Allowed

Shoukath Ali v. Ministry of Environment and Forest

Kerala HC9 Dec 2016WP(C)/7781/2015

Case brief

AI extract

What is this about?

This court allowed a writ petition seeking prohibition of quarrying operations by the 6th respondent without an Environmental Clearance (EC) certificate. The court held that EC is mandatory per the Deepak Kumar judgment and relevant notifications, overriding permit renewal rules, and directed officials to ensure compliance.

What did the court decide?

Directed official respondents to ensure no quarrying operations are carried out without Environmental Clearance and proper permits under MMDR Act and KMMC Rules.

Shoukath Ali Vs Ministry of Environment and Forest — Writ and Judicial Review | 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 K.VINOD CHANDRAN

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FRIDAY, THE 9TH DAY OF DECEMBER 2016/18TH AGRAHAYANA, 1938

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WP(C).No. 7781 of 2015 (W) ---------------------------

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PETITIONER:

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SHOUKKATH ALI, AGED 32 YEARS, S/O.MOHAMMED ALI C., CHARALIL HOUSE, NORTH PALOOR, PULAMANTHOLE P.O., MALAPPURAM DISTRICT - 679 323. BY ADVS.SRI.P.G.SURESH SRI.G.SUDHEER (THURAVOOR) SRI.RAJAN VISHNURAJ SRI.V.HARISH

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RESPONDENTS:-

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1. MINISTRY OF ENVIRONMENT AND FOREST PARYAVARAN BHAVAN, CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003, REPRESENTED BY ITS SECRETARY. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF ENVIRONMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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3. THE GEOLOGIST, DISTRICT OFFICE, MINI CIVIL STATION, MANJERI P.O., MALAPPURAM - 676 121.

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4. THE DISTRICT COLLECTOR, CIVIL STATION, MALAPPURAM DISTRICT - 676 505.

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5. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, MALAPPURAM - 676 505.

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6. M.K.NAJEEB, S/O.HASSAINAR, MANNEGAL KANNANTHODI HOUSE, PALOOR, PULAMANTHOLE P.O., MALAPPURAM DISTRICT - 679 323.

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R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R6 BY ADV. SRI.S.SREEKUMAR (SR.) R6 BY ADV. SRI.P.MARTIN JOSE R6 BY ADV. SRI.P.PRIJITH R6 BY ADV. SRI.THOMAS P.KURUVILLA R5 BY ADV. SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, R2 -R 4 BY SR. GOVERNMENT PLEADER SRI.RENIL ANTO

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 7781 of 2015 (W)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1. A TRUE PHOTOCOPY OF THE COMPLAINT DATED 03.08.2013 PREFERRED BY THE PETITIONER AS WELL AS THE LOCALITIES BEFORE THE VILLAGE OFFICER, PULAMANTHOLE.

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P2. A TRUE PHOTOCOPY OF THE REPORT OF THE TAHSILDAR DATED 01.08.2013.

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P3. A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 16.12.2014 IN WPC NO.6361/2014 AND CONNECTED CASES BY THE HON'BLE HIGH COURT OF KERALA.

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P4. A TRUE PHOTOCOPY OF THE REPRESENTATION PREFERRED BEFORE THE 3RD RESPONDENT.

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P5: A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 17.02.2016 ISSUED BY THE 3RD RESPONDENT

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P6: TRUE PHOTOCOPY OF THE REPORT OF THE VILLAGE OFFICER, PULAMANTHOLE DATED 23.02.2016

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RESPONDENT(S)' EXHIBITS

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R6(A) TRUE COPY OF THE RENEWED PERMIT ISSUED BY THE 3RD RESPONDENT FOR CONDUCTING THE QUARRY IN SY. NO.1/1B

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R6(AA) TRUE COPY OF THE RENEWED PERMIT FOR THE QUARRY SITUATED IN SY.NO.85

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R6(B) TRUE COPY OF THE LICENSE ISSUED BY THE LOCAL PANCHAYAT

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R6(BB) TRUE COPY OF THE LICENSE ISSUED BY THE LOCAL PANCHAYAT

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R6(C) TRUE COPY OF THE EXPLOSIVE LICENSE DATED 30.04.2015

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R6(D) TRUE COPY OF THE CERTIFICATE CUM AGREEMENT OF THE LICENSED BLAST MAN.

