National Green Tribunal
Bhoja Shetty S/O Late Jaganatha Shetty vs The Deputy Commissioner / Chairman, ... on 3 January, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.12:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No.204 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF:
1) Bhoja Shetty
S/o. Late Jaganatha Shetty
"Durga Nilaya" Upparigemane,
Yalagoli, Shivapura Post,
Karkala Taluk, Udupi District,
Karnataka - 576 112.
2) Guruprasada Acharaya
S/o. Shamaraya Acharaya
"Saiprasad Nivasa"
Yalagoli, Shivapura Village,
Karkala Taluk, Udupi District,
Karnataka - 576 112.
...Applicant (s)
Versus
1) The Deputy Commissioner/Chairman,
District Stone Crushers Licensing and Regulation Authority,
Office of the Deputy Commissioner,
"Rajathadri", Manipal, Udupi - 576 104.
2) Senior Geologist/Member Secretary,
District Stone Crushers Licensing and Regulation Authority,
Department of Mines and Geology,
1st Floor, A - Block, "Rajathadri",
Manipal, Udupi - 576 104.
3) The Member Secretary,
State Level Environment Impact Assessment Authority - Karnataka,
7th Floor, 4th Gate, M.S. Building,
Bangalore - 560 001.
4) Sri Prasanna Shetty,
Managing Partner,
M/s. Mookambika Crusher,
Sy. No.176, Shivapura Village,
Karkala Taluk, Udupi District,
Karnataka - 576 112.
...Respondent(s)
Page 1 of 20
For Applicant(s): Mr. Ranjan Shetty.
For Respondent(s): Mr. Rajat Jonathan Shaw represented
Mr. Darpan K.M. for R1, R2.
Mr. Vasanth H.K. for R3.
Mr. K.C. Ariga along with
Mr. T.S. Gopalan for R4.
Date of Judgment: 03rd January, 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
1. The grievance in this application is regarding violations of conditions imposed by the State Environmental Impact Assessment Authority (SEIAA) - Karnataka in the Environmental Clearance (EC) granted to the 4th Respondent vide their Proceedings No. SEIAA 458 MIN 2015 dated 18.09.2015. Though the applicant had challenged the Environmental Clearance (EC) granted itself, by order dated 20.09.2017, this Tribunal had observed that in this original application, the Environmental Clearance (EC) dated 18.09.2015 cannot be challenged, as it has to be challenged by a separate appeal under Section 16 of the National Green Tribunal Act, 2010 and the same cannot be challenged incidentally in this original application, after the period of limitation is over and admitted the matter only in respect of violations (if any) committed by the 4th Respondent in carrying out the mining operation.
Page 2 of 202. There was also an interim order passed by this Tribunal not to quarry any area other than the area stipulated in the Environmental Clearance (EC) dated 18.09.2015.
3. As per order dated 06.02.2020, after considering the pleadings filed by the parties, this Tribunal had passed the following order:-
1. The above case has been filed by the petitioner seeking following reliefs:-
"(i) Direct respondent no. 3 to cancel / withdraw / recall the Environmental clearance granted to respondent no.4 vide no. State Environmental Impact Assessment Authority (SEIAA) 458 MIN 2015 dated 18.09.2015.
(ii) Direct respondent No.2 to cancel/withdraw/recall the lease/licence deed No.358 measuring 2 acres and lease/licence deed No.371 measuring 3 acres executed in favour of respondent No.4
(iii) Direct respondent No.4 to stop the stone quarrying activity at Sy. No.176, Shivapura Village, Karkala Taluk, Udupi District.
(iv) and pass such other or further order or orders as to your lordship may seem fit and proper."
2. The allegation in the petition was that fourth respondent is conducting the Crusher Unit by name M/s. Mookambika Crusher at Survey No. 176 at Yalagoli, Shivapura Village, Karkala Taluk, Udupi District against the norms and without following the conditions imposed in the Environment clearance and also consent granted.
