National Green Tribunal
Roy Thomas vs Moef Regional Office Sz on 19 October, 2023
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Thursday the 19th day of October, 2023.
Appeal No.48 of 2022(SZ)
(Through Video Conference)
IN THE MATTER OF
Roy Thomas,
S/o Thomas Joshu,
Kulathum Karottu,
Angadickal North,
Angadicakal North {P.O},
Pathanamthitta District,
Kerala- 689 648.
...Appellant(s)
Versus
1. Union of India,
Ministry of Enviornment, Forest and Climate Change,
Represented by:
Deputy Director General of Forest [C],
Regional Office, {SZ},
Kendriya Sadan, 4th Floor,
E&F Wing, II-Block, Koramangala,
Bangalore- 560 034.
2. The Additional Chief Secretary to Government,
Environment Department,
Government Secretariat,
Thiruvanadapuram- 695 001.
3. The Director,
Directorate of Environment and Climate Change,
4th Floor, KSRTC Bus Terminal, Thampanoor,
Thiruvanadapurm District,
Kerala- 695 001.
4. The District Collector,
2nd Floor, Collectorate Road, Chittor,
Pathanamthitta District,
Kerala- 689 645.
5. The Director of Mining and Geology,
Pattom Place [P.O.]
Thiruvanathapuram,
Kerala- 695 004.
6. The Member Secretary,
Kerala Pollution Control Board,
Pattom, Thiruvanathapuram District,
Kerala- 691 523.
7. The District Geologist,
District Mining and Geology Office,
Adoor [PO], Pathanamthitta District,
Kerala- 691 523.
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8. The Tahsildhar,
Konni Taluk, Konni {PO},
Pathanamthitta District,
Kerala- 689 691.
9. The Secretary,
Pramadam Grama Panchayat,
V- Kottayam, Konni Village,
Pathanamthitta District,
Kerala- 689 646.
10. The Chairman,
SEIAA, Kerala,
KSRTC Bus Terminal, Thampanoor,
Thiruvanadapuram District,
Kerala- 695 001.
11. K. Sadanandan,
Managing Partner,
J&S Granites Company,
Residing at: Ampadiyil New Bunglow,
Pannivizha, M.G. Road, Adoor,
Pathanamthitta District,
Kerala- 691 523.
...Respondent(s)
For Applicant(s): M/s. S. Shinu, N. Stalin & B. Hemavathy.
For Respondent(s): Mr. G. Vignesh represented Mr. E.K.
Kumaresan for R2 to R5, R7 & R8.
Mrs. Niveditha S Menon represented Mrs. V.K.
Rema Smrithi for R6.
Mrs. Vidhyalakshmi Vipin for R10.
Mr. Enoch David for R11.
Judgment Reserved on: 13th October, 2023
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. This appeal is filed challenging the revalidation of the Environmental Clearance granted in favour of the 11th respondent dated 26.07.2022.
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2. The applicant claims to be the Chairman of the Grama Raksha Samithi, Vallicodu, Kottaym which was formed in the year 2014 with the objective of protecting the village and it's environment from degradation by illegal mining and quarrying. Admittedly, the 11th respondent, the quarry owner was granted Environmental Clearance on 10.08.2015 by the 10th respondent, SEIAA-Kerala for a period of 05 years and its validity ended on 09.08.2020.
3. The project proponent/11th respondent has filed W.P. (C) No. 8210 of 2022 before the Hon'ble High Court of Kerala declaring that the validity of the Environmental Clearance granted was only 07 years and it should expire only on 09.08.2022. For various reasons, the said Writ Petition was withdrawn by the 11th respondent with the liberty to work out its remedies in the manner known to law.
4. The main contentions raised by the appellant are:
(i) The 11th respondent has suppressed the existence of the Hanuman Temple within 15m away from the quarry area.
(ii) The Sy. Nos. 152/4, 152/5, 152/6, 152/8, 152/10 etc., are agricultural lands.
(iii) The Hon'ble High Court of Kerala in W.P. No. 11249 of 2010 and directed the Kerala Government to stop all mining activities in Land Assignment Patta lands.
(iv) The 11th respondent also suppressed the existence of a panchayat water tank within 100m from the quarry land which is intended for drinking water purpose for the residences of the village.
(v) The revalidation is challenged also on the ground that the authorities had not reappraised the proposal and conducted any public hearing.
