National Green Tribunal
Nishanth Gopal vs Moef on 8 July, 2022
Bench: K. Ramakrishnan, Satyagopal Korlapati
Item No.2 & 3: Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 102 of 2020 (SZ)
With
Original Application No. 151 of 2020 (SZ)
IN THE MATTER OF:
Nishanth Gopal
Aged 38 years
S/o. Gopalakrishnan M.V.
Residing at Mundakathil House,
Thottappally P.O., Alappuzha District
Kerala - 688 561.
... Applicant(s)
Versus
1) Union of India
Through the Secretary
Ministry of Environment, Forests & Climate Change
Indira Paryavaran Bhavan
Jor Bagh, New Delhi - 110 003.
2) Union of India
Represented by its Secretary to Govt.
Ministry of Mines, Shastri Bhawan,
Dr. Rajendra Prasad Road,
New Delhi - 110 001.
3) State of Kerala
Represented by Chief Secretary
Government of Kerala,
Secretariat,
Thiruvananthapuram District
Kerala - 695 001.
4) Department of Atomic Energy
Represented by its Chairman
Anushakthi Bhavan
Chathrapathi Shivaji Maharaj Marg
Mumbai, Maharashtra - 400 001.
5) Director, Southern Region
Regional Centre for Atomic Minerals Exploration and Research (RCER)
Nagarbhavi, Bangalore
Karnataka - 560 072.
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6) The Kerala State Environment Impact Assessment Authority
Represented by its Chairman
Pallimukku - Kannammoola Road
Overbridge, Velakudi
Thiruvananthapuram, Kerala - 695 024.
7) Kerala Minerals and Metals Limited
Represented by its Managing Director
N.H.66, Sankaramangalam, Chavara
Kollam District, Kerala - 691 583.
8) The Assistant Manager
Kerala Minerals and Metals Limited
N.H.66, Sankaramangalam, Chavara
Kollam District, Kerala - 691 583.
9) The District Collector
Alappuzha District
Having office at Civil Station,
Near District Panchayat Office,
Alappuzha District, Kerala - 688 001.
10) Purakkad Grama Panchayat
Represented by its Secretary
Purakkad P.O., Alappuzha District
Kerala - 685 561.
11) IREL (India) Limited
Represented by its Managing Director
Rare Earth Division, Udyogamandal P.O.,
Ernakulam District
Kerala - 680 501.
12) Department of Irrigation
Government of Kerala
Represented by its Secretary
Government Secretariat
Thiruvananthapuram District
Kerala - 695 001.
13) The Chairman
Kerala State Coastal Zone Management Authority (KCZMA)
4th Floor, Kerala State Road Transport Corporation (KSRTC)
Bus Terminal, Thampanoor,
Thiruvananthapuram, Kerala - 680 001.
(R13 Impleaded as per order in I.A. No.51/2020 dated 16.07.2020)
... Respondent(s)
WITH
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Akhila Kerala Dheevara Sabha
Represented by its General Secretary
V. Dinakaran, Aged 75 years
Residing at Sudeepam,
Pannapra P.O., Alappuzha,
Kerala - 688 004.
... Applicant(s)
Versus
1) State of Kerala
Represented by Chief Secretary to Government
Secretariat, Thiruvananthapuram - 695 001.
2) Principal Secretary
Department of Industries and Commerce
Government Secretariat,
Thiruvananthapuram, Kerala - 695 001.
3) Principal Secretary
Department of Fisheries and Ports
Government Secretariat
Thiruvananthapuram - 695 001.
4) District Collector, Alappuzha
Collectorate, Civil Station
Alappuzha, Kerala - 688 001.
5) Chief Engineer
Harbour Engineering Department
Thiruvananthapuram, Kerala.
6) Secretary
Water Resources Department
Thiruvananthapuram - 695 001.
...Original Respondents No.1 to 6
7) District Superintendent of Police
C CS B Road, Civil Station Ward,
Alappuzha, Kerala - 688 012.
(R7 - Deleted as per order of the Tribunal dt.17.08.2020)
8) Managing Director
IREL,
Beach Road No.38, Chavara,
Kollam - 691 583.
9) Managing Director
KMML
Sankaramangalam,
Chavara, Kollam - 691 583.
10) Chief Engineer
Water Resources Department
Thiruvananthapuram, Kerala - 695 001.
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11) Principal Secretary
Environment Department
Secretariat, Thiruvananthapuram - 695 001.
12) Kerala State Environment Impact Assessment Authority
Represented by its Member Secretary
4th Floor, K.S.R.T.C. Bus Terminal Complex,
Thiruvananthapuram, Kerala - 695 001.
13) Purakkad Panchayat
Represented by its Secretary
Purakkad, Alappuzha District
Kerala - 688 561.
