Manikkampara Granites Pvt. Ltd. v District Environmental Impact Assessment Authority and Others (WP(C).Nos. 20245/2018 & 20308/2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940** ## **WP(C).No. 20245 of 2018** ## **PETITIONER/S:** **MANIKKAMPARA GRANITES PVT. LTD., ST.MARY'S ASSUMPTION CHURCH BUILDINGS, AYYANTHOLE P.O., THRISSUR DISTRICT 680 003 REPRESENTED BY ITS MANAGING DIRECTOR, O.A.JOSE, AGED 59 YEARS, S/O.ANTONY.** **BY ADV. SRI.JOBI JOSE KONDODY** ## **RESPONDENT/S:** |**1**|**THE DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT**| |---|---| ||**AUTHORITY,**| ||**REPRESENTED BY ITS MEMBER SECRETARY,**| ||**CIVIL STATION, AYYAANTHOLE P.O.,**| ||**THRISSUR DISTRICT 680 003.**| |**2**|**THE CHAIRMAN,**| ||**THE DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT**| ||**AUTHORITY, CIVIL STATION,**| ||**AYYAANTHOLE P.O.,**| ||**THRISSUR DISTRICT 680 003.**| |**3**|**THE DIRECTOR,**| ||**DIRECTORATE OF MINING AND GEOLOGY,**| ||**KESAVADASAPURAM,**| ||**PATTOM PALACE P.O.,**| ||**THIRUVANANTHAPURAM 695 004.**| |**4**|**THE GEOLOGIST,**| ||**MINING AND GEOLOGY DISTRICT OFFICE,**| ||**MINI CIVIL STATION,CHEMBUKKAVU P.O.,**| ||**THRISSUR 680 020.**| ||**BY ADVS.**| ||**SRI. M.H.HANILKUMAR, SPECIAL GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.09.2018, ALONG WITH WP(C).20308/2018, THE COURT ON 27.09.2018 DELIVERED THE FOLLOWING:** W.P.(C) Nos.20245 & 20308 of 2018 2 ## **JUDGMENT** The above writ petitions are materially connected in respect of the claim raised by he petitioners on the basis of the deemed environmental clearance secured in accordance with the Environmental Impact Assessment Notification, 2006. Therefore, I heard them together and propose to deliver a common judgment. In order to dispose of the writ petitions, facts and documents contained in W.P.(C) No.20245 of 2018 are relied upon. 2. Petitioner is a company, represented by its Managing Director, which possesses 15 acres of land in Survey Nos.1538/6, 7, 12, 13, and 14 of Thekkumkara Village in Thalappilly Taluk, Thrissur District. Petitioner company in order to obtain a quarrying lease for an area of 2.0172 hectares of land comprised in the aforesaid survey numbers, secured Ext.P1 letter of intent from the 3[rd] respondent, and thereafter, submitted Ext.P7 application for securing environmental clearance for the quarrying lease on 17.03.2017. The same was accepted by the 1[st] respondent on 16.04.2017. Petitioner also produced Ext.P4 approved mining plan before the 1[st] respondent for consideration of environmental clearance. As per condition No.8(i) and (ii) of Environmental Impact W.P.(C) Nos.20245 & 20308 of 2018 3 Assessment Notification, 2006, 1[st] respondent was to consider and pass orders on Ext.P7 application within 105 days from the date of receipt of the application, or else, the same will be deemed to have been granted with environmental clearance in accordance with condition No.8(iii) of Notification, 2006. 3. Petitioner's application was considered and recommended Environmental Clearance by the District Environmental Expert Appraisal Committee (DEEAC) on 21.11.2017, as per Ext.P9 and the District Environmental Impact Assessment Authority (DEIAA) by Ext.P10, recommended environmental clearance. But till date, the 1[st] respondent had not communicated environmental clearance to the petitioner, which puts an embargo on the petitioner in obtaining a quarrying lease for mining building stones in accordance with the provisions contained under the Kerala Minor Mineral Concession Rules, 2015. Therefore, petitioner seeks direction to the 1[st] respondent to issue environmental clearance for obtaining quarrying lease and mining building stones based on Ext.P1 letter of intent under the provisions of the Kerala Minor Mineral Concession Rules, 2015, in the light of Exts.P9 and P10 recommendations by the aforesaid statutory authorities, and also other consequential W.P.(C) Nos.20245 & 20308 of 2018 4 declarations. ## W.P.