Kerala High Court
N.P. Padmanabhan vs State Of Kerala on 4 October, 2019
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 04TH DAY OF OCTOBER 2019 / 12TH ASWINA, 1941
WP(C).No.32652 OF 2018(F)
PETITIONER/S:
N.P. PADMANABHAN
AGED 69 YEARS
S/O KELAPPAN, MANAGING PARTNER, M/S KAIRALI
GRANITES, RESIDING AT VALAKKAYATHIL HOUSE,
KAVILUMPARA, KOZHIKODE DISTRICT, PIN-673513
BY ADVS.
SRI.SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.JENNIS STEPHEN
SRI.VIJAY V. PAUL
SRI.ANIL SEBASTIAN PULICKEL
SMT.DIVYA SARA GEORGE
SMT.JAISY ELZA JOE
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001
2 SECRETARY TO GOVERNMENT
DEPARTMENT OF INDUSTRIES, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3 DIRECTOR OF MINING AND GEOLOGY
DIRECTORATE OF MINING AND GEOLOGY,
KESAVADASAPURAM, PATTOM PALACE P.O.,
THIRUVANANTHAPURAM - 695 004.
4 GEOLOGIST
MINING AND GEOLOGY DEPARTMENT, CIVIL STATION,
KOZHIKODE, PIN - 673 020
W.P.(C) No.32652 of 2018
2
5 DISTRICT ENVIRONMENT IMPACT ASSESSMENT
AUTHORITY (DEIAA), KOZHIKODE, REPRESENTED BY
ITS MEMBER SECRETARY, THE REVENUE DIVISIONAL
OFFICER, RDO OFFICE, KOZHIKODE, PIN - 673 001.
6 DISTRICT LEVEL EXPERT APPRAISAL COMMITTEE
(DEAC), KOZHIKODE DISTRICT, PIN - 673 020,
REPRESENTED BY ITS MEMBER SECRETARY, THE
GEOLOGIST, MINI CIVIL STATION, KOZHIKODE - 673
020.
7 UNION OF INDIA
MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE
CHANGE, PARIYAVARAN BHAVAN, CGO COMPLEX, LODHI
ROAD, NEW DELHI - 110 003.
8 ADDL.R8 STATE ENVIRONMENT IMPACT ASSESSMENT
AUTHORITY
KERALA, K.S.R.T.C BUS TERMINAL COMPLEX, 4TH
FLOOR, THAMPANOOR, THIRUVANANTHAPURAM-695001,
REPRESENTED BY ITS MEMBER SECRETARY. (ADDL.R8
IS IMPLEADED AS PER ORDER DATED 06/02/2019 IN
IA.NO.01/2019)
R7 BY ADV. SRI.P.VIJAYAKUMAR
R8 BY ADV. SRI.M.P.SREEKRISHNAN
OTHER PRESENT:
G.P. SRI. B. JAYASURYA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29-07-2019, THE COURT ON 04-10-2019 DELIVERED THE
FOLLOWING:
W.P.(C) No.32652 of 2018
3
JUDGMENT
The petitioner had submitted an application before the 5th respondent; the District Environment Impact Assessment Authority (DEIAA), for the purpose of establishing a quarry over an extent of 2.3200 Hectares in Kayakodi Village, Vatakara Taluk of Kozhikode District. The application submitted on 30.5.2018, was forwarded to the 6th respondent; the District Level Expert Appraisal Committee (DEAC), on 28.6.2018 and accepted by the DEAC on 4.7.2018. The DEAC, after screening, scoping and public consultation, recommended for issuance of Environmental Clearance (EC) as per its decision No.20-09 dated 7.9.2018. In spite of the recommendation, the EC was not issued. The petitioner submitted Ext.P7 representation pointing out that as per the extant Environment Impact Assessment (EIA) Notification, if an application for EC is not considered and disposed of within 105 days of its W.P.(C) No.32652 of 2018 4 submission, the applicant/project proponent becomes entitled for a deemed environmental clearance. The representation having failed to evoke a response, this writ petition is filed seeking the following reliefs:-
"i. Issue any appropriate writ, order or direction, declaring that petitioner enjoys the deemed EC of the respondents 5 and 6, based upon the application submitted on 30.5.2018, which was duly recommended by the 6th respondent.
ii. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents 5 and 6 to issue the paper/physical form of EC, in lieu of the deemed EC enjoyed by the petitioner;
iii. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 5th and 6th respondents to consider and dispose of Ext.P7 representation, forthwith."
