Allowed

Scaria v. the District Geologist

Kerala HC8 Feb 2016WP(C)/431/2016

Case brief

AI extract

What is this about?

Court held that Category B2 excavation under 5 hectares does not require public consultation. Grama Panchayath lacked jurisdiction to issue a stop memo against a valid environmental clearance. Stop memo was set aside. Petitioner to be deprecated to file complaint with Geologist regarding alleged violations.

What did the court decide?

The stop memo is set aside. The Geologist is directed to consider the request for renewal of the quarrying permit without delay, subject to strict adherence to environmental clearance conditions.

Scaria Vs the District Geologist — Mining and Natural Resources | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937

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WP(C).No. 431 of 2016 (D)

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PETITIONER:

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SCARIA, S/O.VARKEY, AGED 65 YEARS, MOLATHU HOUSE, KINGINIMATTOM.P.O., AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.

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BY ADV. SRI.P.M.ZIRAJ

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RESPONDENTS:

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1. THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, ERNAKULAM DISTRICT-682 030.

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2. THE DIRECTOR, MINING AND GEOLOGY, OFFICE OF THE MINING AND GEOLOGY, KESAVADASAPURAM, PATTAM, THIRUVANANTHAPURAM-695 001.

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3. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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*ADDL.R4 & R5 IMPLEADED

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*ADDL.R4: POOTHRIKKA GRAMA PANCHAYATH, POOTHRIKKA.P.O., ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY-682 030

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*ADDL.R5: THE SECRETARY, POOTHRIKKA GRAMA PANCHAYATH, POOTHRIKKA.P.O., ERNAKULAM DISTRICT-682 030

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*ASSL.R4 & R5 ARE IMPLEADED AS PER ORDER DATED 6/1/2016 IN I.A.NO.138/2016.

2/-

sts

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WP(C).NO.431/2016

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*ADDL.R6 IMPLEADED

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*ADDL.R6: SRI.P.M.VIJAYAN, S/O.LATE MADHAVAN, AGED 52 YEARS, PALAKUZHI HOUSE, VADAYAMPADY.P.O., PUTHENCRUZ, ERNAKULAM.

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*ADDL.R6 IS IMPLEADED AS PER ORDER DATED 27/1/2016 IN IA.NO.868/2016.

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R1 TO R3 BY GOVERNMENT PLEADER SRI.MANOJ KUNJACHAN ADDL.R4 & R5 BY ADV. SRI.SAJEEV KUMAR K.GOPAL ADDL.R6 BY ADV. SRI.PAUL K.VARGHESE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-02-2016,ALONG WITH WP(C).NO.1209/2016 AND WP(C).NO.1466/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 431 of 2016 (D)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF NO OBJECTION CERTIFICATE DATED 17.11.2015 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM

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P2 TRUE COPY OF THE QUARRYING PERMIT FOR ORDINARY EARTH DATED 18.12.2015 ISSUED BY THE FIRST RESPONDENT

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P3 TRUE COPY OF THE CLEARANCE CERTIFICATE DATED 20.10.2015 ISSUED BY THE KERALA STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY

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P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE CENTRE FOR WATER RESOURCE DEVELOPMENT AND MANAGEMENT,THIRUVANANTHAPURAM DATED 18.2.2014

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P5 TRUE COPY OF THE STOP MEMO DATED 21.12.2015 ISSUED BY THE PRESIDENT OF POOTHRIKKA GRAMA PANCHAYATH.

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RESPONDENT(S)' EXHIBITS

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R6 COPY OF THE DECISION DATED 19/4/2013 OF POOTHRIKKA GRAMA PANCHAYATH.

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R6(A) COPY OF THE G.O.NO.59/15 OF THE SECRETARY TO GOVERNMENT DATED 29/9/2015.

/TRUE COPY/

P.A.TO JUDGE

sts

A.MUHAMED MUSTAQUE, J.

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==================

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W.P.(C).Nos. 431, 1209 and 1466 of 2016

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==================

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Dated this the 8^th day of February, 2016

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These writ petitions are related to excavation and

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transporting ordinary earth by One Sri.Scaria who is the writ petitioner in W.P.(C) No.431/2016.

