BIJO JOSE v State Environment Impact Assessment Authority (SEIAA) & Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE V.G.ARUN ``` ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 ``` ``` WA NO. 397 OF 2020 ``` ``` AGAINST THE JUDGMENT IN WP(C) 2650/2018 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER IN WPC:`** ``` BIJO JOSE, AGED 45 YEARS, S/O.JOSE THOMAS, PARANKULANGARA, THEKKEDATH, NEDIYENGA (PO), TALIPARAMBA, KANNUR DISTRICT - 670 631. ``` ``` BY ADVS. ABDUL JAWAD K. A.GRANCY JOSE ``` ## **`RESPONDENT/S:`** - **`1 THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA), REPRESENTED BY ITS CHAIRMAN, DEVIKRIPA, PALLIMUKKU, PETTAH P.O., THIRUVANANTHAPURAM, PIN - 695 024.`** - **`2 THE STATE EXPERT APPRAISAL COMMITTEE (SEAC), REPRESENTED BY ITS CHAIRMAN, DEVIKRIPA, PALLIMUKKU, PETTAH P.O., THIRUVANANTHAPURAM, PIN - 695 024.`** - **`3 THE DISTRICT COLLECTOR, CIVIL STATION, KANNUR - 670 002.`** - **`4 THE GEOLOGIST,`** ``` DISTRICT OFFICE, DEPARTMENT OF MINING AND ``` **W.A.No.397 of 2020** **2** ``` GEOLOGY, CIVIL STATION, E-BLOCK, KANNUR, PIN - 670 002. ``` - **`5 JILSON JOSEPH V., S/O.V.M.JOSEPH, VELIYATHIL HOUSE, PULIKURUMBA P.O., NADUVIL VIA, KANNUR DISTRICT, PIN - 670 582.`** - **`6 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF ENVIRONMENT AND FOREST, PARYAVARAN BHAVAN, C.G.O.COMPLEX, LODI ROAD, NEW DELHI - 110 003.`** - **`7 THE KERALA STATE DISASTER MANAGEMENT AUTHORITY, REPRESENTED BY MEMBER SECRETARY, OBSERVATOR HILLS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM- 695 033.`** - **`8 SUNILKUMAR V.V., VALIYAVALAPPIL HOUSE, CHEPPARAMBA, NEDIYANGA P.O., KANNUR.`** - **`9 REJI JOSEPH, MUNDIRIKATTIL HOUSE, EDOOR, PAYAM P.O., KANNUR.`** - **`10 JINEESH THOMAS,`** - **`KIZHAKKEPADAVATH, VELIMANAM P.O., VALAYAMKOD, KANNUR.`** - **`11 BABU POOVATHUNKAL, POOVATHUNKAL HOUSE, MANJALAMKUNNU, NEDIYANGA P.O., KANNUR.`** - **`12 VINCENT M.A., MANJALANKAL, PULIKURUMBA P.O., KANNUR.`** - **`13 MINI RAJEEV,`** - **`VATTAKKEEL HOUSE, CHEPPARAMBA, NEDIYANGA P.O., KANNUR.`** - **`14 RAJU,`** - **`MURIKKANANIKAL, AJUNOOR,CHERUPUZHA P.O., KANNUR.`** - **`15 KUNHIRAMAN,`** ``` POOPARAMBA, CHEMBERI P.O., KANNUR, ``` - **`16 LINEESH,`** - **`KALATHIL (H), KARAYATTUMCHAL, CHEMPANTHOTTY P.O., KANNUR.`** - **`17 RANJITH BALAN,`** ``` RENJITH BHAVAN, PULIKURUMBA P.O., KANNUR. ``` **W.A.No.397 of 2020** **3** - **`18 JOBISH, MATTAPPALLY (H), MANDALAM, NADUVEL P.O., KANNUR.`** - **`19 ANEESH P.VAYEKKARA, SREEKANDAPURAM P.O., KANNUR.`** - **`20 AJESH K.KALARICKAL, AREEKKAMALA, CHEMBERI P.O., KANNUR.`** - **`21 BOBISH M.MEDLANKUZHI, VAYATTUPARAMBA P.O., KANNUR.`** - **`22 JIBIN GEORGE,`** - **`NELLANKUZHIYIL, PULIKURUMBA P.O., KANNUR.`** - **`23 ANOOP THOMAS,`** - **`KUZHIPPALAYIL, PULI KURUMBA P.O., KANNUR.`** - **`24 ASHRAF A., ADDOOR, MALAPPATTAM P.O., KANNUR.`** - **`25 MADHIN P.PUNAKKALIL, CHEPPARAMBA, NEDIYANGA P.O.,KANNUR.`** - **`26 SUBHASH,`** - **`VELLAD, KARUVANCHAL P.O., KANNUR.`** - **`27 SATHEESH KURIAN,`** - **`ELLIKKAL HOUSE, PULIKURUMBA P.O.,KANNUR.`** - **`28 SANEESH KURIAN,`** - **`ELLIKKAL HOUSE, PULIKURUMBA P.O., KANNUR.`** - **`29 RATHESH A.,`** - **`ALINKEEL HOUSE, NEDIYANGA P.O., KANNUR.`** - **`30 LIBIN CHACKO,`** - **`PADINJARETHATTU HOUSE, CHEPPARAMBA,`** - **`NEDIYANGA P.O., KANNUR.`** - **`31 SAJESH KRISHNA,`** - **`KRISHNA SAROJAM, MADATHIL P.O., IRITTY, KANNUR.`** - **`32 SUNNY AIKKARAKANAYIL, CHELIMPARAMBA, CHEMBERI P.O.,KANNUR.`** - **`33 SURESH BABU,`** - **`VALIYAVALAPPIL HOUSE, CHEPPARAMBA, NEDIYANGA P.O., KANNUR.`** - **`34 THOMAS A., ARIMANNIL HOUSE,CHEMPANTHOTTY P.O.,KANNUR.`** - **`35 SONY THOMAS, KARUKUTTI, ANGAMALY,ERNAKULAM.`** - **`36 DILEEP DEVAN, NENMARA, PALAKKAD,`** **W.A.No.397 of 2020** **4** - **`37 JINEESH JOSEPH,`** - **`ANJU KANDAM,MANJALAMKUNNU, CHEMPANTHOTTY, KANNUR.`** - **`38 LIJU LAKSHMANAN, KOTTOOR, SREEKANDAPURAM P.O., KANNUR.`** - **`39 KANNAN K., KEEZHAKOTTAI, KRISHNAGIRI, TAMIL NADU.`** - **`40 LAKSHNI P., PRATTOOR, CHEPPARAMBA, NEDIYANGA P.O., KANNUR.`** - **`41 NARAYANI KOMIL,`** - **`CHEPPARAMBA, NEDIYANGA P.O.,KANNUR.`** - **`42 OMANA C.V.,`** - **`CHERANVEETTIL, CHEPPARAMBA, NEDIYANGA P.O., KANNUR.`** - **`43 ISLAM MAJHWALLIA,`** - **`BALLIA, UTTARPRADESH.`** - **`44 RAJAN KORANPEEDIKA,`** - **`PARIYARAM P.O.,KANNUR.`** - **`45 THANKACHAN,`** - **`CHUNDUPARAMBA, PAYYAVUR P.O., KANNUR.`** - **`46 SAJI MATHEW,`** - **`MELETTUTHADATHIL, CHEMPENTHOTTY P.O., KANNUR.`** - **`47 KAMAL GAWADA,`** - **`POWAI BOAN GOAN,TIN SUKIA, ASSAM.`** - **`48 BIKARAM THAPPA,`** - **`POWAI BOAN GOAN,TIN SUKIA, ASSAM.`** - **`49 SANJAY GURUNG,`** - **`POWAI BOAN GOAN,TIN SUKIA, ASSAM.`** - **`50 SURAJ,`** - **`POWAI BOAN GOAN, TIN SUKIA, ASSAM.`** - **`51 BIJESH BABY, ATHMATHADATHIL, MANNERI PAYYAVOOR,KANNUR.