Disposed

K.M. Joy v. the Paristithy Samrakshana Janakeeya Samithi

Kerala HC28 Feb 2018WA/398/2018

Case brief

AI extract

What is this about?

In this writ appeal, the High Court of Kerala dismissed a challenge to the earlier Judgment which had quashed an Environmental Clearance. The intermediate court held that SEIAA lacked jurisdiction as the authority should have been DEIAA. The High Court agreed jurisdiction lay with DEIAA and transferred the application there for fresh processing.

What did the court decide?

The appeal is disposed. The Environmental Clearance application filed on 21.07.2015 is directed to be transferred from the State Level Body to the District Level Authority for fresh processing within

K.M. Joy Vs the Paristithy Samrakshana Janakeeya… — Mining and Natural Resources | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939

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WA.No. 398 of 2018 IN WPC. 27363/2017

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AGAINST THE JUDGMENT IN WP(C) 27363/2017 of HIGH COURT OF KERALA

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- APPELLANT(S)/5TH RESPONDENT IN WP:

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K.M. JOY MANAGING PARTNER, J.B. GRANITES, KACHAPPILLY HOUSE, PULIYANAM P.O, ANGAMALI, ERNAKULAM DISTRICT - PIN-683 577

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BY ADVS.SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL

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RESPONDENT(S)/WRIT PETITIONERS & RESPONDENTS 1 TO 4 IN WP:-:

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1. THE PARISTHITHY SAMRAKSHANA JANAKEEYA SAMITHI REPRESENTED BY ITS PATRON P.P. PHILIP, REGISTRATION NO. ER 527/08, KARUKUTTY P.O, MAMBRA, ERNAKULAM DISTRICT, PIN-683576

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2. SIGI BABU, AGED 39 YEARS, W/O. BABU ANTONY, PALLISSERY HOUSE, MAMBRA, KARUKUTTY P.O, ERNAKULAM DISTRICT, PIN-683 576

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3. THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, REPRESENTED BY ITS CHAIRMAN, (SEIAA), DEVIKRIPA, PALLIMUKKU, PETTAH P.O, THIRUVANANTHAPURAM, PIN-695 024

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4. THE STATE EXPERT APPRAISAL COMMITTEE (SEAC), REPRESENTED BY ITS CHAIRMAN, DEVIKRIPA, PALLIMUKKU, PETTAH P.O, THIRUVANANTHAPURAM, PIN-695 024.

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5. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-682 011

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6. THE GEOLOGIST, DISTRICT OFFICE OF THE DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, KAKKANAD, ERNAKULAM-PIN-682 011

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ADDITIONAL RESPONDENTS*

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7. THE DISTRICT LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (DEIAA), REPRESENTED BY ITS CHAIRMAN CIVIL STATION, KAKKANAD, ERNAKULAM PIN - 682 011

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CONTD..2..

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..2..

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WA.No. 398 of 2018 IN WPC. 27363/2017

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8. THE DISTRICT LEVEL EXPERT APPRAISAL COMMITTEE (DEAC) REPRESENTED BY ITS MEMBER SECRETARY 4TH FLOOR, CIVIL STATION, KAKKNAD, ERNAKULAM- 682 011

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**(ADDITIONAL RESPONDENTS 7 AND 8 ARE IMPLEADED AS PER ORDER DATED 28.02.2018 IN I.A NO.251 OF 2018)*

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R 1-2 BY SRI.K.ABDUL JAWAD R3-8 BY GOVERNMENT PLEADER SRI. ARAVIND KUMAR BABU

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28-02-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

//TRUE COPY //

P.A TO JUDGE

ANTONY DOMINIC, C.J. & DAMA SESHADRI NAIDU, J.

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= = = = = = = = = = = = = = = = = = = = = = = = = Writ Appeal No.398 of 2018

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= = = = = = = = = = = = == = = = = = Dated this the 28^th day of February, 2018

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JUDGMENT

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Antony Dominic, C.J.

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The 5^th respondent in W.P.(C)No.27363 of 2017 is the

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appellant. The writ petition was filed by respondents 1 and 2. In the writ petition, the prayer sought for was to quash Exts.P12 and P14 and to declare that respondents 3 and 4 did not have jurisdiction to consider and pass orders on the application made by the appellant after 15.01.2016, as the 4^th respondent had not made any recommendation by that time. By the judgment under appeal, taking note of the amendments that were made to the Environment Impact Assessment Notification 2006 ('EIA Notification 2006' for short), w.e.f. 15.01.2016, the learned Single Judge held that Exts.P12 and P14 are without jurisdiction and on that basis, allowed the writ petition. It is this judgment, which is

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challenged before us.

