Kerala High Court
M/S.Petra Crushers vs The State Environment Impact, ... on 12 April, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(C) NO. 29474 OF 2023
PETITIONER/S:
M/S.PETRA CRUSHERS,
ELAMCADU P.O., KOOTIKKAL, KANJIRAPALLY, KOTTAYAM
REPRESENTED BY ITS MANAGING PARTNER SRI. THOMAS P.
MATHEW, PIN - 686514
BY ADVS.
ENOCH DAVID SIMON JOEL
S.SREEDEV
RONY JOSE
LEO LUKOSE
KAROL MATHEWS SEBASTIAN ALENCHERRY
DERICK MATHAI SAJI
JOSEPH KODIANTHARA (SR.)
RESPONDENT/S:
1 THE STATE ENVIRONMENT IMPACT, ASSESSMENT AUTHORITY,
K.S.R.T.C BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR,
THIRUVANANTHAPURAM, REPRESENTED BY ITS MEMBER
SECRETARY, PIN - 695001
2 THE STATE LEVEL EXPERT APPRAISAL COMMITTEE,
K.S.R.T.C BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR,
THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN, PIN -
695001
3 ADDL.R3: STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM (ADDL.R3 &
R4 ARE IMPLEADED AS PER ORDER DATED 17/10/2023 IN IA
2/2023.)
4 ADDL.R4:THE DIRECTOR OF MINING & GEOLOGY,
DIRECTORATE OF MINING & GEOLOGY, PATTOM P.O,
THIRUVANATHAPURAM (ADDL.R3 & R4 ARE IMPLEADED AS PER
ORDER DATED 17/10/2023 IN IA 2/2023.)
5 ADDL.R5: SHEENA MANOJ,
W/O. MANOJ, POTTAYAIRYIL HOUSE, VALYANTHA, ELAMKADU
P.O., KOTTAYAM DISTRICT-686514 (IS IMPLEADED AS PER
ORDER DATED 30/1/2024 IN IA1/23 IN WP(C) 29474/2023)
W.P.(C)No.29474/2023 2
6 ADDL.R6:KERALA STATE BIODIVERSITY BOARD,
L-14, JAI NAGAR, MEDICAL COLLEGE (P.O),
THIRUVANANTHAPURAM - 695011 (IS SUO MOTU IMPLEADED AS
ADDL. R6 AS PER ORDER DATED 08/02/2024 IN WP(C)
29474/2023)
BY ADVS.
ANAND KALYANAKRISHNAN
No Advocate
NAVEEN.T, SC, KERALA STATE BIODIVERSITY BOARD
N.K.SUBRAMANIAN
C.DHEERAJ RAJAN
ABRAHAM MATHAN
OTHER PRESENT:
SRI. ANAND KALYANAKRISHNAN-S.
SMT.GIA MATHAI KANDATHIL - ADV.COMMISSIONER
SRI. M.P. SREEKRISHNAN -SC,
SRI. S. KANNAN-SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.29474/2023 3
'CR'
JUDGMENT
This writ petition has been filed challenging Exts. P3, P4 and P6 proceedings of the State Level Environment Impact Assessment Authority (the 'SEIAA').
The facts in brief:-
2. The petitioner is a registered partnership firm engaged in the business of granite quarrying. It had been issued with a quarrying lease on 20.3.2012 for a period of 12 years under the erstwhile Kerala Minor Mineral Concession Rules, 1967. The validity of the lease thus expired on 19.3.2024. The Environment Impact Assessment (EIA) Notification, 2006 did not insist upon an environmental clearance being obtained for quarrying/mining of minor minerals provided the area over which such mining is proposed was of an extent of less than five hectares. The Supreme Court of India, in its judgment in Deepak Kumar & others v. State of Haryana and others;
(2012) 4 SCC 629, issued certain directions to the State Governments and Union Territories regarding the framing of new mineral concession rules for minor minerals, keeping in mind the model rules W.P.(C)No.29474/2023 4 framed by the Government of India and dealing with all aspects of mining of minor minerals. It was also directed that in the meanwhile, leases for mining of minor minerals (including renewal) in areas of less than five hectares shall be granted by the State/Union Territories only after getting environmental clearance from the Ministry of Environment, Forest and Climate Change. Following the judgment of the Supreme Court in Deepak Kumar (supra), the Ministry of Environment, Forest and Climate Change issued an Office Memorandum bearing No. L-11011/47/2011-IA.II(M) dated 18.5.2012 to implement the directions issued by the Supreme Court. A question arose before this Court as to whether the directions issued in Deepak Kumar (supra), read with the provisions of the Office Memorandum dated 18.5.2012, would require holders of mining leases issued before 18.5.2012 to apply for and obtain an environmental clearance before carrying on with their operations. A Division Bench of this Court, in the judgment reported as All Kerala River Protection Council v. State of Kerala; 2015(2) KLT 78, took the view that holders of mining leases issued prior to the date of issuance of the EIA notification 2006 or before the issuance of the order dated 18.5.2012 by the Government of India, Ministry of Environment, Forest and W.P.(C)No.29474/2023 5 Climate Change with regard to areas of less than five hectares require no environmental clearance and the requirement of environmental clearance will arise only when the lease comes up for renewal or re- issue. Therefore, the petitioner and several other operators (whose mining lease covered an area of less than five hectares) continued to operate their mines without environmental clearance. When the petitioner faced an issue with regard to the issuance of a D&O license by the local Panchayath on the ground that it had not obtained an environmental clearance, it approached this Court by filing W.P. (C)No.33540/2017 which was disposed of by Ext.P7 judgment holding that, in the light of the law laid down by this Court in All Kerala River Protection Council (supra), no environmental clearance can be insisted upon in respect of its activities.