14) Secretary
Forest and Wildlife Department
Thiruvananthapuram,
Kerala - 695 001.
...Rearrayed Respondents No.7 to 13/
Original Respondent No.8 to 14
15) Director
Central Water and Power Research Station
Khadakwasla, Pune - 411 024
Maharashtra, India.
(R15 - Deleted as per order of the Tribunal dt.17.08.2020)
16) Kerala Coastal Zone Management Authority
Represented by Member Secretary
4th Floor, KSRTC Bus Terminal
Thampanoor, Thiruvananthapuram - 1.
...Rearrayed Respondent No.14/
Original Respondent No.16
O.A. No.102/2020:
For Applicant(s): None.
For Respondent(s): Mr. Ashik Ahamed represented
Mr. G.M. Syed Nurullah Sheriff for R1.
Mr. Vignesh represented
Mr. E.K. Kumaresan for R3, R9, R12.
Ms. Mokshavathy represented
Mrs. Vidhyalakshmi Vipin for R6.
Mr. Krishna Srinivasan for
Mr. K. Anand, Sr. Adv. Along with
M/s. V. Sudha for R4, R11.
M/s. Ramasubramanian Associates for R5.
Mr. Vishnu for M/s. B.S. Krishnan Associations for R7, R8.
Mr. G. Prabhu for R13.
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O.A. No.151/2020:
For Applicant(s): M/s. G. Rajkumar, R. Anitha & G. Pachaimmal
For Respondent(s): Mr. Vignesh represented
Mr. E.K. Kumaresan for R1 to R4, R6, R9, R10, R13.
Ms. Mokshavathy represented
Mrs. Vidhyalakshmi Vipin for R11.
Mr. Krishna Srinivasan for
Mr. K. Anand, Sr. Adv. Along with
M/s. V. Sudha for R7.
Mr. Vishnu for M/s. B.S. Krishnan Associations for R9.
Mr. G. Prabhu for R14.
Date of Judgment: 08th July 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
1. The Original Application [O.A. No.102 of 2020 (SZ)] was filed by an individual alleging that in the guise of desilting and dredging, illegal mining is being undertaken by the State of Kerala in Thottappalli Estuary/Kozhi Mouth in Alappuzha District and permission was granted to Indian Rare Earth Limited (IREL) and Kerala Minerals and Metals Limited (KMML) for the purpose of removal of the same and the Original Application [O.A. No.151 of 2020 (SZ)] was filed by an association raising the same issue seeking similar reliefs.
2. Common allegation in both the cases is that in the guise of dredging, desilting and widening of the Thottapalli River, extensive mining of rare minerals is being undertaken by them. They are misinterpreting the provisions of the Disaster Management Act, 2005 that it is intended for the purpose of protecting the area from flood etc. In both cases, the reliefs claimed are as follows:-
Page 5 of 11"O.A. No.102 of 2020:
A. "Pass an Order prohibiting the 7th and 8th respondent from carrying out extraction of Mineral Sand from Thottappally Estuary/Pozhi Mouth and transportation of the same in the light of G.O. (Rt.) No. 385/2019/WRD dated 31.03.1029 issued by the 12th respondent without obtaining requisite permissions contemplated under the relevant statutes viz., the Atomic Minerals Concession Rules, 2016. The Environmental Impact Assessment Notification, 2006, Kerala Panchayath Raj Act, 1994 and in complete violation of the provisions therein.
B. Pass an Order prohibiting the 7th and 8th Respondent from carrying out extraction of Mineral Sand from Thottappally Estuary/Pozhi Mouth and transportation of the same to outside without conducting a study of Independent Team having expertise in Environmental Degradation and Impact studies; C. Call for the records pertaining to G.O. (Rt.) No. 385/2019/WRD dated 31.03.2019 issued by the 12th respondent and may be pleased to set aside the same; D. To direct 7th and 8th respondent to observe the rigors cast upon them vide Annexure A3 Stop Memo issued by the 10th respondent; E. Exempt the applicant from filing duly verified and attested affidavit in the prevailing situation of covid-19 pandemic;
F. Pass any other and further orders which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case. "
O.A. No.151 of 2020:
A) Declare that the activities of 8th and 9th respondent are illegal sand mining without any mining permit and environmental clearance, which is a violation of the provisions of Environment (Protection) Act, 1986?
B) Direct the 4th and 7th respondents to implement the stop memo issued against the activities of respondent companies by the local self government. C) Direct the 4th respondent to take steps to initiate cognizance against the 8th and 9 respondent for violation of the Environment (Protection) Act, 1986.
th D) Direct the respondent No. 1 & 4 to ensure that no mineral sand mining activities is conducted by the 8th and 9th respondents. E) Direct the 1st respondent to rehabilitate and compensate those who lost their homes and livelihood due to coastal erosion caused as a result of excessive mineral sand mining.