(vi) Due to the intense quarrying by the 11th respondent, the water from the quarry is flown into the stream in the 3 Mookanvilathodu and causes pollution to the stream water which is a drinking water source for the villagers in the locality.
(vii) The various representations sent by the villagers of the Vallicodu-Kottatyam village including the appellant, herein, were not considered by the authorities before issuing the revalidation of the Environmental Clearance to the 11th respondent.
5. The 11threspondent, who is the project proponent, had filed his objections to the appeal on various grounds including that of the maintainability. It is stated that the appeal under Section 16(h) can be filed only against an order granting Environmental Clearance and not against the validation of the Environmental Clearance. The revalidation of the Environmental Clearance is only a procedural order as the original Environmental Clearance was granted in the year 2015. The original Environmental Clearance was challenged by the Grama Raksha Samiti in O.A. No. 169 of 2015 which was dismissed as withdrawn on 28.10.2016. There was also an appeal no. 76 of 2015 filed by Mr. Sekharan Nair Challenging the Environmental Clearance which was also dismissed by this Tribunal on 13.05.2019. The Hon'ble High Court allowed the Writ Petition W.P. No. 8210 of 2020 filed by the 11th respondent challenging the validity period of the Environmental Clearance that should be for 07 years. Later in R.P. No. 397 of 2020 the Judgement in W.P. No. 8210 of2020 dated 17.03.2020 was recalled and writ petition was dismissed with the liberty to file a fresh petition. Accordingly, W.P. No. 12420 of 2020 was filed seeking a declaration that the validity of the Environmental Clearance is for the life of the project. In the Judgement dated 02.11.2020 in W.P No. 12420 of 2020 etc., the Hon'ble High Court 4 of Kerala declared that the decision to limit the validity of the Environmental Clearance for 05 years is against the terms and spirit of the EIA Notification, 2006. The SEAC was directed to estimate the life of the project and revalidate the validity of the Environmental Clearance. It is based on the above direction, the revalidation, which is under challenge, is granted by the SEIAA. 5.1 The above referred O.A. No. 169 of 2015 was filed by the Chairman, Pramadam Grama Panchayat,Pathanamthitta and the Appeal No. 76 of 2015 was filed by N. Shekhara Nair and both were dismissed by this Tribunal.The Original Application was dismissed as the applicant, herein, got himself impleaded as respondent in the Appeal No. 76 of 2015, which also ultimately was dismissed. In fact the appellant who was a party to both the O.A. No. 169 of 2015 and Appeal No. 76 of 2015 has not even mentioned the same in the appeal thereby is guilty of suppression Veri and suggestion Falsi. 5.2 Regarding the water flow into the stream that is alleged by the appellant, it is stated that it was the unprecedented rains and massive floods in the year 2018 in which the Pathanamthitta and Ernakulam Districts were severely affected. That was a natural disaster, which was beyond the human control and which cannot be put against the 11th respondent after the passage of 04 years' time for validating the Environmental Clearance. The Revalidation is granted pursuant to the law laid down by the Hon'ble High Court of Kerala in its Judgement dated 02.11.2020 in W.P No. 12420 of 2020.
5 5.3 The 11th respondent further stated that even after the direction issued by the Hon'ble High Court of Kerala, SEIAA had directed the 11th respondent to produce a compliance report from the integrated regional office of the MoEF&CC to satisfy itself that the condition in the original Environmental Clearance were being complied with by the 11th respondent. Accordingly detailed site inspection was carried out by the scientists and the report was submitted on 20.10.2021 stating that the 11 th respondent had complied with all the conditions. Besides the inspection by the MoEF&CC, Bangalore a further field inspection was conducted by the SEIAA which was also reported to be satisfactory. Only thereafter the EAC of SEIAA had decided to recommend for revalidation of the Environmental Clearance. The said recommendation of SEAC was considered by SEIAA on 30.06.2022 and the same was accepted and decided to revalidate the Environmental Clearance.
5.4 The 11th respondent had further pointed out that even though there are about 150 quarries functioning indiscriminately in the area, the appellant had not taken any action against them but has questioned only the Environmental Clearance that was granted in favour of the 11threspondent which shows the lack of bonafide in his case. The other grounds raised by the appellant, namely, the existence of temple and the water tank are all denied by the 11th respondent.
