Karnataka High Court
M/S Yathin Stone Crushers vs State Of Karnataka on 13 September, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. ALOK ARADHE
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO.52207/2019 (GM-MM-S)
BETWEEN:
SRI M.S. RAGHU
S/O SRI SHIVANNA
AGED ABOUT 38 YEARS
R/AT RAGIMUDDANAHALLI
VILLAGE, CHINAKURALI HOBLI
PANDAVAPURA TALUK
MANDYA DIST - 571 455. ...PETITIONER
(BY SRI LAKAMAPURMATH CHIDANANDAYYA, ADV.)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF COMMERCE
AND INDUSTRIES, (MSME AND MINES)
VIKASA SOUDHA
BANGALORE - 560 001.
2. DIRECTOR
DEPARTMENT OF MINES AND
GEOLOGY, KHANIJA BHAVAN
RACE COURSE ROAD
BANGALORE - 560 001.
3. SENIOR GEOLOGIST (MINES)
DEPARTMENT OF MINES AND
2
GEOLOGY, VIDYANAGAR IST CROSS
MANDYA TOWN, MANDYA
DISTRICT - 571 455.
4. THE DISTRICT LEVEL ENVIRONMENT
IMPACT, ASSESSMENT AUTHORITY
REPRESENTED BY ITS CHAIRMAN
CUM DEPUTY COMMISSIONER
MANDYA DISTRICT
MANDYA DIST - 571 455.
5. STATE LEVEL ENVIRONMENT IMPACT
ASSESSMENT AUTHORITY
REPRESENTED BY ITS SECRETARY
AMBEDKAR VEEDHI, M.S.BUILDING
IIND FLOOR, BENGALURU - 560 001.
...RESPONDENTS
(BY SRI S.S. MAHENDRA, AGA FOR R-1 TO R-4;
SRI D. NAGARAJ, ADV., FOR R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTICE AT ANNEXURE-A DATED 16.10.2019
BEARING NO.DMG:SG:KGG:2019-20/2720 ISSUED BY THE
3RD RESPONDENT.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, VISHWAJITH SHETTY J., MADE THE
FOLLOWING:
ORDER
This writ petition has been filed seeking for the following reliefs:
"a) Call for record which ultimately resulted in issuing notice ANNEXURE-A dated 16.10.2019 bearing No.DMG:SG:KGG:2019-20/2720 issued by the 3rd Respondent.3
b) Issue an order, direction, writ in the nature of certiorari quashing Notice Annexure-A dated 16.10.2019 bearing No.DMG:SG:KGG:2019-
20/2720 issued by the issued by the 3rd Respondent;
c) Declare that the petitioner has got deemed Environmental Clearance by operation of rule 8(iii) of EIA Notification 2006 dated 14th September 2006 and consequently insisting to obtain the Environmental clearance once again by the petitioner is without jurisdiction and ultra vires the powers conferred on the 3rd Respondent.
OR IN THE ALTERNATE
d) Issue an order, direction, writ in the nature of Mandamus directing the 4th Respondent to forward the file/application of the petitioner to the 5th respondent for grant of Environmental clearance and consequently directing the 5th respondent to consider the applications by granting Environmental clearance to the petitioner in the light of recommendation made by the District Level Expert Appraisal Committee;
e) Issue such other relief or reliefs as this Hon'ble Court deems fit in the circumstances of the case in the interest of justice".
2. Heard the learned counsel appearing for the parties and also perused the material available on record.
3. It is the case of the petitioner that the land bearing Sy.No.1 measuring 1.20 acres situated at Baby Bettadakavalu Village, Pandavapura Taluk, Mandya District, is the Government land consisting of building stones and a Notification granting the quarry lease to the petitioner was issued in respect of the said land pursuant to the application made by him and thereafter survey and 4 demarcation was done and lease deed in QL No.616 was also executed in favour of the petitioner authorizing him to remove, extract and transport building stones from the said land for a period of 20 years with effect from 28.06.2003. The petitioner had made an application to respondent No.4 on 14.06.2017 seeking Environmental Clearance for carrying on quarrying operation in the land in question. Considering the said application, reports were called from the Assistant Commissioner and the Assistant Conservator of Forest by the District Level Expert Appraisal Committee for grant of Environmental Clearance and after receiving the reports, the District Level Expert Appraisal Committee had recommended for grant of Environmental Clearance in favour of the petitioner. Though such a recommendation was made on 01.09.2017, respondent No.4 had failed to take any decision on the application filed by the petitioner for Environmental Clearance as provided under the Notification vide Annexure-D dated 14.09.2006.
