Thomas Mathai vs State Environmental Impact Assessment ...
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Kerala High Court

Thomas Mathai vs State Environmental Impact Assessment ... on 29 May, 2025

WP(C) NO. 31130 OF 2024              1                2025:KER:38052


                                                              "C.R"
                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
               THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
         THURSDAY, THE 29TH DAY OF MAY 2025 / 8TH JYAISHTA, 1947
                          WP(C) NO. 31130 OF 2024
PETITIONER:
           THOMAS MATHAI,
           AGED 81 YEARS
           CHENGALATHU HOUSE, PATHANAMTHITTA P.O, PATHANAMTHITTA,
           PIN - 689645

             BY ADVS.
             SRI.JACOB P.ALEX
             SRI.JOSEPH P.ALEX
             SHRI.MANU SANKAR P.
             SHRI.AMAL AMIR ALI


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 - 695001

     2       DISTRICT GEOLOGIST,
             PATHANAMTHITTA, DISTRICT OFFICE,DEPARTMENT OF MINING &
             GEOLOGY, NEAR KENDRIYA VIDYALAYA,ADOOR P. O.
             PATHANAMTHITTA, PIN - 691523

             BY ADVS.
             SRI.M.P.SREEKRISHNAN
             SHRI.JOHNY K.GEORGE
             SMT. ATHULYA MARTIN
             SRI.AJITH VISWANATHAN
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 31130 OF 2024                   2                              2025:KER:38052


                                                                              "C.R"
                                     JUDGMENT

This judgment has to be read in continuation of,

and as a sequel to, the judgment in W.P.(C.)

No.8820/2023 dated 03.04.2024, produced at Ext.P15

herein.

2. Petitioner's application for issuance of

Environmental Clearance (E.C.) was originally rejected

by the 1st respondent State Environmental Impact

Assessment Authority (SEIAA) vide Exts.P4 and P13

Orders. Challenging the Orders, the petitioner

approached this Court. The challenge was upheld and

Exts.P4 and P13 decisions were set aside by this Court,

by virtue of Ext.P15 judgment. The 1st respondent herein

was directed to reconsider the petitioner's application

for issuance of E.C. (produced as Ext.P8 in that Writ

Petition). Exts.P4 and P13 decisions were frowned upon

by this Court in Ext.P15 judgment citing three specific

reasons, which are available in the penultimate

paragraph of Ext.P15. The first is that no reason, WP(C) NO. 31130 OF 2024 3 2025:KER:38052

whatsoever, is stated to take a view different from that

of the well considered recommendation of the expert

body, State Expert Appraisal Committee (SEAC). This

reason was stated in the light of the judgment of the

Hon'ble Supreme Court in Hanuman Laxman Aroskar v.

Union of India [(2019) 15 SCC 401], which underscored

the primacy of the recommendations made by the SEAC, and

its binding nature on SEIAA in normal circumstances. The

said judgment of the Hon'ble Supreme Court also held

that in case SEIAA is to overlook the recommendations

made by the expert body SEAC, they have to state reasons

and the matter will have to be sent back to SEAC for

reconsideration, which obviously was not reflected in

Exts.P4 and P13 decisions.

3. The second aspect which weighed with the learned

Single Judge is the finding of SEAC that no cluster is

formed in the petitioner's case and that, 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) has not invalidated WP(C) NO. 31130 OF 2024 4 2025:KER:38052

Appendix XI of E.I.A. notification. The learned Single

Judge found that this was also not properly considered

in Ext.P13 decision. A third aspect- described by the

learned Single Judge as a crucial aspect - is with

respect to the expiry of the lease mentioned in Ext.P2

certificate granted on 06.03.2012, by virtue of which,

the total extent is admittedly below 5 hectares,

wherefore a comprehensive E.C. for the entire 5 hectares

is impossible.

4. It is on the strength of these specific findings that

Exts.P4 and P13 decisions of the 1st respondent were set

aside by the learned Single Judge and directed

reconsideration of the same.

5. I am at loss to find that none of the above

parameters- specifically pointed out by this Court in

Ext.P15- were not referred, much less considered, by the

1st respondent in Ext.P17 Order, impugned herein. The

matter did not end there. The petitioner filed a review

petition vide Ext.P18, pointing out the above anomaly of WP(C) NO. 31130 OF 2024 5 2025:KER:38052

not referring to any of these parameters, besides

pointing out the recommendations of SEAC, which has to

be followed by SEIAA ordinarily, as held in Hanuman

Laxman Aroskar (supra). Ext.P18 also did not evoke any

response and the 1st respondent/SEIAA came up with

Ext.P19 decision, without referring to any of the above

aspects, but finding a new ground to reject the

petitioner's application, holding that the splitting up

of the area into three parts will be against the spirit

of the judgment of the Apex Court in Deepak Kumar and

others v. State of Haryana and others [2012 (4) SCC

629].

