National Green Tribunal
Padma Kodalipadma Kodali vs State Plollution Control Board on 10 January, 2022
Bench: Adarsh Kumar Goel, K. Ramakrishnan, Satyagopal Korlapati
Item Nos.01& 02 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 13/2020(SZ)
Padma Kodali Applicant
Versus
State Environmental Impact Assessment
Authority Environment and Forest
Department and Ors. Respondent(s)
WITH
Original Application No. 14/2020(SZ)
(I.A No.72/2021(SZ))
Padma Kodali Applicant
Versus
Karnataka State Pollution Control
Board and Ors. Respondent(s)
Date of hearing: 10.01.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Original Application No. 13/2020(SZ)
Applicant: Mrs. Padma Kodali.
Respondent(s): Mr. H.K. Vasanth, Advocate for R1 (SEIAA).
Mr. M.R. Gokul Krishnan, Advocate for R2 (KSPCB).
Mr. Diwagar, Advocate for PP in item 1
Mr. R. Bharadwaj Ramasubramaniam, Advocate for R3.
Original Application No. 14/2020(SZ)
Applicant: Mrs. Padma Kodali.
Respondent(s): Mr. M.R. Gokul Krishnan, Advocate for R1.
Mrs. P. Jayalakshmi, Advocate for R2.
Mr. Diwagar, Advocate for
Mr. R. Bharadwaj Ramasubramaniam, Advocate for R3.
1
ORDER
The Issue
1. Both the applications are being dealt with by this common order. The same have been filed by the same person with the identical grievance that the industrial units in question have been set up and are operating in violation of environmental norms, without requisite consents.Only difference is that the industrial units against which grievance has been made are different, though sister concerns. Thus, the question for consideration is the remedial action if the units are found to be violating the environmental norms.
Case of the Applicant
2. We may first refer to averments in OA 13/2020(SZ). Case of the applicant is that Respondent no. 3 - M/s Sree Sai Industries (Project Proponent)proposes to establish a 'Cement Grinding Industry' named M/s Sree Sai Industries in the survey numbers viz. 36/C1 and 36/C2. SEAC, Karnataka has recommended issuance of EC to SEIAA, Karnataka in its 233rd Meeting held on 30-10-2019.Two industries are already existing in Survey Nos.34/C, 37/A, 37/B and 37C.The establishment of the said Proposed Project, which is in the list of 17 Highly Polluting Industries as per categorisation by CPCB,will affect the Applicant's poultry.Even already existing ones [even though M/s K.B. Steels is non- operating), are hazardous and also belong to the Red Category, which can be allowed only in industrial areas/estates.These are in the vicinity of ecologically sensitive area, surrounded by agricultural lands and agricultural activities like that of the Applicant's.The Project Proponent has concealed many factual data of the nearby neighborhood of the Proposed Project site such as:
2
a] it is not even 10meters away from 2 big Lakes Heere- kere and Hosa-kere in an extent of 87.21acres and 80.67acres respectively along with some other survey numbers of lake area viz. 144/A, 145/A, 151/A, 152/A, 154/A, 155/A, 159/A, 164/A, 166 etc. and unclaimed lands of 8, 28, 32 ; 33, 34/2, 44/b, 61, 65/B, 69/1, 69/3, 69/5, 69/8, 69/9, 81, 82, 90, 94, 95, 103/A, 107/B/2, 108, 117, 117/D, 119/2, 119/3, 119/4, 119/5, 120, 122, 123, 123/1, 123/2, 124/6A, 124/6B, 124/6C, 124/6D, 124/i, 136/D, 139, 140/1, 141/a, 141/A/1, 142/A/1, 144/B/2A2, 147, 148, 150, 158, 159/B, 162/B, 163/C, 164/B, 170/1 etc. are the survey numbers that constitute the lake area [Annexure-4] all of them put together called as Gollarahalli-Kere in an extent of more than 400acres.
b] There are swamps which occupy bits and pieces of govt. lands around these lakes[Annexure-4] some of which are cultivated by farmers at the time of early monsoon when the pond is not full.
The Survey Nos. 36/A-1.41acres, 36/13-0.82acres, 36/D-2.00acres, 36/E-10.64acres, 36/E/P1-10.64acres, 36/F-0.75acres, 36/G-0.65acres, 36/32-0.14acres, 36/K-1.06acres, 36/L-1.68acres and 38-(8.68acres) [Annexure-6] are all in the name of government pertaining to Haruvanahalli village, are spread around the east and northern boundary of proposed site of R-3, also fall under Haruvanahalli village.
c] To the North and Northeast of R-3 is the survey nos. of 'Basavanadurga' which is an extinct village including the Heere-Kere Lake [Annexure-4]. The water of the lake occupies these government lands also in rainy season which is very adjacent survey numbers of the Proposed Project and it starts receding from the month of December when the water is started using by the maagaani lands of 200 acres of Gollarahalli village.
