Kerala High Court
Anie Babu vs State Of Kerala on 26 December, 2012
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938
W.P.(C).No.25153 of 2015 (T)
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PETITIONER(S):-
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1. ANIE BABU, W/O.BABU, AGED 51 YEARS,
ALACKAL HOUSE, VANNATHICHIRA P.O., KAVILUMPARA,
KOZHIKODE DISTRICT, PIN - 673 513.
2. THRESSIA, W/O.JOSEPH, AGED 65 YEARS,
PONTHOTTIYIL HOUSE, VANNATHICHIRA P.O., KAVILUMPARA,
KOZHIKODE DISTRICT, PIN - 673 513.
3. SHOBHA, W/O.KUMARAN,AGED 51 YEARS,
MARUTHERI KALAYIL HOUSE, VANNATHICHIRA P.O., KAVILUMPARA,
KOZHIKODE DISTRICT, PIN - 673 513.
4. THRESSIA, W/O.PAILY, AGED 66 YEARS,
PONTHOTTIYIL HOUSE, VANNATHICHIRA P.O., KAVILUMPARA,
KOZHIKODE DISTRICT, PIN - 673 513.
BY ADVS.SMT.DAISY A.PHILIPOSE
SRI.JAI GEORGE
RESPONDENT(S):-
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
INDUSTRIES DEPARTMENT,
THIRUVANANTHAPURAM - 695 001.
2. THE DIRECTOR OF MINING AND GEOLOGY,
DIRECTORATE OF MINING AND GEOLOGY,
KESAVADASAPURAM, PATTOM PALACE P.O.,
THIRUVANANTHAPURAM - 695 004.
3. THE DISTRICT COLLECTOR, KOZHIKODE - 673 001.
4. THE GEOLOGIST, KOZHIKODE - 673 001.
W.P.(C) NO.25153 OF 2015-T - 2 -
5. THE ENVIRONMENTAL ENGINEER,
DISTRICT OFFICE OF THE KERALA STATE POLLUTION CONTROL BOARD,
3RD FLOOR, ZAMORIN'S SQUARE, LINK ROAD, KOZHIKODE - 673 002.
6. MARUTHONKARA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, KOZHIKODE - 673 001.
7. SMILE.M.ANTO, MANGALASSERY HOUSE, MARUTHONKARA P.O.
KOZHIKODE DISTRICT, PIN - 6783 513.
8. ROSLI, W.O.SMILE M.ANTO,
MANGALASSERY HOUSE, MARUTHONKARA P.O.
KOZHIKODE DISTRICT, PIN - 6783 513.
R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI.MANOJ P.KUNJACHAN.
R5 BY STANDING COUNSEL SRI.M.AJAY.
R6 BY ADV. SRI.R.PARTHASARATHY.
R7 BY ADVS. SRI.M.V.BOSE
SRI.VINOD MADHAVAN
SMT.NISHA BOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08-06-2016, ALONG WITH WPC. 13664/2016-G & WPC. 14838/2016-D,
THE COURT ON 24-06-2016 DELIVERED THE FOLLOWING:
WP(C).No.25153 of 2015 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
-----------------------
EXHIBIT-P1- TRUE COPY OF THE QUARRYING PERMIT DATED 26/12/2012 GRANTED TO
THE 8TH RESPONDENT BY THE 4TH RESPONDENT.
EXHIBIT-P2- TRUE COPY OF THE QUARRYING PERMIT DATED 05/02/2014 GRANTED TO
THE 7TH RESPONDENT BY THE 4TH RESPONDENT.
EXHIBIT-P3- TRUE COPY OF THE QUARRYING PERMIT DATED 05/11/2014 GRANTED TO
THE 7TH RESPONDENT BY THE 4TH RESPONDENT.
EXHIBIT-P4- TRUE COPY OF THE PHOTOGRAPH SHOWING THE BROKEN ROOF TOP AND
WALL OF THE HOUSES OF THE PETITIONERS.
EXHIBIT-P5- TRUE COPY OF THE COMPLAINT DATED 10/10/2013, SUBMITTED BY THE
PETITIONERS AND OTHER RESIDENTS BEFORE THE 3RD RESPONDENT.
EXHIBIT-P6- TRUE COPY OF THE COMPLAINT DATED 02/03/2015, SUBMITTED BY THE
PETITIONERS AND OTHER RESIDENTS BEFORE THE 3RD RESPONDENT.
EXHIBIT-P7- TRUE COPY OF THE LETTER NO. A1-1580/15 DATED 28/04/2015 ALONG
WITH THE NOTICE ISSUED BY THE 6TH RESPONDENT TO THE
8TH RESPONDENT.
EXHIBIT-P8- TRUE COPY OF THE G.O(MS)2/14/ENVT. DATED 21/02/2014 ISSUED BY
THE STATE ENVIRONMENT DEPARTMENT.
EXHIBIT-P9- TRUE COPY OF THE LETTER NO. D.O.Z/M/835/15 DATED 19/06/2015,
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT-P10- TRUE COPY OF THE ORDER DATED 16.04.2012 PASSED BY THE
HON'BLE SUPREME COURT IN SPECIAL LEAVE PETITION )
NO.19628-19629 OF 2009.
EXHIBIT-P11- TRUE COPY OF THE JUDGMENT DATED 30.09.2015 IN
W.P.(C) NO.10694 OF 2015.
EXHIBIT-P12- TRUE COPY OF THE ORDER DATED 9.3.2016 ISSUED BY THE
2ND RESPONDENT.
EXHIBIT-P13- TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.10390/2016
DATED 17.3.2016.
