High Court of KeralaSingle Judge2018-06-01Writ petition allowed; disposal of petition wit...

Aby Dominic v. Director of Mining and Geology & Others

Case / Petition Number:WP(C).No. 7837 of 2018

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.K. Jayasankaran Nambiar
Judgment Date: 2018-06-01
Court Decision / Holding: Writ petition allowed. Directs the EIA Authority to consider the petitioners’ applications for environmental clearance under the 2006 EIA Notification, treating the petitioners’ quarrying area as not within the ambit of ESA for the purposes of the draft notification. The starting point of the deeming period under the 2006 Notification will be the date of production of a copy of this judgment before the authorities.
Final Disposition: Writ petition allowed; disposal of petition with directions to consider EC applications under the 2006 Notification, treating area as not ESA for the purposes of the draft notification; deeming period to commence from this judgment's copy.

Parties to the Case

Appellants / Petitioners

ABY DOMINIC

Respondents

Director of Mining and Geology
State of Kerala represented by Chief Secretary
State Environmental Impact Assessment Authority (SEIAA) Kerala represented by its Chairman, Director of Environment
State Level Expert Appraisal Committee (SEAC) Kerala represented by its Chairman, Director of Environment
Kerala State Pollution Control Board represented by its Chairman
Union of India represented by the Secretary, Ministry of Environment and Forests
Kerala Bio Diversity Board represented by its Chairman
Tahsildar, Peerumade Taluk

Legal Representation & Advocates

Counsels for Petitioners

• Mathew A Kuzhalanadan
• Smt. Anitha Mathai Muthirenthy

Counsels for Respondents

• N. Nagareesh (Assistant Solicitor General) for R6
• S. Kannan (Government Pleader) for R1, R2, R3, R4, R7
• T. Naveen, Senior Counsel for Kerala State Pollution Control Board

Case Synopsis & Summary

This writ petition challenges the Section 5 directions under the Environment Protection Act and the draft ecologically sensitive area (ESA) notification framework under Kasturirangan (HLWG) for quarrying activities in Kokkayar village, Idukki, Kerala. The petitioner, Aby Dominic, a quarry operator, contends that the Section 5 directions, issued on 13 November 2013, would regulate only areas already identified in the central notification stage, and that final notification under Section 3 of the Act, along with the 2006 Environmental Impact Assessment (EIA) Notification, should govern the environmental clearances for his activities. The Court refers to its earlier decision in Raji Mathew v. Director of Mining and Geology (2018 (1) KLT 824), which dealt with a similar dispute, and observes that finalization of a draft notification, prepared under statutory procedure, can only confirm or exclude locations, not introduce new ones. The counter-affidavit’s assertion that Section 5 directions continue to hold field is examined in light of these principles together with the NGT’s OA No. 26/12 reference in Goa Foundation. The Court holds that, where the petitioner’s area is currently excluded from the draft notification, the final notification can only validate or exclude areas and cannot include the petitioner’s. Accordingly, the petition is allowed, directing EIA authorities to consider the petitioners’ applications under the 2006 Notification, treating the petitioners’ quarrying area as not falling within ESA for the purpose of the draft notification. The deeming period under the 2006 Notification will start from the date of production of a copy of this judgment before the authorities.

Provisions of Law Cited

Environment Protection Act, Section 5Environment Protection Act, Section 32006 Environment Impact Assessment Notification (as amended from time to time)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner challenged the continued operation of Section 5 directions in the face of a pending final notification under Section 3 and urged that draft notification under the 2006 EIA regime should govern environmental clearances. They relied on the decision in Raji Mathew (2018(1) KLT 824) to support the view that final notification can overrule or limit the field of the Section 5 directions, especially when the petitioner's area is excluded from the draft notification.

