Kerala High Court
Shaji Joseph vs State Of Kerala on 11 March, 2022
W.P.(C)Nos.19657 & 21767/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943
WP(C) NO. 19657 OF 2021
PETITIONERS:
1 SHAJI JOSEPH
AGED 47 YEARS
S/O. JOSEPH, VALIYAPARAMBIL HOUSE,
KALATHUKADAVU P. O., THALAPPALAM VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT.
2 SIJOMON P. C.
AGED 40 YEARS
S/O. CHACKO P. M., PARAMTHOTTU HOUSE,
KALATHUKADAVU P. O., THALAPPALAM VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT.
BY ADV SRI P.C.HARIDAS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF
REVENUE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE STATE ENVIRONMNET IMPACT ASSESSMENT AUTHORITY
SEIAA, KERALA)
K.S.R.T.C. BUS STAND TERMINAL COMPLEX, 4TH FLOOR,
THAMBANOOR, THIRUVANANTHAPURAM - 695 001.,
REPRESENTED BY ITS MEMBER SECRETARY.
3 THE MEMBER SECRETARY
THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY
(SEIAA, KERALA), K.S.R.T.C. BUS STAND TERMINAL
COMPLEX, 4TH FLOOR, THAMBANOOR,
THIRUVANANTHAPURAM - 695 001.
4 THE KERALA STATE LEVEL EXPERT APPRAISAL COMMITTEE
(SEAC)
THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY
(SEIAA, KERALA), K.S.R.T.C. BUS STAND TERMINAL
COMPLEX, 4TH FLOOR, THAMBANOOR, THIRUVANANTHAPURAM -
695 001., REPRESENTED BY ITS CHAIRMAN.
W.P.(C)Nos.19657 & 21767/2021 2
5 THE THALAPPULAM GRAMA PANCHAYAT
PLASSANAL P. O., KOTTAYAM DISTRICT - 686579,
REPRESENTED BY ITS SECRETARY.
6 THE SUB INSPECTOR OF POLICE,
ERATTUPETTA, KOTTAYAM DISTRICT - 686121.
7 TOMY THOMAS
S/O. THOMAS, PULICKAL HOUSE, KALATHUKADAVU P. O.,
THALAPPALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM
DISTRICT - 686579.
BY ADVS.
R5 BY SRI GEORGEKUTTY MATHEW
R1 & R6 BY GOVT.PLEADER SRI B.S.SYAMANTHAK
R7 BY SRI JOBI JOSE KONDODY
R2 TO R4 BY SRI M.P.SREEKRISHNAN (SC)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.03.2022,ALONG WITH WPC.21767/2021, THE COURT ON 11.3.2022
DELIVERED THE FOLLOWING:
W.P.(C)Nos.19657 & 21767/2021 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943
WP(C) NO. 21767 OF 2021
PETITIONER:
TOMY THOMAS
AGED 54 YEARS
S/O.THOMAS, PULICKAL HOUSE,
KALATHUKADAVU (PO), ERATTUPETTA,
KOTTAYAM - 686 579.
BY ADVS.
SRI JOBI JOSE KONDODY
SRI P.DEEPAK
RESPONDENTS:
1 THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA,
KERALA)
REPRESENTED BY ITS MEMBER SECRETARY,
KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR,
THAMPANUR, THIRUVANANTHAPURAM - 695 001.
2 THE MEMBER SECRETARY
STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY SEIAA,
KERALA), KSRTC BUS TERMINAL COMPLEX,
4TH FLOOR, THAMPANUR,
THIRUVANANTHAPURAM - 695 001.
3 THE KERALA STATE LEVEL EXPERT APPRAISAL COMMITTEE (SEAC)
REPRESENTED BY ITS CHAIRMAN, THE STATE ENVIRONMENT IMPACT
ASSESSMENT AUTHORITY (SEIAA, KERALA),
KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR,
THAMPANUR,
THIRUVANANTHAPURAM - 695 001.
