Kerala High Court
J& J Minerals Private Limited vs The State Of Kerala on 22 January, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941
WP(C).No.30717 OF 2016(L)
PETITIONER:
J& J MINERALS PRIVATE LIMITED
REPRESENTED BY ITS CHAIRMAN, A.I.ANTO, S/O.INASU,
AGED 59 YEARS, CHINDAKKI PO, MUKKALI, ATTAPPADY,
PALAKKAD 678 582.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.S.APPU
SRI.A.R.NIMOD
SRI.T.C.SURESH MENON
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO REVENUE DEPARTMENT ,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DISTRICT COLLECTOR
PALAKKAD- 678 001.
3 THE GROUND WATER DEPARTMENT
REPRESENTED BY ITS DISTRICT OFFICER, DISTRICT OFFICE,
A-18, T.B.COMPLEX, PALAKKAD- 678 014.
4 THE POLLUTION CONTROL BOARD
REPRESENTED BY ITS ENVIRONMENTAL ENGINEER,
DISTRICT OFFICE, PALAKKAD- 678 001.
5 THE DISTRICT INDUSTRIES CENTRE
REPRESENTED BY ITS DIRECTOR, PALAKKAD- 678 001.
R1 BY GOVERNMENT PLEADER
R1 BY ADV. SRI. T.NAVEEN , SC, KERALA STATE POLLUTION
CONTROL BOARD
R4 BY ADV. SRI. T.NAVEEN SC, KERALA STATE POLLUTION
CONTROL BOARD,
SRI.SANDESH RAJA - SPECIAL GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-
2019, THE COURT ON 22-01-2020 DELIVERED THE FOLLOWING:
WP(C).No.30717 OF 2016(L)
2
P.B.SURESH KUMAR, J.
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W.P.(C) No.30717 of 2016
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Dated 22nd January, 2020.
JUDGMENT
Ext.P17 order of the second respondent is under challenge in the writ petition.
2. The petitioner is a company. They were running an industrial unit engaged in the manufacture and sale of mineral water within the limits of Agali Grama Panchayath, after obtaining all the requisite permissions and licences, from the year 1998 onwards. It is stated by the petitioner that they had to stop the activities in the industrial unit for some time during 2009 for the purpose of undertaking certain maintenance works. It is alleged that while so, the Wildlife Warden attached to the Silent Valley Forest Division issued Ext.P6 notice directing the petitioner to stop the WP(C).No.30717 OF 2016(L) 3 maintenance works undertaken by them in the unit until it is ensured that the petitioner is not dumping or throwing any debris or polluting materials into the nearby river; that the petitioner is not drawing water from the river for their activities and that no toxic or plastic waste are dumped or thrown to the nearby Tribal hamlet. The petitioner apprised the matter to the Industries Department of the State Government and the Director of Industries and Commerce, in the circumstances, requested the District Collector concerned namely the second respondent to do the needful to enable the petitioner to re-start the unit in terms of Ext.P7 communication. No action, whatsoever, was taken on Ext.P7 request by the second respondent. The petitioner, therefore, approached this Court, and in terms of the judgment in W.P. (C) No.32883 of 2010, this Court directed the second respondent to take appropriate action in the matter. Thereupon, the second respondent conducted a hearing and issued Ext.P10 order holding that the industrial unit of the petitioner is situated within the Buffer Zone of the Silent WP(C).No.30717 OF 2016(L) 4 Valley National Park and the petitioner therefore is not entitled to restart the unit.
3. The petitioner challenged Ext.P10 order before this Court in W.P.(C) No.22377 of 2012. In terms of Ext.P11 interim order passed by this Court in the said writ petition, the petitioner was initially permitted to complete the renovation works proposed by them in the industrial unit. Later the writ petition was allowed by this Court in terms of Ext.P12 judgment holding that the petitioner is entitled to run the unit in accordance with law. Ext.P12 judgment was challenged by the State in W.A. No.2011 of 2014. Ext.P13 is the judgment in the said case. In Ext.P13 judgment, the Division Bench found that the second respondent was not justified in declining the prayer sought by the petitioner to operate the unit on the ground that the unit is situated in the Buffer Zone area of the Silent Valley National Park. This Court however took the view that at the same time, it has to be ensured that the functioning of the unit is not resulting in depletion of groundwater in the area and that the industrial unit is not WP(C).No.30717 OF 2016(L) 5 causing any pollution. This Court, in the circumstances, after affirming the decision of the learned Single Judge in setting aside Ext.P10 order, directed the second respondent to convene a meeting of the heads of offices of the Groundwater Department, the District Industries Centre, Grama Panchayath, Revenue as also the Pollution Control Board and then take a decision as to whether the petitioner should be permitted to run the industrial unit. Pursuant to Ext.P13 judgment, reports were again called for by the second respondent from the Groundwater Department, the Revenue and also from the Wildlife Warden concerned. Ext.P15 is the report forwarded by the Groundwater Department in this regard. Similarly Ext.P16 is the report forwarded by the Tahsildar concerned. Thereupon, the second respondent has issued Ext.P17 order declining the permission sought by the petitioner again to run the unit. As noted, Ext.P17 order is under challenge in the writ petition.
