National Green Tribunal
George Issac vs Moef & Cc Rep. By Its Secretary on 26 October, 2021
Bench: K Ramakrishnan, K. Satyagopal
Item No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Appeal No. 88 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF
George Isaac ....Appellant(s)
Versus
Ministry of Environment, Forests & Climate Change,
Represented by its Secretary,
New Delhi and Ors. ...Respondent(s)
For Appellant(s): Mr. Harish Vasudevan.
For Respondent(s): Mr. M.R. Gokul Krishnan for R1.
Mrs. Vidhyalakshmi Vipin for R2.
Mr. E.K. Kumaresan for R3 & R4.
Mrs. V.K. Rema Smrithi for R5.
Mr. Millu Dandapani for R6.
Date of Judgment: 26th October, 2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. K. SATYAGOPAL, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. The appeal is disposed of with directions vide separate Judgment. Pending interlocutory application, if any, shall stand disposed of.
Sd/-
........................................J.M. (Justice K. Ramakrishnan) Appeal No.88/2017(SZ) 26th October, 2021. Mn. Sd/-
................................E.M. (Dr. K. Satyagopal) Page 1 of 41 Item No.1 BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Appeal No. 88 of 2017 (SZ) (Through Video Conference) IN THE MATTER OF George Isaac Aged 66 years, S/o. Isaac, Chennakkattu Kalangamara, Kadayiruppu P.O., Kolanchery, Ernakulam, Kerala - 682 311.
....Appellant(s) Versus
1) Ministry of Environment, Forests & Climate Change, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi - 110 003.
Represented by its Secretary
2) State Environment Impact Assessment Authority, Devi Kripa, Pallimukku, Pettah P.O., Trivandrum, Kerala - 695 024.
Represented by its Member Secretary.
3) The Director of Mining and Geology, Directorate of Mining and Geology, Kesavadasapuram, Pattom P.O., Thiruvananthapuram, Kerala - 695 004.
4) District Collector, Ernakulam District, District Collectorate, Civil Station, Kakkanad, Ernakulam - 682 030.
5) Kerala State Pollution Control Board, Ernakulam District, District Office, Ernakulam Represented by the Environmental Engineer.
6) M/s. Slab & Aggregates, Kadayirippu P.O., Kolenchery (via), Ernakulam District - 682 311.
Represented by its Managing Partner Mr. Joseph John.
... Respondent(s)
Page 2 of 41
For Appellant(s): Mr. Harish Vasudevan.
For Respondent(s): Mr. M.R. Gokul Krishnan for R1.
Mrs. Vidhyalakshmi Vipin for R2.
Mr. E.K. Kumaresan for R3 & R4.
Mrs. V.K. Rema Smrithi for R5.
Mr. Millu Dandapani for R6.
Judgment Reserved on: 21st September, 2021.
Judgment Pronounced on: 26th October, 2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. K. SATYAGOPAL, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The above appeal has been filed against the grant of Environmental Clearance (EC) to the 6th respondent by the 2nd respondent/State Environment Impact Assessment Authority, Kerala for conducting building stone quarrying in Sy. No. 320/3 (P) and 320/2 (P) in Aikaranadu North Village in Kunnathuadu Taluk, Ernakulam District over an area of 8.6630 hectares as per Proceedings No. 519/SEIAA/EC3/3823/2014 dated 01.06.2016.
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2. It is alleged in the appeal memorandum that the appellant was having agricultural land in the same village having an extent of 3.25 acres which is hardly 75 meters away from the existing quarry of 6th respondent. The 6th respondent was granted lease in respect of this area by the 3 rd respondent as per their proceedings dated 11.05.2009, which is valid up to 28.06.2021 evidenced by Annexure - A2 and the 6th respondent executed Annexure - A3, Lease dated 11.05.2009.
3. The 6th respondent had applied for Environment Clearance (EC) by submitting Form-I Application dated 10.07.2014 evidenced by Annexure - A4. Even earlier, they were conducting quarrying without obtaining Environmental Clearance (EC) and 3rd respondent issued show-cause notice dated 09.01.2015, asking them to stop the mining as they were conducting the same in violation of EIA Notification, 2006 without obtaining Environmental Clearance (EC). After obtaining exhibit Annexure
- A5 viz., Show cause notice, the 6th respondent had stopped their mining activities from 09.01.2015. Even as per Form-I application submitted by the 6th respondent, they have admitted that they were conducting mining from 2009 without obtaining Environmental Clearance (EC) which will be in violation of EIA Notification, 2006. As EIA Notification, 2006 mandates prior Environmental Clearance (EC), if it is more than 5 hectares of mining area.
4. The Expert Appraisal Committee in their 46th meeting held on 29th - 30th September, 2015 observed that 6th respondent was conducting mining for the last 40 years and since, they were not satisfied with the previous scale of mining which has been done by the 6th respondent, they deferred the consideration of the matter and decided to inspect the area evidenced by Page 4 of 41 Annexure - A6, Minutes of the State Expert Appraisal Committee on its 46th Meeting held on 29th - 30th September, 2015. The Sub-Committee of the State Expert Appraisal Committee conducted field inspection of the 6th respondent quarry on 02.12.2015 and observed the following:
There were no benches seen in the mining operations which were already conducted by the 6th respondent. It was observed that heavy dust and sound pollution was present in the mining operations conducted by the 6th respondent and hence it was recommended that whole area required needed planting of trees.
The approach road to and from the quarry is not at all maintained.
It was observed that no measures were taken to limit the fly rock from the quarry.
No dust suppression mechanism was seen and hence was recommended to be installed.
5. Inspection report dated 02.12.2015 of the Sub-Committee of State Expert Appraisal Committee is evidenced by Annexure - A7. The proposal was placed before the 53rd meeting of the SEAC on 25th - 26th February, 2016 as Item No. 53.07 and without making observation regarding the impact of mining and the lack of bench cutting etc. observed by the inspection team, they have recommended the project for issuance of Environmental Clearance (EC) evidenced by Annexure - A8, Minutes. Based on that, the 2nd respondent without considering the fact that it was a case of violation and 6th respondent is not entitled to get post-facto clearance, they issued the impugned Environmental Clearance (EC).
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6. Though in the year 2005, the Aikarnadu Grama Panchayath had declined to grant permission for conducting quarrying when another person applied for the same by their resolution dated 17.05.2005 evidenced by Annexure - A9. The grant of Environmental Clearance (EC) was challenged by the appellant on the ground that (1) it will amount to post- facto clearance which is not permissible under law and (2) the 6th respondent had suppressed material fact of the extent of mining conducted by them in the property and also suppressed the fact of existence of schools, church and other important institutions within a distance of 1 km and as such, the State Expert Appraisal Committee or the SEIAA, Kerala had no occasion to consider the impact of quarrying on these institutions.
7. Further, the Expert Appraisal Committee as well as SEIAA, Kerala have failed to note the possible ecological degradation on environment on account of permitting the quarry in that area. No appraisal was done regarding the noise and vibration which is likely to be emitted on account of the operations of the same. The existences of houses very near to the quarry within a distance of 75 meters were not considered. The possibility of over-burdening of mining soil to be done by 6th respondent was also not considered properly. So according to the appellant, the Environmental Clearance (EC) is liable to be set aside for above reasons.
