Dismissed

M/S. Peege Aggregates Pvt. Ltd., v. State of Kerala

Kerala HC22 Nov 2021WA/1451/2021

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed this writ appeal filed by a stone quarry operator. The court upheld the single Judge's decision that the appellant's Environmental Clearance benefit, granted during the pandemic, had expired, and that the lower court correctly dismissed the petition for non-renewal of consent.

What did the court decide?

The writ appeal was dismissed; the judgment of the learned single Judge dismissing the writ petition was upheld.

M/S. Peege Aggregates Pvt. Ltd., Vs State of Kerala — Environment and Pollution | Kerala HC (2021)

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W.A. No. 1451/2021

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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.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 22^ND DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943

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WA NO. 1451 OF 2021

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APPELLANT/PETITIONER:

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M/S. PEEGE AGGREGATES PVT. LTD.,

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11/165, REPRESENTED BY ITS MANAGING DIRECTOR, NAVEEN MATHEW PHILIP, AGED 39 YEARS, THEKKENEDUMPLACKAL HOUSE, MALLAPPALLY WEST P.O, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, PIN 689 585.

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BY ADVS. P.HARIDAS BIJU HARIHARAN P.C.SHIJIN RISHIKESH HARIDAS

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES, GROUND FLOOR, MAIN BLOCK STATE SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.

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2 KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS MEMBER SECRETARY, OFFICE OF THE KERALA STATE POLLUTION CONTROL BOARD, PATTOM P.O, THIRUVANANTHAPURAM-695 004.

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3 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, PATHANAMTHITTA, OFFICE OF THE ENVIRONMENTAL ENGINEER, KUNNITHOTTATHIL BUILDINGS, OPPOSITE GENERAL HOSPITAL, K.K. NAIR ROAD, PATHANAMTHITTA, PIN 689 645.

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4 GEOLOGIST,

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MINING AND GEOLOGY DEPARTMENT, DISTRICT OFFICE, PATHANAMTHITTA, ADOOR P.O, PIN 691 523.

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5 SECRETARY, KOTTANGAL GRAMA PANCHAYAT, KOTTANGAL GRAMA PANCHAYAT OFFICE, CHENNIKKARA- MARANKULAM ROAD, KULATHOOR NADUBHAGOM, PATHANAMTHITTA DISTRICT, PIN 686 547.

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6 STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, (SEIAA KERALA), REPRESENTED BY ITS MEMBER SECRETARY, 4TH FLOOR, KSRTC BUS TERMINAL COMPLEX, THIRUVANANTHAPURAM, PIN 695 001.

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BY ADV SHRI.M.P.SREEKRISHNAN, SC, STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA) AND THE STATE EXPERT APPRAISAL COMMITTEE (SEAC)

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R1 TO R4 BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER R2 & R3 BY SRI. T.NAVEEN, SC

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 1451/2021

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Dated this the 22^nd day of November, 2021.

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JUDGMENT

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SHAJI P. CHALY,J.

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The petitioner in W.P.(C) No. 19272 of 2021 has preferred this appeal challenging the judgment of the learned single Judge dated 21.10.2021, whereby the learned single Judge dismissed the writ petition and declined the following relief sought for by the appellant:

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Issue a writ in the nature of mandamus or any other appropriate writ directing the 3^rd respondent to consider Ext. P8 and to renew the Integrated Consent of the petitioner upto 11.02.2022 during which the quarrying permit is proposed to be extended and may direct the 5^th respondent to issue licence upon receipt of such consent.

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Brief material facts for the disposal of the appeal, discernible

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from the memorandum, are as follows:

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The appellant is a stone quarry operator from the year 2015 with valid permits, requisite licences and the Environmental Clearance. The Environmental Clearance was valid only upto 09.08.2020. Therefore, according to the appellant, quarrying permit and consent to operate were also given only upto that period. In the meantime, in view of the National lock down and the restrictions imposed due to the outbreak of Covid 19- pandemic, the petitioner stopped quarrying operations on 23.03.2020. According to the appellant, he could carry the quarrying

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operation only for 24 days between 13.07.2020 and 09.08.2020.

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In the meantime, the Union Government issued Ext. P3 notification modifying the environment impact assessment notification and extended the validity of the Environmental Clearances in force upto 31.03.2021. Thereafter, the Union Government issued Ext. P4 notification excluding the period of the Environmental Clearance issued from 01.04.2020 to 31.03.2020. The case of the appellant is that taking into account the cumulative effect of Exts. P3 and P4 notification issued by the Union Government, the Government of Kerala issued Ext. P5 Government Order dated 12.02.2021 directing to extend the validity of the quarrying permits and quarrying lease for a period of one year, in view of Ext. P4 notification dated 18.01.2021 of the Government of India.

