Kerala High Court
M/S.Petra Crushers vs The State Environment Impact, ... on 12 April, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(C) NO. 29474 OF 2023
PETITIONER/S:
M/S.PETRA CRUSHERS,
ELAMCADU P.O., KOOTIKKAL, KANJIRAPALLY, KOTTAYAM
REPRESENTED BY ITS MANAGING PARTNER SRI. THOMAS P.
MATHEW, PIN - 686514
BY ADVS.
ENOCH DAVID SIMON JOEL
S.SREEDEV
RONY JOSE
LEO LUKOSE
KAROL MATHEWS SEBASTIAN ALENCHERRY
DERICK MATHAI SAJI
JOSEPH KODIANTHARA (SR.)
RESPONDENT/S:
1 THE STATE ENVIRONMENT IMPACT, ASSESSMENT AUTHORITY,
K.S.R.T.C BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR,
THIRUVANANTHAPURAM, REPRESENTED BY ITS MEMBER
SECRETARY, PIN - 695001
2 THE STATE LEVEL EXPERT APPRAISAL COMMITTEE,
K.S.R.T.C BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR,
THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN, PIN -
695001
3 ADDL.R3: STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM (ADDL.R3 &
R4 ARE IMPLEADED AS PER ORDER DATED 17/10/2023 IN IA
2/2023.)
4 ADDL.R4:THE DIRECTOR OF MINING & GEOLOGY,
DIRECTORATE OF MINING & GEOLOGY, PATTOM P.O,
THIRUVANATHAPURAM (ADDL.R3 & R4 ARE IMPLEADED AS PER
ORDER DATED 17/10/2023 IN IA 2/2023.)
5 ADDL.R5: SHEENA MANOJ,
W/O. MANOJ, POTTAYAIRYIL HOUSE, VALYANTHA, ELAMKADU
P.O., KOTTAYAM DISTRICT-686514 (IS IMPLEADED AS PER
ORDER DATED 30/1/2024 IN IA1/23 IN WP(C) 29474/2023)
W.P.(C)No.29474/2023 2
6 ADDL.R6:KERALA STATE BIODIVERSITY BOARD,
L-14, JAI NAGAR, MEDICAL COLLEGE (P.O),
THIRUVANANTHAPURAM - 695011 (IS SUO MOTU IMPLEADED AS
ADDL. R6 AS PER ORDER DATED 08/02/2024 IN WP(C)
29474/2023)
BY ADVS.
ANAND KALYANAKRISHNAN
No Advocate
NAVEEN.T, SC, KERALA STATE BIODIVERSITY BOARD
N.K.SUBRAMANIAN
C.DHEERAJ RAJAN
ABRAHAM MATHAN
OTHER PRESENT:
SRI. ANAND KALYANAKRISHNAN-S.
SMT.GIA MATHAI KANDATHIL - ADV.COMMISSIONER
SRI. M.P. SREEKRISHNAN -SC,
SRI. S. KANNAN-SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.29474/2023 3
'CR'
JUDGMENT
This writ petition has been filed challenging Exts. P3, P4 and P6
proceedings of the State Level Environment Impact Assessment
Authority (the 'SEIAA').
The facts in brief:-
2. The petitioner is a registered partnership firm engaged in
the business of granite quarrying. It had been issued with a quarrying
lease on 20.3.2012 for a period of 12 years under the erstwhile Kerala
Minor Mineral Concession Rules, 1967. The validity of the lease thus
expired on 19.3.2024. The Environment Impact Assessment (EIA)
Notification, 2006 did not insist upon an environmental clearance
being obtained for quarrying/mining of minor minerals provided the
area over which such mining is proposed was of an extent of less than
five hectares. The Supreme Court of India, in its judgment in
Deepak Kumar & others v. State of Haryana and others;
(2012) 4 SCC 629, issued certain directions to the State Governments
and Union Territories regarding the framing of new mineral
concession rules for minor minerals, keeping in mind the model rules
framed by the Government of India and dealing with all aspects of
mining of minor minerals. It was also directed that in the meanwhile,
leases for mining of minor minerals (including renewal) in areas of
less than five hectares shall be granted by the State/Union Territories
only after getting environmental clearance from the Ministry of
Environment, Forest and Climate Change. Following the judgment of
the Supreme Court in Deepak Kumar (supra), the Ministry of
Environment, Forest and Climate Change issued an Office
Memorandum bearing No. L-11011/47/2011-IA.II(M) dated 18.5.2012
to implement the directions issued by the Supreme Court. A question
arose before this Court as to whether the directions issued in Deepak
Kumar (supra), read with the provisions of the Office Memorandum
dated 18.5.2012, would require holders of mining leases issued before
18.5.2012 to apply for and obtain an environmental clearance before
carrying on with their operations. A Division Bench of this Court, in
the judgment reported as All Kerala River Protection Council v.
State of Kerala; 2015(2) KLT 78, took the view that holders of
mining leases issued prior to the date of issuance of the EIA
notification 2006 or before the issuance of the order dated 18.5.2012
by the Government of India, Ministry of Environment, Forest and
Climate Change with regard to areas of less than five hectares require
no environmental clearance and the requirement of environmental
clearance will arise only when the lease comes up for renewal or re-
issue. Therefore, the petitioner and several other operators (whose
mining lease covered an area of less than five hectares) continued to
operate their mines without environmental clearance. When the
petitioner faced an issue with regard to the issuance of a D&O license
by the local Panchayath on the ground that it had not obtained an
environmental clearance, it approached this Court by filing W.P.
(C)No.33540/2017 which was disposed of by Ext.P7 judgment holding
that, in the light of the law laid down by this Court in All Kerala
River Protection Council (supra), no environmental clearance
can be insisted upon in respect of its activities.