3. According to the petitioner on account of lack of pollution control mechanisms provided in the unit, dust emanates from the unit causing air pollution affecting the health of the people in the locality. They were using extensive explosives during day time at time while quarrying without providing any safety measures. It causes apprehension in the minds of the school children and senior citizens who are crossing through that area.
4. Small pieces of stones are flying and falling in nearby houses causing damage to the tile roofs of the houses. Cracks have developed due to high intensity of the blasting. Though complaints have been filed to several authorities, no action has been taken which prompted the petitioner to file this petition.
5. It is also alleged that the quarry is situated within 200 meters from the public roads and dwelling units violating the Karnataka Mines and Mineral Concession Rule, 1994.
6. The case was taken up on 20.09.2017. This Tribunal has passed the following order:-
"We have heard Mr.Ranjan Shetty, learned counsel appearing for the applicant. Issue notice to respondent. Private notice is also permitted. This application is filed under Section 14 of the NGT Act, 2010.
In so far as it relates to the prayer No.1 which reads as follows:
"Direct respondent No.3 to cancel/ withdraw/ recall the environmental clearance (EC) granted to respondent No.4 vide No.SEIAA 458 MIN 2015 dated 18.09.2015", we are of the view that the prayer in effect means challenging the EC dated 18.09.2015 and the EC can be challenged only under Section 16 of the NGT Act and that too if an appeal is filed under Section 16 of the NGT Act, the same has to be done in 30 days and there is a provision of 60 days to condone delay. Therefore, on the face of it, the prayer if it relates to challenging of EC Page 3 of 20 it is beyond the limit of condonable delay which is beyond the jurisdiction of this Tribunal.
The learned counsel appearing for the applicant would fairly submit that the prayer is not to challenge the EC, but to see that the conditions stipulated in the EC are implemented in accordance with law. It is true that the body of the application speaks about the violation of the conditions of EC by 4th respondent by indulging in indiscriminate quarrying. Recording the said statement by the applicant that the application shall relate to only complying of all the conditions of the EC granted by SEIAA dated 18.09.2015 in favour of the 4 th respondent, this application is entertained.
The learned counsel has brought to the notice of this Tribunal that the 4 th respondent has been granted EC in respect of the leased area for 3 acres. But he has been quarrying outside the lease area to a large extent causing damage to the environment. The Google map produced by the applicant shows that there is an indiscriminate quarrying and there is no demarcation of leased area. In view of the same, the application stands admitted and there shall be an interim order not to quarry any area other than the area stipulated in the EC dated 18.09.2015. The District Collector, Udupi shall ensure compliance of this order and file his report on the next date of hearing which shall also include the nature of quarrying affected by 4th respondent."
7. Thereafter it was again taken up on 07.11.2017and passed an order directing the District Collector, Udupi to file the status report. However, it is seen that it was not filed. It was again taken up on 13.11.2017 and on that day the counsel appearing for the District Collector wanted some more time to file a status report and it was adjourned for that purpose. It is seen from the file that the District Collector had filed a status report dated 12.12.2017 wherein it was observed as follows:-
"The 4th respondent Sri. Prasanna Shetty, S/o Bhujanga Shetty has granted lease licence no. 371 in Survey No. 176/p1p1 measuring 3,00 acres at Shivapura Village, Karkala Taluk. He is also issued a lease licence no.358 in the same survey number measuring 2.00 acres.
On spot inspection of quarry lease no. 371 in Survey No. 176/p1p1 measuring 3.00 acres is demarcated by boundary stones alone with GPS recording. On examination of this lease area the quarry activity is going on within the GPS reading of the lease area. Hence, the allegations of the applicant are unfounded and baseless.
On spot inspection of quarry lease no. 358 in Survey No. 176/p1p1 measuring 2.00 acres is demarcated by boundary stones along with GPS recording. On examination of this lease are of quarry activity is going on within the GPS reading of the lease area. Hence, the allegations of the applicant are unfounded and baseless.
