A.H. Asurabi v. Union of India and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` MONDAY, THE 12[TH] DAY OF JUNE 2023 / 22ND JYAISHTA, 1945 WP(C) NO. 14488 OF 2023 ``` ## **`PETITIONER:`** ``` A.H. ASURABI AGED 36 YEARS ``` ``` W/O. ABDUL NOUSHAD ( LATE), MOOLAYIL HOUSE, VALAVU, MULLOORKKARA P.O. THRISSUR, PIN - 680583 ``` ``` BY ADVS. ``` ``` PHILIP J.VETTICKATTU SAJITHA GEORGE NEENU BERNATH ``` ## **`RESPONDENTS:`** - **`1 THE MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI, REPRESENTED BY ITS SECRETARY, PIN - 110003`** - **`2 STANDING COMMITTEE FOR NATIONAL BOARD FOR WILD LIFE MINISTRY OF ENVIRONMENT FOREST & CLIMATE CHANGE, INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI , REPRESENTED BY ITS MEMBER SECRETARY, PIN - 110003`** - **`3 STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA KERALA) 4 TH FLOOR, KSRTC BUS TERMINAL COMPLEX, TRIVANDRUM 695001.REPRESENTED BY ITS MEMBER SECRETARY, PIN - 695001`** - **`4 THE DIRECTOR OF MINING AND GEOLOGY DEPARTMENT GOVERNMENT OF KERALA, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695001`** - **`5 THE CHIEF WILD LIFE WARDEN FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695014`** - **`6 DIVISIONAL FOREST OFFICER THRISSUR DIVISION, KALYAN NAGAR, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680003`** ``` WP(C) NO.14488 OF 2023 ``` ``` 2 ``` ``` 7STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 ``` ``` SRI.T.P.SAJAN- SPL.G.P, SRI.S.MANU-DSGI, SRI. M.P.SREEKRISHNAN-SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.14488 OF 2023 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 12[th] day of June, 2023 The petitioner, who is a Grantee of Letter of Intent with respect to an extent of 3.2299 Hectares of land in Vengallur Village, Thalappilly Taluk of Thrissur District, is before this Court seeking to quash condition No.3(3) of Ext.P2 insisting for production of clearance from Standing Committee of National Board for Wild Life (SCNBWL). 2. The petitioner states that while granting Environmental Clearance, the State Level Environmental Impact Assessment Authority (SEIAA) has imposed a condition that the petitioner shall obtain No Objection Certificate from SCNBWL. According to the petitioner, such a condition is imposed on an erroneous assumption that the quarry of the petitioner lies within a radius of 10 Kilometres from Peechi-Vazhani Wildlife Sanctuary. ``` WP(C) NO.14488 OF 2023 ``` ``` 4 ``` 3. The petitioner would further submit that the O.M. dated 08.08.2019 has been issued not in compliance with the mandatory procedure provided under Rule 5 of the Environmental Protection Rules, 1986. 4. The petitioner pointed out that the Hon’ble Apex Court in **T.N.Godavarman Thirumulpadu v. Union of India** [2022 (3) KLT 739 (SC)] has held that the restrictions applicable to ESZ is confined to the proposed area only. The site of the petitioner lies far beyond the area proposed and draft notified as ESZ for Peechi-Vazhani Wildlife Sanctuary. 5. Government Pleader entered appearance and resisted the writ petition. The Government Pleader submitted that site inspection of the quarry was conducted. The GPS points of the proposed quarry site and GPS points of the nearest boundaries of Reserve Forest, Wildlife Sanctuary were recorded and a detailed inspection report was prepared. It is submitted that the proposed quarry site is situated within a distance of 54 metres from the nearest Reserve Forest ``` WP(C) NO.14488 OF 2023 ``` ``` 5 ``` Boundary of the Kurichi Mala Reserve Forest and 7.80 Kilometres from the nearest boundary of Peechi-Vazhani Wildlife Sanctuary. The distance from the proposed Eco Sensitive Zone of Peechi-Vazhani Wildlife Sanctuary is 4.85 Kilometres. 