Alex Augustine vs. District Geologist - Kerala High Court, 03 November 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNE AY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943 WP(C) NO. 20671 OF 2020 PETITIONER: KOKKALLUR GRANITES PRIVATE LIMITED SIVAPURI, MODAKKALLUR P.O., ATHOLI, KOZHIKODE-673 315, REPRESENTED BY ITS MANAGING DIRECTOR, RAJEEV NAMBIAR, AGED 52 YEARS, S/O.SHANKARAN NAMBIAR. BY ADVS. ALEX.M.SCARIA SRI.A.J.RIYAS SMT.SARITHA THOMAS KUM.MINU THANKAPPAN RESPONDENTS: 1 THE DIRECTOR OF MINING ANG GEOLOGY KESAVADASAPURAM, PATTAM PALACE P.O., THIRUVANANTHAPURAM-695 004. 2 THE DISTRICT GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, THE BAY END FLOOR, C BLOCK OF CIVIL STATION, KOZHIKODE-673 020. 3 THE STATE OF KERALA, REPRESENTED BY ITS HOME SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. S.KANNAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, ALONG WITH WP(C).20727/2020, 21390/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 20671 OF 2020 AND CON.CASES 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNE AY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943 WP(C) NO. 20727 OF 2020 PETITIONER: KAPPAN GRANITES, KARAMALA P.O., POOVAKULAM, KOTTAYAM, REPRESENTED BY ITS MANAGING PARTNER, JOSE J. KAPPAN, AGED 51 YEARS, S/O.JOSEPH, KAPPIL HOUSE, KARAMALA P.O., KOTHATTUKULAM. BY ADVS. ALEX.M.SCARIA SMT.SARITHA THOMAS RESPONDENTS: 1 THE DIRECTOR OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTAM PALACE P.O., THIRUVANANTHAPURAM-695004. 2 THE DISTRICT GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, COLLECTORATE, KOTTAYAM, KERALA-686002. 3 THE STATE OF KERALA, REPRESENTED BY ITS HOME SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. S.KANNAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, ALONG WITH WP(C).20671/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 20671 OF 2020 AND CON.CASES 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNE AY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943 WP(C) NO. 21390 OF 2020 PETITIONER: JOBY JOSEPH AGED 45 YEARS S/O JOSEPH, KUZHIVELIL HOUSE, POOZHIKOL P.O, KADUTHURUTHI, KOTTAYAM-686604. BY ADVS. ALEX.M.SCARIA SHRI.STEPHEN ISSAC SHRI.BOBBY J ARAKUNNEL RESPONDENTS: 1 THE DISTRICT GEOLOGIST DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, COLLECTORATE, P.O, KOTTAYAM-686604. 2 THE DIRECTOR OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTAM PALACE. P.O, THIRUVANANTHAPURAM-695004. S.KANNAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, ALONG WITH WP(C).20671/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 20671 OF 2020 AND CON.CASES 4 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNE AY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943 WP(C) NO. 21443 OF 2020 PETITIONER: ALEX AUGUSTINE AGED 51 YEARS S/O.P.P.AUGUSTINE, CHOKKATTU HOUSE, KADANAD P.O., AIMCOMPU, KOTTAYAM-686653. BY ADVS. ALEX.M.SCARIA SMT.SARITHA THOMAS RESPONDENTS: 1 DISTRICT GEOLOGIST DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY COLLECTORATE, KOTTAYAM, KERALA-686002. 2 DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM, PALACE P.O., THIRUVANANTHAPURAM-695004. S.KANNAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, ALONG WITH WP(C).20671/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 20671 OF 2020 AND CON.CASES 5 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNE AY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943 WP(C) NO. 22828 OF 2020 PETITIONER: ST.JUDE GRANITES EAST KALOOR P.O., 57/1, CHARUVELIL, EAST KALOOR, THODUPUZHA, IDUKKI-685 608 REP. BY ITS MANAGING PARTNER CHERIAN K.JOSE, AGED 54 YEARS, KIZHAKKEPARAMBIL, THIRUVAMBADI P.O., NJEEZHOOR, KOTTAYAM- 686612 BY ADVS. ALEX.M.SCARIA SMT.SARITHA THOMAS SMT.APARNA ANIL RESPONDENTS: 1 THE DIRECTOR OF MINING AND GEOLOGY KESAVADASAPURAM, PATTAM PALACE P.O., THIRUVANANTHAPURAM-695 004 2 THE DISTRICT GEOLOGIST DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, IDUKKI, MINI CIVIL STATION, THODUPUZHA-685 584 S.KANNAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, ALONG WITH WP(C).20671/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 20671 OF 2020 AND CON.CASES 6 JUDGMENT [WP(C) Nos.20671/2020, 20727/2020, 21390/2020, 21443/2020, 22828/2020] These writ petitions are filed seeking directions to respondents 1 and 2 to take steps for consideration of the applications submitted by the petitioners for quarrying permits/permissions without referring to the distance conditions specified in Ext.P8 order dated 21.07.2020 in O.A.No.304/2019 of the National Green Tribunal, Principal Bench, New Delhi.