Very next survey number of the Proposed Project is a part of lake with Survey Number 122 of Basavanadurgam[Annexure-4) pahani which is a govt. land, next to it survey number 118 is in the name of Heere-Kere. There are two water bodies (Lakes) Heere-Kere and Hosa-Kere, the former being very adjacent to the R3's industry that irrigates about 200acres of the agricultural lands (maagaani) of Gollarahalli village. The Gollarahalli-Kere spreads all around North, North-east, and South-east of the Proposed Project as seen in Annexure-2-A,B,C. d] Fish rearing is carried out in these lakes. There is a committee for the lake which was registered around the year 2010. Fish rearing has become tough by the already existing heavy pollution of M/s PSUPL & M/s 3 K.B. Steels premises and it will collapse completely by the pollution of the Proposed Project.
Fish are frequently seen dead on the bank of the lake. There are different kinds of cranes seen in and around the lake which migrate from distant countries and Arabia. They live here for 7/8months and majority of them fly away in summer.
e] It is very adjacent to a big agricultural manmade habitat of 1.51ac Layer Birds, which costs 15crores to be built to the present values, which is nothing but fauna, that cannot withstand the hazardous pollution of such 17 Categories of Highly Polluting Industries of Large, Red Category, like any other natural fauna. f] It is very close as 450mtrs from Notified Nandibanda Reserve Forest of 6,500 acres is to the North-West Corner of Proposed Project as shown in ANNEXURE-2-A. g] Next to the Gollarahalli-kere spreading all long the bank of North-east, East and South-east of the Proposed Project is the Notified Bandri Reserve Forest of 17,500acres. Some part of this forest comprising of survey numbers 119/1 of 42.52acres, 138 of 185acres, 167 of 27.96acres, 169 of 755.48acres which totally put together form an extent of 1,011acres extent of 'Basavanadurgam' village, [this 'extinct village' is the boundary of Haruvanahalli village] extends till almost as close as 100mtrs from the Proposed Project of survey numbers 36/C1 & 36/C2.
h] There is Chilakanahatti Palmyra Reserve in an extent of 798acres and Chilakanahatti Sandal Reserve which is 698acres [Annexure-7] in the same Chilakanahatti village at an areal distance of 1000mtrs to the South-West Corner from the Proposed Project. The proposed site falls under this village Panchayat.
i] there are nearly more than 200 acres of maagaani wet lands irrigated by the said lakes which are at an areal distance of 200mtrs [which is North end of the lake] to the North-East corner of the said project site.
j] it is not even 425meters from NH against the CPCB guidelines of being at least 500mtrs from NH.
k] it is very next to already existing 2 Highly Polluting Industries of Large, Red Category which would create a synergistic pollution by the establishment of the new Proposed Project.
l] the Southern end of 'BMM Ispat Nigam Industry' which is nearly in 5,000acres of land, extends up to Danayakana- 4
kere which is at an areal distance of 2kms from the Proposed Project site.
m] there is another Sponge Iron Industry called M/s Rosvar to the West, at an areal distance of 775meters from the Proposed Project site.
n] the survey numbers 36/C1 & 36/C2 of the Proposed Project site are still agricultural lands that are not converted for industrial purpose. Not only this, the land is acquired from the poor people, which are allotted to them by the government. According to Section 79(b) of the Karnataka Land Reforms Act, these lands that are allotted by the govt. to the poor can be owned by anyone only for the purpose of agriculture, but not for the industrial use.
3. The Applicant also states that the Project Proponent has submitted fabricated data:
A] that the nearest lake is Danayakana-Kere, which is '4kms' away B] that 90% of their transport is mainly through 'railway track' which is at a distance of 16.92kms C] that the Proposed Project would take up 'green belt' all along either sides of the 'haulage road' which is a four lane NH-50 '[old NH-13] D] that the total cost of the industry is only „Rs.3crores. E] that the Proposed Project does not need a 'parking' place
4. The above-mentioned A, B, C, D and E are fabricated because:
A] [i] the nearest lakes are Heere-kere and Hosa-kere surrounded with a lot of swamps which occupy the very next survey nos. of the Proposed Project site.