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The W.P.(C) No.1209/2016 is filed by the local resident challenging environmental clearance certificate issued to Sri.Scaria.

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The W.P.(C) No.1466/2016 is filed by another local resident seeking implementation of stop memo issued by the Local Panchayath.

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W.P.(C) No.431/2016 is filed by Sri.Scaria himself challenging the stop memo issued by the Local Panchayath. Admittedly Sri.Scaria obtained environmental clearance. Based

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on the environmental clearance he is extracting the ordinary earth from the site.

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: 2 :-

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W.P.(C).Nos. 431, 1209 and 1466 of 2016

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The W.P.(C) No.1209/2016 is filed challenging environmental clearance stating that environmental clearance is issued without public consultation as contemplated under the notification of Ministry of Environment and Forest dated 14.9.2006. According to the writ petitioner therein notification clearly contemplates a public consultation before issuance of environmental clearance. Before proceeding further, it is appropriate to refer the challenge made by the writ petitioner in W.P.(C) No.1209/2016.

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The notification issued by the Ministry of Environment and Forest dated 14.9.2006 contemplates the different stages of a project evaluation for the purpose of granting environmental clearance. It refers public consultation as process by which local affected persons would be consulted for the purpose of assessment of environmental impact to the project proposal. However it further refers in certain categories of activities it is not required to have a public consultation. Here in this case Sri.Scaria's activity comes under the category B2 as the extent of area for excavation is less than 5 hectors. Therefore the stand of

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: 3 :-

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W.P.(C).Nos. 431, 1209 and 1466 of 2016

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Sri.Scaria is that there is no requirement of public consultation.

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I am also is of the view that since project of Sri.Scaria is coming under the B2 category there is no requirement of public consultation. Therefore challenge based on the absence of public consultation before granting environmental clearance is unsustainbale. Accordingly it is declined.

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The next challenge is based on W.P.(C) No.1466/2016. In this case the petitioner seeks implementation of the order of the Local Panchayath, prohibiting the excavation. The Local Panchayath in this order found that any excavation in the area would results in drying up of the water sources and therefore it cannot be permitted. It is to be noted that Sri.Scaria is operating based on the environmental clearance. Certainly, the Environmental Authority is having expertize to take any view in the matter of drying up of source of the water. Panchayath cannot take independent decision to over rule the clearance granted by the State Environmental Impact Assessment Authority. Therefore this Court is of the view that it is beyond the jurisdiction of the Panchayath to issue such order. However

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: 4 :-

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W.P.(C).Nos. 431, 1209 and 1466 of 2016

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the petitioner in W.P.(C) No.1466/2016 has further grievance in the matter. According to the petitioner Sri.Scaria is excavating ordinary earth in violation of the environmental clearance and permission. Certainly this is a matter requires an enquiry by the Geologist. If Sri.Scaria is violating any of the conditions in the environmental clearance or permit, the Geologist shall take necessary action against the operation. Therefore the writ petitioner in W.P.(C) No.1466/2016 is relegated to approach the Geologist complaining illegal actions of the Sri.Scaria. If any complaint is filed by the above writ petitioner, certainly the Geologist shall take appropriate decision in accordance with law. 9. The W.P.(C) No.431/2016 is filed by Sri.Scaria challenging stop memo. In view of the observation and findings already adverted as above this Court is of the view that the stop memo is unsustainable, accordingly stop memo is set side. The writ petition is disposed of as above. The writ petitioner in W.P.(C) No.431/2016 submits that his permit has been expired, pending writ petition. This Court is of the view that the Geologist shall consider the request for renewal in the light of environmental

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W.P.(C).Nos. 431, 1209 and 1466 of 2016

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: 5 :-

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clearance without any delay. However before granting renewal necessarily the Geologist shall ensure that Sri.Scaria shall strictly follow the conditions of environmental clearance issued by the authority. If permit is renewed necessary O.A form shall be given to Sri.Scaria.

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sd/-

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sab

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A.MUHAMED MUSTAQUE, JUDGE

Scaria v. the District Geologist

Case brief

What is this about?

What did the court decide?

Scaria v. the District Geologist

Case brief

What is this about?

What did the court decide?

What the court decided

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