M.M. Joseph Menacheril House v. State Level Environment Impact Assessment Authority (SEIAA Kerala) and District Level Environment Impact Assessment Authority (DEIAA), Ernakulam

W.P.(C)No.12031 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 14TH DAY OF FEBRUARY,2022/ 25TH MAGHA, 1943** **WP(C) NO. 12031 OF 2021** ## **PETITIONER:** M.M.JOSEPH MENACHERIL HOUSE, BOOTHATHANKETTU P.O., PINDIMANA, KOTHAMANGALAM, ERNAKULAM BY ADVS. SRI PHILIP J.VETTICKATTU SMT.SAJITHA GEORGE ## **RESPONDENTS:** 1 STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA KERALA) 4TH FLOOR, KSRTC BUS TERMINAL COMPLEX, TRIVANDRUM-695 001, REPRESENTED BY ITS MEMBER SECRETARY. 2 DISTRICT LEVEL ENVIRONMENT IMPACT ACCESSMENT AUTHORITY (DEIAA) ERNAKULAM, REPRESENTED BY ITS CHAIRMAN, DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD-682 030. BY ADV SHRI.M.P.SREEKRISHNAN, SC, STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA) AND THE STATE EXPERT APPRAISAL COMMITTEE (SEAC) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2021, THE COURT ON 14.02.2022 DELIVERED THE FOLLOWING: W.P.(C)No.12031 OF 2021 2 ## **T.R.RAVI,J.** **-----------------------------** ## **W.P.(C)No.12031 OF 2021** **-------------------------------** ## **Dated this the 14th day of February, 2022** ## **JUDGMENT** The petitioner approached the Senior Geologist for issuance of a letter of intent for conducting quarrying operations in 0.5886 hectors of land comprised in Sy.Nos.462/1-18-1, 462/1-5B-12 and 462/1-6B-13 of Pindimana Village in Kothamangalam Taluk in Ernakulam district, belonging to him. On 23.11.2017, the Senior Geologist granted a letter of intent to the petitioner, subject to the condition that the petitioner obtains all the required licenses and permits as per the Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as 2015 Rules). On 22.2.2018, the petitioner submitted Ext.P2 application before the 2[nd] respondent, for environmental clearance (hereinafter referred to as EC). The 2[nd] respondent took up the application for appraisal in its meeting held on 6.4.2018 and thereafter on 3.5.2018. The minutes of the said meetings have been produced as Exts.P3 and P4. After considering the proposal and the report of the Committee and after scrutiny, the W.P.(C)No.12031 OF 2021 3 2[nd] respondent as per Ext.P4 decided to recommend the grant of EC to the petitioner. The grievance of the petitioner is that even though such a recommendation was made, orders granting EC were not issued within the time stipulated in paragraph 8 of the Environment Impact Assessment Notification issued in 2006 (hereinafter referred to as EIA 2006. As per paragraph 8(iii) of the EIA 2006, if the decision of the Regulatory Authority is not communicated to the applicant within the time stipulated in the said provision, the applicant may proceed as if the EC sought for has either been granted or denied by the Regulatory Authority in terms of the final recommendations of the Expert Appraisal Committee. In the case on hand, since the Expert Appraisal Committee has recommended the grant, it is the case of the petitioner that he is entitled to proceed as if the EC has been granted in his favour. It is his further case that, though the right had crystalised on the basis of the deemed grant, the 2[nd] respondent was duty bound to issue a certificate of EC to the petitioner, since such a certificate is required for submission before the other statutory authorities for getting the consent to operate, licence from the Panchayat, execution of quarrying lease, etc. On enquiry about the reason for not issuing W.P.(C)No.12031 OF 2021 4 the certificate, the petitioner came to understand that orders are not being issued owing to Ext.P5 order dated 13.9.2018 issued by the National Green Tribunal (NGT for short). In Ext.P5, the NGT had observed that applications for EC for areas of zero to five hectares are to be evaluated by the State Level Expert Appraisal Committee (SEAC for short) and not the District Level Expert Appraisal Committee (DEAC for short). The petitioner submits that order of the NGT was issued only on 13.9.2018 and as far as the petitioner is concerned, the petitioner already is entitled to EC by operation of the deeming provision as early as on 22.6.2018 by the passage of time stipulated in the EIA 2006. Ext.P5 order was reiterated by the NGT in Ext.P6 order dated 11.12.2018. It is the case of the petitioner that the 2[nd] respondent lost its jurisdiction and authority only with effect from 13.9.2018, the date on which Ext.P5 was issued by the NGT. As such, all cases where rights have crystallized prior to 13.9.2018, will have to be considered under the de facto doctrine and the proceedings and consequences cannot be taken away. The petitioner submitted representations before the 2[nd] respondent. Ext.P7 is such a representation dated 20.1.2019 which was followed by Ext.P8 representation dated 20.3.2019. When no W.P.