2. In support of the contention that the petitioner became entitled for deemed licence on expiry of 105 days from the date of submission of the W.P.(C) No.32652 of 2018 5 application, reliance is placed on Ext.P2; the time line details pertaining to the petitioner's application, as well as Clause 8 of Ext.P4 notification dated 14.9.2006 issued by the Ministry of Environment and Forests. The learned counsel for the petitioner fairly submitted that after filing of the writ petition, the functioning of DEAC on the basis of Ext.P3 notification was interdicted by the National Green Tribunal (NGT). It is submitted that, as far as the petitioner is concerned, the deemed EC had come into effect prior to such interdiction by the NGT and therefore, irrespective of the intervening circumstance, the petitioner is entitled for the reliefs sought in the writ petition.
3. In order to consider the issue as to whether the petitioner is entitled for a deemed EC, in spite of orders passed by the NGT, the relevant notifications issued by the Government of India and the orders passed by the NGT are to be looked into.
4. The Ministry of Environment and Forests had W.P.(C) No.32652 of 2018 6 issued Ext.P4 notification dated 14.9.2006 making it mandatory to obtain prior EC from the Central Government or as the case may be from the State Level Environment Impact Assessment Authority duly constituted by the Central Government under sub- section (3) of Section 3 of the Environment Protection Act, for the construction of new projects or activities or the expansion or modernisation of existing projects or activities listed in the Schedule to the notification, to be undertaken in any part of India. Prior EC from the Central Government in the Ministry of Environment and Forests was mandatory for matters falling under category 'A' in the Schedule to the notification and clearance at the State Level from the State Level Environment Impact Assessment Authority (SEIAA) for matters falling under category 'B'. The SEIAA should base its decision on the recommendation of the State Environment Appraisal Committee (SEAC). Clause 7 of the Ext.P4 notification envisages four stages in the EC process for new W.P.(C) No.32652 of 2018 7 projects, namely;
Stage (1): Screening (only for category 'B' projects and activities) Stage (2): Scoping Stage (3): Public consultation Stage (4): Appraisal.
5. After completing the process as above, the Expert Appraisal Committee or State Level Appraisal Committee, as the case may be, shall make its recommendation to the regulatory authority. As per Clause 8 (i) of the notification, the regulatory authority shall consider the recommendations of the EAC or SEAC concerned and convey its decision to the applicant within 45 days of receipt of its recommendations or in other words, within 105 days of receipt of the final Environment Impact Assessment Report, and where Environment Impact Assessment is not required, within 105 days of the receipt of the complete application with requisite documents. Clause 8 (ii) stipulates that, in the event of the decision of the regulatory authority not being communicated to the applicant within the specified period of 105 days W.P.(C) No.32652 of 2018 8 from the date of submission of application, the applicant may proceed as if the EC sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the SEAC. Ext.P3 notification dated 15.1.2016 was issued in purported compliance of the directions issued by the Honourable Supreme Court in Deepak Kumar v. State of Haryana and others [(2012) 4 SCC 629]. Under Ext.P3, the 5th respondent DEIAA and the 6th respondent DEAC were constituted for matters falling under Category 'B-2' viz; for mining of minor minerals included in the Schedule to that notification. The instant writ petition pertains to minor minerals falling under Category 'B2'.