6. The Kerala State Pollution Control Board, which is the 6th respondent, has filed its reply stating that there was a complaint received against the illegal quarrying of the unit on 10.02.2020 6 and an inspection was conducted and that a temple was seen at a distance of 50m from the area of quarrying. The temple was not shown in Environmental Clearance and the site plan submitted by the unit. The minimum distance criteria was not maintained from the temple. The complaint against the illegal discharge of waste water from the quarry was received on 05.02.2021 from the appellant, herein. Based on the same, after enquiry it was directed to use the stored water and not discharge the same outside. The request received from the appellant to cancel the consent was not done as the Hon'ble High Court of Kerala had directed the renewal of the Environmental Clearance and the Environmental Clearance was also revalidated on 26.07.2022 which is valid up to 10.08.2025. Even on 21.11.2022 the quarry is said to be not working.
7. The 7th respondent, Department of Mining and Geology stated that three quarry leases were granted in the name of K. Sadanandan based on the NOC issued by the Revenue Department. In addition to these quarry leases, several short-term quarry permits were also issued for various periods. The Mining and Geology Department also had recommended the issuance of the quarry lease in favour of the 11th respondent.
8. In its reply on behalf of the SEIAA, Kerala, who had issued the validation of the Environmental Clearance under challenge. The SEIAA had sought for a report from the District Collector and the District Collector had sent the report on 29.07.2021 regarding the quarry operations of the 11th respondent. The SEIAA, therefore, had decided to get clarified in clear terms regarding the report of 7 the District Collector, Pathanamthitta. After the field inspection, it was found that the nature of the land was marked as "Purayidam". The doubt raised by SEIAA was whether the lands involved belongs to the plantation category and if so whether mining is permissible or not. In this regard, the field inspection report of the sub- committee which had stated that the land in question does not come under the plantation category was accepted by SEIAA, therefore, the committee decided to recommend the revalidation of the Environmental Clearance with the project life of 10years from the date of issuance of the original Environmental Clearance with the specific conditions that:
(i) The growth of buffer plantations should be monitored and geo-tagged photographs are to be incorporated in the HYCR.
(ii) The geo-tagged photographs taken on various dates showing
the outflow of water from the silt traps are to be
incorporated in the HYCR.
(iii) Photographs with the date and time showing periodic cleaning of silt traps are to be incorporated in the HYCR.
8.1 As there were petitions filed by the residents of the Kottayam against the quarry project of the 11th respondent including that of the appellant, they were forwarded to the District Collector, Pathanamthitta on 24.06.2022 for enquiry report within 15 days. Based on the said decision and the complaints were forwarded to the Geologist, Pathanamthitta and also Secretary, Pramadom Grama Panchayat on 24.06.2022. Thereafter in the 115th meeting on 30.06.2022, the authority decided to revalidate the Environmental 8 Clearance with the project life of 10 years from the date of issuance of original Environmental Clearance with the additional specific conditions.
8.2 In the second report of the SEIAA dated 01.02.2023 it is found that there is no drinking water tank within 100m. As per the application form there was no habitation within 100m radius of the project. The field inspection report of the sub- committee of the SEAC specifically examined the aspect of Thudiyurilipparamala Biodiversity Heritage Centre and ascertained that it does not fall under the survey numbers proposed for mining. Further there is no such report or notification regarding the heritage site could be seen in the Kerala State Biodiversity Board website.
8.3 The report has further stated that as directed by the Hon'ble High Court, the sub-committee of SEAC first conducted the field inspection and verified the status of compliance with Environmental Clearance conditions and suggested some conditions to comply with and certain additional documents and certificate for further appraisal. On receipt of the compliance report by the 11th respondent, SEAC again visited the area on 01.04.2022 and ascertained the compliance status before issuing the Environmental Clearance. Further the MoEF&CC had inspected the site and issued the compliance report on 20.10.2021. As the SEAC had recommended for issuance of the Environmental Clearance, the SEIAA had decided to revalidate the Environmental 9 Clearance. Regarding the District Collector's report, the SEIAA has stated as follows in its report:
"As per letter dated 24.06.2022, complaints received against the Building Stone Quarry Project of Sri K. Sadanandan has already been forwarded to District Collector, Pathanamthitta. District Geologist, Pathanamthitta and also to the Secretary Pramadom Grama Panchayat for urgent enquiry report. The letter dated 07/07/2022 from the District Collector, Pathanamthitta stated that the Secretary, Pramadom Grama Panchayath vide letter dated 04.04.2022 informed that the license issued to the quarry project of Sri. Sadanandan was cancelled due to the lack of Environmental Clearance and the quarry is not operational as per the report of the Tahasildar. Now the District vide letter dated 13.01.2023 informed that the report regarding the complaint of Shri. Roy Thomas against the quarry project of Sri. K. Sadanandan was not received yet. Awaiting reports of the District Collector, Pathanamthitta regarding complaints shouldn't be stopping the Authority from taking decision in cases where there is recommendation of SEAC. In this instant case, revalidation proceedings was issued on the basis of the appraisal of the additional documents submitted by the proponent and also the Field Inspection conducted by members of SEAC twice. On the basis of the Judgement in WP (C) No. 12420 of 2020, the Authority has to complete the revalidation process within four month after getting all the mandatory documents. Hence the averment of the Appellant is baseless."