4. A counter affidavit has been filed by the second respondent supporting Ext.P17 order. WP(C).No.30717 OF 2016(L) 6
5. Heard the learned Senior Counsel for the petitioner as also the learned Government Pleader.
6. The fact that the petitioner was running the industrial unit from the year 1998 till 2009 is not in dispute. The functioning of the unit was interrupted only on account of Ext.P6 notice issued by the Wildlife Warden on the premise that the unit is situated within the Buffer Zone of the Silent Valley National Park. Ext.P10 is the first order passed by the second respondent in this regard, after hearing all concerned and the only ground on which petitioner was declined the permission sought to run the unit was that the unit is situated within the Buffer Zone of the Silent Valley National Park. The only question before this Court in W.P.(C) No.22377 of 2012 was therefore as to whether the second respondent was justified in declining permission to run the unit on that ground. In terms of Ext.P12 judgment, this Court found that the District Collector was not justified in declining the permission sought by the petitioner on that ground. Though the State challenged Ext.P12 judgment in W.A. No.2011 of WP(C).No.30717 OF 2016(L) 7 2014, the Division Bench affirmed the view taken by the learned Single Judge that the forest officials were not justified in interdicting the petitioner from running the industrial unit. Nevertheless, it is seen that having noticed that the second respondent has not considered any other aspects relating to the functioning of the industrial unit while passing Ext.P10 order, the Division Bench, in terms of Exhibit P13 judgment, directed the second respondent to ensure that the functioning of the unit does not result in depletion of groundwater; create any pollution in the area and result in the infraction of any statutory provision. It is in the aforesaid circumstances that the Division Bench has directed the second respondent to take a final decision in the matter.
7. It is seen that without understanding the scope of Ext.P13 judgment, the second respondent has called for a report from the Wild life Warden, who in turn, repeated the objection earlier raised. Ext.P15 is the report forwarded by the District Officer of the Groundwater Department pursuant to the notice issued by the second respondent after Ext.P13 WP(C).No.30717 OF 2016(L) 8 judgment. In Ext.P15 report, the District Officer of the Groundwater Department has recommended that the unit can function in the manner indicated therein. Similarly, Ext.P16 is the report forwarded by the Tahsildar concerned pursuant to the notice issued by the second respondent after Exhibit P13 judgement. In Ext.P16 report, the Tahsildar has informed the second respondent that the petitioner is not drawing water from the adjoining river. It is seen that the permission sought by the petitioner was declined by the second respondent again in terms of the impugned order stating the proximity of the Silent Valley National Park and that the functioning of the unit would result in depletion of groundwater in the area. It is also stated by the second respondent in the impugned order that the functioning of the unit would adversely affect the water requirements of the tribals in the area who are depending on Bhavani river near the unit of the petitioner for the purpose.
8. First of all, the proximity of the Silent Valley National Park ought not have been the reason in Exhibit P17 WP(C).No.30717 OF 2016(L) 9 order for rejecting the permission sought by the petitioner as the same was an issue found in favour of the petitioner in terms of Exhibit P13 judgement of the Division Bench of this Court. Further, the reason in Exhibit P17 order that the functioning of the unit would result in depletion of the groundwater in the area is unsustainable as the same is one stated without adverting to Ext.P15 report of the District Officer of the Groundwater Department. In terms of the said report, the District Officer of the Groundwater Department has in fact recommended grant of permission to the petitioner subject to the conditions stated therein. Similarly, the reason in Exhibit P17 order that the functioning of the unit will adversely affect the water requirements of the tribals in the area who are depending on Bhavani river near the unit for the purpose is also unsustainable since the same is one stated without adverting to Ext.P16 report of the Tahsildar to the effect that the petitioner is not drawing water from the said river. Needless to say, Ext.P17 order cannot be accepted as one rendered in compliance with Ext.P13 judgment of this WP(C).No.30717 OF 2016(L) 10 Court. Having regard to the materials on record, I am constrained to hold that the impugned order is one issued due to extraneous reasons, as the factual findings rendered in the order based on reports cited in the order are in fact contrary to the reports and it is not clear as to how the second respondent happened to render such findings in the order. For instance, while the Tahsildar states that the petitioner is not drawing water from the river, the second respondent recites in the order that the Tahsildar has reported that there would be water scarcity in the area if the petitioner is granted the permission sought for. Similarly, while the District Officer of the Groundwater Department has recommended for grant of permission, the second respondent recites in the order that the said officer has reported that there would be water scarcity in the area, if the petitioner is granted the permission sought for. Be that as it may, in the light of Exts.P15 and P16 reports, I am of the view that the petitioner is entitled to run the unit.