(C)No.12031 OF 2021 5 action was being taken, the petitioner submitted a representation before the 1[st] respondent on 5.5.2020, which is produced as Ext.P9. When the 1[st] respondent also did not take any action on Ext.P9, the petitioner approached this Court by filing W.P.(C)No.12073 of 2020. By Ext.P10 judgment dated 19.6.2020, this Court disposed of the writ petition directing the 1[st] respondent to take up the representation submitted by the petitioner on 5.5.2020 and pass orders on the same, taking note of the contentions of the petitioner based on the judgments of this Court in W.A.No.2274 of 2018 and W.P.(C)No.20245 of 2018, relating to the effect of the deeming provision. The petitioner was directed to produce the judgment Ext.P10 along with the judgments referred to therein for consideration of the 1[st] respondent. 2. According to the petitioner, the matter was remanded with specific directions and the 1[st] respondent was to consider the impact of the deeming provision, and, not consider the applications submitted by the petitioner before the 2[nd] respondent afresh. The petitioner submitted Ext.P12 representation on 20.7.2020 before the 1[st] respondent. By Ext.P11 order, this Court enlarged the time granted to the 1[st] respondent for passing orders. When the W.P.(C)No.12031 OF 2021 6 petitioner came to know that the 1[st] respondent was proceeding as if it was considering a fresh application before it, the petitioner moved contempt application before this Court. Thereafter, the 1[st] respondent issued Ext.P13 order rejecting the request of the petitioner by stating that the 1[st] respondent will be considering the application afresh in accordance with the procedure prescribed in the EIA 2006. The petitioner has produced the judgments referred to in Ext.P10 judgment as Exts.P14 and P15 along with the writ petition. The petitioner has challenged Ext.P13, since it does not consider the issue relating to deemed EC, which has specifically been directed by this Court to be considered in Ext.P10 judgment. 3. The 1[st] respondent has filed a statement justifying their stand stating that as per Clause 8 of the EIA 2006, for constituting a deemed grant, what is required is a decision by concerned Expert Appraisal Committee and going by the judgment of the NGT, the concerned authority can only be seen as the 1[st] respondent and not the 2[nd] respondent. It is submitted that since the 2[nd] respondent does not have the necessary expertise, the NGT found them to be incompetent to go into such aspects relating to environmental impact study. It is further contended that this Court in Ext.P10 W.P.(C)No.12031 OF 2021 7 judgment has directed the 1[st] respondent to pass orders on the representations submitted by the petitioner in accordance with law and hence it cannot be treated as a case where this Court had directed consideration of the representation only from the point of view of the deemed grant. It is the case of the 1[st] respondent that this Court has not prohibited a consideration of the entire aspect. 4. Heard Sri Philip J. Vettickattu on behalf of the petitioner and Sri M.P.Sreekrishnan, Standing Counsel for the respondents. 5. The following facts are not in dispute; (a) Petitioner's application was considered by the DEAC on 6.4.2018 and 3.5.2018. (b) DEAC decided to recommend the case of the petitioner for grant of EC as per Ext.P4 dated 3.5.2018. (c) No decision of regulatory authority was communicated to the petitioner till 13.9.2018 on which day the NGT passed Ext.P5 order, that is, for 132 days. 6. Relying on the judgment in **Gokaraju Rangaraju v. State of Andhra Pradesh** reported in **[AIR 1981 SC 1473]** , the counsel for the petitioner contends that the DEAC was an authority who was appointed in terms of the EIA 2006 and is not a mere W.P.(C)No.12031 OF 2021 8 usurper or intruder of office. It is submitted that even if at a later point of time the appointment of the authority is found to be defective, the acts done by the authority till the time the appointment was invalidated, is protected by the de facto doctrine. [See also **Manager, St.Mary's H.S. v. Beji Abraham (2002 (1) KLT 406)** ]. The counsel also relied on the decision in **Sudhakaran v. Pallichal Grama Panchayat** reported in **[2016 (2) KLT 175]** , wherein a Division Bench of this Court considered the question of deemed licence under the Panchayat Raj Act, 1994 and held that the deemed licence will come into existence if orders on an application are not communicated within the prescribed time. It is pointed out that the aforesaid judgment was affirmed by a Full Bench of this Court in the decision in **Abdul Kharim v. Pazhayakunnummel Grama Panchayat** reported in **[2018 (4) KLT 1986 (FB)]** . 7. By Ext.P10 judgment, this Court directed the 1[st] respondent to consider Ext.P9 representation dated 5.5.2020 and pass orders taking into account Exts.P14 and Ext.P15 judgments of this Court, wherein it has been categorically held that the applicants will be entitled to the benefit of the deeming provision if the authorities do not pass orders within the time frame stipulated in EIA W.P.