The above said quarry license no. 371 and 358, are beside crusher safer zone area measuring 6.55 acres on the eastern of the quarry leases. In the above said crusher safer zone measuring 6.55 acres in Survey No. 176/p1p1 beside which licence no. 371 and 358 are in operation within the boundary of the licence issued. But the applicant produces the Google Map in which it is contended that there is indiscriminate quarrying by the 4th respondent beyond the boundaries of lease licence no.371 and 358 encroaching on abutting Government Land. But on the examination of the authorized officers of the Mines and Zoology Department. It is found that crusher unit is functioning within its boundary. However, the 4th respondent has stored the jelly and crusher dust outside the crusher licence area. For, which the Department of Geology has taken legal action against him, and directed him to clear the encroached area on payment of fine of Rs.10,000/- (Rupees Ten thousand only) and he has clear the encroachment of fine of Ts. 10,000/-.Page 4 of 20
But on careful examination of Google Map produced by the applicant which shows the road movement marks of vehicles from the quarry to the crusher unit.
At last but not least, there is no indiscriminating quarrying by the 4 th respondent as contended by the application except store of quarry dust and jelly outside the quarry boundary for which he is sentenced to pay fine of Rs.10, 000/- on legal action. The encroachment is vacated. These facts are for kind consideration of the Hon'ble NGT.
The report of Mines and Geology along with Google Map, with GPS boundary demarcation is produced for kind reference of the Hon'ble NGT."
8. It is also alleged in the petition that the fourth respondent is not having Environment clearance for one of the mining area and he is violating the conditions of environmental clearance. Though the matter is pending for the last three years, none have filed any statement. When the matter came up for hearing today, the learned counsel appearing for the fourth respondent submitted that earlier similar application has been filed by the petitioner as Original Application No. 244 of 2016 and the same was withdrawn by the petitioner and it was dismissed as withdrawn.
9. But, the learned counsel for the petitioner submitted that since there was an appeal provided under the Act to the Appellate Authority against granting of consent to operate, they have withdrawn the earlier application and filed this application in respect of mining. It is seen from the order dated 20.09.2017 that the matter was admitted.
10. There is no present status available as to whether both the mining sites are having environmental clearance and what is the present stage and the quantity of extraction of mineral by the lessee which aspect is missing in the status report submitted by the District Collector.
11. Under such circumstances in order to ascertain the real state of affairs, we feel it appropriate to appoint a Joint Committee comprising of District Collector, Udupi District, Senior Officer /Scientist from Regional Office, Ministry of Environment, Forest and Climate Change (MoEF&CC),Bangalore, Senior Officer from State Environment Impact Assessment Authority (SEIAA),Karnataka, and Senior Officer from Karnataka State Pollution Control Board to inspect the area in question and ascertain whether the fourth respondent is having environmental clearance for doing mining in both the lease areas, whether he is complying with the conditions imposed in the environment clearance as well as consent to operate and other clearances. Whether there is any excess mining done, if so what is the quantity, whether the fourth respondent has provided all necessary pollution control mechanism to arrest the possible pollution within the prescribed norms, whether there is any damage caused to the nearby houses as alleged by the petitioner on account of the operation of the quarry by the fourth respondent and also ascertain the Ambient Air Quality as well as the water quality in that area and if there is any violation assess the environmental compensation which has to be collected by the fourth respondent and submit a factual and action taken report before this Tribunal within a period of two months.
12. The Karnataka State Pollution Control Board will act as the nodal agency for co-ordination and also for providing necessary logistics for this purpose.
13. The committee shall submit the report to this Tribunal within the above time through e-mail @ [email protected].
14. The Registry is directed to communicate this order to the above officials immediately by e-mail so as to enable them to comply with the direction."
Page 5 of 204. By virtue of the above order, this Tribunal had appointed a Joint Committee to go into the question and submit a report. Thereafter, the matter has been adjourned from time to time for obtaining the Joint Committee report either by notification or at the request of the parties.
