New Galaxy Metals vs The District Geologist
2021 Latest Caselaw 23288 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. 26563 OF 2021
PETITIONER:

              M/S.NEW GALAXY METALS
              ADAKKAPUTHUR P.O, CHERPULASSERRY, OTTAPPALAM,
              PALAKKAD, REPRESENTED BY ITS PARTNER
              BY ADVS.
              PHILIP J.VETTICKATTU
              SAJITHA GEORGE
RESPONDENT:

              THE DISTRICT GEOLOGIST
              PALAKKAD, DEPARTMENT OF MINING AND GEOLOGY,
              DISTRICT OFFICE, TOWN BUS STAND COMPLEX, PALAKKAD 14

              SRI.P.S.APPU, 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. 26563 OF 2021

                                      2




                               JUDGMENT

This writ petition is filed seeking directions to the respondent to

take steps for finalisation of Ext.P1 Letter of Intent and Ext.P6

application for grant 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

respondent is duty bound to execute quarrying permit 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 lease/permit is issued under the

provisions of the Kerala Minor Mineral Concession Rules, 2015 which is WP(C) NO. 26563 OF 2021

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]. From the said

judgment, an appeal had been preferred and the directions of the WP(C) NO. 26563 OF 2021

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 afresh.

We say so because the judgment rendered by this Court WP(C) NO. 26563 OF 2021

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 the Tribunal without giving WP(C) NO. 26563 OF 2021

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

respondent to take steps for finalisation of Ext.P1 Letter of Intent and

Ext.P6 application for grant of quarrying permit, in accordance with law,

as it exits, if the same is otherwise in order.

Sd/-

Anu Sivaraman, Judge NP WP(C) NO. 26563 OF 2021

APPENDIX

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF LETTER OF INTENT DT 6-3-2017 ISSUED BY THE RESPONDENT Exhibit P2 TRUE COPY OF RELEVANT PAGES OF CONSENT VARIATION ORDER ISSUED BY THE POLLUTION CONTROL BOARD DATED 15-1-2018, VALID UPTO 30- 09-2022 Exhibit P3 TRUE COPY OF EXPLOSIVE LICENSE ISSUED BY THE COMPETENT AUTHORITY DATED 1607-2020, VALID UPTO 2024 Exhibit P4 TRUE COPY OF LICENSE ISSUED BY THE VELLINEZHI GRAMA PANCHAYAT DT 3-4-2021, VALID UPTO 31-03-

Exhibit P5 TRUE COPY OF ENVIRONMENTAL CLEARANCE DATED 07-

10-2017 ISSUED TO THE PETITIONER BY THE COMPETENT AUTHORITY Exhibit P6 TRUE COPY OF APPLICATION AND CHELLAN SHOWING REMITTANCE OF APPLICATION FEE ON 3-3-2017 Exhibit P7 TRUE COPY OF JUDGMENT PASSED BY THE HON'BLE SUPREME COURT OF INDIA REPORTED AS 2021(6) KLT 133(SC0 Exhibit P8 TRUE COPY OF JUDGMENT PASSED BY THE HON'BLE HIGH COURT OF KERALA REPORTED AS 2021(6) KLT

RESPONDENTS' EXHIBITS: NIL