Kerala High Court
Raji Mathew vs Union Of India on 16 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
WP(C).No.24297 OF 2020(J)
PETITIONER/S:
RAJI MATHEW,
MANAGING PARTNER,
M/S.HIGHRANGE METAL CRUSHER,
LAKSHMIKOVIL P.O., RANIMUDI,
PEERMADE, IDUKKI-685531.
BY ADVS.
SRI.SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.JENNIS STEPHEN
SRI.VIJAY V. PAUL
SMT.KARTHIKA MARIA
SRI.ANIL SEBASTIAN PULICKEL
SMT.DIVYA SARA GEORGE
SMT.JAISY ELZA JOE
SMT.NANDA SANAL
RESPONDENT/S:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF ENVIRONMENT AND FORESTS,
PARYAVARAN BHAVAN, CGO COMPLEX,
LODI ROAD, NEW DELHI-110003.
2 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
FOREST & WILDLIFE (F) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
W.P.(C)No.24297 of 2020
2
3 THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF INDUSTRIES AND COMMERCE
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
4 THE CHIEF WILDLIFE WARDEN AND PRINCIPAL CHIEF
CONSERVATOR OF FORESTS,
FOREST HEADQUARTERS,
VAZHUTHACAUD,
THIRUVANANTHAPURAM-695014.
5 THE DIRECTOR OF MINING AND GEOLOGY,
DIRECTORATE OF MINING & GEOLOGY,
KESAVADASAPURAM,
PATTAM PALACE P.O.,
THIRUVANANTHAPURAM-695 004.
6 STATE ENVIRONMENT IMPACT ASSESSMENT
AUTHORITY(SEIAA),
KERALA, K.S.R.T.C BUS TERMINAL COMPLEX,
4TH FLOOR, THAMPANOOR,
THIRUVANANTHAPURAM-695001
REPRESENTED BY ITS MEMBER SECRETARY.
7 THE DEPUTY DIRECTOR,
PERIYAR TIGER RESERVE EAST DIVISION,
THEKKADY-685509.
8 NATIONAL BOARD FOR WILDLIFE,
REPRESENTED BY ITS MEMBER SECRETARY,
MINISTRY OF ENVIRONMENT,
FOREST AND CLIMATE CHANGE,
INDIRA PARYAVARAN BHAWAN,
JOR BAGH ROAD,
NEW DELHI-110003.
R1 BY SRI.KRISHNADAS P.NAIR, CGC
BY SRI.M.P.SREEKRISHNAN, STANDING COUNSEL
BY SRI.NAGARAJ NARAYANAN, SPL.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.24297 of 2020
3
W.P.(C)No.24297 of 2020
-----------------------------------------------
JUDGMENT
Petitioner applied for a quarrying lease in terms of the Kerala
Minor Mineral Concession Rules, 2015 over a land measuring 4.6065
hectares in survey Nos.1119, 969/3, 969/4 and 969 in Peermadu Village.
The application is pending. Simultaneously, the petitioner preferred an
application before the sixth respondent for Environmental Clearance for
operating the quarry after obtaining the quarrying lease. On the
application for Environmental Clearance, the sixth respondent took the
stand that since the land where the petitioner proposes to establish the
quarry is situated within 10 kilometers from Idukki Wildlife Sanctuary,
the petitioner has to produce clearance of the Wildlife Warden of the
said Wildlife Sanctuary for processing the application. Ext.P13 is the
communication issued by the sixth respondent to the petitioner in this
regard. According to the petitioner, the land where he proposes to
establish the quarry is situated beyond 10 kilometers from the Idukki
Wildlife Sanctuary. The petitioner, therefore, challenged Ext.P13
communication before this Court in W.P.(C) No.28825 of 2019. In the
course of the arguments in the said case, it was brought to the notice of
this Court that the nearest protected area from the proposed quarry of
W.P.(C)No.24297 of 2020
the petitioner is not Idukki Wildlife Sanctuary, but Periyar Tiger Reserve
and the distance between the site of the quarry and the Periyar Tiger
Reserve is only 8.61 kilometers. W.P.(C) No.28825 of 2019, in the
circumstances, was disposed of directing the sixth respondent to cause
an enquiry to be made as to the distance between the quarry proposed
by the petitioner and the nearest protected area and if it is found that
any protected area exists within 10 kilometers from the quarry proposed
by the petitioner, the petitioner shall get necessary clearance from the
Wildlife Warden concerned. Ext.P16 is the judgment rendered by this
Court in W.P.(C) No.28825 of 2019. It was, however, made clear in
Ext.P16 judgment that even if it is found that clearance is required to be
obtained by the petitioner as directed above, the sixth respondent shall
process the application for Environmental Clearance without insisting
clearance from the wildlife authority, but shall issue the Environmental
Clearance only on obtaining clearance from the wildlife authority. As per
Ext.P16 judgment, this Court also directed the Chief Wildlife Warden to
consider and pass orders on the application for clearance submitted by
the petitioner within three months.