`** - **`52 KAYAKRISHNAN K.C., KANTHURULI KOPPALA, THAMILNADU.`** - **`53 DOMINIC XAVIER R., H 40,SULAVADI, KOLLEGATA TQ, ASSAM.`** - **`54 CHENGBA THAMANG, POWAI BOAN GOAN, TIN SUKIA, ASSAM.`** - **`55 SATHISH P., S/O.PALANI, NO.134, KEEZHKOTTAI,`** - **`PERIYANKARADIYAR P.O., VEERAMALAI,TAMILNADU.`** **W.A.No.397 of 2020** **5** - **`56 RAJEEVAN,`** - **`MAYYIL, ETTAYAR, MAYYIL P.O., KANNUR.`** - **`57 DAWA DORJI LAMA, PAWAI BOAN GOON, TIN SUKIA, ASSAM.`** - **`58 SANJIV GOGI, POWAI BOON GOAN, TIN SUKIA, ASSAM.`** - **`59 LYJU LAKSHMANAN, KOTTOR,SREEKANDAPURAM P.O.,KANNUR.`** - **`60 SAJI M., MADATHIL, IRITTY, KANNUR.`** - **`61 POLACHAN ANTONY, KARUKUTTY P.O.,ANKAMALY.`** - **`62 MABEL JOSEPH, ANJUKANDATHIL, CHENPANTHOTTY, KANNUR.`** - **`63 VIKAS KAI, BITAL, PANIGODA P.O., ODISHA.`** - **`64 BHIMANNA KUNTAPPA,`** - **`KUNCHA HAL, BAJAPURA, KARNATAKA.`** - **`65 HARISH MALIK,`** - **`TANGEDA, RAMNABADI, ODISHA.`** - **`66 SELVAM,`** - **`H 18, MARTALLI, KOLLEGAL, CHAMARAJA NAGAR, TAMILNADU.`** - **`67 NIKHIL P., PEERAKKEEL, CHEPPARAMBA, NEDIYANGA P.O.,KANNUR.`** - **`68 UJAL P., PANDANDA, CHEPPARAMBA,NEDIYANGA P.O.,KANNUR.`** - **`69 MAIMUL HAQUE,`** - **`BETAUNG,ANCHAL, KASABA, PURNIA (DISTRICT), BIHAR.`** - **`70 TILISAN MALIK, ADIPENKA,RAMANABODI,BARIGADA, ANDHRAPRADESH,`** - **`71 BALAKRISHNAN,`** - **`POOPARMBA,CHEMBERI, KANNUR.`** - **`72 UNNI, KANJILARI,SREEKANDAPURAM, KANNUR.`** - **`73 MANOHARAN, POOPARAMBA, CHEMBERI, KANNUR.`** - **`74 BINIL K., KARUKUTTY, ANKAMALY.`** **W.A.No.397 of 2020** **6** ``` 75SHYAM THAMANG, 1-2-100,STREET NO.3, KAKATIYA, ASSAM. 76PRANAV M., KOLAPPA, IRIKKUR P.O., KANNUR. BY ADVS. Nisha George Mr.JOSEPH RONY JOSE, CGC SRI.SANTHOSH MATHEW Nandagopal Nambiar V.V SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SMT.VEENA RAVEENDRAN SRI.ANIL SEBASTIAN PULICKEL K.I.MAYANKUTTY MATHER(K/272/1984) GEORGE POONTHOTTAM (SR.)(K/000570/1979) ``` ## **`OTHER PRESENT:`** ``` SR.GP.S.KANNAN; SC FOR R1 M.P.SREEKRISHNAN ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.397 of 2020** **7** ## **JUDGMENT** ## **A.J. Desai, C.J.** By way of the present appeal filed under section 5 of the Kerala High Court Act, 1958, the appellant/original petitioner has challenged the judgment dated 03.02.2020 in W.P.(C) No.2650 of 2018 by which the learned single Judge has refused to entertain the petition seeking a writ of mandamus, declaring that the 5[th] respondent is not entitled to conduct quarrying operation on the basis of the Environmental Clearance Certificate issued on 29.11.2017 by the State Environmental Impact Assessment Authority, Kerala (SEIAA), since the certificate ought to have been issued by the Central Government in terms of the notification dated 14.03.2017 issued by the Ministry of Environment, Forest and Climate Change, Union of India. The other prayer is for a writ of mandamus commanding the concerned District Collector as well as the Geologist to see that the quarrying operations are not continued unless and until the appraisal is done and permission granted by the Expert Appraisal Committee and Regulatory Authority at the Central level. **W.A.No.397 of 2020** **8** 2. In response to the notice issued by the learned single Judge, all the respondents filed their counter affidavits and opposed the grant of reliefs prayed by the appellant. After considering the rival submissions and perusing the documents on record, the learned single Judge dismissed the writ petition. Hence, this appeal. 3. The case put forth by the appellant is as under: The appellant, along with his family, is residing in the property comprised in Re.Sy.No.28 in Nediyenga Village in Taliparamba Taluk in Kannur District since 1969 and is carrying out agricultural operations on the said land. It is the case of the appellant that the entire area surrounding his land is agricultural land and an ecologically and environmentally sensitive one. It is the case of the appellant that private respondent No.5 started granite quarrying operations in the adjacent property and the house of the appellant was damaged and his agricultural operations were affected due to the blasting of rocks. Therefore, the appellant was left with no alternative, but to file a writ petition before this court, being **W.A.No.397 of 2020** **9** W.P.(C)No.27189 of 2016. By an interim order dated 17.08.2016, this court restrained the 5[th] respondent from conducting mining operations and by judgment dated 07.12.2016, the learned single Judge restrained the 5[th] respondent from conducting quarrying operations without environmental clearance and without permit/licence/lease obtained under the Mines and Minerals (Development and Regulation) Act, 1957 and the Kerala Minor Mineral Concession Rules, 2015. 