[ii] Danayakana-Kere is only at an areal distance of 2kms from Proposed Project site B] [i] the whole paragraph is so shrewdly and confusingly drafted by using numbers like "90%, 1.8%, 6%,2%and 50% of 2% 50%" and so on making one's attention drawn only towards the numbers and that the "90% of the transportation is done through Railway track", which is the starting of the confusing sentence, making one feel that the Proposed Project has an axis to Railway track which is as biggest lie as the 2 nd paragraph of the same 26thpage of the copy of the said Proceedings of SEAC [Annexure-1] in which the Project Proponent states that they would maintain Greenery for 10years all along the 'haulage road' length of 16.92kms (nearly 17kms), which is nothing but National Highway-13 (old).5
It is questionable here as to how far is it justifiable to rely upon a person that has no ethical responsibility of planting greenery all around his industry and has no place at all for the same, would plant trees all along 17kms of Haulage road which is a public property being a National Highway. [ii] "Haulage" is the commercial transport of goods. It is not understandable as to what the word 'Haulage Road' used by the Project Proponent means. If the meaning derived from the first word 'haulage' is added to its following word 'road', the word 'haulage road' means, a road of commercial transport of goods, which is not true in the present case as the 16.72kms road as mentioned by Project Proponent is a Highway of all purpose which is not exclusively for commercial goods.
If it is a printing mistake and the word is understood as 'road haulage', it would give a meaning of "the activity of transporting things in large trucks, which is an environmentally poor alternative to rail" which would again entirely mar the purpose of its usage by the Project Proponent. It is questionable as to which meaning the experts and the intellectuals in different fields of SEAC have taken and accepted its usage in this context and believed the statement of Project Proponent.
The Applicant further submits that it is also disturbing to note that a very responsible panel like SEAC has very easily accepted the statements of the Project Proponent and recommended SEIAA to issue EC to the Proposed Project, exempting it from undergoing all the elaborate processes of EC, like public consultation, screening and scoping etc. which are necessary check gates for all the escape routes of the Project Proponent from strictly following all the Environmental Rules and Acts that are framed by EIA Notification 2006. [iii] It is to be noted in this context that, if there is a Rule/Concept that all the `61' Category Industries that fall under Schedule I, having railway line at a distance of 17/20kms from their proposed site, for the transportation of their gOods, are exempted from undergoing the mandatory processes of Public Hearing, Screening, Scoping etc according to EIA Notification 2006, before obtaining EC from the concerned authorities, and are regarded them as '132.' Categories, almost all the new projects of Red Category in Bailari District need not undergo the above said mandatory processes for obtaining EC because, almost every area around Ballari has an axis for Railway track within 17-20/25kms in and around Ballari District which is a hub for Red Category Industries [like Sponge Iron, Pelletization and Beneficiation etc.].
[iv] It is further to be noted here that the Project Proponent failed to mention the particulars of the rule or the paragraph 6 of the EIA Notification 2006, that specifies, that any category 131' industry which has an axis to railway track even at a distance of 17 to 20kms from its Proposed Project site, for its transportation is regarded as category '62', exempting it from undergoing all the processes that are mandatory before applying for Prior Environmental Clearance from the concerned regulatory authorities.
[v] The Applicant further submits in this regard that the 2nd paragraph of the page number 26 of Annexure-1, which is the statement made by the Project Proponent that "she has earmarked Rs.6 lacs to take up greenery and maintain the same for 10years all along the `haulage road' length of 17kms [16.92kms]" is nothing but bluffing the intellectuals [members] of SEAC, as it is an unbelievable promise of the Project Proponent to be strictly implemented.
It is questionable as to whether it is feasible and possible, for an industry of Rs.3crore investment, to grow greenery, all along the 17kms long NH. This itself would cost nearly Rs.50 lacs if done honestly.
C] In this regard the Applicant submits that, that the Project Proponent has not given any statements regarding the watering/sprinkling of the same Haulage road' 24/7 as a pollution control/preventive measure which is one of the inevitable and mandatory conditions of EC, which is as feasible and possible like that of planting trees on either side of the 17km length of Haulage road which is nothing but NH50.
D] The Applicant further states that the total cost of the Proposed Project is only Rs.3crores is far from reality as:
[i] The greenery all along Haulage road of 17kms itself costs more than Rs.50 lacs if done honestly.
[ii] The black topped asphalt approach road from NH to the Proposed Site which is 450mtrs would easily cost Rs.lcrore if laid according to standards.
[iii] Online monitoring equipment also costs nearly Rs.75 lacs if complied according to standards.
[iv] AAQM Stations and bag filters and ESP would cost almost Rs.lcrore if complied according to standards.
[v] Rainwater Harvesting, Storm Water Harvesting, Weigh Bridge, Internal Roads (asphalting) etc. need nearly Rs.lcrore for their compliance.
When more than Rs.3croresis required to meet only the above listed expenditures, it is questionable as to how would the total cost of the project including the machinery and the structures would be met only by Rs.3crores.7
This under estimate of the cost of the Proposed Project by Project Proponent is, to avoid the Proposed Project fall under 'Large 'Red Category one, to get few more exemptions from various Regulatory Authorities.
