Kerala High Court
Thomas Mathai vs State Environmental Impact Assessment ... on 3 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
WP(C) NO. 8820 OF 2023
PETITIONER:
THOMAS MATHAI,AGED 78 YEARS
CHENGALATHU HOUSE, PATHANAMTHITTA PO,
PATHANAMTHITTA- 689645, PIN - 689645
BY ADVS.
JACOB P.ALEX
MANU SANKAR P.
AMAL AMIR ALI
JOSEPH P.ALEX
RESPONDENTS:
1 STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY
(SEIAA), KERALA,
REPRESENTED BY ITS MEMBER SECRETARY,
DIRECTORATE OF ENVIRONMENTAL AND CLIMATE CHANGE ,
4TH FLOOR, KSRTC BUS TERMINAL, THAMPANOOR
THIRUVANANTHAPURAM, KERALA, PIN - 605911
2 DISTRICT GEOLOGIST,
PATHANAMTHITTA, DISTRICT OFFICE,
DEPARTMENT OF MINING & GEOLOGY, NEAR KENDRIYA
VIDYALAYA, ADOOR P. O. PATHANAMTHITTA. PIN 691523
OTHER PRESENT:
GP - AJITH VISWANATHAN,
SC M.P.SREEKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.8820 of 2023 2
VIJU ABRAHAM, J.
.................................................................
W.P (C) No.8820 of 2023
.................................................................
Dated this the 3rd day of April, 2024
JUDGMENT
The above writ petition is filed seeking to quash Exts.P4 and P13
and for a consequential direction to the 1st respondent State
Environmental Impact Assessment Authority to take further action for
issuance of Environmental Clearance to the quarry project of petitioner in
furtherance of Exts.P3 and P12 recommendations of Kerala State Level
Expert Appraisal Committee including that there is no cluster situation.
2. Brief facts necessary for disposal of the writ petition are as follows:
Petitioner is presently operating a granite quarry in the property located in
survey nos 575/1-3-6-2 and 581/1-5-7 of the Konni Thazham Village after
obtaining all necessary licenses from the concerned authorities including
'Environmental Clearance' (EC) issued by 1 st respondent and has been
running the said quarry under the name and style 'Chengalathu Quarry
Industries'. The EC originally granted was extended as per Ext.P1 which
is valid till 27.12.2024. But a perusal of Ext.P1 would show that the EC
has been granted for an area of 3.1473 hectares in survey nos 575/1-3-6-
2 and 581/1-5-7 of the Konni Thazham Village though originally EC has
been granted for a larger area. On 30.11.2020, the petitioner submitted
an online application in the prescribed manner before the 1st respondent
seeking EC for expansion of quarry to an extent of 0.9900 hectares under
'B2' Category within the above said larger area for which the EC was
originally granted. Along with the application, necessary documents
including Ext.P2 certificate were produced. Ext.P2 certificate would show
that three quarries are functioning within 500 metres of the quarry project
now applied for by the petitioner. The issue was considered by the State
Level Expert Appraisal Committee (hereinafter referred to as "SEAC") in
its 136th Meeting and a perusal of Ext.P3 minutes of the said meeting
revealed that SEAC has recommended for issuance of EC. Petitioner
submits that before taking a decision as per Ext.P3, SEAC has earlier
sought details regarding the cluster situation from the petitioner as is
evident from Ext.P3(a) minutes of the 124 th Meeting and the said details
were furnished by the petitioner as per Ext.P3(b). Ext.P3 decision of the
SEAC was considered by the 1st respondent State Environmental Impact
Assessment Authority (hereinafter referred to as "SEIAA" in its meeting
on 27th and 28th January 2023. Ext.P4 minutes of the said meeting would
show that the 1st respondent has arrived at a conclusion that (i). the
proposal attracts cluster condition; (ii). the proponent has to apply for
Terms of Reference (ToR) for the expansion project since it attracts
cluster condition; (iii). to submit a Single Mine Plan for the lease areas;
and (iv). to produce Certified Compliance Report (CCR) from IRO,
Ministry of Environment, Forest and Climate Change, Government of
India (MoEF&CC). Accordingly, the application submitted by the petitioner
was again placed before SEAC. Petitioner submits that the aspects
pointed out in Exhibit P4 is legally untenable and are quite contrary to the
Notifications evidenced by Exts.P5 and P6 issued by the MoEF&CC. As
per Ext.P5, the cluster condition will arise only with respect to the lease
granted on or after 09.09.2013. Ext.P6 would show that no Single Mine
Plan is required for an area of less than 5 hectares. Petitioner contends
that 0.90 hectares of lease area covered under Lease No.843/2011-
12/516/M3/12/DMG dated 06.03.2012 and 2.10 hectares of lease area
covered under Lease No.68/2012- 13/2664/M3/12/DMG dated
27.04.2012 referred to in Ext.P2 cannot be counted for the purpose of
'cluster condition'. Petitioner would further submit that the total area in
respect of EC originally granted on 31.10.2013 is for 4.8493 hectares.
