National Green Tribunal
M. Haridasan & Ors vs State Of Kerala on 9 December, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
M.A. Nos. 80 to 83, 85 to 88, 95 and 96/2021
IN
Original Application No. 304/2019
M. Haridasan Applicant
Versus
State of Kerala & Ors. Respondent(s)
----------------------
Poabs Granites (Pvt.) Ltd. & Anr.
Kuthirakulam P.O., Vellanand,
Thiruvanthapuram District,
Kerala State Applicants in M.A.
Nos. 80 & 81/2021
M/s. Panachayil Industries
West Othara P.O.,
Thiruvalla Taluk,
Pathanamthitta District
Kerala State Applicant in M.A.
Nos. 82 & 83/2021
Crystal Granites Ltd. & Anr.
Chulli P.O., Thathupara,
Ernakulam,
Kerala State-683581 Applicants in M.A.
Nos. 95 & 96/2021
Raju K. Thomas & Ors.
Vadasserikkara Post,
Pathanamthitta District,
Kerala-689662 Applicants in M.A.
No. 85/2021
Reji Joseph & Anr.
Narikkattu House,
Chamampathal Post,
Vazhoor, Kottayam District
Kerala-686517 Applicants in M.A.
No. 86/2021
1
Thomsun Aggregates
Kuttipparambil (H),
Vadaathoor P.O., Kottayam District
Kerala State-686010 Applicants in M.A.
No. 87/2021
Michael Granites & Ors.
Kanjirathumkunnu House,
Ramapuram Bazar Post,
Kottayam District,
Kerala State-686576 Applicants in M.A.
No. 88/2021
Date of hearing: 09.12.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Ms. Nishtha Kumar Advocate for original applicant
Respondent(s): Mr. Krishnan Venugopal, Senior Advocate with
Mr. E.M.S. Anam, Advocate for Applicant in M.A 80-81/2021
Mr. E.M.S. Anam, Advocate for Applicant in
M.A. 82,83,95&96/2021
Mr. Abhilash M.R., Advocate for Applicant in M.A 85 to 88/2021
Mr. Jogy Scaria, Advocate for KSPCB
ORDER
1. These applications have been filed by mining lessees (project proponents) undertaking quarry mining at various locations in Kerala, which also involves blasting. Mining is beyond 50 meters while according to the original applicant longer distance has to be maintained, following precautionary principle having regard to the right of inhabitants, who are affected by air and noise pollution generated in the course of mining operations. This Tribunal earlier passed order dated 21.7.2020 laying down longer distance in the light of report of the CPCB by which the present PPs are aggrieved.
2. The PPs have drawn attention to the order of the Hon'ble Supreme Court dated 25.10.2021 in a batch of matters permitting filing of 2 applications before this Tribunal by the parties affected by the order of this Tribunal. The said batch of matters involved inter-alia the issue whether this Tribunal has jurisdiction to initiate suo motu action against violation of environmental norms which stands concluded by the judgment reported in Municipal Corporation of Gr. Mumbai Vs. Ankita Sinha & Ors., 2021 (12) SCALE 184. Therein, it was held that the affected parties are entitled to be heard and they had not been heard in the present matter. The operative part of the order is reproduced below:
"In light of the issue answered by this Court in Civil Appeal Nos. 12122-12123 of 2018 and connected cases titled as "Municipal Corporation of Gr. Mumbai Vs. Ankita Sinha & Ors." reported in 2021(12) SCALE 184, it would be appropriate to permit the appellant(s) to raise all contentions/objections as may be available and permissible in law before the National Green Tribunal (In short "the Tribunal") in the first place. The Tribunal may consider those contentions/objections and record reasons for accepting or rejecting the same, so that the appellant(s) if dis-satisfied may have further remedy of appeal(s) before this Court.
In other words, all contentions raised in the present appeal(s) on these aspects, including on merits are left open, to be considered by the Tribunal afresh.
We say so because the judgment rendered by this Court predicates that even if the Tribunal intends to initiate suo motu action, must give opportunity to the parties likely to be affected before passing any adverse order against them. Viewed thus, the ex-parte preemptory order(s) passed by the Tribunal without giving opportunity to the person(s) likely to be affected by such order(s), be treated as effaced from the record.
Keeping that principle in mind, we deem it appropriate to relegate the appellant(s) before the Tribunal with liberty to raise all contentions as may be permissible in law, to be decided by the Tribunal afresh on its own merits.
Notably, the decision of the High Court assailed in these appeal(s) also gives that liberty to the appellant(s). However, we expressly grant such liberty to the appellant(s), as aforesaid, in terms of this order.3
The appellant(s) may, therefore, file a formal application to take up all contentions before the Tribunal which may be considered by the Tribunal afresh on its own merits and in accordance with law, including raised in this appeal(s) and in respect of matters, referred to by the Tribunal in the earlier order. The Tribunal to decide the proposed application expeditiously.