4. Later, on coming to know that the 5[th] respondent had submitted an application for environmental clearance before the first respondent, the appellant preferred an objection and sought rejection of the application. Apprehending that the first respondent will not provide the appellant with an opportunity to plead his case, he filed another writ petition, W.P.(C)No.5016 of 2017, before this court and the same was disposed of on 16.02.2017 with certain directions. Alleging disobedience of the directions in that judgment, Cont. Case (C) No.687 of 2017 was filed and on 14.08.2017, this court recorded the statement of the learned Government Pleader appearing for the authority that, the opportunity of hearing shall be given to the appellant. **W.A.No.397 of 2020** **10** Accordingly, the appellant was heard by the SEIAA on 15.09.2017 and submitted a detailed written objection. Thereafter, the authority issued Environmental Clearance No.86/2017 on 29.11.2017 (Exhibit P9) recording the objections submitted by the appellant. 5. While challenging Exhibit P9 before this court in W.P.(C)No.2650 of 2018, the appellant had stated that, though there is an alternate remedy of filing an appeal against the environmental clearance certificate, the writ petition under Article 226 of the Constitution of India was filed, since the appellate authority was not conducting its session during that period and urgent orders were required for stopping the quarrying activity. 6. At this stage, it is pertinent to note that when the decision was impugned in this appeal, the Division Bench of this court, by an interim order issued on 16.03.2023, directed the Secretary of the District Legal Services Authority (DLSA) to inspect the site and file a report before this court with respect to the grievances highlighted by the appellant with regard to **W.A.No.397 of 2020** **11** the damage caused to his house due to the quarrying operation. Accordingly, a report was submitted by the Secretary, DLSA. Thereafter, another order was passed by the Division Bench on 04.04.2023, directing the SEIAA to depute its officials to find out and report whether any impact has been created on the residential house of the appellant due to the blasting. 7. Accordingly, a report has been produced before this court along with an affidavit filed on behalf of the SEIAA dated 18.11.2023. The copy of the said report, which has been carried out in a scientific manner, discloses that there is no impact on the house of the appellant due to the blasting done in connection with the quarrying works. 8. Adv. Abdul Jawad, the learned counsel appearing for the appellant submitted that he is not arguing the case with regard to the damage to the appellant’s property and is more on the authority of the first respondent to issue Exhibit P9 certificate. 9. The arguments advanced by the learned counsel for the appellant are dealt with hereinafter. **W.A.No.397 of 2020** **12** 10. It was vehemently contended by the learned Counsel that the learned single Judge had committed a grave error in not dealing with the fundamental legal question regarding the authority of the SEIAA to issue the environmental clearance certificate dated 29.11.2017 (Exhibit P9). He submitted that the notification dated 14.03.2017 (Exhibit P10) issued by the Ministry of Environment, Forest and Climate Change, Government of India made it clear that for certain projects, of which mining activities are part, clearance from the Central Government was mandatory. 11. By taking us through clause 13 of Exhibit P10 and in particular, clause 13(2), it is argued that if any activity, construction, modernisation or expansion was carried out prior to obtaining environmental clearance under the Environment Impact Assessment Notification, 2006 with respect to the projects, including the projects of category B (mining activities falls under this category), the environmental clearance can be issued only by the Expert Appraisal Committee at the Central level. He would submit that it is not in dispute that the 5[th] respondent was carrying on mining activities prior to the **W.A.No.397 of 2020** **13** issuance of the notification dated 14.03.2017 (Exhibit P10), and, therefore, when he applied for mining activities for more area than he was operating upon, it can be treated as an expansion of the project and a violation case. Therefore, environmental clearance could have been granted only at the Central level and not by the State authorities. He would submit that, as provided under clauses 13 (4) and (5), before the issuance of the environmental clearance, certain procedure is required to be followed, which has not been carried out in the present case. 12. By taking