above the local water level, the mining would not involve dewatering of the ground water and that the percolation of the rain water will help in recharging the open wells. The same observations were reiterated in the report dated 26.02.2015 filed by the District Officer, Ground Water Department, Kasargod to the 3rd respondent. True copy of the report titled, „Preliminary ground water investigation report of KCCL Laterite mine‟ prepared by the District Officer, Ground Water Department, Kasargod and submitted to the 3rd respondent on 26.02.2015 along with the covering letter is produced herewith and marked as Annexure R9(5) for identification. It is thus evident that the mining operation is not the reason for the water scarcity in the region.
22) The averment that large scale impact of the mining as resulted in environmental degradation, landslides etc., and affects the life of the applicant is baseless and has no legs to stand on. No landslide has been reported in or near the mining unit. Furthermore, mining in the Karindalam Unit has only helped the improvement of the flora and fauna in the area and helped for better percolation of rain water. The averment that the vibrations caused from the explosions were only visible since few months is only to circumvent the bar of limitation prescribed under Section 14(3) and 15(3) of the National Green Tribunal Act, 2010.
23) The averment that the mining of the 9th respondent is illegal is absolutely without any basis and hence denied. The Indian Bureau of Mines had conducted an 21 inspection on 14.07.2015 based on the complaint filed by the 7th respondent. It is emphasized in the Joint Inspection report that no illegal mining was detected in the mining conducted by the 9th respondent in the Karindalam unit. True copy of the Joint Inspection report of the Indian Bureau of Mines on the inspection conducted on 14.07.2015 is produced herewith and marked as Annexure R9 (6) for identification. It is thus evident that the averment of the applicant that the 9 th respondent is conducting illegal mining is without any basis.
24) The averments in Paragraph No.7 of the above application are incorrect and not legally sustainable and hence denied. The averment that the 9th respondent is conducting mining in the entire 20 hectares of mining area is incorrect and hence denied. On a daily basis, 9th respondent conducts mining in less than 80 Sq. mts. i.e., roughly in 2 cents in the mining area.
25) The averment that mandatory environment clearance has not been obtained by the 9 th respondent and the same is a gross violation of the Annexure A3 EIA Notification, 1994, is devoid of all merits and hence denied. The 1st respondent had issued circular dated 28.10.2004 stating that the ".... all mining projects of major minerals of more than 5 hectors lease area which have so far not obtained EC under the EIA Notification, 1994 shall do so at the time of renewal of their lease...." True copy of the Circular No. J-20012/11/98- IA - II (M) dated 28.10.2014 issued by the 1 st respondent is produced herewith and marked as Annexure R9 (7) for identification. Annexure A1 order was issued in 25.09.2004 to the 9th respondent and the same was granted prior to the issuance of Annexure R9 (7) circular which was issued on 28.10.2004. Thus on strength of Annexure R9 (7) circular, renewal of the lease being due only in 2024. Hence, environment clearance need only be obtained in 2024 at the time of renewal of lease.
26) The averments in paragraph No.8 of the above application are incorrect and not illegally sustainable and hence denied. The averment that the operation of Annexure A1 order by the 5th respondent is in clear violation of the EIA Notification, 2006 is illegal is incorrect and hence denied. The respondent herein conducts the mining activities and not the 5 th respondent. The mining lease was granted by the 2nd respondent and not the 5th respondent.
2227) Furthermore, vide Annexure A4 EIA Notification, 2006, Central Government directed on and from the date of publication (14th September, 2006) of Annexure A4, construction of new projects or expansion or modernization of existing projects or activities listed in the schedule to the annexure A4 notification entailing capacity addition with change in process and or technology shall be undertaken only after the prior environmental clearance from the Central Government or by the State Level Environment Impact Assessment Authority. In the mining operations in the Karindalam unit, no constructions of any new project were being undertaken, and neither any expansion nor modernization of the existing project or any capacity addition or change in technology was being undertaken. Hence, stipulations is Annexure A4 EIA Notification, 2006, do not apply to the mining operations at the Karindalam unit. Only in 2024, when the lease is due for renewal, environmental clearances needs to be obtained by this respondent.
28) It is also pertinent to note that the Annexure A4 EIA Notification, 2006, clearly stipulates that the Annexure A4 is in suppression of Annexure A3 EIA Notification, 1994, except in respect of things done or omitted to be done before such suppression. In light of the same, Annexure A4 EIA Notification, 2006, is not applicable to things done omitted to be done before annexure A4 EIA Notification, 2006. Therefore, in terms of the Annexure A4 EIA Notification, 2006, read with the terms of the Annexure R9 (7) circular, environment clearance is required only at the time of renewal of the lease.
29) The averments in paragraph No.9 of the above application are incorrect and hence denied. The 3rd respondent had formed a committee of 3 expert members to study the impact of mining activities in the Karindalam unit and submit their individual reports. The 4th respondent herein and the District Officer of the Ground Water Department, Kasargod, and a scientist from Kerala Forest Research Institute were the expert members. The averment shaped to project that the scientist was the only expert member by the applicant is only to mislead this Hon‟ble Forum.
30) The 4th respondent was included as a member of the expert committee to render his expertise, knowledge and experience in the mining activity and its impacts. The District Officer of the Ground Water Department was included to render his expertise, knowledge and experience in reporting the condition of the ground water. The reports of the 4 th respondent and the 23 District Officer of the Ground Water Department, Kasargod, are marked as Annexure R9 (4) and R9 (5) respectively.
31) The Scientist was included to study the impact on biodiversity of the area. It is pertinent to note that instead of reporting on the impact of the bio diversity, the scientist went on to report topics in which he had no expertise or experience.
32) On comparison of Annexure A5 report and Annexure R9 (5) report of the District Officer, Ground Water Department, it can be seen that the observations of the District Officer, Ground Water Department, that the hard lateritic duricrust being impermeable, it arrests the percolation of the precipitation in the region and the removal of hard upper duricrust portion enhance natural recharge in the region and the observation that the mined area becomes a basin like structure which fully enhances the recharge process utilizing the entire precipitation falling in the mined area has not been observed by the scientist in Annexure A5 report. Furthermore, observations like no major water quality problem was reported, tapping of semi confined aquifer was increasing year by year and the same may partly affect the phreatic water level and storage and that the density of bore wells in the region was increasing year by year were also not found in Annexure A5 report. The observation and assessment of impacts on condition of ground water by the scientist lacks scientific reasoning and are only the assumption of the scientist.
33) It is also pertinent to note that annexure R9 (4) report of the 4th respondent observed that the mining was being performed at shallow depths, that the mining activities were conducted in building benches in 3 levels from surface with sufficient depth with buffer zone, that the mined out area was refilled and cultivated by rubber and plantain, that controlled and limited blasting was only needed to strip the hear laterite at the surface, that the vibration of the shallow depth blasting will not spread for away from the mine area and that the cracks generated on walls of residential houses cannot be attributed to the mining activity but due to the constructional flaw or due to old age of the building and that the cracks were not noticed in two houses which were nearer to the mine. The scientist in Annexure A5 report does not make any such scientific observations but resorts to arguments to substantiate his assumptions. It can also be seen from Annexure R9 (4) and R9 (5) that the observations are more authentic than the extrapolations and assumptions in Annexure 24 A5 report. Furthermore, in Annexure A5, the observations of the scientist on the flora and fauna at Karindalam unit is common to all laterite cappings and not just restricted to Kinanoor - Karindalam Panchayat.