(C) No.20308 of 2018 4. This writ petition is also filed by a company registered under the Indian Companies Act, represented by its Managing Director, which is also in possession of 15 acres of land in Survey Nos.1115/1, 2, 4, 1116/Pt, 1117/2, 1117/4, and 1117/5 of Thekkumkara Village, Thalappilly Taluk, Thrissur District. Petitioner company obtained a quarrying lease for an area extending to 2.2634 hectares of land comprised in the aforesaid survey numbers, as per Ext.P1 letter of intent from the 3[rd] respondent. Thereafter, Ext.P7 application for securing environmental clearance was submitted on 07.07.2017, which was accepted by the 1[st] respondent on 17.07.2017. Ext.P4 approved mining plan was also submitted before the 1[st] respondent for consideration of environmental clearance. Petitioner's application was considered and recommended environmental clearance by the District Environmental Expert Appraisal Committee on 25.09.2017 by Ext.P9 and the District Environmental Impact Assessment Authority by Ext.P10 also recommended environmental clearance. But, till date, the 1[st] respondent has not communicated environmental clearance to the petitioner, thus entitled to deemed licence as per condition W.P.(C) Nos.20245 & 20308 of 2018 5 No.8(iii) of Notification, 2006. 5. A detailed counter affidavit is filed in W.P.(C) No.20245 of 2018 for and on behalf of 1[st] and 2[nd] respondents, which is sought to be adopted in the other writ petition also, refuting the allegations and claims and demands raised by the petitioner. The application submitted by the petitioners, clearances secured from the respective District Authorities, date of receipt of the applications etc. are all admitted. 6. It is also stated that, the Tahsildar, Thalappilly as per his report, informed the Sub Collector, Member Secretary, District Environmental Impact Assessment Authority that the land proposed by the project proponent was assigned for agricultural as well as residential purpose under Rule 13 of the Arable Forest Land Assignment Rules, 1970. The Tahsildar reported that the land proposed by the project proponent was included in land assignment Patta Nos.45/71, 29/71, 30/71, 43/71 and 35/71, evident from Exts.R1(a) and R1(b) in respect of Patta Nos.29/71 and 30/71. It is also pointed out that, the District Environmental Impact Assessment Authority considered the recommendation of the District Level Expert Appraisal Committee and the application for Environmental Clearance. The report of the Tahsildar was ## W.P.(C) Nos.20245 & 20308 of 2018 6 also placed before the District Environmental Impact Assessment Authority. When it was brought to the notice of the said authority, that the land was assigned for agricultural purpose under the provisions of Rules, 1970 specified above, the District Environmental Impact Assessment Authority decided to reject the application finding that the Environmental Clearance cannot be granted in assigned land, evident from Ext.R1(c). 7. It is further submitted that, the land assigned for agricultural purpose or house site cannot be used for quarrying purposes. Other contentions are also raised with respect to the restrictions created as per the Kerala Land Assignment Act, which prevents deviation from the purpose for which the assignment is made. It is also submitted that, the land occupied by the petitioner was admittedly assigned under Rules, 1970 and Rule 3 of the Rules, 1970 would show that the land can be assigned for purposes of personal cultivation or for house sites or for both. It is also pointed out that, Rule 16 of the Rules, 1970, enables the Government to cancel the registry for contravention of the Rules or for the conditions of Pattas, since the properties in question are assigned for the purpose of cultivation/house site, the assignee is legally bound to reside in the property W.P.(C) Nos.20245 & 20308 of 2018 7 and cultivate the same. Other contentions are also raised justifying the stand adopted by the respondents. It is further pointed out that a learned Single Judge and a Division Bench of this Court has prohibited quarrying activities in lands assigned for agricultural purposes, which are produced as Exts.R1(e) and R1(f). 8. A reply affidavit is filed by the petitioner therein, reiterating the stand adopted in the writ petition and producing certain additional documents to justify the entitlement of the petitioner to get the environmental clearance issued. Along with the reply affidavit, copies of Pattas issued are produced as Ext.P13 series to canvass the proposition that there is no prohibition created in the Pattas issued from conducting the quarrying operations. 