5. On 13.07.2021, this Tribunal had considered the Joint Committee report dated Nil, e-filed on 22.02.2021 extracted in Para (3) of the order and then, passed the following order:-
"4. The learned counsel appearing for the applicant as well as the 4th respondent submitted that they have not received the copy of the report.
5. Normally, the reports will be uploaded in the official portal of the National Green Tribunal and the parties are at liberty to get it by downloading the same, instead of waiting for serving the copies by the parties. If the parties want to file any objection to the report, they are at liberty to file the same before the next hearing date.
6. The learned counsel appearing for the 3rd respondent submitted that on the basis of the observations made at the time of inspection along with the joint committee, they have already issued proceedings, cancelling the Environmental Clearance (EC) granted to the 4th respondent and he wants to file a report to that effect before this Tribunal.
7. The learned counsel appearing for the applicant submitted that they have not received any information from the 3rd respondent, but if the submission made by the 3rd respondent is true, then the 4th respondent is not entitled to continue with the quarrying work, but they are still continuing with the same.
8. The State Environmental Impact Assessment Authority, Karnataka is directed to ascertain the above allegation and submit a further report in this regard while submitting their independent report regarding the action taken by them and serve the copy of the action taken report to the counsel appearing for the 4th respondent as well as to the applicant, so that, they can file their objection (if any) to the same without further delay.
9. It is needless to say that if the Environmental Clearance (EC) granted to the 4th respondent is cancelled by the SEIAA, Karnataka, then the 4th respondent is not entitled to do further quarrying in the area without modifying or setting aside the order passed by the SEIAA in this regard.
10. The committee has mentioned that quarrying has been done even prior to obtaining Environmental Clearance (EC), but they have not assessed the value of the same and they have not assessed the environmental compensation for unauthorized quarrying said to have been committed by them.Page 6 of 20
11. The environmental compensation assessed by the State Pollution Control Board for non-compliance of the conditions is different from assessing compensation for actual loss caused to the environment on account of the excess mining or unauthorized mining and that will have to be done on the basis of the directions given by the Hon'ble Apex Court in Common Cause Vs. Union of India & Ors. (2017) 9 SCC 499. So, the committee is directed to submit a further report considering the above aspects to this Tribunal before the next hearing date.
12. The parties are at liberty to file their objection to the committee report and the official respondents are also directed to file their further action taken report on the basis of the joint committee report and also regarding the allegations made by the applicant regarding the conduct of the 4th respondent and the committee is directed to submit a report to this Tribunal on or before 10.08.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules."
6. The case was posted to 10.08.2021 for getting further report. As per order dated 01.09.2021, this Tribunal had directed the official respondents to file their further action taken report on the basis of the recommendations made by the Joint Committee and posted the case to 24.09.2021 for that purpose. Thereafter, the matter has been adjourned from time to time for submitting further action taken report by the respective departments.
7. On 09.12.2021, this Tribunal had considered the submissions made by the counsel appearing for the SEIAA - Karnataka that some decision has been taken by the SIEAA to cancel the Environmental Clearance (EC) granted to the 4th Respondent and also recorded the submission made by the counsel appearing for the applicant that without filing a report to that effect, this Tribunal may not dispose of the matter and accordingly, the matter has been adjourned for that purpose.
8. The Joint Committee also filed a further report dated Nil, signed by some of the members on 09.11.2021 and e-filed on 16.11.2021 which reads as follows:-
Page 7 of 20 Page 8 of 20 Page 9 of 20 Page 10 of 20 Page 11 of 20 Page 12 of 20 Page 13 of 20 Page 14 of 20 Page 15 of 20 Page 16 of 20Quarry Lease Number 109 of Sudhakara Shetty is also assessed for the Environmental Compensation, though the matter is not falling under the purview of this O.A. No.204 of 2017.
Hon'ble NGT, may kindly peruse the calculation of Environmental Compensation and issue appropriate orders to the concerned in this regard."