6. Before the NGT, Ext.P3 and subsequent notifications by which Ext.P4 notification was amended, were challenged in O.A.No.186/2016 and connected cases (Satendra Pandey v. Ministry of Environment, Forest and Climate Change and another), on the ground that the procedure for obtaining EC in W.P.(C) No.32652 of 2018 9 respect of mining of minor minerals for areas from 0 to 25 Ha within 'B-2' category projects and exemption granted to such category from Public Consultation, Environment Impact Assessment and the Environment Management Plan, is in contravention of the judgment of the Honourable Supreme Court in Deepak Kumar's case. Ext.P3 and subsequent notifications were challenged also on the ground that the 'B' category, as it stood originally, was broken to B-1 and B-2 categories by bringing areas of mining of minerals from 25 Ha to 50 Acres in B-1 category and 0 to 25 Ha in B-2 category. For B-2 category, the DEIAA was conferred with the authority for grant of EC. The DEIAA was to base its decision on the recommendations of the DEAC.
7. The NGT upheld the challenge finding the introduction of such procedure to be inconsistent with the directions contained in Deepak Kumar's case. It was found that by the provision, mining areas from 5 Ha to 25 Ha, are completely exempted from EIA and W.P.(C) No.32652 of 2018 10 Public Consultation and that for areas of 5 Ha and below, apart from the exemption, the clearance was made only subject to a separate procedure of preparing a District Survey Report. It was therefore held that these provisions are quite apparently more mine- centric than intended to strive a balance between mining and environment, especially with regard to Form-1 M which needs to be made more elaborate incorporating environment related aspects. It was further held that dispensing with the requirement of Public Hearing which forms a part of the Public Consultation under stage-III of the Environmental Clearance Process under EIA Notification, 2006 (Ext.P4) for areas measuring 0 to 25 Ha for individual mine areas and in cluster situation where public hearing has been provided, has resulted in gross dilution of EIA Notification dated 14.9.2006. The NGT found that stringent measures are, therefore, necessary to curb the rampant exploitation of minor minerals. Based on these findings, the NGT directed W.P.(C) No.32652 of 2018 11 the procedure laid down in the impugned Notification to be brought in consonance and in accord with the directions contained in Deepak Kumar's case, by (i) providing for EIA, EMP and thereby, Public Consultation for all areas from 5 to 25 Ha falling under Category B-2 at par with category B-1 by SEAC/SIEAA as well as for cluster situation wherever it is not provided; (ii) Form -1M to be made more comprehensive for areas of 0 to 5 Ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA; (iii) EIA/EMP be made applicable in the process of grant of prior EC to a cluster or an individual lease size exceeding 5 Ha;
(iv) EIAA and/or EMP to be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendation 6, 7 and 8 thereof; (v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and time frame for replenishment after W.P.(C) No.32652 of 2018 12 mining closure in an area (vi) the MoEF& CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining. The MoEF & CC was directed to take appropriate steps to revise the procedure laid down in the impugned notification dated 15.1.2016 (Ext.P3) in terms of the directions and observations in the order, so that it is in conformity with the letter and spirit of the directions in Deepak Kumar.
8. The NGT passed the aforementioned order on 13.9.2018. The SEIAA was of the opinion that, in spite of the order dated 13.9.2018, the NGT not having stayed the operation of Ext.P3 notification, there was no legal impediment in following the procedure laid down by Ext.P3 notification till a new notification in terms of the order of the NGT is issued by the MoEF& CC. This opinion of the SEIAA when brought to the notice of the NGT, a further order dated 11.12.2018 W.P.(C) No.32652 of 2018 13 was issued finding the opinion of the SEIAA that Ext.P3 notification could still be acted upon, is clearly illegal and that the direction in that regard contained in Ext.P8 will stand suspended till a fresh notification is issued by MoEF&CC.