3. While matters stood thus, the Ministry of Environment, Forest and Climate Change issued a notification dated 15.1.2016, amending the EIA Notification, 2006 and providing for the constitution of District Level Environment Impact Assessment Authorities. A question arose before the National Green Tribunal -SZ (hereinafter referred to as 'the NGT' or as 'the Tribunal') as to whether, in the light of the notification dated 15.1.2016, the persons W.P.(C)No.29474/2023 6 with existing mining leases for mining of minor minerals in an area of less than five hectares were required to take out an environmental clearance. In O.A.No.136/2017 (Tamil Nadu Small Mine Owners Federation v. The Secretary, MoEF & CC, New Delhi and Ors), it was held that, following the notification dated 15.1.2016, all existing leaseholders engaged in the mining of minor minerals in areas less than five hectares were also required to obtain environmental clearance for continuation of their operations and further that those who had not filed any application for environmental clearance before 31.3.2016 will be considered to be violators. The Tribunal, thereafter, considered and disposed of O.A.No.244/2017 by Ext.R3(b) judgment (Shefy Joseph v. Government of India and others) in the matter of mining activities carried on by M/s. Cochin Granites (a partnership firm). Following the view taken in Tamil Nadu Small Mine Owners Federation (supra) and again holding that the notification dated 15.1.2016 required obtaining environmental clearance by persons engaged in mining minor minerals even in areas less than five hectares, the NGT disposed of O.A.No.244/2017 as under:-
"43. So under such circumstances, we feel that the application can be disposed of by giving following directions:- W.P.(C)No.29474/2023 7
(i) It is declared that the mining operation done by the 4th respondent under the name and style of M/s.
Cochin Granites in the disputed area after 15.01.2016, till they stopped their mining operation on the basis of the old lease of 2006 is illegal and unauthorized and they are liable to pay environmental compensation for the quantity of mined articles which has to be assessed by the Mining and Geology Department.
(ii) The Directorate of Mining and Geology Department is directed to assess the environmental compensation, penalty for excess mining and royalty lost to the exchequer for excess mining on the basis of the quantity of minerals mined from 15.01.2016, till the mining operation was stopped by M/s. Cochin Granites on the basis of the old lease and take steps to recover the amount from M/s. Cochin Granites in accordance with law.
(iii) The Director of Mining and Geology Department is also directed to ascertain as to whether he had complied with the closure plan provided while executing the mining lease of 2006 and if he had not complied with the same, take appropriate action against them for enforcing the mining closure plan and recover the damage, if any, caused on account of the same to the environment from the 4th respondent in accordance with law.
(iv) The Director of Mining and Geology Department is directed to file the action taken report on the basis of the above direction before this Tribunal within a period of 4 (Four) months, after providing necessary opportunities to the 4th respondent in this regard in accordance with law.
(v) If such report is filed, then the office is directed to place the same before the Bench for consideration and issuing further directions in this regard.
(vi) Considering the circumstances, the parties are directed to bear their respective costs in the application .
44. Thus, the points are answered accordingly.
45. In the result, the application is disposed of as follows:-
(i) It is declared that the mining operation done by the 4th W.P.(C)No.29474/2023 8 respondent under the name and style of M/s. Cochin Granites in the disputed area after 15.01.2016, till they stopped their mining operation on the basis of the old lease of 2006 is illegal and unauthorized and they are liable to pay environmental compensation for the quantity of mined articles which has to be assessed by the Mining and Geology Department.
(ii) The Directorate of Mining and Geology Department is directed to assess the environmental compensation, penalty for excess mining and royalty lost to the exchequer for excess mining on the basis of the quantity of minerals mined from 15.01.2016, till the mining Page 32 of 33 operation was stopped by M/s. Cochin Granites on the basis of the old lease and take steps to recover the amount from M/s. Cochin Granites in accordance with law.
(iii) The Director of Mining and Geology Department is also directed to ascertain as to whether he had complied with the closure plan provided while executing the mining lease of 2006 and if he had not complied with the same, take appropriate action against them for enforcing the mining closure plan and recover the damage, if any, caused on account of the same to the environment from the 4th respondent in accordance with law.
(iv) The Director of Mining and Geology Department is directed to file the action taken report on the basis of the above direction before this Tribunal within a period of 4 (Four) months, after providing necessary opportunities to the 4th respondent in this regard in accordance with law.
(v) If such report is filed, then the office is directed to place the same before the Bench for consideration and issuing further directions in this regard, if any required.
(vi) Considering the circumstances, the parties are directed to bear their respective costs in the application.
(vii) The Registry is directed to communicate this order to the Director of Mining and Geology Department by e-mail immediately for their information and compliance.
46. With the above observations and directions, this application is disposed of."
This order of the NGT was challenged before the Supreme Court of India by filing an appeal under Section 22 of the National Green W.P.(C)No.29474/2023 9 Tribunal Act, 2010 (hereinafter referred to as the NGT Act). The appeal was numbered as Civil Appeal No.4643/2021. By an order dated 16.8.2021, the Supreme Court dismissed the appeal, finding that 'there is no error of fact or law in the order of the NGT dated 27.5.2021 in O.A.No.244/2017 (SZ).' A petition seeking review of the order in Civil Appeal No.4643/2021 filed as R.P.(C).No.1285/2021 in Civil Appeal No.4643/2021 was also dismissed by an order dated 14.12.2021.
4. It is in the background of the orders issued by the NGT in O.A.No.244 of 2017 and following the dismissal of the appeal challenging the judgment of the NGT that the impugned proceedings/notices were drawn up and issued to the petitioner. The petitioner is thus before this Court seeking to quash Exts. P3, P4 and P6. While Exts. P3 and P6 are minutes of the meetings of the SEIAA, Ext.P4 is a copy of the stop memo dated 25.07.2023 issued to the petitioner and calling upon the petitioner to stop all quarrying activities in the quarrying site of the petitioner situated within the limits of the Koottickal Village, Kanjirappally Taluk, Kottayam District.