34) The averments in paragraph No.10 of the above application are incorrect and hence denied. The ministry of Science and Technology is not the 1 st respondent as averred by the applicant. It is submitted that the hard duricrust of the mining area does not support vegetation and it is only after the scientific mining and afforestation being done by the 9 th respondent, vegetation had thrived and resulted in the improvement of flora and fauna in the area.
35) The averments in Paragraph No.11 of the above application are incorrect and hence denied. It is submitted that the 7th respondent had never raised any concerns until 31.01.2015 regarding the mining activities at Karindalam unit. The observations of the Panchayat that the mining activities of the 9 th respondent are causing damages are not based on any scientific reasoning or study. Annexure A9 was only made to appease the local miscreants who wish to stall the operations of the mining activities. Furthermore, the 7th respondent had issued show cause notices to the respondent herein and being aggrieved by the same, this respondent had invoked Writ jurisdiction of the Hon‟ble High Court of Kerala in WP (C) No. 14160 of 2015 and WP (C) No. 13859 of 2015.
36) The averments in Paragraph No.12 of the above application are incorrect and hence denied. The averment that the water table of the region had drastically reduced, that the flora and fauna is being ruined and licence from the 7th respondent were not obtained is devoid of all merits and hence denied. Annexure R9 (3) and Annexure R9 (5) categorically shows that the mining activities improved the ground water table and the flora and fauna of the area. It can also seen from Annexure R9 (5) that the lowering of water table level is not due to the mining activities but due to the increasing utilization of water for agricultural and increased density of bore wells and dug wells and uncontrolled tapping of bore wells. Furthermore, no licences were mandated under any act to be taken from 7th respondent for the mining activities in the Karindalam unit.
37) The averments in paragraph No.13 and 14 of the above application are incorrect and not legally sustainable and hence denied. It is submitted that in Deepak Kumar and Ors Vs. State of Haryana and Ors. Hon‟ble 25 Apex Court had ordered that lease of minor mineral including their renewal for an area of less than 5 hectars be granted by State / UTs only after getting environmental clearance from the 1st respondent herein. The mining lease of 9th respondent is an existing one and the decision of the Apex Court is only applicable for grant of fresh leases and at the time of renewal. The lease granted to the 9th respondent was for major mineral laterite and the renewal of Annexure A1 lease is only due in 2024. Furthermore, Deepak Kumar‟s case deals with a completely different issue and it is in the nature of an interim order till new Rules are framed regarding the requirement of environmental clearance. The various observations in the order dated 27.02.2012 reported in 2012 (4) SCC 629 are not be treated as a binding precedent to be applied in all cases.
38) The averments in paragraph No.15 and 16 of the above application are incorrect and not legally sustainable and hence denied. Annexure A2 sanction was not for renewal but for inclusion of a major mineral and the same does not require environmental clearance as the same is to be taken only at the time of renewal in 2024 of annexure A1 lease order. The averment that no EIA study was conducted by the 9 th respondent is incorrect and hence denied.
39) The averments in Ground A are baseless and hence denied. The mining activities are being conducted at the Karidalam unit in full compliance of mandates prescribed under the Mines and Minerals (Development and Regulation) Act, 1957 and the Mineral Concession Rules, 1960. The averment that the mining operations are in violation of the directions of the Hon‟ble Supreme Court is baseless and devoid of all merits.
40) The averments in Ground B, C and D are baseless and hence denied. The averment that the mining activities are in violation of the EIA Notification, 1994 and 2006 is devoid of all merit and hence denied. Annexure R9 (7) circular issued by the 1st respondent, mandated that mining projects of major minerals that had not obtained environmental clearance, need to obtain environmental clearance at the time of renewal of the lase. It is submitted that the Annexure A1 lease is due for renewal in 2024 and hence only in 2024 environment clearance needs to be obtained by the respondent herein. Furthermore, no constructions of any new project are being undertaken in the mining operations at the Karindalam unit, and neither any expansion nor modernization of the existing project or any capacity 26 addition or change in technology in being undertaken. Hence, environmental clearance mandated in Annexure A4 EIA Notification, 2006, need not be obtained by this respondent.
41) The averments in Ground E and F are baseless and hence denied. Annexure A5 report is without any factual clarity and is merely based on assumptions and thus inherently erroneous. The averment that the polluter pays principle should be made applicable to this respondent is devoid to all merit. The applicant herein has grossly failed to substantiate any damage or degradation caused by the mining operations of the Karindalam unit.
42) The averments in Ground G and H are baseless and hence denied. The averment that annexure A6 shows local grama panchayath has unanimously taken decision to stop illegal mining is baseless and hence denied. Furthermore, 7th respondent has come to Annexure A9 decision without conducting any scientific study. Hence, Annexure A9 decision is arbitrary and unjust.
43) The averments in Ground I, J, K and L are baseless and hence denied. It is submitted that prior to the start of mining, there was hardly any flourishing flora and fauna due to the hard duricrust and scarcity of water. It is only after the afforestation activities commenced by this respondent and recharging of the ground water by the abandoned pits, bio diversity could thrive. It is submitted that this respondent has not overused abuse or neglected the mining areas and hence no cause arises as mandated under Section 36 (4) of the Biological Diversity Act, 2002.
44) The averments in Ground M, N and O are baseless and hence denied. It is submitted that Hon‟ble Apex Court, in Deepak Kumar and Ors. Vs. State of Haryana and Ors. had ordered that lease of minor mineral including their renewal for an area of less than 5 hectares be granted by State/ UTs only after getting environmental clearance from the 1st respondent herein. The mining lease of 9th respondent is an existing one and the decision of the Apex Court is only applicable for grant of fresh leases and at the time of renewal of minor minerals. The lease granted to the 9 th respondent was for major mineral Laterite and only in 2005, subsequent to the decision of the Hon‟ble Apex Court, Laterite was declared as minor mineral. Environmental Clearance is only mandated at the time of renewal and the same is only due in 2024. It is also submitted that that are no threats to the environment or biodiversity 27 by the mining activities of this respondent. The activities of this respondent have only resulted in the thriving of biodiversity in and near the mining areas, recharging of ground water. Furthermore, due to eco friendly practices and afforestation, there has been significant growth in trees and vegetation in the mining area. The averments of the application that serious hazard is being caused and irreparable injuries and hardship is being caused to the applicant is without any basis and hence denied.
45) The above application is hopelessly barred by limitations as mandated in Section 14 (3) and Section 15 (3) of the National Green Tribunal Act, 2010 and the applications is only to be dismissed as stipulated in Section 14 (3) and Section 15 (3) of the National Green Tribunal Act, 2010 for being barred by limitation.
