M/S.Mukkom Property Developers ... vs State Environment Impact ...
2022 Latest Caselaw 5171 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
   TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
                     WP(C) NO. 5545 OF 2021


PETITIONER:

         M/S.MUKKOM PROPERTY DEVELOPERS (P) LTD.,
         CHEENATHAMKUZHIYIL, MALAYAMMA P.O.,
         CHATHAMANGALAM TALUK, KOZHIKODE,
         REPRESENTED BY ITS MANAGING DIRECTOR.
          BY ADVS.
          SRI PHILIP J.VETTICKATTU
          SMT.SAJITHA GEORGE


RESPONDENTS:

    1     STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY
          (SEIAA KERALA),
          REPRESENTED BY ITS MEMBER SECRETARY,
          4TH FLOOR, KSRTC BUS TERMINAL COMPLEX,
          TRIVANDRUM - 695 001.
    2     STATE EXPERT APPRAISAL COMMITTEE,
          REPRESENTED BY ITS CHAIRMAN,
          DEVIKRIPA, PALLIMUKKU,
          KANNAMMOOLA ROAD, OVERBRIDGE,
          VELAKUDI, TRIVANDRUM - 695 024.
          BY ADV. SRI.M.P.SREEKRISHNAN (SC)

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.02.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
 W.P.(C)No.5545 of 2021
                                   2




                             T.R. RAVI, J.
              --------------------------------------------
                       W.P.(C)No.5545 of 2021
               --------------------------------------------
                 Dated this the 10th day of May, 2022

                             JUDGMENT

The petitioner, a private limited company, owns 5 Hectares,

28 Ares and 94.6 M2 of land comprised under survey numbers

153/1435, 153/1436, 153/1437, 153/1438, and 153/1439 of

Kumaranalloor Village in Kozhikode district. He has also obtained

consent from the neighbouring owner for an extent of 3.6386

hectares of land comprised under survey numbers 153/1431,

153/1432, and 153/1433. The petitioner approached the

concerned authorities under the Mining and Geology Department

for a quarrying lease. The petitioner was issued a Letter of

Intent on the condition that he obtains the necessary

licenses/consent/clearance from the other statutory authorities.

The petitioner, for the above purpose, approached the

respondents for environmental clearance. By Ext. P11, the

respondents have informed the petitioner that the application

cannot be processed since the property for which the application

is made forms part of a plantation and that the Hon'ble Supreme W.P.(C)No.5545 of 2021

Court has in a recent judgment, prohibited quarrying operations

in such lands. Ext. P11 does not state which is the judgment of

the Supreme Court that has been relied upon to reject the

application submitted by the petitioner. The petitioner has

approached this Court challenging Ext. P11. The petitioner has

pointed out that the judgment could only be the one in Nazar v.

Mathew K. Jacob reported in [2019 (4) KLT 82 (SC)].

2. Heard Sri Philip J. Vettickattu on behalf of the

petitioner and Sri M.P.Sreekrishnan, Standing Counsel for the

respondents.

3. The only reason stated in Ext.P11 is that the area

proposed for quarrying is part of a plantation and that the

Hon'ble Supreme Court has prohibited quarrying in such areas.

During the hearing, no such judgment prohibiting quarrying in a

plantation has been pointed out. The petitioner has produced

Ext.P12 judgment of the Hon'ble Supreme Court and submits

that the only recent decision of the Hon'ble Supreme Court

regarding the use of lands exempted under the Land Reforms

Act for other purposes is the said decision. The Hon'ble Supreme

Court was considering the correctness of the Full Bench decision

of this Court in Mathew K.Jacob V. District Environmental W.P.(C)No.5545 of 2021

Impact Assessment Authority reported in [2018 (4) KLT

913 (F.B.)]. The Apex Court affirmed the decision of the Full

Bench. Ext.P12 judgment as well as the judgment of the Full

Bench referred above relate to the meaning of the expression

'commercial site' in Section 81(1)(q) of the Kerala Land Reforms

Act, 1964 and they do not speak of any prohibition of quarrying

in a plantation. As a matter of fact, the Full Bench found that

any class of land exempted in ceiling case can be converted into

any class of land not liable to be exempted and the only

consequence is that the exemption will cease to apply. Relying

on the judgment of the Full Bench, a learned Single Judge has in

Kinallur Rock Sand V. State of Kerala reported in [2021 (2)

KLT 351] held that there is no prohibition for using an

exempted land for a different purpose and the only consequence

will be that it may fall within one's ceiling area and the

authorities may be entitled to initiate fresh ceiling proceedings.

The reasoning in Ext.P11 is hence not legally supportable.

In the result, the writ petition is allowed. Ext.P11 is

quashed. The respondents are directed to process the

application submitted by the petitioner for Environmental

Clearance and to dispose of the same in accordance with law. W.P.(C)No.5545 of 2021

The reason stated in Ext.P11 that the area where the quarrying

activity is to be conducted falls within a plantation shall not be a

reason for denying Environmental Clearance. Necessary orders

shall be issued within two months from the date of receipt of a

copy of this judgment.

Sd/-

T.R. RAVI JUDGE

dsn W.P.(C)No.5545 of 2021

APPENDIX OF WP(C) 5545/2021 PETITIONERS' EXHIBITS EXHIBIT P1 TRUE COPY OF RECEIPT DATED 07.09.2018 ACKNOWLEDGING THE REMISSION OF LAND TAX IN RESPECT OF THE PETITIONER'S LAND.

EXHIBIT P2 TRUE COPY OF POSSESSION CERTIFICATE DATED 22.11.2018 ISSUED FROM THE KUMARANALLOOR VILLAGE IN RESPECT OF THE PETITIONER'S LAND.

EXHIBIT P3 TRUE COPY OF CONSENT DATED 05.11.2018 ISSUED BY THE OWNER OF THE NEIGHBOURING LAND FOR CONDUCTING QUARRYING OPERATION.

EXHIBIT P4 TRUE COPY RECEIPT DATED 07.09.2018 ACKNOWLEDGING THE REMISSION OF LAND TAX IN RESPECT OF THE PROPERTY OF THE ADJACENT OWNER.

EXHIBIT P5 TRUE COPY POSSESSION CERTIFICATE DATED 02.11.2018 ISSUED FROM THE KUMARANALLOOR VILLAGE.

EXHIBIT P6 TRUE COPY DEMARCATION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KUMARANELLOOR VILLAGE, DATED 02.11.2018.

EXHIBIT P7 TRUE COPY CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KUMARANELLOOR VILLAGE, DATED 02.11.2018.

EXHIBIT P8 TRUE COPY SKETCH ISSUED BY THE TAHSILDAR IN RESPECT OF THE PROPOSED SITE.

EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN WP(C)NO.13031/2019 DATED 27.05.2019.

EXHIBIT P10 TRUE COPY OF THE COVERING LETTER AND INDEX OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR TOR FOR ENVIRONMENTAL CLEARANCE DATED 16.09.2019.

EXHIBIT P11 TRUE COPY OF ORDER DATED 06.08.2020 PASSED BY THE SEIAA.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN NAZAR V/S MATHEW K.JACOB REPORTED AS 2019(4)KLT 82(SC).