8. Further, the appellant had alleged in the appeal memorandum that the proceedings of Environmental Clearance (EC) was approved only on 27.06.2016 and only thereafter, they have issued Environmental Clearance (EC), but the same was not uploaded in the public domain of the portal of the SEIAA, Kerala. Further, only during the 3rd week of July, 2016, when the appellant came to know about the re-starting of the quarry by 6th Page 6 of 41 respondent, he enquired about the same by sending an application under Right to Information Act, 2005 to the office of 2nd respondent on 19.07.2016 for furnishing the documents leading to issuance of clearance to the 6th respondent and as per Letter No. 1131/EC2/2016/SEIAA dated 02.07.2016, the office of the 2nd respondent instructed the appellant for payment of fee and on 19.07.2016, he replied to the 2nd respondent with the copy of the payment receipt and on 27.08.2016, the 2nd respondent had sent the documents to the appellant through post which the appellant received on 05.09.2016 and immediately he filed the appeal before the Circuit Bench at Ernakulam within 30 days from 05.09.2016. So, according to the appellant, the appeal is filed within time and he prayed for allowing the appeal.
9. Second respondent/SEIAA, Kerala filed reply affidavit contending that Mr. Joseph John, Managing partner of the 6th respondent firm made an application dated 10.07.2014 for Environmental Clearance (EC) under EIA Notification, 2006 for their quarry project in Sy. No. 320/2 and 320/3 at Aikarunadu North Village, Kunnathunadu Taluk, Ernakulam for an area of 8.6330 hectares. Since, it is a "B Category" project falling under activity I(a)(i) as per the Schedule of EIA Notification, 2006 (since it is below 50 ha) and as per O.M. No. L-11011/47/2011-IA-II(M) dated 18.05.2012 of MoEF&CC. It was further categorized as "B-2" as per the O.M. No. J- 13012/12/2013-IA-II(I) dated 24.12.2013 of MoEF&CC as project is below 25 hectares.
10. It is further contended by the 2nd respondent that the proposal was placed in 46th meeting of SEAC held on 29th - 30th September, 2015 and the Committee deferred the item for site inspection. The sub-committee of Page 7 of 41 SEAC conducted site inspection on 02.12.2015 and submitted the report. The proposal was again placed before the committee in their 53 rd meeting held on 25th - 26th February, 2016 and the Committee after examination of the mining plan, pre-feasibility report, field inspection report and all other documents submitted, decided to recommend for issuance of Environmental Clearance (EC) subject to general conditions and eight specific conditions. The 52nd meeting of SEIAA, Kerala held on 29.04.2016 considered the proposal and decided to grant Environmental Clearance (EC) as recommended by the SEAC. The Sub-Committee of State Expert Appraisal Committee conducted the site inspection on 02.12.2015 and submitted a detailed report before the State Expert Appraisal Committee, Kerala. After consideration of the documents, the State Expert Appraisal Committee had recommended the project and after deliberations, SEIAA had granted the same. There was no complaint regarding the conduct of mining by the 6th respondent and there was no violation of Environmental Clearance (EC) conditions as alleged and if it was brought to their notice and the violations are found to be true, they will take appropriate action including cancellation of Environmental Clearance (EC) after hearing the project proponent. The appraisal was done properly and there is nothing vitiating the appraisal of the project either by the State Expert Appraisal Committee or by the SEIAA, Kerala. There was no evidence of any environmental degradation caused on account of mining operation by the 6th respondent established by the appellant. There is no sufficient ground made out for setting aside the Environmental Clearance (EC) granted. So, they prayed for dismissal of the appeal.
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11. Third respondent filed a detailed counter contending that 6th respondent was granted Annexure - A2, Quarry Lease by this respondent vide proceeding Order No. 20/2009-2010/2875/M3/2009 dated 22.04.2009 for a period of 12 years for the extraction and removal of Granite (building stone) from 8.6330 ha in Sy. No.320/3 pt and 320/2pt of Aikaranadu North Village, Kunnathunadu Taluk, Ernakulam District. As contemplated under Rule 32 of Kerala Minor Mineral Concession Rules, 1967, Annexure - A3 Quarrying Lease was executed on 11.05.2009 in pursuance to Annexure
- A2, order of grant. The validity period of the lease is from 29.06.2009 to 28.06.2021. The 6th respondent had obtained all necessary licenses including Consent to Operate from Kerala State Pollution Control Board (valid up to 30.05.2021) and D&O license from Aikkaranadu Grama Panchayath (valid upto 11.12.2021), explosive license with validity upto 31.03.2021 and Environmental Clearance (EC) from SEIAA, Kerala having a validity up to 31.05.2021. Presently the lessee has opted for registered metal crusher compounding as per Registration No. 130 of 2020- 21/RMCU/EKM/4703/M3/2020 for the year 2020-2021. Mining plan submitted by the 6th respondent was approved on 18.06.2015 and the modified mining plan was approved on 01.06.2020 by the Geologist Ernakulam. The lease area of 6th respondent is having the distance clearance stipulated in the Kerala Minor Mineral Concession Rules, 1967/2015.
12. The 3rd respondent further contended that the quarry in question was in operation from 1985 onwards with valid lease granted by Director of Mining and Geology details of which are as follows: Page 9 of 41
a. Proceedings order No. 506/84-85/2647/G13/84, dated
13.02.1985 for an area of 6.8637 Ha of land comprised in Sy. Nos. 407/2A, 407/2B, 407/1-1, 428/1A, 406/6A, 406/6B, 406/6C, 406/6D, 406/4A, 406/4B, 406/4C, 406/3-1, 406/1B, 406/3-2 of Aikaranadu North Village, Kunnathunadu Taluk, validity of 12 years (expired on 28.06.1997).
b. Proceedings order No. 260/98-99/813/M4/94; dated 21.07.1998 for an area of 9.4493 Ha of land comprised in Re-Survey Nos. 320/2pt, 320/3pt of Aikaranadu North Village, Kunnathunadu Taluk, validity 12 years (expired on 28.06.2009). c. Proceedings order No. 20/2009-10/2875/M3/2009, dated 22.04.2009 for an area of 8.6630 ha of land comprised in Re- Survey Nos. 320/2pt, 320/3pt of Aikaranadu North Village, Kunnathunadu Taluk, validity for 12 years (upto 28.06.2021).
13. Prior to Kerala Minor Mineral Concession Rules, 2015, no mining plan was insisted for extraction of minor mineral. In compliance of the directions of the Hon‟ble Supreme Court in Deepak Kumar & ors. Vs. State of Haryana1, the Government of Kerala in supersession of Rules of 1967 have promulgated the Rules of 2015, invoking Section 15(1) of the Act of 1957. Rule 53 of the Rules of 2015 contemplates for an approved mining plan, which is a pre-requisite for grant of quarry permit/quarrying lease and mining plan has to be approved by the competent authority. The Government of Kerala by Gazette Notification dated 05.06.2015 (published on 12.06.2015) have appointed senior Geologist/Geologist of the District offices concerned as competent authorities under Rule 2 (1)(iii) of the 1 2012 (4) SCC 629 Page 10 of 41 Rules 2015. It was invoking the said power so conferred on the Geologist, that mining plan submitted by the 6th respondent was approved on 18.06.2015 and the modified mining plan was approved on 01.06.2020 by the Geologist, Ernakulam.