Contentions of Respondents

Respondents contended that Section 5 directions continue to hold field irrespective of the draft notification and OM dated 20.12.2013, arguing for continued regulation under the Kasturirangan HLWG framework and the MoEF’s position; they invoked the Goa Foundation OA 26/12 to illustrate NGT’s stance and sought dismissal. The counter argument emphasized that the final notification must be read with statutory procedure under Section 3 and that the draft notification ultimately governs the field when finalized.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Raji Mathew v. Director of Mining and Geology and Ors.	2018(1) KLT 824	Positive	Court relies on this earlier judgment to hold that final notification under the Environment Protection Act, along with statutory procedure, governs the field and can override prior directions.
Goa Foundation & Another v. Union of India & Others	OA No. 26/12	Mentioned Only	Cited to reflect NGT’s position referenced in the counter-affidavit; used for context rather than as controlling authority for the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940** **WP(C).No. 7837 of 2018 ------------------------** ## **PETITIONER(S)** - **-------------** **ABY DOMINIC AGED 57 YEARS, S/O K.J. DOMINIC, MANAGING PARTNER, KARIPPAPARAMBIL CRUSHER WORKS, MUNDAKAYAM EAST P.O., IDUKKI DISTRICT-686513.** **BY ADVS.SRI.MATHEW A KUZHALANADAN SMT.ANITHA MATHAI MUTHIRENTHY** ## **RESPONDENT(S):** **1. DIRECTOR OF MINING AND GEOLOGY** - **REPRESENTED BY GEOLOGIST,** - **DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, IDUKKI 685601.** **2. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **3. STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY(SEIAA) KERALA REPRESENTED BY ITS CHAIRMAN, DIRECTORATE OF ENVIRONMENT, PETTAH, THIRUVANANTHAPURAM-695 024.** **4. STATE LEVEL EXPERT APPRAISAL COMMITTEE (SEAC) KERALA REPRESENTED BY ITS CHAIRMAN, DIRECTORATE OF ENVIRONMENT, PETTA, THIRUVANANTHAPURAM-695 024.** **5. KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS CHAIRMAN, PATTOM P.O., THIRUVANANTHAPURAM-695004.** **6. UNION OF INDIA** - **REPRESENTED BY THE SECRETARY,** - **MINISTRY OF ENVIRONMENT AND FOREST, NEW DELHI-110003.** **WP(C).No. 7837 of 2018** ## **------------------------** ## **7. KERALA BIO DIVERSITY BOARD** **REPRESENTED BY THE CHAIRMAN, L-14, JAI NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM 695 011.** ## **8. TAHSILDAR** **TALUK OFFICE, PEERUMADE TALUK, IDUKKI-685 602.** **R6 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R1-R4&7,R8 BY ADV. SRI.S.KANNAN, GOVERNMENT PLEADER R BY SRI. S. KANNAN, GOVERNMENT PLEADER R BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 7837 of 2018 (D)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **------------------------** - **EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED 20-02-2015. EXHIBIT P2 A TRUE COPY OF THE ACKNOWLEDGEMENT DATED 09-04-2015 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 2/04/2016 EXHIBIT P4 TRUE COPY OF THE OM DATED 13.11.2015 ISSUED BY THE SIXTH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE FIRST DRAFT NOTIFICATION ISSUED BY THE SIXTH RESPONDENT ON 10.03.2014** - **EXHIBIT P6 TRUE COPY OF LETTER DATED 12.08.2015 SENT BY THE SIXTH RESPONDENT TO THE SECOND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE FIRST OM ISSUED BY THE SIXTH RESPONDENT DATED 19.10.2013.** - **EXHIBIT P8 TRUE COPY OF THE OM DATED 20.12.2013. EXHIBIT P9 TRUE COPY OF THE SECOND DRAFT NOTIFICATION DATED 04.09.2015. EXHIBIT P10 TRUE COPY OF THE THIRD DRAFT NOTIFICATION DATED 27.02.2017** - **RESPONDENT(S)' EXHIBITS : ------------------------** - **EXHIBIT R7(A) A TRUE COPY OF THE LIST OF 123 VILLAGES IN THE STATE OF KERALA WHICH WERE IDENTIFIED AS ECOLOGICALLY SENSITIVE AREAS AS PER THE KASTURIRANGAN (HLWG) REPORT** **EXHIBIT R7(B) A TRUE COPY OF THE SECTION 5 DIRECTION ISSUED BY TEH MoEF DATED 1311.2013** **EXHIBIT R7 (C) A TRUE COPYOF THE COMMUNICATION DATED 12.08.2015, ISSUED BY THE SECRETARY, MoEF** **EXHIBIT R7(D) A TRUE COPY OF THE JUDGMENT DATED 25.09.2014 INO.A.NO.26/12 PASSED BY THE LEARNED TRIBUNAL. EXHIBIT R7(E) A TRUE COPY OF THE JUDGMENT IN W.A.NO.1946/2016** **//TRUE COPY//** **P.A.TO JUDGE** **nkr** ## **A.K.JAYASANKARAN NAMBIAR, J.** ## ********************************************************************* ## **W.P.(C) No.7837 of 2018 (D)** ******************************************************************* Dated this the 1[st] day of June, 2018** ## **J U D G M E N T** The issue involved in this writ petition has already been considered by this Court in the judgment reported in **Raji Mathew** ## **vs. Director of Mining and Geology and Ors. [2018(1) KLT** **824].