National Green Tribunal
Phinto Pa vs Union Of India on 9 February, 2022
Bench: K Ramakrishnan, K. Satyagopal
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 10 of 2021 (SZ)
(Through Video Conference)
IN THE MATTER OF
1. Phinto P.A, aged 31 years,
S/o Aippu residing at Panokaran House,
Ombathungal, P.O. Mattathur, Thrissur District
Kerala- 680684
2. Rijoy K.J. aged 27 years,
S/o Joseph Kannampuzha, Ombathungal,
P.O. Mattathur, Thrissur District
Kerala- 680684
....Applicant(s)
Versus
1. Union of India,
Rep by its Secretary,
Ministry of Environment, Forests and Climate Change,
Indira Paryavaran Bhavan, Jor Bagh
New Delhi- 110 003
2. State of Kerala,
Rep by its Additional Chief Secretary,
Department of Forests and Wildlife, Secretariat,
Thiruvananthapuram, Kerala- 695001
3. Principal Chief Conservator of Forest (Head of Forest Force),
Forest Headquaters, Vazhuthacaud, Thiruvananthapuram,
Kerala- 695014
4. Director of Mining and Geology,
Directorate of Mining and Geology,
Kesavadasapuram, Pattom Palace P.O.,
Thiruvananthapuram Kerala- 695004
5. Divisional Forest Officer, Chalakkudy P.O,
Thrissur District, Kerala- 680307
6. M/s Edathadan Granites (Private) Limited
Rep by its Managing Partner, Ombathungal,
Mattathur, P.O. Thrissur District
Kerala- 680684
... Respondent(s)
For Applicant(s): Mr. Harish Vasudevan
For Respondent(s): Ms Me. Saraswathy for R1
1
Mr. E.K. Kumaresan for R2 to R5
Ms. Rema Smrithi for Mr. Abdul Azeez for
R6
Judgment Reserved on: 7th December, 2021
Judgment Pronounced on: 9th February, 2022
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Whether the Judgement is allowed to be published on the Internet - Yes/No
Whether the Judgement is to be published in the All India NGT Reporter - Yes/No
JUDGMENT
Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The grievance in this application is regarding the granting of mining lease in a land which was originally a reserve forest, which was later transferred to the Revenue Department for non-forest purposes by the Forest Department under Section 2 of the Forest (Conservation) Act, 1980 for the purpose of cultivation and patta has been granted to the local people for doing agricultural activities in Survey Nos. 1270/4, 1270/5, 1270/7, 1270/8, 1271/2, 1271/3, 1271/4, 1273/1, 1273/2 and 1272/1 of Kodassery Village in Chalakkudy Taluk, Thrissur District. But they were not doing any agricultural activity and they are carrying mining activity in that area without obtaining necessary further clearance from the forest department under Section 2 of the Forest (Conservation) Act, 1980.
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2. The 6th respondent had obtained mining lease from the authorities and also obtained environmental clearance for the purpose of conducting the mining activity suppressing the material facts. The activities will have to be treated as in violation of the Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993 and also the provisions of the Forest (Conservation) Act, 1980. The Forest Department has not granted any 'No Objection Certificate' for this purpose.
3. The applicant had relied on the decision reported in (Mahindra Holiday Resorts India Limited Vs State of Kerala and others1, and also One Earth One Life Vs MoEF & ors2 in support of his case that even though land has been assigned for particular non-forest purpose, the same can be used only for that purpose and not for any other purposes and if such activity will have to be done, they will have to obtain necessary clearances from the Forest Department under Section 2 of the Forest (Conservation) Act, 1980. Since, no action was taken by the authorities, the applicant filed the application seeking the following reliefs:
1) Restrain the 6th respondent from conducting any mining operations in Sy Nos 1270/4, 1270/5, 1270/7. 1270/8, 1271/2, 1271/3, 1271/4, 1273/1, 1273/2, 1272/1 of Kodassery village in Chalakkudy Taluk without obtaining clearance/permission under Section 2 of the Forest (Conservation) Act, 1980;
2) Declare that the Annexure A2 and A3 are inoperative till the 6th Respondent is obtaining a prior Forest Clearance as per Section, 2 of the Forest (Conservation) Act, 1980 for using forest land for mining activity.
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2019 (2) 3 KLT 978 2 2018 (4) KHC 827 3
3) Direct the Respondent No. 1 to 5 to ensure that no mining is conducted in Sy Nos. 1270/4, 1270/5, 1270/7, 1270/8, 1271/2, 1271/3, 1271/4, 1273/1, 1273/2, 1272/1 of Kodassery village in Challakkudy Taluk in violation of the provisions of the Forest (Conservation) Act.
4. This Tribunal by order dated 12.01.2021, admitted the matter and then appointed a Joint Committee consisting of (1) The District Collector, Thrissur District or a Senior Officer not below the rank of Sub Divisional Magistrate or Assistant Collector as deputed by the District Collector (2) a Senior Officer from Ministry of Environment, Forests and Climate Change (MoEF & CC) Integrated Regional Office, Bangalore (3) The Principal Chief Conservator of Forests & Head of Forest Force or a Senior Officer deputed by Principal Chief Conservator of Forests (Head of Forest Force), not below the rank of Chief Conservator of Forest (4) a senior Officer deputed by the Director of Mining and Geology (5) The Divisional Forest Officer, Challakudy, Thrissur District, Kerala (6) a Senior Officer from Kerala State Environment Impact Assessment Authority (SEIAA) to inspect the area in question and submit a factual as well as action taken report, if there is any violations found.
5. The Committee was directed to consider the following aspects (1)whether the conversion of forest land for non-forest purpose was given for a specific purpose of agriculture alone, (2)whether there was any violation committed by the project proponent, for getting the mining lease by suppressing this fact, (3) whether the authorities have considered the scope of conversion of forest land for other than the purpose for which 4 it has been granted originally under Section 2 of the Forest (Conservation) Act, 1980, (4) whether these facts have been considered by the authorities before granting environmental clearance and also before issuing the mining lease in favour of the project proponent and (5) if there is any violation found, what is the action proposed to be taken by the respective authorities against the project proponent including imposition of environmental compensation for alleged illegal acts committed.
6. The Principal Chief Conservator of Forests (Head of Forest Force), Thiruvananthapuram was designated as the nodal agency for coordination and for providing necessary logistics for this purpose.
