M/S Kallarattikkal Granites vs State Environment Impact Assessment ...
2024 Latest Caselaw 31910 Ker

Kerala High Court

M/S Kallarattikkal Granites vs State Environment Impact Assessment ... on 7 November, 2024

Author: Kauser Edappagath

Bench: Kauser Edappagath

W.P.(C) No. 10825/2023

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               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

           THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

  THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946

                         WP(C) NO. 10825 OF 2023

PETITIONER:

           M/S KALLARATTIKKAL GRANITES,
           AGED 60 YEARS
           PAKKULAM, AREACODE P.O,
           MALAPPURAM-REPRESENTED BY ITS MANAGING PARTNER
           SRI.K.V. MOIDEENKOYA, PIN - 673603

           BY ADVS.
           PHILIP J.VETTICKATTU
           SAJITHA GEORGE
           NEENU BERNATH
RESPONDENTS:

     1     STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY,
           4TH FLOOR, KSRTC BUS TERMINAL COMPLEX,
           THIRUVANANTHAPURAM; REPRESENTED BY ITS MEMBER
           SECRETARY, PIN - 695001
     2     STATE LEVEL EXPERT APPRAISAL COMMITTEE,
           PALLIMUKKU, KANNAMMOOLA ROAD,
           OVERBRIDGE, VELAKUDI, TRIVANDRUM;
           REPRESENTED BY ITS CHAIRMAN, PIN - 695024
           SRI.M.P.SREEKRISHNAN - SC



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 10825/2023

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                          JUDGMENT

Ext.P1 application preferred by the petitioner for

environmental clearance was rejected by the respondent No.1 as

per Ext.P6 order. The petitioner preferred Ext.P7 representation

before the respondent No.1 with a request to reconsider Ext.P6

decision. The respondent No.1 recalled Ext.P6 and directed the

respondent No.2 to afford an opportunity of hearing to the

petitioner. Thereafter, as instructed by the respondent No.2, the

petitioner conducted a slope stability study through a scientist

and Ext.P8 report was obtained. The scientist who conducted the

slope stability study made a presentation before the respondent

No.2. Ext.P8 report was also submitted. The respondent No.2

considered Ext.P8 report and passed Ext.P9 order. The

respondent No.2, based on the hearing conducted and also the

presentation made by the scientist, expressed satisfaction in

Ext.P9 that four of the five definite questions sought by the

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committee in its previous meeting have been addressed. The

respondent No.2 decided to entrust two senior Geologists Sri. V

Gopinathan and Dr. A.N Manoharan for studying Ext. P8 report by

conducting a field inspection and submitting a report before it for

further action. A field inspection was done and report was

submitted. The petitioner also prepared Ext.P10 expert report

mainly addressing the issue found un-addressed in Ext.P9.

Thereafter, the respondent No.2 in its 135 th meeting, took a

decision to recommend rejection of the petitioner's project.

Ext.P11 is the relevant pages of the minutes of the 135 th

meeting. The petitioner preferred Ext.P11(a) representation to

the respondent No.1 that Ext.P11 decision was taken without

hearing him. Thereafter, respondent No.1 in the 122 nd meeting

held on 07/01/2023 accepted recommendation in Ext.P11 and

rejected Ext.P11(a) representation. Ext.P12 is the relevant pages

of the minutes of the 122nd meeting. Ext.P13 is the consequential

order. The petitioner immediately thereafter filed the writ petition

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challenging Exts.P11 to P13. After filing of the writ petition, the

respondent No.1 gave Ext.P14 notice of hearing to the petitioner.

The petitioner was heard thereafter. He was also furnished field

inspection report. The respondent No.1 directed the petitioner to

submit an argument note. The petitioner submitted Ext.P17

argument note. Thereafter, the respondent No.1 passed Exts.P18

and P19 confirming Ext.P11. The petitioner amended the writ

petition and challenged Exts.P18 and P19 as well.

2. I have heard Sri.Philip J. Vettickattu, the learned

counsel appearing for the petitioner and Sri.M.P.Sreekrishnan,

the learned Standing Counsel for respondent No.1.

3. It is true, as rightly argued by the learned Standing

Counsel for the respondents, the petitioner was heard several

times and the scientist who prepared the report has also made a

presentation once before the respondent No.2. However, a

perusal of Ext.P11 would show that, before passing it, the

respondent No.2 did not hear the petitioner. The respondent No.2

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did not consider Ext.P10 report of the expert produced by the

petitioner either. The scientists who prepared Exts.P8 and P10

are one and the same. A reading of Ext.P11 would show that the

scientist was heard with reference to Ext.P8 alone. In other

words, the scientist was not heard with reference to Ext.P10. This

lacuna was pointed out by the petitioner through Ext.P11(a).