** Accordingly, I am of the view that, the writ petition must succeed following the said judgment of this Court. The learned Government Pleader, would take me through paragraph 13 of the counter affidavit filed on behalf of the respondent, which reads as follows: “13. The Kokkayar village, wherein the property of the petitioner situated falls within ESA as per the Kasturirangan (HLWG) Report. Therefore, in view of Section 5 direction issued on 13/11/2013, which still holds of field, the applications of the petitioners cannot be considered, at all. Furthermore, in Goa Foundation & Another Vs. Union of India & Others (OA No. 26/12), before the learned National Green Tribunal, the MoEF by affidavit dated 19.09.2014 has contended that Section 5 direction issued on 13/11/2013 still hold the field, irrespective of issuance of OM dated 20/12/2013. The learned Tribunal by its judgment dated 25/09/2014 in the said OA has taken judicial notice of the same, as -2- W.P.(C) No.7837 of 2018 (D) well. A true copy of the judgment dated 25/09/2014 in O.A.No.26/12 passed by the learned Tribunal is produced herewith and marked as **Exhibit R7 (d).”** It is the request of the learned Government Pleader that, the issue raised in the aforesaid paragraph also be clarified by this Court with reference to the judgment referred above. The contention in the counter affidavit of the respondents is essentially that, on account of the observations of the National Green Tribunal in the judgment referred in the aforesaid counter affidavit, the directions issued by the Ministry of Environment and Forest Department (MoEF) under Section 5 of the Environment Protection Act [Ext.R7(e)] should be seen as regulating the quarrying activities proposed by the petitioner, notwithstanding the fact that a draft notification has already been issued specifying the areas which are to be categorised as ecologically sensitive areas for the purposes of regulating the mining activities. On a consideration of the said contention of the learned Government Pleader, I am of the view that, under normal circumstances, vis-a-vis the directions issued by the MoEF under Section 5 of the Environment Protection Act, and a draft notification that is brought out by the Central Government pursuant to the powers under Section 3 of the Environment -3- ## W.P.(C) No.7837 of 2018 (D) Protection Act, the notification, as and when finalised, would govern the field in over riding the directions given in terms of Section 5 of the Act. In the instant case, as already noted in the judgment in **Raji Mathew vs. Director of Mining and Geology and Ors. [2018(1) KLT 824],** the draft notification that has been issued pursuant to the adoption of the statutory procedure under Section 3 of the Environment Protection Act clearly indicates that, the areas which are shown in the website of the Kerala State Biodiversity Board alone would form part of the areas proposed as ecologically sensitive areas for the purposes of the notification. The notification, on finalisation, could either confirm the proposed locations as ecologically sensitive areas, or exclude certain locations out of those proposed in the draft notification. There cannot be a situation, where a new location is added to the locations already notified in the draft notification for the reasons stated in the judgment referred above. Under the said circumstances, I am of the view that, in the instant case where the draft notification is already in place, pursuant to the exercise of a statutory procedure, and it is the admitted case, that there is no other draft notification, that has been issued notifying new areas as ecologically sensitive areas, the finalisation of the existing draft notification can only result in a final notification confirming the draft notification or -4- ## W.P.(C) No.7837 of 2018 (D) excluding certain places from those notified in the draft notification as ecologically sensitive areas. The petitioner's location being currently excluded from the draft notification, cannot find place in the notification, as and when finalised. It is therefore that I am of the view that, the directions issued under Section 5 of the Environment Protection Act, will cease to be applicable to regulate quarrying activities in areas that are not already specified in any draft notification issued by the Central Government. The observation of the Division Bench of this Court in paragraph 5 of Ext.R7(E) judgment, has also be read in this context. The writ petition is thus allowed, by directing the Environment Impact Assessment Authority concerned, to consider the applications for environmental clearance submitted by the petitioners herein, in accordance with the 2006 Environment Impact Assessment Notification as amended from time to time, and by treating the area, where the petitioners are carrying on their quarrying operations, as not falling under the ambit of ecologically sensitive areas for the purposes of the draft notification referred above. The Environment Impact Assessment Authorities concerned shall bear in mind that, the starting point of limitation for the purposes of the deeming -5- W.P.(C) No.7837 of 2018 (D) provisions under the 2006 Notification, in the case of the applications submitted by the petitioners herein, will commence from the date of production of a copy of this judgment before the said authorities. This writ petition is disposed as above. **Sd/A.K.JAYASANKARAN NAMBIAR JUDGE** nkr/02.06.2018