Kerala High Court
M/S Marath Enterprises And Crushers Pvt ... vs The State Enviornment Impact ... on 2 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941
WP(C).No.6149 OF 2020(P)
PETITIONER:
M/S MARATH ENTERPRISES AND CRUSHERS PVT LTD.
NO.4 KUWAIT BUILDING, GURUVAYOOR ROAD,
KOOTTANAD P.O.PALAKKAD DISTRICT, REPRESENTED BY ITS
MANAGING DIRECTOR, T.K. SUBRAMANINAN, S/O KUTTIMAN,
AGED 72 YEARS.
BY ADV. SRI.BABU S. NAIR
RESPONDENTS:
1 THE STATE ENVIORNMENT IMPACT ASSESSMENT AUTHORITY
KERALA
REPRESENTED BY ITS SECRETARY, DEVIKRIPA, PALLIMUKKU,
PETTAH, THIRUVANANTHAPURAM DISTRICT, PIN-695 024.
2 THE DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY,
PALAKKAD, PALAKKAD DISTRICT, REPRESENTED BY ITS
CHAIRMAN, DISTRICT COLLECTOR,PALAKKAD,PIN-678 001.
BY ADVS.
SRI.M.P.SREEKRISHNAN, SC -R1
SRI.K.J.MANU RAJ, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C). No. 6149 of 2020
2
(C.R)
ALEXANDER THOMAS, J.
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W.P(C). No. 6149 of 2020
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Dated this the 2nd day of March, 2020
JUDGMENT
The case projected in this Writ Petition (C) is as follows:
Exhibit P1 environmental clearance issued to the petitioner by the first respondent is valid till 10-6-2022. The issuance of environmental clearance was challenged before this Court by a person by name Sulaiman, stating that as per Exhibit P2 notification issued by the Ministry of Environment Forest and Climate change, the issuance of environmental clearance to the B2 Projects shall be given by the District Environmental Assessment Authority, by producing the notification dated, 15-1-2016. Exhibit P3 clarification was also issued. In W.P.(C)No.18383/2018, Exhibit P1 environmental clearance issued to the petitioner was challenged on the basis of Exhibits P2 and P3, by stating that as on the date of issuance of Exhibit P1, the first respondent has no jurisdiction, it should have been issued by the 2nd respondent. This Court allowed the writ petition vide Exhibit P4 judgment by quashing Exhibit P1 environmental clearance and directed the first respondent to W.P(C). No. 6149 of 2020 3 transmit/transfer the application submitted by the petitioner to the 2nd respondent. As per the directions in Exhibit P4 judgment, the first respondent had transmitted the entire files to the 2 nd respondent. While the 2nd respondent was about to consider the application for environmental clearance submitted by the petitioner, the National Green Tribunal, Principal Bench, New Delhi passed Exhibit P5 order, held that the 2nd respondent does not have any powers to consider the application and declared that the notification dated, 15-1-2016 is invalid. The said order was affirmed by Apex Court as well. Therefore, the 2nd respondent could not consider the application as directed by this Court. It is submitted that in view of the order passed by the National Green Tribunal, stating that the notification dated 15-1-2016 is invalid and the environmental clearance issued to the petitioner dated 11-6-2017, valid upto 10-06-2020 is perfectly valid or otherwise the files relating to the application of the petitioner shall be immediately transmitted to the 1 st respondent so as to process and consider the same as the 2 nd respondent does not have any jurisdiction, in view of the order of the National Green Tribunal, which is affirmed by the Apex Court. In the light of these averments and contentions, the petitioner has filed this Writ petition (C) seeking W.P(C). No. 6149 of 2020 4 the following prayers:
i) Declare that Ext.P1 environmental clearance issued by the State Environmental Impact Assessment Authority, Kerala to the petitioner, is valid till 10-06-
2022.
ii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the 2 nd respondent-District Environmental Impact Assessment Authority, Palakkad to immediately transmit the entire files relating to the application of the petitioner for environmental clearance to the first respondent-State Environmental Impact Assessment Authority, forthwith a direction to the 1st respondent to consider the same and pass orders on the same forthwith, without any further delay.
iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. Heard Sri.Babu.S.Nair, learned counsel for the petitioner, Sri.M.P.Sreekrishnan, learned Standing Counsel for Kerala State Environment Impact Assessment Authority appearing for the 1 st respondent and K.J.Manu Raj, learned Government Pleader appearing for the 2nd respondent (RDO), who is the convener of the District Environment Impact Assessment Authority.
