Kerala High Court
Tomy Thomas vs Smt. Anupama Viswanath on 24 March, 2023
Con.Case(C) No.584/2023 1 / 12
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
Friday, the 24th day of March 2023 / 3rd Chaithra, 1945
CONTEMPT CASE(C) NO. 584 OF 2023(S) IN WP(C) 5897/2020
PETITIONER/PETITIONER:
TOMY THOMAS, AGED 57 YEARS, S/O. THOMAS, PULICKAL HOUSE,
KALATHUKADAVU P.O., ERATTUPETTA, KOTTAYAM - 686 579
BY ADVOCATE SRI. JOBI JOSE KONDODY
RESPONDENT/3RD PARTY AND RESPONDENT NO.2:
1. SMT. ANUPAMA VISWANATH, THE PRESIDENT, THALAPPALAM GRAMA
PANCHAYAT, (THE CHAIRPERSON OF THE COMMITTEE OF THALAPPALAM
GRAMAPANCHAYAT), OFFICE OF THE THALAPPALAM GRAMA PANCHAYAT,
PLASSANAL P.O, KOTTAYAM - 686 579.
2. MR. RAJEEV R., THE SECRETARY, THALAPPALAM GRAMA PANCHAYAT, OFFICE
OF THE THALAPPALAM GRAMA PANCHAYAT, PLASSANAL P.O., KOTTAYAM - 686
579.
ADVOCATE SRI. JAMES KURIAN FOR R1.
ADVOCATES M/S. V.K. PRASAD, MUSTHAHAZIN K. MOHAMMED & JOSNA C. FOR R2.
SRI. M.P. SREEKRISHNAN, STANDING COUNSEL FOR STATE ENVIRONMENTAL IMPACT
ASSESSMENT AUTHORITY (SEIAA)
SENIOR GOVERNMENT PLEADER
This Contempt of court case (civil) having come up for orders on
24.03.2023, the court on the same day passed the following:
P.T.O.
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ALEXANDER THOMAS, J.
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Contempt of Court case (C) No.584 of 2023
[against the judgment dated 27.05.2020 in W.P.(C) No.5897/2020]
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Dated this the 24th day of March, 2023
ORDER
The parties have been heard in extenso.
2. The petitioner's counsel will give a copy of the
memorandum of this contempt case to Sri.M.P. Sreekrishnan, the
learned counsel appearing for the State Environmental Impact
Assessment Authority (SEIAA), Kerala. The SEIAA will
immediately give precise and cogent factual instructions to their
learned Standing Counsel, as to whether Anx.A5 is only a
conditional Environmental Clearance or whether Environmental
Clearance is granted to him, with general and special conditions
thereto and as to whether the special conditions, appended as per
condition Nos.3, 6, 10 to 24 given in para 9 on internal pages 6 to 9
of Anx.A5 Environmental Clearance proceedings dated 28.10.2022,
need be actually complied with by the applicant, just before he has
to start the mining and quarrying activities. This we say so, as the
specific plea raised by the petitioner herein is that the aforesaid
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Con. Case (C) No.584 of 2023
conditions in para 9 of Anx.A5 are only special conditions apart from
the other general conditions and that Anx.A5 is the grant of the
Environmental Clearance and that the Environmental Clearance is
not a conditional Environmental Clearance, but that Environmental
Clearance has been granted, subject to the petitioner complying with
the general and special conditions and in case the petitioner does not
comply with the special or general conditions, then the competent
authority is entitled to take adverse action against the petitioner,
subject, of course, for observing minimal principles of fairness and
natural justice.
2. Prima facie, the abovesaid plea of the petitioner appears
to be tenable, as Anx.A5 cannot be said to be a conditional
Environmental Clearance and what is involved in Anx.A5 is the grant
of the Environmental Clearance and some of the special conditions,
depending upon the nature of the same, will have to be complied with
by the petitioner before the actual commencement of mining and
quarrying activity.
3. Further, this contempt case discloses the sad and tragic
story of a litigant, who is constrained either to initiate or face
litigations, atleast 17 in number, before various courts and fora,
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Con. Case (C) No.584 of 2023
including the Single Bench of this Court, the Division Bench of this
Court, the National Green Tribunal, the Apex Court, etc.
4. He won the litigation initiated by him in the celebrated
case of Tomy Thomas v. State of Kerala [2019 (3) KLT 987
(FB)], rendered by the Full Bench as early as on 30.08.1997.