46) It is submitted that the 6th respondent herein has filed inspection and status report and averred in Paragraph 4 that according to their office records, the respondent herein had not submitted any application for the consent of the 6th respondent to conduct the mining operations. The 9th respondent had filed Form 1 A application for consent to establish and operate as mandated under the Air (Prevention and Control of Pollution ) Act, 1981, to the 6th respondent along with a Demand Draft of Rs.10,000/-. True copy of the Form 1 A filed before the 6th respondent is produced herewith and marked as Annexure R9 (8) for identification. True copy of the Demand Draft No.687681 dated 03.08.2005 drawn on Indian Bank in favour of the Member Secretary, Kerala State Pollution Control Board is produced herewith and marked as Annexure R9 (8)
(a) for identification. True copy of the covering letter dated 05.08.2005 forwarded by the 9th respondent to the 6th respondent is produced herewith and marked as Annexure R9 (8) (b) for identification. It is submitted that 6th respondent, till date, has not refused their consent for the operation of the mining activities as mandated under Section 21 (4) of the Air (Prevention and Control of Pollution) Act, 1981. It is submitted that in light Annexure R9 (8), the averment that no application for consent has been filed by the respondent herein is incorrect.
47) The applicant is not entitled for any reliefs sought in the application and is also not entitled for any compensation. Furthermore, the claims in the above application are false and vexatious in nature and the Hon‟ble Tribunal may disallow the claims as not 28 maintainable as mandated under Section 23 (2) of the National Green Tribunal Act, 2010.
It is therefore most respectfully prayed that this Hon‟ble Tribunal may be pleased to dismiss the above application with cost.
Dated at Chennai on this the 6th day of October, 2015."
8. The applicant filed rejoinder denying the allegations made in the counter statement filed by the 9th respondent and reiterating their earlier stand.
9. As per order dated 03.07.2019, after considering the nature of the pleadings, this Tribunal came to the conclusion that for the purpose of doing mining activity in bauxite, Environmental Clearance E(C) is required and since, it was done by the 9th respondent without getting necessary Environmental Clearance (EC), though they were permitted to do the same by the Government Order, they were operating without necessary Consent to Operate, the Tribunal had constituted a Joint Committee comprising of (i) a Senior Engineer from Central Pollution Control Board (CPCB), (ii) a Senior Engineer from State Pollution Control Board and (iii) an Expert from the department of Mines and Geology, Kerala and the Kerala State Pollution Control (KSPCB) was designated as the nodal agency to inspect the area in question, assess the damage caused and submit a report.
10. On the basis of the directions given by this Tribunal, the committee had earlier submitted a report which reads as follows:-
"REPORT OF COMMITTEE TO IMPOSE ENVIRONMENTAL COMPENSATION IN THE MATTER OF ORIGINAL APPLICATION NO. 87 OF 2015, SRI. RAMAKRISHNAN Vs UNION OF INDIA AND OTHERS 29 SUBMITTED BEFORE THE HON‟ BLE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, AS PER ORDER DATED 6.03.2020.
1.0 Preamble In the matter of original application No. 87 of 2015, Sri. Ramakrishnan N Vs Union of India & Others the National Green Tribunal Principal Bench , New Delhi has passed an order dated July 3rd 2019 and directed to " Constitution of a committee comprising of (i) Senior Engineer from Central Pollution Control Board, (ii) Senior Engineer from State pollution Control Board and
(iii) An expert from the department of Mines and Geology , Kerala, the nodal agency shall be the State Pollution Control Board. The committee shall undertake a study to assess the damage caused by the mining in the area in question, the cost of remediation and the cost to be incurred towards restoration of the mined out area. The entire exercise be completed within one month and report sent to the Tribunal by e - mail. Copy of the report be handed over to the applicant and other parties".
In compliance of the above mentioned order, following officials were nominated by the respective department as member of committee.
i. H.D. Varalaxmi, Sc E / AD, Central Pollution Control Board, Regional Directorate (South), Bengaluru ii. Sri. V. Divakaran, Senior Geologist, Department of Mining & Geology, Civil Station, Kasaragod iii. SmtSheeba, M.S., Chief Environmental Engineer, Kerala State Pollution Control Board, Regional Office, Kozhikode The committee visited the quarry site of 20.242 hectares of land comprised in Re - Survey No. 89/1A/Part of Karindalam Village of Hosdurg Taluk Kasaragode district of M/s Kerala Clay and Ceramics (hereinafter referred to as the company) on July 19,2019 and submitted report to the Hon'ble NGT on 7/9/2019. Upon hearing the matter, Hon'ble NGT passedan order dated 6/3/2020 stating ' The joint committee has been directed to file the report regarding the imposition of environmental compensation. So adjournmentwas granted considering the circumstances mentioned by the counsel 2.0. Calculation of amount of compensation recoverable In the previous report submitted to the Hon'ble NGT the following conclusions were furnished.
1) The company has obtained approved mine plan vide letter no. 6726/M1/04 dated 19.01.2010, to carry laterite mining by open cast method for total thickness ( depth) of 4.5 30 m in three benches of 1.5 m thickness. The mining plan approved for five years i.e 2006 - 2011 for total quantity of 2,10,000.00 MT. However it is observed that without renewal of mining plan, the mining of Laterite and Bauxite was carried out till 2015 and extracted was 1,73,000 MT of Laterite and 88647.2 MTof Bauxite.However, the company claims(Annexure 1) that "Even though the mining plan was submitted to the concerned authorities (Director of Mining and Geology) early in 2005 the mining plan was approved only in 2010. The production plan for first five years (from 2006-2007 to 2010-2011) was detailed in the mining plan. In page 22 of the mining plan(Annexure 2, page no.22 of mine plan)it is clearly stated that the annual production for the remaining years is the same as above, here remaining years means till the period of mining lease granted i.e. March 14, 2025".The committee has looked in to the explanation and has verified the statement in the mine plan.
2) As per the information provided by Department of Mining & Geology, Kasargod the total quantity of Laterite mined was 1,73,000 MT against the approved quantity of 2,10,000 MT for a period from 2006-2011, (Annexure 3) though the mining operation was carried out for a period of 10 years. The committee is of opinion that quantity of laterite mined for ten years is within the quantity approved in the mine plan as it is stated in the mine plan that the average production per year is 45000 MT. Also the company in its explanation (Annexure 1) has informed that "Mining operations carried out on the strength of lease order granted by Government and the lease deed executed therein. The moving of mineral mined out from the mine is carried out on the strength of movement permits issued by the District Geologist,Kasaragode. Usually movement permit is issued for a period of 2 months and according to the requirement, the company has continuously obtained movement permit till 2015."