4. It is the further case of the petitioner that though he is entitled for a deemed Environmental 5 Clearance as provided under Clause 8(iii) of the aforesaid Notification, respondent No.3 had issued a notice to the petitioner calling upon him to obtain a Environmental Clearance. Under these circumstances, he has approached this Court seeking for the aforesaid releifs.
5. Learned counsel appearing for the petitioner submits that undisputedly no order has been passed or communicated to the petitioner on the application filed by him seeking Environmental Clearance before the competent authority and therefore in view of Clause 8
(iii) of the Notification vide Annexure-D, the petitioner is deemed to have been granted Environmental Clearance and therefore, there is no necessity for him to obtain a separate Environmental Clearance from respondent No.4.
6. Per contra, learned counsel appearing for respondent No.5 submits that National Green Tribunal has stayed the aforesaid Notification on 13.09.2018 and it has held that respondent No.4 has no authority to issue Environmental Clearance and it is only respondent No.5, who is the authority for issuing Environmental Clearance. He submits that now a new format is provided for filing 6 an application seeking Environmental Clearance and therefore the petitioner is required to submit a fresh application and if the same is filed, it will be considered in accordance with law.
7. The undisputed facts of the case are the petitioner has been granted a quarry lease pursuant to the Notification issued by the State Government and in compliance of the Notification dated 14.09.2016 at Annexure-D, the petitioner had made an application before respondent No.4 seeking grant of Environmental Clearance for quarry lease activities on 14.06.2017. After receiving reports from the competent authority, respondent No.4 had recommended for granting Environmental Clearance to the petitioner and the copy of meeting proceedings of respondent No.4 dated 01.09.2017 is available on record at Annexure-H. Though respondent No.4 had forwarded the recommendation to respondent No.5 for grant of Environmental Clearance on 01.09.2017 itself, respondent No.5 who is the regulatory authority has not taken any decision on the application of the petitioner.
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8. Clause 8 of the Notification vide Annexure-D provides for grant or rejection of prior Environmental Clearance. Clause 8(iii) of the said Notification reads as follows:
"8(iii) In the event that the decision of the regulatory authority is not communicated to the applicant within the period specified in sub- paragraphs (i) or (ii) above, as applicable, the applicant may proceed as if the environment clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or State level Expert Appraisal Committee concerned."
9. From a reading of the aforesaid Clause, it is very clear that in the event the regulatory authority has not communicated its decision to the applicant within the period specified in sub paragraphs (i) or (ii) of Clause 8, the applicant may proceed as if the Environmental Clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or State level Appraisal Committee concerned. In the present case, respondent No.4 which was then Appraisal Committee had recommended for grant of Environmental 8 Clearance to the petitioner and in spite of the same, respondent No.5 which is the regulatory authority had not communicated any decision to the petitioner herein within the time prescribed as provided under Clause 8(i) & (ii) of the Notification vide Annexure-D. Under the circumstances, we are of the considered view that the petitioner is entitled for a deemed Environmental Clearance and therefore the subsequent Notice Annexure-A issued by respondent No.3 is not sustainable in law.
10. The contention urged by the learned counsel for respondent No.5 that the petitioner is required to make a fresh application in view of the subsequent order passed by the National Green Tribunal is liable to be rejected for the reasons that as on the date of the order passed by the National Green Tribunal, by fiction of law, the petitioner's application seeking Environmental Clearance was deemed to have been allowed or granted. Under the circumstances, we are of the considered view that the petitioner is entitled for the reliefs sought for by him in the petition. Accordingly, the following: 9
ORDER Writ petition is allowed.
The impugned Notice vide Annexure-A
dated 16.10.2019 bearing
NO.DMG:SG:KGG:2019-20/2720 issued by
respondent No.3 is quashed and the
petitioner is declared to have been granted deemed Environmental Clearance.
Sd/-
ACTING CHIEF JUSTICE Sd/-
JUDGE NMS