Chandukkutty v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 28TH DAY OF FEBRUARY 2020 / 9TH PHALGUNA, 1941** ## **WP(C).No.5572 OF 2019(V)** ## **PETITIONER:** **CHANDUKKUTTY, AGED 55 YEARS, S/O.KELAPPAN, RESIDING AT SOWPARNIKA, THEVARKKAD, EDAKKARA P.O., CHELLANNUR, KOZHIKODE- 673616.** **BY ADVS. SRI.RAJAN VISHNURAJ, SRI.HARISH VASUDEVAN** ## **RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, INDIRA PARYAVARAN BHAVAN, JORBAGH ROAD, NEW DELHI- 110003.** - **2 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF ENVIRONMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001.** - **3 KERALA STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY, DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE, PALLIMUKKU, PETTAH P.O., THIRUVANANTHAPURAM, KERALA- 695024, REPRESENTED BY ITS CHAIRMAN.** - **4 DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY, KOZHIKODE, REPRESENTED BY ITS CHAIRMAN, THE DISTRICT COLLECTOR, KOZHIKODE, COLLECTORATE, KOZHIKODE DISTRICT- 673020.** - **5 DISTRICT LEVEL ENVIRONMENT APPRAISAL COMMITTEE, KOZHIKODE, REPRESENTED BY ITS MEMBER SECRETARY, THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, KOZHIKODE DISTRICT- 673020.** - **6 GEOLOGIST, KOZHIKODE DISTRICT, DEPARTMENT OF MINING AND GEOLOGY, KOZHIKODE- 673020.** - **7 T.MOHANAN, SENIOR GEOLOGIST, MINING AND GEOLOGY DISTRICT OFFICE, KOZHIKODE- 673020.** - **8 MOYI MONUL RASHEED O.K., OKH HOUSE, MANKAVU P.O., KOZHIKODE DISTRICT- 673614.** - **9 DISTRICT COLLECTOR, KOZHIKODE, WAYANAD ROAD, CIVIL STATION, ERANHIPPALAM, KOZHIKODE- 673020.** **SRI.P.VIJAYAKUMAR, ASGI FOR R1 SRI.K.V.SOHAN, STATE ATTORNEY FOR R2, R6 & R9 SRI.M.P.SREEKRISHNAN, STANDING COUNSEL FOR R3 SRI.JOBI JOSE KONDODY, STANDING COUNSEL FOR R8** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P. (C) No. 5572 of 2019 ..3.. ## ALEXANDER THOMAS, J. --------------------------------------- W.P. (C) No. 5572 of 2019 --------------------------------------Dated this the 28[th] day of February, 2020 J U D G M E N T The case set up in this Writ Petition (Civil) are as follows: The petitioner approached this Court being aggrieved by the improper and illegal manner in which Ext.P8 clearance has been issued to the 8[th] respondent flouting the provisions of the EIA Notification, 2006 as well as the Environment (Protection) Act, 1986. According to the petitioner, a perusal of Ext.P10 order would reveal that as on 19.9.2017, this Court had stayed the appointment of expert member of the 4[th] respondent. However, despite there being any alternate appointment for expert member, the 4[th] respondent has gone ahead deciding to grant Exhibit P8 clearance for the mining project of the 8[th] respondent without even perusing any scientific/statutory mandatory documents and the 8[th] respondent is now taking steps to start mining operations in his quarry. It is in the light of these averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: W.P. (C) No. 5572 of 2019 ..4.. - “ - _i. Declare that the functioning of the 4[th] respondent after Exhibit P10 in the absence of a duly appointed Expert Member is illegal._ - _ii. Declare that the issuance of Exhibit P8 is illegal, arbitrary and without authority._ - _iii. Declare that the 7[th] respondent had violated the provisions of EIA Notification, 2006 and is liable for its legal consequence._ - _iv. Call for the records leading to issuance of Exhibits P8 and issue a writ of certiorari or any other writ or direction quashing Exhibits P8._ - _v. Issue a writ of mandamus or any other appropriate writ or direction directing the 2[nd] and 9[th] respondents to stop any mining operations by the 8[th] respondent in_ - _Sy.No.41/1 and 44/1 of Edakkara Desom, Thalakulathur Village, Kozhikode Taluk, Kozhikode, on the basis of Exhibit P8 clearance._ - _vi. Pass such any other order, direction or reliefs as this Hon'ble Court may deem fit in the interest of justice, equity and good conscience.”