Kerala High Court
Mujeeeb Rahman vs The State Of Kerala on 3 April, 2025
W. P. (C) No. 31592 of 2024
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2025:KER:29766
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947
WP(C) NO. 31592 OF 2024
PETITIONER/S:
MUJEEEB RAHMAN
AGED 50 YEARS
SON OF ABDUL SALAM, KOTTILINGAL HOUSE, PATTAMBI
P.O, PATTAMBI VILLAGE, PATTAMBI TALUK, PALAKKAD
DISTRICT, PIN - 679303
BY ADVS.
P.M.ZIRAJ
IRFAN ZIRAJ
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
WATER RESOURCES DEPARTMENT, ROOM NO.393, MAIN
BLOCK, GOVERNMENT SECRETARIAT, GOVERNMENT OF
KERALA, THIRUVANANTHAPURAM, PIN - 695001
2 PRINCIPAL SECRETARY TO GOVERNMENT
IRRIGATION DEPARTMENT, GOVERNMENT SECRETARIAT,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN -
695001
3 KERALA IRRIGATION INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED (KIIDC)
THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING
DIRECTOR, SECRETARY TO GOVERNMENT, WATER
RESOURCES DEPARTMENT, ROOM NO.393, MAIN BLOCK,
W. P. (C) No. 31592 of 2024
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2025:KER:29766
GOVERNMENT SECRETARIAT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM, PIN - 695001
4 CHIEF EXECUTIVE OFFICER
KERALA IRRIGATION INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED (KIIDC), PARVATHY, TC-36/1,
NH-66 BYE PASS SERVICE ROAD, CHACKAI P.O,
THIRUVANANTHAPURAM, PIN - 695024
5 STATE ENVIRONMENTAL IMPACT ASSESSMENT
AUTHORITY(SEIAA)
KSRTC BUS TERMINAL COMPLEX, THAMPANOOR,
THIRUVANANTHAPURAM, KERALA REPRESENTED BY ITS
MEMBER SECRETARY, PIN - 695001
6 CHIEF SECRETARY TO GOVERNMENT
GOVERNMENT SECRETARIAT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM, PIN - 695001
7 M/S. KSR MARINE SERVICES PVT LTD.
HAVING REGISTERED ADDRESS AT: 2-98/3, 10-B,
BLOCK-B, KAKATEEYA NAGAR, HABSIGUDA, HYDERABAD-
500007 REPRESENTED BY AUTHORIZED SIGNATORY ANEESH
K.R, S/O G. KARTHIKEYAN, AGED 54 YEARS, RESIDING
AT PPRRA-11, PALAPPARAMBU ROAD, ELAMAKKARA,
ERNAKULAM - 682025 IS IMPLEADED AS ADDL.R7 AS PER
ORDER DATED 20/03/2025 IN I.A 2/2025.
BY ADVS.
PIRAPPANCODE V.S.SUDHEER
M.P.SREEKRISHNAN
JOLLY JOHN
AKASH S.(K/980/2008)
GIRISH KUMAR M S(K/001593/2018)
SRIVIDYA K(K/001476/2018)
RICHU THERESA ROBERT(K/002427/2021)
RAJALAKSHMI.R.(K/001978/2023)
LIZA MEGHAN CYRIAC
C.S.RESHMI
IRENE BABU
MEHNAZ P. MOHAMMED
RUBIN SHIBU
K. P. HARISH, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.04.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W. P. (C) No. 31592 of 2024
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2025:KER:29766
JUDGMENT
Dated this the 3rd day of April, 2025 Nitin Jamdar, C. J.
Heard Mr. Irfan Ziraj, learned counsel for the Petitioner, Mr. Pirappancode V. S. Sudheer, learned counsel for Respondent Nos. 3 and 4, Mr. M. P. Sreekrishnan, learned counsel for Respondent No. 5, Mr. Jolly John, learned counsel for Respondent No. 7 and Mr. K. P. Harish, learned Senior Government Pleader.
2. The main anxiety expressed by the Petitioner is that the State and the Official Respondents might permit the dredging of large quantities of sand without there being any environmental clearance or without conducting any environmental study. A counter affidavit is filed on behalf of the Kerala State Environment Impact Assessment Authority (Authority) in which it is stated as under:-
"2. The above Writ Petition is filed seeking interference of this Hon'ble Court in the matter of sand mining based on Exhibit P1, Bid document in connection with tender No. KIIDC/ACUTION/07/2024-25 dated 14.08.2024 issued by the 4th respondent, Chief Executive officer Kerala Irrigation Infrastructure Development Corporation.