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It is also the case of the appellant that pursuant to Ext. P5 order passed by the State Government, the Geologist, Mining and Geology Department, Adoor P.O., Pathanamthitta— 4^th respondent has addressed Ext. P6 letter to the Pollution Control Board and the local authority stating that on issuing the consent and D & O licence, the quarrying permit of the appellant would be renewed. Other contentions were also raised.

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The grievance of the appellant before the learned single Judge was that the Pollution Control Board was not processing Ext. P8

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application and refusing to renew the consent to operate and therefore, the local authority also could not renew the licence. It was in the said background the writ petition was filed seeking a direction to the Pollution Control Board to issue consent requiring the environmental clearance authority and the local authority to issue D & O licence.

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The learned single Judge, after taking into account the legal and factual circumstances, has dismissed the writ petition basically holding that Ext. P4 notification does not extend the period of any Environmental Clearance, but only excludes the period from 11.04.2020 to 31.03.2020 for the purpose of calculation of validity. However, the contention advanced by the appellant was that the validity of the Environmental Clearance of the appellant expired on 09.08.2020 and therefore, the period from 01.04.2020 to 09.08.2020 should be excluded. However, the learned single Judge found that even if it is found so excluded, the period of Environmental Clearance of the appellant can be valid only for four months and nine days after 31.03.2021 and since that period is even over, the Environmental Clearance of the appellant would not be extended based on Exts.P3 and P4 notifications issued by the Government of India. It is, thus, challenging the legality and correctness of the judgment of the learned single Judge, the writ petition is filed.

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The paramount contention advanced by the appellant in the appeal is that the Government of India has issued Exts.P3 and P4 notifications taking into account the restrictions that were prevailing due to the pandemic Covid-19 and by virtue of Ext. P4 notification dated 18^th January, 2021, the appellant is entitled to get the validity of the Environmental Clearance for a further period of one year from 01.04.2021, which according to the appellant, is the purport of Exts.P3 and P4 notifications issued by the Union Government.

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It is further contended that there are no provisions either in the Air (Prevention and Control of Pollution) Act, 1981 or in the Water (Prevention and Control of Pollution), Act, 1974 that Environmental Clearance shall be insisted for issuance of Consent to Operate and therefore, the Kerala State Pollution Control Board and its officials cannot insist for Environmental Clearance for the issuance of Consent to Operate.

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That apart, it is contended that only the State Government or the Geologist can insist for the Environmental Clearance. Other contentions are also raised with respect to the entitlement of the appellant to have the Environmental Clearance operational by virtue of Exts.P3 and P4 notifications.

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In the writ appeal, the State Level Environment Impact Assessment Authority (SEIAA) has filed a detailed statement on the

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basis of the direction issued by this Court explaining the computation to be made so as to assess the validity of Ext. P2 Environmental Clearance of the appellant in the wake of Exts.P3 and P4 notification issued by the Government of India, in which it is categorically stated that from 18.01.2021, the date on which Ext. P4 notification came into force, the validity of Environmental Clearance is to be calculated as provided in Ext. P4.

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As per clause 9A as amended vide Ext. P4, and departing from clause 9A in Ext. P3 notification, the period from 01.04.2020 to 31.03.2021 shall not be considered for the purpose of calculation of validity of the Environmental Clearance. Therefore, the necessary corollary is that the respective period of Environmental Clearance falling between the period from 01.04.2020 to 31.03.2021 shall be added to Environmental Clearance from the date of expiry of such Environmental Clearance or if it expires on a day falling between the period from 01.04.2020 to 31.03.2021, from 01.04.2021.

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It is submitted that Ext. P2 Environmental Clearance issued to the appellant expired on 09.08.2020, which falls between 01.04.2020 to 31.03.2021 and hence, as per clause 9A of Exhibit P4 notification, the validity of the Environmental Clearance is to be calculated by adding the respective period. Now the appellant is entitled to carry out his project/activity falling between 01.04.2020 to

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31.03.2021, to the Environmental Clearance after 31.03.2021 i.e., from 01.04.2021. Therefore, it is explained that the appellant would get a period of 4 months and 9 days added to Ext. P2 Environmental Clearance from 01.04.2021 on the basis of the benefit accrued as per Ext. P4 notification. Therefore, according to the 6^th respondent, the contention of the appellant that the appellant is entitled to get a period of one year from 01.04.2021 cannot be sustained under law.

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We have heard, Sri. P. Haridas, learned counsel appeared for the appellant, Sri. Tek Chand for the Government officials, Sri. T. Naveen for the Kerala State Pollution Control Board and Sri. M.P. Sreekrishnan for SEIAA, and perused the pleadings and materials on record.

