Kerala High Court
Ulahannan vs The Director Of Mining And Geology ... on 27 July, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA,
1944
WP(C) NO. 19710 OF 2022
PETITIONER
ULAHANNAN
AGED 52 YEARS
S/O JOSEPH, EDAPUTHUSSERIYIL VEEDU,
THALAPPUZHA, VALAT P O, WAYANAD DISTRICT-
670644
BY ADVS.
PHILIP J.VETTICKATTU
SAJITHA GEORGE
RESPONDENTS
1 THE DIRECTOR OF MINING AND GEOLOGY
DEPARTMENT,
GOVERNMENT OF KERALA, KESAVADASAPURAM, PATTOM
P.O., THIRUVANANTHAPURAM - 695001.
2 THE DISTRICT GEOLOGIST,
DISTRICT OFFICE OF THE DEPARTMENT OF MINING
AND GEOLOGY, MEENANGADI, WAYANAD - 670644
3 STANDING COMMITTEE FOR NATIONAL BOARD FOR
WILD LIFE,
MINISTRY OF ENVIRONMENT FOREST & CLIMATE
CHANGE, INDIRA PARYAVARAN BHAWAN, JORBAGH
ROAD, NEW DELHI - 110 003,
REPRESENTED BY ITS MEMBER SECRETARY.
4 THE CHIEF WILD LIFE WARDEN,
FOREST HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695014.
W.P(C) No.19710 of 2022
2
5 THE CHIEF SECRETARY,
GOVERNMENT OF KERALA,
SECRETARIAT, TRIVANDRUM - 695001.
SRI.T.P.SAJAN SPL.GP (FOREST )
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C) No.19710 of 2022
3
JUDGMENT
Dated this the 27th day of July, 2022 The petitioner, who is engaged in quarrying and mining in Valad Village in Mananthavady Taluk of Wayanad District, has filed this writ petition seeking to quash Ext.P9 and to direct the 1 st respondent to grant quarrying lease without insisting for SCNBWL Clearance.
2. The petitioner submitted application for grant of quarrying lease to the Director of Mining and Geology. The petitioner states that he was issued with Ext.P9 communication dated 22.04.2022 of the Director stating that since the consent for the Quarrying Lease is for a long term, the application for quarrying lease can be processed only upon the final disposal of W.P(C) No.11586 of 2022 filed by the petitioner. W.P(C)No.11586 of 2022 was filed by the petitioner W.P(C) No.19710 of 2022 4 aggrieved by O.M. dated 08.08.2019 which insisted clearance from NBWL. By Ext.P7 interim order, this Court stayed the operation of condition No.1 in Ext.P6.
3. The petitioner states that the petitioner's Quarry is situated more than 5 kilometers away from Kottiyoor Wildlife Sanctuary and about 7 Kilometres away from the Aralam Wild Life Sanctuary. Therefore, the proposed buffer Zones identified and demarcated will not take in the quarrying area of the petitioner. The petitioner pointed out that recently the Hon'ble Apex Court in T.N.Godavarman Thirumulpad v. Union of India [2022 (3) KLT 739 (SC)] has held that the restriction applicable to ESZ is confined to the proposed area only.
4. In view of the judgment of the Apex Court, Ext.P9 cannot stand the scrutiny of law. The 1 st respondent is compellable to grant quarrying lease to the petitioner without insisting for SCNBWL Clearance, W.P(C) No.19710 of 2022 5 contends the petitioner.
5. The Government Pleader entered appearance and resisted the writ petition. The Government Pleader pointed out that it is mandatory to take prior clearance from SCNBWL for the developmental activities/ projects which fall within 10 Kilometres from the boundary of the National Parks and Sanctuaries, where the notification is only in the draft stage or no final notification is issued. Therefore, it cannot be said that the petitioner is eligible to get the Quarrying Lease.
6. The statement filed on behalf of the 4 th respondent-Chief Wildlife Warden would also indicate that the distance of the petitioner's Quarry is 5.2 Kilometres far from Kottiyoor Wildlife Sanctuay and 9.18 Kilometres from Aralam Wildlife Sanctuary.
7. The Special Government Pleader submitted that the direction of the Apex Court given in the judgment in T.N.Godavarman Thirumulpad (supra) is W.P(C) No.19710 of 2022 6 that in the event of CEC, MOEF & CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues considers it necessary for maintaining wider or larger ESZ in respect of National Park or Wildlife Sanctuary, such body or individual shall approach the CEC. In such situation, the CEC shall be at liberty to examine the need of a wider ESZ in respect of any National Park or Wildlife Sanctuary in consultation with all the Stakeholders including the State or Union Territory concerned, MOEF & CC as also the Standing Committee of National Board of Wildlife and then approach the Apex Court with its recommendations. The Special Government Pleader further submitted that the issue is pending before this Court and any order that may be passed in this writ petition will be subject to the decision of the Division Bench.