It is submitted by the learned counsel for the petitioners that the petitioners had submitted applications for Letters of intent as well as the necessary permissions and leases with regard to conduct of quarrying operations. It is submitted that the applications had been submitted much prior to the order issued by the National Green Tribunal suggesting a distance criteria other than the one provided in the Kerala Minor Mineral Concession Rules, 2015 as well as the Rules recommended by the Central Pollution Control Board.

It is submitted by the learned counsel for the petitioners that challenging Ext.P8 order, writ petitions had been filed before this Court

WP(C) NO. 20671 OF 2020 AND CON.CASES 7 and interim directions had been issued stating that where a quarrying lease permit is issued under the provisions of the Kerala Minor Mineral Concession Rules, 2015 which is valid and current as on 21.07.2020, that is the date of Ext.P8 order, which do not fulfill the new distance norms, status quo shall be maintained. However, with regard to pending applications and renewal applications including application for Environmental Clearance, PCB consent, Explosive licence, Local Body licence etc., such applications need not be rejected solely on the ground of non fulfillment of the new distance norms. However, it was made clear that in case of the applications of fresh grant of the quarrying permits/quarrying leases or applications for renewal of quarrying permits/leases, which do not fulfil the above said impugned distance criteria stipulated in the order of the tribunal, then such request need not be granted for the time being.

The writ petitions were finally heard and allowed by judgment dated 21.12.2020. Ext.P8 order of the NGT was set aside and the NGT was directed to dispose of the representations of respondents 3 to 115 afresh after notice by way of publication to those who are affected by the prescription of the stringent distance criteria for permission for

WP(C) NO. 20671 OF 2020 AND CON.CASES 8 quarrying. The said judgment is reported in State of Kerala v. Central Pollution Control Board [2021 (1) KLT 1]. From the said judgment, an appeal had been preferred and the directions of the learned Single Judge had been upheld by a Division Bench of this Court. The learned counsel for the petitioner submits that thereafter, SLPs have been filed before the Apex Court and Civil Appeals had been disposed of by proceedings dated 25.10.2021. The said judgment is reported as Municipal Corporation of Gr. Mumbai v. Ankita Sinha [2021 (6) KLT 133]. The Apex Court held that there is power in the National Green Tribunal to take up matters suo motu and pass orders as well. It was further held as under:- “In light of the issue answered by this Court in Civil Appeal Nos.12122-12123 of 2018 and connected cases titled as “Municipal Corporation of Gr.Mumbai Vs. Ankita Sinha & Ors.” reported in 2021 (12) SCALE 184, it would be appropriate to permit the appellant(s) to raise all contentions/objections as may be available and permissible in law before the National Green Tribunal (In short “the Tribunal”) in the first place. The Tribunal may consider those contentions/objections and record reasons for accepting or rejecting the same, so that the appellant(s), if dis-satisfied, may have further remedy of appeal(s) before this Court. In other words, all contentions raised in the present appeal(s) on these aspects,

WP(C) NO. 20671 OF 2020 AND CON.CASES 9 including on merits are left open, to be considered by the Tribunal afresh. We say so because the judgment rendered by this Court predicates that even if the Tribunal intends to initiate suo motu action, must give opportunity to the parties likely to be affected before passing any adverse order against them. Viewed thus, the ex-parte preemptory order(s) passed by the Tribunal without giving opportunity to the person(s) likely to be affected by such order(s), be treated as effaced from the record. Keeping that principle in mind, we deem it appropriate to relegate the appellant(s) before the Tribunal with liberty to raise all contentions as may be permissible in law, to be decided by the Tribunal afresh on its own merits. Notably, the decision of the High Court assailed in these appeal(s) also gives that liberty to the appellant(s). However, we expressly grant such liberty to the appellant(s), as aforesaid, in terms of this order.” Having considered the contentions advanced, I notice that the petitioners' applications had not been considered relying on the interim order of this Court dated 6.8.2020. However, with the above mentioned directions of the Apex Court, I notice that the interim order as well as the directions in the judgment of the learned single Judge and the Division Bench in W.A.No.286/2021 stand merged with the findings and directions of the Apex Court in Municipal Corporation of Gr. Mumbai (supra). In view of the fact that the Apex Court has clearly held that the Ex-parte peremptory orders passed by the Tribunal passed without

