Adani Vizhinjam Port Pvt. Ltd. v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943** ## **WP(C) NO. 1542 OF 2021** ## **PETITIONER:** ADANI VIZHINJAM PORT PVT. LTD., HAVING ITS REGISTERED OFFICE AT ADANI CORPORATE HOUSE, SHANTIGRAM NR. VAISHNO DEVI CIRCLE, S.G. HIGHWAY AHMEDABAD, GUJARAT-382421, AND HAVING ITS BRANCH OFFICE AT 2ND FLOOR, VIPANCHIKA TOWERS, THYCAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MD AND CEO SRI. RAJESH KUMAR JHA. BY ADVS. ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS SHRI.HARIMOHAN ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF PORTS AND FISHERIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM695001. 2 PRINCIPAL SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 3 THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM-695004. 4 THE STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY (SEIAA) KERALA, KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR, THAMAPANOOR, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS MEMBER SECRETARY. BY SRI. HANIL KUMAR, SPECIAL GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.1542 OF 2021 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.1542 of 2021** **= = = = = = = = = = = = = = = = Dated this the 7th day of February, 2022** ## **JUDGMENT** This writ petition is filed seeking directions to the respondents to take steps for consideration of application submitted by the petitioner for Environmental Clearance and quarrying permits. 2.The learned counsel for the petitioner submits that the NOC has been renewed and that the application submitted by the petitioner for environmental clearance and for quarrying permits are liable to be considered in accordance with law. 3. It is submitted that the National Green Tribunal Principal Bench, New Delhi had passed an order directing that a distance of 200ms is to be maintained between quarries and nearby residences/inhabited areas. The said order was challenged before this Court in W.P.(C).No. 15305 of 2020 WP(C) NO.1542 OF 2021 3 and connected cases and interim directions had been issued stating that where a quarrying lease/ permit is issued under the provisions of the Kerala Minor Mineral Concession Rules, 2015 which is valid and current as on 21.07.2020, that is the date of the National Green Tribunal's order, which do not fulfill the new distance norms, _status quo_ shall be maintained. However, with regard to pending applications and renewal applications including application for Environmental Clearance, PCB consent, Explosive licence, Local Body licence etc., such applications need not be rejected solely on the ground of non fulfillment of the new distance norms. However, it was made clear that in case of the applications for fresh grant of the quarrying permits/quarrying leases or applications for renewal of quarrying permits/leases, which do not fulfil the above said impugned distance criteria stipulated in the order of the tribunal, such requests need not be granted for the time being. 3. The writ petitions were finally heard and allowed by WP(C) NO.1542 OF 2021 4 judgment dated 21.12.2020. The order of the NGT was set aside and the NGT was directed to dispose of the representations of respondents 3 to 115 afresh after notice, by way of publication, to those who are affected by the prescription of the stringent distance criteria for permission for quarrying. The said judgment is reported in _**State of Kerala v. Central Pollution Control Board**_ **[** _**2021 (1) KLT 1].**_ From the said judgment, an appeal had been preferred and the directions of the learned Single Judge had been upheld by a Division Bench of this Court. The learned counsel for the petitioner submits that thereafter, SLPs have been filed before the Apex Court and Civil Appeals had been disposed of by proceedings dated 25.10.2021. The said judgment is reported as _**Municipal Corporation of Gr. Mumbai v. Ankita Sinha [2021 (6) KLT 133]**_ . The Apex Court held that there is power in the National Green Tribunal to take up matters _suo motu_ and pass orders as well. It was further held as under:- _“In light of the issue answered by this Court in Civil Appeal Nos.12122-12123_ WP(C) NO.1542 OF 2021 5 _of 2018 and connected cases titled as “Municipal Corporation of Gr.Mumbai Vs. Ankita Sinha & Ors.” reported in 2021 (12) SCALE 184, it would be appropriate to permit the appellant(s) to raise all contentions/objections as may be available and permissible in law before the National Green Tribunal (In short “the Tribunal”) in the first place. The Tribunal may consider those contentions/objections and record reasons for accepting or rejecting the same, so that the appellant(s), if dis-satisfied, may have further remedy of appeal(s) before this Court._ _In other words, all contentions raised in the present appeal(s) on these aspects, including on merits are left open, to be considered by the Tribunal afresh._ _We say so because the judgment rendered by this Court predicates that even if the Tribunal intends to initiate suo motu action, must give opportunity to the parties likely to be affected before passing any adverse order against them. Viewed thus, the ex-parte preemptory order(s) passed by the Tribunal without giving opportunity to the person(s) likely to be affected by such order(s), be treated as effaced from the record._ _Keeping that principle in mind, we deem it appropriate to relegate the appellant(s) before the Tribunal with liberty to raise all contentions as may be permissible in law, to be decided by the Tribunal afresh on its own merits._ _Notably, the decision of the High Court assailed in these appeal(s) also gives that liberty to the appellant(s). However, we expressly grant such liberty to the appellant(s), as aforesaid, in terms of this order.”_ Having considered the contentions advanced, I notice WP(C) NO.1542 OF 2021 6 that one of the reasons for deferring the consideration of the petitioner's application for environmental clearance was for production of a recent survey map showing distance of residential/public buildings, inhabited sites etc. However, with the above mentioned directions of the Apex Court, I notice that the interim order as well as the directions in the judgment of the learned single Judge and the Division Bench in W.A.No.286/2021 stand merged with the findings and directions of the Apex Court in _**Municipal Corporation of Gr. Mumbai (supra)**_ . In view of the fact that the Apex Court has clearly held that the _ex-parte_ peremptory orders passed by the Tribunal without giving opportunity to the persons likely to be affected are to be treated as effaced from the records, I am of the opinion that the directions contained in the orders of this Court also cannot stand in the way of a consideration of the applications submitted by the petitioner in accordance with law, as it exists. In view of the fact that the NOC issued to the petitioner stands renewed, this writ petition is disposed of directing the WP(C) NO.1542 OF 2021 7 respondents to take further steps and pass orders on the applications for environment clearance and for quarrying permits, in accordance with law, as it exits, if the same are otherwise in order. **Sd/ANU SIVARAMAN JUDGE** SSK/07/02 WP(C) NO.1542 OF 2021 8 ## **PETITIONER'S EXHIBITS:** |EXHIBIT P1|TRUE COPY OF MINUTES OF MEETING DATED| |---|---| ||03/07/2018 WHICH WAS COMMUNICATED TO THE| ||DISTRICT COLLECTOR, KOLLAM VIDE COMMUNICATION| ||DATED 05/07/2018.| |EXHIBIT P2|TRUE COPY OF NOC BEARING NO. B7-14936/18| ||DATED 13/07/2018 ISSUED BY THE 3RD RESPONDENT| ||UNDER RULE 27(1)(D) UNDER KMMC RULES.| |EXHIBIT P3|TRUE COPY OF THE LETTER OF INTENT BEARING| ||NO.5350/M3/2019 DATED 07/06/2019 ISSUED BY| ||THE DIRECTOR OF MINING AND GEOLOGY.| |EXHIBIT P4|TRUE COPY APPROVAL OF MINING PLAN BEARING NO.| ||360/DOT/ML/2019 DATED 19/12/2019 ISSUED BY| ||THE GEOLOGIST, DEPARTMENT OF MINING AND| ||GEOLOGY.| |EXHIBIT P5|TRUE COPY OF ACKNOWLEDGEMENT SLIP FOR EC| ||APPLICATION DATED 13/01/2020 PRINT OUT FROM| ||PARIVESH WEBSITE.| |EXHIBIT P6|TRUE COPY OF LETTER WITH REFERENCE NO.| ||AVPPL/SEIAA/2019-20/1111 DATED 14/01/2020.| |EXHIBIT P7|TRUE COPY OF THE PAGE NOS. 1 AND 9 OF THE| ||MINUTES OF THE SEAC MEETING HELD ON| ||30/12/2020.| |EXHIBIT P8|TRUE COPY OF PETITIONER'S APPLICATION BEFORE| ||3RD RESPONDENT BEARING NO. AVPPL/GOK/2020-| ||21/1344 DATED 16/11/2020.| |EXHIBIT P9|TRUE COPY OF ORDER NO. B7-14963/2018 DATED| ||31/12/2020.| |EXHIBIT P10|TRUE COPY OF LETTER BEARING NO.| ||REV.P2/100/2020 DATED 26/08/2020 ISSUED BY| ||THE REVENUE DEPARTMENT.| |EXHIBIT P11|TRUE COPY OF ORDER THE HON'BLE SUPREME COURT| WP(C) NO.1542 OF 2021 9 DATED 23/03/2020 IN SUO MOTU WPC NO.3/2020. EXHIBIT P12 TRUE COPY OF THE APPLICATION WITH REFERENCE NO. AVPPL/GOK/2019-20/972 DATED 10/12/2019. EXHIBIT P13 TRUE COPY OF ORDER NO. B7-127329/2018 DATED 04/01/2020 ISSUED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. EXHIBIT P14 TRUE COPY OF EXTRACT OF ARTICLE 6 AS WELL AS ARTICLE 49 PROVIDED IN THE CONCESSION AGREEMENT DATED 17/08/2015.