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CASE NO.: Writ Petition (civil)  202 of 1995

PETITIONER: T.N. Godavarman Thirumulpad                             \005.Petitioner

RESPONDENT: Union of India & Ors.                                   \005.Respondents

DATE OF JUDGMENT: 15/12/2006

BENCH: Y.K. SABHARWAL , Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

I.A. No. 1150 IN I.A. No.1010 WITH I.A. 1010 WITH I.A. 1458 IN I.A. 1010 IN I.A. 670 IN WRIT PETITION ( C )  No. 202 OF 1995

Dr. ARIJIT PASAYAT, J.

       These I.As. are in essence oft shoot of a judgment of this  Court in IA 670 of 2001 in Writ Petition (C) 202 of 1995 in  K.M. Chinnappa (applicant in  T.N. Godavarman Thirumulpad  v. Union of India and Others  (2002 (10) SCC 606).  It related  to the question whether functioning of Kudremukh Iron and  Ore Company Ltd. (in short ’KIOCL’) was having adverse effect  on the environment and ecosystem.  In paras 51 and 52 of the  judgment it was inter alia directed as follows:

"51. Taking note of the factual background and  the legal position highlighted above, we think it  proper to accept the time period fixed by the  Forest Advisory Committee constituted under  Section 3 of the Conservation Act. That means  mining should be allowed till the end of 2005  by which time the weathered secondary ore  available in the already broken area should be  exhausted. This is, however, subject to  fulfilment of the recommendations made by  the Committee on ecological and other aspects.

52. The modalities as to how these have to he  worked out shall be done in the manner  recommended by the Committee. It was  submitted by the learned counsel for the State  of Karnataka that the recommendation made  about transfer of buildings and other  infrastructure to the Forest Department of the  State Government at book value is not  acceptable to it. This is a matter which can be  considered by the Committee on an  appropriate motion being made by the State  before it. The modalities to be adopted to  effectuate the order passed by this Court and  recommendations of the Committee shall be  worked out by the Ministry of Environment

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and Forests, the State Government and the  Company under the supervision and guidance  and monitoring of the Committee."

       Unfortunately the Central Government for reasons best  known to it notwithstanding the clear position indicated in the  judgment construed that the expression "Committee" meant  "Forest Advisory Committee" (in short ’FAC’). There was no  scope for taking the stand in view of what has been stated in  para 5 of the judgment. It has been stated that FAC is also a  statutory committee.  By order dated 20th January, 2006 it has  been observed that the constitution of the Monitoring  Committee is not in consonance with the directions of this  court.

       Learned counsel appearing for KIOCL submitted that in  line with direction of this Court and keeping in view the Rule  23C of the Mineral Conservation and Development Rules,  1988 (in short the ’Rules’)  which became operative with effect  from 10.4.2003, an approved final Mine Closure Plan was  submitted.  Views of expert bodies were taken.  It has been  stated that in line with the statutory prescriptions, which even  though became operative after the judgment various steps  have been taken.  Indian Bureau of Mines (in short the ’IBM’)  has also given its report. It is, therefore, stated that though IIT  Delhi was asked to give its view but that has no relevance. If  there would have been non-compliance with the statutory  requirement of Rule 23C of the Rules, it would have exposed it  to penal consequences.  In essence the stand is taken that IIT  Delhi’s report should not be accepted and the following  modalities on the other hand should be adopted.

       (a)     It would utilize its machinery and workmen for the  purpose of achieving slope stability by excavating the 33.81  hectares on the basis that out of the net profit generated by  the mining operation, 50% of the net profit would be paid over  to a fund to be established and  operated by a committee  constituted by the Government of Karnataka or in any other  manner directed by this Court or a high powered statutory  committee created for this purpose (in the nature of the  Tennessee Valley Authority) for the purpose of utilizing this  50% net profit for rehabilitation and eco-restoration for the  Kudremukh Forest Area. (b) On a rough estimate, the 50% of  net profit is likely to be in the range of Rs.50 to 75 crores per  annum, for the purpose of rehabilitation and eco-restoration of  the Kudremukh National Park and also establishing and  promoting sustainable environmental development and eco- tourism in the area. Towards this end, the existing buildings  and infrastructure could also prove useful. (c) If this proposal  is accepted, an amount in the range of (approximately) Rs.150  Crores to 225 Crores could be available to the fund during the  period of about 3 years which would be necessary for  excavating 33.81 hectares.