W.P(C) No.19710 of 20227
8. I have heard the learned counsel for the petitioner and the learned Special Government Pleader representing the respondents.
9. Ext.P15 notification dated 24.08.2020 would indicate that the extent of Eco-Sensitive Zone at various directions, in respect of Kottiyoor Wildlife Sanctuary is from 0 Kilometres to 2.1 Kilometres. The petitioner's quarry is 5.2 Kilometres away.
10. Ext.P16 notification would indicate that the Buffer area in respect of Aralam Wildlife Sanctuary will be upto 3.06 Kilometres. The distance of the petitioner's quarry from Aralam Wildlife Sanctuary is stated to be 9.18 Kilometres.
11. The Hon'ble Apex Court in T.N.Godavarman Thirumulpad (supra) gave the following directions:
"44. We accordingly direct:
(a) Each protected forest, that is national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and W.P(C) No.19710 of 2022 8 prescribed in the Guidelines of 9th February 2011 shall be strictly adhered to. For Jamua Ramgarh wildlife sanctuary, it shall be 500 metres so far as subsisting activities are concerned.
(b) In the event, however, the ESZ is already prescribed as per law that goes beyond one kilometre buffer zone, the wider margin as ESZ shall prevail. If such wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular national park or wildlife sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained.
(c) The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain responsible for proper compliance of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZS forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones.
(d) Mining within the national parks and wildlife sanctuaries shall not be permitted.
(e) In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as the 9th February 2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union W.P(C) No.19710 of 2022 9 Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ.
(f) The minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned shall approach the CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, this Court shall pass appropriate order.
(g) In the event the CEC, MoEF&CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues consider necessary for maintaining a wider or larger ESZ respect any national park or wildlife sanctuary, such body or individual shall approach the CEC. In such situation the CEC shall be at liberty examine the need of wider ESZ in respect of any national park wildlife sanctuary consultation with all the stakeholders including the State or Union Territory concerned, MoEF&CC as also the Standing Committee of National Board of Wildlife and then approach this Court with its recommendations.
(h) In respect of sanctuaries or national parks for which the proposal of State or Union Territory has not been given, the 10 kilometres buffer zone as ESZ. as indicated the order passed by this Court on 4th December 2006 in the case Goa Foundation (supra) and also contained in the Guidelines of February 2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till final decision in that regard is arrived at W.P(C) No.19710 of 2022 10
(i) I.A. No. 1412 2005 and I.A.No.117831 of 2019 do not relate to the issues involved I.A. No.1000 2003. These applications may be placed before the appropriate Bench to be heard independently.
(j) For the same reason, I.A. No.1992 of 2007 shall also be dealt with independently by the appropriate Bench and no order is being passed concerning this application this stage.
(k) The application of the State Rajasthan registered as I.A. No.3880 of 2015 relates to clarification of an order passed in the case of Goa Foundation (W.P.(C) No.460 of 2004). Let this application be placed before the Bench taking up the case Goa Foundation.
(1) I.A.No.96949 of 2019 and I.A.No.65571 of 2021 are disposed of with directions that the MoEF&CC as also CEC shall proceed to take decision regard to draft proposal for ESZ made by the State of Maharashtra to the extent 03.89 kilometres and the MoEF&CC shall take final decision on that basis within period three months, said decision has not already been taken.
(m) Prayers for impleadment of the applicants I.A. Nos.
984 of 2003, 1026 of 2004, 1123 2004, 1197 2004 and 1251 of 2004 are allowed. Necessary amendments may carried out these regards.
(n) For the reasons already given, however, prayers of the applicants I.A. Nos.982 of 2003, 1027 2004, 1124 2004, 1198 of 2004, 1210 of 2004, 1250 2004 and 1512 2006 are rejected.
W.P(C) No.19710 of 202211
(o) The CEC shall quantify compensation to recovered from each of any statutory provision order Court. Specific recommendations for compensatory afforestation, reclamation, clearing overburden dumping as also compensation monetary units for degradation forest resources shall made. further recommendations concerning confiscation of earth moving equipments and other machineries lying within or periphery of the said sanctuary shall made CEC. Recommendations shall made period of four before this Court in the form an application. This Court shall consider passing appropriate going through such application. The exercise concerning such reparation, including quantifying compensation shall be undertaken giving the mining operator, State and MoEF&CC opportunity hearing.
(p) In the event there is any subsisting order of High Court any Court subordinate such High covering any the issues Court this order, this order shall prevail over any such order which may be contrary these directions.
