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Judgment
This application seeks review of order of this Tribunal dated 12.07.2022 in OA No. 119/2022, Benny Sebasstian vs. M/s. VKL Infrastructure Facilities (P)Ltd. & Ors.
By the said order, the Tribunal considered the violation of environmental norms in operation of quarry projects of the review applicant - M/s. VKL Infrastructure Facilities (P) Ltd. and M/s. VKL Projects (P) Ltd., 1st Floor, Anjana Complex, Kundannoor, Maradu P.O., Kochi-682 304, Kerala, the Project Proponent (PP). Violations considered included location of mining activity within prohibited distance, violation of Environmental Clearance (EC) conditions, quarrying beyond permitted quantity.
Vide order dated 24.02.2022, the Tribunal, constituted a joint Committee comprising SEIAA, Kerala, Kerala State PCB and District Magistrate, Thiruvananthapuram to undertake visit to the site, verify the compliance status and file a factual and action taken report. It was further directed that if violations are found, the Project Proponent may be put to notice of these proceedings for its response, if any.
The PP filed Review Application No. 08/2022, Benny Sebasstian vs. M/s. VKL Infrastructure Facilities (P)Ltd. & Ors. against the said order with the plea that no verification was necessary as matter had already been dealt with by the Kerala High Court. The Tribunal rejected the review application vide order dated 7.4.2022 with the observation that verification process will not cause any prejudice to the PP.
Thereafter, report dated 23.5.2022 was submitted to this Tribunal that some of the EC conditions were violated. Considering the same, the Tribunal disposed of the matter with a direction that the State PCB may recover compensation for such violations on polluter pays principle, including interim compensation, following due process of law. The operative part of the order is reproduced below:
“xxx …………………………….xxx………………………………xxx
The joint Committee has filed its report dated 23.05.2022 giving the compliance status of EC conditions as follows:-
“3.1 A. Compliance of Specific Conditions
No
Specific Conditions
Compliance Status
1
Considering the presence of a DTPC Building and intended use of the elevated hillock as a place of local tourism, a buffer distance of 100 m must be left as a No Development Zone from the path connecting the top points on two rocky knobs of Thampuranpara and the eastern edge of the DTPC building.
Not complied.
Physical measurement by the Survey Team indicated that the distance is only 79m between the eastern edge of the DTPC building and Project boundary. Therefore, the buffer distance of 100m is not maintained as a No Development Zone.
2
Top soil and overburden should be stored in a designated place on the lower slope away from the working area (on the eastern side) and provided with protective support walls.
Not complied.
There are two top soil and overburden dumps, one on the south-southwestern portion of the project area in the higher slope and the other on the eastern portion of the project area in the lower slope. Both are away from the working area and are not provided with protective support walls. The one on the higher slope is relatively an old one and is somewhat stabilized with vegetative growth. The one on the eastern lower slope is subjected to severe
erosion.
3
A catch water drain to be provided all along the lowest part and channelized into a pit that is supposed to function as a RWH structure, Water must be clarified before it is let out
Partially complied
There is no catch water drain provided all along the lowest part and channelized into a pit that is supposed to function as a RWH structure. However, a portion of the old working quarry is used as a RWH structure. No arrangement for clarification of water prior to it’s letting out is found.
3.1 B. Compliance of General Conditions
No
General Conditions
Compliance Status
4
Maximum possible solar energy generation and utilization shall be ensured as an essential part of the project
Partially Complied
But maximum possible solar energy generation is yet to be achieved
6
Eco-restoration including the mine closure plan shall be done at the own cost of the project proponent
Partially complied. Affidavit submitted.
Efforts are seen taken to grow trees in the land adjacent to the project site owned by the proponent. Mine closure is yet to be done
7
At least 10 percent out of the total excavated pit area should be retained as water storage areas and the remaining area should be reclaimed with stacked dumping and overburden and planted with indigenous plant species that are eco-friendly, if no other specific condition on reclamation of pit is stipulated in the E.C.