F) Direct the 3rd and 6th respondents to cancel the annexure A1 and A3 orders.
G) Direct the 1st respondent to constitute an expert committee to assess the quantum of environmental damage in terms of money caused by the 8 th and 9th respondent and recover the same.
H) Direct the 1st respondent to use the sand mined by the 8th and 9th respondent to protect area (Purakkad-Ambalappuzha) from the coastal erosion. I) Direct the 1st and 14th respondent for compensatory a forestation of 650 Kattadi trees that were cut down under guidance of 4th and 7th respondent to facilitate mining.
J) Direct the 1st respondent state to look in ot the study conducted by 15th respondent Central Water and Power Research Station, Pune and immediately construct the 2nd part of the harbour to stop sea attack. K) Pass such any other order, direction or reliefs as his Hon'ble Tribunal may deem fit in the interest of justice, equity and good conscience."
3. The official respondents as well as party respondents including the State Coastal Zone Management Authority have filed independent statement contending that they are only flood mitigating activities which are permissible under the Disaster Management Act, 2005 and they were doing only dredging, desilting and widening of the area which is covered Page 6 of 11 by sand and on account of accumulation of the sand, free flow of water is being obstructed which resulted in flood in the nearby areas. In order to study the impact of the flood happened in 2018, a study was conducted by the State of Kerala employing Dr. Swaminathan and IIT Madras in co- ordination with the Irrigation Department and it is on the basis of the recommendations made by that committee, this work was entrusted to KMML & IREL, for which, necessary permissions were also obtained from the Department of Atomic Energy. Further, the same issue has been raised by the local people before the Hon'ble High Court of Kerala by filing Writ Petitions as W.P.(C) No.11060 of 2020 (Vijayan Vs. State of Kerala & Ors.) and W.P.(C) No.15520 of 2021 (Suresh Kumar & Ors. Vs. Union of India & Ors.) and the Hon'ble High Court, by Judgment dated 17.11.2021, categorically held that this is a permissible activity and this is being done under the Disaster Management Act,2005 to protect the area as flood mitigation arrangement and it will not be a violation of CRZ Notification, 2011 and as per the amendment to the EIA Notification, 2006, the dredging and desilting of river and for their maintenance and any activity being done under the Disaster Management Act,2005 are exempted from obtaining Environmental Clearance (EC), as it will not amount to mining and ultimately, dismissed the writ petitions holding that there is no interference required and whatever done by the State Government is strictly in accordance with law and there is no necessity to take any action, on the basis of the allegations made. So, they prayed for dismissal of the application on that ground.
4. Heard the learned counsel appearing for the applicant in O.A. No.151/2020, learned Senior Counsel and other learned counsel appearing for respondents in both the cases.
5. The applicant in O.A. No.102/2020 (SZ) is not being represented since long time, the learned counsel appearing for the applicant in O.A. No.151/2020 (SZ) was heard and he submitted that this Tribunal in Original Application No.75 of 2020 (SZ) (Tribunal on its own Suo Motu on the news item published in The Hindu dated 30.05.2020 titled as "Kerala Forest Department hold to permit sand removal from Pampa" And The Chief Secretary of Kerala & Ors.) wherein this Tribunal had distinguished Page 7 of 11 the provisions of the Disaster Management Act, 2005 and its overriding effect on environmental laws and observed that for doing immediate reliefs of protection due to flood, they have got power to do certain things immediately, as they cannot wait for obtaining permission from the various departments under the environmental laws. But when they wanted to implement the flood mitigation plan, as required under the Disaster Management Act, they will have to abide by the environmental laws as the overriding effect provided under the Disaster Management Act will only act for the purpose for which it has been intended and when there are two special statutes dealing with same issue, and they will operate within their own limitations and the overriding effect cannot be extended for more than what was intended by the legislature in the statute. So, in view of that decision, the decision of the Hon'ble High Court of Kerala is not correct, according to the learned counsel.
6. On the other hand, the learned Senior Counsel Mr. K. Anand appearing for KMML and Mr. Krishna Srinivasan appearing for IREL submitted that the Hon'ble High Court had gone into the issue in detail and come to the conclusion that none of the restrictions mentioned in the environmental laws will be applicable to the facts of the case and also observed that it will not amount to mining, as there is no winning of mineral involved and it is only dredging and desilting which is required for flood mitigation process and also observed that it was based on the study conducted by the State Government with expert agencies, they are implementing the recommendations for the purpose of protecting the life of the people who are likely to be affected by flood during monsoon.