E] 'parking' is inevitably needed by any Cement Industry of 60,000TPA. Any such projects have a lot of traffic of heavy vehicles that bring the raw materials, and to transport the finished goods from the industry. There is also a lot of light vehicle traffic along with that of two wheelers pertaining to the transport of Management, staff and workers. The intention of the Project Proponent in saying that the industry does not need a parking place is to take advantage of the surrounding agricultural lands of the poor illiterate farmers who cannot afford to resist the same, as has been a practice by the already said existing industries which have made the 5.18acres of Applicant land also useless for agriculture by the time she got rid of their usage for the said purpose with the help of Lokayukta in 2014.
5. We may now refer to averments in OA No. 14/2020(SZ). The R- 3 started the industry during 2005 and is at a distance of hardly 100 meters to the east side boundary of the Applicant. The R-3 industry which, is very near to the Applicant's poultry farm of 1.5 lac Layer Birds is wall to wall to the west of M/s Saivijay Pragati Steel Udyog Pvt. Ltd., (PSUPL) which is a sponge iron industry of Red Category which has a common wall with the R-3 industry to its East.The R-3 had established the above said industry during 2005 without adhering to any of the norms prescribed under the Pollution Control Acts and Rules and the conditions prescribed by the R-1 in its Consent for Establishment No./152/KSPCB/E0(BLY)/DEO/AE0-2/CFE/MR/2001-05/4262, dated 31-03-2005 (Annexure-3).The applicant in this context wants to draw the attention of this Hon'ble Tribunal towards the fact that in first paragraph, first sentence in the 1st page of the above said annexure, it is mentioned as "Sub: Consent for; establishment and clearance from Water And Air Pollution Control point of view for setting up of new Industry for the manufacture of the Steel Ingots with production capacity of 350 MTPM (INDUCTION FURNACE 6.0 Tonnes,Heat Capacity) at 8 Sy.No.37/C......... ". The word' Clearance' is not specifically mentioned by Rl. If this word 'clearance' means `Environmental Clearance', R-1 has no authority to issue such 'Clearance'.
6. The Applicant also submits that the R-3 has not obtained EC from FEE /DFE, Karnataka in 2005, who are the authorized authorities for issuing EC to such Secondary Metallurgical Industries, which fall under Category „B‟ Medium, Red Category, Ferrous industry, before the publication of EIA Notification, 2006.The R-3 industry has become non- functional and was shut down around the year 2012. Activities that are not related to the CFE of R-1, like dumping of Dolochar Kiln Accretions etc. in large heaps of height not less than 25-30ft in almost 75% of its premises and crushing of the same are being carried out in the R-3 premises since the year 2016. Dumping of the Dolochar Kiln Accretions etc. leveling of the same by Loaders or JCBs and. crushing of the same is resulting in a lot of hazardous fugitive emission polluting the 'Heerekere' (Lake) very next to the R-3 to its East. These activities are also causing a lot of pollution in the surrounding, agricultural lands especially those that are to the East and North-East being downwind from March/April to October/November, including the agricultural lands and the Agricultural Activity of the applicant's Poultry Farm which is to the West of R-3 in an extent of 22.5acres that extends from NH-13 presently NH-50 till being downwind to the R-3 from October/November to March/April.
7. It is further stated that the two water bodies (Lakes) Heere-kere and Hosa-kere are adjacent to the R3's industry that irrigates about 180acres of the agricultural land of Gollarahalli village. The area of the Hosa-kere is nearly 140acres and the area of the Heere-kere Lake is nearly 250acres complying of survey number 166, 164/A, 159/A, 155/A, 9 154/A, 152/A, 151/B, 145/A, and 144/A (Annexure-5) etc. The aforesaid survey nos. are in the name of Heere-kere according to revenue records. Between the land of R-3 industry and Heere-kere, there are Govt. lands of Survey Nos. 36/A-1.41acres, 36/B-0.82acres, 36/D- 2.00acres, 36/E-, 10.64acres, 36/E/P1-10.64acres, 36/F-0.75acres, 36/G-0.65acres, 36/J2-0.14acres, 36/K-1.06acres, 36/L-1.68acres and 38(8.68acres) of Haruvanahalli village, which is also filled by Heere-kere pond water when the lake is full in rainy season.All the cattle and sheep of the surrounding 3villages viz. Haruvanahalli, Chilakanahatti and Gollarahalli are dependent on this lake for drinking water. The Lake water was very clear and transparent prior to the establishment of R-3 industry but has now become very turbulent and black in color with all the fugitive emissions caused by the above said activities in the premises of R-3 industry,a part of which is encroached. A part of Sy. No. 39 to the South as shown in village sketch is agricultural land but included in R-3 premises. The said part of Sy.No.39 in R-3 premises is not converted for industrial purpose. A part of 34/4C is also included in R-3 premises.Run off from hazardous waste dumps of the R-3 industry's premises entering the surface water of this water body has made the water very turbulent and dangerous making it unusable for irrigation or for the drinking of cattle and sheep since the R-3 has not complied the rainwater/storm water harvesting.
