Kerala High Court

James Granites (P) Ltd vs The District Geologist 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. 25861 OF 2021
PETITIONER:

          JAMES GRANITES (P) LTD.
          MALAVATTOM, THIRUVILWAMALA P.O., THRISSUR-680 588,
          REPRESENTED BY ITS MANAGING DIRECTOR

          BY ADVS.
          PHILIP J.VETTICKATTU
          SAJITHA GEORGE



RESPONDENTS:

          THE DISTRICT GEOLOGIST
          ERNAKULAM, MINING & GEOLOGY DEPARTMENT, DISTRICT
          OFFICE, TOWN BUS STAND 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. 25861 OF 2021

                                    2


                               JUDGMENT

This writ petition is filed seeking directions to the respondent

to take steps for finalisation of Ext.P5 application for renewal of

quarrying permit, 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

1st respondent is duty bound to execute quarrying lease once the

applicant obtains all required consents.

3. 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 lease permit is issued under the

provisions of the Kerala Minor Mineral Concession Rules, 2015 which WP(C) NO. 25861 OF 2021

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

criteria for permission for quarrying. The said judgment is reported

in State of Kerala v. Central Pollution Control Board [2021 (1) KLT 1]. WP(C) NO. 25861 OF 2021

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.

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 WP(C) NO. 25861 OF 2021

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

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 WP(C) NO. 25861 OF 2021

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