Kerala High Court
Tomy Thomas vs The State Environmental Impact ... on 27 August, 2021
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
WP(C) NO. 17353 OF 2021
PETITIONER:
MR.TOMY THOMAS,
AGED 56 YEARS, S/O. THOMAS, PULICKAL HOUSE,
KALATHUKKADAVU (PO), ERATTUPETTAH,
KOTTAYAM DISTRICT-686 579.
BY ADV JOBI JOSE KONDODY
RESPONDENTS:
1 THE STATE ENVIRONMENTAL IMPACT ASSESSMENT
AUTHORITY (SEIAA, KERALA),
REPRESENTED BY ITS MEMBER SECRETARY, KSRTC BUS
TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR,
THIRUVANANTHAPURAM-695 001.
2 THE KERALA STATE POLLUTION BOARD,
REPRESENTED BY ITS MEMBER SECRETARY,
PATTOM PALACE P.O., KESAVADASPURAM,
THIRUVANANTHAPURAM-695 004.
3 K.G.ANILKUMAR,
AGED 56 YEARS, S/O. GOPINATHAN NAIR,
KIZHAKKEMALA PROTECTION COUNCIL,
KALLARAYATHU HOUSE, THALAPPALAM,
PLASSANAL P.O., KOTTAYAM-686 579.
SRI.M.P.SREEKRISHNAN SC
SRI.NAVEEM SC
SMT.PRINCY XAVIER GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No. 17353 of 2021 2
W.P.(C) No.17353 of 2021
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JUDGMENT
Petitioner obtained Environmental Clearance from the first respondent on 04.03.2016 for conducting a building stone quarry in a land measuring 3.9577 hectares in Kottayam District. Ext.P1 is the Environmental Clearance obtained by the petitioner. While the petitioner was running the quarry on the strength of Ext.P1, the first respondent issued a stop memo restraining the petitioner from operating the quarry. In terms of the judgment of this Court in W.P.(C) No.31684 of 2016, this Court directed the first respondent to finalize the proceedings in which the stop memo was issued. It is stated by the petitioner that for the purpose of finalizing the proceedings aforesaid, the State Environment Expert Appraisal Committee W.P.(C) No. 17353 of 2021 3 directed the petitioner to carry out a study on the impact of blasting on the structures in the nearby properties and the nuisance caused on account of transportation of materials from the quarry. In terms of Ext.P15 judgment, this Court permitted the petitioner to provisionally operate the quarry so as to carry out the study directed by the State Environment Expert Appraisal Committee, subject to the outcome of the proceedings in which the stop memo referred to above was issued by the first respondent. It is stated by the petitioner that suppressing the fact that the operation of the quarry by the petitioner is as permitted by this Court in Ext.P15 judgment, the third respondent approached the National Green Tribunal in O.A.No.76 of 2021 alleging that the petitioner is operating the quarry without obtaining the requisite permissions and licences. It is also stated by the petitioner that though the petitioner appeared before the National Green Tribunal and pointed out to the Tribunal that the quarry is being operated as permitted by this Court in Ext.P15 judgment, the Tribunal is W.P.(C) No. 17353 of 2021 4 proceeding to adjudicate the interlocutory application preferred by the third respondent in the Original Application for an order of temporary injunction restraining the petitioner from running the quarry, ignoring Ext.P15 judgment of this Court. The petitioner, therefore, seeks a declaration that the National Green Tribunal does not have jurisdiction to entertain O.A. No. 76 of 2021 in the light of Ext.P15 judgment of this Court, and a direction restraining the National Green Tribunal from entertaining O.A. No.76/2021 and the interlocutory applications filed therein.
