Disposed

Raji Mathew v. Union of India

Kerala HC16 Feb 2021WP(C)/24297/2020

Case brief

AI extract

What is this about?

Court disposed of a writ petition challenging delay in issuing Environmental Clearance for a quarry. The petitioner sought clearance on similar terms to another project. Directing the SEIAA to issue clearance if otherwise entitled, conditioned on the project securing future permission from the National Board for Wildlife's Standing Committee.

What did the court decide?

Directing the sixth respondent to issue the Environmental Clearance within six weeks, subject to the condition that it is operative only if the petitioner obtains clearance from the Standing Committee

Raji Mathew Vs Union of India — Kerala HC (2021) — LawSathi Research

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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 P.B.SURESH KUMAR

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TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942 WP(C).No.24297 OF 2020(J)

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PETITIONER/S:

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RAJI MATHEW, MANAGING PARTNER, M/S.HIGHRANGE METAL CRUSHER, LAKSHMIKOVIL P.O., RANIMUDI, PEERMADE, IDUKKI-685531.

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BY ADVS. SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SRI.ANIL SEBASTIAN PULICKEL SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE SMT.NANDA SANAL

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RESPONDENT/S:

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1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF ENVIRONMENT AND FORESTS, PARYAVARAN BHAVAN, CGO COMPLEX, LODI ROAD, NEW DELHI-110003.

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2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FOREST & WILDLIFE (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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W.P.(C)No.24297 of 2020

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3 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES AND COMMERCE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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4 THE CHIEF WILDLIFE WARDEN AND PRINCIPAL CHIEF CONSERVATOR OF FORESTS, FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.

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5 THE DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING & GEOLOGY, KESAVADASAPURAM, PATTAM PALACE P.O., THIRUVANANTHAPURAM-695 004.

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6 STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY(SEIAA), KERALA, K.S.R.T.C BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR, THIRUVANANTHAPURAM-695001 REPRESENTED BY ITS MEMBER SECRETARY.

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7 THE DEPUTY DIRECTOR, PERIYAR TIGER RESERVE EAST DIVISION, THEKKADY-685509.

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8 NATIONAL BOARD FOR WILDLIFE, REPRESENTED BY ITS MEMBER SECRETARY, MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, INDIRA PARYAVARAN BHAWAN, JOR BAGH ROAD, NEW DELHI-110003. R1 BY SRI.KRISHNADAS P.NAIR, CGC BY SRI.M.P.SREEKRISHNAN, STANDING COUNSEL BY SRI.NAGARAJ NARAYANAN, SPL.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.24297 of 2020

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W.P.(C)No.24297 of 2020

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JUDGMENT

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Petitioner applied for a quarrying lease in terms of the Kerala Minor Mineral Concession Rules, 2015 over a land measuring 4.6065 hectares in survey Nos.1119, 969/3, 969/4 and 969 in Peermadu Village. The application is pending. Simultaneously, the petitioner preferred an application before the sixth respondent for Environmental Clearance for operating the quarry after obtaining the quarrying lease. On the application for Environmental Clearance, the sixth respondent took the stand that since the land where the petitioner proposes to establish the quarry is situated within 10 kilometers from Idukki Wildlife Sanctuary, the petitioner has to produce clearance of the Wildlife Warden of the said Wildlife Sanctuary for processing the application. Ext.P13 is the communication issued by the sixth respondent to the petitioner in this regard. According to the petitioner, the land where he proposes to establish the quarry is situated beyond 10 kilometers from the Idukki Wildlife Sanctuary. The petitioner, therefore, challenged Ext.P13 communication before this Court in W.P.(C) No.28825 of 2019. In the course of the arguments in the said case, it was brought to the notice of this Court that the nearest protected area from the proposed quarry of

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the petitioner is not Idukki Wildlife Sanctuary, but Periyar Tiger Reserve and the distance between the site of the quarry and the Periyar Tiger Reserve is only 8.61 kilometers. W.P.(C) No.28825 of 2019, in the circumstances, was disposed of directing the sixth respondent to cause an enquiry to be made as to the distance between the quarry proposed by the petitioner and the nearest protected area and if it is found that any protected area exists within 10 kilometers from the quarry proposed by the petitioner, the petitioner shall get necessary clearance from the Wildlife Warden concerned. Ext.P16 is the judgment rendered by this Court in W.P.(C) No.28825 of 2019. It was, however, made clear in Ext.P16 judgment that even if it is found that clearance is required to be obtained by the petitioner as directed above, the sixth respondent shall process the application for Environmental Clearance without insisting clearance from the wildlife authority, but shall issue the Environmental Clearance only on obtaining clearance from the wildlife authority. As per Ext.P16 judgment, this Court also directed the Chief Wildlife Warden to consider and pass orders on the application for clearance submitted by the petitioner within three months.