       It is further submitted that in the judgment at paras 49  and 51 had permitted mining of the weathered secondary ore  in the already broken up area till the end of 2005, as this  Court expected that the weathered ore would be exhausted.  But in reality, about 20 million tons of weathered ore are still  available in already broken up area.  This should be permitted  to be used as it is likely to generate revenue of about rupees  25 crores per annum.  If this is permitted nearly rupees 300  crores would be available to the Kudremukh Authority for Eco  Restoration Fund which would be able to bring about dramatic  change in the eco-system of the Kudremukh National Park.  

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Per contra,  learned Amicus Curiae has submitted that  this Court clearly directed closure of mining operation by the  end of 2005.   Time was not given for running the mines for  profit, but as a winding down period at the end of which  mining should have been closed.  The operations during the  period had to be under the supervision of the Monitoring  Committee which in turn function under the supervision of  Central Empowered Committee (in short ’CEC’). What KIOCL  wants now is to continue mining of 8 to 9 lakh tonnes of ore.   

We have considered rival submissions. IIT, Delhi was  appointed vide order dated 24th February, 2006.  It has been  found that KIOCL has used the concerned period for carrying  on commercial operations without taking necessary steps for  winding down operations.  On 10th May, 2006 an affidavit was  filed by KIOCL taking the stand that there was likelihood of  serious pollution of Bhadra river if KIOCL was not allowed to  do the operations for the purpose of avoiding pollution.  IIT,  Delhi did not consider the exercise necessary. It has been  pointed out by learned Amicus Curiae that contrary to what  KIOCL thought to be inevitable, there was no damage  whatsoever despite heavy monsoon.  It is to be noted that the  IIT, Delhi in its report has observed that the solution has to be  found by experts and the heart-beat of that solution is the  stability of the slopes involving  "no or minimal disturbance to  the unbroken area".  It is noted that at various times, petitions  have been filed practically with a view to undo what had been  definitely held to be imperative by this Court.   

At this juncture, it would be appropriate to take note of  what IIT, Delhi stated in its various reports.

In their report dated 12th April, 2006 on the Stability of  Slope and related issues during mine closure of KIOCL, it was  inter alia observed as follows:

"3.0 Observations on Stability of Slopes Based on the above methodology, the following  observations are made concerning the stability of the  slopes.

(a) The excavated slopes of the mine exist at varying  degrees of steepness with benches of variable  widths.

(b) Some slopes are stable with grass growing on  them; others are observed to show signs of surficial  erosion/debris flow/mud flow; yet others show  signs of planar slippage or slides of limited depth.

(c) The instability of slopes at specific locations is  observed to be on account of (i) excessive steepness,  (ii) inadequate strength of soil/rock mass under  saturated condition and (iii) seepage pressure  exerted by infiltrating rain water during monsoons.

(d) Saturation of mine slopes and seepage pressure  exerted on the slopes appear to be the two factors  that have the greatest role in instability of slopes  since these slopes are reported to be relatively  stable during dry months and become unstable  during monsoons. Saturation reduces the strength  of the soil/rock mass and seepage pressure induces  downward movement.

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4.0 Observations on Instability of North West Part of  the Mining Area One part of the mining area on the north western side is  observed to be particularly susceptible to slope instability  due to collection of water in a catch pit constructed at  the base of the broken area, above the unbroken area.  The catch pit was constructed by excavation during  mining operations and is observed to cause the following  effects: (a) The unbroken area on the downstream side of  the catch pit is being destabilized as the collected  water seeps into the unbroken area;

(b) When the catch pit overflows, uncontrolled flow  of water cascades downhill in the form of surface  water laden with silt which eventually reaches the  Bhadra River at the base of the unbroken area; this  has also resulted in the formation of gullies and  erosion channels in the unbroken area.

5.0 Observations on Slope Stability Aspects in the  Closure Plan  Slope stability aspects have been covered in the following  reports in the Closure Plan: Report of NIRM: Slope Stability Investigations at  Kudremukh Iron Ore Mines Report of CWPRS: Desk Studies on Stability of Hill  Slopes in Mining Area at Kudremukh Iron Ore Mine,  Karnataka

The Closure Plan proposes stabilization of the slopes by  flattening them and also by additional excavation of  slopes in the broken region as well as the unbroken  portion in the northwestern part of the mine. This would  be followed by revegetation of slopes for controlling  erosion of fine material. Check dams have been proposed  to prevent siltation of the Bhadra River during the initial  stages till vegetative growth gets established and causes  reduction in silt erosion. The following are the observations on slope stability  aspects in the closure plan: (a)     The suggested methodology of stabilizing the  north west part of the mine by deep excavation in  the unbroken portion over an area of 33.81 hectares  can be one alternative but not necessarily the only  one. Other methods which would minimize  disturbance to the unbroken area could have been  examined.

