B. Sundaran v. Director of Mining and Geology

W.P.(C).No.25519/21 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943** ## **WP(C) NO. 25519 OF 2021** ## **PETITIONERS:** B.SUNDARAN, AGED 55 YEARS S/O. BALAKRISHNAN, CHAITHANYA, VALLOM, NEDUVTHOOR, KOLLAM 691 506. BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE CIMIL CHERIAN KOTTALIL LEO LUKOSE SUZANNE KURIAN ## **RESPONDENTS:** 1 THE DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, PATTOM, P.O. THIRUVANANTHAPURAM 695 004. 2 GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, ASRAMAM, KOLLAM 691 008. ## **OTHER PRESENT:** APPU.P.S-GP 2 ## W.P.(C).No.25519/21 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.25519/21 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(c).No.25519 of 2021** **= = = = = = = = = = = = = = = = Dated this the 17[th] day of November, 2021** ## **JUDGMENT** This writ petition is filed seeking directions to the 2nd respondent to take steps for consideration of the application for quarrying permit, without reference to the distance conditions specified in the order dated 21.07.2020 of the National Green Tribunal, Principal Bench, New Delhi in O.A.No.304/2019. 2.The learned counsel for the petitioner submits that the petitioner had secured Letter of Intent and had also procured all the licences/consents and clearances as required in law. It is submitted that going by the mandate of Rule 33(2) of the KMMC Rules, 2015 the respondents are duty bound to execute quarrying lease once the applicant obtains all required consents. 3. 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 W.P.(C).No.25519/21 4 order was challenged before this Court in W.P.(C).No. 15305 of 2020 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 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 W.P.(C).No.25519/21 5 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.1212212123 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_ W.P.(C).No.25519/21 6 _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 that the petitioner's application had not been considered relying on the interim W.P.(C).No.25519/21 7 order of this Court dated 6.8.2020. 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 application in accordance with law, as it exists. This writ petition is, accordingly, disposed of directing the 2 nd respondent to consider the application submitted by the petitioner for quarrying permit, in accordance with law, as it exits, if the same is otherwise in order. Sd/- ## **Anu Sivaraman, Judge** sj W.P.(C).No.25519/21 8 ## **APPENDIX OF WP(C) 25519/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER OF INTENT DTD. 21.03.2018 ISSUED BY THE 2ND RESPONDENT. Exhibit P2 TRUE COPY OF THE ENVIRONMENT CLEARANCE CERTIFICATE NO. 46/2020 VALID TILL 18.03.2023 ISSUED BY THE SEIAA. Exhibit P2(A) TRUE COPY OF THE CONSENT DATED 26.06.2020 VALID TILL 18.03.2023 ISSUED BY THE POLLUTION CONTROL BOARD. Exhibit P2 (B) TRUE COPY OF THE TRADE LICENSE DATED 07.08.2020 VALID TILL 31.03.2023 ISSUED BY THE VILAKUDY PANCHAYAT. Exhibit P2 (C) TRUE COPY OF THE EXPLOSIVE LICENSE DATED 20.03.2018 VALID TILL 31.03.2022. Exhibit P3 A TRUE COPY OF THE ORDER DATED 21.07.2020 IN O.A. 304/2019 ISSUED BY THE NATIONAL GREEN TRIBUNAL. Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 25.10.2021 IN CIVIL APPEAL NO. 6273/2021 AND BATCH OF CASES ON THE FILES OF THE HONBLE SUPREME COURT. Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 05.11.2021 IN WPC NO. 24148/2021 ON THE FILES OF THIS HONBLE COURT. True copy PS to Judge