7. 6th respondent filed reply statement contending that the application is not maintainable. The 6th respondent is conducting a granite quarry in the impugned site since 2015. They were conducting the quarrying holding valid Environmental Clearance granted by MoEF&CC on 12.03.2015. They obtained necessary consent to operate from the Kerala State Pollution Control Board and also Panchayath licenses and other clearances required from various statutory authorities under the respective statutes. They also obtained licenses from Explosive Departments, Health Department etc. All the clearances obtained by 6th respondents were produced as annexure R6-1 to R6-9.
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8. The grievance of the applicant was that Environmental Clearance was obtained by suppression of material facts by the 6th respondent and that the area being reserved forest, mining activity conducted is in violation of Section 2 of the Forest (Conservation) Act, 1980 and also Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993.
9. The Environmental Clearance was granted in the year 2015 which is an appealable order under Section 16 (h) of the National Green Tribunal Act, 2010 and the same has not been challenged by the applicant and as such he is not entitled to challenge the same by filing an application under Section 14 of the Act after the period of limitation provided for challenging Environmental Clearance as provided under National Green Tribunal Act, 2010 was over.
10. The decisions relied on by the applicant regarding the validity of the Environmental Clearance will be available to the applicant only when he challenged the Environmental Clearance by filing an appeal within the limitation period and not otherwise. Further, the applicant ought to have filed the application within six months from the cause of action first arose immediately when the applicant had come to know about the quarry being operated by the 6th respondent in the impugned land. The people were opposing establishment of quarry in that area since 2014 onwards and he had not mentioned anywhere in the application that on account of the 6 operation of the 6th respondent unit, any damage has been caused to the environment which has to be compensated or restoration has to be made so as to bring it within Section 15 of the Act. The 6th respondent had pointed out that Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993 was passed after getting prior approval from the Central Government. The lands that were previously 'Reserved Forests' were de-reserved and treated as revenue land and Patta or title deed were given in respect of the same.
11. According to the applicant, even though the land was given by virtue of pattayams, the said land remains to be forest land where no non-forest activities can be conducted for that purpose he relied on the provisions of the Travancore Forest Act, II of 1068, Travancore-Cochin Forest Act, 1951 (III of 1952) both of which were replaced by the Kerala Forest Act, 1962 and arrived at the conclusion that reserved notifications issued under the Travancore Forest Act, II of 1068, Travancore-Cochin Forest Act, 1951 (III of 1952) were invariably still in force and hence the lands assigned under the Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993 are still reserve forests which is not sustainable in law.
12. It may be mentioned here those aspects cannot be considered by this Tribunal as those Acts are not following for consideration giving jurisdiction as enumerated in the Schedule 7 of the Act. The impugned land has been assigned to the 6 th respondent's predecessor well before the Special Rules of 1993 and well before the Forest (Conservation) Act, 1980 came into force and this land was in the hands of the Revenue Department and the tax is being paid by the 6th respondent for the same.
13. The applicant is trying to challenge the Pattayam granted indirectly by filing this application to make it appear to declare this land still as a reserved forest category. The dictums relied on by the applicant in Mahindra Holiday Resorts India Ltd vs. State of Kerala and Ors. 3 was challenged before the Division Bench by way of Writ Appeal and the same is pending before the High Court of Kerala. So, the same cannot be relied on before the Tribunal. He has not come to the Tribunal with clean hands. The application was filed after seven years from the date of cause of action first arose and other grounds that have been enumerated above are not available before this Tribunal.
14. The applicant's friends filed WP (C) No. 24806 of 2019 and vide Judgement dated 06.08.2020, the same was partly allowed evidenced by annexure R6-10 and R6-11. The Petitioners in Writ Petition and the applicant in this Original Application are closely associated with one another by the simple fact that the documents produced by the 6th respondent will go to show that all these persons were present, when the Joint Committee appointed by this Tribunal inspected the area evidenced by R6-
10. 3 2019 (2) KLT 978 8
15. The 6th respondent also filed Writ Appeal No. 1145 of 2020 before the Hon'ble High Court of Kerala challenging annexure R6-11 Judgement and the order of the single Judge was stayed by the Division Bench by order dated 26.08.2020 evidenced by R6-12 and R6-13 and the Writ Appeals are still pending.
16. The issue raised in the present application and the issue raised in the Writ Petition and Writ Appeal are one and the same and the same cannot be agitated in different forums which will amount to forum shopping which cannot be entertained. The 6th respondent had filed W. P (C) No. 641 of 2020 challenging the stop memo issued by the DFO, Chalakudy, 5th respondent herein against working of the quarry without No Objection Certificate from them by order dated 06.02.2020 and the said stop memo was quashed holding that no clearance from DFO is needed to operate the said quarry. The stop memo issued by the 5th respondent and the order of the Hon'ble High Court in this regard are produced as annexure R6-14 and R6-15 respectively and that order has reached finality as no appeal has been filed by the 5th respondent.
17. The land in question was transferred by the Forest Department to the Revenue Department long ago and the Revenue Department had issued Pattas to the predecessors of the project proponent before coming into force of Forest (Conservation) Act, 1980. The quarrying operations are being carried out under the strength of a valid Environmental Clearance issued by the MoEF&CC as early as on 12.03.2015 9 and also on the basis of the valid quarrying lease was executed by remitting necessary amount. There was no prohibition in the Patta granted excluding mining operations but it was only mentioned that the right of the Government to a share in mines and quarries subjacent to the said land are reserved and are in no way affected by the grant. So, by virtue of this clause, they need only to obtain quarry lease from the concerned department and they can do quarrying only on that basis. Accordingly, they have obtained the necessary mining lease and operating the mining operations after obtaining necessary clearances in this regard.
18. In view of the pendency of cases before the Hon'ble High Court, this Tribunal is estopped from entertaining similar issue that will lead to conflict of decisions to be passed by the different authorities. So, he had raised the preliminary objection of maintainability of the application and sought leave of the Tribunal to file additional statements at the later stage and prayed for dismissal of the application.
19. 3rd respondent filed reply in the form of affidavit contending that the deponent was also member of the Joint Committee constituted by this Tribunal. In the matter of Joint Committee report filed in the above case, it was submitted that the Forest Department is neither re-tracking nor redrafting its stand in the Joint Committee report already filed before this Tribunal. The Forest Department only wishes to bring to the notice of this Tribunal the following additional facts as to the stand of the 10 Forest Department which may also be considered as part of the report.