(b)     In addition, the following aspects have not  been covered in the Closure Plan:

i) A surface water drainage plan for the entire  mining area indicating location of surface  water drains at the benches and along the  perimeter of the base of the mining area;

ii)     Methodology for periodic removal and  relocation of silt collected in check dams and  catch pits;

iii) Provision of bio-geotechnical engineering

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measures for assisting vegetative growth in  problematic areas where regular debris flow or  mud flow is observed;

iv) Stability measures for north west part of the  mine such as elimination of collection of water  and overflow of water from the existing catch  pit as well as stabilization measures for the  unbroken area destabilized by the catch pit;

v)      The measures listed at (i) to (iv) above  could result in significant additional costs.

6.0 Conclusions and Recommendations (a) The slopes are not stable in the present state and  need stabilization.

(b) If the mine is abandoned without stabilization of  the slopes, as indicated earlier, it will result in  excessive silt discharge due to erosion as well as in  the sliding of the slopes at some locations in future  years.

(c) The north west part of the mine needs immediate  attention and remedial measures to prevent the  possible occurrence of large scale movement during  the forthcoming monsoon.

(d) A Closure Plan is necessary for stabilizing the  slopes. The Closure Plan proposed at present is well  conceptualized but falls short of adequacy in  detailing (as indicated in 5.0 (a) and (b) above). This  is perhaps so because there is inadequate  experience in the country regarding closure of  mines of such size in a short time. The regulations  relating to closure have been notified only in recent  years in the country and it will take time for the  expertise to develop fully.

(e)     It is suggested that the task of mine closure be  given, on a turnkey basis, to an Organization having  requisite experience in similar works (on design- and-build basis). Such an Organization can be  selected through a global competitive bid. It should  be the responsibility of such an Organization to  reanalyze the stability of slopes and then draw up a  Closure Plan and execute it with minimum  disturbance to unbroken area of the mine. KIOCL  could assist such an Organization in executing the  closure. Since the execution of closure would  involve a large expenditure and a time frame of  several years for vegetation to be established, such  a task could be overseen by a special cell/nodal  agency created for this purpose.

(f)     The award of work as listed in (e) above could  take several months. Till then, KIOCL need to  monitor and maintain the slopes (in the entire mine  area in general and the northwestern portion in  particular) as well as maintain/operate the silt  control measures at the site.

Again on 12th June, 2006 the report of Expert Committee

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made certain observations on the basis of presentation made  by KIOCL officers on various dates.   The observations were to  the following effects:

"Officers of KIOCL, headed by Mr. J.N.  Kini, Director (Production & Projects), made a  presentation at IIT Delhi on 8th June 2006 on  the measures taken to for controlling silt and  for stability of north western portion. A report  was also submitted containing conceptual  design and detailed design of water pollution  control measures. The following were present:

Mr. J.N. Kini KIOCL Mr. K.S. Kasinath. KIOCL Mr. G. Pai, KIOCL Mr. MK. Rajagopalan, KIOCL

Prof. G.V. Rao, Member, Expert  Committee Prof. K.G. Sharma, Member, Expert  Committee Prof. Manoj Datta, Member, Expert  Committee

All the three members of the Expert  Committee visited the mine site on 10th and  I1th June 2006 to study the measures taken."

The following are the observations of the Expert  Committee members on the basis of the presentation by  KIOCL officers, report submitted by them and the site visit.

"Silt Control Measures

1. It is observed that concerted efforts  have been made by KIOCL for controlling the  flow of silt from the mine site to the Bhadra  river in the form of drainage channels,  catchpits, berms and dykes, check bunds and  check dams.

2. From amongst the two main pollution  control dams, one is observed to be nearly full  (PCD 1) whereas significant storage capacity  exists in the other (PCD2).

3. Attempts have been made by KIOCL, to  the extent feasible, to empty the reservoir  behind PCD1 and these have been abandoned  with the onset of monsoons. Further attempts  can be tried during periods of extended lull in  the monsoon, if any.

4. Diversion of silt laden water has been  made at select locations from drainage channel  of PCD1 to the drainage channel of PCD2.

5. It is stated by officers of KIOCL that  the storage capacity of the main catchpit  before PCD2 as well as the reservoir of PCD2 is  sufficient to hold most of the silt for the  present monsoon. However measures have to  be taken for handling the silt of future years.

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6. The upsteam slope of PCD2 is observed  to exhibit evidence of piping. Remedial  measures such as provision of geotextile filter  and plugging have been undertaken by KIOCL.  Suitable long term measures may be taken up  after the monsoons. Careful monitoring of both  PCD2 and PCDI may be done during and after  the monsoons.