2. It is pointed out by the petitioner that if there is any
protected area like Wildlife Sanctuary, National Park, Tiger Reserve etc.
within 10 kilometers from the site of any proposed quarry, permission is
required in fact from the Standing Committee of the National Board for
Wildlife and not from the Wildlife Warden concerned of the protected
area. It is also pointed out that neither the petitioner nor the
W.P.(C)No.24297 of 2020
respondents in W.P.(C) No.28825 of 2019 have pointed out the said fact
before this Court while rendering Ext.P16 judgment. It is further pointed
out that the sixth respondent is not insisting on clearance of the
Standing Committee of the National Board for Wildlife for issuing
Environmental Clearance, and Environmental Clearances are now being
issued on condition that the project proponent shall obtain clearance
from the Standing Committee of the National Board for Wildlife. Ext.P19
is one of such Environmental Clearances issued to a person similarly
placed like the petitioner. It is stated by the petitioner that the sixth
respondent has though processed the application for Environmental
Clearance submitted by the petitioner, the same is not being issued to
the petitioner in the light of the interdiction in Ext.P16 judgment that the
application can be processed, but the Environmental Clearance shall not
be issued without production of the clearance from the concerned
wildlife authority. It is stated by the petitioner that he has already
preferred the application for clearance of the Standing Committee of the
National Board for Wildlife through the portal established by the Central
Government for the said purpose, and having regard to the detailed
procedure laid down by the Central Government, the processing of the
application is likely to take some time. It is stated by the petitioner that
if the petitioner is issued Environmental Clearance as done in the case of
the project proponent to whom Ext.P19 Environmental Clearance has
been issued, the petitioner can obtain various other clearances required
for the purpose of running the quarry for which Environmental Clearance
W.P.(C)No.24297 of 2020
is a mandatory prerequisite. It is also stated by the petitioner that if the
said course is not adopted, the petitioner has to wait until the Standing
Committee of the National Board for Wildlife grants appropriate
clearance. Though various larger reliefs are sought for in the writ
petition, at the time of hearing, the limited relief sought by the
petitioner was for a direction to the sixth respondent to grant the
Environmental Clearance applied for by the petitioner on the same
terms as in Ext.P19 Environmental Clearance.
3. Heard the learned counsel for the petitioner, the
learned Special Government Pleader for Forest as also the learned
Standing Counsel for the sixth respondent.
4. The learned Standing Counsel for the sixth respondent
does not dispute the fact that the petitioner and the project proponent
to whom Ext.P19 Environmental Clearance has been issued, are similarly
placed. The learned Standing Counsel has also not disputed the fact
that the application for Environmental Clearance submitted by the
petitioner has already been processed. The learned Standing Counsel
has also not disputed the fact that Environmental Clearance is not
issued to the petitioner as done in the case of the project proponent to
whom Ext.P19 Environmental Clearance has been issued, in the light of
the interdiction made by this Court in Ext.P16 judgment.
5. As pointed out by the learned counsel for the parties
on either side, Ext.P16 judgment was passed without taking note of the
fact that the clearance required for processing the application for
W.P.(C)No.24297 of 2020
Environmental Clearance submitted by the petitioner is the clearance of
the Standing Committee of the National Board for Wildlife, and not the
clearance of the Wildlife Warden as stated in the judgment. Further, the
direction in Ext.P16 judgment to the Chief Wildlife Warden to dispose of
the applications for clearances submitted by the petitioner has become
otiose as the Chief Wildlife Warden has nothing to do with the clearance
required by the petitioner. Since the sixth respondent was directed to
withhold the Environmental Clearance of the petitioner on the premise
that the Chief Wildlife Warden is the competent authority to issue the
wildlife clearance required for the quarry proposed by the petitioner, I
am of the view that in the changed circumstances, the sixth respondent
can be directed to issue Environmental Clearance to the petitioner, if he
is otherwise entitled for the same, on condition that the same will be
operative only if the petitioner secures permission of the Standing
Committee of the National Board for Wildlife. I take this view also for
the reason that if such a view is not taken, the petitioner who has
approached this Court for expediting the clearance of the wildlife
authorities would be in a disadvantageous position when compared to
others who have not approached this Court for the said purpose.