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W.A. No.398/2018

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We heard the learned counsel for the appellant, the learned counsel appearing for respondents 1 and 2, and the learned Government Pleader appearing for the other respondents.

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Ext.P12 is the Environmental Clearance ('EC' for short) granted to the appellant on 15.02.2017 and Ext.P14 is the consequential order passed by the State Environment Impact Assessment Authority ('SEIAA' for short), declining to review the EC granted. The 5^th respondent sought EC, in respect of a mining unit, having an extent of less than 5 hectares. Admittedly, in view of Ext.P7 amendment to the EIA Notification 2006, in view of the provisions contained in clause 4 (iv), B2 category projects, pertaining to mining of minor mineral of lease area, less than or equal to 5 hectares require, prior EC from the District Environment Impact Assessment Authority ('DEIAA' for short), which shall base its decision on the recommendations of District Expert Appraisal Committee (DEAC). Admittedly, the appellant had made his application on

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W.A. No.398/2018

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21.07.2015, when the power and jurisdiction to grant EC was with the SEIAA, the 3^rd respondent. At that time, the SEIAA was to base its decision on the recommendation of the State Expert Appraisal Committee (SEAC). It was this position, which was altered by Ext.P7 amendment, w.e.f. 15.01.2016 and the effect of the amendment is that for mining of minor mineral of lease area, less than or equal to 5 hectares, as in the case of the appellant, the power to grant EC stands vested on DEIAA by clause 3A to the EIA Notification 2006, which was to base its decision on the recommendation of DEAC. In the case of the appellant, despite the change in jurisdiction consequent on the amendment w.e.f. 15.01.2016, the application submitted by the appellant on 21.07.2015 was processed and on 11.08.2016, recommendation was made by the 4^th respondent, the SEAC and the EC was granted by the 3^rd respondent on 15.02.2017. From the above narration of facts itself, it is clear that at the time when the recommendations were made and at the time when the EC was granted,

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W.A. No.398/2018

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respondents 3 and 4 did not have jurisdiction in the matter, in the case of B2 category of projects, such as that of the appellant. Therefore, the learned Single Judge cannot be faulted for the conclusions in the judgment.

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However, the facts remains that, at the time when the SEIAA had authority to grant EC, even in respect of B2 category of projects, the appellant had made its application to it on 21.07.2015 in Form-I. We also find that subsequently on 15.03.2016, the Government of India, Ministry of Environment, Forest and Climate Change, Impact Assessment Division had issued Ext.P7(a) Office Memorandum, clarifying that, in the case of category B2 projects, where SEAC has already recommended the case for EC, the applications are to be processed at the level of SEIAA for the grant of EC. However, no such clarification has been issued in respect of applications, which were received by the SEIAA and recommendations were not made by the SEAC as on the date of the amendment. Therefore, in such cases, having regard to

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W.A. No.398/2018

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the conferment of jurisdiction on the DEIAA, it was necessary that such applications should have been transferred to the DEIAA, for obtaining expert recommendation from the DEAC concerned.

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Viewed in that manner, we have to think that the application made by the appellant on 21.07.2015 to the 3^rd respondent should have been made over to the additional 7^th respondent, and the additional 7^th respondent should have considered the application, in accordance with the provisions of the EIA Notification 2006, after obtaining expert recommendation from the additional 8^th respondent, DEAC.

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We, therefore, dispose of this appeal, directing that the 3^rd respondent shall transfer the application made by the appellant for EC on 21.07.2015 along with its enclosures to the additional 7^th respondent, who, on receipt thereof, if satisfied that it contains all necessary particulars and documents, should obtain recommendation of the additional 8^th respondent and based on such recommendation, consider

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W.A. No.398/2018

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the application and pass final orders in the matter, in the light of the provisions contained in the EIA Notification 2006 and other relevant statutory provisions. It is also directed that before final orders are passed, opportunity shall be afforded to the appellant and also to respondents 1 and 2. It is directed that the 3^rd respondent shall within three weeks of receipt of this judgment, transfer the application made by the appellant, along with its enclosures to the additional 7^th respondent and the additional 7^th respondent shall complete the process, in accordance with law, at any rate, within the time prescribed in the EIA Notification 2006.

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Sd/ANTONY DOMINIC, CHIEF JUSTICE

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Sd/DAMA SESHADRI NAIDU,

JUDGE

SB/01/03/2018

// true copy//

P.A to Judge

K.M. Joy v. the Paristithy Samrakshana Janakeeya Samithi

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K.M. Joy v. the Paristithy Samrakshana Janakeeya Samithi

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