4 K.G.ANILKUMAR
AGED 56 YEARS
S/O.GOPINATHAN NAIR, KIZHAKKEMALA PROTECTION COUNCIL,
KALLARAYATHU HOUSE, THALAPPALAM,
PLASSANAL P.O., KOTTAYAM - 686 579.
W.P.(C)Nos.19657 & 21767/2021 4
ADDL.R5 IMPLEADED
5 ADDL.R5 THE MINISTRY OF ENVIRONMENT,
FOREST AND CLIMATE CHANGE, PARYAVARAN BHAWAN,
C.G.O COMPLEX, LODHI ROAD, NEW DELHI - 110 003,
REPRESENTED BY ITS SECRETARY.
[ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED
25.01.2022 IN WP(C) 21767/2021]
BY ADVS.
R1 TO R3 BY SRI M.P.SREEKRISHNAN
R4 BY SRI P.B.SAHASRANAMAN (SR.)
SRI T.S.HARIKUMAR
R5 BY SRI S.MANU (ASGI)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.03.2022, ALONG WITH WPC 19657/2021, THE COURT ON 11.3.2022
DELIVERED THE FOLLOWING:
W.P.(C)Nos.19657 & 21767/2021 5
T.R.RAVI, J.
-----------------------------
W.P.(C)Nos.19657 & 21767 of 2021
-------------------------------
Dated this the 11th day of March, 2022
JUDGMENT
W.P.(C)No.21767 of 2021 has been filed praying to quash Ext.P20
minutes of the 1st respondent and for a direction to the 1 st respondent
to comply with the directions contained in Exts.P7 and P16 judgments
of this Court untrammeled by the pendency of O.A.No.76/2021 before
the National Green Tribunal, Southern Zone, Chennai and for
consequential directions.
2. W.P.(C)No.19657 of 2021 has been filed praying for a
direction to respondents 2 to 4 to take steps to complete the
proceedings before them in respect of the quarry of the petitioner in
W.P.(C)No.21767 of 2021 and to ensure that the petitioner does not
conduct quarry or crusher unit without environmental clearance from
the 2nd respondent and other clearances/consents/licenses from lawful
authorities. As the above two writ petitions relate to the functioning of
the very same quarry, they are being heard and disposed of together.
The reference to the Exhibits and the parties are as in W.P.(C)No.21767
of 2021, unless otherwise specified.
3. The petitioner was granted an environmental clearance (EC)
on 4.3.2016 which has been produced as Ext.P1. Ext.P1 was valid for a
period of five years and the period has now expired. He had also been
granted Ext.P2 quarrying lease dated 27.5.2016, which is valid till
26.5.2028. When the necessary licence was not being issued by the
Panchayat, the petitioner approached this Court by filing W.P.
(C)No.15505 of 2016, which ultimately resulted in Ext.P6 judgment
rendered by a Full Bench of this Court. The Full Bench of this Court in
Tomy Thomas v. State of Kerala reported in [2019 (3) KLT 987]
held that after the amendment of Section 233 of the Kerala Panchayat
Raj Act, 1994 in 2018, the Panchayat was obliged to grant permissions
in cases where the authorities mentioned under Section 233 of the Act
had issued such permissions or consents or No Objection Certificates.
The Full Bench relegated the writ petition to be heard by the Single
Judge. It is categorically held that after the amendment, the option to
refuse a permit is no longer available with the Panchayat. While so, on
a report received from the Sub Inspector of Police, Erattupetta, the 1 st
respondent issued a stop memo directing the petitioner to stop
quarrying activities. The stop memo is dated 22.9.2016 and has been
produced as Ext.P5. The petitioner had challenged Ext.P5 before this
Court in W.P.(C)No.31684 of 2016 which was disposed of by Ext.P7
judgment dated 4.10.2019. It can be seen from Ext.P7 that the writ
petition was disposed of along with W.P.(C)Nos.15505 of 2016 and
25529 of 2019. This Court directed the 1 st respondent to finalise the
proceedings pertaining to Ext.P5 stop memo after affording an
opportunity of hearing to the petitioner and the petitioners in W.P.