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It is pointed out by the petitioner that if there is any protected area like Wildlife Sanctuary, National Park, Tiger Reserve etc. within 10 kilometers from the site of any proposed quarry, permission is required in fact from the Standing Committee of the National Board for Wildlife and not from the Wildlife Warden concerned of the protected area. It is also pointed out that neither the petitioner nor the

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W.P.(C)No.24297 of 2020

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respondents in W.P.(C) No.28825 of 2019 have pointed out the said fact before this Court while rendering Ext.P16 judgment. It is further pointed out that the sixth respondent is not insisting on clearance of the Standing Committee of the National Board for Wildlife for issuing Environmental Clearance, and Environmental Clearances are now being issued on condition that the project proponent shall obtain clearance from the Standing Committee of the National Board for Wildlife. E xt.P19 is one of such Environmental Clearances issued to a person similarly placed like the petitioner. It is stated by the petitioner that the sixth respondent has though processed the application for Environmental Clearance submitted by the petitioner, the same is not being issued to the petitioner in the light of the interdiction in Ext.P16 judgment that the application can be processed, but the Environmental Clearance shall not be issued without production of the clearance from the concerned wildlife authority. It is stated by the petitioner that he has already preferred the application for clearance of the Standing Committee of the National Board for Wildlife through the portal established by the Central Government for the said purpose, and having regard to the detailed procedure laid down by the Central Government, the processing of the application is likely to take some time. It is stated by the petitioner that if the petitioner is issued Environmental Clearance as done in the case of the project proponent to whom Ext.P19 Environmental Clearance has been issued, the petitioner can obtain various other clearances required for the purpose of running the quarry for which Environmental Clearance

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is a mandatory prerequisite. It is also stated by the petitioner that if the said course is not adopted, the petitioner has to wait until the Standing Committee of the National Board for Wildlife grants appropriate clearance. T hough various larger reliefs are sought for in the writ petition, at the time of hearing, the limited relief sought by the petitioner was for a direction to the sixth respondent to grant the Environmental Clearance applied for by the petitioner on the same terms as in Ext.P19 Environmental Clearance.

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Heard the learned counsel for the petitioner, the learned Special Government Pleader for Forest as also the learned Standing Counsel for the sixth respondent.

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The learned Standing Counsel for the sixth respondent does not dispute the fact that the petitioner and the project proponent to whom Ext.P19 Environmental Clearance has been issued, are similarly placed. The learned Standing Counsel has also not disputed the fact that the application for Environmental Clearance submitted by the petitioner has already been processed. The learned Standing Counsel has also not disputed the fact that Environmental Clearance is not issued to the petitioner as done in the case of the project proponent to whom Ext.P19 Environmental Clearance has been issued, in the light of the interdiction made by this Court in Ext.P16 judgment.

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As pointed out by the learned counsel for the parties on either side, Ext.P16 judgment was passed without taking note of the fact that the clearance required for processing the application for

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W.P.(C)No.24297 of 2020

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Environmental Clearance submitted by the petitioner is the clearance of the Standing Committee of the National Board for Wildlife, and not the clearance of the Wildlife Warden as stated in the judgment. Further, the direction in Ext.P16 judgment to the Chief Wildlife Warden to dispose of the applications for clearances submitted by the petitioner has become otiose as the Chief Wildlife Warden has nothing to do with the clearance required by the petitioner. Since the sixth respondent was directed to withhold the Environmental Clearance of the petitioner on the premise that the Chief Wildlife Warden is the competent authority to issue the wildlife clearan ce required for the quarry proposed by the petitioner, I am of the view that in the changed circumstances, the sixth respondent can be directed to issue Environmental Clearance to the petitioner, if he is otherwise entitled for the same, on condition that the same will be operative only if the petitioner secures permission of the Standing Committee of the National Board for Wildlife. I take this view also for the reason that if such a view is not taken, the petitioner who has approached this Court for expediting the clearance of the wildlife authorities would be in a disadvantageous position when compared to others who have not approached this Court for the said purpose.

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In the result, the writ petition is disposed of directing the sixth respondent to issue the Environmental Clearance applied for by the petitioner, if the petitioner is otherwise entitled for the same, subject to the condition that the same will be operative only if the petitioner obtains clearance of the Standing Committee of the National Board for

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W.P.(C)No.24297 of 2020

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Wildlife, for the quarry proposed by him. This shall be done within six

weeks.