3. While matters stood thus, the Ministry of Environment,
Forest and Climate Change issued a notification dated 15.1.2016,
amending the EIA Notification, 2006 and providing for the
constitution of District Level Environment Impact Assessment
Authorities. A question arose before the National Green Tribunal -SZ
(hereinafter referred to as 'the NGT' or as 'the Tribunal') as to
whether, in the light of the notification dated 15.1.2016, the persons
with existing mining leases for mining of minor minerals in an area of
less than five hectares were required to take out an environmental
clearance. In O.A.No.136/2017 (Tamil Nadu Small Mine
Owners Federation v. The Secretary, MoEF & CC, New
Delhi and Ors), it was held that, following the notification dated
15.1.2016, all existing leaseholders engaged in the mining of minor
minerals in areas less than five hectares were also required to obtain
environmental clearance for continuation of their operations and
further that those who had not filed any application for environmental
clearance before 31.3.2016 will be considered to be violators. The
Tribunal, thereafter, considered and disposed of O.A.No.244/2017 by
Ext.R3(b) judgment (Shefy Joseph v. Government of India and
others) in the matter of mining activities carried on by M/s. Cochin
Granites (a partnership firm). Following the view taken in Tamil
Nadu Small Mine Owners Federation (supra) and again
holding that the notification dated 15.1.2016 required obtaining
environmental clearance by persons engaged in mining minor
minerals even in areas less than five hectares, the NGT disposed of
O.A.No.244/2017 as under:-
"43. So under such circumstances, we feel that the application
can be disposed of by giving following directions:-
(i) It is declared that the mining operation done by the
4th respondent under the name and style of M/s.
Cochin Granites in the disputed area after 15.01.2016,
till they stopped their mining operation on the basis of
the old lease of 2006 is illegal and unauthorized and
they are liable to pay environmental compensation for
the quantity of mined articles which has to be assessed
by the Mining and Geology Department.
(ii) The Directorate of Mining and Geology Department
is directed to assess the environmental compensation,
penalty for excess mining and royalty lost to the
exchequer for excess mining on the basis of the quantity
of minerals mined from 15.01.2016, till the mining
operation was stopped by M/s. Cochin Granites on the
basis of the old lease and take steps to recover the
amount from M/s. Cochin Granites in accordance with
law.
(iii) The Director of Mining and Geology Department is
also directed to ascertain as to whether he had
complied with the closure plan provided while
executing the mining lease of 2006 and if he had not
complied with the same, take appropriate action
against them for enforcing the mining closure plan and
recover the damage, if any, caused on account of the
same to the environment from the 4th respondent in
accordance with law.
(iv) The Director of Mining and Geology Department is
directed to file the action taken report on the basis of
the above direction before this Tribunal within a period
of 4 (Four) months, after providing necessary
opportunities to the 4th respondent in this regard in
accordance with law.
(v) If such report is filed, then the office is directed to
place the same before the Bench for consideration and
issuing further directions in this regard.
(vi) Considering the circumstances, the parties are
directed to bear their respective costs in the application .
44. Thus, the points are answered accordingly.
45. In the result, the application is disposed of as follows:-
(i) It is declared that the mining operation done by the 4th
respondent under the name and style of M/s. Cochin
Granites in the disputed area after 15.01.2016, till they
stopped their mining operation on the basis of the old
lease of 2006 is illegal and unauthorized and they are
liable to pay environmental compensation for the quantity
of mined articles which has to be assessed by the Mining
and Geology Department.
(ii) The Directorate of Mining and Geology Department is
directed to assess the environmental compensation,
penalty for excess mining and royalty lost to the
exchequer for excess mining on the basis of the quantity of
minerals mined from 15.01.2016, till the mining Page 32 of
33 operation was stopped by M/s. Cochin Granites on the
basis of the old lease and take steps to recover the amount
from M/s. Cochin Granites in accordance with law.
(iii) The Director of Mining and Geology Department is
also directed to ascertain as to whether he had complied
with the closure plan provided while executing the mining
lease of 2006 and if he had not complied with the same,
take appropriate action against them for enforcing the
mining closure plan and recover the damage, if any,
caused on account of the same to the environment from
the 4th respondent in accordance with law.
(iv) The Director of Mining and Geology Department is
directed to file the action taken report on the basis of the
above direction before this Tribunal within a period of 4
(Four) months, after providing necessary opportunities to
the 4th respondent in this regard in accordance with law.
(v) If such report is filed, then the office is directed to place
the same before the Bench for consideration and issuing
further directions in this regard, if any required.
(vi) Considering the circumstances, the parties are
directed to bear their respective costs in the application.
(vii) The Registry is directed to communicate this order to
the Director of Mining and Geology Department by e-mail
immediately for their information and compliance.
46. With the above observations and directions, this application is
disposed of."
This order of the NGT was challenged before the Supreme Court of
India by filing an appeal under Section 22 of the National Green
Tribunal Act, 2010 (hereinafter referred to as the NGT Act). The
appeal was numbered as Civil Appeal No.4643/2021. By an order
dated 16.8.2021, the Supreme Court dismissed the appeal, finding that
'there is no error of fact or law in the order of the NGT dated
27.5.2021 in O.A.No.244/2017 (SZ).' A petition seeking review of the
order in Civil Appeal No.4643/2021 filed as R.P.(C).No.1285/2021 in
Civil Appeal No.4643/2021 was also dismissed by an order dated
14.12.2021.
4. It is in the background of the orders issued by the NGT in
O.A.No.244 of 2017 and following the dismissal of the appeal
challenging the judgment of the NGT that the impugned
proceedings/notices were drawn up and issued to the petitioner. The
petitioner is thus before this Court seeking to quash Exts. P3, P4 and
P6. While Exts. P3 and P6 are minutes of the meetings of the SEIAA,
Ext.P4 is a copy of the stop memo dated 25.07.2023 issued to the
petitioner and calling upon the petitioner to stop all quarrying
activities in the quarrying site of the petitioner situated within the
limits of the Koottickal Village, Kanjirappally Taluk, Kottayam
District.