WP(C).No.25153 of 2015 (T) - 2 -
RESPONDENT(S)' EXHIBITS:-
-------------------------
EXHIBIT R7(a) TRUE COPY OF THE QUARRYING PERMIT DATED 05.11.2014,
ISSUED BY THE DEPARTMENT OF MINING AND GEOLOGY,
DISTRICT OFFICE, KOZHIKODE, GOVERNMENT OF KERALA.
EXHIBIT R7(b) TRUE COPY OF THE LICENCE DATED 19.02.2015 ISSUED BY THE
MINISTRY OF COMMERCE & INDUSTRY PETROLEUM AND EXPLOSIVES
SAFETY ORGANISATION (PESO), GOVERNMENT OF INDIA.
EXHIBIT R7(c) TRUE COPY OF THE CONSENT, DATED 12.05.2015, ISSUED BY
THE KERALA STATE POLLUTION CONTROL BOARD.
EXHIBIT R7(d) TRUE COPY OF THE LICENCE DATED 16.03.2011 TO POSSESS AND
USE EXPLOSIVES ISSUED BY THE JOINT CHIEF CONTROLLER
OF EXPLOSIVES.
EXHIBIT R7(e) TRUE COPY OF THE SHOT FIRER'S CERTIFICATE DATED 4.7.2012
ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES.
EXHIBIT R7(f) TRUE COPY OF THE BLASTERS' CERTIFICATE OF COMPETENCY
NO.3991 DATED 31.05.2002 ISSUED BY THE CHAIRMAN,
BOARD OF MINING EXAMINATION.
EXHIBIT R7(g) TRUE COPY OF THE MEDICAL FITNESS MEMORANDUM DATED
21.5.2012, ISSUED BY THE DIRECTOR OF MINES SAFETY.
EXHIBIT R7(h) TRUE COPY OF THE D&O LICENCE DATED 18.05.2015
ISSUED BY THE MARUTHOKARA GRAMA PANCHAYAT.
EXHIBIT R7(i) TRUE COPY OF THE COMMUNICATION DATED 05.11.2013,
ISSUED BY THE TAHSILDAR TO THE DISTRICT COLLECTOR.
EXHIBIT R7(j) TRUE COPY OF THE COMMUNICATION DATED 19.06.2015
ISSUED BY THE GEOLOGIST TO SMT.LIJI PONTHOTTIYIL.
EXHIBIT R7(k) TRUE COPY OF THE JUDGMENT DATED 30.08.2013 IN'
W.P.(C) NO.20433 OF 2013.
EXHIBIT R7(l) TRUE COPY OF THE SETTLEMENT ARRIVED AT BETWEEN THE
RESIDENTS IN THE LOCALITY AND 7TH RESPONDENT.
[DOCUMENTS PRODUCED ALONG WITH I.A.NO.16089 OF 2015]
EXHIBIT R7(m) TRUE COPY OF NOTIFICATION NO.G.O.(P) NO.144/2015/ID
DATED 05.10.2015.
EXHIBIT R7(n) TRUE COPY OF QUARRYING PERMIT DATED 05.01.2011, ISSUED
TO THE PETITIONER [7TH RESPONDENT].
WP(C).No.25153 of 2015 (T) - 3 -
[DOCUMENTS PRODUCED ALONG WITH COUNTER AFFIDAVIT TO I.A.NO.5895 OF 2016]
EXHIBIT R7(m) TRUE COPY OF THE ORDER, DATE 30.03.2015 PASSED BY
THE HON'BLE SUPREME COURT IN SLP.NO.30103/2015.
EXHIBIT R7(n) TRUE COPY OF THE COMMUNICATION, DATED 27.02.2016
ISSUED BY THE SENIOR GEOLOGIST, DEPARTMENT OF MINING
AND GEOLOGY DISTRICT OFFICE, KOZHIKODE.
EXHIBIT R7(o) TRUE COPY OF THE LICENCE, DTT.7.4.2016, ISSUED BY
THE MARUNTHONKARA PANCHAYAT.
EXHIBIT R7(p) TRUE COPY OF THE QUARRYING PERMIT, DATED 11.04.2016,
ISSUED BY THE GOVERNMENT OF KERALA, DEPARTMENT OF
MINING & GEOLOGY DISTRICT OFFICE, KOZHIKODE ALONG WITH
THE CHALAN FOR REMITTANCE OF ROYALTY.
Vku/- [ true copy ]
"C.R."
K. Vinod Chandran, J
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W.P.(C).Nos.25153 of 2015-T,
13664 of 2016-G & 14838 of 2016-D
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Dated this the 24th day of June, 2016
JUDGMENT
The constant struggle in today's world, between development and environment, is once more brought to focus in the instant writ petitions. Helpless citizens; neighboring residents of quarries, the existence of which is imperative for construction activities, the visible face of development; are the petitioners. They are concerned with the alarming damage caused to their property and buildings and assail the functioning of quarries as a complete nuisance to their lives and label them illegal to further buttress their case; by taking up the cause of environment protection too.
2. In all the above writ petitions there was an interim order granted, staying the operation of the quarry, by the different party respondents in the three writ petitions. The first of such orders was issued in W.P.(C) No.25153 of 2015 dated 14.09.2015, wherein a learned Single Judge noticed the Division Bench WP(C) No.25153 of 2015 & - 2 - connected cases judgment of this Court in Najeeb M.K. Vs. Shoukath Ali [2015 (3) KLT 396] and interdicted the quarry operations carried on by the party respondent on the sole ground of the respondent having no Environmental Clearance [for brevity "EC"]. The very same learned Single Judge passed interim orders in the other writ petitions also, obviously, for reason of the party-respondents therein also not being in possession of EC.