_ 2. Heard Sri.Harish Vasudevan, learned counsel appearing for the petitioner, Sri.Joby Jose Kondody, learned Standing Counsel appearing for R-8, Sri.K.V.Sohan, learned State Attorney appearing for R-2, R-6 & R-9 and Sri.M.P.Sreekrishnan, learned Standing Counsel for Kerala State Environmental Impact Assessment Authority, appearing for R-3 and Sri.P.Vijayakumar, learned Assistant Solicitor General appearing for R-1. In the nature of the orders proposed to be passed in this petition, notice to other respondents will stand dispensed with. 3. The order under challenge in this case is Ext.P-8 Environmental Clearance, issued by the 4[th] respondent Kozhikode District Environmental Impact Assessment Authority for the W.P. (C) No. 5572 of 2019 ..5.. functioning of the quarry of the 8[th] respondent. Various contentions have been urged by both sides. One of the prime contention urged by the counsel for the petitioner is that, the very constitution of the 4[th] respondent District Environmental Impact Assessment Authority was later found fault by this Court as can be seen from Ext.P-10 order dated 19.9.2017 rendered by this Court in WP(C).No.656/2017. Ext.P-10 order passed by this Court in WP(C).No.656/2017 reads as follows: _“The petitioner's contention in the above writ petition is that the respondents 6 and 7 are not entitled to be included as the Expert Members of the District Level Expert Appraisal Committee (DEAC), Wayanad and the District Level Environment Impact Assessment Authority (DEIAA), Kozhikode, for reason of they are having no qualification as prescribed in Ext.P1 notification issued by the Ministry of Environment, Forest and Climate Change. The qualification prescribed as per Ext.P1 is that a minimum 5 years of formal University training in the concerned discipline leading to an MA or MSc Degree or MBA or a degree in Engineering/Technology/Architectural or a professional degree like the Chartered Accountancy._ _2. The 6[th] respondent as per Ext.P2 is found to be a person, having only BSc and BEd and the 7[th] respondent as per Ext.P3 with only BA. Though the writ petition was admitted on 09.01.2017 and the notice sent to the party respondents, there is no appearance for respondents 6 and 7, despite service of notice. The Government has also not filed any counter affidavit, refuting the contention of the petitioner. In such circumstance, the appointments of respondents 6 and 7 shall stand stayed and they shall be restrained from acting as Members of respondents 4 and 5.”_ 4. Further it is pointed out that the very functioning of the District Environmental Impact Assessment Authority has been found fault with the National Green Tribunal, Principal Bench, New Delhi, as per Ext.P-11 order dated 13.9.2018, and thereafter the District W.P. (C) No. 5572 of 2019 ..6.. Assessment Authority has made disfunctional. This Court as per order dated 26.7.2019 in this WP(C) has granted stay of the operation of Ext.P-8 Environmental Clearance, which has been extended from time to time. The main ground on the basis of which this Court has passed the said stay order on 26.7.2019 in this WP(C) is that, the expert member of the District Authority was absent in a meeting which led to the issuance of Ext.P-8 Enviromental Clearance. 5. After hearing both sides this Court is of the considered view that as this Court has found fault with the 4[th] respondent Kozhikode District Environmental Impact Assessment Authority as per Ext.P-10 order, and as the Green Tribunal has also interdicted with the functioning of the District Authority, this Court is of the considered view that the matter requires serious reconsideration at the hands of the 3[rd] respondent Kerala State Environmental Impact Assessment Authority, who is now functioning for all the 14 Districts in the State of Kerala. For effectuating such a remit, it is ordered that the impugned Ext.P-8 order will stand set aside, and the plea of the 8[th] respondent for grant of Environmental Clearance will stand remitted to the 3[rd] respondent Kerala State Environmental Impact Assessment Authority for consideration and decision afresh. 6. The 8[th] respondent may submit necessary application for W.P. (C) No. 5572 of 2019 **==> picture [18 x 9] intentionally omitted <==** grant of Environmental Clearance from the 3[rd] respondent along with all requisite document and materials, and thereafter the 3[rd] respondent will ensure that inspection of the quarrying site of the 8[th] respondent is conducted with due prior notice to the 8[th] respondent. Thereafter, it shall be ensured that the copy of the inspection report so obtained shall be made available by the 3[rd] respondent to both the 8[th] respondent as well as the petitioner. Thereafter, the 3[rd] respondent may afford reasonable opportunity of being heard to both the 8[th] respondent as well as the petitioner, through authorised representative/counsel if any, and thereafter the 3[rd] respondent may render a considered decision on the plea of the 8[th] respondent for grant of Environmental Clearance in accordance with law. The entire proceedings in this regard may be duly completed by the 3[rd] respondent without much delay, preferably within a period of 2 months from the date of submission of requisite application by the 8[th] respondent along with a certified copy of this judgment. 