20. Though, factually, the patta was issued in the form as per Kerala Land Assignment Rules, 1964, the subject matter land being forest land assigned for cultivation, the pattas should be treated as one issued under Arable Forest Assignment Rules 1970 not as per the Kerala Land Assignment Rules, 1964 since the land involved was forest land and 1970 rules were in existence at time of issuance of patta.
21. The State has already taken a stand in Peter Vs. Union of India4 (WP (C) No. 24806 of 2019) before the Hon'ble High Court of Kerala that the assignment of land in the present case was under the provisions of the Arable Forest Assignment Rules, 1970, which has been issued under the Kerala Government Land Assignment Act, 1960 and that reference to Rule 9(2) of the Kerala Land Assignment Rules, 1964 was an inadvertent error or the wrong use of forms by the official concerned. The said stand of the State has been accepted, approved and relied on by the Hon'ble High Court of Kerala in the Judgement dated 06.08.2020 referred to as Peter vs. Union of India5 (WP (C) No. 24806 of 2019) observing as follows:
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2020 (4) KLT 832 5 2020 (4) KLT 832 11
22. This aspect has not been mentioned in the Joint Committee report submitted. Section 3 of the Arable Forest Land Assisgnment Rules, 1970 say " Purpose for which lands may be assigned- Arable forest lands may be assigned on registry for purposes of personnel cultivation or for house sites or for both or for cultivation on cooperative basis wherever such cultivation is possible". The conditions in Form no. 6 under Arable Forest Land Rules, 1970 are as follows:
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23. Arable Forest land Assignment Rules, 1970 are made in exercise of the powers conferred by Section 7 of the Kerala Land Assignment Act, 1960. The assignment in the present case is under the Arable Forest Land Assignment Rules 1970 and there is no provision for allowing quarry activity in the subject matter land and the assignment of land is only for the use of the land by the assignee for cultivation or house site and not for any commercial activity. Since the land assigned is a forest land which is assigned for a specific purpose and the public interest is involved, it is the covenant which runs with the assigned land as held in various decisions of the Hon'ble High Court. The reserve forest land is not de-reserved through notification under Section 26 of the Kerala Forest Act, 1961. So, the land continues to have reserve forest status and the land is so recorded as the reserve forest land in the working plan approved by the Ministry of Environment, Forest and Climate Change, Government of India and in Government records.
Hence non-forest activity cannot be undertaken in the said land without obtaining Forest Clearance under Section 2 of the Forest Conservation Act, 1980.
24. In the accompanying report dated 16.08.2021 of the Chief Conservator of Forests, Central Circle, Thrissur, containing the above additional facts may be accepted as additional report of the Forest Department to the Joint Committee report submitted.
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25. The Chief Conservator of Forest, Central Circle, Thrissur also filed additional report more or less in tune with the affidavit filed by the Chief Conservator of Forest.
26. The 6th respondent filed a further counter affidavit to I.A. No. 163 of 2021contending that I.A. No. 163 of 2021 was filed by the applicant for injunction restraining the 6th respondent from carrying out the mining activity in the impugned land. They have more or less reiterated the contentions raised by them and various litigations filed in respect of the same in the counter affidavit.
27. It is also mentioned in the counter affidavit to the Interlocutory application that apart from W.A. No. 1145 of 2020 and W.A. No. 1397 of 2020, the following matters were also pending, namely, W.P. (C) No. 10754/2019, W.P.(C) No. 8913/2019, W.P. No. 480/2018, W.P. No 478/2018, W.P. No. 712/2018, W.P. No. 477/2018, W.P. No. 1434/2017, W.P. No. 713/2018, W.P. (C) No. 12389/2018, W.P. No. 714/2018, W.P. (C) No.17010/2017, W.P. (C) No. 82447/2019, W.P. (C) No. 3012/2020 and W.A. No. 663/2018. So, he prayed for dismissal of the Original Application as well as Interlocutory Application.
28. The applicant filed rejoinder to the counter affidavit filed by the 6th respondent reiterating his contentions in the original application. He had further stated that in the Environmental Clearance granted, there was a specific condition no. 3 that they will have to obtain clearance from the Forest Department 14 under Forest (Conservation) Act, 1980 and without obtaining the same, the 6th respondent is not entitled to carry out the mining activity as he is bound by the conditions imposed in its letter and spirit. He cannot now turn around and say that the same is not valid as he had relied on the Environmental Clearance for the purpose of conducting the mining activity and the violation of the Forest (Conservation) Act, 1980 will fall under the jurisdiction of National Green Tribunal as a substantial question relating to environment and Forest (Conservation) Act, 1980 is one of the Act provided under the Schedule to the National Green Tribunal Act, 2010.So, the jurisdiction of the Tribunal is not barred.
29. Further, whether the land assigned under the Land Assignment (regularisation of occupation of forest lands prior to 01.01.1977) Special Rules, 1993 falls for the purpose of implementation of the Forest (Conservation) Act, 1980 is a settled position of law by the Judgement reported in One Earth One Life vs. MoEF&CC & Ors. 6 and this Tribunal need only order for implementation of these rules.
30. The applicants are not challenging the title of the land in question but they are only challenging the activity that is being carried on by the 6th respondent against the provisions of the Forest (Conservation) Act, 1980. The question involved in the decision relied on by the 6th respondent and the questions raised in this application are different and that will not bar the applicant to file the application independently. There was no 6 2018 ($) KHC 827 15 issue raised in the Writ Petition mentioned regarding the applicability of Forest (Conservation) Act, 1980 and as such the same cannot be said to be a point raised and considered to attract principle of res judicata. Since, the applicant is not party to the proceedings and that is not being a Public Interest Litigation, the question of res judicata will also not arise. Pendency of the writ petition on different grounds is not a bar for this Tribunal to go into the question which arises for consideration as a violation of implementation of statutes provided under the Schedule attached to the National Green Tribunal Act, 2010.
31. Further, the report submitted by the Forest Department as well as by the Joint Committee will go to show that the land still holds the character of a reserved forest and as such any non-forest activity can be permitted to be carried out only after obtaining necessary clearance from the Forest Department under Section 2 of the Forest (Conservation) Act, 1980. The land will be deemed to be a forest land for the purpose of consideration of Forest (Conservation) Act, 1980 in view of the dictum laid down by the Hon'ble Apex Court in T.N. Godavarman Thirumulppad vs. Union of India and Ors. 7 So, according to the applicant none of the contentions raised by the 6th respondent in the counter affidavit deserves any merit and he prayed for allowing the application.