6. The Government Pleader further submitted that the field verification of the proposed quarry site and nearest boundaries of the Reserve Forest (Kurichi Mala Reserve), Peechi Wildlife Sanctuary reveals that the proposed quarry site of the petitioner does not fall within the Draft ESZ notification of Peechi-Vazhani Wildlife Sanctuary. The distance from the boundary pillars earmarked for the quarrying site to the nearest . reserve forest boundary is 54 metres 7. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents. 8. The grievance of the petitioner is that Ext.P2 Environmental Clearance issued by the SEIAA has put a ``` WP(C) NO.14488 OF 2023 ``` ``` 6 ``` condition that the petitioner shall produce NOC from SCNBWL for the purpose of quarrying activities. It is evident that such condition has been imposed on an assumption that the petitioner’s Quarry lies within the prohibited distance. 9. The statement dated 27.05.2023 filed by the Divisional Forest Officer would show that on field verification of the proposed quarry site and nearest boundaries of the reserve forest (Kurichimala Reserve Forest), Peechi Wildlife Sanctuary reveals that the proposed quarry site of the petitioner does not fall within the draft ESZ Notification of Peechi-Vazhani Wildlife Sanctuary. 10. I find that a similar writ petition, W.P.(C) No.1651 of 2023, came up for consideration before this Court and this Court passed Ext.P12 judgment. In Ext.P12 judgment, this Court considered the judgment of the Apex Court in _**T.N.Godavarman Thirumulpadu**_ (supra) and quashed similar condition in the Environmental Clearance Certificate produced in the said writ petition. ``` WP(C) NO.14488 OF 2023 ``` ``` 7 ``` Following the said judgment, this writ petition is disposed of quashing Condition No.3(3) of Ext.P2 to the extent it stipulates obtaining of clearance from SCNBWL and directing the 3[rd] respondent to issue Environmental Clearance without insisting for clearance from SCNBWL. Sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) NO.14488 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 14488/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE LETTER OF INTENT DATED 26/05/2022 ISSUED BY THE DIRECTOR, DIRECTORATE OF MINING AND GEOLOGY DEPARTMENT ``` ``` Exhibit P2TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 11/10/2022 ISSUED BY THE 3 RD RESPONDENT WITH VALIDITY FOR 5 YEARS ``` - **`Exhibit P3 TRUE COPY OF THE PROCEEDINGS OF THE 3 RD RESPONDENT, DATED 14/02/2023 TRANSFERRING THE ENVIRONMENTAL CLEARANCE TO THE PETITIONER`** - **`Exhibit P4 TRUE COPY OF THE OFFICE MEMORANDUM DATED 8-8-2019,`** - **`Exhibit P5 TRUE COPY OF THE DRAFT NOTIFICATION BEARING NO.4271€ DATED 25/11/2020 ISSUED BY THE COMPETENT AUTHORITY`** - **`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 AND ITS PROPOSED ESZ DATED NIL`** - **`Exhibit P7 TRUE COPY OF THE CERTIFICATE DATED 16/03/2020 ISSUED BY THE WILD LIFE WARDEN, THRISSUR CERTIFYING THE DISTANCE BETWEEN THE QUARRY AND THE SANCTUARY`** - **`Exhibit P8 TRUE COPY OF THE RELEVANT PAGES OF THE APPLICATION FOR NOC UPLOADED BY THE PETITIONER IN THE PORTAL OF THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, GOVERNMENT OF INDIA`** - **`Exhibit P9 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN A SIMILAR CASE BEARING WP© NO.12829/2022 DATED 19/08/2022`** ``` Exhibit P10TRUE COPY OF THE JUDGEMENT PASSED BY THIS HON'BLE COURT IN A SIMILAR CASE ``` ``` WP(C) NO.14488 OF 2023 ``` ``` 9 ``` ``` BEARING WP© NO.19710/2022 DATED 27/07/2022 ``` ``` Exhibit P11TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN A SIMILAR CASE BEARING WP© NO.1651/2023 DATED 19/01/2023 ``` ``` Exhibit P12TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN A SIMILAR CASE BEARING WP(C)NO. 1651/2023 DATED 16/2/2023 ``` ``` RESPONDENT ANNEXURES ANNEXURE R6(A)TRUE COPY OF THE INSPECTION REPORT OF DFO THRISSUR ANNEXURE R6(B)TRUE COPY OF THE MAP INDICATING THE DISTANCE BETWEEN THE PROPOSED QUARRY SITE AND THE NEAREST BOUNDARY OF PEECHI-VAZHANI WILDLIFE SANCTUARY RESERVE FOREST BOUNDARY ```