2. Heard the learned counsel for the petitioner.
3. Paragraphs 19 to 21 of the writ petition dealing with the case of the petitioner as regards the justification for approaching this Court in a case of this nature read thus:
19. Upon receipt of notice in O.A. No. 76/2021, the petitioner herein appeared in the matter and filed a detailed Reply Statement stating that the original application is not maintainable before the National Green Tribunal for the reason that the issue pertains to the operation of the quarry of the petitioner has been seized W.P.(C) No. 17353 of 2021 5 of by the Hon'ble High Court of Kerala and the 3 rd respondent herein who was the applicant in O.A 76/2021 had approached the Tribunal with unclean hands, suppressing material facts in order to play fraud upon the Tribunal to obtain illegal orders when he failed to secure favourable orders from this Hon'ble Court in several of the Writ Petitions and Writ Appeals filed by him before this Hon'ble Court. It was also pointed out by the petitioner to the National Green Tribunal that Exhibit P1 Environmental Clearance had not been revoked by the 1 st respondent and there is only a stop memo vide Exhibit P5 which was directed to be finalized by the 1st respondent by this Hon'ble Court through Exhibit P7 judgment. The finalization proceedings on Exhibit P5 are on and the entire proceedings had been brought to the notice of the National Green Tribunal. Therefore the petitioner prayed for dismissal of OA No. 76/2021 fraudulently filed by the 3rd respondent. A true copy of the Reply Statement filed by the petitioner dated 29.03.2021 without Annexures before the National Green Tribunal is produced herewith and may be marked as Exhibit P18.
20. The National Green Tribunal without answering the question of maintainability of Exhibit P17, proceeded with matter as if the tribunal is sitting in appeal against Exhibits P15 and P16 judgments passed by the Learned Single Judge of this Hon'ble Court and the Division Bench of this Hon'ble Court. The Tribunal directed the 1 st respondent to produce all files pertaining to finalization of Exhibit P5 through a Reply Statement. The matter was W.P.(C) No. 17353 of 2021 6 originally posted for hearing on 31.03.2021 later got adjourned to 22.07.2021 and again to 02.08.2021. Thereafter the matter was adjourned to 17.08.2021 and on 17.08.2021 it was again adjourned to 14.09.2021. The adjournments 02.08.2021 till 14.09.2021 were by publishing the cause list without calling the matter in virtual court. On 23.08.2021, the counsel for the 3 rd respondent intimated the petitioners counsel by around 8 P.M and intimated in that Exhibit P17 Original Application was advanced to 24.08.2021 and the case is listed as Item No. 2 for the cause list of National Green Tribunal on 24.08.2021. The 3rd respondent also moved an injunction application restraining the petitioner from carrying out quarrying operations without obtaining valid licenses. The copy of the injunction application also was send to the counsel appearing for the petitioner through Watts app on 23.08.2021 at around 8 P.M. A true copy of the Injunction Application dated 18.08.2021 in O A No. 76/2021 filed by the 3rd respondent before the National Green Tribunal (Southern Zone), Chennai is produced herewith and may be marked as Exhibit P19. The counsel for the petitioner appeared before the National Green Tribunal on 24.08.2021 and informed the Tribunal that the quarrying operations in the property are being conducted as directed by this Hon ble Court in Exhibit P15 and P16 judgments and if at all the 3rd respondent herein has any grievance, he should either approach this Hon'ble Court with the review of Exhibit P16 judgment or he should approach the Hon'ble Apex Court against Ext.P16. Further if his grievance is with regard to the violation of the directions W.P.(C) No. 17353 of 2021 7 issued by the Hon ble High Court of Kerala, he should avail the remedy of filing contempt against the petitioner or against the 1st respondent. The petitioner vehemently contended before the Tribunal that the Tribunal is proceeding in Exhibit P17 O.A exceeding its jurisdiction.
21.The Tribunal without appreciating the arguments advanced by the petitioner had posted Exhibit P17 O.A as well as Exhibit P18 injunction application to 31.08.2021 for considering finally. The action of the Tribunal seems to be that the National Green Tribunal is having supervisory jurisdiction over the Hon'ble High Court of Kerala.
The petitioner has no case that any order has been passed by the National Green Tribunal against him in the proceedings. As explicit from the pleadings of the petitioner extracted above, it is seen that the writ petition is filed solely based on the apprehension of the petitioner that the National Green Tribunal may pass orders restraining the petitioner from operating the quarry, ignoring Ext.P15 judgment of this Court. There is absolutely no basis for the aforesaid apprehension of the petitioner. Even if any order is passed by the National Green Tribunal ignoring Ext.P15 judgment of this Court, the petitioner W.P.(C) No. 17353 of 2021 8 is not remediless.