7 (1997) 2 SCC 267 16
32. The Joint Committee had filed the report which reads as follows:
17 18 19 20 21 22 23 24 25 26 27
33. Earlier on the question of preliminary question of maintainability, in view of the pendency of the Writ Petitions before the Hon'ble High Court of Kerala, this Tribunal had observed that in the order dated 28.06.2021 that without producing those documents, it is not possible for this Tribunal 28 to come to the conclusion that the same is a bar for the Tribunal from considering this case.
34. Heard the Counsel for the applicant, Learned Counsel for the State Department and also the 6th respondent.
35. After the case was reserved for Judgment, the applicant filed I.A. No. 211 of 2021 to receive additional documents which are only certain notifications and report of Central Team appointed by the Central Government in respect of enquiry of Munnar Forest encroachments. So under such circumstances, we felt that the same can be allowed without reopening the case to consider the same and the documents can be received subject to its admissibility, reliability and relevancy as far as the case is concerned to be considered while deciding the applicaiton. With the above observations, the documents were received and I.A. No. 211 of 2021 is disposed of.
36. The Learned Counsel for the applicant argued that since the applicant being a persons interested in protecting environment his locus standi to file the application cannot be questioned as in respect of environment when any substantial question of environment is raised by any person in respect of enforcement of the provisions of statutes enumerated in the Schedule to the National Green Tribunal Act, 2010 and non-implementation of the same, then any person is entitled to file an application.
37. The Learned Counsel also argued that the transfer of land was made from the reserve forest in favour of Revenue Department only for the purpose of carrying on cultivation and not for any 29 other purpose. Further, even if the pattas were granted either under the Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993 or under the provisions of Arable Forest Assignment Rules 1970, any forest land transferred to Revenue Department for assignment under proper orders of the Government, the original nature of the forest notified under the Forest Act will not lose its original category till it is de-reserved by notification in the process known to law. In this case, admittedly no such de-reserving has happened and as such the same will still be reserved forest and it is included in the Forest Management Plan of Chalakkudy Forest Division which is evident from the counter filed by the Forest Department as well as the observations made by the Joint Committee.
38. Further, even as per the conditions in patta, the mineral rights and also the right over of the trees were reserved in favour of the Government and as such the pattadhar cannot be said to be owners of those thing and they have no right to change the nature of the land by destroying the trees or extracting the minerals without obtaining permission from the Government as contemplated under law. In this case, once it is taken as a forest land, then the provisions of the Forest (Conservation) Act, 1980 will be applicable and without obtaining clearance under Section 2 of the said Act, no mining activity can be permitted.
39. Further, even the notification produced by the applicant will go to show that the Government had taken the decisions that 30 the lands which have been assigned for a particular purpose cannot be converted for any other purpose especially for mining purpose. Though there was a move for amendment of Kerala Minor Mineral Concession Rules, 2015 but the same has not been amended so far and as such no mining activity is permissible which was clarified by the Secretary to the Government by the documents produced by the applicant. Merely because pattas have been granted of a forest land which was assigned for cultivation and the original pattadhar has assigned the same in favour of another person and the person who has obtained the same will not have better right, then the right obtained by the original owner.
40. Further, pendency of the Writ Petition is not a bar for this Tribunal to proceed with the matter as the question involved is regarding the violation of the Forest (Conservation) Act, 1980 which is one of the Acts enumerated in the Schedule to the National Green Tribunal Act, 2010 and this Tribunal alone can consider and decide those aspects. Further the issue that has been raised in the present case is not the point for consideration or decided by the Hon'ble High Court of Kerala in the Writ Petition and as such any finding of the Hon'ble Higth Court will not operate as res judicata as far as the applicant is concerned as he was not party to the proceedings and he cannot be treated as a Judgement pronounced in a Public Interest Litigation.
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41. Further, as regards the limitation is concerned, he came to know about the violation only later and limitation will run from only that date. Further, this being a continuing violation or a recurring violation of a statutory provisions, every such violation will provide fresh cause of action and as such there is no limitation in such cases to challenge the same before this Tribunal. Further there is a prayer under Section 15 of the Act for assessment of compensation and restore the damage caused to environment and as such the period provided under Section 14 will not be applicable and they will be getting larger period of limitation under Section 15 of the Act and as such the application is well within the limitation and not barred by limitation as argued by the Learned Counsel for the 6th respondent. He had also argued that in earlier proceedings in respect of Sy. Nos. 1266/3, 1266/4, 1267/3, 1267/4 of Kodassery Village it was reserved forest was settled between the parties, when the District Forest Officer during the year 2010 issued stop memo to the owner M/s Edathadan Granites (Private) Limited CA2-6488/2010 dated 09.11.2020 and that was challenged by the company by filing Writ Petition No. 3773/2010 and obtained a stay and thereafter during the year 2019, the same was dismissed for non-prosecution and interim stay was also vacated and as such that the stop memo has become final. So, they now cannot say that it is not a forest land. The original nature of the land has not been changed even according to the 6th respondent but according to them, since 32 the assignment was made for non-forest purpose, prior to the coming into force of Forest (Conservation) Act, 1980 and as such Forest (Conservation) Act, 1980 is not applicable, is not sustainable. According the applicant the application is maintainable, within limitation and the applicant is entitled to get the reliefs claimed. He had relied on the decision reported in T.N. Godavarman Thirumulppad vs. Union of India and Ors 8, Ambica Quarry Works & Anr vs State Of Gujarat & Ors9 , One Earth One Life vs. MoEF&CC & Ors.10 in support of his case.
42. The Learned Counsel appearing for the State of Kerala representing the Forest Department submitted that in the latest decision of the Hon'ble High Court of Kerala in Peter vs. Union of India & Ors. 11 (W.P.(C) No. 24806/2019) dated 06.08.2020 the subject matter of the land is still reserved forest and as per the Arable Forest Assignment Rules 1970 and also Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993, it will not lose its original character. Further when a land has been assigned for non- forest purpose in favour of the Revenue Department, they are entitled to use the same for that purpose and they are not entitled to use the same for any other purpose other than the purpose for which it has been given. If any other non-forest activity has to be done in that land, then permission under 8 (1997) 2 SCC 267 9 1987 KHC 836, 10 2018 ($) KHC 827 11 2020 (4) KLT 832 33 Forest (Conservation) Act, 1980 is must. They have supported the findings of the Joint Committee in this regard.
43. Learned Counsel appearing for the 6th respondent vehemently opposed the application on the ground that the application is not maintainable and the application itself was filed after the disposal of the writ petition by the Single Bench and the stay granted by the Hon'ble High Court of Kerala in the Writ Appeal filed and the attempt of the applicant is nothing but forum shopping which cannot be entertained. Further, the application is absolutely barred by limitation as the quarry activity has started in the year 2015 and the applicant and other persons were aware of the same and there were lot of litigations in respect of the same in Hon'ble High Court and as such the first cause of action for applicant had arisen long ago even during 2015 itself and he cannot come to the court alleging that cause of action for them arose recently. He ought to have filed the applicant within six months from the date of cause of action first arose and also within 60 days of extendable period of limitation as provided under proviso to Section 14(3) of the National Green Tribunal Act, 2010.
44. Further, the same questions have been raised before the Hon'ble High Court of Kerala in Peter vs. Union of India and this issue has been answered in favour of the applicant in that case and certain directions have been issued against which an appeal has been preferred by the 6th respondent and in the Writ Appeal the Hon'ble High Court has granted stay after 34 discussing the matter in length and also considering the fact the legality of the decisions relied on by the Hon'ble Single Judge in the Writ Petition has been referred to a full Bench and till then the order passed by the Hon'ble Single Judge has to be stayed. So under such circumstances the question as to whether that it still remains to be reserved forest, whether the provisions of the Forest (Conservation) Act, 1980 will apply or not are matter under sub-judice under various Writ Petition filed before the Hon'ble High Court of Kerala and the Tribunal cannot in a parallel proceedings decide that issue in an application filed by the applicant during the pendency of those lititations.
45. Further the once the land has been assigned, the character of land has been changed and as such it cannot be said to be a forest land even now for the purpose of applicability of Forest (Conservation) Act, 1980 and as such there was no illegality in 6th respondent conducting quarrying operation and it cannot be said to be an illegal operation so as to make them liable for compensation as alleged in the application as they are doing the same after obtaining all permissions and clearances as required.
46. Learned Counsel also argued that the applicability of Arable Forest Assignment Rules 1970 and also Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993 etc are not coming within the purview of this Tribunal as those statutes are not included to 35 the Schedule to the National Green Tribunal Act, 2010. The Learned Counsel had relied on the decisions reported in Smt. Indira Nehru Gandhi vs. Raj Narain and ors. 12 , State of Karnataka and anr. Vs. All India Manufacturers Organisation and ors.13 , M/S. Poabs Granites Products vs. State Of Kerala14 , Joemon Joseph and ors. vs. The Commissioner of Land Revenue and ors15 and also order in M/s Edathadan Granites (Private) Limited vs. Peter and ors. dated 26.08.2020 in support of their case.
47. We have considered the pleadings, documents produced, precedents and written submissions submitted.
48. The points that arise for consideration are:
i. Whether the applicant has got locus standi to file the application?
ii. Whether the application is barred by limitation? iii. Whether the application can be proceeded with and further directions can be issued in view of the pendency of the Writ Petitions and Writ Appeals said to be on the same issue, pending before the Hon'ble High Court of Kerala? iv. What is the nature of directions, if any, to be issued, if this Tribunal found that the matter has to be continued or even otherwise?
Points Point No. i 12 1975 KHC 562: 1975(2) SCC 159 13 2006 KHC 628: 2006 (4) SCC 683 14 W.P.C. No. 18438/2013 dated 02.11.2020 15 W.P.C.NO. 15220 of 2013 dated 06.11.2014 36
49. As regards the 1st point is concerned, in the case of environmental issues it is not always necessary that only those persons who are directly affected need to file application under Section 14 and 15 of the Naitonal Green Tribunal Act, 2010 as a combined reading of the Sections will go to show that any person raising substantial question of environment in respect of non-implementation of the provisions of environmental laws enumerated in the Schedule or any damage has been caused to the environment on account of any illegal activity alleged against any particular person or industry, even though the person who is filing application had not sustained any direct injury can maintain an application for the reliefs provided under National Green Tribunal Act, 2010. So under such circumstances, we feel there is no merit in the submission made by the Learned Counsel for 6th respondent that the applicant has no locus standi to file the application and that contention is rejected and point is answered accordingly. Point No. ii
50. As regards limitation is concerned, it is alleged in the counter affidavit filed by 6th respondent that from 2015 onwards the predecessor of the 6th respondent and after his death they are continuing with the operation which is known to the applicant and others and as such he is not entitled to file an application after lapse of nearly six years as the application under Section 14 has to be filed within six months from the date of first cause of action arose. But according to the Learned Counsel for the 37 applicant, since it is a continuous violation of running an industry without obtaining clearance under the Forest (Conservation) Act, 1980 and since it is a violation of the environmental clearance condition, it is filed within limitation.
51. It may be mentioned here that cause of action first arose has to be considered on the basis of the nature of act alleged. In the case of a continuing cause of action or recurring cause of action or committing some violation of the conditions which results in damage to environment, then each violation will give rise to fresh point of limitation and as such the applicant is entitled to file an application if he came to know about the violation of any specific condition imposed in the Environmental Clearance or not following the procedure provided under the Forest (Conservation) Act, 1980 for doing certain non-forest activity within the forest area, when it comes to his knowledge.
52. The applicant alleged that he came to know about the same, when he got an information from the Forest Department under the Right to Information Act, 2005 on 23.11.2020 that 6th respondent had not obtained any permission under the Forest (Conservation) Act, 1980 for doing the mining activity evidenced by annexure 5 produced along with the application. So under such circumstances, as far as applicant is concerned, cause of action arose only when he got information regarding the violation committed by 6th respondent on 23.11.2020 and the application was filed within six months from that date. So, under such circumstances, the application is within limitation 38 and the contention of the 6th respondent that it is barred by limitation cannot be accepted and the same is rejected. So, the point is answered accordingly.
Point Nos. iii and iv
53. The grievance of the applicant was that the 6th respondent was conducting mining activity in Sy. No.1270/4, 1273/2 and 1272/1 of Kodassery Village in Chalakkudy Taluk, Thrissur District without obtaining clearance under Section 2 of the Forest (Conservation) Act, 1980. According to him, the property was originally a reserved forest notified under the Forest Act and subsequently certain lands including this land was transferred in favour of Revenue Department in the year 1968 for agricultural purpose and subsequently pattas were given in favour of the persons who were allotted with the land for cultivation purposes under Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993. Subsequently the predecessor of the 6th respondent obtained the same by assignment from those pattadhars and suppressing the fact that it is a forest land which was not de- reserved applied for mingling lease and obtained Environmental Clearance for conducting mining activities which is a non-forest activity. Even in the Environmental Clearance, it was specifically mentioned that they will have to obtain clearance under the Forest (Conservation) Act, 1980 and since it was not obtained, according to the applicant, 6th respondent had 39 committed violation and the 6th respondent is not entitled to proceed with the mining activity.
54. Further it was also alleged that it is de-reserved as known to law, the character of the land continues to be forest land and it will be covered by the provisions Forest (Conservation) Act, 1980 for doing any activity other than the forest activity and for doing any activity other than the forest activity or any other activity one permitted under the original transfer order, without obtaining permission from the Forest Department as required under Section 2 of the Forest (Conservation) Act, 1980. The person in possession cannot carry on any other activity other than the activity permitted under the assignment.
55. According to the 6th respondent the assignments were made long prior to coming into force of Forest (Conservation) Act, 1980 and as such the provisions of the Forest (Conservation) Act, 1980 will not be applicable to this land. Further, once the character of the land has been changed by way of assignment and it was divested in favour of revenue Department, it no longer retain the character of forest and as such the same cannot be treated as forest land for the purpose of applying the Forest (Conservation) Act, 1980. It is also alleged that certain writ petitions are pending before the Hon'ble High Court of Kerala in respect of same issue and in one matter the Hon'ble Single Bench of the Hon'ble High Court of Kerala had decided in an individual manner answering this in favour of the applicant in that case. Which was raised by the applicant in this case 40 also and the matter is pending before the Hon'ble Division Bench in Appeal and that order of the Single Bench was stayed by the Division Bench and it is thereafter the present application has been filed and as such there is no bonafides on the part of the applicant in filing the application and also there is no necessity for this Tribunal to consider the issue which is already pending before the Hon'ble High Court of Kerala.
56. The Learned Counsel for the applicant submitted that the matter pending before the Hon'ble High Court is entirely different and there is no necessity for this Tribunal to wait for the finding of the Hon'ble High Court in this regard as under
Section 14 of the Act, this Tribunal has got power to look into the issue which arises out of statutes provided in the schedule attached to the National Green Tribunal Act, 2010.
57. The question arises for consideration is whether it is necessary for this Tribunal to proceed in parallel in respect of the same or similar issues either directly or collaterally which is required for consideration of issue pending before the Hon'ble High Court. There is no dispute regarding the fact that if the points raised or the points under consideration before the Hon'ble High Court is different from the point raised in this case, then there will not be any bar for this Tribunal to consider and pass independent orders or directions. But when similar issue is pending before the Hon'ble High Court and when such an order has got some impact in the proceedings pending before this Tribunal as well, then it is always better in maintaining the discipline of the 41 forum not to entertain parallel proceeding in respect of similar issues pending before the Higher forum especially the constitutional court.
58. It is an admitted fact that originally these lands were reserve forest notified under the Forest Act and subsequently, during 1968, or so certain lands including these lands were transferred in favour of the Revenue Department by the Forest Department for the purpose of providing land to landless for cultivation purposes by way of an Government order. It is also an admitted fact that pattas were granted to those persons under the Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993 and those persons have assigned the same and the predecessor of the 6th respondent had obtained by such assignment from the earlier pattadhar and thereafter he had applied for mining lease and the mining lease was granted and then he applied for Environmental Clearance and obtained the same in the year 2015. It is also an admitted fact that there is a condition in the Environmental Clearance that Environmental Clearance granted is subject to obtaining clearance, if any, under the Wildlife (Protection) Act, 1972 and also to obtain Forest Clearance under the Forest (Conservation) Act, 1980, if it falls in the forest area. It is also in a way admitted that the District Forest Officer had issued a stop memo to the 6th respondent when they came to know that the mining activity is going on in that land stating that it is a forest land and without obtaining clearance/No Objection 42 Certificate from the Forest Department, no mining activity will be permissible. That was challenged before the Hon'ble High Court by the 6th respondent by filing Writ Petition. It appears from the counter filed by the 6th respondent that Writ Petition filed by the 6th respondent was allowed by the Hon'ble High Court setting aside the stop memo issued by the Forest Department which was directed to be considered by the Government.
59. If Forest Department also had an contention that it still retains the character of forest as it was not de-reserved by issuing notification and as per the Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993 the land assigned cannot be used for any purpose other than the purpose for which it has been granted.
60. It is also an admitted fact that a Writ Petition has been filed before the Hon'ble High Court of Kerala by Peter and two other persons against the 6th respondent herein as 12th respondent therein as W.P(C) No. 24806 of 2019 alleging that he is conducting mining activity against the conditions imposed in the Environmental Clearance and other permission granted and this is a forest land and as such the activities of the 6th respondent has to be stopped.
61. The 12th respondent therein, who is the 6th respondent herein raised similar contentions raised by them in this case contending that it is not forest land and the Writ Petition is not maintainable and prayed for dismissal of the application. In 43 that case as regards the challenge to Environmental Clearance is concerned, the Hon'ble High Court of Kerala has observed that there is an appeal provided against the issuance of Environmental Clearance to the National Green Tribunal under the National Green Tribunal Act, 2010. After the period of limitation is over, they cannot challenge the same indirectly by filing a Writ Petition under Article 226 of Constitution of India but on the other legal issues raised, the Hon'ble High Court found that the Writ Petition is maintainable as at least some of the reliefs sought for cannot be obviously granted by the National Green Tribunal while examining Exhibit P-3 especially when the Writ Petition is maintainable notwithstanding the availability of alternate remedy against Exhibit P-3 before the National Green Tribunal.
62. The Hon'ble High Court had framed following points for consideration in that Writ Petition:
(i) Is Ext.P3 Environmental Clearance illegal and unsustainable in law on account of suppression of material facts especially the fact that the lands in question were 'forest' lands assigned for agricultural/residential purposes after obtaining permission of the Central Government ?
(ii) Is Ext.P3 Environmental Clearance illegal and unsustainable in law on account of failure to obtain no-objection certificates required under the provisions of the Kerala Irrigation and Water Conservation Act, 2003 ?
(iii) Whether Ext.P8 order granting mining lease is liable to be cancelled on account of the fact that it was issued on the assumption that the lands in question are not lands assigned by the Government for specified purposes?