5. Sri. Joseph Kodianthara, the learned senior counsel
appearing for the petitioner ably assisted by Sri. Enoch David
contends that insofar as the petitioner is concerned, the decision of
the NGT in O.A.No.244 of 2017 and the fact that an appeal filed
against the said judgment of the NGT before the Supreme Court had
been dismissed cannot result in the issuance of Ext.P4 stop memo and
the communication of the decision of the first respondent that the
petitioner is not entitled to carry on with its quarrying activities
without an Environmental Clearance. It is submitted that the order of
the NGT is unsustainable in law. It is submitted that the Tribunal
completely ignored the law laid down by the Division Bench of this
Court in All Kerala River Protection Council (supra) and
proceeded to decide the matter on the basis of the judgment of the
Principal Bench of the Tribunal in Himmat Singh Shekhaswat
and Others v. State of Rajasthan and Others in O.A.No.123 of
2014. It is pointed out that, though the order of the NGT in
O.A.No.244 of 2017 proceeds on the basis that the Principal Bench of
the Tribunal had decided Himmat Singh (supra), after the
judgment of the Division Bench of this Court in All Kerala River
Protection Council (supra), the said statement is factually
incorrect. It is submitted that All Kerala River Protection
Council (supra) was decided after the decision of the Principal
Bench of the Tribunal in Himmat Singh (supra). It is submitted
that, even if the judgment in Himmat Singh (supra) was after the
judgment of the Division Bench of this Court in All Kerala River
Protection Council (supra), the Tribunal ought to have followed
the Division Bench judgment of this Court as the same was binding on
the Tribunal. It is submitted that the view taken by the Tribunal that
the notification dated 15.01.2016 constitutes a change of law is
absolutely incorrect. The notification dated 15.01.2016 is referred to
extensively to point out that the said notification does not constitute
any change of law from the time at which the matter was considered
by the Division Bench of this Court in All Kerala River Protection
Council (supra). It is submitted that the Special Leave Petition
filed against the judgment of this Court in All Kerala River
Protection Council (supra) was dismissed as withdrawn. It is
submitted that the law laid down in All Kerala River Protection
Council (supra) again came up for consideration of a Division
Bench of this Court in Paristhithy Samrakshana Janakeeya
Samithy v. State of Kerala, 2015 (4) KLT 278. It is submitted
that, while affirming the law laid down in All Kerala River
Protection Council (supra), this Court, in Paristhithy
Samrakshana (supra), held that, in cases of mining permits
issued from year to year, an environmental clearance would be
required in terms of the office memorandum dated 18.05.2012,
whenever the permit comes up for renewal. It is submitted that the
judgment of the Division Bench in Paristhithy Samrakshana
(supra) was challenged before the Supreme Court by filing SLP
No.30103 of 2015. It is submitted that the said SLP was dismissed by
the Supreme Court on 02.12.2016. Thus, it is submitted, insofar as the
petitioner is concerned, its mining operations could never be stated to
have been illegal or contrary to law, as the law laid down by this Court
in All Kerala River Protection Council (supra) continued to
apply to all mining leases issued before 18.05.2012 and in respect of
mining of minor minerals in an area less than five hectares. It is
submitted that the fact that the appeal filed against the order of the
NGT in O.A.No.244 of 2017 had been dismissed by the Supreme Court
(through an order dated 16.08.2021 in C.A No. 4643 of 2021) does not
prohibit this Court from examining the correctness of the order passed
by the NGT, as the order of the Supreme Court does not constitute a
merger of the judgment of the NGT with the order of the Supreme
Court. It is submitted that the order of the Supreme Court cannot be
treated as a binding precedent for the purposes of Article 141 of the
Constitution of India. It is submitted that since the notification dated
15.01.2016 does not constitute a change of law, the decision of the
Division Bench of this Court in All Kerala River Protection
Council (supra) will continue to operate insofar as the petitioner is
concerned. Therefore, it is submitted the proceedings initiated against
the petitioner based on the findings of the NGT in O.A.No.244 of 2017
are liable to be declared illegal and unsustainable. It is pointed out
that the cut-off date fixed in terms of the judgment of this Court in All
Kerala River Protection Council (supra) is 18.05.2012, and
considering the fact that no mining lease can be granted for more than
12 years at a stretch, the last of the mining leases, which could be
operated without obtaining the environmental clearance for the
extraction of minor minerals in an area of less than five hectares
would come to an end not later than 17.05.2024. It is submitted that
the finding of the SEIAA in the impugned proceedings that the
activities of the petitioner after 15.01.2016 are illegal and proposing to
take action on that basis is clearly unsustainable, as the petitioner was
operating its mine, in terms of the law laid down by this Court in All
Kerala River Protection Council (supra), which the State and
its authorities had accepted. In other words, it is submitted that even
if this Court have to hold that the law laid down by the NGT in
O.A.No.244 of 2017 is correct, the said decision cannot be a ground to
hold that all operations of the petitioner after 15.01.2016 are illegal.
6. Sri. S. Kannan, the learned Senior Government Pleader
appearing for the State of Kerala and its officers, supports the
contention taken on behalf of the petitioner that the dismissal of the
statutory appeal against the order of the NGT and the fact that the
Supreme Court has also dismissed a review petition filed before the
Supreme Court is no ground to hold that the Supreme Court has
affirmed the view taken by the NGT.