us through the counter affidavit dated 26.02.2018 filed by the Assistant Geologist, particularly Exhibit R4(b), he would submit that the inspection report makes it clear that mining work was being carried out since 2005 by different lessees and granite (building stone) was being mined by those lessees. The 5[th] respondent continued these mining activities from 2014 onwards in a small portion of the land in dispute and, therefore, when the 5[th] respondent applied to the State authorities for environment clearance to conduct quarrying activity in 8.0804 Hectares of land, the same is required to be treated as an expansion of the project and, therefore, **W.A.No.397 of 2020** **14** notification dated 14.03.2017 would be applicable in the present case. He would submit that since the activities were going on, as on the date of issuance of the notification dated 14.03.2017, clause 14 of the said notification would be applicable and the 5[th] respondent ought to have applied for environmental clearance under that notification within six months from the date of the said notification. No such application having been submitted by the 5[th] respondent, the authority could not have issued the environmental clearance certificate impugned in the writ petition as well as in the appeal. 13. In support of the contentions, learned Counsel relied on a decision of this court in the case of **Malabar Sand and Stones Pvt. Ltd and Others v. Union of India and Others** reported in 2019 (1) KHC 859. By relying on the decision of the Hon’ble Apex Court in the case of **Common Cause v. Union of India** reported in 2017(3) KLT 927 (SC), he would submit that, before granting environmental clearance, due diligence and reasonable care with regard to the possible damage to the environment had to be considered, which has not been undertaken by the authority. Hence, on that ground also, the **W.A.No.397 of 2020** **15** clearance certificate is required to be quashed and set aside. 14. By relying on another decision of the Hon’ble Apex Court in the case of **Federation of Rainbow Warriors v. Union of India** reported in 2019 (2) KLT 143 (SC), it is emphasised by the learned counsel that the EAC is under a mandate to conduct the process of appraisal in a transparent manner and the recommendations made by the EAC to the regulatory authority must be based on reasons. As no such exercise was undertaken in the 5[th] respondent's case, the clearance certificate is required to be set aside on that ground also. 15. By relying upon the decision of the Division Bench of this court in the case of **Nature Lovers’ Forum v. State of Kerala** reported in 2016 (1) KLT 75, he would submit that the ratio of the judgement of the Hon’ble Apex Court in the case of **Deepak Kumar and Others v. State of Haryana and Others** reported in (2012) 4 SCC 629 continued to apply even after the introduction of the Kerala Minor Mineral Concession Rules, 2015 and the Division Bench had quashed proviso to rule 12 of the 2015 Rules, by which exemption from the requirement of **W.A.No.397 of 2020** **16** mining plan and environmental clearance for renewal of permits was granted to quarries that were carrying on operations before 26.02.2012 on the strength of permits granted under the Kerala Minor Mineral Concession Rules, 1967. He, therefore, would submit that for this reason also, the certificate ought not to have been issued, since illegal quarrying was being carried out by the 5[th] respondent. 16. He, therefore, would contend that on these two grounds, i.e., having no power with the State authorities to issue clearance certificate and alternately, the procedure not being followed before issuing the certificate, the writ appeal be allowed and Exhibit P9 be quashed and set aside. 17. On the other hand, the learned Senior Advocate George Poonthottam appearing for respondent No.5, Adv. Santhosh Mathew appearing for respondents 8 to 10 and Adv. K.I. Mayankutty Mather appearing for respondents 22, 26 and 27, opposed the appeal on various grounds. 18. Learned counsel appearing for the respondents raised a preliminary objection pointing out that the writ **W.A.No.397 of 2020** **17** petition itself was not maintainable, in view of the efficacious remedy available under the National Green Tribunal Act, 2010. It is submitted that the registry of the Nation Green Tribunal had been functioning during the relevant time and the appellant could have filed the appeal and, if necessary, filed a writ petition thereafter. 