8. The Applicant has further submitted that the area being 1700ft above sea level, it is very windy almost round the year resulting in the carrying away of a lot of hazardous Dolochar Kiln accretions by the speedy wind from the 25-30ft high heaps from the R-3 industry's premises to a distance of more than 1km in the down-wind and all the surrounding agricultural lands that especially lie in the direction of 10 downwind of about 600acres, including 390acres of HeereKere Lake.Applicant's house, lands and poultry farm are topped up with a layer of the same. This situation is worst during summer when there are frequent whirl winds almost once a day. During rainy season all this hazardous dust raised from the more than 25-30ft high heaps of the R- 3's premises, carried off to the surrounding agricultural lands up to a distance of 1 to 2kms.This is washed off by rain water during rainy season and all the runoff water from these lands finally reaches the Lake. There are 5/6 brooks that also carry the run of water from all directions finally reaching this lake as seen in Google picture.
9. It is also submitted that there is a committee for this Lake, which was formed and registered approximately in the year 2010 to rear fish in the Lake, consisting of 20 members.Due to the contamination of the water caused from the R-3 industry's hazardous pollution, almost half of the committee members are no more in the committee today. One can see small dead fish to the boundary of the Lake at any given point of time. The occupation of the surrounding 3 villages of Haruvanahalli, Chilakanahatti and Gollarahalli is not only agriculture but also rearing of cattle and sheep that graze in the surrounding lands of the R-3 industry at a distance of 800meters from the said villages.
10. Further averment is that there is no other alternative for these cattle and sheep except to graze the grass topped up with the layer of hazardous pollution caused by the R-3 industry and drink the contaminated, unhealthy and dangerous turbulent water of the Lake next to R-3's industry. Because of this there are frequent mortalities of cattle and sheep the complaints against which are unheard by the local govt. veterinary staff. When the rainfall is good and the Lake is full, the 11 water of the Lake touches the wall of R-3, the: Lake area being extended uptill the wall and even to the other side of the wall into its premises. Lot of Storks and Cranes including huge cranes migrate seasonally to this pond from distant countries and stay near this pond at least for a period 7-8months. The number of these migrating birds is decreasing year by year because of the polluted lake water and the environment as a whole.Peacocks that used to come from near bye Notified Bandri Reserve Forest during morning times are now coming very rarely/almost stopped coming for the last 3,4 years. Prolonged contact to hazardous sponge iron unit's dust pollution hurts the eyes. The Dry Eyes of the Applicant and her corneal condition deteriorated more and more by the hazardous pollution caused from the R-3 industry's premises since 2015 till date. Respiratory problem of the Applicant's husband is increased depending upon the direction of the wind and intensity of PM10 and PM2.5 of the fugitive emissions carried severely from the R-3 industry's premises to the Applicant's house. The farmers in the surrounding lands of the R-3's industry are facing a severe loss in their agricultural activities for the last 4/5years since the dumping of the above said hazardous material in R-3 industry premises, even though it stopped functioning in 2012. These heaps in R-3 industry that have attained, the present height of more than 30ft by the everyday dumping of iron ore fines, kiln accretions etc. for the last four years, made the farmers loose more and more, year by year in their agriculture which is their only livelihood, because of the unbearable fugitive emissions from these heaps that are spread by heavy winds of this windy area. There is absolutely no greenery around the periphery of the R-3 industry to arrest at least some part of the hazardous dust raised from these 30ft high heaps. The corns of Maize, Bajra, Jowar etc. are turned jet black on the side where the wind 12 carrying the carbon dust from the R-3's industry hits resulting in the failure of the crop entirely leaving no fodder to the cattle.Sprinkling of water is not possible to mitigate effect of dumping of such high heaps of 25-30ft high. Respondent No.3 has also no water source of its own since its bore well is sealed by Karnataka Ground Water Authority (KGWA/CGWA). Covering of the same high heaps with any kind of covers is also impossible in case of the neighboring industry. The raising of the wall with a barricade to prevent the dust to some extent is also a failure. The authorities have not taken any action till date.Crops in more than about are 400acres of land to the east and' including major agricultural activity of poultry farming in an extent of 22.5acres to the west of R-3 are being damaged severely by the pollution caused from the R-3 industry, not leaving at least fodder to the cattle of poor farmers which is coated fully with carbon dust.