7. The following decisions were cited for the petitioner and
on behalf of the State of Kerala to support the contention that there is
no merger of the order of the NGT in O.A.No.244/2017 with the order
of the Supreme Court dismissing the appeal filed against that order
and also in support of the proposition that the order of the Supreme
Court dismissing the appeal filed against the order of the NGT in O.A
244/2017 is not 'law declared' for the purposes of Art.141 of the
Constitution of India.
i Pilot UJS Chopra v. State of Bombay (1955) 2 SCR 94
ii Nirbhay Singh v. State of Madhya Pradesh (1969) 2 SCR 569
iii S. Shanmugavel Nadar v. State of Tamil (2002) 8 SCC 361
Nadu and another
iv Macquarie Bank Limited v. Shilpi Cable (2018) 2 SCC 674
Technologies Limited
v Jayant Verma and others v. Union of India (2018) 4 SCC 743
and others
vi Kaikhosrou (Chick) Kavasji Framji v. Union (2019) 20 SCC 705
of India and another
vii Experion Developers Private Limited v. 2023 SCC OnLine
Himanshu Dewan and others; SC 1029
viii Secundrabad Club etc. v. C.I.T- V Etc 2023 SCC OnLine
SC 1004
8. Sri. M. P Sreekrishnan, the learned counsel appearing
for the State Environmental Impact Assessment Authority
(SEIAA) and Sri. N. K Subramanian, the learned counsel appearing
for the additional 5th respondent, would submit that the order of the
Supreme Court dismissing the appeal filed under Section 22 of the
NGT Act against Ext.R5(b) order attracts the doctrine of merger and
the order of the Supreme Court is 'law declared' for the purpose of
Art.141 of the Indian Constitution of India. It is submitted that when
the Supreme Court has found that there is no error either in fact or in
law in the order of the NGT, it does not lie in the mouth of the
petitioner to contend that this Court must, in the exercise of its
jurisdiction under Article 226 of the Constitution of India, hold that
the order of the NGT is contrary to law and against the ratio of the
judgment of this Court in All Kerala River Protection Council
(supra). It is submitted that the petitioner has conducted mining
activities violating its mining plan, and several violation cases have
been registered against the petitioner. It is submitted by the learned
counsel for the additional 5 th respondent that the Koottikkal Village
has been included in the list of villages notified as an Ecologically
Sensitive Area (ESA) prone to landslides and other calamities.
Therefore, even otherwise, the petitioner's mining activity is illegal
and is liable to be stopped. It is submitted that it is clear from Ext.P9
document produced along with I.A.No.3 of 2023 dated 06.07.2022
that no mining activities can be permitted in an Ecologically Sensitive
Area. The learned counsel appearing for the additional 5th respondent
would submit that the statutory authorities have not considered
several complaints filed by the residents of the locality. The learned
counsel for the additional 5th respondent relies upon the following
judgments in support of his propositions:-
i Collector of Customs, Calcutta v. East India AIR 1963 SC 1124
Commercial Co. Ltd., Calcutta and others;
ii Shankar Ramachandra Abhyankar v. (1969) 2 SCC 74
Krishnaji Dattatraya Bapat;
iii M/s. Gojer Brothers (P) Ltd. v. Shri. Ratan (1974) 2 SCC 453
Lal Singh;
iv Pernod Ricard India Private Limited v. (2010) 8 SCC 313
Commissioner of Customs, ICD
Tughlakabad;
v Khoday Distilleries Ltd. (Now Known as (2019) 4 SCC 376
Khoday India Ltd) & Ors. v. Sri.
Mahadeshwara Sahakara Sakkare
Karkhane Limited, Kollegal;
vi S.E. Graphites Private Limited v. State of (2020) 14 SCC 521
Telangana and others;
9. Sri. Enoch David, the learned counsel appearing for the
petitioner, would submit, in reply, that several of the contentions
taken by the additional 5th respondent are outside the scope of the
pleadings in the writ petition and should not be adjudicated by this
Court. In other words, it is submitted that the only question now
before this Court is whether Ext.P4 stop memo issued to the petitioner
on the basis that it was continuing with mining activity without
obtaining environmental clearance can be sustained or not. It is
submitted that the contention of the learned counsel for the additional
5th respondent that the Koottikkal Village is included in the list of
villages notified as an Ecologically Sensitive Area cannot be accepted,
as it is clear from Ext.P6 itself that the Koottikkal Village though
initially notified as an Ecologically Sensitive Area was later removed.
No area within Kottayam District is now included as an Ecologically
Sensitive Area is the submission. It is submitted that the contention
of the learned counsel for the additional 5th respondent that the
petitioner has conducted mining activities contrary to the mining plan
submitted in terms of the provisions contained in the Kerala Minor
Mineral Concession Rules, 2015, is absolutely incorrect and contrary
to the facts. It is submitted that the additional 5th respondent has not
raised any complaint herein before and has only come up with his
complaint that the petitioner is engaged in illegal mining at a time
when the mining lease granted to the petitioner is set to expire.