7. Ordinarily the period that could be taken by the 3[rd] respondent is 105 days. But in the instant case, the decision was earlier taken in favour of the 8[th] respondent by the 4[th] respondent District Authority and the matter is now being remitted as per this W.P. (C) No. 5572 of 2019 **==> picture [20 x 9] intentionally omitted <==** judgment and since the remit cannot be made by the 4[th] respondent, who is no longer functional, the matter can be remitted only to the 3[rd] respondent State Authority, and therefore as the matter is pending for quite a long time, this Court is of the considered opinion that the 3[rd] respondent will have to adhere to the abovesaid time limit of 2 months stipulated in this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. (C) No. 5572 of 2019 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**||**A TRUE PHOTOCOPY OF THE NOTIFICATION**| |---|---|---| |||**DATED 15.01.2016 ISSUED BY THE 1ST**| |||**RESPONDENT.**| |**EXHIBIT P2**||**A TRUE PHOTOCOPY OF APPLICATION**| |||**PREFERRED BY THE 8TH RESPONDENT BEFORE**| |||**THE 4TH RESPONDENT.**| |**EXHIBIT P3**||**A TRUE PHOTOCOPY OF THE MINUTES OF THE**| |||**MEETING HELD ON 04.08.2017 BY THE 5TH**| |||**RESPONDENT.**| |**EXHIBIT P4**||**A TRUE PHOTOCOPY OF THE SITE**| |||**INSPECTION REPORT OF THE 5TH**| |||**RESPONDENT DATED 07.09.2017.**| |**EXHIBIT P5**||**A TRUE PHOTOCOPY OF THE AGENDA OF THE**| |||**7TH MEETING OF THE DEAC HELD ON**| |||**06.10.2017.**| |**EXHIBIT P5**|**A**|**A TRUE PHOTOCOPY OF THE MINUTES OF THE**| |||**7TH MEETING OF THE DEAC HELD ON**| |||**06.10.2017.**| |**EXHIBIT P6**||**A TRUE PHOTOCOPY OF THE MINUTES OF THE**| |||**4TH MEETING OF THE DEIAA HELD ON**| |||**29.11.2017.**| |**EXHIBIT P7**||**A TRUE PHOTOCOPY OF THE MINUTES OF THE**| |||**6TH MEETING OF THE DEIAA HELD ON**| |||**19.02.2018.**| |**EXHIBIT P8**||**A TRUE PHOTOCOPY OF THE ENVIRONMENTAL**| |||**CLEARANCE**| |||**NO.62/DEIAA/KL/KKD/H/4598/2017 DATED**| |||**05.04.2018 ISSUED BY THE 4TH**| |||**RESPONDENT TO THE 8TH RESPONDENT.**| W.P. (C) No. 5572 of 2019 ..10.. |**EXHIBIT P9**|**A TRUE PHOTOCOPY OF THE PROCEEDINGS OF**| |---|---| ||**THE DISTRICT COLLECTOR, KOZHIKODE**| ||**CONSTITUTING THE 4TH RAND 5TH**| ||**RESPONDENT.**| |**EXHIBIT P10**|**A TRUE PHOTOCOPY OF THE INTERIM ORDER**| ||**DATED 19.09.2017 PASSED BY THE HON'BLE**| ||**HIGH COURT IN WPC NO.656/2017.**| |**EXHIBIT P11**|**A TRUE PHOTOCOPY OF THE JUDGMENT**| ||**PASSED BY THE PRINCIPAL BENCH OF THE**| ||**HON'BLE NATIONAL GREEN TRIBUNAL, NEW**| ||**DELHI IN O.A.NO.186 OF 2016.**| |**EXHIBIT P12**|**A TRUE PHOTOCOPY OF THE ORDER DATED**| ||**11.12.2018 BY THE NATIONAL GREEN**| ||**TRIBUNAL.**| |**EXHIBIT P13**|**A TRUE PHOTOCOPY OF THE ORDER PASSED**| ||**BY THE HON'BLE SUPREME COURT IN CIVIL**| ||**APPEAL NO.48120 OF 2018.**| |**EXHIBIT P14**|**A TRUE PHOTOCOPY OF THE LETTER DATED**| ||**13.09.2018 ISSUED BY THE DFO,**| ||**KOZHIKODE.**| |**EXHIBIT P15**|**A TRUE PHOTOCOPY OF THE OFFICE**| ||**MEMORANDUM DATED 24.06.2013 ISSUED BY**| ||**THE MoEF & CC**| |**EXHIBIT P16**|**A TRUE PHOTOCOPY OF THE QUARRYING**| ||**PERMIT DATED 31.10.2018 ISSUED BY THE**| ||**6TH RESPONDENT TO THE 8TH RESPONDENT.**| |**EXHIBIT P17**|**A TRUE PHOTOCOPY OF THE GOVERNMENT**| ||**ORDER G.O.(RT) NO.370/2019/ID DATED**| ||**30.04.2019 ISSUED BY THE STATE OF**| ||**KERALA.**| |**EXHIBIT P18**|**A TRUE PHOTOCOPY OF NEWSPAPER ARTICLE**| ||**DATED**<br>**14.10.2019**<br>**PUBLISHED**<br>**IN**| ||**MATHRUBHUMI DAILY.**| |**EXHIBIT P19**|**TRUE PHOTOGRAPHS OF THE INJURIES**| ||**INFLICTED ON MR.SHAJI.**| W.P. (C) No. 5572 of 2019 ..11.. ## **RESPONDENTS' EXHIBITS:** **EXHIBIT-R5(a) TRUE COPY OF THE MINUTES OF THE VIDEO CONFERENCE** **EXHIBIT R8(A) TRUE COPY OF THE LICENSE ISSUED FROM THE DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KOZHIKODE DATED 30.04.2018** **EXHIBIT R8(B) TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C) NO.39704 OF 2018 DATED 19.12.2018.**