Learned counsel for the appellant(s) submits that before the Tribunal finally answers the issues raised by the appellant(s), the Tribunal may consider of issuing appropriate interim order to enable the appellant(s) to give effect to the contract/lease agreement in respect of the project in question. We accede to this prayer."
3. All the Applications are identical and relief sought is impleadment and directions not to interfere with the distance presently being followed as per rules laid down by the mining department and Kerala PCB.
4. We have heard learned Counsel for the parties.
5. As far as impleadment is concerned, the said prayer is granted, as the applicant has no objection to such a course being adopted in the light of order of the Hon'ble Supreme Court.
6. On merits also, stand in all the applications is almost same. The PPs claim to be carrying on quarry mining, using blasting at various locations under leases granted by the Mines Department of Kerala under the Kerala Minor Mineral Concession Rules, 1967. Minimum safety distance of 50m is maintained from nearest dwelling units. Grievance of the original applicant that 50m distance is not enough and reliance on observations of the Hon'ble Supreme Court in M.C. Mehta v. Union of India, (1996) 8 SCC 462 and Mohammaed Haroon Ansari v. District Collector, Ranga Reddy District, (2004) 1 SCC 491 is uncalled for.
7. To complete the narration, we may record that the Tribunal sought a report from CPCB and as per report dated 09.07.2020, it was suggested 4 that minimum distance should be 100m where blasting is not involved and 200m where blasting is involved. The Tribunal accepted the said view and, vide order dated 21.07.2020, issued directions in terms thereof which are reproduced for ready reference, as follows:
"3. Accordingly, the CPCB has filed its report on 09.07.2020 concluding as follows:
"6.0 Conclusion:
In view of available information, following minimum distance criteria may be considered for permitting stone quarrying by SPCBs:
Mining Type Minimum Locations
Distance
A. 100 m
When Residential/Public buildings, Inhabitedsites,
Blasting is Protected monuments, Heritage sites,
not involved National / State Highway, District roads,
Public roads, Railway line/area,
Ropeway or Ropeway trestle or station,
Bridges, Dams, Reservoirs, River, Canals,
B. When 200 m **
Lakes or Tanks, or any other locations to
Blasting is
be considered by States.
involved
**Note: The regulations for danger zone (500 m) prescribed by Directorate General of Mines Safety also have to be complied compulsorily and necessary measures should be taken to minimise the impact on environment. However, if any states is already having stringent criteria than the above for minor mineral mining (i.e. more prescribed distances than the above), the same shall be applicable."
4. In view of the above, the said criteria be followed throughout India. The CPCB may monitor compliance."
8. In view of rival submissions, question is whether there is any scope for interference by this Tribunal.
9. Original applicant has opposed the applications of the PPs and submitted that minimum distance of 200m must be maintained in the interest of safety of the inhabitants as well as flora and fauna in the area. The Tribunal must follow the 'Precautionary' principle and, if any, further 5 study is undertaken, mining may not be allowed within 200m pending such study. It was also submitted that mining is continuing illegally in violation of orders of Hon'ble Supreme Court and on that aspect the matter is being further raised before the Hon'ble Supreme Court by the applicant.
10. Stand of learned Counsel for the PPs is that distance of 50m is laid down under the Mines and Mineral Rules as well as under the orders of the State PCB. Any longer distance is beyond the jurisdiction of this Tribunal. CPCB also has no jurisdiction as powers under the EP Act are only with MoEF&CC.
11. Further submission is that due to topography of the State of Kerala, longer distance will obstruct the legitimate mining activities in violation of sustainable development principle. With the use of Nonel Detonation technology, 50m distance is adequate and does not cause any adverse impact.
12. Reliance has also been placed on a CSIR-Central Institute of Mining & Fuel Research study conducted in June 2021 on "SCIENTIFIC STUDIES FOR DESIGN OF SAFE BLAST PARAMETERS AT PEROORKADA STONE MINE, KUTHIRAKALAM P.O. VELLANADU, THIRUVANANTHAPURAM, KERALA" concluding and recommending as follows:
"8. CONCLUSIONS AND RECOMMENDATIONS 8.1 Conclusions:
The following conclusions can be drawn from the results of the study on blast vibration analysis:
i) From the blasting trials, with the designed blast patterns, it was observed that blast induced ground vibrations; air overpressure and fly rock were within safe limits
ii) The use of bottom hole-initiation systems like shock tubes in conjunction with noiseless trunk line delays (NTLD) during trial blasts kept the vibration and air over-pressure to the allowable limits.6
iii) Proper stemming with coarse grained sand reduced the chances of flyrock and limited to bare minimum within the quarry area.
iv) The throw of the muck was found to be favourable for easy removal and handling by machines
v) The maximum value of blast induced ground vibration (PPV) level recorded at the south eastern boundary from where the closest civil structure (water tank), is 1.024 mm/s with dominant excitation frequency as 82.25 Hz at a distance of 125 m.
vi) The maximum projectiles range of flyrock was observed as 10-15 m from the blast site and the air overpressure levels recorded were within the safe limits (<128 dB).
vii) This clearly indicates that the blast design parameters followed during the studies at the mine are quite safe to the nearby habitats and structures.
