Kerala High Court
Hajarumma vs M/S.High Grip Granites on 10 January, 2020
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 10TH DAY OF JANUARY 2020/20TH POUSHA, 1941
WP(C).No.19791 OF 2019(Y)
PETITIONER:
HAJARUMMA
AGED 44 YEARS
W/O. ABDUL SALAM, CHIRAKKAL (MUDAVAN PILAKKAL) HOUSE,
HOUSE NO.VP 8/122, VAZHAYOOR EAST, VAZHAYOOR P. O.,
MALAPPURAM DISTRICT, KERALA, PIN - 673633.
BY ADVS.
SRI.K.K.ASHKAR
SMT.ASHIRA MOHAMED ASHROF
RESPONDENTS:
1 M/S.HIGH GRIP GRANITES
EAST VAZHAYOOR P. O., RAMANATTUKARA VIA, MALAPPURAM.
REPRESENTED BY ITS PROPRIETOR M. E. MOHANAN, AGED 50
YEARS, S/O. KADUMGON, MOONNAMTHODI, EDAKKATTU, VISHNU
NIVAS, AZHINHILAM AMSOM, KARADU DESOM, KARADU
PARAMBU, FAROKE COLLEGE, KONDOTTY TALUK, MALAPPURAM
DISTRICT, PIN - 673 638.
2 THE DISTRICT COLLECTOR AND CHAIRMAN
DISTRICT DISASTER MANAGEMENT AUTHORITY, MALAPPURAM
DISTRICT, PIN - 676 505.
3 THE MEMBER SECRETARY
KERALA STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY,
K.S.R.T.C. BUS TERMINAL COMPLEX, 4TH FLOOR,
THAMPANOOR, THIRUVANANTHAPURAM - 695 001.
4 THE GEOLOGIST
THE DEPARTMENT OF MINING AND GEOLOGY, MALAPPURAM
DISTRICT, MINI CIVIL STATION, MANJERI, PIN - 676121
5 STATE OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,
DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE
(DOECC), 4TH FLOOR, K. S.R.T.C. BUS TERMINAL,
THAMPANOOR, THIRUVANANTHAPURAM - 695 001.
R1 BY ADV. SRI.K.T.SHYAMKUMAR
R1 BY ADV. SRI.HARISH R. MENON
Wpc 19791/2019 2
R1 BY ADV. SMT.K.N.ABHA
R1 BY ADV. SRI.A.G.PRASANTH
R1 BY ADV. SRI.P.B.KRISHNAN
BY GP SRI MANURAJ K J
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Wpc 19791/2019 3
JUDGMENT
The petitioner is the owner of 1.66 acres of land comprised in survey No.147/2 in Block No.6 of Vazhayoor Village. She has sought indulgence of this court under Article 226 of the Constitution of India for quashing Ext.P6 dated 15.07.2017, Ext.P12 dated 22.03.2017 and Ext.P13 dated 07.04.2017 and for initiation of action by 5th respondent for carrying out the mining activity for the afore-mentioned period.
2. Inter alia on the premise that they have been living in an old tiled roof house which had been seriously damaged due to blasting operations carried out by the first respondent, petitioner had to demolish the tiled roof house and construct a new house in 2014 incurring expenses and the completion certificate was issued on 27.07.2014. Even newly constructed houses were also damaged on account of the haphazard operation of the quarry in violation of conditions of environmental clearance as well as Wpc 19791/2019 4 mining plan. On account of such illegal mining, he could not cultivate paddy land. Being a victim of the afore-mentioned wrath, representation dated 23.11.2018 was submitted before the second respondent District Collector for taking action against the first respondent. On receipt of the representation, 6th respondent Village Officer submitted Inspection Report dated 13.11.2018 and reported the damage. All the quarrying operations in Malappuram was stopped on 15.10.2018. Second respondent District Collector inspected the site in the presence of District Geologist and Executive Engineers of PWD (Buildings) and Kerala Water Authority on 11.12.2018. After inspection, it was resolved to have impact assessment study by an expert agency. The Executive Engineer submitted a report after inspecting affected houses and the overhead Water Tank.
3. Learned counsel appearing on behalf of the petitioner submitted that the District Collector though Wpc 19791/2019 5 found the issuance of permit in terms of law, but the fact of the matter is that all permissions are not in consonance with the notification dated 14.3.2017, Ext.P14 issued by the Ministry of Environment, Forest and Climate Change. The afore-mentioned notification imposed a complete bar in terms of the judgment of Honourable Supreme Court as the Expert Appraisal Report in the instant case was to be done by the Central Government. However, in the instant case, premises were assessed by the State Expert Appraisal Committee. Ext.P6 Environmental Clearance is not in consonance with the notification 2006. For the sake of repetition, it was urged that Ext.P14 notification divested the powers of 3 rd respondent for issuing permission which was in violation of the mandate in the said notification. The appraisal has to be done in a transparent manner. Thus the impugned orders are not sustainable in the eyes of law and liable to be set aside.