14. Annexure - A2, Lease was issued under Rule, 1967 for an annual production of 25,000 metric tonnes and when 2015 rules came into force, approved mining plan and Environmental Clearance (EC) was made mandatory and the existing lessee was required to submit the mining plan and was permitted to mine the quantity prescribed in the approved mining plan. Mining plan submitted by 6th respondent was approved on 18.06.2015 and the modified mining plan was approved on 01.06.2020 by the Geologist, Ernakulam. The approved mining plan of the 6th respondent permits an average production of 51,413 metric tonnes per year and 6th respondent executed the additional deed for the enhanced quantity on 07.02.2020 as per proceedings Order No. 585/2019- 20/11134/M3/19/DMG dated 17.01.2020 of the Director of Mining and Geology to enhance the average quantity of production from 25,000 tonnes to 51,413 tonnes.
15. The Hon‟ble High Court of Kerala by Judgement dated 25.03.2019 in Binoy Kumar Vs. State of Kerala and Ors.2 held that no quarrying operations can be carried out by a concession holder over and above the quantity, than what is prescribed in the order of grant and that of in the mining lease, which in this particular case is 25,000 metric tonnes per year. In compliance of the dictum laid down by the Hon‟ble High Court of Kerala in Binoy Kumar case, the Director of Mining and Geology issued a general 2 2019(2) KLT 227 Page 11 of 41 communication on 06.04.2019 to all Geologists concerned whereby they were directed to issue movement permits to the respective concession holders in accordance with the quantity prescribed in their respective grants/lease deeds. Individual communications in similar lines were also issued to concession holders as well, which was challenged before the Hon‟ble High Court in Writ Petition (Civil) No. 17679 of 2019 and connected matters. The Learned Single Judge by Judgment dated 29.11.2019 in George Antony & Ors. vs. Director of Mining and Geology, Thiruvananthapuram & Ors 3 permitted the department to execute additional lease deeds, if the lessee has to mine in excess of the lease order and only if he has an approved mining plan and Environmental Clearance (EC) for the purpose.
16. The 6th respondent, who had approved mining plan and Environmental Clearance (EC) approached the Hon‟ble High Court of Kerala seeking the benefit of George Antony case stated above to execute additional mining/quarrying lease, the same was also allowed by the Hon‟ble High Court by virtue of Judgement dated 19.12.2019 in Writ Petition (Civil) No. 34883 of 2019. The Hon‟ble High Court also took note of the contention of the department that in the event of execution of additional mining lease, the concession holder is permitted to extract mineral over and above the quantity prescribed in the lease and therefore, it amounts to expansion, for which, he requires a valid Environmental Clearance (EC). The 6th respondent executed the additional deed for the enhanced quantity on 07.02.2020 as per Proceedings Order No. 585/2019- 20/11134/M3/19/DMG dated 17.01.2020 of the Director of Mining and 3 2020 (1) KLT 1 Page 12 of 41 Geology to enhance the average quantity of production from 25,000 tonnes to 51,413 tonnes.
17. Annexure - A2, Lease Order to the 6th respondent was sanctioned without Environmental Clearance (EC) for an area more than 5 ha. When the same was brought to their notice, stop notices were issued to all such quarries as per Letter No. 896/M3/2015 dated 18.06.2015 and in obedience to the same, District Geologist also issued stop memo vide DOE/1458/E2/15 to the 6th respondent. Stop memo was withdrawn on 01.07.2016 by the Geologist, after the lessee produced the Environmental Clearance (EC). Subsequent to this, the 6th respondent commenced quarrying operations only after obtaining Environmental Clearance (EC).
18. The Geologist, Ernakulam inspected the lease area on 03.03.2020 and reported that there are no residential or public structures within the statutory distance clearance of Kerala Minor Mineral Rules, 1967/2015 and the house of the appellant is on the other side of hillock in which quarry is working. The chances of falling of rock pieces on the house of the appellant while blasting is remote. Geologist, Ernakulum also reported that area on northern side of the lease is of the quarry owner and the land of the appellant is still further north of the same. The allegation of dumping of overburdens is not true. The findings of the Geologist, Ernakulam, after conducting the site inspection was as follows:-
a. The appellant‟s residential building is located outside the statutory distance limit stipulated in KMMC Rules, 2015. It is located towards north of the quarrying lease area, in other side of the flank of the hillock where quarry is working. Hence the Page 13 of 41 chances of rock pieces or boulders falling on the petitioner‟s residence are nil.
b. At present the quarrying activities in the lease area proceeds by forming benches.
c. The appellant‟s averment about the chances of landslide due to heavy excavation of ordinary earth from land is not true. d. The lessee has not dumped ordinary earth in the said land. In fact the area under quarrying activity has no overburden.
19. The respondent is not answerable to the legality of issuance of Environmental Clearance (EC) and that has to be answered by the concerned department. So, they prayed for passing appropriate orders after accepting their contentions.
20. Sixth respondent filed counter contending that the appeal is not maintainable. The appeal is barred by limitation as it was filed beyond 30 days and 60 days of condonable period provided under proviso to Section 16 of the National Green Tribunal Act, 2010. The Environmental Clearance (EC) was granted on 01.06.2016 and the appeal is filed only on 18.10.2016 and on that ground, the appeal is liable to be dismissed. The appellant as well as the Managing Partner of the sixth respondent unit are close relatives and he is the nephew of the appellant and he was aware of the existence of the mining operation in that area since long time. Even the appellant had contended that the mining operation of the 6th respondent was being undertaken in the neighbouring lands since 40 years, he had not raised any objection regarding the same. So, the allegation that he came to know about the grant of Environmental Clearance (EC) only when he Page 14 of 41 received the same through post on the basis of his Right to Information application is not correct and such an allegation was made only for the purpose of saving limitation and nothing more.
21. Though there was provision in the Environmental Clearance (EC) that in the case of violation of conditions or suppression of facts, the same is liable to be revoked, he had not approached the authorities informing them about the violations, but he had approached this Tribunal to challenge the Environmental Clearance (EC) granted by filing the appeal after the period is over. The 6th respondent earlier purchased property from Mr. George Isaac (the appellant herein) vide Sale Deed No. 376/77 dated 15.11.1976 in Sy. No.406/2/1 having an extent of 0.3298 ha of Sub-Registrar Office, Puthencruz. His brother Joseph Isaac has also sold portion of his property to the 6th respondent vide Sale Deed No. 359/77 dated 15.11.1976 for portion of land in Sy. No.406/2/2 having an extent of 0.3298 (81 cents) of Sub-Registrar Office, Puthencruz. Both these properties are lying adjacent to the quarry and were subject to mining many years back to which the appellant raised no objections.
22. It is further contended that the sixth respondent was conducting quarrying since the year 1970 much before the EIA Notification, 2006. This is one of the oldest quarries in that region and main source of income for many people in that region is by providing employment in that quarry run by the 6th respondent. The 6th respondent also obtained sales tax registration in the year 1971. In the year 1970, the system followed was called „Advance Royalty System‟ where the 3rd respondent used to issue permits to the 6th respondent for a specific quantity to be mined upon payment of an advance amount. Upon expiration of the said quantity, fresh advance Page 15 of 41 amount had to be given for obtaining further mining. This system was followed by the 3rd respondent until 1985 from when it was required that a lease agreement to be entered into for the purpose of mining. The first lease deed was granted in favour of the 6th respondent on 29.06.1985 by the 3rd respondent evidenced by Annexure R6(a) and then, it was continuously renewed as per the terms and conditions of the lease agreement. The 6th respondent had later executed the lease agreement dated 11.05.2009 evidenced by Annexure R6(b) and it was followed by the Government Order No. 20/2009-10/2875/M3/2009 evidenced by Annexure R6(c). No Environmental Clearance (EC) was required for conduct of quarry earlier and they required only requisite license to be obtained from the 3rd respondent which they have obtained. The appellant had never raised any objection regarding the conduct of quarry by the 6th respondent to any of the authorities earlier.