3. The respondent in W.P.(C) No.14838 of 2016 took up the matter in appeal, wherein it was argued that though G.O.(P) No.144/2015/ID dated 05.10.2015 has been struck down by a Division Bench of this Court in Nature Lovers' Forum v. State of Kerala [2016 (1) KLT 75]; the Government had undertook before the Supreme Court in Special Leave to Appeal (C) No.30103 of 2015 that they would renew all quarrying licenses. The Division Bench, noticing the contentions of both parties, left liberty to the parties to move for necessary modification of the interim order and the Writ Appeal stood dismissed. Hence, all the above writ petitions WP(C) No.25153 of 2015 & - 3 - connected cases are before this Court with the applications for modification of the interim order and on consent of parties, the writ petitions itself were heard.
4. Before looking at the facts, it has to be noticed that the bedrock of the arguments addressed by the quarry owners is the undertaking made by the Government before the Hon'ble Supreme Court. The litigation which led to such undertaking has to be first noticed. A Division Bench of this Court had considered a public interest litigation [PIL] regarding the application of the Mines and Minerals (Development and Regulation) Act, 1957 [for brevity "MMDR Act"] and the Kerala Minor Mineral Concession Rules of 1967 and of 2015 [for brevity respectively, "MMCR of 1967" and "MMCR of 2015]. The batch of writ petitions; considered by the Division Bench in All Kerala River Protection Council v. State of Kerala [2015 (2) KLT 78] inter-alia raised the question of the need for an EC to existing permits/licenses/ concessions for carrying on mining in lands having extent of less than 5 hectares. The Division WP(C) No.25153 of 2015 & - 4 - connected cases Bench, in the said batch of writ petitions, had passed an interim order restraining the State Government from issuing any fresh permits till the matter was heard; on the concession made by the learned Advocate General on behalf of the State. The interim order was passed based on the decision of the Hon'ble Supreme Court in Deepak Kumar v. State of Haryana [(2012) 4 SCC 629].
5. In Deepak Kumar the challenge was against the auction notices of the Government of Haryana proposing to auction minor minerals in areas not exceeding 4.5 hectares. The challenge inter alia was on the ground that it was an attempt to flout Environmental Impact Assessment {herein after 'EIA'} Notification of 2006, by breaking the homogeneous area into pieces of less than 5 hectares. The Court noticed that the EIA Notification of 1994 did not apply to minor minerals and it was hence the EIA Notification of 2006 was brought out including minor minerals; requiring prior EC for lease area above 5 hectares. The Ministry of Environment and Forests{for brevity MoEF} filed an affidavit that when the mining WP(C) No.25153 of 2015 & - 5 - connected cases area is homogeneous, physically proximate and on identifiable piece of land of 5 hectares or more; the EIA Notification of 2006 cannot be allowed to be circumvented by breaking such areas into smaller holdings of less than 5 hectares. The Hon'ble Supreme Court looked into the recommendations of a Core Group constituted by the MoEF and the guidelines issued by the Ministry of Mines and directed the States, Union Territories the MoEF and the Ministry of Mines to give effect to the recommendations and guidelines, within a period of 6 months. It was also directed that in the meanwhile leases of minor minerals, including their renewal, even for an area of less than 5 hectares shall be granted by the States/Union Territories only after getting EC from MoEF. This was in tune with the recommendations and guidelines of the Ministries; specifically referred to in the text of the decision.
6. The Division Bench of this Court in All Kerala River Protection Council noticed the EIA Notifications of 1994 and 2006 as also Deepak Kumar. The EIA Notifications were issued under WP(C) No.25153 of 2015 & - 6 - connected cases the Environment (Protection) Act, 1986 and the notification of 2006 specifically included minor minerals within its ambit. The Division Bench noticed that the EIA Notification of 2006 though included minor minerals, it was not applicable to lease of minor minerals which were in existence on the date of notification; ie: 14.9.2006 and also did not include mining operations carried on in less than 5 hectares. But the Hon'ble Supreme Court was found to have directed inclusion of even areas less than 5 hectares for the purpose of EC. The MoEF in tune with Deepak Kumar, brought out Office Memorandum (OM) dated 18.5.2012, making environmental clearance mandatory for grant//renewal of mining lease even for lease of areas less than 5 hectares.
7. The Division Bench held that the EIA Notification of 2006 cannot be found to be restricted; only to mining operations by a mining lease. The mandate of EC for areas less than 5 hectares; as insisted upon in the OM of 18.5.2012 was held to be applicable to any kind of mining activity including a mining permit. It was also WP(C) No.25153 of 2015 & - 7 - connected cases declared that Section 14 of MMDR Act; as amended by Act 37 of 1986 with effect from 10.02.1987, prohibited all mining operations whether under a mining lease or by any other kind of mineral concession. The argument that mining operation can only be carried out by a mining lease was however rejected, but that would not in any way militate against the mandate of EC. The Division Bench also looked at the consecutive government orders brought out by the Government of Kerala dated 23.11.2012, 11.12.2012 and G.O. (Ms)No.5/2014/ID dated 10.01.2014 to find that the permission granted to issue short-term permits, for periods not exceeding one year to existing quarries of less than 5 hectares cannot be sustained; in the teeth of the amendment to Section 14 of the MMDR Act, the EIA Notifications, the decision in Deepak Kumar, and the Office Memorandum dated 18.05.2012 brought out by MoEF.