3) The total quantity of Bauxite mined was 88647.2 MT against the approved quantity of 10,000 tonnes as per the G.O.(MS) No. 103/2013/ID dated 27.08.2013 (enclosed as Annexure 4). The explanation for this was enquired by the committee and in reply (Annexure -1) the company informed that "As per rule, any mineral other than mineral granted in the lease encountered during mining shall not be disposed of without including the said mineral in the mining lease. As the process of including bauxite in the existing mining lease is a time-consuming process, and as the company has furnished an affidavit stating that bauxite will not be used for any metallurgical purpose and will be solely used as cement grade bauxite, Government have sanctioned a temporary permit vide G.O.(MS) No. 103/2013/ID dated 27.08.2013. In para 6 of the 31 said order it is clearly stated that the extraction of bauxite during the mining will continue and hence steps to be taken for inclusion of the same in the mining lease. Accordingly the authority obtained permission for extracted Bauxite of 78647.2 MT vide GO (MS) No. 134/2014/ID dated 25.09.2014.(Annexure 5).Hence the Committee considered that extracted Bauxite of 88647.2MT is as per the approved quantity.
The committee reviewed these aspects and observed that there are no illegal extraction in the quantity of laterite and bauxite and violation of mine plan issued vide letter no. 6726/M1/04 dated 19.01.2010.However the committee observed that the company has not obtained Environmental Clearance, which was made mandatory for quarries except for building stone laterite quarries vide the Kerala Minor Mineral Concession Rules, 2015 amended on 7.02.2015 (Page No. 6 of Kerala Minor Mineral Concession Rules, 2015 enclosed as Annexure 6)and Consent to Operate from Kerala State Pollution Control Board.
With regard to obtaining consent to operate of the Board, they had to obtain the same after specific siting criteria for laterite quarries which was issued by the Kerala State Pollution Control Board on 20.07.2011 vide Circular No. PCB/T4/115/97(Annexure 7). As per the details submitted by the District Mining and Geology Department, Kasaragode, the quarry had been in operation till 9.02.2015. Therefore, Environmental Compensation has to be calculated for working without Environmental Clearance for two days and Consent to Operate for the period during which the quarry was working from 20.07.2011 to 09.02.2015.
Based on the orders of The Hon'ble National Green Tribunal, in the matter of O.A.593 of 2011, CPCB has developed a "Methodology for Assessing Environmental Compensation and Action Plan to Utilize the Fund". The methodology developed by the CPCB for Assessing Environmental Compensation for not obtaining statutory clearances is as follows:
EC = PI x N x R x S x LF Where, EC - Environmental Compensation in Rs. PI - Pollution index of industrial sector (PI of 80, 50 & 30 may be taken for Red, Orange and Green respectively.) N - Number of days for which violation took place is the period between the day of violation observed/due date of direction's compliance and the delay of compliance verified.
R - Factor in Rupees, which may be a minimum of 100 and maximum of 500. It is suggested to consider Rs.250 as the Environmental Compensation in case on violation.
32S - Factor for scale of operation (suggested to take 0.5 for micro and small, 1 for medium and 1.5 for large units) LF - Location factor based on population of city/town and location of Industrial unit with in Municipal boundary or up 10 10 km distance for the municipal boundary of city/town (1 for less than 1 million population, 125 for population l million to < 5 million, 1.5 for population 5 mil1ion to less than 10 million and 2 for population l0 million and above.) Recommendation of the Committee The committee has observed that even though the Kerala State Pollution Control Board has categorized laterite quarry in orange category Pollution Index, (P.I.) value based on the methodology suggested by the CPCB and the „R‟ value has to be worked out. The committee has informed the matter to the Board officials and a committee consisting of senior officials of the Board has been formed for fixing the P.I. and R values. Hence it is humbly requested for a time period of one month for finalizing the environmental compensation and to proceed with the process of levying the same."
11. Thereafter, as per order dated 24.09.2020, this Tribunal had further directed to assess the environmental damage. On that basis, they have submitted a further report dated, 05.11.2020 which reads as follows:-
"REPORT OF COMMITTEE TO IMPOSE ENVIRONMENTAL COMPENSATION IN THE MATTER OF ORIGINAL APPLICATION NO. 87 OF 2015, SRI. RAMAKRISHNAN Vs UNION OF INDIA AND OTHERS SUBMITTED BEFORE THE HON‟BLE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH.
1.0 Preamble In the matter of original application No. 87 of 2015, Sri. Ramakrishnan N Vs Union of India & Others the National Green Tribunal Principal Bench , New Delhi has passed an order dated July 3rd2019 and directed to "Constitution of a committee comprising of (i) Senior Engineer from Central Pollution Control Board, (ii) Senior Engineer from State pollution Control Board and (iii) An expert from the department of Mines and Geology , Kerala, the nodal agency shall be the State Pollution Control Board.The committee shall undertake a study to assess the damage caused by the mining in the area in question, the cost of remediation and the cost to be incurred towards restoration of the mined out area. The entire exercise be completed within one month and report sent to the Tribunal by e - mail. Copy of the report be handed over to the applicant and other parties".33
In compliance of the above mentioned order, following officials were nominated by the respective department as member of committee.
i. Mrs. H.D. Varalaxmi, Sc.E/AD, Central Pollution Control Board, RegionalDirectorate (South), Bangalore. ii. Sri. V. Divakaran, Senior Geologist, Department of Mining & Geology, Civil Station, Kasaragod.
iii. Smt. Sheeba M.S., Chief Environmental Engineer, Kerala State Pollution Control Board, Regional Office, Kozhikode The committee visited the quarry site of 20.242 hectares of land comprised in Re - Survey No. 89/1A/Part of Karindalam Village of Hosdurg Taluk Kasaragode district of M/s Kerala Clay and Ceramics (hereinafter referred to as the company) on July 19,2019 and submitted report to the Hon'ble NGT on September 7, 2019. Upon hearing the matter, Hon'ble NGT passed order dated 6/3/2020 stating ' The joint committee has been directed to file the report regarding the imposition of environmental compensation. So adjournment was granted considering the circumstances mentioned by the counsel'. Based on the site visit and referring to the various statutes obtained by the M/s Kerala Clays and Ceramic Products Ltd., the committee has again submitted a report to the Hon‟ble NGT on 24.09.2020.
2.0 Summary of the details filed in the previous reports 2.1Statutory clearances obtained by M/s Kerala Clays and Ceramic Products Ltd., Sanction from the Govt. of Kerala vide G.O (MS) No. 111/2004/ID in September 25,2004for extracting laterite mineral for a period of twenty years over an area of 20.242 hectares of land comprised in Re- Survey No. 89/1A/Part of Karindalam Village of Hosdurg Taluk of Kasaragod District. The company was directed to execute mine lease deed in Form K and to obtain approval of mining plan by the authority empowered within 6 months of the grant of the order. The temporary permit was issued vide G.O (Rt) No. 1130/2004/ID in November 20, 2004to the company for mining and transportation of laterite from the mine for a period of two months as a special case, in consideration of the fact that both the Mining Company and beneficiary Company are State Public Sector Undertakings.