19. It is submitted that the appellant, with motives known to him, has been putting hurdles from 2016 onwards, i.e., after the leasehold rights were given to the 5[th] respondent in the year 2014. It is submitted that, indisputably, in the same area where the quarry operations are undertaken by the 5[th] respondent, four other quarries are conducting similar mining processes. However, no complaint, valid or invalid, has ever been filed against the other leaseholders. It is submitted that quarrying operation was conducted in the disputed land by the then leaseholders from 2004 and 2005 onwards with necessary permissions and that fact has been brought on record in the affidavit of the Geologist. It is submitted that after the EIA notification of 2006 came into force, quarrying was undertaken only after securing permission from the State **W.A.No.397 of 2020** **18** authorities. Therefore, it cannot be said that any illegal excavation was done on the disputed land. It is further submitted that when the original petitioner filed a writ petition, being W.P.(C)No.27189 of 2016, this Court had ordered to stop the excavation. The activity was stopped immediately and no quarrying operation was conducted subsequent to 07.08.2016. Thereafter, an application for grant of quarrying lease with respect to land admeasuring 8.0804 Hectares was submitted along with requisite details. It is contended that when the application for environmental clearance was submitted on 26.12.2016, Exhibit P10 notification dated 14.03.2017, which has been heavily relied on, had not come into operation. 20. It is submitted that the application submitted by the leaseholder way back on 26.12.2016 was allowed only on 29.11.2017 due to the non-cooperation of the appellant, which fact is clearly observed in Exhibit P9 certificate. The fact that till the environmental clearance certificate was issued in November 2017, no mining operations were carried out is also noted in the environmental clearance certificate. **W.A.No.397 of 2020** **19** 21. By taking us through the details referred to in the environmental clearance certificate, it is submitted that requisite formalities with respect to grant of lease for quarrying the land admeasuring more than 8 Hectares were complied with and the certificate was issued by the competent authority after examining all aspects. As the application was filed on 26.12.2016, i.e., prior to the issuance of the notification dated 14.03.2017, the first respondent is the only authority competent to issue Exhibit P9 certificate. 22. It is further submitted that the mining activities, which were being conducted in a very small parcel of land, were being continued in view of either permission granted by the State authorities or pendency of the proceedings before the Hon’ble Apex Court, wherein a status quo order with regard to the environmental clearance was granted. Therefore, Clause 14 of the notification dated 14.03.2017, which deals with projects/activities which are in violation as on the date of the notification, is not attracted as far as the 5[th] respondent’s application is concerned. Alternatively, it is contended that, permission was granted to the 5[th] respondent by the State **W.A.No.397 of 2020** **20** authorities for excavating 40 Ares, i.e., 4000 square metres of land only in the years 2016 and 2017. However, 8.0804 Hectares being a much larger area and the requirements for the grant of permit for larger areas being entirely different, it cannot be said that the application submitted by the 5[th] respondent was for the expansion of an existing quarry. 23. It is contended that, at no point of time the appellant had raised any objection, written or oral, before the State authority about its power to issue the environmental clearance certificate, even though the notification was issued on 14.03.2017 and objection was filed by the appellant in September 2017. It is, therefore, submitted that these contentions have been raised for the first time and are required to be discarded. 24. It is further submitted that in the year 2022, i.e., during the pendency of the present appeal, the Ministry of Environment, Forest and Climate Change, Government of India, through its integrated Regional Office, Bangalore had visited the site and issued a certificate dated 25.03.2022 along with a **W.A.No.397 of 2020** **21** detailed report and has recorded the project as satisfactory. By taking us through the said notification dated 25.03.2022 along with the detailed report, it is submitted that all 61 requirements for conducting the quarry are complied with by the leaseholder and, therefore, there is no need to quash and set aside the certificate which has been issued way back in the year 2017 and has been confirmed by the Central Government in the year 2022. 