4. Per contra, heard the learned counsel Wpc 19791/2019 6 appearing for the petitioner, Sri P.B.Krishnan. Learned counsel appearing for the contesting respondent opposed the afore-mentioned prayer, but does not raise objection of maintainability as there is no challenge to Ext.P3 dated 10.07.2019 issued by second respondent, whereby after noticing all study report found that injunction was refused. It was urged that this court has been withheld of the two notifications, Ext.R(o) and (p) dated 08.03.2018 and 15.03.2018. The competent authority amended Ext.P14 notification, emphatically relied vide notification dated 14.03.2018 by specifying that in respect of projects falling under category B, it shall be considered by the SEAC/SEIAs in the respective States/Union Territories. Coming out with another notification dated 15.03.2018, it is clarified that 14.03.2017 notification was issued to appraise and regularise projects already taken or under implementation without obtaining environmental clearance in terms of the provisions of 2006 notification. But in order to streamline and expedite Wpc 19791/2019 7 the consideration of proposals in respect of activities covered under category B, certain directions for compliance with immediate effect were issued.
5. It is next contended that as per the said direction, the proposal after September 2017 is considered to be genuine and the cut-off date is fixed as 13.09.2017. The clearance in the instant case was issued on 15.07.2017. In the minutes recorded in the meeting of State Environment Expert Assessment Committee held on 20.05.2016, it was found that there was no action for the alleged violation.
6. Having heard the counsel for both sides and going through the materials and documents, I find that this is not a fit case calling interference under Article 226 of the Constitution of India. The expert assessment committee had not taken into consideration the merit of notification dated 14.03.2017 issued by Ministry of Environment and Forest climate change, as the assessment was required to be done by the Central Government. The Wpc 19791/2019 8 argument has not been able to stand the touchstone of reasonability because the aforementioned notification has been modified vide two notifications dated 8.3.2018 and 15.03.2018. Based on the feedback of the Site Inspection by the members, found that the quarrying operation is in violation of the rules. Despite that recommended for issuance of Environment Clearance. However, in the minutes of the 66th meeting of the State Environment Impact Assessment Authority dated 07.04.2017, under item No.66.20, the committee found that the authority decided to grant Environmental Clearance subject to certain conditions in addition to the general conditions as part of an affidavit that all general and specific conditions would be strictly implemented. Though it is also noticed that in terms of judgment of the Honourable High Court, the functioning of the quarry, inspection was in violation. The respondent also filed writ petition seeking permission to carry out quarrying activities on the premise of Deemed Environment Clearance. Later on it was withdrawn. Wpc 19791/2019 9 Even in the Environment Clearance permit dated 15.07.2017, the appropriate authority, ie Principal Secretary of State Expert Assessment Authority, while considering the proposal observed as under:-
"The proposal was considered by the Authority in its 62nd meeting held on 23.12.2014, 64th meeting held on 23.02.2017 and in its 65th meeting held on 22.03.2017. The Authority decided to confirm whether the quarry was operated even after the Hon'ble Supreme Court verdict. An affidavit to this effect should be obtained and place in the next meeting for a decision.
The proponent in the meantime, filed a writ petition 11230 of 2017 for interim relief from the court that the petitioner may be allowed to proceed with quarrying activities as if there is deemed EC, pending disposal of the writ petition with the cost of the proceeding. Now he has submitted an affidavit stating that he had carried out quarrying operation only within the above permit area of 1.25 area till 13.08.2016 upto which he had got quarrying permit from DMG and that he has not carried out any mining activities in that area after 13/082016 Therefore there is no need to initiate violation proceedings. So the case may be decided on the recommendations other than for violation proceedings.
The proposal was considered by the Authority in its 66th meeting held on 07.04.2017. The Authority decided to grant EC subject to the following specific conditions in addition to the general conditions subject to the production of an affidavit that all the general and specific conditions shall be strictly implemented in addition to the Wpc 19791/2019 10 conditions suggested by the inspection team. The CSR activities as mentioned in the application should also be implemented.
1. Benching conditions should be strictly practiced. It is observed that presently quarrying is carried out without properly following the mining plan and any further quarrying shall be by strictly following benching methods.
2. Proper fencing and sign boards must be fixed all around.
Environmental clearance as per the EIA notification 2006 is hereby accorded for the proposed stone quarry project of Sri Mohanan M.E, High Grip Granites, Edakkat House, Karadparamba P.O, Malappuram, Kerala -673 632 in Survey No.147/1(p), 155/3(p) at Vazhayoor Village, Kondotty Taluk, Malappuram District, Kerala for an area of 1.2965 hectares, subject to the specific conditions as recommended by SEAC in para 2 and 3 above, all the environmental impact mitigation and management measures undertaken by the project proponent in the Form 1, EMP, PFR and Mining plan submitted to SEIAA. The assurances and clarifications given by the proponent will be deemed to be a part of these proceedings as if incorporated herein. Also the general conditions for projects stipulated for mining (items 1 to 61), appended hereto will be applicable and have to be strictly adhered to.