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The learned counsel for the appellant as well as the respondents have addressed their arguments on the basis of the discussions made above and relying upon respective notifications issued by the Union Government as well as the State Government. In order to understand the true implication of the contentions put forth by the appellant, it is better that clause 9A of Ext. P3 notification dated 27^th November, 2020, and clause 9A of Ext. P4 notification dated 18.01.2021 are extracted, and they read thus:

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Exhibit P3

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“In the said notification, after paragraph 9 and before paragraph

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10, the following shall be inserted, namely:-

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9A. Notwithstanding anything contained in this notification, the validity of prior environmental clearances granted under the provisions of this notification in respect of the projects or activities whose validity is expiring in the Financial Year 2020- 2021 shall deemed to be extended till the 31st March, 2021 or six months from the date of expiry of validity, whichever is later. Such extension is subject to same terms and conditions of the prior environmental clearance in the respective clearance letters, to ensure uninterrupted operations of such projects or activities which have been stalled due to the outbreak of CoronaVirus (COVID-19) and subsequent lockdowns (total or partial) declared for its control.”

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Exhibit P4

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“(ii) for paragraph 9A, the following paragraph shall be substituted namely:- “9A. Notwithstanding anything contained in this notification, the period from the 1st April, 2020 to the 31st March, 2021 shall not be considered for the purpose of calculation of the period of validity of Prior Environmental Clearances granted under the provisions of this notification in view of outbreak of CoronaVirus (COVID-19) and subsequent lockdowns (total or partial) declared for its control, however, all activities undertaken during this period in respect of the Environmental Clearance granted shall be treated as valid.”

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On a reading of clause 9A of Ext. P3 notification, it is clear

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that notwithstanding anything contained in the notification, the validity of prior Environmental Clearance granted under the provisions of the

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said notification in respect of the projects/activities and the Environmental Clearance had expired during the financial year 20202021, it shall be deemed to be extended till 31^st March, 2021 or 6 months from the date of expiry of validity, whichever is later. There is no confusion at all with respect to the benefits given pursuant to the expiry of Environmental Clearance, as per Exhibit P3, since it is clear that, the Environmental Clearance will stand extended till 31^st March, 2021 or 6 months from the date of expiry of the validity, whichever is later.

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However, clause 9A of Ext. P4 is worded in a different manner, by which it is stated that the period from 01.04.2020 to 31.03.2021 shall not be considered for the purpose of calculation of the period of validity of prior Environmental Clearance granted under the provisions of the notification, in view of the outbreak of pandemic Covid-19 and the subsequent lockdown, which thus means nothing is said there about the extension of validity. However, it is made clear thereunder that all activities undertaken during this period in respect of Environmental Clearance granted shall be treated as valid. Therefore, one thing is clear that an Environmental Clearance expired between the period 01.04.2020 and 31.03.2021 would be treated as a valid one for a period of one year at the most from the date of its expiry. Therefore, it can only be couched that since the validity of the

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Environmental Clearance of the appellant expired on 09.08.2020, the quarrying operations carried out by the appellant would stand extended upto 31^st March, 2021 and thereafter for a period of 4 months and 9 days so as to have the benefit for a complete one year period from the date of expiry of the Environmental Clearance of the appellant.

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Merely for the reason that the State Government has issued Ext. P5 notification dated 12.02.2021 in the wake of Ext. P4 notification issued by the Government of India according sanction for the extension of the validity period of quarrying permit and quarrying lease for a period of one year, that cannot have any adverse impact on the notification issued by the Government of India.

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That apart, it is clear from Ext. P5 order passed by the State Government that the State Government has accorded sanction only for the extension of the validity period of quarrying permit and quarrying lease for a period of one year in view of ExhibitP4 notification. Which thus means, even going by the order of the State Government, the consent and other licences issued by the State Government would be extended only in terms of the benefit granted by the Union Government. Even according to the appellant, the State Government and other authorities have issued the consent/permit in commensurate with Ext. P2 order issued by the SEIAA, which can only

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be seen as one expired on 09.08.2021. To put it otherwise, the benefit of Exhibit P5 order passed by the State Government would also stand extended for a period of one year from 09.08.2020 alone.

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Assimilating the factual and legal situation, we are of the clear opinion that the learned single Judge was right in dismissing the writ petition, holding that the benefit of the notification insofar as concerning the appellant is already over. We could not locate any jurisdictional error or other legal infirmities justifying interference to the judgment of the learned single Judge in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958.

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Needless to say, writ appeal fails and accordingly, it is dismissed.

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sd/- S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

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M/S. Peege Aggregates Pvt. Ltd., v. State of Kerala

Case brief

What is this about?

What did the court decide?

M/S. Peege Aggregates Pvt. Ltd., v. State of Kerala

Case brief

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What did the court decide?

What the court decided

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