9. I have heard Sri. Jobi Jose Kondody, learned counsel for the petitioners and Sri. M.H. Hanilkumar, learned Special Government Pleader appearing for the respondents. Perused the documents on record and the pleadings put forth by the respective parties. 10. So far as the issue raised by the petitioners in the writ petitions are concerned, it is with regard to the entitlement of the petitioners to secure the deemed licence in accordance with Notification, 2006 issued W.P.(C) Nos.20245 & 20308 of 2018 8 under the provisions of the Environment (Protection) Act and Rules, 1986. From the discussion made above, and taking into account the respective pleadings, it is evident that, the receipt of the applications from the petitioners on the dates specified above is not disputed. Paragraph 8 of the notification deals with grant or rejection of Prior Environmental Clearance, which stipulates that, “the regulatory authority shall consider the recommendations of the EAC or SEAC or DEAC concerned and convey its decision to the applicant within forty five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee concerned, or in other words, within one hundred and five days of the receipt of the final Environment Impact Assessment Report, and where Environment Impact Assessment is not required, within one hundred and five days of the receipt of the complete application with requisite documents, except the circumstances mentioned under sub-paragraph (ii) of Paragraph 8”. Sub-paragraph (iii) of Paragraph 8 stipulates that, “in the event that the decision of the regulatory authority is not communicated to the applicant within the period specified in sub-paragraphs (i) or (ii) W.P.(C) Nos.20245 & 20308 of 2018 9 above, as applicable, the applicant may proceed as if the environment clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee concerned”. Sub-paragraph (iv) states that, “on expiry of the period specified for decision by the regulatory authority under paragraph (i) and (ii) above, as applicable, the decision of the regulatory authority, and the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee concerned shall be public documents”. 11. Therefore, on an appreciation of the aforesaid provisions under the Notification, it is categoric and clear that, unless the 1[st] respondent communicates any adverse order within 105 days of receipt of the complete application with requisite documents, the applicant is entitled to get a deemed licence in accordance with subparagraph (iii) of paragraph 8 of Notification, 2006. There is no dispute for respondents 1 and 2 that the applications are not received and the regulatory authority has communicated to the applicant within the aforesaid statutory period, and in that event, the W.P.(C) Nos.20245 & 20308 of 2018 10 applicant is entitled as of right to proceed, as if the environmental clearance sought for has been granted. 12. So also, learned counsel for the petitioners has invited my attention to a Division Bench judgment of this Court in ' _**One Earth One Life** v_ _**. Ministry of Environment and Forests**_ ' [2018 (3) KLT 683], wherein, it is held that the quarrying activities in the lands assigned under 1993 Special Rules should either be prohibited altogether or should be permitted only under strict regulatory measures. Therefore, learned counsel for the petitioners submits that since the Pattas are not creating any prohibition from carrying on quarrying activities in the properties in question, petitioners are entitled to get the benefits of the proposition of law so laid down by this Court. 13. On an evaluation of the circumstances and the legal background discussed above, it is clear that, petitioners are entitled to get the deemed licence in accordance with paragraph 8(iii) of the Notification, 2006. Therefore, there will be a direction accordingly to the 1[st] respondent to issue necessary orders in accordance with the deemed environmental clearance, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment. However, I W.P.