Partially Complied
About 10% of the total excavated pit is retained as water storage. The remaining area is yet to be reclaimed as the validity of EC is live
16
Overburden materials should be managed within the site and used for reclamation of mine pit as per mine closure plan/specific conditions
Partially Complied
Overburden material is stored within the site; Mine closure is yet to take place
17
Height of benches should not exceed 5 m and width should not be less than 5 m, if there is no mention is the mining plan/specific condition
Partially Complied
In one pit, benches are provided, but the width is mostly less than 5m and height is mostly more than 5m. In another pit, benches are not provided
20
No mining operations should be carried out at places having a slope greater than 450
Partially Complied
23
Garland drains with clarifiers to be provided in the lower slopes around the core area to channelize storm water
Not Complied
28
A minimum buffer distance of 100 m from the boundary of the quarry to the nearest dwelling unit or other structures, not being any facility for mining shall be provided
Not Complied
As per the certificate of Village Officer, the distance between the Project boundary and residential house is only 90m.
36
A copy of the clearance letter shall be sent by the proponent to concerned Grama Panchayat/District Panchayat/Municipality/ Corporation/Urban Local Body and also to the Local NGO, if any from whom suggestions/representations, if any, were received while processing the proposal, The Environmental Clearance shall also be put on the website of the company by the proponent
Partially Complied
At present the Environmental Clearance details are not seen in the website of the VKL Group of Companies
37
The proponent shall submit half yearly reports on the status of compliance of the stipulated EC conditions including results of monitored data (both in hard copies as well as by e-mail) and upload the status of compliance of the stipulated EC conditions, including results of monitored data on their website and shall update the same periodically. It shall simultaneously be sent to the respective Regional Office of MoEF, Govt. of India and also to the State Environment Impact Assessment Authority (SEIAA) office
Partially Complied
Last compliance report submitted was that for the period from April 2021 to September 2021. The District Collector issued stop memo to the quarry vide letter dated 13.10.2021
At present, the status of compliance of the stipulated EC conditions including results of monitored data is not found uploaded in the website of VKL Group of Companies
41
The Project proponent shall ensure that no natural water course and/or water resources shall be obstructed due to anymining operations. Necessary safeguard measures to protect the first order streams, if any originating from the mine lease shall be taken
Partially Complied
The stream originating from the mine lease area is filled with silt eroded from the dumping site
43
The top soil, if any, shall temporarily be stored at earmarked site(s) only for the topsoil shall be used for land reclamation and plantation. The over burden (OB) generated during the mining operations shall be stacked at earmarked dump site(s) only. The maximum height of the dumps shall not exceed 8 m and width 20 m and overall slope of the dumps shall be maintained to 450. The OB dumps should be scientifically vegetated with suitable native species to prevent erosion and surface run off. In critical areas, use of geo textiles shall be undertaken for stabilization of the dump. The entire excavated area shall be backfilled. Monitoring and management of rehabilitated areas should continue until the vegetation becomes self- sustaining
Partially Complied
The OB dump is seen deposited mainly at two places one on the top portion and the other on the lower portion of the mining lease area. It is not stacked and protected properly and the dump at the lower portion is found eroded severely.
44
Catch drains and siltation ponds of appropriate size shall be constructed around the mine working, mineral and OB dumps to prevent run off of water and flow of sediments directly into the river and other water bodies. The water so collected should be utilized for watering the mine area, roads, green belt development etc. The drains shall be regularly desilted particularly after monsoon and maintained properly
Not Complied
A systematic drainage system is not found implemented.
49
The funds earmarked forenvironmental protection measures and CSR activate should be kept in separate account and should not be diverted for other purpose. Year wise expenditure should be reported to the State Environment Impact Assessment Authority (SEIAA) office
Not Complied
61
Occupational health surveillance program of the workers should be under taken periodically to observe any contractions due to exposure to dust and take corrective measures, if needed
Not complied
Action taken is mentioned as follows:-
“As a follow up of the enquiry conducted by the SEAC on the mass petition filed by the local people against the granite building stone mining projects of M/s. VKL Infrastructure Facilities (P) Ltd. and VKL Projects (P) Ltd., M/s. Al-Falah Metal Crusher and M/s. C.S. Rocks, the SEAC conducted a field inspection and recommended the following to SEIAA
Functioning of the quarry of M/s. VKL Infrastructure Facilities (P) Ltd. and VKL Projects (P) Ltd may be closed with immediate effect
Mining & Geology Department and Revenue Department may be requested to ensure compliance of the order no. B7-2372/2012 dated 17.4.2013 of the District Collector, Thiruvananthapuram
Revenue Department may be requested to take a final decision on encroachment of puramboke/govt. land by the quarry owner before allowing further mining in the area.