Therefore, relying on paragraph 6 of Appendix XI read with paragraph 5
of the Note to Appendix XI of EIA Notification, 2006 it is contended that
these areas cannot be counted for calculating cluster area. It is further
submitted that the quarry project of the petitioner is only a "B2" category
project having less than 5 hectares of lease area and as per Paragraph
7(II)(2)(ii) of EIA Notification, 2006, no Scoping/ToR is required. There is
also no requirement for any 'Public Hearing' as per paragraph 7(III)(3)(f)
of EIA Notification, 2006 and for the said reason, 'Single Mine Plan' is not
required and Area Specific Mine Plan alone would suffice. Petitioner
further contended that necessary CCR from MoEF&CC is obtained as is
evident from Ext.P7. Pointing out all these aspects, the petitioner
submitted Ext.P8 representation before the 1st respondent requesting
them to reconsider Ext.P4 in the light of Exts.P5, P6 and P7. Petitioner
would further submit that based on Ext.P4 decision of the 1 st respondent
the SEAC in its 139th meeting resolved to entrust to one Smt.Beena
Govindan to prepare a consolidated note on various aspects of the
application submitted by the petitioner as per Ext.P9 decision. In the 141 st
meeting of SEAC, the application submitted by the petitioner was
considered and the petitioner was directed to submit CCR and
comprehensive EMP as per Ext.P10 decision. Later on the document
produced by the petitioner in terms of Ext.P10 was considered by the
SEAC in its 144th meeting and the petitioner was further asked to
integrate comprehensive EMP and CCR/CER as per Ext.P11 decision.
After considering all these in the 147 th meeting of SEAC evidenced by
Ext.P12 minutes they decided to recommend to the 1 st respondent to
grant EC to the petitioner. But the 1 st respondent in its 131st meeting
without referring to Exts.P9 to P12 directed that the petitioner has to apply
for ToR as is evident from Ext.P13 minutes. It is aggrieved by the same
petitioner has approached this Court. Petitioner submits that the decision
as is evident from Ext.P13 has been taken on a wrong understanding of
the judgment of the National Green Tribunal (NGT) in Satendra
Pandey v. Ministry of Environment, Forest & Climate Change &
Another, (O.A.No.186 of 2016).
3. A detailed statement has been filed by the 2 nd respondent
supporting the impugned orders mainly contending that the application
submitted by the project proponent is for expansion and therefore the
project has to be considered as a new project whereby the project
proponent has to submit Mine Plan, EMP and CER, PFR etc for the total
area as per the existing norm. Besides what is stated in the Cluster
Certificate issued by the District Geologist, there is another quarry having
a lease area of 0.90 hectares adjacent to the proposed lease area within
500-metre radius and hence it attracts cluster condition and because of
the said circumstance as enumerated above, the 2 nd respondent decided
that the project proponent has to apply for ToR and he has to prepare a
single mining plan for the entire area or else he may apply for EC for 0.99
hectares alone. In view of the same, the decision of the 2nd respondent
impugned in this writ petition is not liable to be interfered with.
