Binoy Jose vs The Director Of Mining And Geology
2021 Latest Caselaw 23613 Ker

Citation : 2021 Latest Caselaw 23613 Ker
Judgement Date : 30 November, 2021

Kerala High Court

Binoy Jose vs The Director Of Mining And Geology on 30 November, 2021

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
    TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                         WP(C) NO. 27069 OF 2021
PETITIONER:

              BINOY JOSE
              AGED 47 YEARS
              ELAVUNKAL HOUSE, NAGAPPUZHA P.O, KALLOORKAD,
              ERNAKULAM DISTRICT - 686662.
              BY ADV GEORGEKUTTY MATHEW
RESPONDENTS:

     1        THE DIRECTOR OF MINING AND GEOLOGY
              DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM,
              PATTAM PALACE P.O, THIRUVANANTHAPURAM, PIN - 695004.
     2        THE GEOLOGIST
              DISTRICT OFFICE MINING AND GEOLOGY, MINI CIVIL STATION,
              THODUPUZHA, IDUKKI, PIN - 685584.
              SRI.JACOB E.SIMON, GP
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 27069 OF 2021

                                     2


                               JUDGMENT

This writ petition is filed seeking directions to the respondents to

take steps for finalisation of Ext.P1 application for 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. 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 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 WP(C) NO. 27069 OF 2021

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

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 WP(C) NO. 27069 OF 2021

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 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, WP(C) NO. 27069 OF 2021

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

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 WP(C) NO. 27069 OF 2021