Still, the respondent No.1 accepted Ext.P11 as per Ext.P12. It is

true, after filing this writ petition, the petitioner was given an

opportunity of hearing and he was heard also by the respondent

No.1. The petitioner was furnished with the field inspection report

as well. However, no hearing was conducted by the respondent

No.2. Ext.P10 was not considered by the respondent No.1 at the

time of passing Exts.P18 and P19. The scientist who prepared

Ext.P10 was also not heard. In short, Ext.P10, additional report

of the expert was not considered either by the respondent No.1

or the respondent No.2 before passing the impugned orders. The

scientist who prepared Ext.P10 was also not heard by either of

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them with reference to Ext.P10. That apart, after filing this writ

petition, an opportunity of hearing was not extended to the

petitioner either by the respondent No.1 or the respondent No.2.

In fact, the petitioner should have been heard by the respondent

No.2, who is the competent authority to make the

recommendation. The hearing to be statutorily conducted by the

respondent No.2 cannot be substituted by a hearing conducted

by the respondent No.1.

4. For the reasons stated above, I am of the view that the

matter requires reconsideration at the hands of the respondent

No.2 for the limited purpose of reconsidering the following two

points:- (i) The influence of the rock joints in stability analysis

and (ii) adequacy of the DEM used for slope analysis. While

reconsidering the matter, the respondent No.2 shall take into

account Ext.P10 report and hear the scientist who prepared it.

The petitioner shall ensure the presence of the scientist on the

date of hearing. The respondent No.1 is directed to fix the

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hearing with prior notice to the petitioner. Based on the

recommendation of the respondent No.1, the respondent No.2

shall take a final decision within a period of three months.

Exts.P17 and 18 are set aside.

The writ petition is disposed of as above.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE APA

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APPENDIX OF WP(C) 10825/2023

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE PHOTOCOPY OF THE FORM-1 APPLICATION PREFERRED BEFORE THE 1ST RESPONDENT DATED 19/1/2018 EXHIBIT P2 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE 111TH MEETING OF THE 2ND RESPONDENT HELD ON 02- 04.06.2020 EXHIBIT P3 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20.07.2020 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P4 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 123RD MEETING OF THE 2ND RESPONDENT HELD DURING 27TH -30TH JULY 2021 EXHIBIT P5 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 124TH MEETING OF THE 2ND RESPONDENT 24 -27TH AUGUST 2021 EXHIBIT P6 A TRUE PHOTOCOPY OF THE ORDER DATED 18.10.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P7 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 13.10.2021 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P8 A TRUE PHOTOCOPY OF THE TECHNICAL REPORT OF THE SLOPE STABILITY ANALYSIS OF THE PETITIONER'S PROJECT DONE BY NIT KARNATAKA IN JULY 2022. EXHIBIT P9 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE 131ST MEETING OF THE 2RD RESPONDENT EXHIBIT P10 A TRUE PHOTOCOPY OF THE TECHNICAL REPORT OF THE SLOPE STABILITY ANAFYSIS OF THE PETITIONER'S PROJECT DONE BY NIT KARNATAKA IN NOVEMBER 2O22 EXHIBIT P11 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 135TH MEETING OF 2ND RESPONDENT HELD ON 07.12.2022

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EXHIBIT P11(a) A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 06.01.2023 PREFERRED BY THE PETITIONER TO THE 1ST RESPONDENT.

EXHIBIT P12 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 122ND MEETING OF THE 1ST RESPONDENT HELD ON 07.01.2023 EXHIBIT P13 A TRUE PHOTOCOPY OF THE ORDER DATED 15.02.2023 ISSUED BY THE 1ST RESPONDENT REJECTING THE EC. EXHIBIT P14 A TRUE PHOTOCOPY OF THE LETTER DATED 17.03.2023 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P15 A TRUE PHOTOCOPY OF THE LETTER DATED 17.03.2023 ISSUED BY THE 1"T RESPONDENT ALONG WITH THE FIELD INSPECTION REPORT DATED NIL EXHIBIT P16 TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE 125 TH MEETING OF SEIAA, KERALA HELD ON 28-29.03.2023 EXHIBIT P17 TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BY THE PROJECT PROPONENT ON 04.04.2023 EXHIBIT P18 TRUE PHOTOCOPY OF THE RELEVANT PAGES OF 127 TH MEETING OF SEIAA EXHIBIT P19 TRUE PHOTOCOPY OF THE LETTER NO.1230/EC2/2019/ SEIAA DATED 19.06.2023 ISSUED BY THE ADMINISTRATOR SEIAA

RESPONDENT EXHIBITS

EXHIBIT R1(a) A TRUE COPY OF THE FIELD INSPECTION REPORT OF THE INSPECTION CONDUCTED ON 10.1.2020

EXHIBIT R1(b) A TRUE COPY OF THE FIR OF THE INSPECTION CONDUCTED ON 30.11.2022