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R6(E) TRUE COPY OF THE LICENSE ISSUED BY THE PANCHAYAT EXTENDING ITS VALIDITY UPTO 31.12.2015

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ANNEXURE R5(A) A TRUE COPY OF INTEGRATED CONSENT TO OPERATE RENEWAL DATED 29.06.2015

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ANNEXURE R5(B) A TRUE COPY OF CONSENT VARIATION ORDER DATED 08.02.2016

//TRUE COPY//

P.A.TO JUDGE

JJJ

K. VINOD CHANDRAN, J.

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W.P.(C) No. 7781 of 2015 (W) -----------------------------------------Dated: 09^th December, 2016

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J U D G M E N T

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Read order dated 07.07.2015:

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“The 6^th respondent seeks modification of the interim order, insofar as the 6^th respondent has been interdicted from carrying on the quarrying operation on the basis of renewed permits issued, produced as Exhibits R6(a) and R6(aa).

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The brief facts to be noticed are that, the 6^th respondent had valid permits, which were extended till 09.02.2015, which are produced as Exhibits R6(a) and R6(aa). The writ petition was filed on the ground that there was no renewal of those permits. On 25.03.2015, there was an interim order granted in the above writ petition, restraining the 6^th respondent from carrying on quarrying operations illegally. The 6^th respondent was in appeal before the Division

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W.P.(C) No. 7781/2015

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Bench, in which by judgment dated 25.05.2015 it was directed that the 6^th respondent would have liberty to approach the Geologist for renewal of the permit and then seek modification or vacation of the interim order dated 25.03.2015. In the meanwhile, 6^th respondent moved an Interlocutory Application in the writ petition, which was allowed on 17.04.2015 directing the Geologist to consider the application for renewal.

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The 6^th respondent now asserts his claim to carry on the quarrying operation on the basis of Exhibits R6(a) and R6(aa). The 6^th respondent also would take me through the proviso to Rule 12 of the Kerala Minor Mineral Concession Rules, 2015 [for brevity “KMMC Rules of 2015”], which specifically indicates that any person having a valid permit on 09.01.2015 shall be granted the permit without an Environmental Clearance Certificate. However, what assumes for consideration is the decision of the Division Bench of this Court in All Kerala River

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W.P.(C) No. 7781/2015

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Protection Council v. State of Kerala [ 2015 (2) KLT 78] .

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The learned counsel for the 6^th respondent would in fact rely on the pronouncement of the Division Bench, in paragraph 74, wherein it is stated that the Government Orders issued by the State had to be read in accordance with the decision in Deepak Kumar and others v. State of Haryana and others [(2012) 3 SCC 629] and the notification dated 14.09.2006 issued by the Central Government. In the context of the Rules of 2015 having come into force; also in accordance with the said Rules. On the basis of the authoritative pronouncement as to the licence being eligible for renewal on the basis of the Rules of 2015, the 6^th respondent would contend that he is entitled to the renewal, which has already been granted, since he had a valid permit as on 09.01.2015, as per Exhibits R6(a) and R6(aa).

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What is relevant for consideration is paragraph 67 and 68 of the judgment of the Division Bench, which is extracted

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W.P.(C) No. 7781/2015

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hereunder:

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“67. Now the order of the National Green Tribunal dated 27.09.2013 has been quoted in the referring order. The Tribunal vide its interim order issued the following directions:

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“Accordingly, we restrain any person, Company and Authority to carry out any such digging activities of brick earth or ordinary earth against the directives issued by the MoEF dated 24.06.2013 in any part of the country without obtaining EC from the competent authority as per the Notification. The Chief Secretaries of all the States/UTs are to ensure strict adherence to this order. Dasti order allowed.”

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Interim order of the Tribunal having been issued to all Chief Secretaries of the State who were directed to ensure strict adherence of the order. Unless the said order is varied or modified, the State was under an obligation to comply with the said direction.”