4. Heard the rival contentions of both sides.
5. The main contention of the petitioner is that the original application
was only seeking EC for the expansion of a quarry to an area of 0.9900
hectares under "B2" category within an area for which EC has already
been granted as per Ext P1. By Ext.P4, SEIAA considered the request of
the petitioner and directed SEAC to reconsider the recommendation of its
136th meeting regarding the issuance of EC and also to verify the
applicability of NGT order. Learned counsel for the petitioner would
submit that the issue regarding cluster condition will not arise in the
present case. Based on Ext.P2 certificate it is contended that lease for
0.90 hectares of land was issued on 06.03.2012 and as regards 2.10
hectares of land, the lease was granted on 27.04.2012. Learned counsel
for the petitioner relying on paragraph 6 of Appendix XI of EIA notification
would contend that a cluster will be formed when the distance between
the peripheries of one lease is less than 500 metres from the periphery of
other lease which shall be applicable to mine leases or quarry licences
granted on and after 09.09.2013 and therefore two of the leases granted
was prior to the said cut off date, those leases cannot be treated for
considering that a cluster has been formed. Yet another contention raised
by the petitioner is that by Ext.P12, the SEAC has recommended for grant
of EC to the petitioner after conducting a thorough study through an
expert and on finding that two of the leases were granted prior to the cut-
off date and the proposed quarry will not attract cluster condition. It is
contended that it is after remitting the matter once to SEAC for
reconsideration that Ext.P12 decision was taken to recommend for grant
of EC. Without adverting to the recommendation of the SEAC, solely
based on the judgment of the NGT in Satendra Pandey's case cited
supra and on finding that there are few other quarries within 500-metre
radius, all together the area will be more than 5 hectares, resulting in a
cluster situation. Learned counsel for the petitioner would submit that the
1st respondent failed in not following the SEAC recommendation in favour
of the petitioner and that no valid reasons have been stated to overturn
the said recommendation. Petitioner would further submit that even in
Satendra Pandey's case, Appendix XI of EIA notification has not been
interfered with and going by paragraph 6 of Appendix XI, the leases
existing prior to the cut off date cannot be taken into consideration for
forming a cluster situation. Though in Satendra Pandey's case, the NGT
has held that public consultation for areas from 5 to 25 hectares falling
under Category B2 to be in par with Category B1 as well as for cluster
situation wherever it is not provided. Learned counsel for the 1st
respondent would contend that whenever there is a cluster situation, all
the criteria as directed in Ext.P13 decision will have to be followed.
Learned counsel for the petitioner relying on Section 8 of the EIA
notification 2006 would submit that the regulatory authority, the 1st
respondent shall normally accept the recommendations of SEAC and in
case it disagrees with the recommendation, the matter has to be remitted
back stating the reason for disagreement and after considering the views
expressed by the SEIAA after the remand, a decision has to be taken by
the 1s respondent which shall be final. Learned counsel for the petitioner
relying on the judgment in Hanuman Laxman Aroskar v. Union of
India, (2019) 15 SCC 401 would submit that SEAC is an expert body and
the reason stated by the SEAC constitutes a live link between its
processes and the outcome of its adjudicatory function. On the strength
of the same, it is contended that if the 1 st respondent takes a contrary
view rejecting the expert report of SEAC, then reasons should have been
assigned for discarding the specific recommendations of SEAC. Yet
another contention raised by the petitioner is that going by Ext.P2, period
of lease granted on 06.03.2012 has already expired and in the said
circumstance there is no cluster condition now and the project has to be
considered as one under B2 category with an area less than 5 hectares.