5. Sri. Joseph Kodianthara, the learned senior counsel W.P.(C)No.29474/2023 10 appearing for the petitioner ably assisted by Sri. Enoch David contends that insofar as the petitioner is concerned, the decision of the NGT in O.A.No.244 of 2017 and the fact that an appeal filed against the said judgment of the NGT before the Supreme Court had been dismissed cannot result in the issuance of Ext.P4 stop memo and the communication of the decision of the first respondent that the petitioner is not entitled to carry on with its quarrying activities without an Environmental Clearance. It is submitted that the order of the NGT is unsustainable in law. It is submitted that the Tribunal completely ignored the law laid down by the Division Bench of this Court in All Kerala River Protection Council (supra) and proceeded to decide the matter on the basis of the judgment of the Principal Bench of the Tribunal in Himmat Singh Shekhaswat and Others v. State of Rajasthan and Others in O.A.No.123 of 2014. It is pointed out that, though the order of the NGT in O.A.No.244 of 2017 proceeds on the basis that the Principal Bench of the Tribunal had decided Himmat Singh (supra), after the judgment of the Division Bench of this Court in All Kerala River Protection Council (supra), the said statement is factually incorrect. It is submitted that All Kerala River Protection W.P.(C)No.29474/2023 11 Council (supra) was decided after the decision of the Principal Bench of the Tribunal in Himmat Singh (supra). It is submitted that, even if the judgment in Himmat Singh (supra) was after the judgment of the Division Bench of this Court in All Kerala River Protection Council (supra), the Tribunal ought to have followed the Division Bench judgment of this Court as the same was binding on the Tribunal. It is submitted that the view taken by the Tribunal that the notification dated 15.01.2016 constitutes a change of law is absolutely incorrect. The notification dated 15.01.2016 is referred to extensively to point out that the said notification does not constitute any change of law from the time at which the matter was considered by the Division Bench of this Court in All Kerala River Protection Council (supra). It is submitted that the Special Leave Petition filed against the judgment of this Court in All Kerala River Protection Council (supra) was dismissed as withdrawn. It is submitted that the law laid down in All Kerala River Protection Council (supra) again came up for consideration of a Division Bench of this Court in Paristhithy Samrakshana Janakeeya Samithy v. State of Kerala, 2015 (4) KLT 278. It is submitted that, while affirming the law laid down in All Kerala River W.P.(C)No.29474/2023 12 Protection Council (supra), this Court, in Paristhithy Samrakshana (supra), held that, in cases of mining permits issued from year to year, an environmental clearance would be required in terms of the office memorandum dated 18.05.2012, whenever the permit comes up for renewal. It is submitted that the judgment of the Division Bench in Paristhithy Samrakshana (supra) was challenged before the Supreme Court by filing SLP No.30103 of 2015. It is submitted that the said SLP was dismissed by the Supreme Court on 02.12.2016. Thus, it is submitted, insofar as the petitioner is concerned, its mining operations could never be stated to have been illegal or contrary to law, as the law laid down by this Court in All Kerala River Protection Council (supra) continued to apply to all mining leases issued before 18.05.2012 and in respect of mining of minor minerals in an area less than five hectares. It is submitted that the fact that the appeal filed against the order of the NGT in O.A.No.244 of 2017 had been dismissed by the Supreme Court (through an order dated 16.08.2021 in C.A No. 4643 of 2021) does not prohibit this Court from examining the correctness of the order passed by the NGT, as the order of the Supreme Court does not constitute a merger of the judgment of the NGT with the order of the Supreme W.P.(C)No.29474/2023 13 Court. It is submitted that the order of the Supreme Court cannot be treated as a binding precedent for the purposes of Article 141 of the Constitution of India. It is submitted that since the notification dated 15.01.2016 does not constitute a change of law, the decision of the Division Bench of this Court in All Kerala River Protection Council (supra) will continue to operate insofar as the petitioner is concerned. Therefore, it is submitted the proceedings initiated against the petitioner based on the findings of the NGT in O.A.No.244 of 2017 are liable to be declared illegal and unsustainable. It is pointed out that the cut-off date fixed in terms of the judgment of this Court in All Kerala River Protection Council (supra) is 18.05.2012, and considering the fact that no mining lease can be granted for more than 12 years at a stretch, the last of the mining leases, which could be operated without obtaining the environmental clearance for the extraction of minor minerals in an area of less than five hectares would come to an end not later than 17.05.2024. It is submitted that the finding of the SEIAA in the impugned proceedings that the activities of the petitioner after 15.01.2016 are illegal and proposing to take action on that basis is clearly unsustainable, as the petitioner was operating its mine, in terms of the law laid down by this Court in All W.P.(C)No.29474/2023 14 Kerala River Protection Council (supra), which the State and its authorities had accepted. In other words, it is submitted that even if this Court have to hold that the law laid down by the NGT in O.A.No.244 of 2017 is correct, the said decision cannot be a ground to hold that all operations of the petitioner after 15.01.2016 are illegal.
6. Sri. S. Kannan, the learned Senior Government Pleader appearing for the State of Kerala and its officers, supports the contention taken on behalf of the petitioner that the dismissal of the statutory appeal against the order of the NGT and the fact that the Supreme Court has also dismissed a review petition filed before the Supreme Court is no ground to hold that the Supreme Court has affirmed the view taken by the NGT.