8. Misinterpreting the Division Bench judgment, an interim order passed in one W.P.(C) No.7781 of 2015 was sought to WP(C) No.25153 of 2015 & - 8 - connected cases be modified, on the ground that the Division Bench had held that a EC is required only for new permits/licenses. It was also contended that the MMCR of 2015, by a proviso to Rule 12, exempts the requirement of an EC under Rule 9 in the case of renewal of quarrying permits having valid permit as on 09.01.2015. The modification sought for by the respondent in the said writ petition was rejected by order dated 07.07.2015. On a consideration of the decision of the Division Bench in All Kerala River Protection Council, this Court found that even for renewals of permits/licenses there is requirement for an EC, for quarries having an extent of less than 5 hectares. As to the contention that the proviso to Rule 12 of MMCR of 2015 permitted extension of permits, valid as on 09.01.2015 it would be pertinent to notice para 71 of All Kerala River Protection Council itself which reads as under:
"71. One submission which has been pressed by the learned counsel for the intervenors is that proviso has been engrafted in Rule 12 to the effect that environmental clearance required under rule 9 shall not be insisted, in the case of renewal of quarrying permits, WP(C) No.25153 of 2015 & - 9 - connected cases in respect of quarries which had a valid permit as on 9th day of January 2015. Whether the permit was valid as on 09.01.2015 is the question which has to be examined with regard to the facts of each case/each permit. We having held that after the judgment of the Apex Court in Deepak Kumar's case and the order of the Government of India, Ministry of Environment and Forest dated 18.05.2012 all mining operations required environmental clearance with regard to area less than 5 hectares for obtaining permit thereafter or renewal environmental clearance is required. We thus are of the view that the concept of valid permit as on 09.01.2015 under the proviso to Rule 12 has to be read accordingly. There being no challenge before us with regard to any of the 2015 Rules, it is not necessary for us to say anything more. Issue Nos.II and VII are answered accordingly".
9. This Court noticed that the Division Bench also referred to the interim order of the National Green Tribunal [for brevity "NGT"] dated 27.09.2013, issued to the Chief Secretaries of all the States/Union Territories directing strict adherence of the notification of the Ministry of Environment and Forests dated WP(C) No.25153 of 2015 & - 10 - connected cases 24.06.2013. The Division Bench had found that in view of the specific orders issued by the NGT, no quarrying permit could have been granted by the State, based on the Government Orders, without an EC. The existence of a quarry permit as on 09.01.2015 with a license/lease granted after the Supreme Court judgment in Deepak Kumar was held to be not a valid license as on 09.01.2015; if it was granted without an EC. An appeal was filed from the above order, which resulted in Najeeb M.K., which has led to the interim orders being passed in the instant writ petitions, wherein admittedly the quarry owners do not have an EC.
10. Subsequent to this, the decision in All Kerala River Protection Council was challenged in a Special Leave to Appeal, before the Hon'ble Supreme Court. An interim order of status quo was granted. Subsequently when the Special Leave Petition was brought up, the status quo order was affirmed by the Hon'ble Supreme Court on 07.12.2015. Following this, the State made an undertaking, which was also recorded by the Hon'ble Supreme WP(C) No.25153 of 2015 & - 11 - connected cases Court. It is based on this undertaking that the quarry owners insist that as of now there is no requirement of possessing EC to enable quarrying operations, at least in areas which are below 5 hectares. The entire argument being based on the undertaking made by the State and recorded by the Hon'ble Supreme Court, in the fitness of things the same is extracted here under:
"Status quo shall be maintained by the parties as it exists today in SLP(C) No(s).33130 of 2015 and 32072 of 2015.
At this stage, Mr.Ramesh Babu submits on instructions that the State of Kerala shall, pending further orders from this Court, renew all existing permits for a further period of one year and the status quo order shall not be interpreted to mean that the same is an impediment for such renewal. That submission is recorded".
11. The undertaking is said to be in tune with G.O.(P) No.144/2015/ID dated 05.10.2015, brought out in the meanwhile. It was claimed that there was no requirement for EC for carrying on quarry operations in areas the extent of which was less than 5 WP(C) No.25153 of 2015 & - 12 - connected cases hectares. The 7th respondent in W.P.(C) No.25153 of 2015, hence, moved for modification of the interim stay granted on the strength of Najeeb M.K.. The learned Single Judge, by interim order dated 06.11.2015, directed consideration of the request for quarrying permit made by the 7th respondent in the light of the aforesaid G.O. Of 2015. An appeal, W.A.No.2518 of 2015, was filed from the above order, by the petitioners, in which on 07.12.2015 the Division Bench noticed the decision in Nature Lovers' Forum which struck down the above Government Order of 2015. It was the amendment made by the Government Order to Rule 12 of the MMCR of 2015 that was struck down as unconstitutional. The petitioners were left remedy to point out before the Geologist or before the learned Single Judge the consequence of such decision standing against the grant of quarrying permit. The petitioners moved the learned Single Judge pointing out Nature Lovers' Forum. The party respondents still harped on the undertaking made by the Government before the Hon'ble Supreme Court.
