Kerala High Court
M/S. Oriental Rock Products Pvt ... vs The Director on 19 November, 2021
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. 24711 OF 2021
PETITIONER:
M/S. ORIENTAL ROCK PRODUCTS PVT LTD.,
12/243, OLD TREASURY BUILDING, P.O. JUNCTION,
MUVATTUPUZHA, ERNAKULAM 686 661, REPRESENTED BY ITS
MANAGING DIRECTOR, SAJEEVN MATHEW.
BY ADVS.
PHILIP J.VETTICKATTU
SAJITHA GEORGE
RESPONDENTS:
1 THE DIRECTOR,
MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY,
KESAVADASAPURM, PATTAM PALACE P.O., TRIVANDRUM 4.
2 THE DISTRICT GEOLOGIST,
PALAKKAD, MINING AND GEOLOGY DEPARTMENT, DISTRICT
OFFICE, MUNICIPAL SHOPPING, COMPLEX, PALAKKAD 14.
APPU.P.S-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 24711 OF 2021
2
JUDGMENT
This writ petition is filed seeking directions to the respondents
to take steps for finalization of Ext.P1 and to execute quarrying lease
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 Ext.P1 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 1st respondent is 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
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
WP(C) NO. 24711 OF 2021
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
respondents 3 to 115 afresh after notice, by way of publication, to
those who are affected by the prescription of the stringent distance
WP(C) NO. 24711 OF 2021
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 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.
WP(C) NO. 24711 OF 2021
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
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
WP(C) NO. 24711 OF 2021
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 finalise Ext.P1 and to execute quarrying lease, in
accordance with law, as it exists, if the same is otherwise in order.
Sd/-
ANU SIVARAMAN
JUDGE
SVP
WP(C) NO. 24711 OF 2021
APPENDIX OF WP(C) 24711/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF LETTER OF INTENT DATED
16.2.2018 ISSUED BY THE DIRECTOR, MINING
AND GEOLOGY.
Exhibit P2 TRUE COPY OF RELEVANT PAGES OF
ENVIRONMENTAL CLEARANCE FOR THE QUARRYING
LEASE AREA ISSUED BY THE DEIAA .
Exhibit P3 TRUE COPY OF EXPLOSIVE LICENSE ISSUED BY
THE COMPETENT AUTHORITY FOR POSSESSION AND
USE OF EXPLOSIVES DATED 26.3.18.
Exhibit P4 TRUE COPY OF THE CONSENT TO OPERATE ISSUED
BY THE POLLUTION CONTROL BOARD DATED.
Exhibit P5 TRUE COPY OF RELEVANT PAGES OF APPROVED
LINING PLAN.
Exhibit P6 TRUE COPY OF LICENSE DATED 1.1.2021 ISSUED
BY THE THIRUMITTAKODE GRAMA PANCHAYAT.
Exhibit P7 TRUE COPY OF LICENSE DATED 5.1.2021 ISSUED
BY THE NAGALASSERRY GRAMA PANCHAYATH.
Exhibit P8 TRUE COPY OF JUDGMENT REPORTED AS 2021 (6)
KLT 133 (SC).
Exhibit P9 TRUE COPY OF COVERING LETTER SANS THE
DOCUMENTS FILED ALONG WITH THE SAME SEEKING
FINALIZATION OF EXT. P1.