6. Sri.Jacob P. Alex, learned Counsel for the petitioner

pointed out that Deepak Kumar (supra) is rendered

entirely in a different context. Where the law mandates

E.C. only in cases of mining exceeding 5 hectares,

unscrupulous project proponents started dividing larger

extents to extents less than 5 hectares and conducting

quarrying mining without E.C. This was frowned upon the

Hon'ble Supreme Court in Deepak Kumar (supra) and it was WP(C) NO. 31130 OF 2024 6 2025:KER:38052

held that even for mining in areas less than 5 hectares,

E.C. is necessary. Distinguishing the facts in the

instant case, learned counsel pointed out that the

petitioner had sought for - and he was in fact issued

with - an E.C. in respect of 3.1473 hectares earlier in

the year 2013; and that he had sought for a separate

E.C. this time, in respect of 0.99 hectares. Learned

Counsel would clarify that E.C. granted in the year 2013

was in respect of 4.8493 hectares, that is the total

area; whereas the same has been limited to 3.1473, when

the E.C. was renewed in the year 2019. The point remains

that the petitioner had applied for separate E.Cs in

respect of both the extents, wherefore the application

of Deepak Kumar (supra) does not come into play at all.

Learned counsel for the petitioner also invited my

attention to paragraph nos.41.5, 41.6, 54, 58, 118,

123.1 and 124 of Hanuman Laxman Aroskar (supra), which

categorically held that the recommendation of the expert

body SEAC, or for that matter E.A.C., to grant E.C. to

an applicant or to reject the same is to be accepted by WP(C) NO. 31130 OF 2024 7 2025:KER:38052

the regulatory authority, normally. In paragraph no.58,

a specific reason has been assigned by the Hon'ble

Supreme Court, that SEAC is a body constituted of

experts in the field of environment. The judgment also

underscores the requirement to state specific and cogent

reasons in case the regulatory authority/R1 differs with

the recommendation made by the expert body SEAC, in

which case, the course open to the regulatory authority

like R1 is only to remand the matter to the expert

body/SEAC for reconsideration.

7. Learned Standing Counsel for the SEIAA would invite

the attention of this Court to Clause 8, Sub clause 2 of

E.I.A. notification which would precisely lend support

to the dictum laid down by the Hon'ble Supreme Court

that SEAC's recommendation shall ordinarily be accepted,

and in case the regulatory body disagrees, it will have

to be sent back to SEAC for reconsideration. Such

reconsidered recommendation received from SEAC has to be

considered by the regulatory body and a decision has to

be taken, which has been made final as per the statutory WP(C) NO. 31130 OF 2024 8 2025:KER:38052

notification. Learned Standing Counsel pointed out that

this procedure has been adopted by virtue of Ext.P4. But

it should be noticed immediately that Ext.P4, as well as

Ext.P13, has been set aside by this Court as per Ext.P15

judgment, wherefore the compliance, if any, by virtue of

Ext.P4 cannot be gainsaid by the 1st respondent

regulatory authority.

8. More importantly, this Court notice that no specific

reason is stated by the 1st respondent authority, either

in Ext.P17 Order or in Ext.P19 Order, except saying that

the petitioner is to get a mining plan for the entire

area. None of the reasons, which have been considered

and recognized by SEAC and the reasons which

specifically weighed with the learned Single Judge in

setting aside Exts.P4 and P13 Orders, is seen considered

by the 1st respondent while passing Ext.P17 and Ext.P19

orders.

9. This Court is of the opinion that this is not a case

where a mere setting aside of Exts.P17 and P19 Orders WP(C) NO. 31130 OF 2024 9 2025:KER:38052

would meet the interest of justice. This Court notice a

clear dereliction of duty on the part of the members of

SEIAA in- (1) complying with this Court's Order produced

at Ext.P15; (2) in complying with the mandate and dictum

of the Hon'ble Supreme Court in Hanuman Laxman Aroskar

and (3) in not considering the recommendations of SEAC.

I am of the opinion that such non-consideration is not

an omission, but deliberate. This is axiomatic from the

fact that the petitioner had preferred Ext.P18 review

pointing out these aspects, which also fell in the deaf

ears of the members of the 1st respondent authority. It

requires no mention that a judgment considers the

legality and correctness of a course of action adopted

by an authority, including a statutory body. If a Court

chooses to set aside such action as reflected in an

Order, the same will obviously for reasons recorded in

that judgment. Ext.P15 contains cogent reasons, which

has been narrated all throughout the judgment and pin-

pointed in the penultimate paragraph of the judgment. It

is after specifically referring to the illegalities in WP(C) NO. 31130 OF 2024 10 2025:KER:38052

Exts.P4 and P13 Orders that the learned Single Judge

chose to set aside the same and directed reconsideration

of the same. It is, therefore, incumbent on the

authority to consider those reasons - which weighed with

the learned Single Judge in setting aside Exts.P4 and

P13 Orders- while reconsidering petitioner's application

for issuance of E.C, in compliance with the directions

of the judgment. I am of the firm opinion that Exts.P17

and P19 Orders are in utter disregard of Ext.P15

judgment. Palpable recalcitrance to change SEIAA's stand

- dehors the directions in Ext.P15 judgment and the

binding nature of SEAC's recommendation in normal

circumstances - is manifest in Exts.P17 and P19 Orders,

especially in the latter.

