Kerala HC Directs Recovery Of Value Of Minerals Extracted Illegally Without Environmental Clearance [Read Judgment]

Kerala HC Directs Recovery Of Value Of Minerals Extracted Illegally Without Environmental Clearance [Read Judgment]

The present case is a classic case in which illegal mining was allowed to be carried on by the successive Governments without any care for the environment and ignoring the pleas of the local residents", observed the judgment authored by Justice Vinod Chandran.

The High Court of Kerala has directed the recovery of 100% value of minerals extracted without obtaining prior Environmental Clearance(EC), by following the Supreme Court judgment in Common Cause case which held that extraction of any mineral without EC would amount to illegal or unlawful mining attracting the provisions of Section 21(5) of the Mines and Minerals (Development and Regulation) Act 1957.

The Division Bench of Justices K Vinod Chandran and Ashok Menon also imposed exemplary costs of Rs.10 lakhs on the company  finding that it had abused process of law by carrying out illegal mining under the garb on interim orders passed by the Court. The costs were directed to be paid to the Chief Minister's Relief Fund.

The Court was considering a batch of matters relating to mining activities of a Company "English India Clays Limited". The company as petitioner had filed writ petitions seeking police protection to carry out mining activities, and also challenging prohibitory orders passed by the District Collector under Paddy Land Act against china-clay mining. Certain private parties also filed writ petitions against the mining operations of the Company. The Company was granted permission by the Government for extraction of china-clay from three tracts of land - each having 2.6588 hectares, 2.8999 hectares and 14.5129 hectares.

Benefit of Deemed EC Not Available After Commencing Mining Operations Without Prior EC

The Court noted that the Company had to obtain prior Environmental Clearance as per EIA Notification dated 14.09.2006 as the mining area was more than 5 hectares. Even the tracts having less than 5 hectares were part of a contiguous jointly having above 5 hectares ( tracts of 2.6588 hectares and 2.8999 hectares). The Court noted that it was a situation of breaking up of a homogeneous contiguous area into pieces less than 5 hectares in order to escape the applicability of 2006 EIA notification. Applying the principles in the SC decision in Deepak Kumar case, which dealt with such situations of breaking up of large contiguous mining areas into smaller clusters, the High Court held that the company had to obtain prior EC before commencement of mining operations.

However, mining operations started in 2013 without EC.  Later, application for EC was made in 2015, following objections raised by local residents. The company claimed that the State Expert Appraisal Committee(SEAC) had recommended grant of EC, but the State Environmental Impact Assessment Authority(SEIAA) was not acting on the recommendations. On this basis, the company claimed that it had obtained deemed EC, due to failure of SEIAA to act on SEAC recommendations within 45 days. Accepting this claim, the Single Judge granted provisional permission to the company to commence mining operations, invoking the deeming provision.

The Division Bench held that the Company was not entitled to deemed EC, as it had to get 'prior' EC before commencement of mining operations. The Court also noted that it was impossible to carry out Environment Impact Assessment in the land, as the mining operations had irreversibly changed the nature and lie of the land.

"There is no question of any deeming provision being applied for reason of the delay in consideration of the recommendation of the SEAC by the SEIAA. We have already seen that a proper consideration was made by the SEIAA and serious apprehensions and concerns were raised by the SEIAA; which are justified. Be that as it may, even if there is delay on the part of the authority, the deeming provision has no application, insofar as the Company required a prior EC insofar as areas above 5 hectares.", held the Court.

Company's Acts Illegal Though Carried Out Under Interim Orders Of Court.

The company contended that its mining activities cannot be termed as illegal as they were provisionally permitted by the Single Bench of the High Court invoking the deeming provision. Disapproving this contention, the Division Bench held that the Company approached the Court for police protection without a prior EC and then seeking issuance of EC relying on a deeming provision without impleading those persons who had approached the Court earlier challenging the mining activity for reason of no prior EC having been obtained.

The Division Bench held that the value of minerals extracted by the Company was recoverable even if they were carried out on strength of interim order passed by the Court. To support this, the Division Bench relied on the SC decision Karnataka Rare Earth Vs. Senior Geologist, Department of Mines and Geology. There, the SC held that if a party gains an advantage by virtue of an interim order passed by a Court, which was ultimately held to be unsustainable, then the successful party at the end of the litigation is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The SC precedent also held that a party cannot claim protection of interim order of a Court, which the court would not have passed had it been correctly apprised of the facts and the law.

Holding the SC decision to be squarely applicable, the Court observed that "State would be fully justified in recovering the value of the illegally extracted mineral and over burden, even under orders of this Court".

Inaction Of Government Officials Criticised.

The Court criticised the inaction on the part of government officials in permitting large scale illegal mining activities by the company. There was "tacit approval" of the State Government and its officials to the illegal quarrying activity by the company, noted the judgment.

"We cannot also condone the action of the successive Governments in having remained a silent spectator to the gross violations carried out by the Company

The present case is a classic case in which illegal mining was allowed to be carried on by the successive Governments without any care for the environment and ignoring the pleas of the local residents", observed the judgment authored by Justice Vinod Chandran.

It was observed that the the Government and its officers did not look at the foundational aspect of a mine beyond 5 hectares requiring a prior EC. The Court also expressed surprise at the fact that even now the State is willing to go ahead with an impact assessment study;which would be futile and counter productive.

The Court highlighted the need to emphasise sustainable development,"especially in the context of the recent floods and landslides which devastated the State and its citizens"

"The State is a narrow strip of land between the mountains and the deep sea; which accentuates it charm in the best of times and raises an alarm, an ominous portend, in times of floods and landslides", the Court said while emphasising the need to strictly enforce laws.

"We cannot shut our eyes or ears to the refrain that in reality the disaster inflicted by nature, is man made", the Court remarked.

The Court directed that a team should be constituted, headed by the Senior Officer deputed by the Regional Controller of Mines and the officers of the State Directorate of Mining and Geology to inspect the premises, assess the illegal extraction carried out of china clay as also the overburden diverted and taken out of the premises in violation of the mining plan and recover 100% of the value of such materials excavated from the land as per the SC direction in Common Cause case.

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