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IN SUPREME COURT OF INDIA Page 1 of 9

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.