5. After answering the reference, the matter was remitted to
the Single Bench and the Single Bench gave a verdict directing the
SEIAA to finalise the stop memo proceedings.
6. It has to be borne in mind that the petitioner has secured
almost all the clearances from various authorities, including the
Mining and Geology Department under the Kerala Minor Mineral
Concession Rules, the Explosives Rules, etc., and even the
Environmental Clearance from the SEIAA and the Panchayat was
consistently refusing to grant him the formal licence under Secs.232
& 233 of the Kerala Panchayat Raj Act. The Full Bench has
categorically laid down the position of law that after the amendment
made to those provisions of the Kerala Panchayat Raj Act, the
Panchayat has no discretion to refuse the grant of the
licence/permission, both for the trade license and the establishment
permit and in a case where the applicant secures all the valid permits
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Con. Case (C) No.584 of 2023
and licences, then the Panchayat authority is obliged to grant the
abovesaid permissions but it will be within their province of the
competent authority to ensure the enforcement of the various
conditions. However, the matter did not stop there. Notices after
notices were issued by the Panchayat authority, directing the
petitioner to produce various documents and materials. The
Panchayat authority even went to the extent of issuing a notice to the
petitioner, directing that he should even produce consent or non-
objection from his wife, as the property is in the name of both the
petitioner and his wife. It has to be remembered that the very same
Panchayat authority had, without any demur, issued the very same
licence to the petitioner before the controversy started and in respect
of the very same subject property, when it is fully known to the
Panchayat authorities that the subject property jointly belongs to the
petitioner and his wife. Demands after demands were made through
various notices by the Panchayat authorities. All those requirements
in notices have been consistently complied with by the petitioner.
The matter did not stop there.
7. Thereafter, this Court issued the present Anx.A1
judgment as early as on 27.05.2020. Further, this Court had also
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Con. Case (C) No.584 of 2023
issued Anx.A2 judgment issuing certain directions therein. In
Anx.A2 writ proceedings, the Panchayat authority was not a party.
8. A private litigant filed a third party writ appeal to
challenge Anx.A2 judgment. So also, the Panchayat authorities also
challenged Anx.A2 judgment. Their litigative venture failed when the
Division Bench categorically declared and held in Anx.A3 judgment
that the impugned directions in Anx.A2 judgment stands upheld.
9. Still, the matter did not end there. The private litigant in
Anx.A3 has again approached the National Green Tribunal, which,
according to the petitioner, was after suppressing crucial aspects in
relation to Anx.A2 & A3 litigations before this Court. Be that as it
may, the abovesaid venture of the private litigant was also repelled by
the Full Bench of the National Green Tribunal, which ended in
Anx.A4 verdict of the National Green Tribunal.
10. Thereafter, the petitioner was again constrained to
litigate in respect of certain actions of the SEIAA. A series of
contempt orders were passed by the learned Single Judge.
Ultimately, proceedings were issued by the SEIAA in August 2022,
which, according to the petitioner was not proper compliance of the
directions of this Court and the contempt court gave liberty to the
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Con. Case (C) No.584 of 2023
petitioner to challenge those conditions. The above said proceedings
rendered by the SEIAA in August 2022 were again challenged by the
petitioner in W.P.(C) No.21761/2021. It is very interesting to know
that yet another private litigant then came forward to raise certain
objections against the claims of the petitioner by filing W.P.(C)
No.19657/2021. Both those writ proceedings were heard together
and the learned Single Judge has effectively held in favour of the
petitioner, by directing that the subject Anx.A1 judgment will have to
be strictly complied with by the SEIAA in letter and spirit, as can be
seen from a reading of the common judgment dated 11.03.2022
rendered in W.P.(C) No.19657 & 21761/2021. It is thereafter that the
SEIAA has issued the instant Anx.A5 Environmental Clearance
proceedings dated 28.10.2022. Now, a contention is taken up by the
Panchayat authorities that Anx.A5 is a conditional Environmental
Clearance and not the grant of an Environmental Clearance.
11. Prima-facie, from a mere reading of Anx.A5, it can be
seen that, ordinarily, the SEIAA will impose the standard general
conditions and what is granted is the Environmental Clearance and
conditions are appended thereto and violations of the conditions will
entail action as per the Rules.
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Con. Case (C) No.584 of 2023
12. In this case, apart from the general conditions, the
aforesaid special conditions have also been issued. A reading of para
No.9 of Anx.A5 would prima-facie indicate that some of the
conditions need be complied with by the petitioner before the mining
activity actually commences.