9. The question now to be decided whether the revalidation issued by the SEIAA in favour of the 11st respondent is correct?
10. The objections regarding the 45° degree slope and the maintenance of the bench was considered even by the SEAC and SEIAA. In the proposal report filed by the SEIAA for the revalidation of the project of the 11th respondent, it is categorically given in the fulfilment of Environmental Clearance condition that the bench height and the width are followed and the 45° degree slope was maintained by the project proponent. Even the blasting to be limited to predetermined time and not more than two times a day is also complied by the 11th respondent.
11. The project proponent also invited our attention to the communication from the MoEF&CC wherein it is stated that the compliance of the various conditions of the Environmental Clearance is satisfactory. The monitoring report dated based on 10 the inspection dated 28.07.2021 also has confirmed that the height of the benches and width are complied with by the project applicant. No mining operation should be carried out at places having a slope greater than 45 degree is also complied with by the project proponent. It is stated that the 11th respondent had initially was carrying out the activities on the short term permits issued by Department of Mining and Geology which did not prescribed any bench or slope. However, after the 11th respondent had obtained Environmental Clearance from SEIAA, it strictly followed the slope pattern as instructed.
12. The basic objections raised by the appellant were all satisfied by the project proponent. Regarding the revalidation of the Environmental Clearance as stated earlier, it is based only on the order of the Hon'ble High Court of Kerala. It would be useful to advert to the relevant portion of the said Judgement which is as follows:
"17. 2006 notification, among others, deals with the requirements of prior EC, the constitution of the regulatory authorities, the manner in which the regulatory authorities have to transact their business, the validity of EC, etc. The scheme of the notification is that applications for prior ECs would be appraised by the appraisal committees concerned in the manner indicated in the notification and would be placed before the regulatory bodies concerned with their recommendations. The regulatory bodies would, thereafter, consider and take a decision either to grant or reject EC. Clause 8(ii) of the notification, however, clarifies that if the regulatory bodies disagree with the recommendations of the appraisal committees, they shall request the appraisal committees to reconsider the recommendations and in that event, the appraisal committees shall forward to the regulatory bodies its views on the reasons for disagreement. The said provision also clarifies that the regulatory bodies have to take a decision thereafter on the applications for grant of ECs, based on the recommendations and the views forwarded by the appraisal committees concerned on the reasons for disagreement communicated to them. Clause 9 of 2006 notification dealing with the validity of the EC reads thus:
9. Validity of Environmental Clearance (EC):
(i) The "Validity of Environmental Clearance" is meant the period from which a prior environmental clearance is granted by the regulatory authority, or may be presumed by the applicant to have been granted under sub-paragraph (iii) of paragraph 8, to the start of production operations by the project or activity, or completion of all constructions operations in case of construction projects (item 8 of the Schedule), to which the application for prior environmental clearance refers. The prior 11 environmental clearance granted for a project or activity shall be valid for a period of ten years in the case of River Valley projects [item 1(c) of the Schedule], project life as estimated by the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee subject to a maximum of thirty years for mining projects and seven years in the case of all other projects and activities.
(ii) In the case of Area Development projects and Townships [item 8(b)], the validity period of seven years shall be limited only to such activities as may be the responsibility of the applicant as a developer;
Provided that this period of validity with respect to sub- paragraphs (i) and (ii) above may be extended by the regulatory authority concerned by a maximum period of three years if any application is made to the regulatory authority by the applicant within the validity period, together with an updated Form I, and Supplementary Form 1A for construction projects or activities (item 8 of the Schedule):
Provided further that the regulatory authority may also consult the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee, as the case may be, for grant of such extension.