9. On the facts of this case, it is not in dispute that, calculated from the date of submission of application by the petitioner (30.5.2018), the 105th day on which day the petitioner would become entitled for deemed environment clearance was 13.9.2018. Incidently, the order by which the NGT found Ext.P3 notification to be bad and directed the procedure therein to be brought in consonance and in accord with the directions passed in Deepak Kumar's case was also issued on 13.9.2018. Therefore, with effect from 13.9.2018, the procedure prescribed in Ext.P3 notification was not in vogue as far as the functioning and recommendations of the DEIAA is concerned. The NGT found the DEIAA to be comprising of officers having no expertise or scientific W.P.(C) No.32652 of 2018 14 knowledge to assess environmental implications. Hence, the contention that the petitioner became entitled for deemed EC on 13.9.2018 based on the recommendation of the DEIAA, cannot be accepted. In this regard, it may be apposite to refer the decision in Harish Tandon v. Addl.District Magistrate, Allahabad, U.P and others [(1995) 1 SCC 537], wherein the Apex Court dilated on the role of a deeming provision in the following words:-
"The role of a provision in a statute
creating legal fiction is by now well settled.
When a statute creates legal fiction saying
that something shall be deemed to have been done, which in fact and truth has not been done, the Court has to examine and ascertain as to for what purpose and between what persons such a statutory fiction is to be resorted to. Thereafter, full effect has to be given to such statutory fiction and it has to be carried to its logical conclusion."
On a consideration of the purpose for which and the parties between whom the statutory fiction of a deemed W.P.(C) No.32652 of 2018 15 EC is created under Ext.P4 notification, it has to be held that the recommendatory authority itself having found to be lacking in expertise and directions having been issued to effect procedural changes, the fact that the regulatory authority did not issue the EC based on such a recommendatory authority would not inure the petitioner to claim that he became entitled for deemed EC. Hence, the petitioner is not entitled for the declaration and consequential direction sought in the writ petition.
In the result, the writ petition is dismissed, making it clear that the petitioner would be at liberty to work out his remedies in accordance with the procedure prescribed in the notification issued in terms of the order of the NGT dated 13.9.2018 passed in Satendra Pandey. No order as to costs.
Sd/-
04.10.19 V.G.ARUN JUDGE Scl/ W.P.(C) No.32652 of 2018 16 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 20TH MEETING OF THE 6TH RESPONDENT HELD ON 07.09.2018, PERTAINING TO THE APPLICATION SUBMITTED BY THE PETITION FOR EC.
EXHIBIT P2 TRUE COPY OF THE TIME LINE DETAILS OF THE APPLICATION FOR EC SUBMITTED BY THE PETITIONER, PUBLISHED BY THE 6TH RESPONDENT IN ITS WEBSITE.
EXHIBIT P3 TRUE COPY OF THE NOTIFICATION DATED 15.1.2016 PUBLISHED BY THE 7TH RESPONDENT, AS PER S.O. 141(E).
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF EIA NOTIFICATION 2006 DATED 14.09.2006 PUBLISHED BY THE 7TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 16.01.2015 ISSUED BY MR. P.Z. THOMAS, THE MANAGING DIRECTOR OF M/S. ENVIRONMENTAL ENGINEERS AND CONSULTANTS PVT. LTD. TO MR. VEERANKUTTY.
EXHIBIT P6 TRUE COPY OF THE PROPOSAL FOR TECHNICAL ASSISTANCE FOR OBTAINING EC FROM THE STATE EXPERT APPRAISAL COMMITTEE OR STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, KERALA, ENCLOSED ALONG WITH EXT. P5.
EXHIBIT P7 TRUE TYPED COPY OF THE REPRESENTATION DATED 27.09.2018 SUBMITTED BY THE PETITIONER BEFORE THE 5TH AND 6TH RESPONDENTS.
W.P.(C) No.32652 of 201817 EXHIBIT P8 TRUE TYPED COPY OF THE PROCEEDING BEARING FILE NO.1802/A1/2018/SEIAA DATED 29/10/2018 OF THE MEMBER SECRETARY, STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, KERALA.
EXHIBIT P9 TRUE TYPED COPY OF THE REPRESENTATION DATED 22.12.2018 SUBMITTED BY THE PETITIONER BEFORE THE ADDITIONAL 8TH RESPONDENT.
W.P.(C) No.32652 of 201818