Robin P.R vs Director Of Mining And Geology
2021 Latest Caselaw 23246 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
  THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                        WP(C) NO. 26577 OF 2021
PETITIONER:

          ROBIN P.R.
          AGED 32 YEARS
          S/O. RAJU, PADINJAREKUDIYIL HOUSE, KARACHAL P.O., VIA
          MEENANGADI, WAYANAD DISTRICT.

          BY ADVS.
          GEORGE ABRAHAM
          JOSEPH GOPURAN



RESPONDENTS:

    1     DIRECTOR OF MINING AND GEOLOGY
          DIRECTORATE OF MINING AND GEOLOGY, PATTOM P.O,
          THIRUVANANTHAPURAM-695 004.

    2     GEOLOGIST
          DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY,
          MEENANGADI, WAYANAD DISTRICT-673 591



          SRI.APPU.P.S-GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 26577 OF 2021

                                      2


                               JUDGMENT

This writ petition is filed seeking directions to the respondents

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

respondents are duty bound to execute quarrying permit 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 WP(C) NO. 26577 OF 2021

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. 26577 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. 26577 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. 26577 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 take steps for finalisation of Ext.P5 application for

renewal of quarrying permit, in accordance with law, as it exits, if

the same is otherwise in order.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C) NO. 26577 OF 2021

APPENDIX OF WP(C) 26577/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY DATED 21.10.2019.

Exhibit P2 TRUE COPY OF THE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD WHICH IS VALID UPTO 20.10.2024.

Exhibit P3 TRUE COPY OF THE COPY OF THE ORDER OF POSSESSION FOR USE OF EXPLOSIVES FROM THE MAGAZINE SITUATED IN SY.NO.66/1 OF KANIYAMBETTA VILLAGE GRANTED IN FAVOUR OF THE PETITIONER.

Exhibit P4 TRUE COPY OF THE COPY OF THE LICENCE GRANTED BY THE KANIYAMBETTA GRAMA PANCHAYAT IN FAVOUR OF THE PETITIONER.

Exhibit P5 TRUE COPY OF THE COPY OF THE APPLICATION FOR RENEWAL OF QUARRYING PERMIT SUBMITTED BY THE PETITIONER DATED 7.3.2018.

Exhibit P6 TRUE COPY OF THE COPY OF THE LETTER OF INTENT ISSUED BY THE GEOLOGIST, THE 2ND RESPONDENT HEREIN DATED 11.9.2018.

Exhibit P7 TRUE COPY OF THE COPY OF THE JUDGMENT IN WPC NO.24148/2021.