23. On the basis of the decision of the Hon‟ble Apex Court in Deepak Kumar case, the 1st respondent issued Circular No. MoEF O.M. No. L- 11011/47/2011-IA.II (M) dated 18.05.2016 whereby it was directed that quarrying of minor minerals also requires Environmental Clearance (EC). Annexure - A1, Environmental Clearance (EC) is dated 01.06.2016 and the same was issued after examining all aspects and after perusing the Judgement of Hon‟ble Apex Court mentioned above. The Environment Impact Assessment Study was entrusted to M/s. Creative Engineers & Consultants, Chennai which is accredited under the National Accreditation Board for Education and Training (NABET), Quality Council of India. It was considered by the State Expert Appraisal Committee in its meeting held on 29th - 30th September, 2015 evidenced by Annexure - A6. Page 16 of 41 They deferred the decision and wanted to have inspection of the area. Accordingly, the Sub-Committee of the State Expert Appraisal Committee conducted field visit on 02.12.2015 and submitted its report evidenced by Annexure - A7 produced along with the appeal memorandum. It was mentioned that there was no streams and waste water in the quarry is collected in a pond. So, there is no possibility of any interruption of any stream or water bodies and it was not located on the river bed or any such surface.
24. In Annexure - A7, it was only mentioned that certain additional conditions will have to be included when the Environmental Clearance (EC) was granted and the same will have to be followed by the 6th respondent. They are following the conditions laid down in Annexure - A7 and further laid out in Annexure - A8. There was no possibility of noise pollution. They had developed 3 ha of land on the southern side of the lease area with green belt/plantation. It was consisting more than 5 ha adjacent to lease boundaries on southern and western side of the lease area which is in the possession of the lessee. They had planted trees like Rubber, Teak, Coconut, Mango, Papaya, Neem, Badam and Nelli. They required water of 10 KLD for the purpose of sanitary needs, dust suppression, crushed water sprays and green belt developments and it was being met from the bore- well and mine sump already existing in the quarry. After obtaining Environmental Clearance (EC), Pollution Control Board also granted Consent to Operate dated 20.06.2018 evidenced by Annexure R6(e). They had also obtained explosive licenses under Explosive Rules evidenced by Annexure - R6(f). They had complied with all the conditions and the Environmental Clearance (EC) was granted only after considering all these Page 17 of 41 aspects, which does not require any interference. So, they prayed for dismissal of the appeal.
25. The 6th respondent filed additional counter affidavit reiterating the contention that the appeal was barred by limitation as it was filed beyond 30 days and also beyond the condonable period of 60 days provided under proviso to Section 16 of National Green Tribunal Act, 2010. The project proponent had made publication about the issuance of Environmental Clearance (EC) in local newspapers namely, Mathrubhumi Daily dated 03.07.2016 produced as Annexure - R6(g) and also in Deshabhimani Daily dated 02.07.2016 evidenced by Annexure - R6(h). So, the period will have to taken as date of publication as the date of communication and they ought to have taken steps to get the same, but he had not taken any steps and relied on the application filed by him under Right to Information Act, 2005 for this purpose which is not sustainable in law. According to them, appeal is not maintainable and the same is liable to be dismissed.
26. The 6th respondent also filed another additional affidavit contending that EIA Notification, 1994 dated 27.01.1994 was followed by an explanatory note dated 04.05.1994, where it was specifically stated that mining activities which have been carried prior to coming into force of this notification need not obtain Environmental Clearance (EC) and they need only obtain No Objection Certificate from the State Pollution Control Board, which was evidenced by Annexure - R6(i), Notification. Further, even as per EIA Notification, 2006 dated 14.09.2006, a clarification was issued on 02.07.2007 by the 1st respondent wherein they have mentioned that all such mining projects which do not require Environmental Clearance (EC) under EIA Notification, 1994 could continue to operate Page 18 of 41 until the next renewal of the mining lease is due evidenced by Annexure - R6(j), Notification. This was approved by the Hon‟ble Apex Court in the decision reported in Common Cause vs. Union of India 4 . The mining lease for the 6th respondent was due for renewal in 2009 and Annexure - R6, Lease Agreement dated 11.05.2009 and renewed lease was issued by the State Government. At that time, the 6th respondent was not aware of the Environmental Clearance (EC) being required for operating the quarry and nor the same was insisted by the Government. Only when they received stop memo from the Mining Department, they came to know about the fact that it requires Environmental Clearance (EC) and immediately they have applied for Environmental Clearance (EC) and obtained the same. So, according to them, the appeal is not maintainable and none of the contentions raised by the appellant are sufficient to set aside the Environmental Clearance (EC) granted.
27. The 5th respondent filed a status report as directed by this Tribunal by order dated 07.07.2020, wherein they have mentioned that the Board has issued Consent to Operate to the 6th respondent quarry by their Proceedings dated 08.02.2016 which was valid upto 30.06.2018 and it was issued after complying with the siting criteria available at that time. The 6th respondent had also obtained Environmental Clearance (EC) from the SEIAA, Kerala by their Proceedings dated 01.06.2016 and the quarry was satisfying the distance criteria provided under Circular No. PCB/HO/Circular-01/03/2017/B dated 10.10.2017, as per which the minimum distance required is 50 meters from the residential buildings, places of worship, educational institutions, public buildings, public road, river, lake, railway line, bridges etc. The Consent to Operate was renewed 4 2017 (9) SCC499 Page 19 of 41 by the Board by their Proceedings dated 19.04.2018, evidenced by Annexure - R5(a).
28. Heard learned counsels Mr. Harish Vasudevan for the appellant, Mr. M.R. Gokul Krishnan for 1st respondent, Mr. E.K. Kumaresan for the State Departments/Respondents No.3 & 4, Mrs. Vidhyalakshmi Vipin for the 2nd Respondent, Mrs. V.K. Rema Smrithi for Kerala State Pollution Control Board/5th Respondent and Mr. Millu Dandapani for the project proponent/6th Respondent.
29. The Learned Counsel appearing for the appellant argued that there were suppression of material facts and also they did not disclose the fact that it was a running quarry and as such it ought to have been treated as a violation category. If that be the case, the 2nd respondent should not have entertained the application and there is no provision for granting ex-post facto clearance under EIA Notification, 2006, regularising the earlier violation and as such, the Environmental Clearance (EC) granted is liable to be set aside on this ground. Since, this fact was not mentioned in the Form-I application and that was considered by the Expert Appraisal Committee on the basis of the inspection conducted by them noting certain violations, they ought to have rejected the application for giving false information instead of proceeding with the matter as provided under Para 7 of the EIA Notification, 2006.