9. When the matter came up for hearing today, the learned counsel appearing for the 3rd Respondent has filed a memo along with the proceedings of the State Environment Impact Assessment Authority (SEIAA) - Karnataka, cancelling the Environmental Clearance (EC) granted to the 4th Respondent and that was communicated to the 4th Respondent by their letter dated 02.12.2021.
10. In view of the fact that the SEIAA - Karnataka has already withdrawn the Environmental Clearance (EC) granted to the 4th Respondent, there is nothing survives in this matter.
11. The learned counsel appearing for the applicant submitted that they are still continuing with the mining activity in that area. But, the learned counsel appearing for the 4th Respondent submitted that on getting information from the SEIAA - Karnataka, cancelling the Environmental Clearance (EC), the 4th Respondent had stopped the quarrying operation and he sought permission of this Tribunal to challenge the same before the appropriate authority and that right will have to be left open.
12. Since the cancellation of Environmental Clearance (EC) is also an appealable order under Section 16 of the National Green Tribunal Act, 2010, the 4th Respondent is at liberty to challenge the same by filing an independent appeal and the legality of the order, if any passed by the Page 17 of 20 SEIAA - Karnataka can be considered by this Tribunal at that time. We are not expressing any opinion on this aspect in this proceeding.
13. As regards other proceedings initiated against the 4th Respondent by the State Pollution Control Board is concerned, they are at liberty to proceed with the same in accordance with law. The SEIAA - Karnataka as well as the Mining Department are directed to take appropriate action against the 4th Respondent, if they are continuing with the mining activity, after communication of the cancellation order of Environmental Clearance (EC) passed by the SEIAA in accordance with law.
14. The concerned authorities are at liberty to take action in accordance with law to recover the compensation, after giving opportunity to the 4th Respondent for filing their objections regarding the quantum of compensation and also for violations alleged and after giving further opportunity of hearing and then, pass appropriate orders in accordance with law and the 4th Respondent is at liberty to challenge the same before the appropriate forum, if he is aggrieved by final orders passed by the authorities in this regard.
15. So, this Original Application is disposed of as follows:-
i. The memo submitted by the learned counsel for the State Environmental Impact Assessment Authority (SEIAA) -
Karnataka that the Environmental Clearance (EC) granted to the 4th Respondent is withdrawn is recorded.
ii. The submission made by the learned counsel for the 4th Respondent that after receipt of the order passed by the Page 18 of 20 SEIAA - Karnataka, withdrawing the Environmental Clearance (EC), 4th Respondent had stopped the quarry is also recorded.
iii. The Mining Department, SEIAA - Karnataka and the Karnataka State Pollution Control Board are at liberty to initiate action against the 4th Respondent, if he had continued with mining even after the communication of withdrawal of Environmental Clearance (EC) granted, in accordance with law.
iv. As regards the recovery of environmental compensation for excess mining, violation of conditions (if any) etc. are concerned, the concerned departments are at liberty to initiate proceedings against the 4th Respondent and other leaseholder whom they have found to be violating the conditions, after giving an opportunity to the alleged violators for filing their objections and providing a hearing, if required by them and pass appropriate orders in accordance with law.
v. The right of the 4th Respondent to challenge the cancellation of Environmental Clearance (EC) as well as the order imposing compensation, if any passed, after hearing the 4th Respondent as directed above before the appropriate forum is left open.
vi. Considering the circumstances, parties are directed to bear their respective cost in the application.
vii. The Registry is directed to communicate this order to the official respondents including Mining Department, State Page 19 of 20 Environmental Impact Assessment Authority (SEIAA) -
Karnataka, Karnataka Pollution Control Board for their information and compliance of directions.
16. With the above observations and directions, this Original Application is disposed of.
Sd/-
......................................J.M. (Justice K. Ramakrishnan) Sd/-
....................................E.M. (Dr. Satyagopal Korlapati) O.A. No.204/2017 (SZ), 03rd January, 2022. Mn.
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