3. It is submitted that from the Exhibit P1 documents, the proposed activity is mentioned as desiltation of the deposits (1.5 km "upstream and 0.5km downstream) near regulator cum bridge at Kankakadavu which is under construction, across Bharathapuzha River in Kuttipuram Panchayat. From the Google imageries it is observed that river is meandering in the area mentioned in the bid i.e., between Kuttipuram W. P. (C) No. 31592 of 2024 -4- 2025:KER:29766 bridge and the Kanakakadavu RCB. It is also evident that huge quantity of sand is deposited at an average 1.5m above the current water level in the inner edge (a point bar) due to the meandering effect. Since the project is still under construction and not yet commissioned, the proposed de- silting of sand from the upstream and downstream sections of Bharathapuzha River shall be regarded as Capital Dredging. Therefore the activity is not exempted from obtaining Environmental - Clearance as per Appendix -- IX of the EIA Notification, 2006.
4. As per the Bid Document, the activities proposed are de- siltation, Stocking, Cleaning and selling of processed products. All these processes would come under the term Winning. Any operation undertaken for the purpose of winning -any- mineral shall be considered as mining and the proposed de-silting project from Bharathapuzha river Basin shall be considered as sand mining rather than de-siltation. Therefore, the activity requires Environmental Clarence as per EIA Notification, 2006.
5. In the instant case the de-siltation, is not for the purpose of maintenance or Flood Control as in the case of dam or river or reservoir, which may not be considered as mining. But the activity proposed to be carried out for capital dredging which requires a clear cut scientific plan regarding dredging, the depth of dredging the extent of dredging, quantity to be dredged out, the protection and rejuvenation plan for the river bank and riparian vegetation, the stocking and transportation plan and Environment Management Plan for dredging approved by a competent authority, etc... are required. The minerals present in the proposed de-siltation/dredging area is for commercial purpose. Hence, it has to be considered as mining.
6. It is submitted that any operation undertaken for the purpose of winning any mineral shall be considered as 'mining'. Accordingly, if desilting is undertaken per se with the objective of winning a mineral then it will be construed as W. P. (C) No. 31592 of 2024 -5- 2025:KER:29766 a 'mining' operation. Here, the desilted sand is stocking / processing and transporting for further usage. Hence, the proposed desilting project from the river basin shall be considered as a 'mining' activity. The soil investigation report also indicates the desilted material contains 90% sand of different quality.
7. The Ministry of Environment, Forest & Climate Change (MoEF&CC) published Environmental Impact Assessment Notification 1994 which is only applicable for the Major Minerals more than 5ha. In order to cover the minor minerals also into the preview of EIA, the MoEF&CC issued EIA Notification 2006 for Major & Minor Mineral more than 5 Ha. The Hon'ble Supreme Court in its Judgment dated the 27 February 2012 in I.A. No.12- 13 of 2011 in Special Leave Petition (C) No.19628-19629 of 2009, in the matter of Deepak Kumar etc, Vs. State of Haryana and Others etc. made prior environment clearance mandatory for mining of minor minerals irrespective of the area of mining lease. In order to comply with the judgment of Hon'ble Supreme Court, the Ministry issued S.0.141 (E) dated 15.01.2016. Further, MOEF&CC published Sustainable Sand Mining Management Guidelines 2016 for scientific and sustainable sand mining in the Country. The recommendations for the management of sustainable sand extraction are the key objective of the Guidelines. Special emphasis is given on monitoring of the mined out material, which is key to the success of the environmental management plan. Use of IT and IT-enabled services for effective monitoring of the quantity of mined out material and transportation along with process re-engineering has been made a part of the Guidelines. Guidelines support the fundamental concept, promote environmental protection, limit negative physiological, hydrogeological and social impacts underpinning sustainable economic growth.
8. The Hon'ble NGT in its order dated 04.09.2018 in O.A. 173/2018 in the matter of Sudarsan Das vs. State of West Bengal & Ors. Interalia observed that "There can be no two W. P. (C) No. 31592 of 2024 -6- 2025:KER:29766 views that an effective institutional monitoring mechanism is required not only at the stage when Environmental Clearance is granted but also at 'subsequent stages". "The guidelines focus on the preparation of District Survey Report and the Management Plan' ... We are of the view that all the safeguards which are suggested in sustainable sand mining guidelines as well as notification dated 15.01.2016 ought to be scrupulously followed. "...It is a known fact that in spite of the above-suggested guidelines being in existence, on the ground level, illegal mining is still going on. The existing mechanism has not been successful and effective in remedying the situation." "...Since there is an utter failure in the current monitoring mechanism followed by the State Boards, SEIAAs and DEIAAs, it is required to be revised for effective monitoring of sand and gravel mining and a dedicated monitoring mechanism be set up."
9. Based on the above directions the Ministry of Environment, Forest and Climate Change also issued the Enforcement and Monitoring Guidelines for Sand Mining (EMGSM-2020). The Hon'ble National Green Tribunal (NGT) ordered all states and union territories to strictly adhere to the Sustainable Sand Mining Management Guidelines (SSMMG-2016) and the Enforcement and Monitoring Guidelines for Sand Mining (EMGSM-2020). These directives were further strengthened by mechanisms for the preparation of District Survey Report, Environment Management Plan, replenishment studies, the assessment and recovery of compensation, the seizure and release of vehicles involved in illegal mining, and other safeguards against violations. The EMGSM 2020 also explicitly deliberated about monitoring mechanism on transportation, stacking, etc.
