Allowed

M/s B& B Granites, v. the Ministry of Environment Forest & Climate Change

Kerala HC10 Apr 2023WP(C)/3398/2023

Case brief

AI extract

What is this about?

Petitioner challenged a mining lease condition mandating National Board for Wildlife clearance despite site being outside the sanctuary's buffer zone. Court allowed the petition, quashing the condition and directing issuance of the lease without complying with the invalid stipulation.

What did the court decide?

Petitioner granted relief; Condition No.3(3) of Environmental Clearance quashed; 4th respondent directed to issue quarrying lease without insisting on the quashed condition.

M/s B& B Granites, Vs the Ministry of… — Pension and Retirement Benefits | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 10^TH DAY OF APRIL 2023 / 20TH CHAITHRA, 1945

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WP(C) NO.3398 OF 2023

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PETITIONER :-

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M/S.B & B GRANITES, HOUSE NO.11/384, VATTAI, KUNDUKAD P O, THEKKUMKARA, THRISSUR, PIN – 680 028, KERALA REPRESENTED BY ITS MANAGING PARTNER BAIJU K.J

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BY ADVS. PHILIP J.VETTICKATTU SAJITHA GEORGE NEENU BERNATH

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RESPONDENTS :-

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1 THE MINISTRY OF ENVIRONMENT FOREST & CLIMATE CHANGE INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI, PIN – 110 003 REPRESENTED BY ITS SECRETARY

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2 STANDING COMMITTEE FOR NATIONAL BOARD FOR WILD LIFE MINISTRY OF ENVIRONMENT FOREST & CLIMATE CHANGE, INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI, PIN – 110 003 REPRESENTED BY ITS MEMBER SECRETARY

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3 STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA) 4FT FLOOR, KSRTC BUS TERMINAL COMPLEX, TRIVANDRUM, PIN – 695 001 REPRESENTED BY ITS MEMBER SECRETARY

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4 THE DIRECTOR OF MINING AND GEOLOGY DEPARTMENT GOVERNMENT OF KERALA, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM, PIN – 695 001

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5 THE CHIEF WILD LIFE WARDEN FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM – 695 014

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6 DIVISIONAL FOREST OFFICER THRISSUR DIVISION, KALYAN NAGAR, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680 003

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7 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,

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WP(C) NO.3398 OF 2023

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THIRUVANANTHAPURAM, PIN – 695 001

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BY SRI.GIRISH KUMAR V BY SRI.SANGEETH.C.U

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.3398 OF 2023

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JUDGMENT

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Dated this the 10th day of April, 2023

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This writ petition is filed seeking the following reliefs :-

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“(i) Issue a writ of certiorari or such other writ or order or direction similar to writ of certiorari, quashing condition No.3(3) of Ext.P3, i.e. “since the quarry sit is located within a distance of 10 km from Peechi Vazhani Wildlife Sanctuary, as per OM dated 8.8.2019 of MoEFCC, clearance from standing committee of the National Board for Wildlife is mandatory for mining activity. Hence the Project Proponent is directed to obtain Clearance from Standing Committee of the National Board for Wildlife before starting any activity at the site” .

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(ii) Issue a Writ of Certiorari or such other writ or order or direction similar to writ of certiorari, quashing Ext.P4 to the extent it stipulates that proposals involving developmental activities/projects located within 10 KM from National Park/Wild Life Sanctuaries wherein final ESZ Notification is not notified (or) ESZ Notification is in draft stage, to obtain prior clearance from SCNBWL.

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(iii) Issue a Writ of Certiorari or such other writ or order or direction similar to writ of certiorari, quashing Ext.P4.

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(iv) Issue a Writ of Mandamus or such other writ or order or direction directing the 4^th respondent to execute the quarry lease without insisting for any clearance from the SCNBWL.

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(v) Declare that any restriction/safeguard as to location of industries/activities/processes etc. can be imposed and

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WP(C) NO.3398 OF 2023

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enforced only on the strength of a valid law notified in terms of Rule 5 of Rules, 1986 r/w. Section 3(2)(v) of Act, 1986.

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(vi) Declare that any stipulation to obtain prior clearance from SCNBWL for conducting mining operations within a radius of 10 KM from National Park/Sanctuaries can be imposed and enforced only on the strength of a vlid law of notified in terms of Rule 5 of Rules, 1986 r/w. Section 3(2)(v) of Act, 1986. ”

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Heard the learned counsel for the petitioner, the learned Government Pleader, the learned DSGI and the learned Standing Counsel appearing for the 3^rd respondent.

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The petitioner contends that the petitioner has been issued with a Letter of Intent in respect of 0.8075 Hectares of land in Survey Nos.911 and 912 of Thekkumkara Village of Thalappilly Taluk of Thrissur District for conducting quarrying operations. It is submitted that the petitioner has also obtained Ext.P3 Environmental Clearance (for short, 'EC') from the 3^rd respondent. It is stated that the 3^rd respondent had imposed a condition in the EC to obtain Clearance from the Standing Committee of the National Board for Wildlife before starting any activity at the site, since the proposed quarry site was within a distance of 10 KM from the Peechi-Vazhani Wild Life Sanctuary. It is submitted that it was in terms of an Office Memorandum dated 08.08.2019 that the said

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WP(C) NO.3398 OF 2023

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condition was imposed. Thereafter, the Apex Court in T.N. Godavarman Thirumulpad v. Union of India [2022 (3) KLT 739 (SC)] by its order dated 03.06.2022 had held that the restrictions with regard to conduct of quarry would be limited to the Eco Sensitive Zones (ESZ) of the proposed wildlife sanctuaries. It is submitted that the proposed site of quarry is situated on the western side of the Sanctuary and as per GPS Survey, the aerial distance from the nearest identified buffer zone area of the Peechi-Vazhani Wild Life Sanctuary to the proposed quarry site is about 6.7 KM and from the core area is about 9.5 KM.