7. The learned counsel Mr. Krishna Srinivasan appearing for M/s. IREL also submitted that no sand is removed from that area and after desilting and dredging was done of the excess sand which affects free flow of water, that has been deposited in the river bed after it was segregated and only valuable minerals have been taken to their unit and the remaining sand is being spread over in that area itself for the purpose of sand nourishment of that area.
Page 8 of 118. The learned Senior Counsel also relied on the decision of the Hon'ble Apex Court in State of Andhra Pradesh Vs. Raghu Ramakrishna Raju Kanumuru (M.P.) reported in 2022 SCC Online SC 728 wherein the Hon'ble Apex Court has observed that once the Constitutional Court having jurisdiction had entertained a similar issue and passed some directions, then the National Green Tribunal should not have entertained the issue on similar matter and should not have granted any further directions and observed that the order of the Constitutional Court will be binding on the statutory Tribunals including the National Green Tribunal, as they are coming under the supervisory jurisdiction of the Constitutional Court under Article 226 of the Constitution of India and as such, there is no necessity for this Tribunal to proceed with the matter.
9. Considered the pleadings and also the submissions made by the learned counsels.
10. The grievance in both these applications is regarding illegal mining is being done in Thottappali River bed in the guise of the Disaster Management activities and dredging and desilting.
11. It was in a way admitted by both the parties that they were two Writ Petitions filed before the Hon'ble High Court of Kerala as W.P.(C) No.11060 of 2020 (Vijayan Vs. State of Kerala & Ors.) and W.P.(C) No.15520 of 2021 (Suresh Kumar & Ors. Vs. Union of India & Ors.), challenging the work of mechanized loading and transportation of mineral sand from Thottappalli Kuzhi Mouth which is the same issue that has been raised in both these cases as well.
12. The Hon'ble High Court of Kerala, after considering the pleadings and submissions made by both the parties, by Common Judgment dated 17.11.2021, came to the conclusion that it will not violate the CRZ Notification, 2011, EIA Notification, 2006 and the MMDR Act, as these acts are exempted under the EIA Notification, 2006 as amended in 2016 and 2018.
Page 9 of 1113. Further, Section 72 of the Disaster Management Act, 2005 will have overriding effect over any other law and any activity done under the provisions of the Disaster Management Act will not be covered by any of the other enactments during the time of crisis and ultimately, found that there is no merit in the Writ Petitions and dismissed the same.
14. It is true that this Tribunal in O.A. No.75 of 2020 (SZ) by Judgment dated 19.04.2022 distinguished the overriding effect mentioned in Section 72 of the Disaster Management Act over the environmental laws. This Tribunal also observed that as an immediate relief for flood mitigation crisis, the provision of the Disaster Management Act will apply and they need not obtain any further permission. But in respect of implementation of long- term measures for preventing future flood mitigation for disaster mitigation, then they will have to abide by environmental laws as both these Acts are dealing with protection of environment and it should not be said to be contrary to each other. However, in view of the fact that the Hon'ble High Court had permitted this activity and held that it was legally done based on the detailed technical study and other studies and recommendations made by the Expert body which is being implemented by the State of Kerala for the purpose of protecting the life of the people which will have primary impact, we do not think that it is necessary to deviate from that findings and give any different findings in this matter, in view of the dictum laid down in State of Andhra Pradesh Vs. Raghu Ramakrishna Raju Kanumuru (M.P.) reported in 2022 SCC Online SC 728 wherein the Hon'ble Apex Court has held that "In any case, no law is necessary to state that insofar as the Tribunals are concerned, they would be subordinate to the High Court insofar as the territorial jurisdiction of the High Court is concerned. A reference in this respect was also made to the judgment of the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and Others (1995) 1 SCC 400." and also observed that if two parallel proceedings were permitted to operate, then the authorities will be in a confusion as to which order will have to be complied with by them and the Constitutional Courts directions will be binding on the National Green Tribunal as well.
Page 10 of 1115. So under such circumstances, we feel that there is no necessity to proceed with these matters, as the issue raised in both these cases have been finally decided by the Hon'ble High Court of Kerala in the writ petitions stated supra.
16. The right of the applicant in both these cases, if aggrieved by the order of the Hon'ble High Court of Kerala to challenge the same before the appropriate forum are not barred by disposal of these applications.
17. Considering the circumstances, parties are directed to bear their respective cost in the respective Original Applications.
18. With the observations and directions, both these Original Applications are disposed of.
Sd/-
Justice K. Ramakrishnan, J.M. Sd/-
Dr. Satyagopal Korlapati, E.M. O.A. No.102/2020 (SZ) & O.A. No.151/2020 (SZ) 08th July 2022. Mn.
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