9. In the result, the writ petition is allowed, WP(C).No.30717 OF 2016(L) 11 Ext.P17 order of the second respondent is quashed and the second respondent is directed to permit the petitioner to run the unit subject to the condition that they shall abide by the directions issued by the District Officer of the Groundwater Department and the Environmental Engineer concerned of the Pollution Control Board. In public interest, it is also directed that the District officer of the Groundwater Department and the Environmental Engineer concerned the Pollution Control Board shall inspect the unit periodically and ensure that the functioning of the unit is not resulting in depletion of groundwater in the area nor causing any pollution in the area. If it is found that the functioning of the unit is adversely affecting the groundwater level in the area or causing any pollution in the area, they will be free to impose appropriate directions to the petitioner, and the petitioner shall abide by such directions. It is also directed that if it is found that the petitioner is not complying with the directions issued in this regard, the District Officer of the Groundwater Department and the Environmental Engineer of WP(C).No.30717 OF 2016(L) 12 the Pollution Control Board would be within their powers to stop the activities of the petitioner in the industrial unit.
Sd/-
P.B.SURESH KUMAR, JUDGE.
PV WP(C).No.30717 OF 2016(L) 13 APPENDIX PETITIONER'S EXHIBITS:
P1 TRUE COY OF THE CERTIFICATE OF INCORPORATION ISSUED BY THE REGISTRAR OF COMPANIES DATED 11.10.1996 P2 TUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 7.11.1996 P3 TRUE COPY OF THE PROCEEDINGS OF THE GREEN CHANNEL CLEARANCE COMMITTEE DATED 9.1.1998 P4 TRUE COPY OF THE CURRENT LICENCE ISSUED BY THE AGALI GRAMA PANCHAYATH WHICH IS VALID UP TO 23.3.2017 P5 TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE-RENEWAL CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 4.8.2015 P6 TRUE COPY OF THE STOP MEMO ISSUED BY THE WILDLIFE WARDEN DATD 11.10.2010 P7 TRUE COPY OF THE COMMUNICATION ADDRESSED BY THE DIRECTOR OF INDUSTRIES AND COMMERCE TO THE 2ND RESPONDENT DATED 12.1.2012 P8 TRUE COPY OF THE REPORT SUBMITTED BY DR.S.SANKAR, SCIENTIST AND PROGRAMME CO-
ORDINAOR DATED 14.2.2012
P9 TRUE COPY OF HTE COMMUNICATION DATED
24.2.2012
P10 TRUE COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT VIDE LRG6-2010-33896-9 DATED 11.9.2012 P11 TRUE COPY OF THE JUDGMENT IN WPC NO.22377/2012 ON THE FILE OF THIS HONOURABLE COURT DATED 8.11.2012 WP(C).No.30717 OF 2016(L) 14 P12 TRUE COPY OF THE JUDGMENT IN WPC NO.22377/2012 ON THE FILE OF THIS HONOURABLE COUT DATED 23.9.2014 P13 TRUE COY OF THE JUDGMNE IN W.A.NO.2011/2014 ON THE FILE OF THIS HON'BLE COURT DATED 20.11.2015 P14 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER UNIT DATED 18.12.2015 P15 TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT DATED 6.4.2016 P16 TRUE COPY OF THE REPORT OF THE ADDITIONAL TAHSILDAR, MANNARKKAD DATED 5.4.2016 P17 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT 17.8.2016 P18 TRUE COPY OF THE EXTRACT OF THE RELEVANT PAGES OD THE GUIDELINES/CRITERIA FOR EVALUATION OF PROPOSALS/REQUESTS FOR GROUND WATER ABSTRACTION WITH EFFECT FROM 16.11.2015 RESPONDENTS' EXHIBITS:
R1(A) TRUE COPY OF THE JUDGMENT DATED
25.07.2012 IN APPLICATION NO.26/12