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W.P.(C) No. 7781/2015

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Hence, as on 24.06.2013, the Ministry of Environment and Forest had issued a notification, by which no activities of quarrying could be carried out in any part of the country without obtaining Environmental Clearance from the competent authority as per the notification, also to quarries having less than 5 Hectares. This Court has on the basis of the Division Bench judgment also held so in judgment dated 26.05.2015 in WP (C) No.14405 of 2015 relying on the following declaration of the Division Bench:

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“(i) In case where

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quarrying/mining/lease which were existing on the date of issuance of Notification dated 14.09.2006 or on the date of issue of the order dated 18.05.2012 by the Government of India, Ministry of Environment and Forests with regard to area less than 5 hectares no environmental clearance with regard to extraction of minor

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W.P.(C) No. 7781/2015

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mineral is required. Notification dated 14.09.2006 contemplated obtaining environmental clearance only with regard to new projects/new activities.”

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The Division Bench categorically found that in view of the specific orders issued by the National Green Tribunal, no quarrying permits could have been granted by the State based on the Government Notifications issued by the State without an Environmental Clearance Certificate. The 6^th respondent does not have a case that, he has an Environmental Clearance Certificate. He places his entire case on Rule 12, which permits renewals of the permits, which were in existence as 09.01.2015. Since the said permits, which were relied on, being Exhibits R6(a) and R6(aa), are one without obtaining Environmental Clearance Certificate, going by the authoritative pronouncement of the Division Bench, the 6^th respondent cannot be permitted to carry on the quarrying operations.

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W.P.(C) No. 7781/2015

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In the above circumstances, this Court is not inclined to grant any modification of the interim order dated 25.03.2015.”

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The above order was challenged before the Division Bench and the same was dismissed on 03.08.2016 in W.A. No.1514/2015 Najeeb V. Shoukath Ali - 2015 (3) KLT 396 . The issue even now agitated is with respect to whether the 6^th respondent could carry on quarrying operations without an Environmental Clearance based on the status quo order issued by the Hon'ble Supreme Court in a challenge from All Kerala River Protection Council v. State of Kerala - 2015

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(2) KLT 78 .

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This Court has in Joseph Mathew v. State of Kerala - 2016 (3) KLT 102 held that the interim order of the Hon'ble Supreme Court in S.L.P.(C) No. 30103/2005 granting status quo is of no consequence with respect to the issuance of quarrying permit

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W.P.(C) No. 7781/2015

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without an EC. The SLP, in which the status quo order was issued, was against the judgment in All Kerala River Protection Council ; which SLP has now been dismissed by the Hon'ble Supreme Court. The requirement for Environmental Clearance emanates from Deepak Kumar v. State of Haryana - (2012) 4 SCC 629 and has been incorporated in the Environmental Impact Assessment Notification No. 2006 (S.O. 1533(E)) dated 14.09.2006 issued by the Ministry of Environment and Forests and Climate Change by S.O No. 141 (E) dated 15.01.2016. Hence, no quarrying can be carried out without an Environmental Clearance.

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In the context of the above facts, subsequent to the order passed, there could be no quarry operations carried on by the 6^th respondent without an Environmental Clearance, and hence the writ petition

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W.P.(C) No. 7781/2015

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has to be allowed. The learned Counsel for the petitioner, however, submits that despite the interim order the quarry was carried on. The further contention is based on the affidavit, now directed to be placed on record as per the directions of this Court, which states about the Geologist having noticed the functioning of the quarry and the closure made on such inspection. It is also submitted that the Geologist has been permitting such violations and then compounding the offences. It is also submitted that, despite the order of this Court, Ext.P5 permit dated 17.02.2016 has been issued by the Geologist, District Office of Mining & Geology, Mini Civil Station, Manjeri, Malappuram District. Separate proceedings are taken suo motu for contempt against the said officer.

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The writ petition would stand allowed, directing the official respondents to ensure that no

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W.P.(C) No. 7781/2015

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quarrying operations are carried on by the 6^th respondent without an Environmental Clearance and without proper permits issued under the the Mines and Mineral (Development and Regulation) Act, 1957 (for short 'MMDR Act') Kerala Minor Mineral Concession Rules 2015 (for short 'KMMC Rules') and the D&O license by the local authority, as also the 'Consent to Establish and Operate' issued by the Kerala State Pollution Control Board.

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The matter shall be posted on 09.01.2017 to decide on the contempt proposed to be initiated and the files are retained only for the said purpose.

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Sd/K.VINOD CHANDRAN, JUDGE

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jjj 9/12/16

Shoukath Ali v. Ministry of Environment and Forest

Case brief

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Shoukath Ali v. Ministry of Environment and Forest

Case brief

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