3. The petitioner was earlier granted environmental clearance by the 1st respondent State authority as per Ext.P1 proceedings dated 11-06-2017. As per Ext.P2 notification issued by the Government of India, Ministry of Environment, Forest & Climate Change on 15-01-2016, the sole authority in that regard on the plea of W.P(C). No. 6149 of 2020 5 the petitioner, was the 2 nd respondent District authority concerned and not the 1st respondent State authority.
4. Being aggrieved by the grant of Ext.P1 environmental clearance, the objector concerned had filed a Writ Petition (Civil) as W.P(C) No.18383/2018 before this Court, which was finally disposed of by this Court as per Ext.P4 judgment dated 19-06-2018, wherein this Court found that the 1st respondent State authority did not have the jurisdiction and competence to issue environmental clearance as per Ext.P1, in the facts and circumstances of the case, as the sole authority in that regard, at that point of time was the 2 nd respondent District authority, going by the norms in Ext.P2 notification. Accordingly, this Court quashed the impugned environmental clearance as per Ext.P1 herein and had directed that the files in relation to the application of the petitioner for grant of environmental clearance stand transferred to the 2 nd respondent District authority for fresh decision in the matter of environmental impact assessment, etc,.
5. The National Green Tribunal, as per order dated 13-09-2018 referred to in Ext.P5 order dated 11-02-2018, has found that the very constitution of the way of the District authorities concerned like W.P(C). No. 6149 of 2020 6 the 2nd respondent was legally fraud, inasmuch as no expert members were appointed in the such District authority concerned and accordingly the National Green Tribunal as per order dated 13.9.2018 referred to in Ext.P5 order dated 11-12-2018, interdicted with the very functioning of the District authorities like the 2 nd respondent herein. Now the petitioner is placed with piquant position inasmuch as the 2nd respondent District authority is not in a position to consider the application of the petitioner, for the simple reason that it has been dysfunctional as per the orders passed by National Green Tribunal on 13-09-2018 as referred to in Ext.P5 order dated 11-12-2018.
6. Sri.Babu.S.Nair, learned counsel for the petitioner would point out that, in view of the subsequent order dated 13-09-2018 rendered by the National Green Tribunal as the 2nd respondent District authority has been made dysfunctional, this Court may order and declare that the environmental clearance given to the petitioner by the 1st respondent State authority is legally right and proper inasmuch as now the sole authority to consider the plea of the petitioner for environmental assessment is the 1st respondent State authority and not the 2nd respondent District authority. W.P(C). No. 6149 of 2020 7
7. Sri.M.P.Sreekrisnan, learned Standing Counsel appearing for R1, State authority and Sri.K.J.Manu Raj, learned Government Pleader appearing for R2 (RDO), who is the convener of the District Environment Impact Assessment Authority, have opposed the said plea of the petitioner.
8. After hearing both sides, it is seen that it is indisputable that as on the date on which Ext.P1 environmental clearance dated 11-06-2017 is issued by the 1st respondent State authority, the sole authority, who has competence to consider and grant such an environmental clearance was the 2nd respondent District authority. Therefore, this Court has interdicted Ext.P1 environmental clearance as it has been given by the 1 st respondent, who had no jurisdiction in the matter and had directed that the plea of the petitioner may be considered afresh by the 2nd respondent District authority as per Ext.P4 judgment rendered on 19-06-2018. It is only later that on 11-09-2018, that the National Green Tribunal has passed orders interdicting the very functioning of the District authorities all across the country like the 2 nd respondent on account of legal flaw in the constitution of such District authorities. Therefore it is only on and after 13-09-2018 ( the day on which, the National Green Tribunal has W.P(C). No. 6149 of 2020 8 passed orders in the matter) that it can be said that the 2 nd respondent District authority has become dysfunctional and is not in a position to competently function to consider the plea for the environmental impact assessment, in cases of the nature as a present one. Therefore as on 11-06-2017 (date of issuance of Ext.P1), the 1 st respondent did not have the jurisdiction and therefore the present plea of the petitioner that, on account of the subsequent orders passed by the National Green Tribunal on 13-09-2018, the 1 st respondent should be deemed to have the authority to grant environmental clearance even respect of periods prior to 13-09-2018, cannot be countenanced by this Court. Moreover, Ext.P4 directions have been passed by this Court on the judicial side under Article 226 of the Constitution of India and the said directions as per Ext.P4 judgment have been final and conclusive. Taking into account all these aspects, this Court is not in a position to accede to the abovesaid plea of the petitioner. However, on and after 13-09-2018, the sole authority to consider the plea for environmental clearance in cases like that in the instant hand is the 1st respondent State Authority.
9. Accordingly the following directions and orders are W.P(C). No. 6149 of 2020 9 passed:
(i) The competent official of the 2nd respondent viz., the District Collector Palakkad, who was the chairman thereon or the Revenue Divisional Officer concerned, who is the ex-officio member Secretary thereon, will ensure that the entire papers in relation to the application of the petitioner for grant of environmental impact assessment, which was earlier forwarded to the District authority by the 1st respondent State authority pursuant to Ext.P4 judgment dated 19-06-2018, shall be re-forwarded and re-transmitted by the 2nd respondent to the 1st respondent State authority. Steps in this regard should be duly completed by the District Collector/RDO concerned so that entire papers reach the 1st respondent within 2-3 weeks from the date of production of a certified copy of this judgment.
(ii) After receiving the entire papers if it is seen that the petitioner has already remitted the requisite fee in relation to the matter in Ext.P1, then the 1 st respondent shall not insist that the petitioner should file any fresh application or should remit any fresh fees. Any such insistence would be arbitrary and unjust as the petitioner cannot be found fault with the piquant situation which he is now facing.
(iii) Thereafter the 1st respondent will ensure that the W.P(C). No. 6149 of 2020 10 requisite environment impact assessment is duly carried out with due prior notice to the petitioner and thereafter a considered decision shall be taken by the 1st respondent State authority, after affording reasonable opportunity of being heard to the petitioner without much delay preferably within a period of two months from the date of receipt of the abovesaid papers from the 2nd respondent, as aforestated. This Court is aware that ordinarily the time limit that can be taken by the 1 st respondent State authority is 105 days. But, in view of the peculiar facts and circumstances of this case, the petitioner has has been running from pillar to post and his application earlier was allowed as per Ext.P1 on 11-06-2017 and any further delay would be rather unjust and unfair to say the least and therefore this Court is constrained to stipulate the time limit of two months as aforesatated.
With these observations and directions, the above Writ Petition (Civil) will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE KAS W.P(C). No. 6149 of 2020 11 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ENVIRONMENTAL
CLEARANCE ISSUED TO THE PETITIONER BY
THE 1ST RESPONDENT DATED 11.6.2017
EXHIBIT P2 TRUE COPY OF THE NOTIFICATION OF THE
MINISTRY OF ENVIRONMENT FOREST AND
CLIMATE CHANGE DATED 15.1.2016
EXHIBIT P3 TRUE COPY OF THE CLARIFICATION ISSUED
BY THE MINISTRY OF ENVIRONMENT FOREST
AND CLIMATE CHANGE DATED 15.3.2016
EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WPC NO 18383/2018
DATED 19.6.2018
EXHIBIT P5 TRUE COPY OF THE ORDER OF THE NATIONAL
GREEN TRIBUNAL PRINCIPAL BENCH, NEW
DELHI IN EA NO 55/2018 IN OA NO
520/2016 DATED 11.12.2018
RESPONDENT'S/S EXHIBITS: NIL