7. The following decisions were cited for the petitioner and on behalf of the State of Kerala to support the contention that there is no merger of the order of the NGT in O.A.No.244/2017 with the order of the Supreme Court dismissing the appeal filed against that order and also in support of the proposition that the order of the Supreme Court dismissing the appeal filed against the order of the NGT in O.A 244/2017 is not 'law declared' for the purposes of Art.141 of the Constitution of India.
W.P.(C)No.29474/2023 15i Pilot UJS Chopra v. State of Bombay (1955) 2 SCR 94 ii Nirbhay Singh v. State of Madhya Pradesh (1969) 2 SCR 569 iii S. Shanmugavel Nadar v. State of Tamil (2002) 8 SCC 361 Nadu and another iv Macquarie Bank Limited v. Shilpi Cable (2018) 2 SCC 674 Technologies Limited v Jayant Verma and others v. Union of India (2018) 4 SCC 743 and others vi Kaikhosrou (Chick) Kavasji Framji v. Union (2019) 20 SCC 705 of India and another vii Experion Developers Private Limited v. 2023 SCC OnLine Himanshu Dewan and others; SC 1029 viii Secundrabad Club etc. v. C.I.T- V Etc 2023 SCC OnLine SC 1004
8. Sri. M. P Sreekrishnan, the learned counsel appearing for the State Environmental Impact Assessment Authority (SEIAA) and Sri. N. K Subramanian, the learned counsel appearing for the additional 5th respondent, would submit that the order of the Supreme Court dismissing the appeal filed under Section 22 of the NGT Act against Ext.R5(b) order attracts the doctrine of merger and the order of the Supreme Court is 'law declared' for the purpose of Art.141 of the Indian Constitution of India. It is submitted that when the Supreme Court has found that there is no error either in fact or in law in the order of the NGT, it does not lie in the mouth of the petitioner to contend that this Court must, in the exercise of its jurisdiction under Article 226 of the Constitution of India, hold that W.P.(C)No.29474/2023 16 the order of the NGT is contrary to law and against the ratio of the judgment of this Court in All Kerala River Protection Council (supra). It is submitted that the petitioner has conducted mining activities violating its mining plan, and several violation cases have been registered against the petitioner. It is submitted by the learned counsel for the additional 5 th respondent that the Koottikkal Village has been included in the list of villages notified as an Ecologically Sensitive Area (ESA) prone to landslides and other calamities. Therefore, even otherwise, the petitioner's mining activity is illegal and is liable to be stopped. It is submitted that it is clear from Ext.P9 document produced along with I.A.No.3 of 2023 dated 06.07.2022 that no mining activities can be permitted in an Ecologically Sensitive Area. The learned counsel appearing for the additional 5th respondent would submit that the statutory authorities have not considered several complaints filed by the residents of the locality. The learned counsel for the additional 5th respondent relies upon the following judgments in support of his propositions:-
i Collector of Customs, Calcutta v. East India AIR 1963 SC 1124 Commercial Co. Ltd., Calcutta and others;
ii Shankar Ramachandra Abhyankar v. (1969) 2 SCC 74 Krishnaji Dattatraya Bapat;
iii M/s. Gojer Brothers (P) Ltd. v. Shri. Ratan (1974) 2 SCC 453 W.P.(C)No.29474/2023 17 Lal Singh;
iv Pernod Ricard India Private Limited v. (2010) 8 SCC 313
Commissioner of Customs, ICD
Tughlakabad;
v Khoday Distilleries Ltd. (Now Known as (2019) 4 SCC 376
Khoday India Ltd) & Ors. v. Sri.
Mahadeshwara Sahakara Sakkare
Karkhane Limited, Kollegal;
vi S.E. Graphites Private Limited v. State of (2020) 14 SCC 521
Telangana and others;
9. Sri. Enoch David, the learned counsel appearing for the petitioner, would submit, in reply, that several of the contentions taken by the additional 5th respondent are outside the scope of the pleadings in the writ petition and should not be adjudicated by this Court. In other words, it is submitted that the only question now before this Court is whether Ext.P4 stop memo issued to the petitioner on the basis that it was continuing with mining activity without obtaining environmental clearance can be sustained or not. It is submitted that the contention of the learned counsel for the additional 5th respondent that the Koottikkal Village is included in the list of villages notified as an Ecologically Sensitive Area cannot be accepted, as it is clear from Ext.P6 itself that the Koottikkal Village though initially notified as an Ecologically Sensitive Area was later removed.
No area within Kottayam District is now included as an Ecologically W.P.(C)No.29474/2023 18 Sensitive Area is the submission. It is submitted that the contention of the learned counsel for the additional 5th respondent that the petitioner has conducted mining activities contrary to the mining plan submitted in terms of the provisions contained in the Kerala Minor Mineral Concession Rules, 2015, is absolutely incorrect and contrary to the facts. It is submitted that the additional 5th respondent has not raised any complaint herein before and has only come up with his complaint that the petitioner is engaged in illegal mining at a time when the mining lease granted to the petitioner is set to expire.
10. I have considered the contentions raised. Several decisions have been cited in support of the contention that the order of the Supreme Court in Civil Appeal No. 4643 of 2021 dismissing the appeal filed under Section 22 of the NGT Act against the order in O.A.No.244 of 2017 does not result in merger of the order of the NGT with the order of the Supreme Court and also in support of the proposition that the order of the Supreme Court is not 'law declared' for the purposes of Article 141 of the Constitution of India. Several decisions have been cited by the learned counsel appearing for the respondents to counter the aforesaid contentions. Though I do not intend to rest my decision in this case either on the application of the W.P.(C)No.29474/2023 19 principle of merger or on the issue as to whether the order of the Supreme Court is 'law declared' for the purposes of Article 141 of the Constitution of India, these decisions may be briefly analyzed. In Pilot U.J.S Chopra (supra), the appellant in the case was convicted for committing an offence under the Bombay Prohibition Act, 1949. An appeal filed to the High Court was summarily dismissed. After the dismissal of the appeal, the State filed a revision petition to enhance the sentence. Notice was issued to the appellant/accused under Section 439 (2) of the Code of Criminal Procedure, 1898. The question that arose for consideration was whether the appellant/accused, in terms of the provisions under Section 439 (6) of the 1898 Code, could then show cause against his conviction, also taking into consideration the fact that the High Court had summarily rejected his appeal against the conviction. While considering the aforesaid question, the Supreme Court held that when an appeal is summarily dismissed, there will be no judgment of the High Court replacing the judgment of the subordinate court and the judgment/order of the High Court would only amount to the refusal of the High Court to admit the appeal and consider the same in accordance with the law. Nirbhay Singh (supra) takes the view W.P.(C)No.29474/2023 20 that when an appeal preferred by a person convicted for an offence is summarily dismissed under Section 421 of the Code of Criminal Procedure, 1898, the same may not bar a subsequent revision by the State. It was held where, however, the High Court issues notice to the State in an appeal by the accused against the order of conviction and the appeal is heard and decided on merits, all questions determined by the High Court either expressly or by necessary implication must be deemed to be finally determined, and there is no scope for reviewing those orders in any other proceeding. In S. Shanmugavel Nadar (supra), it held that, for there to be a declaration of law, it is only the speech expressed which becomes a declaration of law by the Supreme Court under Art.141 of the Constitution of India. In the facts of that case, the question that arose was whether the dismissal of appeals filed before the Supreme Court against the judgment of the Madras High Court on the ground that there was a non-joinder of necessary parties would bar the consideration of the law by another co-ordinate bench of the Madras High Court or a larger bench of the Madras High Court. It was held that a decision that is not expressed and not founded on reasons and a judgment that does not proceed to consider the issues cannot be deemed to be 'law declared'. In Macquarie W.P.(C)No.29474/2023 21 Bank Limited (supra), while considering the question as to whether the dismissal of an appeal by the Supreme Court against an order of the National Company Law Appellate Tribunal would constitute a merger, it was held that where an appeal is dismissed at the threshold even if the order of the lower forum could be said to have merged with the order of the Supreme Court, the order of the Supreme Court cannot be treated as 'law declared' under Art.141 of the Constitution of India. In Jayant Verma (supra), it was held that for the order of the Supreme Court to be a binding precedent under Art.141 of the Constitution of India, the decision of the Supreme Court must satisfy the tests laid down in Dalbir Singh v. State of Punjab; 1979 (3) SCR 1059. It was held that every decision, to be a binding precedent, must contain three basic ingredients namely:- i) Findings of material facts, direct and inferential; ii) Statements of the principles of law applicable to the legal problems disclosed by the facts, and iii) A judgment based on the combined effect of (i) and (ii) above. The decision is also an authority for the proposition that, where the direct facts of an earlier case are identical to those of the case before the Court, the Judge is not bound to draw the same inference as drawn in the earlier case. Kaikhosrou (Chick) Kavasji Framji W.P.(C)No.29474/2023 22 (supra) holds that for the principle of merger to operate, the Superior Court must go into the merits of the issues decided by the Court below it and record findings one way or another on its merits. It was held that if this is not done by the superior court, a plea of merger has no application in such a case and the order of the Subordinate Court would continue to hold the field. In Experion Developers Private Limited it was held that the dismissal of a statutory appeal by the Supreme Court against an order of the National Consumer Disputes Redressal Commission would not be treated as attracting the doctrine of merger and the order of the Supreme Court without expressing any elaborate reasoning would not have any precedential value for the purposes of Art.141 of the Constitution of India. In Secundrabad Club (supra) it was held that an order of the nature issued by the Supreme Court in the statutory appeal against the order of the NGT (Ext.R3(b)) cannot be treated as a binding precedent for the purposes of Art.141 of the Constitution of India and that an order made merely to dispose of the case cannot have the value or effect of a binding precedent. The said judgment also holds that the precedential value of an order of the Supreme Court, which was not preceded by a detailed judgment, would be lacking and there can be a declaration of W.P.(C)No.29474/2023 23 the law only when the same is expressed by way of a speaking order. It was held that in the absence of any deduction, reasoning or analysis an order of the Supreme Court cannot carry any precedential value as there is no discernible ratio decidendi in the order of the Supreme Court. It was held that while the order will be binding on the parties to the order, it cannot act as a precedent for subsequent cases (see paragraphs 22 & 24 of the report).
11. The first of the decisions cited by the learned counsel for the additional 5th respondent is the decision of the Supreme Court in Collector of Customs, Calcutta (supra). The question was whether the order of the original authority becomes merged with the order of the appellate authority if the appellate authority merely dismisses the appeal without any modification of the order of the original authority. While considering the aforesaid question, the Supreme Court held that, if the appellate authority is beyond the territorial jurisdiction of the High Court, mere confirmation of the order of original authority by dismissal makes the order of original authority operative; and the High Court cannot issue a writ against the appellate authority for want of jurisdiction if it is not situated within its territorial jurisdiction. This decision deals with the provisions W.P.(C)No.29474/2023 24 before the incorporation of sub-article (2) to Article 226 of the Constitution of India and has no application to the facts of the present case. In Shankar Ramachandra Abhyankar (supra) the Supreme Court reiterated the principle of merger of orders of inferior Courts with those of superior Courts irrespective of whether the remedy before the superior forum was appellate or revisional. In M/s. Gojer Brothers (P) Ltd. ( Supra), on which considerable reliance was placed by the learned counsel, the question was, whether the decree of the Trial Court has merged with the decree of the High Court. It was observed:- " ...there cannot be, at one and the same time, more than one operative order governing the same subject matter. Therefore the judgment of an inferior court, if subjected to an examination by the superior Court, ceases to have existence in the eyes of law and is treated as being superseded by the judgment of the superior court". It appears that the judgments in Collector of Customs, Calcutta (supra), U.J.S Chopra (supra) & Shankar Ramachandra Abhyankar (Supra) also take the same view. In Pernod Ricard India Private Limited (supra) which is the next decision relied on by the learned counsel for the additional 5th respondent, it was held that once a statutory right of W.P.(C)No.29474/2023 25 appeal is invoked, dismissal of the appeal by the Supreme Court, whether by a speaking order or non-speaking order, results in the doctrine of merger unlike in the case of dismissal of Special Leave Petition under Art.136 of the Constitution of India by a non-speaking order. It was held that, while considering the statutory appeal under Section 130-E of the Customs Act,1962 against the order of the Customs, Excise and Service Tax Appellate Tribunal, the merits of the order impugned are subjected to judicial scrutiny and even when such appeal is dismissed by a non-speaking order, the doctrine of merger would be attracted. In Khoday Distilleries Ltd. (Now Known as Khoday India Ltd) & Ors. (supra), the Supreme Court elucidated the meaning, scope and applicability of the doctrine of merger. In this case the court analyzed number of cases where orders of different nature were passed and dealt with those judgments by classifying them into the following categories:- (i) Dismissal at the stage of special leave petition - without reasons - no res judicata, no merger; (ii) Dismissal of the special leave petition by speaking or reasoned order - no merger, but rule of discipline and Article 141 attracted; (iii) Leave granted - dismissal without reasons - merger results. It was held:-
"(vi) Once leave to appeal has been granted and appellate W.P.(C)No.29474/2023 26 jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be reversal, modification or merely affirmation".
The Supreme Court in S.E. Graphites Private Limited (supra) held that, however, short the order of the Supreme Court may be, in a matter where leave had been granted under Art.136 of the Constitution of India, the order of the Supreme Court would, thereafter, be an appellate order and would attract the doctrine of merger.
11. Though I have referred to the judgments cited at the bar by both sides as also to the ratio of those judgments, for reasons already indicated, I do not intend to apply the ratio of any of the aforesaid judgments to the facts of this case. I am of the view that even if the doctrine of merger does not apply and even if the order of the Supreme Court is not 'law declared' for the purposes of Article 141 of the Constitution of India, the principle of judicial discipline would require this Court to hold that the view taken by the NGT cannot be the subject matter of challenge in a writ petition under Art.226 of the Constitution of India. This is principally because the facts of the case decided by the NGT and the facts of the present case are identical. The mining company (its partner) who was a party to the proceeding before the NGT and the petitioner herein were both issued with W.P.(C)No.29474/2023 27 mining leases before the cut-off date specified in the judgment of the Division Bench of this Court in All Kerala River Protection Council (supra). In terms of the judgment of the Division Bench of this Court in All Kerala River Protection Council (supra), they were not required to take out an environmental clearance under the EIA notification 2006 as in both the cases the area held under the lease was less than five hectares. After having regard to the fact that the project proponent in the case before the NGT had been operating without environmental clearance and in terms of the law laid down in the Division Bench of this Court in All Kerala River Protection Council (supra), the Tribunal concluded that, in the light of the notification dated 15.1.2016, even such mines could operate only after obtaining environmental clearance. While considering the appeal filed against the said order of the NGT, the Supreme Court found that 'there is no error of fact or law in the order of the NGT dated 27 May 2021 in O.A.No.244/2017 (SZ).' It is not disputed that the impugned proceedings/notices issued to the petitioner were all issued based on the order of the NGT in O.A.NO.244/2017. Therefore, interference with the impugned proceedings/notices would be possible only if this Court were to find that the order passed by the W.P.(C)No.29474/2023 28 NGT is unsustainable in law, and that, on the application of the principle of judicial discipline cannot be done by this Court. In other words, even if it were to be held that the order of the NGT has not merged with the order of the Supreme Court and the order of the Supreme Court is not law declared for the purposes of Art.141 of the Constitution of India, the challenge to proceedings initiated on the basis of the orders of the NGT cannot be interfered with in exercise of jurisdiction vested in this Court under Art.226 of the Constitution of India as the Supreme Court found that 'there is no error of fact or law in the order of the NGT...'.
12. That brings us to the question as to whether the operations carried out by the petitioner in terms of the orders obtained by it including Ext.P7 judgment of this Court and based on the law laid down by the judgment of the Division Bench in All Kerala River Protection Council (supra) could be held to be illegal following the issuance of the notification dated 15.1.2016. The answer to the aforesaid question can only be a categoric 'no'. It cannot be disputed that the petitioner was carrying out its operations under the law laid down by the Division Bench of this Court in All Kerala River Protection Council (supra). The State and its officers had also W.P.(C)No.29474/2023 29 accepted the law laid down by this Court and, therefore, the petitioner was continuing with its operations without obtaining environmental clearance. No notices had been issued to them by any authority including the SEIAA on the ground that they had not obtained environmental clearance till the issuance of the impugned proceedings/notices. Therefore, it cannot be held that the activities of the petitioner for the period after 15.1.2016 till the date of issuance of Ext.P4 stop memo were illegal in any manner. In other words, no action can be taken against the petitioner on the ground that it had not obtained environmental clearance and had continued with its mining activity after the issuance of the notification dated 15.1.2016.