The temporary permit was further extended for a period of 3 month from March 6, 2005 vide G.O. (Rt) No. 192/2005/ID by considering the situation stated by the M/s. Kerala Clay and Ceramics Mining Lease deed was executed on March 15, 2005 for the term of 20 years in an area of 20.242 hectares bearing cadastral Resurvey Nos 89/1A/part at Karindalam Village, Hosdurg Taluk, Kasargod District.
34 Mine plan was approved vide letter no. 6726/M1/04 dated 19.01.2010. As per the mining plan, mining should be carried out by open cast method, total thickness (depth) of 4.5 m in three benches of 1.5 m thickness. As per the plan, mining should be performed in east-west direction, the annual production for 2006-2007 was budgeted for 30,000 MT and from 2007 onwards lessee proposes to produce 45,000 to 50,000 metric tons of laterite. The mining plan approved for five years i.e. 2006
- 2011 for total quantity of 2,10,000.00 MT. During the course of mining, they have encountered Bauxite of 10,000.00 MT which contains more than 30 % of Al2O3and the same was mined and stacked separately. The company had requested to grant temporary permit to dispose the bauxite in compliance with special conditions imposed in G.O (MS) No. 111/2004/ID in September 25, 2004. The Government had examined the matter and issued order vide G.O (M.S)No. 103/2013/Ld of August 27, 2013to take urgent steps to include this in the mining lease. Based on above mentioned GO, the company has accorded sanction for the inclusion of bauxite in the existing mining lease for a period of one year vide order No. G.O (Ms) No. 134/2014/10 of September 25, 2014 . The Company has obtained Explosive license in requisite form in April 22, 2015 which was valid upto March 31, 2019and applied for renewal vide their letter dated 22.03.2019. The Company had applied for the Consent to Establish of the Board under the Air (Prevention &Control of Pollution) Act 1981 for the laterite mining on August 5, 2005 at District Office at Kannur. However a complaint was received by the Head Office of the Board on July 21, 2005 against indiscriminate use of explosives and odour of the chemicals during explosion and the same was forwarded to District Office, Kannur for investigation and necessary action on August 8, 2005. A report on the investigation was forwarded to head Office vide letter on December 3, 2005, the company has not yet obtained the Consent of the Board.
2.2 Over all findings and Conclusions of committee:
a. During inspection no mining activity was observed in Survey no.
89/1A(Part) leased mining area and no machineries were found in the area.
b. The company posses the valid lease agreement accorded by the Government of Kerala vide their letter G.O (MS) No. 111/2004/ID in September 25, 2004 for 20 years i.e from March 15, 2005 to March 14, 2025.
c. The company has obtained approved mine plan vide letter no.
6726/M1/04 dated 19.01.2010, to carry laterite mining by open cast method for total thickness ( depth) of 4.5 m in three benches of 1.5 m thickness. The mining plan approved for five 35 years i.e. 2006 - 2011 for total quantity of 2,10,000.00 MT. However it is observed that without renewal of mining plan, the mining of Laterite and Bauxite was carried out till 2015 and extracted was 1,73,000 MT of Laterite and 88647.2 MT of Bauxite. However, the company claims that "Even though the mining plan was submitted to the concerned authorities (Director of Mining and Geology) early in 2005 the mining plan was approved only in 2010. The production plan for first five years (from 2006-2007 to 2010-2011) was detailed in the mining plan. In page 22 of the mining plan is clearly stated that the annual production for the remaining years is the same as above, here remaining years means till the period of mining lease granted i.e. March 14, 2025" .The committee has looked in to the explanation and has verified the statement in the mine plan.
d. Based on depth measured by using Distometer, the average depth of mined area was found 2.9 m which is less than permitted depth (4.5 m) of mining e. The Company has obtained the explosive license from Petroleum and Explosives Safety Organisation (PESO), the validity of licence was found expired on March 31, 2019 and the same was applied for renewal on 22.03.2019 .
f. As per the information provided by Department of Mining & Geology, Kasargod the total quantity of Laterite mined was 1,73,000 MT against the approved quantity of 2,10,000 MT for a period from 2006-2011, though the mining operation was carried out for a period of 10 years. The committee is of opinion that quantity of laterite mined for ten years is within the quantity approved in the mine plan as it is stated in the mine plan that the average production per year is 45000 MT. Also the company in its explanation has informed that "Mining operations carried out on the strength of lease order granted by Government and the lease deed executed therein. The moving of mineral mined out from the mine is carried out on the strength of movement permits issued by the District Geologist, Kasaragode. Usually movement permit is issued for a period of 2 months and according to the requirement, the company was continuously obtained movement permit till 2015."
g. The total quantity of Bauxite mined was 88647.2 MT against the approved quantity of 10,000 tonnes as per the G.O.(MS) No. 103/2013/ID dated 27.08.2013. The explanation for this was enquired by the committee and in reply the company informed "As per rule, any mineral other than mineral granted in the lease encountered during mining shall not be disposed of without including the said mineral in the mining lease. As the process of including bauxite in the existing mining lease is a time consuming process, and as the company has furnished an affidavit stating that bauxite will not be used for any metallurgical purpose and will be solely used as cement grade 36 bauxite, Government have sanctioned a temporary permit vide G.O.(MS) No. 103/2013/ID dated 27.08.2013. In para 6 of the said order it is clearly stated that the extraction of bauxite during the mining will continue and hence steps to be taken for inclusion of the same in the mining lease. The authority under which 78647.2 MT (10000 less of 88647.2) of bauxite extracted is GO (MS) No. 134/2014/ID dated 25.09.2014. As bauxite also is included in the existing mining lease vide this order further sanction is not required."
h. The Committee could not asses any seepages in the mining area due to on going rainy season.
i. As per the mine closure plan the company supposed to be carryout 2.8 hectares of land during first five years, pit generated due to mining should be backfilled by the waste generated during mining. The mined out land should be reclaimed and afforested in a phased manner as and when the laterite is extracted to its full thickness. However the company executed backfilling and plantation in 1.5 acres only. j. There are no stacked mine waste in the area. As no chemicals were used at the site, the pumping of rain water from the pit during the mining period would not affect the water quality of any water sources.
k. As per the verbal statement given by the applicant Sri. Ramakrishnan N, the committee surprised to hear that applicant is not aware about the legal case against the company, only he was signed in mass compliant against the mining activity which indicates that some one has filed the case using his name may be with malfide intensions. However the claim of complainant about cracks in wall( resembles like air crack)and water level in his open well about 2 m below ground level also confirms the malfide intension.
l. The Compliance status of conditions given in Mining Lease deed is annexed as Annexure -1. The committee has observed that there is no excess quantity of laterite mining, and environmental damages m. The company executed the mining of Laterite and Bauxite without obtaining the Consent for Establish and Consent to operate under Water and Air Act from Kerala State Pollution Control Board which is a violation of Water (Prevention and Control of Pollution Act),1974 and Air (Prevention and Control of Pollution Act), 198.
n. The Kerala Minor Mineral Concession, Rules was amended in February 7, 2015 which mandated the requirement of Environmental Clearance for laterite quarry, except for that of building stone laterite quarries. As per the details of working days in the period July 2011 to February 2015 submitted by the company(Annexure 1), it is observed that the mine has worked only for a period of 7 days after the said amendment 37 was made. As the working days are not considerable, it is considered that the same may be ignored,
3.0. Calculation of amount of compensation recoverable Based on the orders of The Hon'ble National Green Tribunal, in the matter of O.A.593 of 2011, CPCB has developed a "Methodology for Assessing Environmental Compensation and Action Plan to Utilize the Fund". The methodology developed by the CPCB for Assessing Environmental Compensation for not obtaining statutory clearances is as follows:
EC = PI x N x R x S x LF Where, EC - Environmental Compensation in Rs. PI - Pollution index of industrial sector N - Number of days for which violation took place is the period between the day of violation observed/due date of direction's compliance and the delay of compliance verified. R - Factor in Rupees, which may be a minimum of 100 and maximum of 500.
