Kerala High Court
K.P.Hassan vs The Geologist on 19 November, 2021
W.P.(C).No.7593/21
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
WP(C) NO. 7593 OF 2021
PETITIONER:
K.P.HASSAN
AGED 63 YEARS
S/O.ALAVI MUSLIYAR, KALATHUPADIKKALL HOUSE,
CHALAVARA P.O., PALAKKAD DISTRICT-679505.
BY ADVS.
U.K.DEVIDAS
SMT.M.L.REMYA
RESPONDENTS:
1 THE GEOLOGIST
DISTRICT OFFICE, MINING AND GEOLOGY DEPARTMENT,
TOWN BUS STAND COMPLEX, PALAKKAD DISTRICT-678001.
2 THE DIRECTOR,
MINING AND GEOLOGY DEPARTMENT, KESAVADASAPURAM,
PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.
3 THE SECRETARY,
DEPARTMENT OF INDUSTRY, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.7593/21
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ANU SIVARAMAN, J.
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W.P.(c).No.7593 of 2021
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Dated this the 19th day of November, 2021
JUDGMENT
This writ petition is filed seeking direction to the respondents
to take steps for consideration of the application dated 23.09.2015
preferred by the petitioner for quarrying lease and Ext.P10
representation, without reference to the distance conditions
specified in the order dated 21.07.2020 of the National Green
Tribunal, Principal Bench, New Delhi in O.A.No.304/2019.
2.The learned counsel for the petitioner submits that the
petitioner had secured Letter of Intent and had also procured all the
licences/consents and clearances as required in law. It is submitted
that going by the mandate of Rule 33(2) of the KMMC Rules, 2015
the respondents are duty bound to execute quarrying lease once the
applicant obtains all required consents.
3. It is submitted that the National Green Tribunal Principal
Bench, New Delhi had passed an order directing that a distance of
200ms is to be maintained between quarries and nearby
W.P.(C).No.7593/21
residences/inhabited areas. The said order was challenged before
this Court in W.P.(C).No. 15305 of 2020 and connected cases and
interim directions had been issued stating that where a quarrying
lease permit is issued under the provisions of the Kerala Minor
Mineral Concession Rules, 2015 which is valid and current as on
21.07.2020, that is the date of the National Green Tribunal's order,
which do not fulfill the new distance norms, status quo shall be
maintained. However, with regard to pending applications and
renewal applications including application for Environmental
Clearance, PCB consent, Explosive licence, Local Body licence etc.,
such applications need not be rejected solely on the ground of non
fulfillment of the new distance norms. However, it was made clear
that in case of the applications for fresh grant of the quarrying
permits/quarrying leases or applications for renewal of quarrying
permits/leases, which do not fulfil the above said impugned distance
criteria stipulated in the order of the tribunal, such requests need
not be granted for the time being.
4. The writ petitions were finally heard and allowed by
judgment dated 21.12.2020. The order of the NGT was set aside and
the NGT was directed to dispose of the representations of
W.P.(C).No.7593/21
respondents 3 to 115 afresh after notice, by way of publication, to
those who are affected by the prescription of the stringent distance
criteria for permission for quarrying. The said judgment is reported
in State of Kerala v. Central Pollution Control Board [2021 (1)
KLT 1]. From the said judgment, an appeal had been preferred and
the directions of the learned Single Judge had been upheld by a
Division Bench of this Court. The learned counsel for the petitioner
submits that thereafter, SLPs have been filed before the Apex Court
and Civil Appeals had been disposed of by proceedings dated
25.10.2021. The said judgment is reported as Municipal
Corporation of Gr. Mumbai v. Ankita Sinha [2021 (6) KLT 133].
The Apex Court held that there is power in the National Green
Tribunal to take up matters suo motu and pass orders as well.
It was further held as under:-
"In light of the issue answered by this Court in Civil Appeal Nos.12122-
12123 of 2018 and connected cases titled as "Municipal Corporation of
Gr.Mumbai Vs. Ankita Sinha & Ors." reported in 2021 (12) SCALE 184, it
would be appropriate to permit the appellant(s) to raise all
contentions/objections as may be available and permissible in law
before the National Green Tribunal (In short "the Tribunal") in the
first place. The Tribunal may consider those contentions/objections
W.P.(C).No.7593/21
and record reasons for accepting or rejecting the same, so that the
appellant(s), if dis-satisfied, may have further remedy of appeal(s)
before this Court.
In other words, all contentions raised in the present appeal(s) on these
aspects, including on merits are left open, to be considered by the
Tribunal afresh.
We say so because the judgment rendered by this Court predicates that
even if the Tribunal intends to initiate suo motu action, must give
opportunity to the parties likely to be affected before passing any
adverse order against them. Viewed thus, the ex-parte preemptory
order(s) passed by the Tribunal without giving opportunity to the
person(s) likely to be affected by such order(s), be treated as effaced
from the record.
Keeping that principle in mind, we deem it appropriate to relegate the
appellant(s) before the Tribunal with liberty to raise all contentions as
may be permissible in law, to be decided by the Tribunal afresh on its
own merits.
Notably, the decision of the High Court assailed in these appeal(s) also
gives that liberty to the appellant(s). However, we expressly grant such
liberty to the appellant(s), as aforesaid, in terms of this order."
Having considered the contentions advanced, I notice that the
petitioner's application had not been considered relying on the
W.P.(C).No.7593/21
interim order of this Court dated 6.8.2020. However, with the above
mentioned directions of the Apex Court, I notice that the interim
order as well as the directions in the judgment of the learned single
Judge and the Division Bench in W.A.No.286/2021 stand merged with
the findings and directions of the Apex Court in Municipal
Corporation of Gr. Mumbai (supra). In view of the fact that the
Apex Court has clearly held that the ex-parte peremptory orders
passed by the Tribunal without giving opportunity to the persons
likely to be affected are to be treated as effaced from the records, I
am of the opinion that the directions contained in the orders of this
Court also cannot stand in the way of a consideration of the
application in accordance with law, as it exists.
This writ petition is, accordingly, disposed of directing the
respondents to take further steps on the application submitted by
the petitioner for quarrying lease, in accordance with law, as it exits,
if the same is otherwise in order.
Sd/-
Anu Sivaraman, Judge
sj
W.P.(C).No.7593/21
APPENDIX OF WP(C) 7593/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER BEFORE THE THIRD RESPONDENT
DATED 27.03.2017.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION FILED BY
THE PETITIONER BEFORE THE HONOURABLE
MINISTER FOR DEPARTMENT OF INDUSTRY
DATED 21.08.2017.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED
20.10.2017 IN W.P.(C)NO.32819/2017 BY
THE HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED
20.12.2017 SUBMITTED BY THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 06.01.2018
PASSED BY THE THIRD RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 13.02.2018
ISSUED BY THE FIRST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE UNDERTAKING LETTER OF
THE PETITIONER DATED 02.05.2018.
EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT DATED
05.12.2018.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 18.01.2021.
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION
SUBMITTED BEFORE THE FIRST RESPONDENT
DATED 28.1.2021.
True copy
PS to Judge