WP(C) No.25153 of 2015 & - 13 - connected cases
12. Pausing here for a moment; the undertaking was made before the Hon'ble Supreme Court and the same recorded on 07.12.2015, the same date on which the Nature Lovers' Forum case was pronounced by a Division Bench of this Court. When W.P. (C) No.25153 of 2015 was taken up for consideration on 22.12.2015, the 7th respondent submitted before Court as to the undertaking made before the Hon'ble Supreme Court. The learned Single Judge while directing consideration of the request made for renewal of the permit held as on 09.01.2015; also directed the Government to make available the decision of the Government, if any, which led to the undertaking being made before the Hon'ble Supreme Court. When the matter came up again on 15.02.2016, the learned Government Pleader submitted, on instruction, that there is no such decision taken by the Government and filed a memo dated 03.02.2016, which was evasive and reads as under:
"As per the order dated 22.12.2015, this Honourable Court was pleased to direct that the decisions of the Government, if any, to be placed on record, if available. It is WP(C) No.25153 of 2015 & - 14 - connected cases submitted that the Interim Order of the Honourable Supreme Court of India based on the undertaking given by the Standing Counsel, is produced herewith for the kind perusal of this Honourable Court".
It was also submitted that the undertaking was made in the light of the amendment to the Rule; which was subsequently struck down by the Division Bench in Nature Lovers' Forum. The learned Single Judge, by order dated 15.02.2016, directed that the stand of the Government shall reflect through an affidavit. No affidavit as directed, has been placed on record.
13. In fact the stand of the Government as revealed in an affidavit dated 25.09.2015; filed by none other than the then Chief Secretary, affirmed so in para 13:
"13. Regarding the averments contained in ground No.G of the Writ Petition, it is submitted that the contention of the Environment Department is that the Hon'ble Supreme Court of India in its judgment dated 27.02.2012 in Deepak Kumar and others Vs. State of Haryana, prior environmental clearance is made mandatory for all kinds of mining projects (New and renewal cases) involving mining of minor mineral WP(C) No.25153 of 2015 & - 15 - connected cases irrespective of their area and memorandum (OM) No.L-11011/47/2011-IA-II(M) dated 18.05.2012. It is to be noted that lease/permit for mining granted without Environmental clearance after the judgment of the Hon'ble Supreme Court is blatantly illegal. The judgment pronounced by the Hon'ble National Green Tribunal (PB) in O.A.No.123 of 2014 and allied cases on 13.01.2015 also undoubtedly clarified the requirement of prior environmental clearance and all the laws/rules made by certain other states violating the Hon'ble Supreme Court judgment had been quashed. Procedure for consideration of proposals for grant of Environmental clearance under EIA notification 2006 which involve forest land or wild life habitat is clearly dealt in OM.No.J-11013/41/2006-IA-II(1) dated 02.12.2009 of Ministry of Environment & Forests. It has been held by this Hon'ble High Court in Kerala River Protection Council Vs. State of Kerala reported in 2015 (2) KLT 78 vide paragraph 70 to the effect that once the rules has framed, the judgment of the Apex Court and the interim measure ordered therein served its main purpose and the situation thereafter will be governed by the KMMCR 2015. But the position has been reversed as per the judgment in WA No.1514 of 2015. The Decision of the Environment Department to have environmental clearance for all quarries irrespective of extent or category (lease/permit/working/new) WP(C) No.25153 of 2015 & - 16 - connected cases has been legally vindicated by the judgment of the Hon'ble High Court of Kerala in W.A.No.1514/2015 requiring environmental clearance for working quarries as well. Some of the provisions of KMMCR 2015 which allowed mining without environmental clearance were also questioned in the Hon'ble High Court and the Court made it clear that the mining operations on the basis of mining permits/renewed mining permit shall be allowed to continue only if they have prior Environmental clearance".
Within a week the Government came out with G.O.(P) No.144/2015/ID dated 05.10.2015, with an explanatory note; which was found to be flawed in Nature Lovers' Forum.
14. The compelling argument; of the learned Senior Counsel and the learned Counsel appearing for the party respondents, is that the State Government having undertaken before the Hon'ble Supreme Court that all existing permits would be renewed for a further period of one year and the Hon'ble Supreme Court having recorded the same; with the rider that the status quo order passed shall not be an impediment in granting renewal of licenses, there is nothing more to be done by this Court and the WP(C) No.25153 of 2015 & - 17 - connected cases interim orders passed in the writ petitions have to be vacated on that count alone.
15. This Court is unable to countenance the above argument. In fact, the first order of status-quo was passed by the Hon'ble Supreme Court on 30.10.2015 when All Kerala River Protection Council was challenged before the Hon'ble Supreme Court and the order passed is as follows:
"Until further orders, status quo, as of today, shall be maintained by the parties from today".
It is to be specifically noticed that no interim stay of the judgment of the Division Bench was granted. The status quo was also as on 'that day'(sic), i.e., 30.10.2015; when the decision of the Division Bench in All Kerala River Protection Council; passed on 23.03.2015 held the field. Hence, no permits could have been granted or renewed whether it be in, consonance or violation of All Kerala River Protection Council; since status quo as on a date WP(C) No.25153 of 2015 & - 18 - connected cases was directed. When the matter was taken up again on 07.12.2015, the Hon'ble Supreme Court did not vary the order of status quo which was affirmed to be "as it exists today in SLP(C) Nos.33130 of 2015 and 32072 of 2015" (sic). After the said order was passed, the Standing Counsel for the State of Kerala submitted that pending further orders, the State of Kerala shall renew all existing permits for a further period of one year. This was recorded and it was specifically observed that the status quo shall not be interpreted to mean that the same is an impediment for renewal. This further fortifies the contention of the petitioners that what the Supreme Court intended is that the status quo order would stand against any renewals being permitted in violation of the Division Bench judgment in All Kerala River Protection Council. The reservation made, would only indicate that a renewal granted legally would not be affected by the status quo order. The order of status quo granted earlier would have prevented even renewal of permits/ licences/ concessions which were legally valid.