S - Factor for scale of operation (suggested to take 0.5 for micro and small, 1 for medium and 1.5 for large units) LF-Location factor based on population of city/town and location of Industrial unit with in Municipal boundary or up to 10 km distance for the municipal boundary of city/town (1 for less than 1 million population, 1.25 for population l million to < 5 million, 1.5 for population 5 mil1ion to less than 10 million and 2 for population l0 million and above.) As in the previous report submitted by the committee to the Hon‟ble NGT on 24.09.2020, Kerala State Pollution Control Board has formed committee to calculate the Pollution Index value (P.I.) for laterite quarry and „R‟ value for this case. The P.I. value arrived by the committee is reported vide Annexure 2 and „R‟ value vide Annexure -3respectively. The company has submitted the no. of working days during the time period from July 2011 to February 2015 and this is about 1024(Annexure
1). Hence the value for each term to be substituted in the equation are given below Pollution Index, PI - 37.5 (as per the Annexure -2) Number of working days , N - 1049 days (as per the Annexure-1) Factor in Rupees, R - 250 (As per the calculation in Annexure-3) Factor for scale of operation, S - 0.5 (as the investment of the company is Rs.211.02 lakhs, the scale of operation is small) Location factor , LF - 1.0 (as per the definition for location factor given above the, population of Neelaeswaram municipality, where the quarry is located is having less than one million population), hence the EC is, 38 EC= 37.5 x 1049 x 250 x 0.5 x 1 = Rs. 49, 17,187.5 /-
4.0 Recommendation of the Committee The committee has observed that even though the there are no environmental damages caused due to the mining and no excess quantity of laterite mined the company has not acquired all the required statutes for the mining, as they have not obtained the Consent to Operate of the Kerala State Pollution Control Board for the mining. Hence the environmental compensation of Rs.49,17,188/- calculated above shall be levied on the company for the violation."
12. They have also submitted a compliance status conditions of the mining lease as annexure-A1 which reads as follows:-
"The Compliance Status of conditions given in Mining Lease Deed Sl. Conditions in Part III of the Lease Observations of the committee No. Deed
1. No buildings or thing shall be As specified in the point the erected set up or placed and no lessee has not constructed or surface operations shall be carried erected any building or done on in or upon any public pleasure any surface operations upon ground burning or burial ground or any public pleasure ground, place held sacred by any class of burial ground or place held persons or any house or village site sacred by any class of public road or other place which the persons or any house or State Government may determine village or public road. The as public ground nor in such a lessee has constructed an manner as to injure or prejudicially office building and weight effect any buildings works property bridge in their own lease or rights of other persons and no land. These are not land shall be used or surface functioning now and the operations which is already buildings are empty. The occupied by persons other than the lessee has not interfered with State Government for works or the right of way, well or tank. purposed not included in this lease. It is also observed that the The lessees shall not also interfere mining operation has not with any right of way, well or tank. caused any effect or damage to any building works or property. The cracks in the wall alleged by the applicant of this case seem to be fine air line cracks.
Complied.
2. Before using for surface operations The company has informed any land which has not already that copy of the lease been used for such operations, the granting order has already lessees shall give to the Director of been marked to the District Mining and Geology two calendar Collector and being a months previous notice in writing Government company, specifying the name or other officials of the company has description of the situation and the met the District Collector extent of the land proposed to be so personally and obtained oral used and the purposed for which permission to carry out the 39 the same is required and the said work mentioned in the lease land shall not be so used if grant order. objection is issued by the Director of Complied. Mining and Geology within two months after the receipt by him of such notice unless the objections so stated shall no reference to the State Government be annulled or waived.
3. The lessees shall not without the It is observed that only grass express sanction of the Director of was even at the site and Mining and Geology cut down or felling in of tress was not injure any timber or trees on the required for commencing said lands but may without such mining operations.
sanction clear away any Complied.
brushwood or undergrowth which interference with any operations authorised by these presents. The Director of Mining and Geology or the State Government may require the lessees to pay for any trees or timber felled and utilized by them at the rates specified by the Director of Mining and Geology.
4. Notwithstanding anything in this No reserved forests are schedule contained the lessees included in the lease land. shall not enter upon any reserved Complied. forest included in the said lands without previous sanction in writing of the District Forest Officer no fell cut and use any timber or trees without obtaining the sanction in writing of that officer nor otherwise than in accordance with such conditions as the State Government may prescribe.
5. The lessees shall not work or carry The lessee has not carried out or allow to be worked or carried on any mining operations within any mining operations at or to any a distance of 50.0 m from any point within a distance of 50 meters railway line, reservoir, canal from any railway line except with public road, public buildings the previous written permission of or inhabitated site. There are the Railway Administration no village roads within a concerned on under or beneath any distance of 50.00 m from the rope way or any rope way trestle or site of mining. sanction except under and in Complied. accordance with the written permission of the authority owning the rope way of from any reservoir, canal or other public works such as public roads and buildings or inhabited site except with the previous written permission of the Director of Mining and Geology or any other officer authorized by the State Government in this behalf and otherwise than in accordance with such instructions, restrictions and conditions either general or special which may be attached to such permission. The said distance of 50 metres shall be measured in the case of railway, reservoir or canal 40 horizontally from the outer toe of the bank or the outer edge of the cutting except with the previous permission of the Director of Mining and Geology or any other officer duly authorized by the State Government in this behalf and otherwise than in accordance with such directions, restrictions and additions, either general or special, which may be attached to such permission.
6. The lessees shall allow existing and The committee has not future holders of Government received any such complaint licenses or leases over any land from the applicant. which is comprised in or over any Complied. land which is comprised in or adjoins or is reached by the land held by the lessees reasonable facilities of access thereto.
Provided that no substantial hindrance or interference shall be caused by such holders of licenses or leases to the operations of the lessees under these presents and fair compensations (as may be mutually agreed upon or in the event of disagreement as may be decided by the State Government) shall be made to the lessees for loss or damage sustained by the lessees by reason of the exercise of this liberty.