30. The learned counsel appearing for the appellant further argued that the impact of the quarry was not properly considered and the violation aspect and compensation payable for violations committed were also not properly considered by the issuing authority or the Expert Appraisal Committee and as such, there was no proper application of mind and on Page 20 of 41 that ground, the same is liable to be set aside. Further, the authorities failed to note the fact that it was having an extent of more than 5 hectares and as such, even as per 1994 notification, they require Environmental Clearance (EC). Assuming that it is not applicable, they ought to have obtained Environmental Clearance (EC) at the time of renewal as per 2006 Notification, which they have not obtained. They had also contended that there was no evidence to show as to when Environmental Clearance (EC) was uploaded either by the issuing authority or by the project proponent and merely because, it was published in the newspaper on a particular date is not sufficient to invoke knowledge or communications, unless the Environmental Clearance (EC) under challenge is made available in the public domain for the public to obtain the same without any difficulty and giving them an opportunity to challenge the same before the appropriate authority. He had relied on the decision reported in Utkarsh Mandal vs. Union of India & Ors.5 and Pushp Jain Vs. Union of India6 in support of their case.
31. On the other hand, the Learned Counsel appearing for the SEIAA, Kerala argued that the Environmental Clearance (EC) was granted at the time when 2017 Notification issued by the MoEF&CC regarding violation cases was not issued and there was no prohibition for considering the Environmental Clearance (EC) at that time by SEIAA. Further, they have considered all the aspects and since all criteria are being satisfied by the 6 th respondent after proper appraisal by the Expert Appraisal Committee on their inspection and on the basis of their recommendations, SEIAA, Kerala 5 W.P. (Civil) No. 9340/2009 6 O.A. No. 172 of 2014 Page 21 of 41 has granted the same and there is no illegality committed by them and the appeal is barred by limitation.
32. The learned counsel appearing for the State Departments argued that when it was brought to their notice that the 6th respondent was not having Environmental Clearance (EC), they have directed such quarries to be closed and they should not operate without getting Environmental Clearance (EC). Accordingly, the 6th respondent closed the quarry and after obtaining Environmental Clearance (EC), the same was re-called. They obtained all necessary permission and mining plan etc. as required under Kerala Minor Mineral Concessions Rules, 2015.
33. The learned counsel appearing for the 6th respondent argued that appeal is not maintainable as barred by limitation and the appellant being the close relative of the Managing Partner of the 6th respondent, he cannot pretend ignorance about the Environmental Clearance (EC) granted. The learned counsel also argued that granting of Environmental Clearance (EC) was published by the project proponent in two newspapers dated 02.07.2016 and 03.07.2016 and if that date is taken as the starting point of limitation, then also the appeal filed is beyond the period provided under Section 16 and as such, the appeal is not maintainable.
34. The learned counsel for the 6th respondent also argued that as per 1994 Notification, those quarries which are operating prior to coming into force of that notification do not require any Environmental Clearance (EC) till the time of their renewal and the renewal was made only in the year 2009 by the time 2006 Notification has came into force, but due to some ignorance, the 6th respondent could not obtain the same. When they came to know about the necessity of Environmental Clearance (EC), they Page 22 of 41 immediately applied and obtained the same. The grounds alleged are not sufficient to set aside the Environmental Clearance (EC) granted.
35. We have considered the submissions made by the learned counsel appearing for the appellant and respondents and also perused the documents.
36. The points that arise for consideration are:
(i) Whether the appeal is barred by limitation?
(ii) Whether the Environmental Clearance (EC) granted to 6th
respondent is liable to be set aside for any of the reasons stated by the appellant?
(iii) Assuming that the Environmental Clearance (EC) has to be sustained, whether any further direction can be issued by this Tribunal, if it is found that it is a violation case as at the time when Environmental Clearance (EC) was granted, the violation notification issued by the MoEF&CC dated 14.03.2017 was not issued which was issued only later?
(iv) Relief and cost. Point (i):
37. The learned counsel appearing for the 6th respondent vehemently argued that the appeal is barred by limitation, as it was filed beyond 90 days time provided including the condonable period under proviso to Section 16 of the National Green Tribunal Act, 2010 as being a relative of the Managing Partner of the 6th respondent concerned, he was aware of the proceedings and also the issuance of Environmental Clearance (EC) was published in Page 23 of 41 the local newspapers namely, Mathrubumi and Deshabhimani Daily on 03.07.2016 and 02.07.2016 respectively and as such, he cannot pretend ignorance of the same.
38. On the other hand, the learned counsel appearing for the appellant argued that Environmental Clearance (EC) was not uploaded either by the project proponent or by the State Environment Impact Assessment Authority (SEIAA) and though it was said to have been issued on 01.06.2016, there is no possibility of uploading the same as the documents produced by the appellant will go to show that till 27.06.2016, the draft order was not approved and only thereafter, the final order could have been issued and only thereafter, they could have uploaded the same. He came to know about the same only when he applied under the Right to Information Act and thereafter, he got the same through post and immediately, he filed the appeal within 30 days from the date of receipt of the same.
39. It is an admitted fact that appeal has to be filed within 30 days from the date of communication of the order under Section 16 of the National Green Tribunal Act, 2010 and proviso to Section 16 of the Act provides further condonable period of 60 days and the Tribunal has no power to extend any further time to condone the delay and receive the appeal, if it is filed beyond the outer time limit of 60 days provided under proviso to Section 16 of the National Green Tribunal Act, 2010. Further, in the case of a party to the proceeding, the date of communication can be reckoned very easily as the date on which it was received by them can be reckoned as the date of communication. The question as to whether what amounts to communication has been considered by the Principal Bench of National Green Tribunal, New Delhi in Save Mon Region Federation & Anr. Vs. Page 24 of 41 Union of India & Ors.7 wherein, the Principal Bench has held that the date of communication as regards the non-party to the proceedings will be the date on which the Environmental Clearance (EC) was made available in the public domain for the general public to obtain without any difficulty and this aspect has been considered by this Bench in Meenava Thanthai K.R. Selvakumar Vs. Chairman, NCZMA & Ors. 8 dated 26.02.2020 as well. Further, when three or four modes were provided by different parties to be complied with under the EIA Notification regarding the publication of issuance of Environmental Clearance (EC), then first of such occurrence will be reckoned as the date of communication or knowledge to the general public. But in all these cases, unless the Environmental Clearance (EC) is made available in the public domain to be obtained without any difficulty for the people, then mere publication in the newspapers will not be of any avail to reckon the period of limitation to file the appeal as the date of communication.
40. In this case, it is seen from the file produced by the SEIAA that though the minutes were drawn, deciding to issue Environmental Clearance (EC) to the 6th respondent on 01.06.2016 and after correction in the draft, put for approval only on 27.06.2016 and the fact that the project proponent also made the publication only on 02.07.2016 and 03.07.2016 will indicate that the same ought to have been obtained only after 27.06.2016 but prior to 02.07.2016. Neither in the counter statement filed by the SEIAA nor by the project proponent had they mentioned about the date of uploading of the Environmental Clearance (EC) in their respective official portals, so as to 7 (2013) 1 All India NGT Reporter, PB Page 1 8 O.A. No.02 of 2017 Page 25 of 41 make it available in the public domain for the public to know about the same.
41. So under such circumstances, it cannot be said that the Environmental Clearance (EC) was available in the public domain for the appellant to get it, so as to challenge the same within the time as provided under Section 16 of the National Green Tribunal Act, 2010.