11. It is also further submitted that farmers and shepherds who always work in their fields and graze their cattle and sheep respectively in the surrounding lands of 3rdRespondent industry, frequently suffer from sore eyes due to the hazardous Dolochar, Kiln accretions etc. that falls into their eyes which is carried off by the speedy wind of this area from the 3rdRespondent industry's premises. There are also asthma cases in the villages caused due to this hazardous pollution.
12. R-3 industry is not having proper access to the NH13 and the access used by the 3rd Respondent industry is a' mud road which is polluting the entire area.Applicant's complaints to the revenue heads viz. Tahasildar, AC and DC are left unheard. The road is neither asphalted nor roadside avenue plantation undertaken. 3rdRespondent has established the industry against the siting guidelines and sensitive area 13 guidelines being within 100meters from the sensitive agricultural activity of poultry farming and the agricultural lands of the Applicant which is also being the place of residence for herself and her poultry workers living in a total of 15 labour quarters excluding applicant‟s house. Procedural History
13. Both the applications were filed in January, 2020. The parties impleaded include the SEIAA Karnataka, State PCB, and the industry (in OA No. 13/2020(SZ)) and CPCB, State PCB and the industry (in OA No.
14).OA No. 13/2020(SZ) was taken up on 23.01.2020.The Tribunal sought a factual and action taken report from a joint Committee of SEIAA, Karnataka and State PCB. On 15.02.2021, the Tribunal considered the report of the joint Committee dated 22.01.2021 as well as objections of the applicant to the said report. The Tribunal directed the joint Committee to give its views on the objections and also issued notice to the Project Proponent (PP) to enable it to file its response in the matter. The matter was last considered on 01.09.2021 and it was noted that the PP has filed its counter statement and the joint Committee has filed its further report in response to the objections of the applicant. IA No. 72/2021(SZ) seeking injunction against continued operation of the industrial unit was disposed of with the observation that the same can be considered in the course of consideration of the main matter.
14. In OA No. 14/2020(SZ), vide order dated 23.01.2020, the Tribunal directed the State PCB to give a report about the compliance status with reference to the environmental norms, by the PP.On 01.09.2021, the Tribunal noted that reply has been filed by SEIAA Karnataka. The applicant filed objections to the inspection report dated 20.03.2020. 14 Stand of the PP
15. We may now note the stand of the PP in OA 13/2020(SZ) as notice has not been issued in OA 14/2020(SZ). It is statedthat the District Level Single Window Clearance Committee Bellari, Department of Industries and Commerce, Government of Karnataka, vide NO. DIC/BLY/DLSWA/152/4.13/2019-20/271 dated 13.06.2019 had approved the project proposal of the Respondent No.3 "Mineral Benefication and Ground Granulated Blast Furnace Slag Manufacturing"
SEIAA has granted EC for operating a Cement Grinding Unit but the said unit has not commenced its operation nor commenced building of the factory. Ground Granulated Blast Furnace Slag (GGBFS) being „orange‟ category industry does not require EC but Consent to Establish has been granted on 26.09.2019 operative till 27.08.2024. Consent to Operate has been granted on 30.12.2020. Consent of the Gram Panchayat has been sought for the manufacturing unit. The land is in the industrial area and can be used for industrial purposes.
Report of the Committee
16. The report of the joint Committee mentions that the SEAC appraised the proposal as per Form-1 and Form 1A and recommended EC subject to compliance of certain conditions for cement grinding unit. It is not disputed that the unit is close to wetlands and water bodies, forests and mountain. The report gives following details in this regard:
"Wetlands: Wetlands of Gollarahalli Maagani in an extent of 600 acres at an aerial distance of 500 meters to the North and North-east direction of R3.
Water coarses: streams/ brookes.15
I. from North-West corner (no. 19 in Google Picture site Annexure -2-B of Page 54 of 01A.) passes through R3 site. II. from South-East corner passing through R3 site to South. III. from North-East corner merging at point „0‟ as seen in GooglePicture of Annexure -2-B in Page 54 of O.A. passes as no. 19 in the West of R3 site.
Water bodies.
I. Heeere -Kere in Survey number 166 of Basavanadurga village in an extent of 200 acres is in abutting land of R3 site.
II. Hosa Kere in an extent of, nearly 150 acres is a continuing lake connected by a canal to Heere-kere to East and to R3 site.
Mountains:
I. Sandur mountains are at an aerial distance of 10 kms from R3.
II. Small mountain to the North east corner at a distance of 40- 50 meters to R3 in the Northeast corner.
III. Small hillock towards South east of R3.
Forests: The site of R3 is surrounded all around by:
I. A forest land of 100 acres of sy. Number 101 of Gollarahalli village at a distance of 250 meters from R3 to the North. II. A forest land of 42.86 in sy. No. 119/1 of Basavanadurga village at a distance of 150 meters to the East of R3. III. Notified Bandri Reserve Forest of 17,500 acres extends from East to South of R3 at an aerial distance of 600 meters. IV. Chilakanahatti Pal myra Reserve at an aerial distance of 2 kms. From R3 to South-West corner.