Measure aerial distance to nearby houses and assess the threat due to explosions considering the slope of the hill
It was also recommended that the quarry be allowed to resume operation only after the recommendations 2, 3 and 4 above are complied satisfactorily.
The SEIAA agreed in full to the recommendations of SEAC and requested the District Collector, Thiruvananthapuram accordingly. The District Collector vide letter dated 13.10.2021 issued Stop Memo to M/s. VKL Infrastructure (P) Ltd and VKL Projects (P) Ltd. Now the quarry is closed.”
Compliance report of District Magistrate is mentioned to be as follows:-
3.1 D. COMPLIANCE REPORT OF DISTICT ADMINISTRATION
CONDITIONS
STATUS
Details pertaining to encroachment in
Government land.
Encroachment reported by Tahsildar.
Tahsildar (LR), Nedumangadu in his report No. K2-21220/2012 dated 27.04.2022 has reported encroachment of a total area of 54.18 Ares in Survey numbers 363/7,363/1,362/6,362/3,360/,
374/3 and 361/1. In this encroached area, mining is found to have done in an area of 14.62 Ares
No response has been filed by the Project Proponent in response to the report which presumably has been served on it in view of directions of this Tribunal quoted earlier. We do not see any reason not to accept the report of the joint Committee comprising of credible senior functionaries representing statutory regulators. Accordingly, the report is accepted and action may be taken in terms of findings and recommendations. The State PCB may also assess and recover compensation on ‘Polluter Pays’ principle, following due process of law. Pending final assessment, the State PCB may also assess interim compensation, having regard to the estimated value of the mined material and damage to the environment. The amount recovered may be utilized for restoration of the environment by preparing an action plan. Compliance report be filed with the Chief Secretary, Kerala within three months and also placed on website of the State PCB.”
Against the above order, the PP filed Civil Appeal No. 6571 of 2022, M/S VKL Infrastructure Facilities (P) Ltd. & Anr. vs. Benny Sebastian & Ors. before the Hon’ble Supreme Court which was disposed of on 23.9.2022 as follows:
“At this stage, while we are not inclined to interfere with the impugned order and leave it open to the appellant(s) to file an application for review before the National Green Tribunal, Principal Bench, New Delhi. However, we give liberty to the appellant(s) to challenge the impugned order, if required and necessary, post the decision of the review application.
Recording the aforesaid, the present appeal is dismissed.
Pending application(s), if any, stand disposed of.”
It is in the above background that the present review application has been filed.
We have heard learned Senior Counsel for the review applicant and perused the record.
The ground for seeking review taken in the review application and IA Nos. 276 - 277 of 2022 filed by the PP is that there is violation of principles of natural justice. The review applicant did not have a copy of the report of the joint Committee which has been accepted by this Tribunal. The original applicant is not acting bonafide. The PP is compliant. During the hearing, learned Senior Counsel has further added that W.P. No. 8335 of 2022 filed by the PP against order of this Tribunal constituting joint Committee is pending before the Kerala High Court and thus the Tribunal has no jurisdiction to pass any further order in view of judgment of the Hon’ble Supreme Court in State of Andhra Pradesh vs. Raghu Ramakrishna Raju Kanumuru (2022) 8 SCC 156. He also relies upon State of Uttar Pradesh & Ors. vs. Uday Education and Welfare Trust & Ors. 2022 SCC OnLine SC 1469 to submit that in absence of bonafides of the applicant, violations of the PP be ignored.
On due consideration, we do not see any merit in the review application. Argument about violation of principles of natural justice, as per PP, is that while as per notice of the State PCB dated 28.5.2022 only two violations were pointed out, the report covered other violations. Thus, PP had no opportunity to show compliance.