(iii) Where the application for extension under sub-paragraphs (i) and
(ii) above has been filed--
(a) within thirty days after the validity period of Environmental Clearance, such cases shall be referred to concerned Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee and based on their recommendations, the delay shall be condoned at the level of the Joint Secretary in the Ministry of Environment, Forest and Climate Change or Member Secretary, State Level Expert Appraisal Committee or Member Secretary, District Level Expert Appraisal Committee, as the case may be;
(b) more than thirty days after the validity period of Environmental Clearance but less than ninety days after such validity period, then, based on the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee, the delay shall be condoned with the approval of the Minister in charge of Environment, Forest and Climate Change or Chairman, as the case may be:
Provided that no condonation for the delay shall be granted for any application for extension filed beyond ninety days after the validity period of Environmental Clearance. While the clause aforesaid prescribes specific validity periods for the ECs to be granted for various projects or activities, the same does not prescribe a specific validity period for the ECs to be issued for mining projects. Instead, it is provided therein that the validity of the ECs to be issued for mining projects shall be the project life as estimated by the expert appraisal committees concerned, subject to a maximum of 30 years. Likewise, though the clause aforesaid makes a provision for extension of the validity of the ECs issued for projects falling under clause 8 of the schedule to 2006 notification, there is no provision therein for extension of the validity of the ECs granted for mining projects. Further, there is also no provision in the notification for a fresh grant of EC for a project for which EC is granted once. In other words, the scheme of 2006 notification as far as mining projects are concerned, is that if it is found that EC is to be granted for a mining project, the same shall be granted for the life of the project as estimated by the expert appraisal committees concerned. In the said the view of the matter, according to me, the decision of SEIAA to limit the validity of the ECs to be granted for mining projects to 5 years, is against the terms and spirit of 2006 notification. As noted, SEIAA being a body constituted only for the purpose of exercising the powers of the Central Government in terms of 2006 notification, it cannot take a decision otherwise than in accordance with the notification, for it does not have any inherent power or authority. That does not mean that SEIAA cannot exercise any powers incidental to the powers vested in it in terms of the notification. SEIAA would certainly be justified in exercising powers incidental and ancillary to the powers 12 conferred on it for the purpose of achieving the object of the notification, but it can never take any decision contrary to the terms of the notification or its scheme and spirit, whatever be the justification for the same. It is trite that where the power exercised by a quasi-judicial authority cannot reasonably be held to be incidental to the power expressly granted, the action would be ultra vires [See Bishweshwar Dayal Sinha v. University of Bihar, AIR 1965 SC 601]. Insofar as it was found that the petitioners in this batch of writ petitions were eligible for ECs in terms of 2006 notification, the regulatory authorities concerned should have granted to them ECs for the life of their respective projects.
Similar view is seen taken by the High Court of Orissa in MGM Minerals Ltd.
18. As evident from clause 9 of the 2006 notification, the provision therein as regards the validity of the ECs to be granted for mining projects is that it shall be valid for the period of the project life as estimated by the appraisal committees concerned. In other words, it was obligatory for the appraisal committees concerned in all the cases to make an estimation of the life of each project. As rightly pointed out by the learned Additional Advocate General, the project life is not one to be estimated by the project proponents, but to be estimated by the appraisal committees concerned. Though it was submitted on behalf of some of the petitioners that the appraisal committees in their cases have made an estimation of the project life, on a meticulous examination of the materials, I am unable to accept the said contention. Further, as noted, as early as on 31.10.2014, SEIAA has decided to limit the ECs to be issued for mining projects to 5 years and therefore, there was no occasion at all for the expert appraisal committees concerned to make an estimation of the life of the projects of the petitioners.
19. I have already found that the decision of SEIAA to limit the validity of the ECs to be granted for mining projects to 5 years is against the terms and spirit of 2006 notification and the said decision is ultra vires the 2006 notification. In the said view the matter, Ext.P20 decision of SEIAA is illegal and without jurisdiction.
13. In view of the above, the appeal is dismissed.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No Appeal No.48/2022(SZ) 19th October, 2023.(AM) 13 Before the National Green Tribunal Southern Zone (Chennai) Appeal No. 48 of 2022(SZ) Roy Thomas Vs. Union of India & Ors.
Appeal No. 48/2022(SZ) 19th October,2023. (AM) 14