(C) Nos.20245 & 20308 of 2018 11 make it clear that, I have considered in these writ petitions only the legal issue with respect to the entitlement of the deemed licence for the petitioners, and the same will not stand in the way of other authorities scrutinizing the applications in accordance with the respective provisions of the various statutes. I also make it clear that, the findings and directions contained above will not stand in the way of the relevant authority taking appropriate action in accordance with law, if there are any violations or shortcomings on the part of the petitioners in the matter of production of necessary documents from the statutory authorities. The writ petitions are allowed to the above extent. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) Nos.20245 & 20308 of 2018 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE LETTER OF INTENT DATED**| |---|---| ||**10/2/2017 ISSUED BY THE THIRD RESPONDENT TO**| ||**THE PETITIONER.**| |**EXHIBIT P2**|**A TRUE COPY OF THE FORM LE-3 LICENSE DATED**| ||**15/12/2015 VALID UPTO 31/03/2020 ISSUED BY**| ||**THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,**| ||**ERNAKULAM.**| |**EXHIBIT P3**|**A TRUE COPY OF THE NO OBJECTION CERTIFICATE**| ||**DATED 12/6/2017 ISSUED BY THE SECRETARY,**| ||**THEKKUMKARA GRAMA PANCHAT TO THE FIRST**| ||**RESPONDENT.**| |**EXHIBIT P4**|**A TRUE COPY OF THE RELEVANT PAGES OF THE**| ||**MINING PLAN PREPARED BY THE ACCREDITED**| ||**CONSULTANT WHICH WAS APPROVED BY THE FOURTH**| ||**RESPONDENT DATED 17/2/2017.**| |**EXHIBIT P5**|**A TRUE COPY OF THE ACKNOWLEDGEMENT SLIP FOR**| ||**EC APPLICATION DATED 17/3/2017 OBTAINED FROM**| ||**THE WEBSITE OF THE FIRST RESPONDENT.**| |**EXHIBIT P6**|**A TRUE COPY OF THE ACCEPTANCE LETTER FOR**| ||**ENVIRONMENTAL CLEARANCE ISSUED BY THE FIRST**| ||**RESPONDENT TO THE PETITIONER DATED**| ||**16/4/2017.**| |**EXHIBIT P7**|**A TRUE COPY OF THE RELEVANT PAGES OF THE**| ||**APPLICATION FOR ENVIRONMENTAL CLEARANCE**| ||**DATED 16/3/2017 FILED BEFORE THE FIRST**| ||**RESPONDENT.**| |**EXHIBIT P8**|**A TRUE COPY OF THE PRESENTATION FOR**| ||**ENVIRONMENTAL CLEARANCE SUBMITTED BY THE**| ||**PETITIONER ON 20/5/2017 BEFORE THE FIRST**| ||**RESPONDENT.**| |**EXHIBIT P9**|**A TRUE COPY OF THE MINUTES OF THE 11TH**| ||**MEETING OF DISTRICT LEVEL EXPERT APPRAISAL**| ||**COMMITTEE HELD ON 21/11/2017 RECOMMENDING**| ||**ENVIRONMENTAL CLEARANCE FOR THE PETITIONER'S**| ||**UNIT.**| |**EXHIBIT P10**|**A TRUE COPY OF THE MINUTES OF THE MEETING OF**| ||**THE FIRST RESPONDENT HELD ON 24/1/2018.**| W.P.(C) Nos.20245 & 20308 of 2018 13 **EXHIBIT P11 TRUE COPIES OF THE NO OBJECTION CERTICATES ISSUED BY THE VILLAGE OFFICER, THEKKUMKARA DATED 14/6/2016 TO THE PETITIONER FOR PRODUCING IT BEFORE THE FOURTH RESPONDENT. EXHIBIT P12 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE GRANTED BY THE STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY, KERALA TO M/S THREE STAR GRANITES, THRISSUR HAVING A VALIDITY UPTO 28.11.2022. EXHIBIT P13 TRUE COPIES OF THE PATTAS DATED 25.05.1973 GRANTED TO THE PREDECESSORS OF M/S THREE STAR GRANITES WHEREIN EXHIBIT P14 GRANTED. EXHIBIT P13(A) A TRUE COPY OF PATTA DATED 14.03.1974 WHEREIN EXHIBIT P14 GRANTED. EXHIBIT P13(B) TRUE COPIES OF PATTAS DATED 14.03.1974 WHEREIN EXHIBIT P14 GRANTED. EXHIBIT P13(C) A TRUE COPY OF THE PATTA DATED 25.05.1973 WHEREIN EXHIBIT P14 GRANTED. EXHIBIT P13(D) A TRUE COPY OF THE PATTA DATED 02.05.1974 WHEREIN EXHIBIT P14 GRANTED. EXHIBIT P13(E) A TRUE COPY OF THE PATTA DATED 14.06.1974 WHEREIN EXHIBIT P14 GRANTED. EXHIBIT P13(F) A TRUE COPY OF THE PATTA DATED 27.05.1974 WHEREIN EXHIBIT P14 GRANTED. RESPONDENT'S/S EXHIBITS: EXHIBIT R1(A) TRUE COPY OF THE PATTA NO.29/71 DATED 22.03.1971. EXHIBIT R1(B) TRUE COPY OF THE FORM OF PATTA NO.30/71 DATED 22.04.1971. EXHIBIT R1(C) TRUE COPY OF THE MINUTES OF THE DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY DATED 07.07.2018. EXHIBIT R1(D) TRUE COPY OF THE FORM OF ORDER OF ASSIGNMENT ON REGISTRY IN FORM NO.5. EXHIBIT R1(E) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN HARIDAS R VS. STATE OF KERALA (2016(5)KHC 615).** W.P.(C) Nos.20245 & 20308 of 2018 14 **EXHIBIT R1(F) TRUE COPY OF THE INTERIM ORDER DATED 26.07.2018 IN WP(C)NO.34210/2016.** //TRUE COPY// P.S. TO JUDGE St/-