25. It is further argued that the State, as well as the Central authorities, have already come to the conclusion that the quarrying operations are being conducted in an absolutely legal manner and that the house of the appellant is beyond the prohibited distance. It is contended that when the SEIAA has submitted a report recording the fact that there is no damage to the appellant’s house due to the blasting and excavation work, the court may not interfere with the mining activities being conducted strictly in accordance with law and under the regular supervision of the authorities concerned. It is, therefore, submitted that the appeal be dismissed. 26. We heard learned Advocates appearing for the **W.A.No.397 of 2020** **22** respective parties. 27. The objection as to maintainability is discarded since the writ petition was filed in the year 2018 and is decided on merits. 28. As discussed hereinabove, the basis of filing the petition is that, due to the mining activities, the house of the appellant was damaged, and his agricultural operations are adversely affected. The latest report submitted pursuant to this court’s direction is to the effect that damage to the property and house is not due to mining activities. As the aspect with respect to the damage is not being pursued by the appellant, this court is not discussing about the detailed report, which has been produced along with an affidavit dated 18.11.2023. 29. It is not in dispute that the present appellant had filed W.P.(C)No.27189 of 2016, alleging that the mining activities are being carried out by the 5[th] respondent without environmental clearance and by an interim order dated 17.08.2016, the learned single Judge had restrained the 5[th] **W.A.No.397 of 2020** **23** respondent from conducting mining activities. As a result, the said activities were stopped in the month of August 2016 itself. Pertinently, the appellant has no grievance that, subsequent to the order dated 17.08.2016, any mining activity was carried out by the 5[th] respondent. The aforesaid writ petition was disposed of with the observation that, unless environmental clearance is issued under the Mines and Minerals (Development and Regulation) Act, 1957 and the Kerala Minor Mineral Concession Rules, 2015, no activity shall be carried out by the 5[th] respondent. Accordingly, the 5[th] respondent filed an application for environmental clearance to the SEIAA, which was the competent authority to deal with the application at that point of time, since the notification dated 14.03.2017 was not in existence then. 30. The appellant raised objection against the grant of environmental clearance to the 5[th] respondent and based on the direction in W.P.(C) No.5016 of 2017, he was called for a hearing and had filed a detailed statement of objection. This aspect has been categorically stated in the environmental clearance certificate dated 29.11.2017. In fact, there is a **W.A.No.397 of 2020** **24** detailed discussion in the certificate under the head hearing of the complaint, wherein it has been specifically stated that the appellant did not cooperate with the inspection and enquiry. However, subsequent to the written objection received from the appellant, the members of the sub-committee consisting of Dr. P.S. Harikumar and Dr. Khaleel Chovva visited the quarry site on 09.07.2017 and recorded as under: “No activity was seen at the site and it appears that in recent times quarrying was not done The topsoil and quarry waste is dumped loosely at the site Planted some sapling of trees around the site Sign boards were erected at the site The approach road is badly maintained As per the certificate from District Officer, Mining and Geology Dept, 4 quarries are working in 500 m radius. The total area of the 4 quarries is approx 6.4 ha. We have not observed any deep pits from the ground level. No agricultural activity is seen at the proposed site. The topsoil and overburden in a large quaintly has to be removed. The proponent has submitted the details of flora and fauna available in the area.” It is therefore clear that when the officers visited on 09.07.2017, **W.A.No.397 of 2020** **25** there were no activities at the site and there was no sign of any quarrying work having been conducted in recent times. This makes it all the more clear that after stopping the work in August 2016 or submitting the application in December 2016, no quarrying work was undertaken by the 5[th] respondent in view of the orders passed by this court. Since reliance has been placed on clauses 13 and 14 of the notification dated 14.03.2017, the same are reproduced hereunder: “13 (1). Now, therefore, in exercise of the powers conferred by sub-section (1) and sub-clause (a) of clause (i) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986, read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986; the