42. It is seen from the appeal memorandum that he had categorically stated that when he came to know about the starting of quarry by the 6th respondent, he applied under the Right to Information Act to the SEIAA on 19.07.2016, and he received the communication, requesting him to remit the necessary fee and on information of payment, it was sent to him through post on 27.08.2016 and he received the same on 05.09.2016 and he filed the appeal before the Circuit Bench at Kochi within 30 days thereafter and it was taken up for hearing on 29.09.2016 after numbering the same originally as Appeal No.51 of 2016. So, if 05.09.2016 was reckoned as the date on which he obtained the Environmental Clearance (EC) as date of communication, then the appeal filed by the appellant was within time i.e. 30 days as provided under Section 16 of the National Green Tribunal Act, 2010.
43. Even assuming that the date of publication in the newspapers was taken as the date of communication, then the date of communication will be 02.07.2016 and the appeal ought to have been filed on or before 01.08.2016, with a further condonable period of 60 days. But, the appeal was filed within 60 days of the expiry of the prescribed time of 30 days and the reasons stated by the appellant for not filing the appeal in time appears to be genuine and convincing and as such, it cannot be said that the appeal Page 26 of 41 was filed beyond 90 days period provided under the Act and as such, the appeal is not maintainable and has to be dismissed as barred by limitation. So, the contention raised by the 6th respondent that the appeal is barred by limitation is unsustainable in law and the same is liable to be rejected.
44. We hold that the appeal is maintainable and filed within the limitation period as provided under Section 16 of the National Green Tribunal Act, 2010. The point is answered accordingly.
Point No. (ii) to (iv):-
45. The main ground on which the Environmental Clearance (EC) was challenged by the appellant was that it was an ex-post facto clearance and the SEIAA has no power to entertain the same and it ought to have been treated as a violation case, those aspects were not properly considered. Further, the suppression of fact regarding the existence of religious and other sensitive institutions within 1 Km from the quarry. Further, the violations noted by the committee which inspected before recommending the project was also not properly considered by the authorities before recommending and issuing the Environmental Clearance (EC).
46. It is an admitted fact that the 6th respondent was conducting the quarry in that area from 1985 onwards and the quarry was in existence even prior to the EIA Notification issued in the year 1994 viz., the EIA Notification, 1994. Since it is having extent of more than 5 Hectares and even as per that notification, the lease holder has to obtain Environmental Clearance (EC) but by virtue of clarification issued by the MoF&CC relied on by the 6th respondent namely dated 04.05.1994 evidenced by Annexure - R6 (J), it is clarified that those quarries which are operating prior to 1994 can continue Page 27 of 41 without obtaining Environmental Clearance (EC) till the date of renewal, but they will have to obtain necessary No Objection Certificate from the State Pollution Control Board. Further, the clarification relied on by the 6 th respondent produced along with the additional counter statement of the MoEF&CC vide their Circular No.J-15012/35/2007-IA.II(M)-Part dated 02.07.2007, clarified that all mining leases having more than 5 Hectare either major or minor minerals after the issuance of EIA Notification dated 14.09.2006 has to obtain the Environmental Clearance (EC) but those mines which are operating prior to EIA Notification, 1994 would continue to operate without obtaining Environmental Clearance (EC) till the mining lease falls due for renewal, if there is no increase in lease area and/or there is no enhancement of production. In the event of any increase in lease area and/or production, such projects need to obtain prior Environmental Clearance (EC). All such projects which have been operating without any Environmental Clearance (EC) would obtain Environmental Clearance (EC) at the time of their lease renewal even if there is no increase either in terms of lease area or production.
47. But in this case, it may be mentioned here that after the original lease of 1985, the same was again renewed in the year 1997 as per Proceedings dated 21.07.1998 for an area of 9.4493 Ha. of land which is more than the area covered by the earlier lease viz., 6.8637 Ha. So even at that time, as per 1994 Notification or even as per 2007 clarification, they ought to have obtained Environmental Clearance (EC). Even assuming that they had not obtained the Environmental Clearance (EC) at that time, they ought to have obtained at the time when lease was further renewed in the year 2009 by Proceedings dated 22.04.2009 for the present extent of 8.6630 Ha. The Page 28 of 41 6th respondent had no case that they were not obliged to obtain Environmental Clearance (EC) at the time when the leases were renewed, but their case was that, they were not aware of the procedure till they obtained a stop memo from the Mining Authorities during 2015 and it is thereafter, they filed an application and obtained Environmental Clearance (EC). So, they were operating the quarry without obtaining Environmental Clearance (EC) after both renewals is evident from the pleadings itself.
48. It is also true that there is no provision under the EIA Notification to grant ex-post facto clearance to ratify the illegality committed before obtaining Environmental Clearance (EC). The procedure for dealing with violation cases was issued by the MoEF&CC, only by their Circular dated 14.03.2017, fixing a window period of six months for those who have not obtained the Environmental Clearance (EC) to apply under the violation category and certain procedures were provided to be followed in such matters. But in this case, the Environmental Clearance (EC) was granted much prior to that circular. So, the SEIAA cannot be blamed for considering such application as a fresh application and considering the same and granting the Environmental Clearance (EC).
49. It is well settled law that there is no provision for granting ex-post facto clearance and the clearance will come into effect only from the date on which it was issued and any mining operation done prior to that, will be deemed to be an illegal mining and they will be liable to pay compensation for the same. This was so held in the decision reported in the Common Cause Vs. Union of India9 and the same was followed by the Hon‟ble Apex Court in another decision reported in Alembic Pharmaceuticals 9 (2017) 9 SCC 499 Page 29 of 41 Limited Vs. Rohit Prajapati & Ors.10 in Civil Appeal No.1526 of 2016 and other connected cases by Judgment dated 01.04.2020.
50. So, in all these cases, the Environmental Clearance (EC) granted was not set aside, but some provision was made for imposing environmental compensation for the violation committed and nothing more. So, applying the principle laid in the above decisions of the Hon‟ble Apex Court, merely because it was ex-post facto clearance granted is not a ground to set aside the same, but it will not regularize the violation committed by the quarry owner prior to obtaining Environmental Clearance (EC), for which, they will have to face the consequences as provided in the decisions cited supra.
51. In this case, it cannot be said that the 6th respondent has not mentioned the details in Form-I application or in the feasibility report regarding the existence of the quarrying work done by him. Further, it is seen from the counter affidavit filed by the SEIAA, Kerala that State Expert Appraisal Committee in their 46th Meeting held on 29th & 30th September, 2015 decided to consider the matter, after inspection and accordingly, inspection was conducted on 02.12.2015 and the sub-committee observed certain things to be considered while recommending the project on the basis of their inspection which was evidenced by Annexure - 7 produced by the appellant himself. Thereafter, this was considered by the State Expert Appraisal Committee in their 53rd meeting held on 25th & 26th February, 2016 and recommended the proposal with certain conditions. Though it was not specifically mentioned about the sub-committee‟s report, it was referred to in the minutes, recommending the project. So, it cannot be said that there was no proper application of mind as has been 10 (2020) SCC Online SC 347 Page 30 of 41 observed by the Hon‟ble Delhi High Court in Utkarsh Mandal Vs. Union of India in W.P. (Civil) No. 9340 of 2009 dated 26.11.2009.