The SEAC has considered the application submitted by the petitioner and
recommended for grant of EC. SEAC is an expert body and the reason
stated by the SEAC constitutes a live link between its processes and the
outcome of its adjudicatory function as held by the Apex Court in
Hanuman Laxman Aroskar's case cited supra. A perusal of Ext.P13
would reveal that no reasons have been stated to take a different view to
overlook the well-considered recommendation of an expert body. This
court is of the opinion that if the 1st respondent takes a decision contrary
to the recommendation of SEAC, they ought to have stated cogent
reasons in Ext.P13 as to why the recommendation of the expert body
cannot be accepted. Further, the specific contention of the petitioner and
the recommendation of SEAC that there is no formation of any cluster
situation going by paragraph 6 of Appendix XI of EIA notification and that
the NGT in Satendra Pandey's case has not invalidated Appendix XI of
EIA notification has not been properly considered while taking Ext.P13
decision. Yet another crucial aspect to be considered is the expiry of a
lease mentioned in Ext.P2 certificate which was granted on 06.03.2012,
whereby making the extent of land, admittedly below 5 hectares.
In view of the above factual situation, I am of the view that the
matter requires reconsideration at the hands of the 1st respondent.
Accordingly, Exts.P4 and P13 decisions are set aside with a
consequential direction to the 1 st respondent to reconsider Ext.P8 request
made by the petitioner for issuance of an EC after affording an
opportunity of being heard to the petitioner. A decision in this regard shall
be taken within an outer limit of two months from the date of receipt of a
copy of the judgment.
Writ petition is disposed of as above.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 8820/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ENVIRONMENTAL
CLEARANCE BEARING NO.
77/SEIAA/KL/172/2013 DATED 28-12-2019
Exhibit P2 TRUE COPY OF THE CERTIFICATE BEARING
NO. 943/DOPTA/M/2019 DATED 07-04-2022
ISSUED BY THE 2ND RESPONDENT
Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE 136TH MEETING OF SEAC
Exhibit P3(a) TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE 124TH MEETING OF SEAC
Exhibit P3(b) TRUE COPY OF THE EXPLANATION DATED 18-
04-2022 SUBMITTED BY THE PETITIONER
BEFORE THE SEAC THOUGH 1ST RESPONDENT
(WITHOUT ANNEXURE)
Exhibit P4 TRUE COPY OF THE RELEVANT PAGE OF THE
MINUTES OF THE MEETING OF THE 1ST
RESPONDENT ON 27&28 JANUARY, 2023
Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF
NOTIFICATION BEARING SO NO. 2269(E)
DATED 01-07-2016 ISSUED BY THE MINISTRY
OF ENVIRONMENT, FOREST AND CLIMATE
CHANGE, GOVERNMENT OF INDIA
Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF
NOTIFICATION BEARING SO NO. 3977(E)
DATED 14-08-2018 ISSUED BY THE MINISTRY
OF ENVIRONMENT, FOREST AND CLIMATE
CHANGE, GOVERNMENT OF INDIA
Exhibit P7 TRUE COPY OF THE E-FILE BEARING NO.
12.1/SEIAA/2013-14/16/KER/1351 DATED
24-02-2023 ISSUED BY THE IRO OF MOEF
&CC
Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED
08-03-2023 SUBMITTED BY PETITIONER
BEFORE THE 1ST RESPONDENT (WITHOUT
ENCLOSURES)
Exhibit P9 TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE 139TH MEETING OF SEAC
Exhibit P10 TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE 141ST MEETING OF SEAC
Exhibit P11 TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE 144TH MEETING OF SEAC
Exhibit P12 TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE 147TH MEETING OF SEAC
Exhibit P13 TRUE COPY OF THE RELEVANT PAGES OF THE
MINUTES OF THE 131ST MEETING OF 1ST
RESPONDENT - SEIAA
Exhibit P14 True copy of the sketch approved by the
District Geologist appended with the
mining plan submitted before the 1st
respondent