7. It is observed that silt laden water from  the north-west portion does not reach either  PCDI or PCD2 but overflows from the low lying  area in the north west portion into the Bhadra  river through an erosion gully. A gabion  structure has been constructed to control the  silt but the possibility of silt overflow during  heavy rains can not be ruled out. Additional  measures are required to control the silt  release from this area. KIOCL has proposed  the re-profiling of the north west portion to  enable the silt laden water to reach PCD2. This  would take around 6 months and can be taken  up only after the monsoons. Other alternatives  with conceptual and detailed plans need to be  considered for this problem.  

Stability of North-West portion

1.      The stability of the North-West region  is observed to be slightly improved on  account of non-accumulation of water  in the low-lying area.  

2. However, the stability could still be  affected due to the presence of  erosion gully because of overflowing  water.

3.      Complete access to the periphery of the  low-lying area is not available due to  the absence of benches and access  roads.

4. It is important that a few alternate  solutions be ccnceptualized with the  following features for the north west  region as long term measures:

(a) Minimal accumulation of water, (b) Drainage channel to reach PCD2, (c) Benches to stabilize steep slopes, (d) Access load all around the low-lying  area, and (e) Sealing of opening(s) to the erosion  gully(ies).

Final Remarks

KIOCL may prepare revised conceptual  designs and remedial measures on the basis of  the observations made in this report."

On 13.7.2006 the opinion of IIT, Delhi in the background  of the affidavit filed by KIOCL on 10th May, 2006 was as

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follows:

"The Expert Body of IIT Delhi has studied  the affidavit filed by KIOCL. The following are  the views of the Expert Body in respect of item  3 titled "Achieving Slope Stability in the Entire  Mine Area".

1. For stability of slopes of the mine area,  the scope of work defined by KIOCL to NIRM  for their study did not specify the condition of  "no or minimal disturbance to unbroken area".  As a consequence, the NIRM report presents  only one solution, which disturbs the broken  area. It does not give any other alternative  solutions.

2. Other reports by IIT Kharagpur, CMRI  Dhanhad, Monitoring Committee, CWPRS  Pune, use the report of NIRM as the bases of  analysis, hence give recommendations similar  to that of NIRM.

3. As stated in the earlier Report  submitted by the Expert Body on 10th April  2006, it is reiterated that a solution to the  stability of slopes with no or minimal  disturbance to unbroken area is feasible.

4. Flattening of unstable slopes by  excavation in broken area along with  appropriate drainage and silt control measures  can improve stability of the mined area. For  this purpose the mechanism already suggested  at item 6(e) of Expert Body Report dated 10th  April 2006 submitted to Hon’ble Supreme  Court may be adopted."

The significant aspects in the aforesaid report are as  follows: (a) The scope of work defined by KIOCL to NIRM for their  study did not specify the condition of "no or minimal  interference to unbroken area". (b)     Other reports (i.e. of IIT, Kharagpur, CMRI,  Dhanbad, Monitoring Committee, CWPRS, Pune used NIRM’s  report as the foundation for analysis and, therefore, their  recommendations were similar to those of NIRM. (c) Solution to the stability of slopes with no or minimal  disturbances to unbroken area is feasible. (d) By adopting certain measures, stability of the mined  area can be improved.    In the background of what has been noted above, and  keeping in view the suggestions and recommendations of IIT,  which we find to be founded on rational basis, we direct as  follows:

(i) On the basis of the report dated 10.04.2006  of IIT Delhi through a Global Competitive Bid  an Agency to be selected for:

(a) re-analysing the stability of slopes (b)drawing up of mine closure plan and (c) implementation of the above plan.

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(ii) IIT Delhi shall draw up detailed terms for  the work to be done, consistent with the basic  paradigm of "no or minimal disturbance to  unbroken area" and submit to this Court  within a period of four weeks for further  directions.

(iii) The Ministry of Mines, Government of  India, shall designate an officer to take over  possession of the mines immediately. IIT Delhi  shall depute a team of experts to go and do a  survey of the mines and the surrounding area  and submit a report to this Court regarding  any immediate step(s) that need to be taken  during the interregnum till the appointment of  the expert agency. IIT Delhi can ask the  designated officer to take any necessary steps  on an emergent basis.

(iv) The expenditure for the purpose of inviting  global competitive bid and evaluation such as  on advertisement etc. may initially be met out  of Rs.19 crores deposited by the KIOCL, and  which are presently lying with the Adhoc- CAMPA.

(v) If any funds are required in excess of the  aforesaid amount, the Agency, or the  Designated Officer shall move this Court for  necessary directions."

I.A.s are accordingly disposed of.