WP(C) No.25153 of 2015 & - 19 - connected cases
16. It is also to be observed at this point that All Kerala River Protection Council was decided following the decision of the Hon'ble Supreme Court in Deepak Kumar. The contention therein also was that Deepak Kumar would not stand in the way of short-term permits being granted for an extent less than 5 hectares. The Division Bench having read the decision of the Hon'ble Supreme Court, held that the same is not permissible. Then the quarry owners relied on the date "09.01.2015" in Rule 12 of MMCR 2015, to require renewal of permits; which was also held to be illegal in Najeeb M.K.. The further notification issued by the State in 2015, amending Rule 12, was set aside by the Division Bench of this Court in Nature Lovers' Forum. This Court cannot but notice that there has been a tacit attempt by the State; to grant renewal of short-term permits for quarrying operation in areas having an extent of less than five hectares; against the specific interdict of the Hon'ble Supreme Court, this Court and the MoEF. WP(C) No.25153 of 2015 & - 20 - connected cases
17. Whatever the reason be; it is this tacit approval to quarrying operations being continued, that is reflected in the consecutive government orders brought out by the Government of Kerala, dated 23.11.2012, 11.12.2012 and G.O.(Ms)No.5/2014/ID dated 10.01.2014. All these orders reflect a concern arising out of acute shortage of raw materials in the construction field. This runs contrary to the theory of sustainable development and the public trust doctrine reiterated by the Hon'ble Supreme Court, in various decisions referred to in All Kerala River Protection Council and Nature Lovers' Forum. The permission granted to issue short-term permits, for periods not exceeding one year to existing quarries of less than 5 hectares was also against the mandate in Section 14 of the MMDR Act as amended in 1986, the EIA Notification of 2006, the decision in Deepak Kumar, and the Office Memorandum dated 18.05.2012 brought out by MoEF. The cited G.Os of the State were held to be illegal in All Kerala River Protection Council. WP(C) No.25153 of 2015 & - 21 - connected cases
18. Then came Notifications dated 19.05.2015 and 05.10.2015; in quick succession, first amending the proviso to Rule 12 of MMCR of 2015 and then substituting it and Rule 13. The effect of such amendments were as follows:
Proviso to R12:
originally enacted:
"Provided that, the environmental clearance required under Rule 9 shall not be insisted, in the case of renewal of quarrying permits, in respect of quarries which had a valid permit as on 9th day of January, 2015". after 19.05.2015:
"Provided that, the environmental clearance required under Rule 9 shall not be insisted, in the case of renewal of quarrying permits, in respect of granite (building stone) quarries which had a valid permit during the financial year 2014-15".
WP(C) No.25153 of 2015 & - 22 - connected cases after 05.10.2015:
"2. Amendment of the Rules.- In the Kerala Minor Mineral Concession Rules, 2015,-
(i) In Rule 12, for the first and second proviso the following proviso shall be substituted, namely:-
Provided that the mining plan and environmental clearance required under rule 9 shall not be insisted in respect of renewal of quarrying permits of granite (building stone) quarries which had quarrying permits under the Kerala Minor Mineral Concession Rules, 1967 on or before 26th February, 2012.
(ii) For Rule 13, the following rule shall be substituted, namely:-
13. Restriction on grant of quarrying permit in the same area.-- A permit holder shall not be eligible for a permit on a particular area of contiguous land owned and possessed by him if he has availed himself of permits for quarrying in the same land for a period of 3 years in different spells from the date of publication of the Kerala Minor Mineral Concession (Second Amendment) Rules, 2015:
WP(C) No.25153 of 2015 & - 23 -
connected cases Provided that the permit holder may apply for a quarrying lease in case he desires to continue quarrying from the area for a period of more than 3 years if he is able to satisfy all the conditions laid down in the rules dealing with quarrying leases".
19. These amendments were challenged by activists, which challenge was answered in Nature Lovers Forum. The State revealed it's unerring support to the quarries; by seeking to sustain the amendments as falling within the competence of the executive Government. The directions issued by the Hon'ble Supreme Court in Deepak Kumar was argued to be an interim arrangement; till the directions, therein to frame regulations were complied with by the States and Union Territories. The State having brought out the MMCR of 2015; it was argued that the directions in Deepak Kumar can have no further effect. The OM dated 18.05.2012, having been issued in compliance of Deepak Kumar, on the same reasoning was argued as no more applicable after the Rules were framed. The OM dated 18.05.2012 was challenged as being not in compliance WP(C) No.25153 of 2015 & - 24 - connected cases with the provisions of the Rules framed under Article 77 of the Constitution of India. The OM being a circular issued by the Director, for compliance of Deepak Kumar ; cannot be preferred to the proviso to Rule 12, was the argument. The said arguments were given short shrift by the Division Bench in Nature Lovers Forum.
20. The Explanatory Note appended to the notification dated 05.10.2015 was extracted to find that the analogy drawn and the support garnered, from the declaration, in All Kerala River Protection Council; of those mining leases which were current on the date of judgment of the apex court in Deepak Kumar and the OM dated 18.05.2012, was wholly inappropriate. It was categorically held that:
"It is clear that any lease which was continuing on the date of judgment of the Apex Court on 27.02.2012 as well as Office Memorandum dated 18.05.2012, issued by the MoEF required environmental clearance at the time of renewal. Hence there is no such law laid down by the Division Bench in all Kerala River Protection Council's case or Deepak Kumar's case (supra) that in so far as permits are concerned at the time of renewal of permits WP(C) No.25153 of 2015 & - 25 - connected cases subsequent to the judgment of the Apex Court in Deepak Kumar's case (supra) and the Office Memorandum dated 18.05.2012, they do not require any environmental clearance. As noted sbove, the Apex Court in Deepak Kumar's case (supra) has emphasised about the regulatory regime for mining of minor minerals also. The Apex Court thus clearly noted that environmental clearance be insisted for mining area of less than 5 hectares and the interim direction issued on 29.02.2012 has to be read as sum total of what was laid down in the said judgment and the State cannot be heard to contend that since it has framed the 2015 Rules, it is absolved from following the ratio laid down by the Apex Court in Deepak Kumar's case (supra). We thus conclude that proviso to R.12 as inserted by Notification dated 05.10.2015 cannot be said to be in accordane with the ratio of the judgment laid down in Deepak Kumar's case (supra)" (sic: para 17 page 93).