Central Government hereby directs that the projects or activities or the expansion or modernisation of existing projects or activities requiring prior environmental clearance under the Environment Impact Assessment Notification, 2006 entailing capacity addition with change in process or technology or both undertaken in any part of India without obtaining prior environmental clearance from the Central Government or by the State Level Environment Impact Assessment Authority, as the case may be, duly constituted by the Central Government under sub-section (3) of Section 3 of the said Act, shall be considered a case of violation of the **W.A.No.397 of 2020** **26** Environment Impact Assessment Notification, 2006 and will be dealt strictly as per the procedure specified in the following manner:- (2) In case the projects or activities requiring prior environmental clearance under Environment Impact Assessment Notification, 2006 from the concerned Regulatory Authority are brought for environmental clearance after starting the construction work, or have undertaken expansion, modernization, and change in product-mix without prior environmental clearance, these projects shall be treated as cases of violations and in such cases, even Category B projects which are granted environmental clearance by the State Environment Impact Assessment Authority constituted under sub-section (3) Section 3 of the Environment (Protection) Act, 1986 shall be appraised for grant of environmental clearance only by the Expert Appraisal Committee and environmental clearance will be granted at the Central level. (3) In cases of violation, action will be taken against the project proponent by the respective State or State Pollution Control Board under the provisions of section 19 of the Environment (Protection) Act, 1986 and further, no consent to operate or occupancy certificate will be issued till the project is granted the environmental clearance. (4) The cases of violation will be appraised by respective sector Expert Appraisal Committees constituted under subsection (3) of Section 3 of the Environment (Protection) Act, 1986 with a view to assess **W.A.No.397 of 2020** **27** that the project has been constructed at a site which under prevailing laws is permissible and expansion has been done which can be run sustainably under compliance of environmental norms with adequate environmental safeguards; and in case, where the finding of the Expert Appraisal Committee is negative, closure of the project will be recommended along with other actions under the law. (5) In case, where the findings of the Expert Appraisal Committee on point at sub-para (4) above are affirmative, the projects under this category will be prescribed the appropriate Terms of Reference for undertaking Environment Impact Assessment and preparation of Environment Management Plan. Further, the Expert Appraisal Committee will prescribe a specific Terms of Reference for the project on assessment of ecological damage, remediation plan and natural and community resource augmentation plan and it shall be prepared as an independent chapter in the environment impact assessment report by the accredited consultants. The collection and analysis of data for assessment of ecological damage, preparation of remediation plan and natural and community resource augmentation plan shall be done by an environmental laboratory duly notified under Environment (Protection) Act, 1986, or a environmental laboratory accredited by National Accreditation Board for Testing and Calibration Laboratories, or a laboratory of a Council of Scientific and **W.A.No.397 of 2020** **28** Industrial Research institution working in the field of environment. (6) The Expert Appraisal Committee shall stipulate the implementation of Environmental Management Plan, comprising remediation plan and natural and community resource augmentation plan corresponding to the ecological damage assessed and economic benefit derived due to violation as a condition of environmental clearance. (7) The project proponent will be required to submit a bank guarantee equivalent to the amount of remediation plan and Natural and Community Resource Augmentation Plan with the State Pollution Control Board and the quantification will be recommended by Expert Appraisal Committee and finalized by Regulatory Authority and the bank guarantee shall be deposited prior to the grant of environmental clearance and will be released after successful implementation of the remediation plan and Natural and Community Resource Augmentation Plan, and after the recommendation by regional office of the Ministry, Expert Appraisal Committee and approval of the Regulatory Authority. 