(iv) Whether directions are required to be issued regarding the following issues / allegations raised by the petitioners:-
(a) Filling up of mined areas with 'overburden' which is now stacked unscientifically at the mining site and the possibility of land slide;
(b) The apprehension of landslide due to water collection in pits formed due to mining and stacking of overbuden in an unscientific manner;
(c) The alleged destruction of public road;
(d)The alleged destruction of a culvert over the canal near the mining area, 44
(e) violation of E.C conditions;
(f) Illegal extraction of minerals from Government puramboke) lands;
(g) destruction of boundary and survey marks; and
(h) alleged violation of Regulation 164 of the Metalliferous Mines Regulations, 1961.
(v) What is the effect of the directions issued by the National Green Tribunal in O.A No. 304/2019 on 21.7.2020 whereby the Tribunal has directed that blasting operations shall not be permitted if there are residential buildings within a radius of 200 Meters of a quarry?
(vi) If the Environmental Clearance is found to be illegal and unsustainable what relief must be granted in this Writ Petition considering the delay (if any) in approaching this Court and also considering the fact that the issue as to whether mining should be permitted in the areas in question is pending consideration of the Government by virtue of directions issued by this Court in W.P(C) 641 of 2020 ?
63. By consideration the question whether it is a forest land and whether mining activity will be permissible in that area without obtaining clearance under the Forest (Conservation) Act, 1980 etc was considered by the Hon'ble High Court while considering issue no. 1 relying on the decision of the Hon'ble Apex Court in T.N. Godavarman Thirumulppad vs. Union of India and Ors.16, State Of Uttaranchal vs M/S. Kumaon Stone Crusher 17 and also relying on the decision of Hon'ble High Court of Kerala in Omana Vs. Anil Kumar18, One Earth One Life Vs MoEF & ors19 and Nature Lovers Movement vs. State of Kerala 20 and the decision of the Hon'ble Apex Court challenging the decision n Nature Lovers Movement vs. State of Kerala 21 and State of Kerala Vs. New World Investments 22 , came to the conclusion that the quarrying for minerals is certainly a non-forest activity and therefore without securing prior permission from the Central Government, such non-forest activity cannot be 16 (1997) 2 SCC 267 17 (2018) 14 SCC 635 18 2017 (2) KLT 481 19 2018 (4) KHC 827 20 AIR 2000 Ker.131 (FB) 21 (2009) 5 SCC 373 22 ILR 2016 (1) Ker. 817 45 permitted in the lands declared as Reserved Forest which continue to be categorised so, in the revenue records.
64. While considering the applicability of provisions of Kerala Irrigation and Water Conservation Act, 2003, it was held that it will be applicable and failure of the 12th respondent in that case, who is 6th respondent herein to obtain No Objection Certificate under the provisions of Kerala Irrigation and Water Conservation Act, 2003 affects the validity of Exhibit P-3 Environmental Clearance. The Single Bench has also considered the applicability of Kerala Land Assignment Act, 1960 and the Kerala Land Assignment Rules, 1964, Arable Forest Assignment Rules, 1970 and considering the dictum laid down in Mahindra Holidays and Resorts India Ltd. Vs. State of Kerala23 and Haridas R. Vs. State of Kerala and ors.24 came to the conclusion that non disclosure of the fact that land in question were forest lands assigned for agricultural/residential purposes clearly amounts to non-disclosure of material facts, affecting the validity of Exhibit P-3 and also came to the conclusion that once it has been given for particular purpose by virtue of the assignment, the same cannot be altered for the purpose other than for which it has been granted and after considering the various issues raised in the case, the writ petition was disposed of by giving following directions:
21. In view of the findings on issues (i) to (vi), this Writ Petition will stand disposed of with the following directions:-
(i) The Government of Kerala, shall take up for consideration the question as to whether the 12th respondent should be permitted 23 2019 (2) KLT 978 24 2016 (4) KLT 707 46 to conduct quarrying operations in land having an extent of 4.7065 hectares of land comprised in Sy Nos.1270/4, 5, 7, 8, 1271/2, 3,4, 1273/1, 2, 1272/1 of Kodassery Village in Chalakudy, Thrissur which was identified as a Reserve Forest in terms of the notification issued by the Cochin Government on 09-
10-1909, as directed by this Court in the Judgment dated 06-02- 2020 in W.P(c) 641/2020. In view of the findings on issues (i), (ii) and (iii) the Chief Secretary to the Government of Kerala shall ensure that reports from the Principal Secretary/Secretary to Government, Department of Revenue & the Principal Secretary / Secretary to Government, Department of Forests and Wild Life shall be obtained and placed before the Principal Secretary / Secretary to Government, Department of Industries in order to enable him to take a proper decision in the matter. The Principal Secretary / Secretary to Government, Department of Industries shall also take note of the observations of a Division Bench of this Court in One Earth One Life v. Ministry of Environment and Forests [2018 (3) KLT 683] and especially the findings in paragraphs 38, 44, 47 & 49 of that judgment and the observations/findings in this judgment, while passing orders, as directed in W.P (C) 641/2020. He shall also take into consideration the reports to be placed before him by the Department of Revenue and the Department of Forests and Wildlife, as directed above. Orders shall be passed as aforesaid within a period of one month from the date of receipt of a copy of this judgment. A copy of the order to be passed shall also be communicated to the Additional 15th Respondent, namely the State Level Environment Impact Assessment Authority. Unless and until orders are passed permitting the mining activity, the 12th respondent shall not conduct any mining operations pursuant to Ext.P3 and P8. However the 12th respondent will be permitted to use the material which was already mined and extracted and to operate its stone crusher unit using such materials;
(ii) the 2nd Respondent, namely the Director of Mining & Geology and the 6th Respondent, namely the Divisional Forest Officer, Chalakkudy shall ensure that restoration of the mined out areas and afforestation as directed in paragraph 15 of this judgment shall be commenced immediately and completed at the earliest and at any rate within the time permitted i.e. 31-12-2020;
(iii) the Additional 15th Respondent, namely the State Level Environment Impact Assessment Authority shall take up the issue of Environmental Clearance granted to the 12th respondent, after receipt of a copy of the order from the Government of Kerala, as directed herein before and consider the strict measures to be imposed additionally in Ext.P.3 clearance as observed by a Division Bench of this Court in paragraph 49 of the judgment in One Earth One Life v. Ministry of Environment and Forests [2018 (3) KLT 683]. The additional conditions shall include a condition regarding restoration and afforestation. This exercise shall be completed at the earliest and at any rate on or before 31-12-2020;
(iv) The 3rd respondent, namely the Kerala State Disaster Management Authority shall ensure that necessary action is taken on Ext.P13 and that necessary steps are taken to ensure that the accumulation of water/ overburden does not result in any untoward incident as apprehended by the petitioners. The concerned officials of the Kerala State Disaster Management Authority or the District Disaster Management Authority, Thrissur 47 District, shall forthwith cause inspection of the mining area of the 12th respondent which is subject matter of this writ petition and necessary instructions/directions shall be issued to the 12th Respondent. The needful shall be done within a period of 2 weeks from the date of receipt of a copy of this judgment;
(v) The 12th respondent shall obtain fresh no objection certificates as required under the provisions of the Kerala Irrigation and Water Conservation Act, 2003 and produce the same before the the Additional 15th Respondent, namely the State Level Environment Impact Assessment Authority within one month from the date of receipt of a copy of this Judgment;
(vi) The 12th respondent will be permitted to operate the quarry in question in strict compliance with the conditions in Ext.P3 till 31- 12- 2020 if, the Government of Kerala permits mining activity upon the land in the decision to be taken in furtherance of the directions issued by this Court in W.P (C) 641/2020 and in this judgment. The operations by the 12th respondent after 31-12- 2020 will be subject to all the additional conditions and stipulations to be imposed by the Additional 15th Respondent, as directed herein before.