In the result, the writ petition is disposed of directing the
sixth respondent to issue the Environmental Clearance applied for by
the petitioner, if the petitioner is otherwise entitled for the same, subject
to the condition that the same will be operative only if the petitioner
obtains clearance of the Standing Committee of the National Board for
W.P.(C)No.24297 of 2020
Wildlife, for the quarry proposed by him. This shall be done within six
weeks.
Sd/-
P.B.SURESH KUMAR
JUDGE
rkj
W.P.(C)No.24297 of 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER DATED 02.02.2018
OF SENT BY THE TAHSILDAR TO DEIAA.
EXHIBIT P2 TRUE COPY OF THE DRAFT NOTIFICATION
DATED 03.10.2018 ISSUED BY THE MINISTRY
OF ENVIRONMENT, FOREST AND CLIMATE
CHANGE.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 20TH
FEBRUARY, 2018 IN W.P.(C)NO.31959 OF
2017.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED
12.03.2019 IN WRIT APPEAL NO.1952/2018.
EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGMENT ISSUED
BY THE SYSTEM ADMINISTRATOR OF ONLINE
SUBMISSION AND MONITORING OF WILDLIFE
CLEARANCE PROPOSALS.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 03.7.2019
EVIDENCING THE SUBMISSION OF THE
APPLICATION BY THE PETITIONER TO THE
DEPUTY DIRECTOR, PERIYAR TIGER RESERVE
WEST DIVISION, PEERMEDE.
EXHIBIT P7 TRUE COPY OF THE COVERING LETTER DATED
04.09.2019 SENT BY THE PETITIONER AND
THE ACKNOWLEDGMENT RECEIPT.
EXHIBIT P8 TRUE COPY OF THE DRAFT NOTIFICATION
DATED 28.07.2016 ISSUED BY THE CENTRAL
GOVERNMENT.
EXHIBIT P9 TRUE COPY OF THE DRAFT NOTIFICATION
DATED 31.03.2016 ISSUED BY THE MINISTRY
OF ENVIRONMENT, FOREST AND CLIMATE
CHANGE.
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED
16.11.2017 SENT BY THE MINISTRY OF
ENVIRONMENT, FORESTS AND CLIMATE CHANGE
(ESZ-DIVISION) TO THE PRINCIPAL
CONSERVATOR OF FOREST (WL) AND CHIEF
WILDLIFE WARDEN, FOREST HEADQUARTERS,
THIRUVANANTHAPURAM.
W.P.(C)No.24297 of 2020
EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED
19TH DECEMBER, 2017 SENT BY THE
SECRETARY, GOVERNMENT OF INDIA, MINISTRY
OF ENVIRONMENT FORESTS AND CLIMATE
CHANGE TO THE CHIEF SECRETARY, STATE OF
KERALA.
EXHIBIT P11(A) TRUE COPY OF THE LETTER DATED 30.03.2020
ISSUED BY MOEF.
EXHIBIT P12 TRUE COPY OF THE OFFICE MEMORANDUM DATED
08.08.2019 ISSUED BY MOEF.
EXHIBIT P13 TRUE COPY OF THE LETTER DATED 27.08.2019
SENT BY THE SEIAA TO THE PETITIONER.
EXHIBIT P14 TRUE COPY OF THE SITE AREA DEMARCATION
WITH RESPECT TO GEO COORDINATES.
EXHIBIT P15 TRUE COPY OF THE LETTER DATED 21.10.2019
SENT BY THE PETITIONER TO SEIAA.
EXHIBIT P16 TRUE COPY OF THE JUDGMENT IN
W.P(C)NO.28825/19 DATED 03.12.2019.
EXHIBIT P17 TRUE COPY OF THE LETTER DATED 28.02.2020
SENT BY THE 4TH RESPONDENT TO THE DEPUTY
DIRECTOR, PERIYAR TIGER RESERVE FOREST
DIVISION.
EXHIBIT P18 TRUE COPY OF THE LETTER DATED 04.03.2020
ISSUED BY THE DEPUTY DIRECTOR, PERIYAR
TIGER RESERVE FOREST DIVISION TO THE 4TH
RESPONDENT.
EXHIBIT P19 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE
NO.84/Q/2020 DATED 19.08.2020 ISSUED BY
THE 4TH RESPONDENT.
EXHIBIT P20 TRUE COPY OF THE LETTER DATED 16.07.2020
ISSUED BY WILDLIFE DIVISION OF MOEF.
EXHIBIT P21 TRUE COPY OF THE LETTER DATED 24/7/2020
ISSUED BY THE MOEF TO ALL THE STATE
PRINCIPAL SECRETARIES (FOREST)