10. Pursuant thereto, the Institute of Land and Disaster Management (ILDM), Revenue Department, Government of Kerala prepared the District Survey Reports for River Sand Mining across the State as per the guidelines issued by the MoEFCC dated 25.07.2018. The ILDM entrusted a NABET Accredited Consultant, CSIR-National Institute of W. P. (C) No. 31592 of 2024 -7- 2025:KER:29766 Interdisciplinary Science and Technology (NIIST), with the task of preparing District Survey Reports and the mining plan for the sustainable of removal of sand from the river bed. The DSR of the Bharathapuram River stretches in the Palakkad, Malappuram and Thrissur Districts were prepared by following all the procedures including public consultation as per above said guidelines and EIA Notification, 2006 and approved by the State Environment Impact Assessment Authority.
11. It is submitted that, the District Survey Report (DSR), is an important initial step before grant of mining lease/LoI. The DSR emphasizes the areas of aggradation/deposition where mining can be allowed and demarked the areas of erosion and proximity to infrastructural structures and installation where mining should be prohibited. It was also assessed the annual rate of replenishment, time for replenishment after mining, the ways of scientific and systematic mining; the quantity to be extracted, cluster conditions, measures for protection of environment and ecology as well as for protection of bank erosion, benchmark (BM) with respect to mean Sea Level (MSL) in mining channel reaches (MCR), below which no mining shall be allowed. The DSR also identified the potential 'kadavus' for the stacking of the mined material.
12. As per the EIA Notification, 2006 for the removal of river sand requires Environmental Clearance from the State Environmental Impact Assessment Authority. However, the desilting of reservoir, dredging for upkeep and maintenance of structures, channels and averting natural disasters will not be treated as mining for the purpose of environmental clearance. In the present case, the Regulator Cum Bridge is only under construction and the proposed activity cannot be considered as an upkeep and maintenance of structures, rather than sand mining. Besides, the authority which conducted the study is not a NABET Accredited Agency and are not entitled to conduct the environment impact study as per EIA Notification. In view of the above the proposed W. P. (C) No. 31592 of 2024 -8- 2025:KER:29766 activity is not entitled to be start without first obtaining a Prior Environmental Clearance. It is submitted that as per the provisions of EIA Notification, 2006 the project proponent has to make an application in the prescribed form-1 though PARVISEH Portal for obtaining a Prior Environmental Clerance. Once an application is received through PARIVESH Portal, for an Environmental Clearance, the same can be considered in terms of EIA Notification, 2006. It is brought to the kind attention of this Hon'ble Court that any activity which requires a prior Environmental Clearance, if started without obtaining Prior Environmental Clearance, would amount of violation of provisions of EIA Notification, 2006 and consequently, the provision of Environment Protection Act, including proceedings u/s.15 r/w. S.19 of Environment Protection Act, 1986. In the above facts and circumstances of the case, as the activity is not yet started, the above writ petition may be disposed of directing the Project Proponent to make an application for an prior Environmental Clearance before the answering respondent though PARVIESH Portal. The Report of Field inspection conducted on 01.10.2024 pursuant to the Orders of this Hon'ble Court on 12.09.2024 may also be read as part of this Affidavit. It is prayed accordingly."
3. Therefore, the stand of the Authority in the affidavit, as reiterated by the learned counsel for the Authority is that the activity, which is the subject matter of this petition, requires an environmental clearance, and before starting the activity, the project proponent will have to make an application for prior environmental clearance to the Authority. This affidavit, according to us, takes care of the apprehension expressed by the Petitioner Public Interest Litigant in this petition. Therefore, it goes without saying that the activity as contemplated in the petition shall not be carried out without there W. P. (C) No. 31592 of 2024 -9- 2025:KER:29766 being any environmental clearance as pointed out above.
4. Accepting the statements made in the counter affidavit of the Authority and the observations as above, the writ petition is disposed of.
Sd/-
NITIN JAMDAR CHIEF JUSTICE Sd/-
S. MANU JUDGE Eb W. P. (C) No. 31592 of 2024 -10- 2025:KER:29766 APPENDIX OF WP(C) 31592/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PAGES OF BID DOCUMENT IN CONNECTION WITH TENDER NO.
KIIDC/ACUTION/ 07/ 2024-25 DATED 14.8.2024 ISSUED BY THE FOURTH RESPONDENT Exhibit P2 TRUE COPY OF THE SCHEDULE IN CONNECTION WITH EXHIBIT P1 TENDER DETAILS PUBLISHED BY THE FOURTH RESPONDENT DATED 27.8.2024 Exhibit P3 TRUE COPY OF THE REPORT OF KERI PUBLISHED BY THE THIRD RESPONDENT DATED NIL IN JANUARY 2024