auna of the region and there is no revenue - motive in this operation.
His arbitrary decision to give clearance for cutting 781 trees inside the Kudremukh National Park is not legally tenable for the following reasons.
(such a felling can be ordered for betterment of wild life in this case the CES report mentions that such a cutting cause damage to the park, so this justification does not hold trueif repair or replacing the pipeline were to help the environment why then did the company not go in for such an action as it was well known fact that the pipe was in a bad shape, for a long time and the pipeline had leaked on five occasions).
He says Removal of tree growth for relaying the pipeline is not driven by commercial reasons and as such the Supreme Court order is not applicable to the instant case.
We feel that, the slurry pipe is meant to transport Iron Ore to the Mangalore Port for sale to parties. The KIOCL has recorded a total sales of 620.79 crores and earned a net profit of 77.04 crores in 1999-2000. How can one say there were no commercial considerations or revenue motive in the operation? The decision seems to be weighted heavily on the commercial side than the ecological side, which is confirmed by the press statement by the KIOCL, wherein they were anguished over the delay in repairing the pipeline which was resulting in losses amounting to Rs. 1 crore per day (Indian Express 16.8.2000).
According to a Newspaper Report (Business line - 14 Dec. 2000) The company has lost considerably due to the slurry pipe leak which took two months to repair, resulting in dropping of net profit by over 66 percent. According to company sources between April to November 2000 the net profit fell to Rs. 9.79 crores from Rs. 29.24 crores during the corresponding period last year.
The company sources had claimed that KIOCL had to obtain permission from the Forest Department for using earth moving equipment and felling trees. After a vigorous follow up and persuasion the State Government gave its clearance on August 21, after which KIOCL completed the repair work.
This clearly shows that the PCCF (Wildlife) was under tremendous pressure to issue the tree felling order not on ecological reasons but purely on commercial reasons.
Even the dates of the order are fishy. The PCCF has given tree cutting order on 6.12.2000 but the Newspaper report says that the order was issued on 21st August 2000, and the pipeline was repaired in a month and pellet plant resumed operations from 21 September, by which time the slurry started flowing once again in the pipeline.
Who is to be believed is a big question? Should we believe the PCCF (Wildlife) who has given the order on 6th and 7th December 2000 or the Newspaper Report dated 14.12.2000, which quotes company sources as saying the order was given on 21st August 2000?
The issue should have been referred to Supreme Court as required under law and not arbitrarily decided by the PCCF (Wildlife) himself, which is a serious violation of the Supreme Court order dated 14.02.2000 in WP No. 202/95 and the directions of the solicitor General of India in his letter dated 18.7.2000.
D) Violation of the Explosive Act 1884
The Chief Controller of Explosives, Government of India, had granted explosives licences on 15.11.1978, which expired on 31.3.1998 and was renewed from 1.4.1998 to 31.3.2000. The licences were renewed in 1998, well after the area was declared as a National Park in 1987.
As the magazine licences granted to KIOCL is in violation Sec 32 [read with 35(8)] of the Wild Life (Protection) Act (WL (Act) of 1972 which read as follows:
Section 32 : Ban on injurious substances - No person shall use in a sanctuary, chemicals, explosives or any other substances which may cause injury to, or endanger, any wild life in such sanctuary.
For National Park :
Section 35 (8) : the provision of Section 27 and 28, Section 30 to 32 (both inclusive) and clauses (a), (b) and (c) of [Section 33, Section 33-A and Section 34], shall as far as may be apply in relation to a National park as they apply in relation to a sanctuary.