14. The projects or activities which are in violation as on date of this notification only will be eligible to apply for environmental clearance under this notification and the project proponents can apply for environmental clearance under this notification only within six months from the date of this notification.” **W.A.No.397 of 2020** **29** 31. It is true that the environmental clearance certificate was required to be obtained at the Central level in cases like modernisation, expansion, etc. However, read with clause 14 of Exhibit P10 notification, the said requirement would be applicable only to those projects which were carrying on activities without environmental clearance as on the date of notification. As stated hereinabove, when the lessee applied in December 2016, no illegal activities, in violation of any law, were going on, and the notification dated 14.03.2017 was not in existence. Being so, the notification has no application as far as the 5[th] respondent’s application is concerned. 32. It is also pertinent to note that the area which is sought to be excavated is much more than what was being used for mining purposes from 2004 and 2005, that too under various permissions granted by the State authorities. It is also pertinent to note that the Ministry of Environment, Forest and Climate Change has issued another notification dated 08.03.2018 by which paragraph 2 of the notification dated 14.03.2017 has been amended and powers have been granted to the State authority. Therefore, now only the State authority is **W.A.No.397 of 2020** **30** empowered to issue such environmental clearance certificates. 33. It is pertinent to note that the quarry was being operated with permission from the authorities, issued on the strength of the then existing Government Orders, as also the status quo order of the Hon’ble Apex Court. Hence, it cannot be said that the 5[th] respondent was carrying on illegal mining activities. It is also pertinent to note that after considering the two notifications dated 14.3.2017 and 08.03.2018, the Ministry of Environment, Forest and Climate Change has issued another Office Memorandum on 09.09.2019 (Exhibit P23) by which the powers referred under the notification dated 14.03.2017 are delegated to the State for appraisal of category B projects. 34. In addition to the above aspect, the Ministry of Environment, Forest and Climate Change, Government of India, has also issued a certificate/communication dated 25.03.2022 with regard to the quarry in question, disclosing that the project undertaken is satisfactory. It appears from the report, which has been produced as Annexure R5(c) along with an affidavit dated 24.02.2023, that the 5[th] respondent has complied with all the 61 **W.A.No.397 of 2020** **31** necessary requirements. In our considered opinion, since the case on hand has been considered on the basis of facts, the judgments relied on by the learned counsel for the appellant are not applicable in the present case and are, therefore, not discussed in detail. Hence, we do not find any substance in the submissions made by the counsel appearing for the appellant. The appeal is accordingly dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **A.J. Desai Chief Justice** Sd/- **V.G. Arun Judge** **vpv** **W.A.No.397 of 2020** **32** ``` APPENDIX OF WA 397/2020 ``` ## **`RESPONDENT ANNEXURES`** - **`Annexure-R5(d) True copy of the Order dated 20/09/2022 bearing No. 617/EC4/2021/SEIAA issued by the SEIAA.`** - **`Annexure-R5(a) True copy of the calculation using Google Earth photo screen shot showing the distance from the quarry of the cousin of the appellant with that of the residence of the appellant.`** - **`Annexure-R5(b) True copy of the calculation using Google Earth photo screen shot showing the distance from quarry of the respondent with the residence of the appellant.`** - **`Annexure-R5(c) True copy of the study report dated 25/03/2022 bearing No. E.File No. 12.1/SEIAA/2017-18/29/KER/1678.`** - **`ANNEXURE R1(A) A TRUE COPY OF THE FILED INSPECTION REPORT SUBMITTED BY THE SUB COMMITTEE TO THE SEAC`** - **`ANNEXURE R1(B) A TRUE COPY OF THE E_MAIL, DATED 07.06.2023 ISSUED BY SEIAA TO SRI. BIJO JOSE`** - **`ANNEXURE R1(C) A TRUE COPY OF THE E_MAIL, DATED 07.06.2023 ISSUED BY SEIAA TO PROPONENT`** - **`ANNEXURE R1(D) A TRUE COPY OF THE APPRAISAL BY THE 2ND RESPONDENT`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE ATRUE COPY OF THE ORDER DATED 24/01/2018 IN W.P.(C) NO.2650/2018. ``` **W.A.No.397 of 2020** **33** ``` ANNEXURE BTRUE COPY OF THE REPRESENTATION, DATED 12/02/2020,SUBMITTED BY THE APPELLANT, BEFORE THE 3RD RESPONDENT. ANNEXURE C TRUE COPY OF THE REPRESENTATION, DATED 12/02/2020, SUBMITTED BY THE APPELLANT, BEFORE THE 4TH RESPONDENT. ```