Though may appear attractive, in substance the argument has no merit. The letter of the PCB in question, though refers to two violations, encloses copy of the report. In its reply, letter of the PP dated 13.6.2022, in the heading itself, report of the Committee is mentioned. The PP thus had opportunity to make any comment about other violations noted in the report. As the record shows, the PP moved an application before this Tribunal to vacate the order appointing joint Committee which was rejected on 7.4.2022. Thus, the PP was fully aware about the proceedings before the joint Committee and this Tribunal but it chose not to appear before this Tribunal or even to respond to the observations of the joint Committee. Thus, violation of natural justice is merely a convenient plea which is against record.
The next point submitted by the review applicant is about the lack of bonafides of the applicant. In the facts and circumstances of the present case, violations of the PP cannot be ignored on that ground. According to the PP, the DTPC building was constructed after the consent granted to the PP. Consent was in 2014 while the building was completed in 2017. It was further submitted that at some places, the distance was found to be more than 100 meters. We find that the EC condition specifically mentions requirement of maintaining 100 meters distance from DTPC as follows:
“xxx ………………………………….xxx……………………………….xxx
The proposal was considered in the 69th meeting of SEIAA held on 1st June 2017. The Authority accepted the recommendation of SEAC in its 71st meeting held on 20th and 21st April 2017 and decided to issue EC subject to general conditions in additional to the following specific conditions for mining.
Considering the presence of a DTPC building and the intended use of this elevated hillock as a place of local tourism, a buffer distance of 100m must be left as a no development zone from the path connecting the top points on two rocky knobs of Thampuranpara and the eastern edge of DTPC building.”
Thus, violation is patent. The mining activities of the PP involve blasting also. Violations are not only with regard to location but also with regard to proper management of overburden during the mining. According to the review applicant, the overburden management should be seen, as closure plan, not during currency of mining but only after mining activity stops. This is not acceptable as the Progressive Mine Closure Plan submitted by the PP itself annexed as Annexure A-33 to IA No. 277/2022 itself mentions that mine closure is a continuous series of activities which is integral to the process of mining itself. Relevant part thereof is quoted below:
“Projects- compiling plan
Mine Closure encompasses rehabilitation process as ongoing Programme planned to restore Physical, Chemical and Biological activity disturbed by the quarrying to a level of acceptable to all concerned.
Mine closure operation is a continuous series of activities. PMCP is an integral process of mining of minerals and the proposals of scientific mining have had included most of the activities to be included in the PMCP programs.”
Violations also include failure to provide garland drains as per general condition no. 23 as mentioned in the report of the joint Committee. Even if we exclude other violations, it cannot be held that the PP is compliant. No ground for review is made out.
With regard to writ petition before the High Court against appointment of Committee, we are unable to hold that mere filing of a writ petition in the High Court ousts jurisdiction of this Tribunal. Judgement relied upon only holds that law laid down by the High Court is binding on this Tribunal which is different from jurisdiction being ousted by mere filing of a petition. In this regard, we may refer to a three-judge bench judgment by the Hon’ble Supreme Court in Bhopal Gas Peedith Mahila Udyog vs UOI (2012) 8 SCC 326 noting that this Tribunal is a statutory and specialized forum to deal with any issues relating to environment. It was observed:
“40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short "the NGT Act") particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short "NGT"). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialized justice in the field of environment to all concerned.
We find it imperative to place on record a caution for consideration of the courts of competent jurisdiction that the cases filed and pending prior to coming into force of the NGT Act, involving questions of environmental laws and/or relating to any of the seven statutes specified in Schedule I of the NGT Act, should also be dealt with by the specialized tribunal, that is, NGT, created under the provisions of the NGT Act. The courts may be well advised to direct transfer of such cases to NGT in its discretion, as it will be in the fitness of administration of justice.”
(emphasis supplied)
It is a matter of record that pursuant to setting up of NGT, even pending matters involving environmental issues have been transferred from Supreme Court and various High Courts to NGT, in view of NGT being the appropriate forum and venue.
Further, the order of this Tribunal sought to be reviewed, has merely required the State PCB to assess and recover compensation on ‘Polluter Pays’ principle depending upon the nature and extent of violations and in the said process the viewpoint of the PP is also to be considered. Final order of the State PCB is subject to statutory remedies, including an appeal before this Tribunal.
In view of above, the review application is dismissed.
All pending IAs will also stand disposed of.