10. I have considered the contentions raised. Several
decisions have been cited in support of the contention that the order
of the Supreme Court in Civil Appeal No. 4643 of 2021 dismissing the
appeal filed under Section 22 of the NGT Act against the order in
O.A.No.244 of 2017 does not result in merger of the order of the NGT
with the order of the Supreme Court and also in support of the
proposition that the order of the Supreme Court is not 'law declared'
for the purposes of Article 141 of the Constitution of India. Several
decisions have been cited by the learned counsel appearing for the
respondents to counter the aforesaid contentions. Though I do not
intend to rest my decision in this case either on the application of the
principle of merger or on the issue as to whether the order of the
Supreme Court is 'law declared' for the purposes of Article 141 of the
Constitution of India, these decisions may be briefly analyzed. In
Pilot U.J.S Chopra (supra), the appellant in the case was
convicted for committing an offence under the Bombay Prohibition
Act, 1949. An appeal filed to the High Court was summarily
dismissed. After the dismissal of the appeal, the State filed a revision
petition to enhance the sentence. Notice was issued to the
appellant/accused under Section 439 (2) of the Code of Criminal
Procedure, 1898. The question that arose for consideration was
whether the appellant/accused, in terms of the provisions under
Section 439 (6) of the 1898 Code, could then show cause against his
conviction, also taking into consideration the fact that the High Court
had summarily rejected his appeal against the conviction. While
considering the aforesaid question, the Supreme Court held that when
an appeal is summarily dismissed, there will be no judgment of the
High Court replacing the judgment of the subordinate court and the
judgment/order of the High Court would only amount to the refusal of
the High Court to admit the appeal and consider the same in
accordance with the law. Nirbhay Singh (supra) takes the view
that when an appeal preferred by a person convicted for an offence is
summarily dismissed under Section 421 of the Code of Criminal
Procedure, 1898, the same may not bar a subsequent revision by the
State. It was held where, however, the High Court issues notice to the
State in an appeal by the accused against the order of conviction and
the appeal is heard and decided on merits, all questions determined by
the High Court either expressly or by necessary implication must be
deemed to be finally determined, and there is no scope for reviewing
those orders in any other proceeding. In S. Shanmugavel Nadar
(supra), it held that, for there to be a declaration of law, it is only the
speech expressed which becomes a declaration of law by the Supreme
Court under Art.141 of the Constitution of India. In the facts of that
case, the question that arose was whether the dismissal of appeals
filed before the Supreme Court against the judgment of the Madras
High Court on the ground that there was a non-joinder of necessary
parties would bar the consideration of the law by another co-ordinate
bench of the Madras High Court or a larger bench of the Madras High
Court. It was held that a decision that is not expressed and not
founded on reasons and a judgment that does not proceed to consider
the issues cannot be deemed to be 'law declared'. In Macquarie
Bank Limited (supra), while considering the question as to
whether the dismissal of an appeal by the Supreme Court against an
order of the National Company Law Appellate Tribunal would
constitute a merger, it was held that where an appeal is dismissed at
the threshold even if the order of the lower forum could be said to
have merged with the order of the Supreme Court, the order of the
Supreme Court cannot be treated as 'law declared' under Art.141 of the
Constitution of India. In Jayant Verma (supra), it was held that
for the order of the Supreme Court to be a binding precedent under
Art.141 of the Constitution of India, the decision of the Supreme Court
must satisfy the tests laid down in Dalbir Singh v. State of
Punjab; 1979 (3) SCR 1059. It was held that every decision, to be
a binding precedent, must contain three basic ingredients namely:- i)
Findings of material facts, direct and inferential; ii) Statements of the
principles of law applicable to the legal problems disclosed by the
facts, and iii) A judgment based on the combined effect of (i) and (ii)
above. The decision is also an authority for the proposition that, where
the direct facts of an earlier case are identical to those of the case
before the Court, the Judge is not bound to draw the same inference as
drawn in the earlier case. Kaikhosrou (Chick) Kavasji Framji
(supra) holds that for the principle of merger to operate, the
Superior Court must go into the merits of the issues decided by the
Court below it and record findings one way or another on its merits. It
was held that if this is not done by the superior court, a plea of merger
has no application in such a case and the order of the Subordinate
Court would continue to hold the field. In Experion Developers
Private Limited it was held that the dismissal of a statutory appeal
by the Supreme Court against an order of the National Consumer
Disputes Redressal Commission would not be treated as attracting the
doctrine of merger and the order of the Supreme Court without
expressing any elaborate reasoning would not have any precedential
value for the purposes of Art.141 of the Constitution of India. In
Secundrabad Club (supra) it was held that an order of the nature
issued by the Supreme Court in the statutory appeal against the order
of the NGT (Ext.R3(b)) cannot be treated as a binding precedent for
the purposes of Art.141 of the Constitution of India and that an order
made merely to dispose of the case cannot have the value or effect of a
binding precedent. The said judgment also holds that the precedential
value of an order of the Supreme Court, which was not preceded by a
detailed judgment, would be lacking and there can be a declaration of
the law only when the same is expressed by way of a speaking order.
It was held that in the absence of any deduction, reasoning or analysis
an order of the Supreme Court cannot carry any precedential value as
there is no discernible ratio decidendi in the order of the Supreme
Court. It was held that while the order will be binding on the parties
to the order, it cannot act as a precedent for subsequent cases (see
paragraphs 22 & 24 of the report).