13. The Principal Secretary to Government/2nd respondent also filed a report which reads as follows:-
"No.A3/144/2016/Envt Thiruvananthapuram Dated:16.09.2019.
From Principal Secretary to Government.
To The Advocate General, Ernakulam, Kerala.
Sri,
Sub: Environment Department - O.A.
No.87/2015 filed by Sri. Ramakrishnan
before the Hon‟ble National Green
Tribunal, Chennai - Instructions
forwarding of - Reg.
Ref: Your Letter No.W4/OA 87/2015 dated 25.07.2019.
***** 41 I am to invite your attention to the reference cited and to forward the instructions in this regard as cited below: Government in Industries Department have granted a mining lease to M/s. KCCPL, the 9th respondent in this case extract Laterite from area of 20.242 Hectares of land comprised in Survey No.89/1A of Karinthalam Village of Hosdurg Taluk of Kasaragod District. The company executed the lease deed on 15.03.2005 and it is valid upto 26.06.2025. From the beginning itself there was public protest in the area against mining operation conducted by the petitioner company. Two writ petitions were filed before the Hon‟ble High Court of Kerala, WP (C) 3971/2015 and 6493/2015. Though there is immense potential of Laterite in the area under lease, the company could extract only in a small area due to public agitations. Besides this, the company had not obtained Environmental Clearance in the area for mining. In the above circumstances as per the order dated 27.02.2012 of the Hon‟ble Supreme Court, Environmental Clearance had been made mandatory for any kind of mining irrespective of the area under mining lease. In such circumstances the Director of Mining & Geology directed the company to stop all mining activities in the area and also directed not to operate the said mine without obtaining Environmental Clearance for mining.
Vide Para 5 of the order dated 03.07.2019 in O.A. No.87/2015, the Hon‟ble Tribunal has directed to constitute a committee comprising of (i) Senior Engineer from Central Pollution Control Board (ii) Senior Engineer from State Pollution Control Board and (iii) an Expert from the Department of Mining & Geology, Kerala to undertake a study to assess the damage caused by mining in the area in question, the cost of remediation and the cost to be incurred toward restoration of the mined area. Accordingly, the assistance of Sri. V. Divakaran, Senior Geologist of the Department of Mining Geology, Kasaragod was rendered to the State Pollution Control Board, the nodal agency appointed by the Hon‟ble Tribunal in the case.
In para 6 of the order, the Hon‟ble Tribunal has directed the State Government to inform the Tribunal as to whether any decision has been taken for cancellation of the lease granted in favour of the M/s Kerala Clays and Ceramics Products Ltd, Pappinissery, the 9th respondent in the O.A. No action has been taken to cancel the mining lease as there is no mining operation in the leasehold. In compliance with the order of the Hon‟ble National Green Tribunal, the committee constituted with Sri. H.D. Varalakshmi (Central Pollution Control Board, Bangalore), Sri. V. Divakaran (Senior Geologist, Department of Mining & Geology, Kasaragod) and Smt. Sheeba. M.S (Chief Environmental 42 Engineer, Kerala State Pollution Control Board, Kozhikode) visited the Quarry site on 19.07.2019. The date of inspection was informed in advance to the applicant Sri. Ramakrishnan. N as well as M/s. Kerala Clays and Ceramics Products Ltd. During inspection applicant was not present and Sri. Bharathan, Consultant Geologist of M/s. Kerala Clays & Ceramic Products Ltd. was present.
1) The Kerala Clays and Ceramic Products Ltd., a company fully owned by Government of Kerala is registered under Companies Act, 1956 and has its registered office at Papinissery, Kannur District, Kerala and is engaged in the mining and processing of China Clay for the last several years. They have a mining lease deed for extracting Laterite Mineral for a period of 20 years over an area of 20.242 Hectares of land comprised in Resurvey No.89/1A/Part of Karinthalam Village of Hosdurg Taluk of Kasaragod District.
Later the company has accorded sanction for the inclusion of Bauxite in the existing of mining lease for a period of 1 year as they have encountered the Bauxite while mining.
2) During inspection of the committee no mining activity was observed. The representative of the company has informed that they have executed mining operation in about 4.046 Hectares (10 Acres) only against approved are of 20.242 Hectares. The site is a flat terrain with little over burden.
3) The representative of the company informed that they have done mining for the period of 2005-2015 and the mining was stopped due to public protest. The Laterite mined were transported to M/s. Malabar Cements at Palakkad, Kerala which is the only cement manufacturing unit in Kerala and also is a public sector undertaking. He also informed that the Bauxite mined was transported only after obtaining temporary permit from the Government of Kerala.
4) Due to the prevailing monsoon season in the State of Kerala, there was stagnated water in the quarry and hence the depth of quarry could not be measured. Seepage pattern of the area could not be observed because the monsoon season.
5) The applicant Sri. Ramakrishnan.N was met at his residence. He informed the committee that he has not given any individual complaint before any authority or petition to any court and has only signed a mass petition due to cracks on the walls of his house and water level in his well has gone down. He also informed that the mining had stopped since 2015. During inspection it was observed that the water level in the well is almost at 3 meters from the ground level.
6) The committee has asked the company to submit the mine plan, copy of the explosive license. They have submitted the required copies and the committee is verifying the 43 conditions of mine plan and lease deed. Also due to the prevailing heavy rains and monsoon season in the State of Kerala further field investigations could not be done.
7) It is most respectfully submitted that the committee is in the process of preparing report which requires verification of documents related to mining activity as well as some more filed data.
Yours faithfully, SANTHOSH.R Under Secretary For Principal Secretary to Government"
14. The Director of Mining and Geology/5th respondent also filed a report which reads as follows:-
"No.2026/M3/2015 Directorate of Mining & Geology, Kesavadasapuram, Pattam Palace P.O., Thiruvananthapuram - 4, Tel Fax: 0471 2447429 e-mail: [email protected] www.dmg.kerala.gov.in Dated:16.09.2019.
From The Director of Mining & Geology.
To The Advocate General, Kerala, Ernakulam.
Sri,
Sub: Mining Lease granted vide G.O. (MS)
No.111/204/ID dt.25.09.2004 -
Quarrying without Environmental
Clearance - O.A. No.87/2015 before the
Hon‟ble National Green Tribunal, Chennai
- Instructions forwarding of - Reg.
Ref: 1) Letter No.W4/OA 87/2015 dated
25.07.2019.
2) Order dt 27.02.2012 of the Hon‟ble
Supreme Court in Deepak Kumar Vs.
State of Haryana Case.
3) EIA Notification dt. 14.09.2006.