(q) We have already observed there are certain overlapping issues involved in Writ Petition the of 2004) and Petition (C) No.435 2012). request the Hon'ble the Chief Justice India to consider having present Writ Petition i.e. Re: T.N. Godavarman Thirumulpad Union India & Ors., W.P.(C) No.460 of 2004 (Goa Foundation Union India) as also W.P. No.435 of 2012 (Goa Foundation Union India & Ors.) be heard together before the same Bench. The registry may place this order before the Hon'ble the Chief Justice of India."
12. The directions given by the Hon'ble Apex Court would show that if wider buffer zone beyond one kilometre is proposed under any statutory instrument W.P(C) No.19710 of 2022 12 for a particular National Park or Wildlife Sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained.
13. The directions at paragraph 44(h) would show that in respect of Sanctuaries or National Parks for which the proposal of a State or Union Territory has not been given, the 10 Kilometres buffer zone as ESZ, as indicated in the order passed by the Apex Court on 4th December, 2006 in the case of Goa Foundation v. Union of India [(2006 (4) KLT Online 1110 (SC)] and also contained in the Guidelines of 9 th February, 2011 shall be implemented.
14. The directions of the Apex Court contained in paragraph 44(p) would show that in the event there is any subsisting order of any High Court or any Court Subordinate to such High Court covering any of the issues dealt with by the Apex Court in the order, then W.P(C) No.19710 of 2022 13 the order of the Apex court shall prevail over any such order which are contrary to the directions.
In view of the judgment of the Hon'ble Apex Court in T.N.Godavarman Thirumulpad (supra), the writ petition is disposed of quashing Ext.P9 and directing the 1st respondent to execute Quarrying Lease in favour of the petitioner without insisting for SCNBWL Clearance, if the petitioner is otherwise eligible.
Sd/-
N. NAGARESH, JUDGE smm/02.08.2022 W.P(C) No.19710 of 2022 14 APPENDIX OF WP(C) 19710/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER OF INTENT DATED 21-03-2018 ISSUED BY THE DIRECTOR MINING & GEOLOGY DEPARTMENT.
Exhibit P2 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 31/12/2019.
Exhibit P3 TRUE COPY OF THE CONSENT TO
OPERATE DATED 04-03-2020 ISSUED BY
KERALA STATE POLLUTION CONTROL
BOARD.
Exhibit P4 TRUE COPY OF THE EXPLOSIVE LICENSE
DATED 02/08/2021.
Exhibit P5 TRUE COPY OF THE D&O LICENSE DATED
29-9-2021 ISSUED BY THE THAVINJAL
GRAMA PANCHAYAT
Exhibit P6 TRUE COPY OF THE LETTER DATED 22-
03-2022.
Exhibit P6(a) TRUE COPY OF THE CONSENT VARIATION ORDER DATED 22/03/2022 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD Exhibit P7 TRUE COPY OF THE INTERIM ORDER IN WP{O NO. 11586/2022 DATED 31/03/2022.
Exhibit P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 4-4-2022.
Exhibit P9 TRUE COPY OF COMMUNICATION, DTD 22-4-2022 Exhibit P10 TRUE COPY OF JUDGEMENT IN WPâ'¸ NO.6325/2019 DATED 28/1/2020.
Exhibit P11 TRUE COPY OF JUDGEMENT IN WPâ'¸ NO.38229/2019 DATED 28/1/2020 W.P(C) No.19710 of 2022 15 Exhibit P12 TRUE COPY OF JUDGEMENT IN WPâ'¸ NO.26054/2020 DATED 30/11/2021.
Exhibit P13 TRUE COPY OF THE INTERIM ORDER, DATED 30-5-2022, IN W.P.(C) NO.15836/2022.
Exhibit P14 TRUE COPY OF THE INTERIM ORDER, DATED 6-6-2022, IN W.P.(C) NO.
15836/2022Exhibit P15 TRUE COPY OF THE NOTIFICATION DATED 24.08.2020 ISSUED BY THE MOEF PERTAINING TO KOTTIYUR WILD LIFE SANCTUARY.
Exhibit P16 TRUE COPY OF THE NOTIFICATIONS DATED 20.07.2020 ISSUED BY THE MOEF PERTAINING TO ARALAM WILD LIFE SANCTUARY.
Exhibit P17 TRUE COY OF GOOGLE PICTURES WHICH SHOWS THAT THE PETITIONER'S QUARRY LIES FAR BEYOND THE PROPOSED BUFFER ZONE/ECO SENSITIVE ZONE FOR THE KOTTIYUR WILD LIFE SANCTUARY.
Exhibit P18 TRUE COPY OF GOOGLE PICTURES WHICH SHOWS THAT PETITIONER QUARRY LIES FAR BEYOND THE PROPOSED BUFFER ZONE/ECO SENSITIVE ZONE FOR THE ARALAM WILD LIFE SANCTUARY.