Sd/-

P.B.SURESH KUMAR

JUDGE

rkj

W.P.(C)No.24297 of 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE LETTER DATED 02.02.2018 OF SENT BY THE TAHSILDAR TO DEIAA.
EXHIBIT P2	TRUE COPY OF THE DRAFT NOTIFICATION DATED 03.10.2018 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE.
EXHIBIT P3	TRUE COPY OF THE JUDGMENT DATED 20TH FEBRUARY, 2018 IN W.P.(C)NO.31959 OF 2017.
EXHIBIT P4	TRUE COPY OF THE JUDGMENT DATED 12.03.2019 IN WRIT APPEAL NO.1952/2018.
EXHIBIT P5	TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE SYSTEM ADMINISTRATOR OF ONLINE SUBMISSION AND MONITORING OF WILDLIFE CLEARANCE PROPOSALS.
EXHIBIT P6	TRUE COPY OF THE LETTER DATED 03.7.2019 EVIDENCING THE SUBMISSION OF THE APPLICATION BY THE PETITIONER TO THE DEPUTY DIRECTOR, PERIYAR TIGER RESERVE WEST DIVISION, PEERMEDE.
EXHIBIT P7	TRUE COPY OF THE COVERING LETTER DATED 04.09.2019 SENT BY THE PETITIONER AND THE ACKNOWLEDGMENT RECEIPT.
EXHIBIT P8	TRUE COPY OF THE DRAFT NOTIFICATION DATED 28.07.2016 ISSUED BY THE CENTRAL GOVERNMENT.
EXHIBIT P9	TRUE COPY OF THE DRAFT NOTIFICATION DATED 31.03.2016 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE.
EXHIBIT P10	TRUE COPY OF THE COMMUNICATION DATED 16.11.2017 SENT BY THE MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE (ESZ-DIVISION) TO THE PRINCIPAL CONSERVATOR OF FOREST (WL) AND CHIEF WILDLIFE WARDEN, FOREST HEADQUARTERS, THIRUVANANTHAPURAM.

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EXHIBIT P11	TRUE	COPY	OF THE COMMUNICATION DATED
	19TH SECRE OF EN CHANG KERAL	DECEM TARY, VIRON E TO A.	BER, 2017 SENT BY THE GOVERNMENT OF INDIA, MINISTRY MENT FORESTS AND CLIMATE THE CHIEF SECRETARY, STATE OF
EXHIBIT P11(A)	TRUE ISSUE	COPY D BY	OF THE LETTER DATED 30.03.2020 MOEF.
EXHIBIT P12	TRUE 08.08	COPY .2019	OF THE OFFICE MEMORANDUM DATED ISSUED BY MOEF.
EXHIBIT P13	TRUE SENT	COPY BY TH	OF THE LETTER DATED 27.08.2019 E SEIAA TO THE PETITIONER.
EXHIBIT P14	TRUE WITH	COPY RESPE	OF THE SITE AREA DEMARCATION CT TO GEO COORDINATES.
EXHIBIT P15	TRUE SENT	COPY BY TH	OF THE LETTER DATED 21.10.2019 E PETITIONER TO SEIAA.
EXHIBIT P16	TRUE W.P(C	COPY )NO.2	OF THE JUDGMENT IN 8825/19 DATED 03.12.2019.
EXHIBIT P17	TRUE SENT DIREC DIVIS	COPY BY TH TOR, ION.	OF THE LETTER DATED 28.02.2020 E 4TH RESPONDENT TO THE DEPUTY PERIYAR TIGER RESERVE FOREST
EXHIBIT P18	TRUE ISSUE TIGER RESPO	COPY D BY RESE NDENT	OF THE LETTER DATED 04.03.2020 THE DEPUTY DIRECTOR, PERIYAR RVE FOREST DIVISION TO THE 4TH .
EXHIBIT P19	TRUE NO.84 THE 4	COPY /Q/20 TH RE	OF THE ENVIRONMENTAL CLEARANCE 20 DATED 19.08.2020 ISSUED BY SPONDENT.
EXHIBIT P20	TRUE ISSUE	COPY D BY	OF THE LETTER DATED 16.07.2020 WILDLIFE DIVISION OF MOEF.
EXHIBIT P21	TRUE ISSUE PRINC	COPY D BY IPAL	OF THE LETTER DATED 24/7/2020 THE MOEF TO ALL THE STATE SECRETARIES (FOREST)

Raji Mathew v. Union of India

Case brief

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Raji Mathew v. Union of India

Case brief

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