11. The first of the decisions cited by the learned counsel for
the additional 5th respondent is the decision of the Supreme Court in
Collector of Customs, Calcutta (supra). The question was
whether the order of the original authority becomes merged with the
order of the appellate authority if the appellate authority merely
dismisses the appeal without any modification of the order of the
original authority. While considering the aforesaid question, the
Supreme Court held that, if the appellate authority is beyond the
territorial jurisdiction of the High Court, mere confirmation of the
order of original authority by dismissal makes the order of original
authority operative; and the High Court cannot issue a writ against the
appellate authority for want of jurisdiction if it is not situated within
its territorial jurisdiction. This decision deals with the provisions
before the incorporation of sub-article (2) to Article 226 of the
Constitution of India and has no application to the facts of the present
case. In Shankar Ramachandra Abhyankar (supra) the
Supreme Court reiterated the principle of merger of orders of inferior
Courts with those of superior Courts irrespective of whether the
remedy before the superior forum was appellate or revisional. In
M/s. Gojer Brothers (P) Ltd. ( Supra), on which considerable
reliance was placed by the learned counsel, the question was, whether
the decree of the Trial Court has merged with the decree of the High
Court. It was observed:- " ...there cannot be, at one and the same
time, more than one operative order governing the same subject
matter. Therefore the judgment of an inferior court, if subjected to
an examination by the superior Court, ceases to have existence in the
eyes of law and is treated as being superseded by the judgment of the
superior court". It appears that the judgments in Collector of
Customs, Calcutta (supra), U.J.S Chopra (supra) &
Shankar Ramachandra Abhyankar (Supra) also take the
same view. In Pernod Ricard India Private Limited (supra)
which is the next decision relied on by the learned counsel for the
additional 5th respondent, it was held that once a statutory right of
appeal is invoked, dismissal of the appeal by the Supreme Court,
whether by a speaking order or non-speaking order, results in the
doctrine of merger unlike in the case of dismissal of Special Leave
Petition under Art.136 of the Constitution of India by a non-speaking
order. It was held that, while considering the statutory appeal under
Section 130-E of the Customs Act,1962 against the order of the
Customs, Excise and Service Tax Appellate Tribunal, the merits of the
order impugned are subjected to judicial scrutiny and even when such
appeal is dismissed by a non-speaking order, the doctrine of merger
would be attracted. In Khoday Distilleries Ltd. (Now Known
as Khoday India Ltd) & Ors. (supra), the Supreme Court
elucidated the meaning, scope and applicability of the doctrine of
merger. In this case the court analyzed number of cases where orders
of different nature were passed and dealt with those judgments by
classifying them into the following categories:- (i) Dismissal at the
stage of special leave petition - without reasons - no res judicata, no
merger; (ii) Dismissal of the special leave petition by speaking or
reasoned order - no merger, but rule of discipline and Article 141
attracted; (iii) Leave granted - dismissal without reasons - merger
results. It was held:-
"(vi) Once leave to appeal has been granted and appellate
jurisdiction of the Supreme Court has been invoked the order
passed in appeal would attract the doctrine of merger; the
order may be reversal, modification or merely affirmation".
The Supreme Court in S.E. Graphites Private Limited (supra)
held that, however, short the order of the Supreme Court may be, in a
matter where leave had been granted under Art.136 of the
Constitution of India, the order of the Supreme Court would,
thereafter, be an appellate order and would attract the doctrine of
merger.
11. Though I have referred to the judgments cited at the bar
by both sides as also to the ratio of those judgments, for reasons
already indicated, I do not intend to apply the ratio of any of the
aforesaid judgments to the facts of this case. I am of the view that even
if the doctrine of merger does not apply and even if the order of the
Supreme Court is not 'law declared' for the purposes of Article 141 of
the Constitution of India, the principle of judicial discipline would
require this Court to hold that the view taken by the NGT cannot be
the subject matter of challenge in a writ petition under Art.226 of the
Constitution of India. This is principally because the facts of the case
decided by the NGT and the facts of the present case are identical.
The mining company (its partner) who was a party to the proceeding
before the NGT and the petitioner herein were both issued with
mining leases before the cut-off date specified in the judgment of the
Division Bench of this Court in All Kerala River Protection
Council (supra). In terms of the judgment of the Division Bench of
this Court in All Kerala River Protection Council (supra), they
were not required to take out an environmental clearance under the
EIA notification 2006 as in both the cases the area held under the
lease was less than five hectares. After having regard to the fact that
the project proponent in the case before the NGT had been operating
without environmental clearance and in terms of the law laid down in
the Division Bench of this Court in All Kerala River Protection
Council (supra), the Tribunal concluded that, in the light of the
notification dated 15.1.2016, even such mines could operate only after
obtaining environmental clearance. While considering the appeal
filed against the said order of the NGT, the Supreme Court found that
'there is no error of fact or law in the order of the NGT
dated 27 May 2021 in O.A.No.244/2017 (SZ).' It is not disputed
that the impugned proceedings/notices issued to the petitioner were
all issued based on the order of the NGT in O.A.NO.244/2017.
Therefore, interference with the impugned proceedings/notices would
be possible only if this Court were to find that the order passed by the
NGT is unsustainable in law, and that, on the application of the
principle of judicial discipline cannot be done by this Court. In other
words, even if it were to be held that the order of the NGT has not
merged with the order of the Supreme Court and the order of the
Supreme Court is not law declared for the purposes of Art.141 of the
Constitution of India, the challenge to proceedings initiated on the
basis of the orders of the NGT cannot be interfered with in exercise of
jurisdiction vested in this Court under Art.226 of the Constitution of
India as the Supreme Court found that 'there is no error of fact or law
in the order of the NGT...'.
12. That brings us to the question as to whether the operations
carried out by the petitioner in terms of the orders obtained by it
including Ext.P7 judgment of this Court and based on the law laid
down by the judgment of the Division Bench in All Kerala River
Protection Council (supra) could be held to be illegal following
the issuance of the notification dated 15.1.2016. The answer to the
aforesaid question can only be a categoric 'no'. It cannot be disputed
that the petitioner was carrying out its operations under the law laid
down by the Division Bench of this Court in All Kerala River
Protection Council (supra). The State and its officers had also
accepted the law laid down by this Court and, therefore, the petitioner
was continuing with its operations without obtaining environmental
clearance. No notices had been issued to them by any authority
including the SEIAA on the ground that they had not obtained
environmental clearance till the issuance of the impugned
proceedings/notices. Therefore, it cannot be held that the activities of
the petitioner for the period after 15.1.2016 till the date of issuance of
Ext.P4 stop memo were illegal in any manner. In other words, no
action can be taken against the petitioner on the ground that it had
not obtained environmental clearance and had continued with its
mining activity after the issuance of the notification dated 15.1.2016.
13. This is not to say that no action should be taken against
the petitioner if it is found that it has engaged in any illegal mining.