The clearance issued will also subject to full and effective implementation of all the undertakings given in the application form, mitigation measures as assured in the Environment Management Plan and the mining features including progressive mine closure plan as submitted with the application and relied on for grant of this Wpc 19791/2019 11 clearance".
7. In the absence of challenge to Ext.P3 dated 10.07.2019, in the light of the observations made above, I am of the view that there is. no merit in the writ petition. Writ petition is accordingly dismissed.
Sd/- AMIT RAWAL, JUDGE Lgk Wpc 19791/2019 12 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF REPRESENTATION DATED 03.11.2018 TO THE 2ND RESPONDENT BY PETITIONER'S HUSBAND.
EXHIBIT P2 TRUE COPY OF THE SITE INSPECTION REPORT MADE BY PWD, EXECUTIVE ENGINEER DATED 13.06.2019.
EXHIBIT P3 TRUE COPY OF ORDER DATED 10.07.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE QUARRYING PERMIT DATED 14.10.2015 ISSUED BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 22.06.2016 IN W.P.(C)NO.15828 OF 2016 OF THIS COURT. EXHIBIT P6 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE GRANTED TO THE 1ST RESPONDENT BY THE 3RD RESPONDENT AUTHORITY DATED 15.07.2017. EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF 55TH MEETING OF SEAC HELD ON 20.05.2016.
EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF 54TH MEETING OF 3RD RESPONDENT HELD ON 21.06.2016.
EXHIBIT P9 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 60TH MEETING OF SEAC HELD ON 28.07.2016.
EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF 59TH MEETING OF THE 3RD RESPONDENT HELD ON 27.09.2016.
EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 64TH MEETING OF SEAC HELD ON 16.11.2016.
EXHIBIT P12 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 65TH MEETING OF THE 3RD RESPONDENT HELD ON 22.03.2017.
Wpc 19791/2019 13EXHIBIT P13 TRUE COPY OF THE RELEVANT PAGES OF MINUTES OF THE 66TH MEETING OF THE 3RD RESPONDENT HELD ON 07.04.2017.
EXHIBIT P14 TRUE COPY OF THE NOTIFICATION S.O.804(E) DATED 14.03.2017 ISSUED BY MOEF AND CC RESPONDENT'S EXHIBITS:
EXHIBIT R1 A A TRUE COPY OF THE PERMIT ISSUED BY THE GEOLOGIST, MALAPPURAM.
EXHIBIT R1 B A TRUE COPY OF THE LICENSE ISSUED BY THE JOINT CHIEF CONTROLLER, PETROLEUM AND EXPLOSIVE SAFETY ORGANISATIONS, SOUTH CIRCLE, CHENNAI DATED 26-7-2017.
EXHIBIT R1 C A TRUE COPY OF THE CONSENT ORDER ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 26-7-2017 EXHIBIT R1 D A TRUE COPY OF THE LICENSE ISSUED BY THE VAZHAYUR PANCHAYATH.
EXHIBIT R1 E A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 15-7-2017 ISSUED BY THE STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY.
EXHIBIT R1 F A TRUE COPY OF THE LICENSE ISSUED BY THE DIRECTORATE GENERAL OF MINES SAFETY, SOUTHERN ZONE, BENGALURU.
EXHIBIT R1 G A TRUE COPY OF THE PLAN OF THE LEASE AREA ISSUED BY THE VILLAGE OFFICER, VAZHAYUR.
EXHIBIT R1 H A TRUE COPY OF THE CERTIFICATE ISSUED BY THE VAZHAYUR PANCHAYAT DATED 25-8-14.
EXHIBIT R1 I A TRUE COPY OF THE QUARRYING LEASE ORDER DATED 5-10-2017 ISSUED BY THE DIRECTOR OF MINING AND DEOLOGY DEPARTMENT, THIRUVANANTHAPURAM.
EXHIBIT R1 J A TRUE COPY OF THE JUDGMENT IN WPC NO.15828/2016 DATED 22-6-2016.
EXHIBIT R1 K A TRUE COPY OF THE REPORT OF NIT KARNATAKA DATED 19-6-2019.
EXHIBIT R1 L A TRUE COPY OF THE QUARRYING PERMIT ISSUED BY THE GEOLOGIST MALAPPURAM DATED 14-10- 2015.Wpc 19791/2019 14
EXHIBIT R1 M A TRUE COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF ROYALTY.
EXHIBIT R1 O A TRUE COPY OF THE NOTIFICATION DATED 15-3- 2018.
EXHIBIT R1 P A TRUE COPY OF THE ORDER DATED 15-3-2018 OF MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE.