Sudarshan C.K vs The State Environment Impact ... on 11 December, 2024

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Kerala High Court

Sudarshan C.K vs The State Environment Impact ... on 11 December, 2024

Since similar issues arise in these two writ petitions, they are disposed of by a common judgment. The petitioner is proposing to conduct a granite building stone quarry in an extent of 0.9307 hectares of land comprised in Survey Nos.463/5-4, 468/3-1 and 468/4-1 of Thirumarady Village in Muvattupuzha Taluk. Ext.P1 is the letter of intent dated 17.07.2018 issued in favour of the petitioner. The petitioner has obtained approval for the mining plan in respect of the area covered by Ext.P1. Ext.P3 is the survey map of the area. The petitioner has applied for Environmental Clearance to the respondents 1 & 2. Since the District Authority is no longer functioning, Environmental Clearance has to be issued by the 1st respondent.

2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 6

2. Ext.P5 is the Environmental Impact Assessment (Amendment) notification dated 01.07.2016 whereby conditions regarding cluster were made applicable. As per Ext.P5, paragraph No.6 Appendix XI was substituted as follows:

(b) in Appendix XI,-

(i) for paragraph 6, the following shall be substituted, namely:-

"(6) A cluster shall be formed when the distance between the peripheries of one lease is less than 500 metres from the periphery of other lease in homogeneous mineral area which shall be applicable to the mine leases or quarry licenses granted on and after 9th September, 2013".

3. A note is seen added which relates to the mining of minor minerals in the State of Rajasthan which is indicative of the manner in which a cluster is formed. As reason for the amendment in Ext.P5 cites the example in the State of Rajasthan where leases which had been granted several years before have been fragmented due to family 2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 7 partitions resulting in mines being located adjacent to each other leaving no spaces between two leases, making it difficult to prepare and implement environmental management plan for individual leases. The petitioner has been issued with Ext.P6 cluster certificate by the District Geologist. Ext.P6 shows that there were four other leases in the area of which the lease granted to one Smt.Bindu P.A alone was working. The other three leases were non-working mines. The lease to Smt.Bindu P.A is the one for which Environmental Clearance was granted as per Ext.P9 on 25.10.2017. The said Environmental Clearance was issued after the implementation of the cluster requirement. It can be seen from Ext.P8 that the other leases in the names of Sri.Joseph O.S, Sri.George Chumar and Sri.T.K.Joseph had expired on 25.09.2018, 11.06.2015 and 30.03.2018 respectively. It is thus evident that when Ext.P9 was issued in favour of Smt.Bindu.P.A, the leases in favour of Sri.Joseph O.S and Sri.T.K.Joseph were working leases. It can be seen from Ext.P9 that there was no insistence 2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 8 on the cluster Rule while granting the clearance to Smt.Bindu.P.A.

4. The counsel for the petitioner submitted that the conditions for treating the case of the petitioner under cluster do not exist because the area is neither contiguous to the lease granted to Smt.Bindu.P.A or to the leases which have already expired nor is it a case where it is a homogeneous mineral area. According to the petitioner, there are plantations situated in between these quarries and there is no homogeneity in the area.

5. According to the Standing Counsel for the SEIAA, the cluster will apply even if the lease has expired and there is no working mine within 500 metres, particularly since in the case of the mines which were not working there has been no implementation of the closure plan in accordance with the Environmental Clearance granted to the said persons. It is submitted that for the purpose of cluster these are to be considered as working mines. It is also submitted 2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 9 that the adverse impact that would be created by not working out the closure plan will have a bearing on the mining activity that is to be conducted in the petitioner's quarry.

6. I do not think such an aspect was in contemplation while issuing Ext.P5. Ext.P5 specifically refers to distance between peripheries of two leases. A distance between the peripheries of two or more "leases" postulates subsisting leases. As such, if at all the cluster is to be applied, it can only be between the area proposed by the petitioner and the area relating to the lease in favour of Smt.Bindu.P.A. Since the other three leases are no longer subsisting the distances between the said lease and the petitioner's area can have no relevance. Apart from that, it is also not a case where the areas are contiguous or that it is a homogeneous mineral area. So merely for the reason that the persons who were conducting mining activities had not acted according to the closure plan, there cannot be a conclusion that a cluster is formed.

2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 10

7. In the above circumstances, the finding in Exts.P11 and P12 that a cluster is formed is not justified. The writ petition is hence allowed. Exts.P11 & P12 to the extent they direct the petitioner to apply for terms of reference and EIA study by including the project in cluster category are set aside. The respondents 1 & 2 are directed to consider and dispose of the application for Environmental Clearance submitted for Ext.P1 project without insisting on the terms of reference and Environmental Impact Assessment study. W.P.(C) No.13743 of 2024

8. In this case apart from the question of cluster condition there is also an objection raised that the area in question comes within the moderate hazard zone. According to the petitioner, the area does not come within the moderate hazard zone. The cluster certificate in this case is Ext.P4 which shows that the proposed area is within 500 metres of a quarry owned by Sri.Aneesh Kumar of an extent of 0.9815 hectares. The said quarry of Sri.Aneesh Kumar is also a 2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 11 not-working quarry and it is a case where the closure plan has also been submitted subsequently. As such, going by the reasoning which is adopted in W.P.(C) No.26411 of 2024, the cluster condition does not arise.

In the above circumstances, this writ petition is allowed and Ext.P7 to the extent it directs for applying for terms of reference and EIA study by including the project in cluster category is set aside. The petitioner is permitted to submit his objection for inclusion in the moderate hazard zone before the 2nd respondent and the 2nd respondent shall take a decision after hearing the petitioner.

Sd/-

T.R.RAVI JUDGE mpm 2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 12 APPENDIX OF WP(C) 13743/2024 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER OF INTENT DATED 06/04/2022 BEARING NO. DMG/9375/2021-M4. Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE MINING PLAN IN RESPECT OF THE LAND COVERED BY EXHIBIT P-1.

Exhibit P3 TRUE COPY OF THE CERTIFICATE OF APPROVAL GIVEN TO THE EXHIBIT P-2 MINING PLAN AS PER PROCEEDINGS DATED 13/07/2023. Exhibit P4 TRUE COPY OF THE CERTIFICATE DATED 13/07/2023 BEARING NO. DOKAN/DMG- 1725/2023-M ISSUED BY THE 3RD RESPONDENT. Exhibit P5 TRUE COPY OF THE FINAL QUARRY CLOSURE PLAN OF THE QUARRY BELONGS TO SRI. K. ANEESH KUMAR.

Exhibit P6 TRUE COPY OF THE EC GIVEN TO SRI. K. ANEESH KUMAR, FOR CONDUCTING QUARRY IN THE AREA COVERED BY EXHIBIT P-5.

Exhibit P7 TRUE COPY OF THE RELEVANT PAGES OF THE DECISION AS ITEM NO. 16 IN THE 159TH MINUTES OF THE MEETING HELD ON 19TH TO 21ST FEBRUARY, 2024.

Exhibit P8 TRUE COPY OF THE RELEVANT EIA NOTIFICATION DATED 01/07/2016.

Exhibit P9 TRUE COPY OF THE RELEVANT PAGES OF THE NATURAL HAZARD ZONATION MAP OF KANNUR DISTRICT.

Exhibit P10 TRUE COPY OF THE RELEVANT PAGES OF THE DISASTER MANAGEMENT PLAN, 2016.

2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 13 Exhibit P11 TRUE COPY OF THE ORDER DATED 13/09/2018 IN OA 186/16 AND CONNECTED CASES BY THE HONOURABLE NGT PRINCIPAL BENCH NEW DELHI. Exhibit P12 TRUE COPY OF THE DISTRICT SURVEY REPORT OF THE KANNUR DISTRICT.

RESPONDENTS' ANNEXURES ANNEXURE R1(A) A TRUE COPY OF THE HAZARD ZONATION MAP SUBMITTED BY THE PETITIONER.

2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 14 APPENDIX OF WP(C) 26411/2024 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER OF INTENT DATED 17/07/2018 BEARING NO. DOE/239/E2/18 BY THE 3RD RESPONDENT TO THE PETITIONER. Exhibit P2 TRUE COPY OF THE APPROVAL LETTER DATED 14/09/2018 BEARING NO. DOE/1803/E2/2018 BY THE 3RD RESPONDENT TO THE PETITIONER. Exhibit P3 TRUE COPY OF THE SURVEY MAP IN RESPECT OF PETITIONER'S LAND.

Exhibit P4 TRUE COPY OF EIA NOTIFICATION DATED 15/01/2016 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE. Exhibit P5 TRUE COPY OF EIA (AMENDMENT) NOTIFICATION DATED 01/07/2016 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE.

Exhibit P6 TRUE COPY OF THE CLUSTER CERTIFICATE DATED 21/07/2023 BEARING NO. 97/23 ISSUED BY THE VILLAGE OFFICER, THIRUMARADY VILLAGE TO THE PETITIONER.

Exhibit P7 TRUE COPY OF THE CLUSTER CERTIFICATE DATED 24/07/2023 BEARING NO.

DOE/239/E2/18 ISSUED BY THE VILLAGE OFFICER, THIRUMARADY VILLAGE TO THE PETITIONER (ALONG WITH TYPED COPY). Exhibit P8 TRUE COPY OF THE LETTER DATED 19/08/2023 BEARING NO. DOE/239/E2/2018 ISSUED BY THE 3RD RESPONDENT (ALONG WITH TYPED COPY). Exhibit P9 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 25/10/2017 BEARING NO.

2024:KER:94094 WP(C) NOs. 13743 & 26411 OF 2024 15 997/EC3/4906/2015 ISSUED IN FAVOUR OF SMT. BINDU P.A. Exhibit P10 TRUE COPY OF THE MINING LEASE ORDER DATED 07/03/2019 BEARING NO. 852/2018- 19/10263/M3/2018/DMG GRANTED IN FAVOUR OF SMT. BINDU P.A. (ALONG WITH TYPED COPY). Exhibit P11 TRUE COPY OF THE LETTER DATED 25/08/2023 BEARING NO.

SIA/KL/MIN/137919/2020,2059/EC3/2022/SEIA A, 2059/E3/2022/SEIAA ISSUED TO THE PETITIONER BY RESPONDENTS 1 AND 2 (ALONG WITH TYPED COPY).

Exhibit P12 TRUE COPY OF THE 130TH MINUTES OF THE MEETING OF THE 1ST RESPONDENT HELD ON 05/08/2023.

Exhibit P13 TRUE COPY OF THE ORDER DATED 13/09/2018 IN OA 186/2016 BY NGT PRINCIPAL BENCH, NEW DELHI.

Exhibit P14 TRUE COPY OF THE DISTRICT SURVEY REPORT OF THE ERNAKULAM DISTRICT.

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