13. This is not to say that no action should be taken against the petitioner if it is found that it has engaged in any illegal mining. The petitioner was required to, in terms of the provisions contained in the Kerala Minor Mineral Concession Rules, 2015, apply for and get sanctioned a mining plan. They were also required to strictly abide by the mining plan and not to extract minerals in violation of the mining plan. The additional 5th respondent has a case that the petitioner had violated the mining plan; it had conducted mining operations in areas other than what was permitted; that it had illegally conducted mining W.P.(C)No.29474/2023 30 activities and that it had extracted a substantial quantity of minor minerals over and above what was permitted in terms of the mining plan and the permissions granted on the basis of the lease obtained by it. These are matters which will have to be considered by the competent authority. The petitioner has also to take up remedial measures for offsetting the environmental damage caused on account of the mining. It has to fully comply with its mine closure plan. Therefore, although the activities of the petitioner after 15.1.2016 till the date of issuance of Ext.P4 stop memo cannot be termed illegal on the ground that it had not obtained an environmental clearance, the competent among the respondents shall ensure that the petitioner has not violated any condition in the mining plan; that it has not extracted minerals in a manner other than what was contemplated in the mining plan and that it has not extracted minerals over and above the quantity permitted by the mining plan and that it has taken up measures contemplated for offsetting the environmental damage caused on account of the mining activities before considering the grant of any further lease to the petitioner. The SEIAA shall also be empowered to consider these issues while considering any application for the issuance of an environmental clearance which is mandatory in W.P.(C)No.29474/2023 31 respect of any fresh lease that may be granted to the petitioner. Therefore, this writ petition will stand disposed of in the following manner:-
I) The challenge to Exts. P3, P4 and P6 to the extent it prohibits the petitioner from proceeding with the mining activities based on the mining lease obtained on 20.3.2012 will stand rejected;
II) It is declared that the findings in Exts.P3, P4 and P6 that the mining activities carried on by the petitioner after 15.1.2016 and till the date of issuance of Ext.P4 stop memo are illegal for the want of environmental clearance is illegal and not sustainable in law;
III) The competent authority under the Kerala Minor Mineral Concession Rules, 2015 shall, while considering any further application of lease by the petitioner, ensure that it has complied with the terms of the mining plan submitted in terms of the Kerala Minor Mineral Concession Rules, 2015. It shall also ensure that no illegal mining has taken place. If it is found that any illegal mining has taken place, action as contemplated by law shall be initiated against the petitioner;
IV) The competent among the respondents shall also ensure that remediation measures to offset the environmental damage caused W.P.(C)No.29474/2023 32 by the mining activities of the petitioner are fully complied with by the petitioner. The competent among the respondents shall also ensure that any mine closure plan submitted by the petitioner shall be implemented in the manner contemplated by the law before commencing any further mining activity on the basis of any mining lease or permit that may be granted to it. It is also clarified that such mining activity shall be permitted only after obtaining Environmental Clearance under the Environment Impact Assessment (EIA) Notification, 2006;
V) The SEIAA while considering the grant of environmental clearance under the Environment Impact Assessment (EIA) Notification, 2006 in respect of any mining lease that may be obtained by the petitioner (over the same or any part of the area held under the mining lease issued on 20.3.2012) shall consider whether mining activities carried on hitherto by the petitioner were in compliance with the mining plan and whether remediation measures have been complied with.
Writ petition ordered accordingly. Sd/-
GOPINATH. P
JUDGE
acd
W.P.(C)No.29474/2023 33
APPENDIX OF WP(C) 29474/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE QUARRYING LEASE DATED
20.03.2012 VALID TILL 19.03.2024.
Exhibit P1(a) TRUE COPY OF THE CONSENT ISSUED BY THE
POLLUTION CONTROL BOARD FOR CONDUCTING
QUARRYING OPERATIONS VALID TILL 19.03.2024.
Exhibit P1(b) TRUE COPY OF THE D&O LICENSE FOR THE PERIOD 2023-24 ISSUED BY THE KOOTIKKAL PANCHAYAT.
Exhibit P2 . TRUE COPY OF THE ABSTRACT OF THE MINUTES OF THE 127TH MEETING OF THE 1ST RESPONDENT WHICH TOOK PLACE ON 30TH AND 31ST OF MAY, 2023 RELATING TO ITEM NO. 127.10.
Exhibit P3 TRUE COPY OF THE LETTER DATED 25.07.2023 ISSUED BY THE 1ST RESPONDENT ALONG WITH THE ABSTRACT OF THE MINUTES OF THE 128TH MEETING OF THE 1ST RESPONDENT WHICH TOOK PLACE ON 27TH AND 29TH OF JUNE, 2023 RELATING TO ITEM NO. 128.29.
Exhibit P4 TRUE COPY OF THE STOP MEMO DATED 25.07.2023
BEARING NO. S/KL/MIN/60903/2019;
2438/EC1/2019/SEIAA ISSUED BY THE 1ST
RESPONDENT.
Exhibit P5 TRUE COPY OF THE REPLY DATED 29.07.2023
SUBMITTED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
Exhibit P6 TRUE COPY OF THE ABSTRACT OF THE MINUTES OF
THE 131ST MEETING OF THE 1ST RESPONDENT
WHICH TOOK PLACE ON 24 AND 25TH OF AUGUST,
2023 RELATING TO ITEM NO. 131.05.
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 15.02.2018
IN WP(C) NO. 33540/2017 ON THE FILES OF THIS
HON'BLE COURT.
Exhibit P8 TRUE COPY OF THE INTERIM ORDER DATED
21.07.2023 IN WP(C) NO. 21395/2023 ON THE
FILES OF THIS HON'BLE COURT.
Exhibit P8(a) TRUE COPY OF THE INTERIM ORDER DATED
10.07.2023 IN WP(C) NO. 18680/2023 ON THE
FILES OF THIS HON'BLE COURT.