52. It is settled law that Court must ascertain before coming to the conclusion as to whether there was proper application of mind on the part of the authorities who are issuing the orders and whether the authorities were placed with the materials for consideration of the project and if those matters were placed before the authorities, then it cannot be said that there was no proper application of mind, though there was no specific reasons as in the case of Judgement given by the authority so as to come to the conclusion that there was no proper application of mind and recommendation was made without providing any valid reason. In this case, when the authorities have got some doubt regarding the extent of mining done, they have considered these aspects after conducting inspection and only thereafter, the proposal was considered by them. This aspect was considered by the SEIAA, Kerala while granting the impugned Environmental Clearance (EC). So under such circumstances, it cannot be said that there was no application of mind on the part of the authorities while issuing Environmental Clearance (EC) as contended by the counsel for the appellant.
53. As regards the distance criteria is concerned, it seen from the status report filed by the Kerala State Pollution Control Board as well as counter affidavit filed by the Mining Department that as per the existing mining rules, no mining operation can be possible within a distance of 50 meters from the habitation or any school or hospital etc. It is seen from the report submitted by the Sub Committee of SEAC as well as the status report submitted by the Kerala State Pollution Control Board and the Mining Page 31 of 41 Department that both the Consent to Operate and Mining Plans were approved only after satisfying with the siting criteria as per provided under existing rules. Even according to the appellant, his house is situated about 73 Meters from the quarry which is beyond the prohibited distance as per the rules. Further, the appellant had no case that any of the sensitive institutions like school, hospital, place of worship etc. are situated within the prohibited distance under the mining rules and ignoring the same, the present Environmental Clearance (EC) as well as mining lease were granted. So, there is no necessity to consider about the impact of the quarry in respect of institutions which were situated about 1 Km away from the quarry as alleged by the counsel for the appellant. So under such circumstances, it cannot be said that either SEAC, Kerala or SEIAA, Kerala has not considered the siting criteria and its impact and as such the same is liable to be set aside and all necessary conditions have been imposed by them applying the "Precautionary Principle" to avoid possible pollution being caused on account of the operation of the project.
54. Further, it cannot be said that there is material suppression of fact which could not have been considered either by the SEAC, Kerala or by SEIAA, Kerala so as to vitiate the entire proceeding. The fact that the quarry was in operation was in a way admitted in the Form-I application and that was also appraised by the SEAC, Kerala and SEIAA, Kerala and only thereafter, the Environmental Clearance (EC) has been issued. So, the submission made by the counsel for the appellant that SEIAA, Kerala ought to have rejected the application at the threshold, cannot be accepted. The report submitted by the Kerala State Pollution Control Board and the Mining Department will go to show that there was no possibility of pollution being caused and necessary precautions have been taken by Page 32 of 41 imposing necessary conditions and as such, it cannot be said that applying the "Precautionary Principle", the SEIAA, Kerala has not imposed the condition, anticipating the impact of the quarry is cannot accepted. In view of the discussions made above and also on the basis of the decision referred to above namely, Alembic Pharmaceuticals case, there is no necessity to set aside the Environmental Clearance (EC), as it appears to be an ex-post facto clearance.
55. The learned counsel appearing for the appellants relied on the decision reported in English Indian Clays Limited Vs. District Collector11 of the Hon‟ble High Court of Kerala, Utkarsh Mandal Vs. Union of India12 of the Hon‟ble High Court of Delhi at New Delhi, Gram Panchayat Navlakh Umbre Vs. Union of India & Ors.13 of the Hon‟ble High Court of Bombay, Bengaluru Development Authority Vs. Mr. Sudhakar Hedge & Ors. 14 of the Hon‟ble Supreme Court, S.P. Muthuraman Vs. Union of India & Ors. and other connected case in O.A. No.37 of 2015 and O.A. No.213 of 2014 dated 07.07.2015 of the Principal Bench of National Green Tribunal, New Delhi, Samata & Anr. Vs. Union of India & Ors.15 dated 13.12.2013 and Mathew Thomas Vs. State of Kerala & Ors.16 of this Bench and Prafulla Samantra Vs. Ministry of Environment & Forest and Ors. 17 of Hon‟ble High Court of Delhi at New Delhi in support of their case. 11 (2019) 1 KLT Online 2113 12 Writ Petition (Civil) No.9340 of 2009 13 Public Interest Litigation No.115 of 2020 and other connected case 14 Civil Appeal No.2566 of 2019 15 Appeal No.09 of 2011 16 O.A. No.168 of 2015 (SZ) 17 W.P. (C) No.3126 of 2008 Page 33 of 41
56. Further, in the decisions relied on by the appellant namely, S.P. Muthuraman Vs. Union of India & Ors. and other connected case in O.A. No.37 of 2015 and O.A. No.213 of 2014 dated 07.07.2015, the Principal Bench only observed that it is an ex-post facto clearance, but only imposed environmental compensation for construction made without obtaining prior Environmental Clearance (EC). The same was the case in the Appeal No.09 of 2011(SZ) of this Bench between Samata Vs. Union of India & Ors. and in O.A. No.168 of 2015 (SZ) Mathew Thomas Vs. State of Kerala & Ors. dated 21.12.2015 and the decision of the Hon‟ble High Court of Delhi at New Delhi in Prafulla Samantra Vs. Ministry of Environment & Forest and Ors. W.P. (C) No.3126 of 2008 and the same view has been expressed by the Hon‟ble High Court of Kerala in English Indian Clays Limited Vs. District Collector (2019) 1 KLT Online 2113 as well.
57. This Bench also in another matter while dealing with the effect of ex-post facto clearance in Shefy Joseph Vs. MoEF&CC, New Delhi & Ors. in O.A. No.244 of 2017 dated 27.05.2021, had observed that though it was an ex- post facto clearance, that is not a ground to set aside the Environmental Clearance (EC) granted and held that the subsequent operation of mining activities after obtaining Environmental Clearance (EC) will not regularize the violation committed, but observed that mining (if any) conducted prior to obtaining Environmental Clearance (EC) is illegal and directed the Mining Department to conduct an enquiry on this aspect and assess the value of the minerals extracted during that period and take steps to realize that amount from the quarry owner. This was challenged by the quarry owner before the Hon‟ble Apex Court by filing Civil Appeal No.4643 of 2021 (M.D. Kuriakose Vs. Government of India and Ors.) and the Hon‟ble Page 34 of 41 Apex Court had dismissed the appeal holding that there is no error of fact or law in the order passed by the Tribunal, by Judgment dated 16.08.2021.
58. So, it will be seen from the above decisions that though Environmental Clearance (EC) was obtained subsequently, it will come into effect from the date of its issuance and it will not regularize the earlier mining operations and at the most compensation can be recovered from the quarry owner who conducted the quarry without obtaining Environmental Clearance (EC), by directing the authorities to take steps for this purpose, if there is no material before this Tribunal to assess the amount.
59. So under such circumstances, while upholding the Environmental Clearance (EC) granted, we discuss about the further action to be taken for the violation committed prior to obtaining Environmental Clearance (EC) in the subsequent paragraphs.
60. The submission made by the counsel for the project proponent that they are not liable to pay any compensation or there is no illegal mining conducted, cannot be accepted. Further, in the decision reported in Common Cause Vs. Union of India and Ors. (2017) 9 SCC 499 and Prafulla Samantra Vs. Ministry of Environment & Forest and Ors. W.P. (C) No.3126 of 2008, the Hon‟ble Apex Court had considered the scope of the EIA Notification, 1994 and 2006 and what amount to illegal mining and the necessity for obtaining Environmental Clearance (EC) of persons doing mining more than 5 Ha. of mining area etc. and observed as follows in Para 188 of the Common Cause case cited supra:-
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"Conclusions on the issues of mining without an EC or FC or both
188. To avoid any misunderstanding, confusion or ambiguity, we make the following very clear:
(1) A mining project that has commenced prior to 27th January, 1994 and has obtained a No Objection Certificate from the SPCB prior to that date is permitted to continue its mining operations without obtaining an EC from the Impact Assessment Agency. However, this is subject to any expansion (including an increase in the lease area) or modernization activity after 27th January, 1994 which would result in an increase in the pollution load. In that event, a prior EC is required.