*****
Kind attention is invited to the above reference. Government in
Industries Department vide G.O. (MS) No.111/204/ID
dt.25.09.2004 have granted a mining lease to M/s. KCCPL, the 9 th respondent in O.A. 87/2015 to extract Laterite from area of 20.242 Hectares of land comprised in Survey No.89/1A of Karinthalam Village of Hosdurg Taluk of Kasaragod District. The company executed the lease deed on 15.03.2005 and it is valid upto 26.06.2025. From the beginning itself there was public protest in 44 the area against mining operation conducted by the petitioner company. Two writ petitions were filed before the Hon‟ble High Court of Kerala, WP (C) 3971/2015 and 6493/2015. Though there is immense potential of Laterite in the area under lease, the company could extract only in a small area due to public agitations. Besides this, the company had not obtained Environmental Clearance in the area for mining. In the above circumstances, as per the order dated 27.02.2012 of the Hon‟ble Supreme Court, Environmental Clearance had been made mandatory for any kind of mining irrespective of the area under mining lease. In such circumstances the Director of Mining &Geology directed the company to stop all mining activities in the area and also directed not to operate the said mine without obtaining Environmental Clearance for mining in the said area vide letter No.2026/M3/2015 dt.26.06.2016. Vide Para 5 of the order dated 03.07.2019 in O.A. No.87/2015, the Hon‟ble Tribunal has directed to constitute a committee comprising of (i) Senior Engineer from Central Pollution Control Board (ii) Senior Engineer from State Pollution Control Board and (iii) an Expert from the Department of Mining & Geology, Kerala to undertake a study to assess the damage caused by mining in the area in question, the cost of remediation and the cost to be incurred toward restoration of the mined area. Accordingly, the assistance of Sri. V. Divakaran, Senior Geologist of the Department of Mining Geology, Kasaragod was rendered to the State Pollution Control Board, the nodal agency appointed by the Hon‟ble Tribunal in the case.
In para 6 of the order, the Hon‟ble Tribunal has directed the State Government to inform the Tribunal as to whether any decision has been taken for cancellation of the lease granted in favour of the M/s Kerala Clays and Ceramics Products Ltd, Pappinissery, the 9th respondent in the O.A. The Government have been informed by the Director of Mining and Geology that no action has been taken to cancel the mining lease as there is no mining operation in the leasehold. It is informed that steps are being taken to cancel the mining lease.
Yours faithfully, For Director of Mining & Geology"
15. It is seen from the report submitted by the Mining and Geology Department that mining lease was not cancelled though, the 9th respondent was not operating since 2015. No steps were taken to cancel the lease as the lease period is upto 45 2025. However, partial closure operations were done by the 9th respondent in respect of earlier mined pits.
16. When the matter came up for hearing today through Video Conference, there was no representation for the applicant. Smt. Me. Saraswathi represented 1st respondent, Sri. E.K. Kumaresan represented respondents 2 to 5, Smt. V.K. Rema Smrithi represented 6th respondent and Sri. E.K. Nandha Kumar Menon along with M/s. Pooja Menon represented M/s. King and Patridge for 9th respondent.
17. Heard the counsels present.
18. The grievance in this application was that the 9th respondent was doing mining operation without complying with the environmental norms and also without obtaining necessary Consent to Operate as well as Environmental Clearance (EC) for doing the activity.
19. The learned counsel appearing for the 9threspondent submitted that they were doing everything in accordance with law and at the time when they started the mining operations, there was no necessity to obtain any Environmental Clearance (EC) for laterite stone mining and only thereafter, the necessity arose and immediately, when they came to know that was required, necessary clearance had been obtained.
20. But the learned counsel appearing for the Kerala State Pollution Control Board (KSPCB) submitted that from 2011 to 2015, the 9th respondent was operating the unit without obtaining the Consent to Operate which was made applicable to the laterite stones quarry by virtue of 2011 order of the Pollution 46 Control Board pursuant to the order of the Hon'ble High Court of Kerala in this regard.
21. Further, Environmental Clearance (EC) has to be obtained for mining bauxite which is a major mineral as well. The learned counsel appearing for the 9th respondent submitted that Bauxite is only an incidental mineral which has been extracted, when laterite stone were quarried and they were not actually mining bauxite. When bauxite as an additional mineral was cited, the same was informed to the Government and the Government had permitted them to extract the same and dispose of the same as directed by them which they were carrying out. From 2015 onwards, they are not operating the mining work due to the opposition raised by the local people in that area.
22. It will be seen from the report submitted by the committee that from 2011 to 2015 till the mining operation was stopped they were doing laterite stone mining without obtaining necessary Consent to Operate from the Pollution Control Board which is required after 2011. Though, earlier it was mentioned by the Board as well as the committee that there is no environmental damage need be assessed and that report was rejected by this Tribunal and directed the committee to assess environmental damage for violation of conditions of environmental laws which the mining operator is expected to follow in view of the decision of the Principal Bench of National Green Tribunal in similar matters where directions have been given to the Central Pollution Control Board (CPCB) to evolve a formulae for such cases and accordingly, the Central Pollution Control Board (CPCB) had evolved a formulae and directed the 47 committee to apply that principle and assess environmental compensation and it is on that basis, that the latest report dated 05.11.2020 was submitted by the committee assessing environmental compensation of Rs.49,17,188/- (Rupees Forty Nine Lakhs Seventeen Thousand One Hundred and Eighty Eight only). Since, the committee has already assessed the environmental compensation, we feel that it is for the regulating authority namely, the Pollution Control Board to take appropriate steps to impose the environmental compensation against the 9th respondent, after giving them an opportunity to be heard on the amount arrived at, explaining the manner in which the period and other criteria were taken into consideration for assessing the environmental compensation and after getting necessary explanation from them, pass appropriate orders in accordance with law and with that direction, we feel that the matter can be disposed of.
23. So the application is disposed of as follows:-
i. Since, the report dated 05.11.2020 submitted by the committee appointed by this Tribunal, the committee had assessed the environmental compensation as directed by this Tribunal which according to them, is the amount alleged to be realized from the 9th respondent.
ii. The Kerala State Pollution Control Board (KSPCB) is directed to initiate the proceeding against the 9th respondent for imposing the environmental compensation by giving them an opportunity by issuing show cause notice 48 and after getting their explanation and providing an opportunity of personal hearing, pass appropriate final orders in this regard in accordance with law and thereafter, take steps to realize the amount of compensation imposed from the 9th respondent, if the same is not deposited by them in accordance with law.
iii. The State Government as well as the Mining and Geology Department are directed to take appropriate steps against the 9th respondent, if they have no intention to continue with the mining operation in the area to close the mining lease and direct them to implement the closure plan as has been undertaken by them in the mining lease agreement and mining plan provided by them in respect of the area where they have completed the mining operation. If they are not doing the same, then they are directed to take appropriate steps against them to implement the same in order to protect the environment and danger being caused to the neighbouring people, if it is left unattended.
iv. Considering the circumstances, the parties are directed to bear their respective costs in the application.
49v. The Registry is directed to communicate this order to the Kerala State Pollution Control Board (KSPCB), Mining and Geology Department, Principal Secretary to Government, Department of Environment, State of Kerala for their compliance.
24. With the above directions and observations, this application is disposed of.
.................................J.M. (Justice K. Ramakrishnan) ...........................E.M. (Shri. Saibal Dasgupta) O.A. No.87/2015, 24th November, 2020. Mn.
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