KMC Construction Ltd. v. Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 18[TH] DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943** ## **WP(C) NO. 25368 OF 2021** ## **PETITIONER:** KMC CONSTRUCTION LTD. NH 47, PERAMBRA, BEHIND APPOLO TYRES, MUKUNDAPURAM, THRISSUR DISTRICT, PIN-680733, REPRESENTED BY ITS DEPUTY PROJECT MANAGER, BETHI SESHADRI REDDY, AGED 58, S/O B C SESHA REDDY, KMC CONSTUCTIONS LTD, NH 47, PERAMBARA, BEHIND APPOLO TYRES, MUKUNDAPURAM, THRISSUR DISTRICT, PIN-680733. BY ADVS. SAIJO HASSAN BENOJ C AUGUSTIN RAFEEK. V.K. U.M.HASSAN P.PARVATHY ## **RESPONDENTS:** 1 UNION OF INDIA MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, INDIRA PARYAVARAN BHAWAN JORBAGH ROAD, NEW DELHI-110003. 2 THE CHAIRMAN STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY, PALLIMUKKU, KANNAMOOLA ROAD, VELAKUDI., TRIVANDRUM-695024. 3 THE DISTRICT GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, MINI CIVIL STATION, CHEMBUMUKKU, THRISSUR-680020. 4 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, ENVIRONMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. **WP(C) NO. 25368 OF 2021** **2** RIYAL DEVASSY-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 25368 OF 2021** **3** ## **JUDGMENT** This writ petition is filed seeking directions to the respondents to take steps for consideration of the application submitted by the petitioner for Environmental Clearance, 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 application for environmental clearance was submitted and the said application is in proper form satisfying all requirements of the Kerala Minor Mineral Concession Rules, 2015, including distance criteria as stipulated under Rule 40(i) of the Rules 2015. 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 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 **WP(C) NO. 25368 OF 2021** **4** 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 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].**_ **WP(C) NO. 25368 OF 2021** **5** 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 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_ **WP(C) NO. 25368 OF 2021** **6** _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 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 **WP(C) NO. 25368 OF 2021** **7** 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 respondents to take further steps and pass orders on the application for environment clearance, in accordance with law, as it exits, if the same is otherwise in order. **Sd/-** **ANU SIVARAMAN** **JUDGE** SVP **WP(C) NO. 25368 OF 2021** **8** ## **APPENDIX OF WP(C) 25368/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER KODAKARA. - Exhibit P2 TRUE COPY OF THE LETTER NUMBERED AS 2514/C2/TDO/2019 DATED 06.11.2019 ISSUED BY THE 3RD RESPONDENT. - Exhibit P3 TRUE COPY OF THE CERTIFICATE ISSUED BY 3RD RESPONDENT DATED 13.11.2019. - Exhibit P4 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 24.10.2019 ISSUED BY THE 5TH RESPONDENT. - Exhibit P5 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 03.01.2020 ISSUED BY THE 6TH RESPONDENT. - Exhibit P6 TRUE COPY OF THE EXPLOSIVES LICENSE DATED 20.05.2020 ISSUED BY THE CONTROLLER OF EXPLOSIVES. - Exhibit P7 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 27.07.2019 COMMUNICATED TO THE PETITIONER. Exhibit P8 TRUE COPY OF THE RELEVANT PAGES OF MINUTES OF THE 117TH MEETING OF SAEC, KERALA.