WP(C) NO. 20671 OF 2020 AND CON.CASES 10 giving opportunity to the persons likely to be affected are to be treated as effaced from the records, I am of the opinion that the directions contained in the orders of this Court also cannot stand in the way of a consideration of the applications in accordance with law, as it exists. These writ petitions are, accordingly, disposed of directing the consideration of the applications submitted by the petitioners for quarrying permits, Environmental Clearance, PCB consent, Explosive licence, Local Body licence, leases etc., in accordance with law, as it exists, if the same are otherwise in order. ANU SIVARAMAN JUDGE SVP

WP(C) NO. 20671 OF 2020 AND CON.CASES 11 APPENDIX OF WP(C) 20671/2020 PETITIONER EXHIBITS EXHIBIT P1OF THE LETTER OF INTENT DATED 07.11.2018 BEARING NO.11387/M3/2018 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT FOR PROCESSING THE MINING LEASE. EXHIBIT P2OF THE SURVEY MAP COUNTER SIGNED BY THE THASILDAR TO SECURE EXHIBIT P1. EXHIBIT P3OF THE ENVIRONMENTAL CLEARANCE DATED 13.01.2020 ISSUED BY SEIAA. EXHIBIT P4 THE TRADE LICENCE DATED 17.06.2020 BEARING NO.557/2020-2021/A8/565/2020 ISSUED BY THE LOCAL AUTHORITY TO THE PETITIONER FOR RUNNING QUARRY AS PER EXHIBIT P1. EXHIBIT P5 TRUE COPIES OF SERIES OF ACCEPTANCE LETTER OF APPOINTMENT MADE BY THE PETITIONER TO SECURE THE EXPLOSIVE LICENCE AND TRADE LICENCE. EXHIBIT P6 EXPLOSIVES LICENCE DATED 30.06.2020 BEARING NO.E/SE/KL/22/259(E 115582) ISSUED TO THE PETITIONER. EXHIBIT P7OF THE CONSENT DATED 17.03.2020 BEARING NO.PCB/KKD/DO/ICO/10273 R 19 KOZ 81351/12157226/2020 ISSUED BY POLLUTION CONTROL BOARD FOR RUNNING THE QUARRY AS PER EXHIBIT P1. EXHIBIT P8OF THE ORDER DATED 21.07.2020 IN OA 304/2019 PASSED BY THE HON'BLE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI.

WP(C) NO. 20671 OF 2020 AND CON.CASES 12 APPENDIX OF WP(C) 20727/2020 PETITIONER EXHIBITS EXHIBIT P1OF THE LETTER OF INTENT, DATED 13.3.2019, BEARING NO.1493/M3/2019 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT FOR PROCESSING THE MINING LEASE. EXHIBIT P2OF THE SURVEY MAP COUNTER SIGNED BY THE THASILDAR TO SECURE EXHIBIT P1. EXHIBIT P3OF THE ENVIRONMENTAL CLEARANCE DATED 23.6.2017 ISSUED BY THE SEIAA. EXHIBIT P4 THE TRADE LICENCE, DATED 22.5.2020 BEARING NO.B1-3/919/20 ISSUED BY THE LOCAL AUTHORITY TO THE PETITIONER FOR RUNNING QUARRY AS PER EXHIBIT P1. EXHIBIT P5OF THE CONSENT DATED 1.4.2019, BEARING NO.R17KOT5565336, ISSUED BY POLLUTION CONTROL BOARD, FOR RUNNING THE QUARRY AS PER EXHIBIT P1. EXHIBIT P6OF THE ORDER DATED 21.7.2020 IN O.A.304/2019 PASSED BY THE HON'BLE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI.