(C)No.25529 of 2019 and the 8 th respondent in W.P.(C)No.31684 of
2016. W.P.(C)No.15505 of 2016 was disposed of based on the
judgment of the Full Bench. W.A.No.2566 of 2019 filed against the
judgment in W.P.(C)No.25529 of 2019 was dismissed by a Division
Bench with liberty to the appellants therein to challenge the validity of
amendments brought into the Environmental Impact Assessment
Notification, 2006 (EIA, 2006).
4. The 1st respondent, after the directions issued by this Court
in Ext.P7 judgment, considered the matter and decided to forward the
relevant documents collected during the hearing of SEAC for fresh field
inspection and report after notice to the interested parties. The SEAC
at its meeting held on 13th and 14th January 2020 directed the petitioner
to carry out a study on the impact of blasting on nearby structures and
nuisance while transportation of the mined material. When orders were
getting delayed, the petitioner filed W.P.(C)No.14072 of 2020 seeking
directions to the 1st respondent to finalise the stop memo proceedings.
It was pointed out in the said writ petition that after the earlier
directions, the 1st respondent SEIAA had enquired into the aspect and
had sought to assess several parameters which cannot be done without
functioning the quarry. This Court accepted the above contention and by
Ext.P15 judgment, quashed the stop memo dated 22.9.2016 and
permitted the petitioner to temporarily function the quarry strictly in
accordance with the terms and conditions of quarrying lease, explosive
licence, statutory consent of the State Pollution Control Board and the
EC granted by the respondents. The respondents were directed to
monitor the functioning of the quarry and to see whether any of the
terms are violated and to ensure that the parameters which were called
for are obtained. The temporary functioning of the quarry was
permitted till final orders are passed in the matter in accordance with
the judgment Ext.P7. Ext.P15 judgment was challenged in
W.A.Nos.1392 of 2020 and 1393 of 2020. By judgment Ext.P16 dated
22.10.2020, this Court disposed of the appeals without interfering with
the directions given in Ext.P15 judgment.
5. According to the petitioner, without disclosing the
proceedings before this Court, an Original Application was filed as
O.A.No.76/2021 before the National Green Tribunal, Southern Zonal
Bench, Chennai (NGT) wherein it was complained that operating of the
quarry is without any valid licence and the petitioner is liable to be
prosecuted. The petitioner appeared before the NGT and produced
Exts.P15 and P16 judgments. The grievance of the petitioner is that the
NGT was continuing with the proceedings even after coming to know
that the persons before the NGT had already approached this Court.
Pending the proceedings before the NGT, the SEAC considered the case
of the petitioner in its meeting held from 27 th to 30th July, 2021. The
Committee found that quarrying in the location as per the approved
mining plan is feasible subject to the conditions laid down in the EC
which had been issued earlier along with certain additional conditions
which had been stated by the SEAC and recorded in the minutes.
Ext.P19 is the minutes of the meeting containing the conditions. Even
though the recommendation of the SEAC had been received, the 1 st
respondent in its meeting held on 14th, 15th and 16th September, 2021
decided to adjourn the case and wait for the final order of the NGT
before proceeding further.
6. The counsel for the petitioner submits that even though he
had been issued with a valid EC as early as on 4.3.2016, he has not
been able to exploit the EC and the quarrying lease granted as per
Ext.P2, owing to several litigations before different forums. This
resulted in the expiry of the period of the EC on 4.3.2021 which stood
extended by one year as per orders issued by the Central Government
in the Ministry of Environment and Forest extending the period of EC by
one year. It is pointed out that even the extended period is now over.
It is further pointed out that the NGT has on 6.12.2021 closed the
original application after recording the recommendations of the SEAC
which had been placed before the NGT in the form of a report by the 1 st
respondent. The NGT directed that the 1 st respondent may take further
action in the matter in accordance with law. Since the 1 st respondent
had not been reconstituted after its term was over, the matter was
pending without a decision. The counsel points out that the 1 st
respondent has now been reconstituted and they can now take a
decision on the stop memo as has been directed by this Court in Ext.P7
judgment and confirmed by Ext.P8 judgment by the Division Bench. It
is submitted that once a decision is taken on the stop memo, and if it is
in favour of the petitioner, the 1st respondent will have to consider
granting extension of the EC in accordance with Clause 9 of the EIA,
2006.