8.2 Recommendations:
On the basis of data analysis and results of the study the following points are recommended for consideration and strict adherence for controlled blasting and safety of structures:
1. It is recommended to practice the blast design parameters as burden =1 m spacing = 1.2m, hole depth = 1.8 m to 3m and specific charge = 0.35 kg/m 3.
2. Maximum hole depth can be upto 3m. Holes of lesser depth may have a tendency of generating more flyrock.
3. In case of varying hole depth, charge per holes should be calculated on the basis of specific charge (0.35 kg/m3)
4. The hole diameter should be kept at 32mm and there should be no variation in diameter of the drilled holes.
5. Typical blast deigns shown in the figure 6 and 7 should be followed for safe blasting practice
6. The safe maximum charge per delay for the distances of 45m and above, from the dwellings/structures is mentioned in Table-5, and Figure 16, which should be followed to contain the ground vibrations and flyrock within the limits.
7. Although, the nearest house not belonging to quarry owner, is towards South-east direction of the mine at a distance of 250 m and the safe maximum charge per blast for that distance, as per the Table-4, is 8.29 kg
8. Prilled Ammonium Nitrate Fuel Oil (ANFO) and Cartridge emulsion explosive of 25mm diameter to be used for all production blast rounds. Care should be taken to ensure utilization of explosive within the prescribed shelf-life period.
9. Blast rounds should be planned in such a manner that at least one free face is available
10. Maximum four rows are to be fired in each blast round to avoid cumulative confinement and flyrock problem.
11. Top of the face should be cleaned for any debris. The face should be cleared of muck of the previous blast as it creates flyrock.
12. The free face direction should be, as far as possible, opposite from the hutments/ structures (temporary or 7 permanent). The propagation of the initiation should be opposite to the structures/ habitats."
13. We have duly considered the above submissions. We do not find any merit in the objection of the PPs that this Tribunal has no jurisdiction in view of distance laid down under the Mines and Mineral Rules. in view of law laid down inter-alia in Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors.,1 and the Director General (Road Development) NHAI v. Aam Aadmi Lok Manch.2 There is also no merit in the contention that CPCB has no jurisdiction under the EP Act. CPCB has jurisdiction under EP Act, as per delegation under section 23 of the said Act as well statutory powers under the Air and Water Acts and also under directions of this Tribunal. Plea of the PPs that the study relied upon clinches the matter in their favour is also not born out from the said study. There is also no merit in the contention that even at the cost of environment mining must be allowed having regard to peculiar topography of Kerala.
14. Thus, while the stand of the PPs cannot be accepted, out of abundant caution, we are inclined to consider further expert study on the subject of safe distance for mining from habitations.
15. Accordingly, we constitute a seven-member joint Committee comprising CPCB, Indian Institute of Mines/ IIT, Dhanbad, CSIR - Central Institute of Mining & Fuel Research (CIMFR), Dhanbad, CSIR-Central Building Research Institute (CBRI), Roorkee, IIT Roorkee, Wadia Institute of Himalayan Geology, Dehradun and Directorate General of Mines Safety, GoI. The nodal agency will be CPCB for coordination and compliance. The cost of the study will be initially borne by CPCB and thereafter as may be decided by this Tribunal. The Committee may undertake visit to the 1 2019 SCC online SC 322, Para 43-47 2 AIR 2020 (SC) 3471, Para 75 8 relevant sites and except for such visits, conduct proceedings online, if necessary. The Committee will be at liberty to take assistance from any other expert/institution. The Committee may inter-alia study the impact of blasting with Nonel Detonation technology at distances of 50m, 75m, 100m, 125m, 150m, 200m and 250m. The study will include the impact caused by vibrations on different soil strata /earth profile in the area and on noise and air levels, on building and human and wildlife. The study may be completed within three months and report furnished within four months. Any stakeholder will be at liberty to give their respective view point to the Committee. State of Kerala and Kerala State PCB will facilitate undertaking of above study. The report may be furnished to this Tribunal within four months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF and also upload the same on website of CPCB simultaneously so that the concerned parties/Departments can access the same for further course of action.
M.A. Nos. 80/2021, 82/2021, 95/2021 stand disposed of. List OA 304/2019 for further consideration on 11.05.2022. A copy of this order be forwarded to CPCB, Indian Institute of Mines/ IIT, Dhanbad, CSIR - Central Institute of Mining & Fuel Research (CIMFR), Dhanbad, CSIR-Central Building Research Institute (CBRI), Roorkee, IIT Roorkee, Wadia Institute of Himalayan Geology, Dehradun, Directorate General of Mines Safety, GoI, State of Kerala and Kerala State PCB by e- mail for compliance.
Adarsh Kumar Goel, CP 9 Sudhir Agarwal, JM Dr. Nagin Nanda, EM December 09, 2021 M.A. No. 80/2021 to M.A. No. 83/2021, M.A. No. 95/2021, M.A. No. 96/2021, M.A. No. 85/2021 to M.A. No. 88/2021 DV 10