65. The Judgment was dated 06.08.2020. This was challenged before the Division Bench by filing Writ Appeal No. 1145/2020 by the 12th respondent in the Writ Petition, who is 6th respondent herein and the Division Bench by order dated 26.08.2020 passed an interim order staying the operation of the order passed in the W.P (C) No. 24806/2019 which reads as follows:
48 49 50 51 52
66. It is seen from the order by which order of the Hon'ble Single Judge decision was stayed by the Division Bench that as regards the decision relied on by the Single Judge, namely, 53 Omana Vs. Anil Kumar 25 was referred to a full Bench for consideration of its legality and the decision in Mahindra Holidays and Resorts India Ltd. Vs. State of Kerala26 was stayed by the Division Bench in Writ Appeal No. 1453/2019 and those cases are pending. That was the reason why the Division Bench has granted interim stay of operation of the Judgment of the Single Bench in the Writ Petition mentioned above.
67. It is thereafter that the present application has been filed by the applicant raising more or less similar issues which were considered by the Hon'ble Single Judge in the Writ Petition operation of which was stayed by the Division Bench in the Writ Appeal pending mentioned supra.
68. It is true that applicant is not party to the proceedings and as such principle of res-judicata will not be strictly applicable as far as applicant is concerned. But at the same time, when a legal issue has been raised regarding the validity and applicability of certain statutory rules and that is being considered by the Constitutional Court and certain findings have been arrived at and directions have been issued, then any finding of the Constitutional Court on those aspects, if it has got some impact on the question to be considered by this Tribunal, then it will be having some binding effect as that will be deemed to be the lawdeclared on that aspect by the Constitutional Court.
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2017 (2) KLT 481 26 2019 (2) KLT 978 54
69. In this case the question regarding the nature of land as to whether it is a forest land or not and whether particular activity is permissible activity without obtaining the clearance under Section 2 of Forest (Conservation) Act, 1980 are all matters considered by the Hon'ble High Court in the Writ Petition and some findings have been arrived at and that was challenged in Writ Appeal and that is pending in respect of the larger issue regarding legality of those decisions relied on are also pending before the Hon'ble High Court under reference. So under such circumstances, it cannot be said that it has no impact on the decision making process of this Tribunal in the issue raised in this case. If any decision has been taken by this Tribunal and if ultimately the Hon'ble High Court disposed of the case in different manner, then it will result in conflict of decisions which applying the principle of judicial discipline has to be avoided. So, under such circumstances, in view of larger question regarding the applicability of the Kerala Land Assignment (Regulation Occupation of Forest Lands to 01.01.1977) Special Rules, 1993 and the character of the land as to whether it is still a forest land and whether the provisions of the Forest (Conservation) Act, 1980 will apply or not are matter under consideration before the Hon'ble High Court in several litigations referred to above, we feel that it is not proper for this Tribunal to proceed with the matter and with liberty to the applicant either to get impleaded himself in those writ petitions and raise these issues or leaving open the right of the 55 applicant to come to this Tribunal if any other matter has to be considered that has not been considered in that case, which may fall within the jurisdiction of this Tribunal to consider the question of right of 6th respondent to carry on the mining activity in the disputed area and this application can be disposed of .
70. So it is not necessary to proceed with the proceedings in view of the pendency of the Writ Appeal pending before the Hon'ble High Court in respect of the similar issue which will have impact on this case and also the right of the applicant to come later if any other issue arises for consideration involving the environment after the disposal of the case by Hon'ble High Court can be left open and with that observation the Original Application can be disposed of. The points are answered accordingly.
71. In the result the application is disposed of as follows:
i. In view of the pendency of the Writ Appeal No. 1145 of 2020 and in view of the stay order passed by the Hon'ble High Court of Kerala in that matter and the questions that have been raised by the applicant in this case is also considered and answered by the Hon'ble Single Judge in the W.P(C) No. 24806 of 2019 which is under subject matter before the Division Bench in the Writ Appeal and also the legality of the decisions referred by the Hon'ble Single Bench for coming to certain conclusion are pending on the basis of a reference to a larger Bench, there is no 56 necessity to proceed with this proceedings and this can be disposed of subject to the final decision to be passed by the Hon'ble High Court of Kerala in the matters pending therein in respect of the similar issues. ii. The right of the applicant to approach this Tribunal later, if anything is left out or not considered which has got some environmental impact regarding the activity of the 6th respondent falling under any of the statutes enumerated in Schedule I of the National Green Tribunal Act, 2010 is left open.
iii. The right of the applicant to intervene in the matters pending before the Hon'ble High Court of Kerala is left open.
iv. Considering the circumstances, the parties are directed to bear their respective costs in the application. v. In view of the fact that Original Application is disposed of, all interlocutory applications pending also stood disposed of
72. With the above directions and observations, the Original Application is disposed of.
.....................................J.M. (Justice K. Ramakrishnan) ................................E.M. (Dr. Satyagopal Korlapati) O.A. No. 10 of 2021 9th February, 2022 AM.
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