10. In the circumstances, this Writ Petition is allowed

with costs. Exts.P17 and P19 Orders are set aside.

Besides, this Court directs the 1st respondent SEIAA to

pay a cost of Rs.75,000/- to the petitioner within a

period of one month from today, each member of SEIAA

paying Rs.25,000/- each.

WP(C) NO. 31130 OF 2024 11 2025:KER:38052

11. It is pointed out by the learned Standing Counsel

that SEIAA/1st respondent is not functioning now, since

their period is over. Dehors the same, the above

direction to pay cost will operate as against the

individual members of SEIAA. Needless to say that the

cost above referred has to be paid by them individually,

without in any way burdening the public exchequer.

12. It will be open for the petitioner to seek

compensation for the business lost, because of the

erroneous Orders passed by the 1st respondent authority,

in case the E.C. sought for by the petitioner is

ultimately allowed.

13. The 1st respondent (in case new SEIAA is

constituted) or the Ministry of Environment, Forest and

Climate Change of India (as provided in Clause IV (3) of

EIA notification) will consider the petitioner's

application for issuance of E.C. as directed in Ext.P15

judgment, in the light of the observations contained

therein, as also, those contained in this judgment, in WP(C) NO. 31130 OF 2024 12 2025:KER:38052

accordance with law, within a period of two months from

the date of receipt of a copy of this judgment. To

enable the same, the Ministry of Environment, Forest and

Climate Change of India is suo motu impleaded as the 3 rd

respondent, for which entity, Sri.C.Dinesh takes notice.

The gist of this Order will be communicated forthwith by

Sri.C.Dinesh to the competent officer in the Ministry

for necessary compliance within time. Besides, it will

be open for the petitioner to produce a copy of this

judgment before the said authority, to ensure

compliance.

This WP(C) is allowed with cost as above.

Sd/-

C. JAYACHANDRAN

JUDGE

ska WP(C) NO. 31130 OF 2024 13 2025:KER:38052

APPENDIX OF WP(C) 31130/2024

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 P2(a) TRUE COPY OF THE CERTIFICATE BEARING NO.

426/DOPTA/M/2024 DATED 29-05-2024 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 THROUGH 1ST RESPONDENT (WITHOUT ANNEXURE) Exhibit P4 TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES OF THE 123RD 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 WP(C) NO. 31130 OF 2024 14 2025:KER:38052

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 Exhibit P15 TRUE COPY OF THE JUDGMENT DATED 03-04-2024 IN WPC NO. 8820 OF 2023 Exhibit P16 TRUE COPY OF THE HEARING NOTE DATED 31-05- 2024 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P17 TRUE COPY OF THE RELEVANT PAGES OF THE DECISION OF 1ST RESPONDENT (ITEM NO. 144.09) IN ITS 144TH MEETING HELD ON 28TH AND 29TH JUNE, 2024 Exhibit P18 TRUE COPY OF THE REPRESENTATION DATED 23-07- 2024 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P19 TRUE COPY OF THE RELEVANT PAGES OF THE DECISION OF 1ST RESPONDENT (ITEM NO. 146.21) IN ITS 146TH MEETING HELD ON 29TH AND 30TH JULY, 2024 RESPONDENT ANNEXURES

Annexure A1 THE TRUE COPY OF THE LICENCE ISSUED BY THE KONNI GRAMA PANCHAYAT DATED 23.03.2020 Annexure A2 THE COMPLAINT FILED BY ME BEFORE THE SECRETARY KONNITHAZHAM PANCHAYATH DATED 01.11.2024 Annexure A3 THE TRUE COPY OF THE NOTICE ISSUED BY THE ENVIRONMENTAL ENGINEER TO VILLAGE OFFICE KONNITHAZHAM VILLAGE DATED 07.10.2024 REGARDING THE UNAUTHORISED CONCRETE CONSTRUCTION IN THE STREAM Annexure A4 THE TRUE COPY OF THE NOTICE ISSUED BY THE WP(C) NO. 31130 OF 2024 15 2025:KER:38052

ENVIRONMENTAL ENGINEER TO THE SECRETARY KONNI GRAMA PANCHAYAT REGARDING THE UNAUTHORISED CONSTRUCTION OF GATE DATED 07.10.2024 Annexure A5 THE TRUE COPY OF THE NOTICE ISSUED BY THE ENVIRONMENTAL ENGINEER DATED 18.10.2024 REGARDING THE FLOW OF WASTE WATER

Annexure A6 A TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO. 6/2025/WRD DATED 20.01.2025 PETITIONER EXHIBITS

Exhibit P20 True copy of the relevant page of Mine closure report in respect of Lease bearing No. 68/2012-13/3664/M3/12/DMG dated 27-04-