WP(C) NO. 20671 OF 2020 AND CON.CASES 13 APPENDIX OF WP(C) 21390/2020 PETITIONER EXHIBITS EXHIBIT P1OF THE LETTER OF INTENT BEARING NO.2807/DOY/ML/2019 DATED 10/02/2020 ISSUED IN FAVOUR OF THE PETITIONER BY THE 1ST RESPONDENT. EXHIBIT P2OF THE SURVEY PLAN BEARING NO.1080/2019 DATED 29/10/2019 ISSUED BY THE VILLAGE OFFICER, KADUTHURUTHI. EXHIBIT P3OF THE ENVIRONMENTAL CLEARANCE BEARING NO.2565/A2/2019/SIAA DATED 04/08/2020 ISSUED BY SEIAA. EXHIBIT P4OF CONSENT GIVEN BY THE ADJACENT LAND OWNERS TO THE 1ST RESPONDENT. EXHIBIT P5OF NOC BEARING NO. AB 3-98/NOC/15- 16 DATED 04/12/2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT. EXHIBIT P6 AOF THE CERTIFICATE BEARING NO. AB3/98/NOC/152/16 DATED 04.12.2019 ISSUED BY THE VILLAGE OFFICER, KADUTHURUTHY. EXHIBIT P7OF THE BASIC TAX RECEIPT DATED 19/08/2020 ISSUED IN THE NAME OF THE PETITIONER IN RESPECT OF THE LAND FROM WHICH THE RED EARTH IS TO BE REMOVED. EXHIBIT P8OF THE ORDER DATED 21/07/2020 IN OA. 304/2019 PASSED BY THE HON'BLE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI.

WP(C) NO. 20671 OF 2020 AND CON.CASES 14 APPENDIX OF WP(C) 21443/2020 PETITIONER EXHIBITS EXHIBIT P1OF THE ENVIRONMENTAL CLEARANCE BEARING NO.EC 7/1/2018 DATED 18.01.2018 ISSUED IN FAVOUR OF THE PETITIONER BY DEIAA, KOTTAYAM. EXHIBIT P2 AOF THE TRADE LICENCE SECURED BY THE PETITIONER FROM THE LOCAL AUTHORITY- THE KADANAD GRAMAPANCHAYATH. EXHIBIT P3 AOF THE GEOLOGY PERMIT NO.16/GBS/QP/2018-19/2561/DOY/ML/2018 DATED 15.10.2018 ISSUED BY THE 1ST RESPONDENT IN FAVOUR OF THE PETITIONER. EXHIBIT P4 THEOF VALID EXPLOSIVE LICENCE BEARING NO.E/SC/KL/22/502(E11435) ISSUED IN FAVOUR OF THE PETITIONER AS PER PROCEEDINGS DATED 07.11.2018 OF THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, KAKKANAD. EXHIBIT P5 THEOF VALID CONSENT OF THE POLLUTION CONTROL BOARD AS PER THE CONSENT VARIATION ORDER BEARING CONSENT NO.R15KOT1333292 DATED 05.10.2018 ISSUED BY THE ENVIRONMENTAL ENGINEER IN FAVOUR OF THE PETITIONER. EXHIBIT P6 THEOF GST REGISTRATION NO.32BBLPA6949P1Z5 DATED 25.12.2018 ISSUED BY THE GOODS AND SERVICE TAX DEPARTMENT IN FAVOUR OF THE PETITIONER. EXHIBIT P7 AOF THE TREASURY CHALLAN DATED 30.4.2019 PAID BY THE PETITIONER FOR ISSUING LEASE. EXHIBIT P8 AOF THE TREASURY CHALAN DATED 02.11.2019 PAID BY THE PETITIONER FOR ISSUING PERMIT. EXHIBIT P9 AOF THE ORDER DATED 21.07.2020 IN O.A.304/2019 PASSED BY THE HON'BLE NGT.

WP(C) NO. 20671 OF 2020 AND CON.CASES 15 APPENDIX OF WP(C) 22828/2020 PETITIONER EXHIBITS EXHIBIT P1OF THE EXPLOSIVE LICENCE DATED 09/04/2018 BEARING NO.E/SE/KL/22/160 (E108605) EXHIBIT P2OF THE SURVEY PLAN IN RESPECT OF THE MINING AREA ISSUED BY THE TAHASILDAR, THODUPUZHA EXHIBIT P3OF THE TREASURY CHALLAN DATED 8/11/2019 EXHIBIT P4OF THE ORDER DATED 6/8/2020 IN WP(C) 15305/2020 EXHIBIT P5OF THE ORDER DATED 18/8/2020 IN WP(C) 15305/2020 AND WPC 16367/2020 EXHIBIT P6OF THE ORDER IN W.P.(C) NO.17391 OF 2020 DATED 14/9/2020