V. Also Chilakanahatti Sandal Reserve at an aerial distance of 2 kms to the South-West of R3.
VI. Notified. Nandi Banda Reserve Forest of 6,500 acres at a distance of not even 500 meters to the West of R3 site. VII. Sandur Reserve Forest of 36,000 acres to North -east of R3.
VIII. Gunda Reserve Forest of 5,978.88 acres.
IX. Gunda Reserve Forest Extension of 1,711.93 acres at an
aerial distance of 3 kms. from R3 site to the North East corner.
X. All the above mentioned 9 „Reserve Forests lands are situated with-in a minimum of 150 meters to a maximum of 5 kms radius from R3 site."
17. It is, however, stated that the project site is not within buffer zone and eco-sensitive area as per version of the PP, based on which EC has been granted.
16 Consideration of the Issue
18. We have heard the applicant in person and learned Counsel for SEIAA, State PCB and the PP in OA No. 13/2020(SZ).
19. While notice has been issued to the PP in OA 13/2020(SZ), notice to PP in OA No. 14/2020(SZ) has not yet been issued.However, order which we are proposing provides for compliance of natural justice and verification of facts after hearing the PP in the said matter also.
20. Though there is no formal challenge to the EC granted by SEIAA by way of an appeal,the issue raised being substantial question of environment needs to be gone into within the scope of sections 14and 15 of NGT Act, 2010. Vide dated 16.11.2021 in Civil Appeal No. 6497- 498/2021, Citizens for Green Doon vs. Union of India & Ors., the Hon‟ble Supreme Court held that even if an appeal was not filed, if substantial question of environment is involved, the same can be gone into under section 14 of the NGT Act. The observations are reproduced below:
"The Tribunal was moved by the appellant by invoking the jurisdiction under Section 14, under which it has jurisdiction to entertain civil cases where a substantial question relating to the environment, including enforcement of any legal right relating to the environment, is involved and such question arises out of the implementation of the enactments specified in Schedule I. The enactments which are specified in Schedule I include the FC Act. Thus, where a substantial question relating to the environment is raised involving the implementation of the FC Act, even the original jurisdiction of the Tribunal under Section 14 could have been invoked.
21. It remains undisputed factual position that there are wetlands/water bodies and the reserved forest in the vicinity and no independent evaluation has been done about the impact of the projectsin question on the said water bodies and forest,there is certainly need for 17 revisiting consents/EC in respect thereof, pending study of such impact. The position being identical in both the matters, common direction will be appropriate for both the matters.
22. Though the PP has stated that it has not acted upon the EC granted by SEIAA, and not started any activity in pursuance thereof, even already continuing activity,which is of hazardous nature for which consent to operate has been granted by the State PCB, may not be allowed to continue unless on due consideration such activity is found to be permissible. The State PCB may have to revisit the consent given in the light of study which is being directed to be undertaken.We find that compliance of the statutory norms under the Wetland Rules have not been considered. The Wetland Rules require demarcation of regulated and prohibited activities. Identification of Mean High Flood Level for the last ten years and maintaining a statutory buffer zone is required. Since the PP did not furnish the particulars of the wetlands and the reserved forest,SEIAA and State PCB have failed to apply their mind to the mandate of law in this regard.As directed by the Hon‟ble Supreme Court vide orders dated 03.04.2017 and 04.10.2017 in M.K. Balakrishnan & Ors. v. Union of India & Ors.1, the principle of Rule 4 of the Wetland Rules 2010 (now replaced by 2017 Rules) will apply to wetlands mapped by the Union of India. Following the said directions, this Tribunal vide order dated 25.11.2021 in O.A. No. 351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors. directed monitoring of compliance by MoEF&CC as follows:-
"16. The Joint Secretary, MoEF&CC stated that water being State subject, primary responsibility of handling the matter is of the States. Similar approach was disapproved by the Hon‟ble Supreme Court in observations already quoted earlier. Needless to say that 1 (2017) 7 SCC 805 18 Wetland Rules, 2017 have been framed under the Environment (Protection) Act, 1986 under which there are statutory powers with the Central Wetland Authority to oversee the protection of wetland. It is not subject of „water‟ alone. „Environment protection‟ is covered by Central laws on account of International obligations under Entry 1 List 13 of Schedule 7 to the Constitution. Attitude of avoiding responsibility cannot thus be appreciated. CWA in the MoEF&CC needs to monitor compliance of the Wetland Rules throughout the country by periodical interaction atleast once in a month.