7. Having regard to the entire facts, the contentions and
prayers put forward by the counsel for the petitioner is fully justified.
The writ petition (W.P.(C)No.21767 of 2021) is hence disposed of
directing the 1st respondent to finalise Ext.P5 stop memo as directed by
this Court in Ext.P7 judgment, in the light of the recommendations
made by the SEAC as evident from Ext.P19 minutes. The decision shall
be taken within one month from today and communicated to the
petitioner. The petitioner shall within 10 days from receiving the
communication, if the decision is to revoke the stop memo, submit the
application in Form 1 as required under EIA, 2006 for the purpose of
extension of the environmental clearance granted as per Ext.P1. The 1 st
respondent shall on receipt of such an application consider the
extension in terms of Clause 9 of EIA, 2006 and pass orders within one
month therefrom.
8. In view of the directions above, no further orders are
required in W.P.(C)No.19657 of 2021 and the judgment in W.P.
(C)No.21767 of 2021 will be applicable to the said writ petition also.
Sd/-
T.R.RAVI
JUDGE
dsn
APPENDIX OF WP(C) 19657/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ENVIRONMENTAL ASSESSMENT
REPORT DATED 17.05.2012.
Exhibit P2 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE
NO.24/2016 DATED 04.03.2016 ISSUED TO THE
7TH RESPONDENT.
Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 04.10.2019
IN W.P.(C) NO.15505/2016.
Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 10.10.2020
IN W.P.(C) NO.14072/2020.
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 22.10.2020
IN THE W.A. NO.1392/2020 AND CONNECTED
CASE.
Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED
03.02.2021 OF THE 1ST PETITIONER.
Exhibit P7 TRUE COPY OF REPLY DATED 17.02.2021 GIVEN
TO EXHIBIT P6.
Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED
08.09.2021 SUBMITTED BY THE PETITIONERS TO
THE 2ND RESPONDENT.
RESPONDENT EXHIBITS
Exhibit R7 A A TRUE COPY OF THE GAZATTEE OF INDIA DATED
18.1.12021 WHEREBY THE MOEF AND CC
EXTENDED THE VALIDITY PERIOD OF THE
EXISTING ENVIRONMENTAL CLEARANCE FOR A
PERIOD OF ONE YEAR
Exhibit R7 B A TRUE COPY OF THE MINUTES OF THE MEETING
OF THE 2ND RESPONDENT DATED 14TH TO 16TH
SEPTEMBER, 2021 RATIFYING EXHIBIT R7
Exhibit R7 C A TRUE COPY OF THE RELEVANT PAGE OF
MINUTES OF THE MEETING OF THE 2ND
RESPONDENT DATED 14TH TO 16TH SEPTEMBER,
2021 RATIFYING EXHIBIT R7 A
APPENDIX OF WP(C) 21767/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE
DATED 04/03/2016 ISSUED BY THE 1ST RESPONDENT
TO THE PETITIONER.
Exhibit P2 A TRUE COPY OF THE QUARRYING LEASE EXECUTED BY
THE PETITIONER AND THE STATE GOVERNMENT UNDER
THE PROVISIONS OF THE KERALA MINOR MINERAL
CONCESSION RULES, 2015 DATED 27/05/2016 HAVING
VALIDITY UPTO 26/05/2028.
Exhibit P3 A TRUE COPY OF THE INTERIM ORDER DATED
26/04/2016 PASSED BY THE LEARNED SINGLE JUDGE
OF THIS HONOURABLE COURT IN W.P.(C) NO.15505
OF 2016
Exhibit P4 A TRUE COPY OF THE REFERENCE ORDER DATED
20/09/2016 PASSED BY THE LEARNED SINGLE JUDGE
OF THIS HONOURABLE COURT IN W.P.(C) NO.15505
OF 2016.
Exhibit P5 A TRUE COPY OF THE ORDER DATED 22/09/2016
ISSUED BY THE FIRST RESPONDENT TO THE
PETITIONER.