We wrote as follows on 16.6.99, You have said that the licences can be cancelled by the CCE only if the conditions of magazine licences or provisions of Explosives Act and Rules are violated. We wish to draw your attention to a provision in the Explosives Act which states that a violation of any other law should also be taken into consideration by the licensing Authority for revocations. The said provision reads as :-
Section 6E; Variation, Suspension and revocation of licences -
(3) The licensing authority may by order in writing suspend a licence for such a period as it thinks fit or revoke a licence -
(a) if the licensing authority is satisfied that the holder of the licence is prohibited by this act or any other law for the time being in force to manufacture, possess, sell transport, import or export any explosive, or is of unsound mind or is for any reason transport, import or export any explosive, or is of unsound mind or is for any reason unfit for a licence under this act;
Further you may please note that it is a settled law that any renewal is to be treated as a fresh licence and must be consistent with law which has been upheld by the Honble Supreme Court. (Krishnadastikaram Vs. State of Madhya Pradesh in SC).
It is clear that licences are in violation of the WL Act therefore they need to be revoked as per the provisions of Sec 6E of the explosives Act. Thus we once again request you to immediately revoke the licences given to KIOCL under Sec 6E and Rule 167 of the Explosives Act and Rules 1884.
Accordingly the Joint Chief Controller of explosives was contacted on 13.10.1979 to cancel the explosives licence, as explained above. The objections regarding renewal of explosives licences were also sent to Chief Controller of Explosives, on 11.10.99, Chief Conservator of Forests, Southern Region, on 22.9.99, and the Minister for Environment and Forests, Government of India on 16.9.99 respectively. These letters were forwarded to various Government agencies by the respective correspondents and to the KIOCL.
In reply the KIOCL has stated on 27.09.1999 the mining is to be carried out for the next one year. It may be noted that no mining activity can be undertaken without blasting, use of explosives and other accessories. In view of the above, it is felt that the renewal of licences mentioned in the letter referred above granted to KIOCL is justified and further renewal is also necessary.
The matter should have been referred to Supreme Court before renewal 31.3.1998 and clearance obtained from the Supreme Court as per directions of Supreme Court in WP 202, 1995, delivered on 15.1.98.
As such no effort has been made by the Government, which is a respondant in WP 202/1995, to seek Supreme Court directions, the renewal of explosives licence on 31.3.98, is a clear violation of the explosives act, the Wildlife Protection Act and the Forest Conservation Act.
E) Violation of DAM Safety Norms
The KIOCL, neither took permission for building the Lakhya Dam as required under law, nor did they obtain the approval of the plans from the Dam Safety Panel, constituted by the Government of Karnataka.
This resulted in extensive damage to the spillway of Lakhya Dam during 1992. Much hue and cry was raised by the public. The Government, nominated Shri M. Shivananda, Engineer-in-Chief and Managing Director of Karnataka State Construction Corporation (KSCC), as the representative of the Government of Karnataka, in the committee constituted by KIOCL, by an order on 8.9.92.
The terms of reference included
i) To ensure into the circumstances that led to damage caused to the temporary spillway over the Lakhya reservoir.
ii) To assess the damage caused.
iii) To assess the quantum of financial loss incurred in this regard, direct and indirect.
iv) To assess the adequacy of measures taken prior and subsequent to the damage caused to the spill way.
v) To determine the agencies responsible for the lapses, if any, and to fix responsibility, if any, in such an event.
However, efforts to unearth the findings by the investigating team have not been successful so far.
This is a simple case. The dam was constructed in violation of the Irrigation Act. No safety measures were taken. The plans were not approved by the Dam Safety Panel.
Under the circumstances the Government should have fixed the responsibility and prosecuted the company for its lapses, which are well established. Damages should have been calculated and collected from the company.
Interestingly, the KIOCL, itself constituted a committee under the chairmanship of its Executive Director, to inquire into the circumstances leading to the damage caused to the spillway of Lakhya Dam, built by the KIOCL.
On the contrary, the Government should have constituted an enquiry committee and nominated experts as chairman and members. It could have asked the company to assist the committee with its documents. Such an independent body alone could have unearthed the sequence of events contributing to the damage of the spillway and fixed the responsibilities.
As such the company itself was allowed to conduct the enquiry for its own lapse, obviously not much was expected to surface and till date no action seems to have been taken to fix the responsibility and recover the damages to the environment and the Bhadra Reservoir down stream.
Since the company has violated many acts as explained above. The application for renewal of mining lease must have been rejected forthwith.