The petitioner was required to, in terms of the provisions contained in
the Kerala Minor Mineral Concession Rules, 2015, apply for and get
sanctioned a mining plan. They were also required to strictly abide by
the mining plan and not to extract minerals in violation of the mining
plan. The additional 5th respondent has a case that the petitioner had
violated the mining plan; it had conducted mining operations in areas
other than what was permitted; that it had illegally conducted mining
activities and that it had extracted a substantial quantity of minor
minerals over and above what was permitted in terms of the mining
plan and the permissions granted on the basis of the lease obtained by
it. These are matters which will have to be considered by the
competent authority. The petitioner has also to take up remedial
measures for offsetting the environmental damage caused on account
of the mining. It has to fully comply with its mine closure plan.
Therefore, although the activities of the petitioner after 15.1.2016 till
the date of issuance of Ext.P4 stop memo cannot be termed illegal on
the ground that it had not obtained an environmental clearance, the
competent among the respondents shall ensure that the petitioner has
not violated any condition in the mining plan; that it has not extracted
minerals in a manner other than what was contemplated in the mining
plan and that it has not extracted minerals over and above the
quantity permitted by the mining plan and that it has taken up
measures contemplated for offsetting the environmental damage
caused on account of the mining activities before considering the grant
of any further lease to the petitioner. The SEIAA shall also be
empowered to consider these issues while considering any application
for the issuance of an environmental clearance which is mandatory in
respect of any fresh lease that may be granted to the petitioner.
Therefore, this writ petition will stand disposed of in the following
manner:-
I) The challenge to Exts. P3, P4 and P6 to the extent it
prohibits the petitioner from proceeding with the mining activities
based on the mining lease obtained on 20.3.2012 will stand rejected;
II) It is declared that the findings in Exts.P3, P4 and P6 that
the mining activities carried on by the petitioner after 15.1.2016 and
till the date of issuance of Ext.P4 stop memo are illegal for the want of
environmental clearance is illegal and not sustainable in law;
III) The competent authority under the Kerala Minor Mineral
Concession Rules, 2015 shall, while considering any further
application of lease by the petitioner, ensure that it has complied with
the terms of the mining plan submitted in terms of the Kerala Minor
Mineral Concession Rules, 2015. It shall also ensure that no illegal
mining has taken place. If it is found that any illegal mining has taken
place, action as contemplated by law shall be initiated against the
petitioner;
IV) The competent among the respondents shall also ensure
that remediation measures to offset the environmental damage caused
by the mining activities of the petitioner are fully complied with by the
petitioner. The competent among the respondents shall also ensure
that any mine closure plan submitted by the petitioner shall be
implemented in the manner contemplated by the law before
commencing any further mining activity on the basis of any mining
lease or permit that may be granted to it. It is also clarified that such
mining activity shall be permitted only after obtaining Environmental
Clearance under the Environment Impact Assessment (EIA)
Notification, 2006;
V) The SEIAA while considering the grant of environmental
clearance under the Environment Impact Assessment (EIA)
Notification, 2006 in respect of any mining lease that may be
obtained by the petitioner (over the same or any part of the area held
under the mining lease issued on 20.3.2012) shall consider whether
mining activities carried on hitherto by the petitioner were in
compliance with the mining plan and whether remediation measures
have been complied with.
Writ petition ordered accordingly. Sd/-
GOPINATH. P
JUDGE
acd
APPENDIX OF WP(C) 29474/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE QUARRYING LEASE DATED
20.03.2012 VALID TILL 19.03.2024.
Exhibit P1(a) TRUE COPY OF THE CONSENT ISSUED BY THE
POLLUTION CONTROL BOARD FOR CONDUCTING
QUARRYING OPERATIONS VALID TILL 19.03.2024.
Exhibit P1(b) TRUE COPY OF THE D&O LICENSE FOR THE PERIOD
2023-24 ISSUED BY THE KOOTIKKAL PANCHAYAT.
Exhibit P2 . TRUE COPY OF THE ABSTRACT OF THE MINUTES
OF THE 127TH MEETING OF THE 1ST RESPONDENT
WHICH TOOK PLACE ON 30TH AND 31ST OF MAY,
2023 RELATING TO ITEM NO. 127.10.
Exhibit P3 TRUE COPY OF THE LETTER DATED 25.07.2023
ISSUED BY THE 1ST RESPONDENT ALONG WITH THE
ABSTRACT OF THE MINUTES OF THE 128TH MEETING
OF THE 1ST RESPONDENT WHICH TOOK PLACE ON
27TH AND 29TH OF JUNE, 2023 RELATING TO ITEM
NO. 128.29.
Exhibit P4 TRUE COPY OF THE STOP MEMO DATED 25.07.2023
BEARING NO. S/KL/MIN/60903/2019;
2438/EC1/2019/SEIAA ISSUED BY THE 1ST
RESPONDENT.
Exhibit P5 TRUE COPY OF THE REPLY DATED 29.07.2023
SUBMITTED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
Exhibit P6 TRUE COPY OF THE ABSTRACT OF THE MINUTES OF
THE 131ST MEETING OF THE 1ST RESPONDENT
WHICH TOOK PLACE ON 24 AND 25TH OF AUGUST,
2023 RELATING TO ITEM NO. 131.05.
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 15.02.2018
IN WP(C) NO. 33540/2017 ON THE FILES OF THIS
HON'BLE COURT.
Exhibit P8 TRUE COPY OF THE INTERIM ORDER DATED
21.07.2023 IN WP(C) NO. 21395/2023 ON THE
FILES OF THIS HON'BLE COURT.
Exhibit P8(a) TRUE COPY OF THE INTERIM ORDER DATED
10.07.2023 IN WP(C) NO. 18680/2023 ON THE
FILES OF THIS HON'BLE COURT.