W.P.(C)No.29474/2023 34
RESPONDENT EXHIBITS
Exhibit R3(a) A true copy of the Notification dated
15.01.2016 by Ministry of Environment,
Forest and Climate Change
Exhibit R3(b) A true copy of the judgment dated 27.05.2021
in O.A No.244/2017(SZ) of National Green
Tribunal Southern Zone Chennai
Exhibit R3(c) A true copy of the order dated 16.08.2021 in
Civil Appeal No.4643/2021 of Honourable
Supreme Court
Exhibit R3(d) True copy of the order dated 14.12.2021 in
R.P.C.No.1285 of 2021 in C.A.No.4643 of 2021
of the Honourable Supreme Court
Exhibit R3(e) A true copy of the order dated 24.03.2023 in
S.L.P No.5563/2023 of the Honourable Supreme Court Exhibit R3(f) A true copy of the order dated 31.03.2023 in W.P.(C) No.13221 of 2022 passed by this Honourable Court Exhibit R3(g) A true copy of the said Office Memorandum No.1-4/2012- RE(Pt.) dated 20.12.2013 issued by the Ministry of Environment and Forest Exhibit R3(h) A true copy of the judgment dated 17.08.2016 in W.P.(C) 13769 of 2016 passed by this Honourable Court Exhibit R3(i) The relevant pages of the Kasturirangan Report wherein the Eco- Sensitive Area of the Western Ghats has been referred to and the relevant page of the schedule wherein the Koottickal village has been categorized as Eco Sensitive Area Exhibit R3(j) A true copy of the letter No.DOCC/E2/60/2023 dated 28.03.2023 issued by the State Public Information Officer Exhibit R3(k) The true copy of the cadastral map of western Ghats Eco-sensitive area of Kerala obtained from the official website of the State Government Exhibit R3(l) A true copy of the stop memo bearing No.79/DOY/ML/2023 dated 15.06.2023 issued by the Geologist Exhibit R3(m) A true copy of the newspaper report dated 14.09.2023 of Mangalam Daily Exhibit R3(n) A true copy of the order in O.A No. 44 of W.P.(C)No.29474/2023 35 2023 dated 10.05.2023 passed by National Green Tribunal, Principal Bench Annexure A1 A true copy of the letter No.DOCC/E2/60/2023 dated 28.03.2023 issued by the State Public Information Officer Annexure A2 The true copy of the cadastral map of western Ghats Eco-sensitive area of Kerala obtained from the official website of the State Government Annexure A3 The relevant pages of the Kasturirangan Report wherein the Eco- Sensitive Area of the Western Ghats has been referred to and the relevant page of the schedule wherein the Koottickal village has been categorized as Eco Sensitive Area Exhibit R1(a) A true copy of the Judgment, dated 27.05.2021 in OA 244 of 2017(SZ) Exhibit R1(b) A true copy of the Order, dated 16.08.2021 in Civil Appeal No.4643 of 2021 Exhibit R1(c) A True copy of the Interim Order, dated 15.06.2022 in WP(C) No. 13221 of 2022 Exhibit R1(e) A true copy of the Order, dated 31.03.2023 in WP(C) 13221 of 2022 Exhibit R1(d) A true copy of the order, dated 24.03.2023 in SLA(C) 5563 of 2023 on the files of Hon'ble Apex Court PETITIONER EXHIBITS Exhibit P9 TRUE COPY OF THE ABSTRACT OF THE NOTIFICATION DATED 06.07.2022 BEARING S.O. 3072(E) ISSUED BY THE MINISTRY OF ENVIRONMENT AND FORESTS, UNION OF INDIA.
Exhibit P10 TRUE COPY OF THE SCREENSHOT OBTAINED FROM THE WEBSITE OF THE KERALA STATE BIODIVERSITY BOARD.
Exhibit P11 TRUE COPY OF ABSTRACT OF THE CADASTRAL MAP DETAILS OF THE 119 ESA VILLAGES IN THE STATE OF KERALA .
W.P.(C)No.29474/2023 36RESPONDENT EXHIBITS Exhibit R3(o) The true copy of the report dated 13.02.2023 by the officers attached to State Pollution Control Board, district office Kottayam Exhibit R3(p) The true copy of the report dated 03.03.2023 submitted by the project officer of Schedule Tribe Development Office before the District Collector, Kottayam Exhibit R3(q) A true copy of the judgment dated 16.03.2016 in WPC No. 10107 of 2016 passed by this Honourable Court Exhibit R3(r) A true copy of the order dated 20.06.2016 in RP No. 524 of 2016, passed by this Honourable Court Exhibit R5(s) A TRUE COPY OF INFORMATION ISSUED BY THE DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE DATED 29.01.2024 Exhibit R5(t) THE TRUE COPY OF THE REPORT DATED 04.08.2013 WITH COVERING LETTER OF THE BIODIVERSITY BOARD DATED 24.09.2015 Exhibit R5(u) A TRUE COPY OF THE STUDY REPORT (RELEVANT PAGES) TITLED AS IMPACT OF FLOOD/LANDSLIDES ON BIODIVERSITY, COMMUNITY PERSPECTIVES BY KERALA STATE BIODIVERSITY BOARD CONDUCTED IN THE MONTH OF AUGUST 2018 Exhibit R5(v) A TRUE COPY OF YET ANOTHER REPORT BY THE DEPARTMENT OF SOIL SURVEY AND SOIL CONSERVATION CONDUCTED IN THE MONTH OF DECEMBER 2018 Exhibit R5(w) THE TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF MEETING OF SEAC HELD BETWEEN 09.11.2022 AND 11.11.2022 Exhibit R5(x) THE TRUE COPY OF THE REPORT OF THE TRIBAL EXTENSION OFFICER, PUNCHAVAYAL OBTAINED THROUGH RIGHT TO INFORMATION DATED 27.03.2023