17. The suggestion of the applicant is that significant wetlands need not be limited to 363 and more wetlands on examinations be added to the list from time to time for better protection by preparing appropriate action plans under the programme for protection of the significant wetlands. Further, apart from figure of 2.01 lakh wetlands already mapped, to which the Wetland Rules, 2017 are applicable even if no separate Notification in terms of 2017 Rules in view of directions of the Hon'ble Supreme Court in M.K. Balakrishnan, supra, it may be possible to identify more such wetlands. Infact, the report of the MoEF&CC itself mentions that some States have already identified larger number of wetlands than earlier mapped. In UP itself, 133484 wetlands are entered in the Revenue Records which are being protected by the State. On the same pattern, all the States/UTs need to map all available wetlands in their jurisdiction and file report with the National Wetland Authority so that National Wetland Authority can prepare an exhaustive inventory of wetlands in the country and extend protection to all such wetlands. These suggestions need to be considered by the MoEF&CC.
18. District Environment Plan of each District in terms of order of this Tribunal dated 05.07.2021 in OA 360/2018, Shree Nath Sharma vs. Union of India & Ors. should also cover the wetlands in the District. If necessary, the said plans be revised accordingly by the District Magistrates concerned by providing that the core activity for conservation and protection of wetlands may primarily focus on not discharging of sewage, disposal of solid waste and other wastes, preventing siltation, demarcation of wetlands/flood protection zone and removal of encroachments. There should be regular monitoring of water quality under water quality management programme at strategic locations (around 10 locations) to ensure that it is compliant with TC/FC norms. Water quality of the wetlands with respect to BOD needs to be less than 3 mg/l, feacal coliform should meet norms and contamination due to toxic constituents either directly or through runoff from the catchment should be prevented. Biodiversity of the wetlands needs to be maintained. Monitoring of steps for compliance of Rules in relation to such Wetlands ought to be at District level by the District Magistrate, at State level by State Wetland Authority and at National level by National Wetland Authority. We are confident that such initiatives in monitoring will go a long way in protecting the Wetlands which have significant environmental functions."19
Finding and Directions
23. In view of above, Wetland Rules are applicable not only to notified wetlands but also to all the mapped wetlands. As seen above, this Tribunal has alreadydirected updating of the Atlas in accordance with the directions of the Hon‟ble Supreme Court and enforcing the statutory rules. The direction is applicable Pan India. In the present case, the National Wetland Authorities and State Wetland Authorities have not been associated and SEIAA/PCB have not addressed the issue of compliance of the Wetland Rules. It will also be appropriate to undertake comprehensive view of compliance status by a joint Committee. In the light of such study, SEIAA/PCB may need to revisit the EC/consent, after hearing the affected parties in the light of Wetland Rules. We have recorded the statement of the PP that PP will not proceed further for setting up of the project in pursuance of the EC. Since the joint Committee has not gone into the impact of activities of the projects on the wetlands in question and also on the reserved forest,study needs to be undertaken to enforce the „Precautionary‟ principle of environmental law.
24. Accordingly, we issue following directions:
i. A joint Committee of MoEF&CC, CPCB, National Wetland Authority, State Wetland Authority,SEIAA Karnataka, State PCB and District Magistrate with the CPCB and the State Wetland Authority being nodal agency for coordination and compliance, may hold a joint meeting within two weeks and undertake visit to the site. The joint Committee may assess the impact of the activities of the PP or any other project in the area with a view to determine steps required to be taken for 20 protection of the wetlands and the environment in both the cases. An action plan may be prepared for demarcation of the wetlands and buffer zones to indicate prohibited and regulated zones and for protection of environment, having regard to the mandate of Water, Air and EP Acts.
ii. The Committee may prepare its report within two months.
SEIAA Karnataka and State PCB may revisit the EC/consents in the light of the above report, following due process of law.
Parties may act accordingly, subject to their remedies against report of the Committee or the consequential action.
25. The joint Committee/SEIAA/PCB may file their respective reports within three months with the Registrar of the Southern Bench by e-mail. The Registrar may place the matter before the Bench, if any direction is considered necessary. The reports be also placed on their respective websites for information of the stake holders.Any aggrieved party will be at liberty to take remedies against the report or to raise any surviving grievances independently.
Both the applications will stand disposed of accordingly. All pending applications also stand disposed of. A copy of this order be forwarded to CPCB, MoEF&CC, National Wetland Authority, State Wetland Authority SEIAA Karnataka, State PCB and District Magistrate by e-mail for compliance.
Sd/-
Adarsh Kumar Goel, CP Sd/-
K. Ramakrishnan, JM 21 Sd/-
Sudhir Agarwal, JM Sd/-
Brijesh Sethi, JM Sd/-
Dr. Satyagopal Korlapati, EM January 10, 2022 Original Application No. 13/2020(SZ), Original Application No. 14/2020(SZ) DV 22