Exhibit P6 A TRUE COPY OF THE FULL BENCH JUDGMENT
REPORTED IN 2019(3) KLT 987 (FB) (TOMY THOMAS
VS. STATE OF KERALA) DECIDED ON 30/08/2019.
Exhibit P7 A TRUE COPY OF THE COMMON JUDGMENT DATED
04/10/2019 PASSED BY THE LEARNED SINGLE JUDGE
IN WP(C) NOS.15505 OF 2016, 31684 OF 2016 AND
25529 OF 2019.
Exhibit P8 A TRUE COPY OF THE JUDGMENT DATED 08/01/2020
PASSED BY THE DIVISION BENCH OF THIS
HONOURABLE COURT IN W.A.NO.2566 OF 2019.
Exhibit P9 A TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE MEETING OF THE FIRST RESPONDENT
HELD ON 21ST AND 22ND NOVEMBER 2019.
Exhibit P10 A TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE MEETING OF THE FIRST RESPONDENT
HELD ON 23RD AND 24TH DECEMBER, 2019.
Exhibit P11 A TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE 108TH MEETING OF THE SEAC
KERALA HELD ON 13TH AND 14TH JANUARY, 2020.
Exhibit P12 A TRUE COPY OF THE JUDGMENT DATED 27/05/2020
PASSED BY THE LEARNED SINGLE JUDGE OF THIS
HONOURABLE COURT IN WP(C) NO.5897 OF 2020.
Exhibit P13 A TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE 111TH MEETING OF THE SEAC
KERALA HELD ON 2-4 JUNE , 2020.
Exhibit P14 A TRUE COPY OF THE ORDER DATED 30/06/2020
ISSUED BY THE FIRST RESPONDENT TO THE
PETITIONER.
Exhibit P15 A TRUE COPY OF THE JUDGMENT DATED 10/08/2020
PASSED BY THE LEARNED SINGLE JUDGE OF THIS
HON'BLE COURT IN WP(C) NO.14072/2020.
Exhibit P16 A TRUE COPY OF THE COMMON JUDGMENT DATED
22/10/2020 PASSED BY THE LEARNED DIVISION
BENCH OF THIS HON'BLE COURT IN
W.A.NO.1392/2020 AND 1393/2020.
Exhibit P17 A TRUE COPY OF THE ORIGINAL APPLICATION
NO.76/2021 DATED 18/02/2021 FILED BY THE 4TH
RESPONDENT BEFORE THE NATIONAL GREEN TRIBUNAL
(SOUTHERN ZONE), CHENNAI WITHOUT ANNEXURES.
Exhibit P18 A TRUE COPY OF THE REPLY STATEMENT FILED BY
THE PETITIONER DATED 29/03/2021 WITHOUT
ANNEXURES BEFORE THE NATIONAL GREEN TRIBUNAL.
Exhibit P19 A TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF 123TH MEETING OF THE SEAC KERALA ON
27TH TO 30TH JULY, 2021.
Exhibit P20 A TRUE COPY OF THE RELEVANT PAGES OF MINUTES
OF THE 112TH MEETING OF THE STATE LEVEL
ENVIRONMENT IMPACT ASSESSMENT AUTHORITY
(SEIAA, KERALA) DATED 14TH TO 16TH SEPTEMBER,
2021.
RESPONDENTS' EXTS:
EXT.R4(A): TRUE PHOTOSTAT COPY OF ORDER OF THE NATIONAL
GREEN TRIBUNAL SOUTHERN ZONAL BENCH, CHENNAI IN
O.A.No.76 OF 2021 DT.1.3.2021.
EXT.R4(B): TRUE PHOTOSTAT COPY OF THE PETITION IA No.147
OF 2021 IN OA No.76/2021 OF THE NATIONAL GREEN
TRIBUNAL DT.20TH SEPTEMBER, 2021
EXT.R4(C): TRUE ROUGH SKETCH OF THE CROSS SECTION OF
KIZHAKKEMALA THROUGH EAST WEST DIRECTION,
PREPARED BY THE 4TH RESPONDENT DT.NIL.