In the said circumstances, I do not find any justification to entertain a writ petition of this nature and the writ petition is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
YKB W.P.(C) No. 17353 of 2021 9 APPENDIX OF WP(C) 17353/2021 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 4.3.2016 ISSUED BY THE IST RESPONDENT TO THE PETITIONER.
Exhibit P2 A TRUE COPY OF THE QUARRYING LEASE EXECUTED BY THE PETITIONER AND THE STATE GOVERNMENT UNDER THE PROVISIONS OF THE KERALA MINOR MINERAL CONCESSION RULES, 2015 DATED 27.5.2016 HAVING VALIDITY UPTO 26.5.2028.
Exhibit P3 A TRUE COPY OF THE INTERIM ORDER DATED 26.4.2016 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HONOURABLE COURT IN WPC NO.15505 OF 2016.
Exhibit P4 A TRUE COPY OF THE REFERENCE ORDER DATED 20.9.2016 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HONOURABLE COURT IN WPC NO.15505 OF 2016.
Exhibit P5 A TRUE COPY OF THE ORDER DATED 22.9.2016 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER.
Exhibit P6 A TRUE COPY OF THE FULL BENCH JUDGMENT REPORTED IN 2019(3) KLT 987 (FB) (TOMY THOMAS VS. STATE OF KERALA) DECIDED ON 30.8.2019.
Exhibit P7 A TRUE COPY OF THE COMMON JUDGMENT DATED 4.10.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WPC NOS.15505 OF 2016, 31684 OF 2016 AND 25529 OF 2019.
Exhibit P8 A TRUE COPY OF THE JUDGMENT DATED 8.1.2020 PASSED BY THE DIVISION BENCH OF THIS HONOURABLE COURT IN W.A.NO.2566 W.P.(C) No. 17353 of 2021 10 OF 2019.
Exhibit P9 A TRUE COY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE FIRST RESPONDENT HELD ON 21ST AND 22ND NOVEMBER 2019.
Exhibit P10 A TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE FIRST RESPONDENT HELD ON 23RD AND 24TH DECEMBER, 2019.
Exhibit P11 A TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 108TH MEETING OF THE SEAC KERALA HELD ON 13TH AND 14TH JANUARY, 2020.
Exhibit P12 A TRUE COPY OF THE JUDGMETN DATED 27.5.2020 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HONOURABLE COURT IN WPC NO.5897 OF 2020.
Exhibit P13 A TRUE COY OF THE RELEVANT PAGES OF THE MINUTES OF THE 111TH MEETING OF THE SEAC KERALA HELD ON 2-4 JUNE, 2020.
Exhibit P14 A TRUE COPY OF THE ORDER DATED 30.6.2020 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER.
Exhibit P15 A TRUE COPY OF THE JUDGMENT DATED 10.8.2020 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN WPC NO.14072/2020.
Exhibit P16 A TRUE COPY OF THE COMMON JUDGMENT DATED 22.10.2020 PASSED BY THE LEARNED DIVISION BENCH OF THIS HON'BLE COURT IN W.A.NO.1392/2020 AND 1393/2020.
Exhibit P17 A TRUE COPY OF THE ORIGINAL APPLICATION NO.76/2021 DATED 18.2.2021 FILED BY THE 3RD RESPONDENT BEFORE THE NATIONAL W.P.(C) No. 17353 of 2021 11 GREEN TRIBUNAL (SOUTHERN ZONE), CHENNAI.
Exhibit P18 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER DATED 29.3.2021 WITHOUT ANNEXURES BEFORE THE NATIONAL GREEN TRIBUNAL.
Exhibit P19 A TRUE COPY OF THE INJUNCTION APPLICATION DATED 18.8.2021 IN O.A.NO.76/2021 FILED BY THE 3RD RESPONDENT BEFORE THE NATIONAL GREEN TRIBUNAL (SOUTHERN ZONE), CHENNAI. Exhibit P20 A TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF 123RD MEETING OF THE SEAC KERALA HELD ON 27/30-07.2021.