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An interim order had been passed by this Court directing the 5^th respondent to conduct an inspection and to submit a report in this regard. A statement has been filed by the 5^th respondent, wherein it is stated at paragraph 2 as follows :-

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“2. This Hon'ble Court as per order dated 02.02.2023 directed the 5^th respondent (Chief Wildlife Warden) to conduct inspection and submit a report with regard to the distance from the proposed quarry site and the proposed Eco Sensitive Zone for the Peechi-Vazhani Wild Life Sanctuary. Accordingly, the 5^th respondent inspected the site on 09.02.2023. As per the available records of Village Office, Thekkumkara, Alathur Taluk in Palakkad District, the status of the land is 'purayidom'. The distance from the nearest Parambai Mala Reserve Forest to the proposed quarry site is 1.4 KM. The details on distances of the proposed quarry from the boundary of the Peechi-Vazhani Wild Life Sanctuary and

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WP(C) NO.3398 OF 2023

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the revised proposed Eco Sensitive Zone of above Sanctuary which was submitted to Government of India on 15.02.2022 pending final approval measured using GPS is given below.

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Boundary Points around proposed quarry site	Distance from the quarry boundary of the Peechi-Vazhani Wild Life Sanctuary (KM)	Distance from revised proposed Eco Sensitive Zone of Peechi-Vazhani Wild Life Sanctuary (KM)
BP1	7.86	6.73
BP2	7.76	6.77
BP3	7.66	6.68
BP4	7.64	6.63

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Since the proposed quarry is hardly less than 1.5 km from the nearest Vested/Reserved Forest Area, the adverse impact on wildlife present in the nearby Forest Areas cannot be ruled out.”

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In the above view of the matter, it is contended by the learned counsel for the petitioner that since the quarrying site is admittedly beyond the boundary and the ESZ of the Peechi-Vazhani Wild Life Sanctuary, the requirement that the petitioner has to obtain Clearance from the Standing Committee of the National Board for Wildlife is completely unsustainable.

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Having considered the contentions advanced and in the light of the statement submitted by the 5^th respondent and in the light of the order of the Apex Court in T.N.Godavarman Thirumulpad v. Union of India as referred above, the petitioner is entitled to the reliefs as sought for.

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WP(C) NO.3398 OF 2023

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In the above view of the matter, this writ petition is allowed quashing condition No.3(3) of Ext.P3. There will be a direction to the 4^th respondent to issue quarrying lease to the petitioner, in accordance with law, without insisting on condition No.3(3) of Ext.P3, which stands set aside.

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Sd/ANU SIVARAMAN JUDGE

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Jvt/18.4.2023

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WP(C) NO.3398 OF 2023

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APPENDIX OF WP(C) 3398/2023

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PETITIONER EXHIBITS

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Exhibit	p1 TRUE COPY OF THE LETTER OF INTENT DATED 6-12- 2018 ISSUED BY THE SENIOR GEOLOGIST, MINING AND GEOLOGY DEPARTMENT,THRISSUR
Exhibit	p2 TRUE COPY OF THE RELEVANT PAGES OF THE EXPLOSIVE LICENSE, DATED 8-07-2020,
Exhibit	p3 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 25-01-2023 ISSUED BY THE 3RD RESPONDENT
Exhibit	p4 TRUE COPY OF THE OFFICE MEMORANDUM DATED 8-8- 2019,
Exhibit	p5 TRUE COPY OF THE DRAFT NOTIFICATION BEARING NO.4271E DATED 25-11-2020
Exhibit	p6 TRUE COPY OF THE GOOGLE IMAGE SHOWING THE DISTANCE BETWEEN THE PETITIONER'S PROPOSED QUARRY UNIT AND THE PEECHI VAZHANI WILD LIFE SANCTUARY DATE NIL
Exhibit	p7 TRUE COPY OF THE CERTIFICATE DATED 23-08-2022 ISSUED BY THE WILD LIFE WARDEN, THRISSUR
Exhibit	P8 TRUE COPY OF THE RELEVANT PAGES OF THE APPLICATION FOR NOC DATE NIL
Exhibit	p9 TRUE COPY OF THE NON ASSIGNMENT CERTIFICATE DATED 24-10-2018
Exhibit	p10 TRUE COPY OF THE DEMARCATION CERTIFICATE DATED 24-10-2018
Exhibit	p11 TRUE COPY OF THE JUDGMENTPASSED BY THIS HONBLE COURT IN A SIMILAR CASE BEARING WP@ NO. 12829 / 2022 DATED 19- 08-2022
Exhibit	p12 TRUE COPY OF THE JUDGEMENT PASSED BY THIS HON'BLE COURT 19710/2022 DATED 27-07-2022

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WP(C) NO.3398 OF 2023

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Exhibit p13 TRUE COPY OF THE JUDGEMENT PASSED BY THIS HONBLE COURT IN ASIMILAR CASE BEARING WP@ NO.34050 /2022 DATED 19-12-2022

M/s B& B Granites, v. the Ministry of Environment Forest & Climate Change

Case brief

What is this about?

What did the court decide?

M/s B& B Granites, v. the Ministry of Environment Forest & Climate Change

Case brief

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