21. The in-effectiveness of the OM dated 18.05.2012 on the ground of it being not an executive order issued under Article 77 of the Constitution; was also repelled by the Division Bench in Nature Lovers Forum. However we need not dwell on the said WP(C) No.25153 of 2015 & - 26 - connected cases argument; since as of now the prescriptions in the OM have been incorporated by the EIA notification dated 15.01.2016 of the Ministry of Environment, Forest and Climate Change (as is now the MoEF). The notifications of the Government of Kerala permitting short-term mining permits of one year, successively brought out; on the pretext of non-availability of building materials, has been consistently held to be illegal by the binding precedents noticed above. When that is so, it is incomprehensible as to how an undertaking made by the State before the Hon'ble Supreme Court could override the authoritative pronouncements made by that Court in Deepak Kumar and this Court in All Kerala River Protection Council, Najeeb.M.K. and Nature Lovers Forum.
22. Despite regurgitation by way of introspection, this Court is unable to digest the argument that the undertaking; rather a sweeping one, that all existing permits will be renewed for a further period of one year; would permit the State to do so; against the law established and laid down by this Court and the Hon'ble Supreme WP(C) No.25153 of 2015 & - 27 - connected cases Court. The first order passed by the Hon'ble Supreme Court would have interdicted any valid renewals too, since it directed status-quo to be maintained as on 30.10.2015. Any renewals, after that could not be permitted and the reservation made on the basis of the undertaking of the State, can only be deemed to be a permission to act in accordance with law and cannot be deemed to be a license to flout law; as the quarry owners would seek to interpret. The mandate for EC hence survives the attempts made by the State to circumvent the requirement insisted upon under the Environment (Protection) Act, 1986 and the Rules framed there under.
23. There is yet another argument addressed that Deepak Kumar dealt with the specific instance of breaking up of huge tracks of land to small holdings of less than 5 hectares so as to circumvent the EIA Notification of 2006 and hence without such finding; there could be no insistence of EC when the mining area is less than 5 hectares. A reconsideration of All Kerala River Protection Council is hence sought for. True the issue arose on WP(C) No.25153 of 2015 & - 28 - connected cases the occasion of such a notification, inviting tenders for mining of less than 4.5 hectares. But the directions were loud and clear directing EC to be made mandatory for even less than 5 hectares; considering the adverse impact it has on the environment, based on the recommendations of the Core Group constituted by the MoEF. It is too late in the day to raise such a ground especially since the later OM of 2012 and the present EIA Notification of 2016, both, insist for EC for less than 5 hectares.
24. On the basis of the above declaration of law, the facts of each of the writ petitions have to be examined. Before that, the plea made, by the learned Senior Counsel for reference to a Division Bench also requires consideration. The learned Counsel for the respondents/quarry owners submitted that there were many cases in which this Court, had issued directions to consider the application for permit without EC and the same has been confirmed by a Division Bench of this Court. Specific reliance is placed on the judgment in W.A.No.750 of 2016. The argument is that in that WP(C) No.25153 of 2015 & - 29 - connected cases context this Court should, if at all harbouring any doubts; refer the matter for reconsideration by a Division Bench. The above appeal was from an interim order dated 23.03.2016 in W.P.(C) No.5825 of 2016. The petitioner therein had challenged the quarrying operations carried on by the party-respondents therein. An interim order dated 16.02.2016 was modified, wherein the party respondents were allowed to conduct the quarrying operations, if they had valid quarrying permits. It was also clarified that if there is no valid quarrying permit as on 09.01.2015, the Geologist shall take steps to stop the quarrying activities forthwith. There is no reference to the requirement of an EC in the interim order of the learned Single Judge.
25. The Division Bench, while considering the appeal, refused to interfere with the order of the learned Single Judge by judgment dated 05.04.2016. The reliance is on the following observations made by the Division Bench:
"We only observe that the Geologist concerned shall verify whether the 12th respondent was having a valid quarrying WP(C) No.25153 of 2015 & - 30 - connected cases permit as on 09.01.2015 to avail of the benefit of renewal of the permit without environmental clearance and proceed with the same".
There is no grant specifically directed. The learned Counsel would also rely on the judgment passed by a learned Single Judge in a number of cases, one of which is produced before this Court. The judgment in W.P.(C) No.9779 of 2016 dated 15.03.2016; referred to the contention that the orders of the Hon'ble Supreme Court entitles renewal of quarrying permit without an EC. The learned Single Judge directed the Geologist to verify whether the petitioner had a valid permit as on 09.01.2015 and in the light of the order of the Hon'ble Supreme Court, the quarrying permit application of the petitioner was directed to be considered, subject to further orders of the Hon'ble Supreme Court. Neither was any of the decisions aforecited; of the Hon'ble Supreme Court or this Court referred to, nor was the Notification dated 15.01.2016 brought to the notice of the learned Single Judge. The learned Single Judge had merely WP(C) No.25153 of 2015 & - 31 - connected cases directed consideration; which either way, could have been challenged by the aggrieved party. Further, an undertaking made by the State cannot definitely override the law declared.