However, if the pollution load is not expected to increase despite the proposed expansion (including an increase in the lease area) or modernization activity, a certificate to this effect is absolutely necessary from the SPCB, which would be reviewed by the Impact Assessment Agency.
(2) The renewal of a mining lease after 27th January, 1994 will require an EC even if there is no expansion or modernization activity or any increase in the pollution load.
(3) For considering the pollution load the base year would be 1993-94, which is to say that if the annual production after 27th January, 1994 exceeds the annual production of 1993-94, it would be treated as an expansion requiring an EC.
(4) There is no doubt that a new mining project after 27th January, 1994 would require a prior EC.
(5) Any iron ore or manganese ore extracted contrary to EIA 1994 or EIA 2006 would constitute illegal or unlawful mining (as understood and interpreted by us) and compensation at 100% of the price of the mineral should be recovered from 2000-2001 onwards in terms of Section 21(5) of the MMDR Act, if the extracted mineral has been disposed of. In addition, any rent, royalty or tax for the period that such mining activity was carried out outside the mining lease area should be recovered.
(6) With effect from 14th September, 2006 all mining projects having a lease area of 5 hectares or more are required to have an EC. The extraction of any mineral in such a case without an EC would amount to illegal or unlawful mining attracting the provisions of Section 21(5) of the MMDR Act.
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(7) For a mining lease of iron ore or manganese ore of less than 5 hectares area, the provisions of EIA 1994 will continue to apply subject to EIA 2006.
(8) Any mining activity carried on after 7th January, 1998 without an FC amounts to illegal or unlawful mining in terms of the provisions of Section 21(5) of MMDR Act attracting 100% recovery of the price of the extracted mineral that is disposed of.
(9) In the event of any overlap, that is, illegal or unlawful mining without an FC or without an EC or without both would attract only 100% compensation and not 200% compensation. In other words, only one set of compensation would be payable by the mining lease holder.
(10) No mining lease holder will be entitled to the benefit of any payments made towards NPV or additional NPV or penal compensatory afforestation."
61. It is clear from the above dictum that even as per EIA Notification 1994, though persons who are doing mining prior to that need not obtain Environmental Clearance (EC), but they will have to obtain No Objection Certificate (NOC) from the State Pollution Control Board. Otherwise, it will be said to be an illegal mining. It is also further observed in the decisions that even at that time it was mentioned that at the time of renewal irrespective of the area, the same is required. It is further observed that after EIA Notification, 2006, it has become mandatory for obtaining Environmental Clearance (EC) at the time of renewal. If that was not done, then it will be deemed to be an illegal mining and the persons who are doing mining is liable to pay 100% of the value of the minerals extracted, apart from penalty and royalty payable under Section 21 (5) of the Mines and Mineral (Development and Regulation) Act, 1957. Further, in this case, the 6th respondent obtained even Consent to Establish and Consent to Operate during 2016 only, till then they were operating the unit without obtaining Consent from the State Pollution Control Board as Page 37 of 41 well. That also will amount to violation and the 6th respondent is liable to pay compensation for such violation as well, apart from payment of value of the minerals extracted during that period. So under such circumstances, we direct the Mining Department as well as the Kerala State Pollution Control Board to take action as directed below:
i. The Director of Mines and Geology, State of Kerala of the respective district is directed to assess the value of the minerals extracted by the 6th respondent during the period including the excess mining (if any) done while they were doing the mining activity without obtaining Environmental Clearance (EC) till they had closed the same as directed by the Department during 2015, as has been observed by the Hon‟ble Apex Court in Common Cause Case reported in (2017) 9 SCC 499 and take steps to realize the amount from the 6th respondent by taking legal action in accordance with law.
ii. The Kerala State Pollution Control Board is also directed to initiate appropriate proceedings for violations committed by the 6th respondent for operating the unit without obtaining consent from the Board under the Water (Prevention and Control of Pollution) Act, 1974 and Air(Prevention and Control of Pollution) Act, 1981, after assessing the period of violation, impose compensation for the violation as directed by the Principal Bench as well as this Bench in several cases of this nature and take steps to recover the amount from the 6th respondent in accordance with law.
62. So, the points are answered accordingly.
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63. In the result, the appeal is disposed of as follows:-
(i) We hold that the appeal is maintainable and not barred by limitation as alleged by the 6th respondent.
(ii) We do not find any reason to set aside the Environmental Clearance (EC) granted to the 6th respondent dated 01.06.2016, but issue certain directions as stated below.
(iii) The Director of Mines and Geology, State of Kerala of the respective district is directed to assess the value of the minerals extracted by the 6th respondent during the period including the excess mining (if any) done while they were doing the mining activity without obtaining Environmental Clearance (EC) till they had closed the same as directed by the Department during 2015, as has been observed by the Hon‟ble Apex Court in Common Cause Vs. Union of India & Ors. reported in (2017) 9 SCC 499 and take steps to realize the amount from the 6th respondent by taking legal action in accordance with law.
(iv) The Kerala State Pollution Control Board is also directed to initiate appropriate proceedings for violations committed by the 6th respondent for operating the unit without obtaining consent from the Board under the Water (Prevention and Control of Pollution) Act, 1974 and Air(Prevention Page 39 of 41 and Control of Pollution) Act, 1981, after assessing the period of violation, impose compensation for the violation as directed by the Principal Bench as well as this Bench in several cases of this nature and take steps to recover the amount from the 6th respondent in accordance with law.
(v) The Mining Department as well as the Kerala State Pollution Board are directed to file their respective action taken reports as directed by this Tribunal within a period of 6 (Six) Months.
(vi) The State Environment Impact Assessment Authority, Kerala as well as Kerala State Pollution Control Board are directed to ascertain as to whether any violation of conditions imposed or recommendations made by the Expert Appraisal Committee (EAC) which were accepted by the SEIAA, Kerala have been complied with or not and if so, they are directed to take appropriate action against the project proponent/6th Respondent for violation (if any) committed in accordance with law and submit a report in this regard to this Tribunal within a period of 6 (Six) Months.
(vii) The Office is directed to place the report before the Bench, as and when received from the authorities for consideration of this Tribunal and giving Page 40 of 41 necessary directions (if any) required in this regard.
(viii) The parties are directed to bear their respective costs in the appeal.
(ix) The Registry is directed to communicate this order to the State Environment Impact Assessment Authority, Kerala, Kerala State Pollution Control Board, Director of Mines and Geology, Thiruvananthapuram and also to the concerned additional Director of Mines of Geology of the concerned area and also to the Chairman, Kerala State Pollution Control Board for their information and taking action as directed by this Tribunal and also for compliance.
64. With the above observations and directions, this appeal is disposed of.
Sd/-
........................................J.M. (Justice K. Ramakrishnan) Sd/-
...............................E.M. (Dr. K. Satyagopal) Appeal No.88/2017 (SZ) 26th October, 2021. AM & Mn.
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