13. Prima-facie, it has to be observed that, merely because
the SEIAA has imposed general and special conditions, as per
Anx.A5, it cannot be contended by the Panchayat authorities that
Anx.A5 is only a conditional Environmental Clearance and not grant
of an Environmental Clearance.
14. The litigant in the celebrated verdict of the Full Bench in
Tomy Thomas's case supra is none other than the present litigant.
15. In law, he could succeed in his endeavour by the
pronouncement of law by the Full Bench, rendered as early as on
30.08.2019 and reported as 2019 (3) KLT 987 (FB). It appears to be
the case that various other similarly situated litigants could enjoy the
fruits of the litigative efforts of the petitioner through the Full Bench
verdict, but the litigant in the present case is even now having to
move from pillar to post and beg before various authorities and it
appears that the main source of opposition to the petitioner is the
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Con. Case (C) No.584 of 2023
elected members of a local self Government Panchayat.
16. Sri.Joby Jose Kondody, learned counsel appearing for the
petitioner, would submit, on the basis of instructions, that as a
responsible officer of the Court, who is committed to the rule of Law,
he would submit, on the basis of instructions, that a very powerful
officer of the Indian Police Service is behind the consistent actions
against the petitioner, inasmuch as the said person has a rival
business interest in a nearby area.
17. Be that as it may, this Court is faced with a series of
actions of various authorities and officers of the Government and
other Local Self Government authorities and Public Sector entities,
wherein judgments after judgments have been rendered by this Court
in many a case and even without challenging the same and without
getting any interdiction of such judgments, the authorities are
sleeping over the implementation of the judgment and is acting with
all impugnity, raising a serious challenge to the very maintenance of
the Constitutional order of the Rule of Law and Constitutionalism. It
has to be remembered that the Panchayat is a local self government
body, which has to adhere to the rule of law and every officer and
authority of the Panchayat is under the law and the Constitution.
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18. A judgment of a court of law is to be enforced, as long as
it is not interdicted, in the manner known to law. A judgment or a
verdict of a Court is not a mere parchment of paper and it can get life
and blood only if the respondents comply with the directions of that
judgment. Otherwise, it just remains as a paper and illusion, which
is a threat to the Rule of law, which would directly lead to the loss of
faith of the people in the judicial adjudication process and the Rule of
Law.
19. From a reading of Anx.A5 order, it appears that
Dr. B. Venu, I.A.S., Additional Chief Secretary (Home) is also a
member of the SEIAA, who has rendered Anx.A5.
20. The learned counsel appearing for the petitioner will, also
immediately, give a copy of this contempt memorandum, with all the
pleadings to the learned Senior Government Pleader today itself, who
is requested to immediately apprise about the pendency of this case
to (i) the Additional Chief Secretary (Home) (ii) the Additional Chief
Secretary/Principal Secretary to the Government in the LSG
Department (iii) Director of Panchayats, (iv) Deputy Director of
Panchayats of the area concerned.
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21. This Court would request the abovesaid officers to bestow
their attention to the facts of this case and the tragic and terrible
plight of the litigant, who has won litigation after litigation and is still
facing roadblocks after roadblocks in his quest for justice.
22. This Court would hope and trust that the abovesaid
officers would look into this matter and may give necessary
directions to the authorities concerned.
List the matter on 03.04.2023 at 3.30 p.m., in the Court.
Hand Over copies of this order to both sides.
Sd/-
ALEXANDER THOMAS,
JUDGE
Skk//13032023
24-03-2023 /True Copy/ Assistant Registrar
Con.Case(C) No.584/2023 12 / 12
APPENDIX OF CON.CASE(C) 584/2023
Annexure A1 CERTIFIED COPY OF THE JUDGMENT DATED 27.05.2020 PASSED
BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN
WP(C) NO. 5897/2020.
Annexure A2 A TRUE COPY OF THE JUDGMENT DATED 10.08.2020 PASSED BY
THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN
W.P.(C) NO. 14072/2020.
Annexure A3 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.
Annexure A4 A TRUE COPY OF THE ORDER DATED 06/12/2021 PASSED BY THE
SPECIAL BENCH OF THE NATIONAL GREEN TRIBUNAL IN OA NO.
76/2021(SZ) (IA NO.147/2021(SZ)).
Annexure A5 A TRUE COPY OF THE ORDER DATED 28.10.2022 ISSUED BY THE
SEIAA, KERALA TO THE PETITIONER.
24-03-2023 /True Copy/ Assistant Registrar