26. This Court has now examined whether the reservation made by the Hon'ble Supreme Court, sanctions grant of quarrying permits without an EC and found that it does not. In addition, it is also to be observed that the directions by the learned Single Judge and the Division Bench was only insofar as examination of the question of a valid permit. It cannot be said that a permit issued by the Geologist consequent to the directions in the judgment could not have been challenged by any aggrieved person before this Court. This Court does not find that the decisions produced; lay down any law, which binds this Court. In such circumstance, this Court is also of the opinion that there would be no reference required to a Division Bench.
27. As to the facts in each of the cases, W.P.(C) 14838 of 2016 raise a challenge against Exhibit P6 permit issued in favour WP(C) No.25153 of 2015 & - 32 - connected cases of the 8th respondent. The 8th respondent had a permit for quarrying; Exhibit P1 dated 27.02.2012, valid for one year over an extent of 13.91 acres of property comprised in Survey No.1 of Alakkode Village, Taliparamba Taluk. Subsequently, by Exhibit P2 dated 25.02.2013, a further permit was granted for one year, to quarry over an extent of 9.25 acres in the very same survey number and village. Exhibit P3 dated 16.12.2013 is yet another permit having validity for one year over an extent of 9.40 acres in Re-survey No.1 of Alakod Village. All these permits are no more valid. But, however, it has to be noticed that the 8th respondent did not have any EC when the aforesaid quarrying permits were granted.
28. The challenge in the writ petition is against Exhibit P6 dated 26.10.2015, which expires on 05.07.2016. The respondent has also produced Exhibit R8(5); which is a further permit issued; valid till 16.03.2017. The above permits are also without EC. In addition to the illegality insofar as the 8th respondent with no EC; having been granted a quarrying permit, it is also to be noticed that WP(C) No.25153 of 2015 & - 33 - connected cases the land is within the buffer zone of the Talacauvery Wildlife Sanctuary, as is seen from Exhibit P9. This is against the general conditions laid down in the Notification of 2006, which is extracted hereunder:-
"General Condition (GC):
Any project or activity specified in Category 'B" will be treated as Category A, if located in whole or in part within 10 km. from the boundary of: (i) Protected Areas notified under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas as notified by the Central Pollution Control Board from time to time,
(iii) Notified Eco-sensitive areas, (iv) inter-State boundaries and international boundaries".
Exhibit P9 not only indicates the defect of the land being within the buffer zone but also evidences the land being situated within the prohibited distance from the inter-State boundary.
29. Further it is to be noticed that the validity of the subsequent permits and the right for renewal without EC is asserted on the basis of Exhibit P1 dated 27.02.2012. Exhibits P1, P2 and P3 are quarrying permits for carrying on such operations in a property WP(C) No.25153 of 2015 & - 34 - connected cases in Re-survey No.1 of Alacode village. Exhibit P6 and R8 (5) are permits applicable to a property in survey number 1 of Udayagiri village. The permits being applicable to different villages the 8th respondent cannot claim any right for continued operations or grant of any further license, without an EC. There is also one other question that arises in the context of Rule 13 of the MMCR of 2015, as amended on 05.10.2015; which survives Nature Lovers Forum. The words 'same land' used in the rule cannot be related solely to ownership and possession and has to be interpreted as same tract of land. The mere fact that the respective lands lie in two villages or are held under different ownerships would not militate against the rigour of Rule 13. However, this Court would not speak on that ground herein, for lack of necessary facts. The requirement of EC necessarily is not on the person but for the property in which the quarrying operations are carried out. The quarrying operations carried out by the 8th respondent on the above reasoning has to be held to be illegal. The successive permits granted to the 8th WP(C) No.25153 of 2015 & - 35 - connected cases respondent are of no consequence and the grant violates the provisions of the MMDR Act and the MMCR of 2015.
30. The 9th respondent in W.P.(C) No.13664 of 2016 also claims to have a quarry permit from 2012 as evidenced by Exhibit P1, valid between 2012-2013. Exhibits P2 is the permit issued for 2014-2015 and Exhibit P6 for the period 2016-2017. The 9th respondent does not have a case that he has obtained EC and there is also no permit issued for 2013-14. The 9th respondent in the writ petition hence cannot be permitted to carry on the quarrying operations for reason of the permits issued to him going against the provisions of the MMDR Act and the MMCR of 2015.
31. In W.P. (C) No.25153 of 2015 the petitioners challenged the quarrying permits issued to the 7th and 8th respondents, produced respectively as exhibits P2, P3 and P1. The respondents have produced one other permit obtained by the 7th respondent in the year 2011 as exhibit R7 (n). The contentions are similar and the 7th and 8th respondents have not been able to refute WP(C) No.25153 of 2015 & - 36 - connected cases the allegation that they do not have EC. The permits produced as applicable from 2011 and 2012 would not enable the petitioner to carry on any quarrying operation as of now since the subsequent permits issued after 2012 were permits without EC. In the present case it is also to be noticed that there is no continuous issuance of permits and it cannot be said to be renewals as such. On the above reasoning the quarry operations carried on by the 7th and 8th respondents also are held to be illegal.
The writ petitions are allowed restraining the party respondents therein from carrying on any quarry operations on the basis of the permits produced in the respective records of the three writ petitions; which are held to be illegal, by this Court. The respective parties shall bear their costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
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