Kerala High Court
K.P.Hassan vs The Geologist on 19 November, 2021
Author: Anu Sivaraman
Bench: Anu Sivaraman
W.P.(C).No.7593/21
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
WP(C) NO. 7593 OF 2021
PETITIONER:
K.P.HASSAN
AGED 63 YEARS
S/O.ALAVI MUSLIYAR, KALATHUPADIKKALL HOUSE,
CHALAVARA P.O., PALAKKAD DISTRICT-679505.
BY ADVS.
U.K.DEVIDAS
SMT.M.L.REMYA
RESPONDENTS:
1 THE GEOLOGIST
DISTRICT OFFICE, MINING AND GEOLOGY DEPARTMENT,
TOWN BUS STAND COMPLEX, PALAKKAD DISTRICT-678001.
2 THE DIRECTOR,
MINING AND GEOLOGY DEPARTMENT, KESAVADASAPURAM,
PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.
3 THE SECRETARY,
DEPARTMENT OF INDUSTRY, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.7593/21
2
ANU SIVARAMAN, J.
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W.P.(c).No.7593 of 2021
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Dated this the 19th day of November, 2021
JUDGMENT
This writ petition is filed seeking direction to the respondents to take steps for consideration of the application dated 23.09.2015 preferred by the petitioner for quarrying lease and Ext.P10 representation, without reference to the distance conditions specified in the order dated 21.07.2020 of the National Green Tribunal, Principal Bench, New Delhi in O.A.No.304/2019.
2.The learned counsel for the petitioner submits that the petitioner had secured Letter of Intent and had also procured all the licences/consents and clearances as required in law. It is submitted that going by the mandate of Rule 33(2) of the KMMC Rules, 2015 the respondents are duty bound to execute quarrying lease once the applicant obtains all required consents.
3. It is submitted that the National Green Tribunal Principal Bench, New Delhi had passed an order directing that a distance of 200ms is to be maintained between quarries and nearby W.P.(C).No.7593/21 3 residences/inhabited areas. The said order was challenged before this Court in W.P.(C).No. 15305 of 2020 and connected cases and interim directions had been issued stating that where a quarrying lease permit is issued under the provisions of the Kerala Minor Mineral Concession Rules, 2015 which is valid and current as on 21.07.2020, that is the date of the National Green Tribunal's order, which do not fulfill the new distance norms, status quo shall be maintained. However, with regard to pending applications and renewal applications including application for Environmental Clearance, PCB consent, Explosive licence, Local Body licence etc., such applications need not be rejected solely on the ground of non fulfillment of the new distance norms. However, it was made clear that in case of the applications for fresh grant of the quarrying permits/quarrying leases or applications for renewal of quarrying permits/leases, which do not fulfil the above said impugned distance criteria stipulated in the order of the tribunal, such requests need not be granted for the time being.
4. The writ petitions were finally heard and allowed by judgment dated 21.12.2020. The order of the NGT was set aside and the NGT was directed to dispose of the representations of W.P.(C).No.7593/21 4 respondents 3 to 115 afresh after notice, by way of publication, to those who are affected by the prescription of the stringent distance criteria for permission for quarrying. The said judgment is reported in State of Kerala v. Central Pollution Control Board [2021 (1) KLT 1]. From the said judgment, an appeal had been preferred and the directions of the learned Single Judge had been upheld by a Division Bench of this Court. The learned counsel for the petitioner submits that thereafter, SLPs have been filed before the Apex Court and Civil Appeals had been disposed of by proceedings dated 25.10.2021. The said judgment is reported as Municipal Corporation of Gr. Mumbai v. Ankita Sinha [2021 (6) KLT 133]. The Apex Court held that there is power in the National Green Tribunal to take up matters suo motu and pass orders as well. It was further held as under:-
"In light of the issue answered by this Court in Civil Appeal Nos.12122- 12123 of 2018 and connected cases titled as "Municipal Corporation of Gr.Mumbai Vs. Ankita Sinha & Ors." reported in 2021 (12) SCALE 184, it would be appropriate to permit the appellant(s) to raise all contentions/objections as may be available and permissible in law before the National Green Tribunal (In short "the Tribunal") in the first place. The Tribunal may consider those contentions/objections W.P.(C).No.7593/21 5 and record reasons for accepting or rejecting the same, so that the appellant(s), if dis-satisfied, may have further remedy of appeal(s) before this Court.
In other words, all contentions raised in the present appeal(s) on these aspects, including on merits are left open, to be considered by the Tribunal afresh.
We say so because the judgment rendered by this Court predicates that even if the Tribunal intends to initiate suo motu action, must give opportunity to the parties likely to be affected before passing any adverse order against them. Viewed thus, the ex-parte preemptory order(s) passed by the Tribunal without giving opportunity to the person(s) likely to be affected by such order(s), be treated as effaced from the record.
Keeping that principle in mind, we deem it appropriate to relegate the appellant(s) before the Tribunal with liberty to raise all contentions as may be permissible in law, to be decided by the Tribunal afresh on its own merits.
Notably, the decision of the High Court assailed in these appeal(s) also gives that liberty to the appellant(s). However, we expressly grant such liberty to the appellant(s), as aforesaid, in terms of this order."
Having considered the contentions advanced, I notice that the petitioner's application had not been considered relying on the W.P.(C).No.7593/21 6 interim order of this Court dated 6.8.2020. However, with the above mentioned directions of the Apex Court, I notice that the interim order as well as the directions in the judgment of the learned single Judge and the Division Bench in W.A.No.286/2021 stand merged with the findings and directions of the Apex Court in Municipal Corporation of Gr. Mumbai (supra). In view of the fact that the Apex Court has clearly held that the ex-parte peremptory orders passed by the Tribunal without giving opportunity to the persons likely to be affected are to be treated as effaced from the records, I am of the opinion that the directions contained in the orders of this Court also cannot stand in the way of a consideration of the application in accordance with law, as it exists.
This writ petition is, accordingly, disposed of directing the respondents to take further steps on the application submitted by the petitioner for quarrying lease, in accordance with law, as it exits, if the same is otherwise in order.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).No.7593/21 7 APPENDIX OF WP(C) 7593/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT DATED 27.03.2017.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR DEPARTMENT OF INDUSTRY DATED 21.08.2017.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED
20.10.2017 IN W.P.(C)NO.32819/2017 BY
THE HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED
20.12.2017 SUBMITTED BY THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 06.01.2018
PASSED BY THE THIRD RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 13.02.2018
ISSUED BY THE FIRST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE UNDERTAKING LETTER OF
THE PETITIONER DATED 02.05.2018.
EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT DATED
05.12.2018.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 18.01.2021.
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION
SUBMITTED BEFORE THE FIRST RESPONDENT
DATED 28.1.2021.
True copy
PS to Judge