RESPONDENT EXHIBITS
Exhibit R3(a) A true copy of the Notification dated
15.01.2016 by Ministry of Environment,
Forest and Climate Change
Exhibit R3(b) A true copy of the judgment dated 27.05.2021
in O.A No.244/2017(SZ) of National Green
Tribunal Southern Zone Chennai
Exhibit R3(c) A true copy of the order dated 16.08.2021 in
Civil Appeal No.4643/2021 of Honourable
Supreme Court
Exhibit R3(d) True copy of the order dated 14.12.2021 in
R.P.C.No.1285 of 2021 in C.A.No.4643 of 2021
of the Honourable Supreme Court
Exhibit R3(e) A true copy of the order dated 24.03.2023 in
S.L.P No.5563/2023 of the Honourable Supreme
Court
Exhibit R3(f) A true copy of the order dated 31.03.2023 in
W.P.(C) No.13221 of 2022 passed by this
Honourable Court
Exhibit R3(g) A true copy of the said Office Memorandum
No.1-4/2012- RE(Pt.) dated 20.12.2013 issued
by the Ministry of Environment and Forest
Exhibit R3(h) A true copy of the judgment dated 17.08.2016
in W.P.(C) 13769 of 2016 passed by this
Honourable Court
Exhibit R3(i) The relevant pages of the Kasturirangan
Report wherein the Eco- Sensitive Area of
the Western Ghats has been referred to and
the relevant page of the schedule wherein
the Koottickal village has been categorized
as Eco Sensitive Area
Exhibit R3(j) A true copy of the letter No.DOCC/E2/60/2023
dated 28.03.2023 issued by the State Public
Information Officer
Exhibit R3(k) The true copy of the cadastral map of
western Ghats Eco-sensitive area of Kerala
obtained from the official website of the
State Government
Exhibit R3(l) A true copy of the stop memo bearing
No.79/DOY/ML/2023 dated 15.06.2023 issued by
the Geologist
Exhibit R3(m) A true copy of the newspaper report dated
14.09.2023 of Mangalam Daily
Exhibit R3(n) A true copy of the order in O.A No. 44 of
2023 dated 10.05.2023 passed by National
Green Tribunal, Principal Bench
Annexure A1 A true copy of the letter No.DOCC/E2/60/2023
dated 28.03.2023 issued by the State Public
Information Officer
Annexure A2 The true copy of the cadastral map of
western Ghats Eco-sensitive area of Kerala
obtained from the official website of the
State Government
Annexure A3 The relevant pages of the Kasturirangan
Report wherein the Eco- Sensitive Area of
the Western Ghats has been referred to and
the relevant page of the schedule wherein
the Koottickal village has been categorized
as Eco Sensitive Area
Exhibit R1(a) A true copy of the Judgment, dated
27.05.2021 in OA 244 of 2017(SZ)
Exhibit R1(b) A true copy of the Order, dated 16.08.2021
in Civil Appeal No.4643 of 2021
Exhibit R1(c) A True copy of the Interim Order, dated
15.06.2022 in WP(C) No. 13221 of 2022
Exhibit R1(e) A true copy of the Order, dated 31.03.2023
in WP(C) 13221 of 2022
Exhibit R1(d) A true copy of the order, dated 24.03.2023
in SLA(C) 5563 of 2023 on the files of
Hon'ble Apex Court
PETITIONER EXHIBITS
Exhibit P9 TRUE COPY OF THE ABSTRACT OF THE
NOTIFICATION DATED 06.07.2022 BEARING S.O.
3072(E) ISSUED BY THE MINISTRY OF
ENVIRONMENT AND FORESTS, UNION OF INDIA.
Exhibit P10 TRUE COPY OF THE SCREENSHOT OBTAINED FROM
THE WEBSITE OF THE KERALA STATE BIODIVERSITY
BOARD.
Exhibit P11 TRUE COPY OF ABSTRACT OF THE CADASTRAL MAP
DETAILS OF THE 119 ESA VILLAGES IN THE STATE
OF KERALA .
RESPONDENT EXHIBITS
Exhibit R3(o) The true copy of the report dated 13.02.2023
by the officers attached to State Pollution
Control Board, district office Kottayam
Exhibit R3(p) The true copy of the report dated 03.03.2023
submitted by the project officer of Schedule
Tribe Development Office before the District
Collector, Kottayam
Exhibit R3(q) A true copy of the judgment dated 16.03.2016
in WPC No. 10107 of 2016 passed by this
Honourable Court
Exhibit R3(r) A true copy of the order dated 20.06.2016 in
RP No. 524 of 2016, passed by this
Honourable Court
Exhibit R5(s) A TRUE COPY OF INFORMATION ISSUED BY THE
DIRECTORATE OF ENVIRONMENT AND CLIMATE
CHANGE DATED 29.01.2024
Exhibit R5(t) THE TRUE COPY OF THE REPORT DATED 04.08.2013
WITH COVERING LETTER OF THE BIODIVERSITY
BOARD DATED 24.09.2015
Exhibit R5(u) A TRUE COPY OF THE STUDY REPORT (RELEVANT
PAGES) TITLED AS IMPACT OF FLOOD/LANDSLIDES
ON BIODIVERSITY, COMMUNITY PERSPECTIVES BY
KERALA STATE BIODIVERSITY BOARD CONDUCTED IN
THE MONTH OF AUGUST 2018
Exhibit R5(v) A TRUE COPY OF YET ANOTHER REPORT BY THE
DEPARTMENT OF SOIL SURVEY AND SOIL
CONSERVATION CONDUCTED IN THE MONTH OF
DECEMBER 2018
Exhibit R5(w) THE TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF MEETING OF SEAC HELD BETWEEN
09.11.2022 AND 11.11.2022
Exhibit R5(x) THE TRUE COPY OF THE REPORT OF THE TRIBAL
EXTENSION OFFICER, PUNCHAVAYAL OBTAINED
THROUGH RIGHT TO INFORMATION DATED
27.03.2023
