GREEN MINUTE NEWS:
A memorandum seeking “Rejection of KIOCL’s proposal for Ex-Post Facto Forest Clearance for illegal submergence of 500 ha of forest land within Kudremukh National Park (KNP)” has been submitted to the Karnataka government and the Karnataka Forest Department.
Wildlife First states the sordid saga of KIOCL mining in Kudremukh has to finally come to an end and it would be just and appropriate to “notify the entire extent of 1401 ha of government land” as part of the Kudremukh National Park, Chikkamagaluru district, Karnataka.
Submitting the memorandum, Wildlife First Trustee Praveen Bhargav said, “It is shocking that the issue of Ex Post-facto clearance sought by KIOCL vide proposal – FP/KA/OTHERS/403326/2022 is being considered when it ought to have been rejected in limine due to various judgments of the Supreme Court. This is therefore, a matter of serious concern and we are flagging it in supreme Public Interest.”
Further, Wildlife First was the petitioner in the matter – Supreme Court’s Judgment in IA No.670 in WP 202/1995 dt. 30.10.2002 which resulted in a landmark judgment leading to closure of mining and also the final notification of Kudremukh National Park.
HOW WAS KIOCL PROPOSAL APPROVED?
It is apparent that KIOCL has deviously uploaded the said proposal for Forest Clearance under the more enabling legal regime under Section 2 of the Forest (Conservation) Act (FCA),1980. On a cursory examination of Form Part III filled by the Conservator of Forests, Mangaluru, he has observed that ex-post facto clearances as per FCA guidelines are not to be considered and also cites some negative impacts. And yet, for some reasons, he recommends the proposal for approval under the FCA when it is crystal clear that the proposal falls within the ambit of Wildlife Clearance and the Wildlife (Protection) Act, 1972 is applicable.
Praveen Bhargav states in his memorandum, “We wish to draw your attention to the decision of the Supreme Court in the Lafarge Judgment and Guidelines (three judges) which has clearly held that Ex post facto clearances are not permissible. This is the current legal position that prevails and therefore, there is no scope whatsoever to consider the said proposal and accord ex-post facto clearance to KIOCL.”
Apart from this, Section 35(6) of the Wildlife (Protection) Act, 1972 clearly prohibits the diversion or stopping the flow of water into or outside the Kudremukh National Park unless it is for the improvement and better management of wildlife.
“The proposal seeking diversion of water from KNP is no way connected to improvement and better management of wildlife. On the contrary, the Lakya tailings dam and the illegal raising of its height to 100 m has destroyed wildlife habitat within the KNP for which the CAG Report, 2003 had assessed the environmental loss to be Rs 115.86 crore. But this is yet to be recovered. Even after more than 20 years, it appears that this amount with penal interest has not yet been recovered.”
In his memorandum, Bhargav says, “It is very disturbing to note that authorities involved in the process of forest and wildlife clearances are not recording their observations on the prevailing Orders / Judgments of Constitutional Courts that may render proposals void. This is a matter of serious concern and we request you to kindly ensure that this aspect is carefully scrutinized in the PSC meetings/review process.”
SERIES OF OFFENCES COMMITTED BY KIOCL & RESULTING ENVIRONMENTAL LOSS
The KIOCL company has committed a series of forest offences in blatant disregard to law and this is a matter of public record. And the long list of offences is pretty long:
- Illegally raising the height of the Lakya dam,
- Illegally mining an additional forest area of 56.28 ha as per CAG’s 2003 report,
- But Environmental loss pegged at Rs 19.33 crore has not been recovered
- KIOCL has constructed roads and borrow pits breaking fresh forest land
- But Environmental loss fixed at Rs 3.96 crores not recovered
- As per CAG report, a total penalty to be recovered from KIOCL is to the tune of Rs 139.15 crore.
- Pipeline carrying iron ore slurry had burst & severely polluted a pristine forest stream – Yenne hole and damaged a portion of KNP.
- Illegal occupation of 1401 Ha of govt land
- Sub-leased the buildings standing on this govt land to a private entity for setting up a Luxury Resort. (However, Wildlife First’s petition in Karnataka High Court led to closing down of resort.)
According to Wildlife First, there is no scope whatsoever for any kind of “dropping or waiving” of all claims or valuation of such assets and setting it off against pending claims as sought for by KIOCL in the said proposal. “Mining Lease covenants contain a forfeiture clause which specifies that if the lessee has not removed the plant, machinery and buildings within six months of the determination of the lease, it stands forfeited to the Government.”
A VIOLATOR BEING REWARDED
Section 35(8) of the WPA provides for issuance of a final notification without going through the proceedings under Section 19 to 26 (both inclusive) and sub-sections (3) & (4) of Section 35. “No settlement process needs to be traversed and the final National Park notification can be directly issued as a corrigendum to the existing notification dated 09.01.2007.
Praveen Bhargav further states, “ In view of the above facts and existing Judgments of Supreme Court, which you are individually and severally bound to ensure implementation, enabling Forest or Wildlife Clearance to the company would not only be detrimental to wildlife conservation but also raise serious moral questions on how a violator is being rewarded.”
Appealing to the state governmentt, the memorandum requests:
- Rejection of Proposal No. FP/KA/OTHERS/403326/2022 and any other related proposals of KIOCL including the Pipeline;
- Ensure recovery of Rs 139.15 crore penalty & use it for voluntary resettlement of villages out of Kudremukh National Park;
- Issue a corrigendum to the Notification dt. FEE.62 FWL.06 dt.09.01.2007 and include the 1401 ha of govt land that now fully vests with the State Govt, as part and parcel of KNP;
- Withdraw the Right of Way granted to KIOCL for maintenance of the Slurry Pipeline; and
- Commence process of acquisition of 114.3 ha of land acquired by KIADB for KIOCL and merge it with KNP and such acquisition is deemed to be for a public purpose as provided for under Section 25(2) of the Wildlife (Protection) Act, 1972.