(C)No.12031 OF 2021 9 2006. For consideration of the above aspect, the petitioner was directed to produce copies of the Exts.P14 and P15 before the 1[st] respondent. A reading of the judgment will clearly show that the matter was directed to be considered in the light of the contention taken by the petitioner that he was entitled to deemed licence. The Court did not even consider the issue whether the 1[st] respondent can conduct a fresh appraisal through the SEAC. As such Ext.P10 cannot be understood to be a decision permitting the 1[st] respondent to consider the application submitted by the petitioner before the DEAC as a fresh application submitted before the SEAC and to call for a recommendation from the SEAC and thereafter consider Ext.P12 representation. 8. Considering Ext.P13 issued by the 1[st] respondent, in view of the observation made above, it can be seen that the 1[st] respondent has refused consideration of issuance of a certificate of Deemed EC for four reasons. The first reason stated is that DEAC did not have the expertise or scientific knowledge to assess the Environmental implications. The above reason is based on Ext.P5 and P6 orders of the NGT. The second reason is that SEAC has insisted that they will appraise the proposal and the 1[st] respondent W.P.(C)No.12031 OF 2021 10 has to honour the view of SEAC in such matters. The third reason is that the proposal was appraised by DEAC almost three years back and a fresh assessment by SEAC is required for reason of several changes. The fourth reason is that EIA 2006 does not enable 1[st] respondent to issue a certificate of Deemed EC as requested by the proponent. 9. What is conspicuously absent in Ext.P13 is a consideration of the issue regarding the effect of deeming provision contained in paragraph 8 of EIA 2006, which is the specific contention raised in Ext.P9 that was directed to be considered in accordance with law in Ext.P10 judgment. Ext.P14 and Ext.P15 judgments have not even been referred to. While the 1[st] respondent has been very particular about honouring the view of SEAC, the same honour has not unfortunately been afforded to the judgments of this Court. Ext.P13 cannot hence be sustained. The question that remains is whether the issue regarding the effect of the deeming provision should be decided by this Court or whether it should be remanded again for consideration. On the facts of the case, I do not think it would be just and proper to remand the case over again for another consideration by the 1[st] respondent. W.P.(C)No.12031 OF 2021 11 10. As already noticed, admittedly the petitioner's application was considered by the DEAC on 6.4.2018 and 3.5.2018 and a decision was taken by the DEAC to recommend the case of the petitioner for grant of EC as per Ext.P4 dated 3.5.2018. It is also admitted that no decision was communicated to the petitioner for 132 days, that is, till 13.9.2018 on which day the NGT passed Ext.P5 order. Paragraph 8 (i) (ii) and (iii) of EIA 2006 reads thus: ## **"8. Grant or Rejection of Prior Environmental Clearance (EC)** : (i) 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 as provided below. (ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee concerned. In cases where it disagrees with the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee concerned, the regulatory authority shall request reconsideration by the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal W.P.(C)No.12031 OF 2021 12 Committee concerned 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 while stating the reasons for the disagreement. An intimation of this decision shall be simultaneously conveyed to the applicant. The Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee concerned, in turn, shall consider the observations of the regulatory authority and furnish its views on the same within a further period of sixty days. The decision of the regulatory authority after considering the views of the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee concerned shall be final and conveyed to the applicant by the regulatory authority concerned within the next thirty days. (iii) In the event that the decision of the regulatory authority is not communicated to the applicant within the period specified in subparagraphs (i) or (ii) 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.” 11. In view of Exts.P14 and P15 decisions, there can be no escape from the conclusion that that the deeming provision has come into effect in the case of the petitioner and that the petitioner is entitled to a deemed EC. It has also to be noted that going by the defacto doctrine, the decision to recommend the case of the petitioner for grant of EC cannot be faulted, since it was taken at a W.P.(C)No.12031 OF 2021 13 point of time when the DEAC was fully authorised to do so. Even Ext.P5 order of the NGT does not dissolve DEAC but only directs that the EIA 2006 should be brought in consonance and in accordance with the directions issued by the Hon'ble Supreme Court in **Deepak Kumar v. State of Haryana & Ors.** reported in **[(2012) 4 SCC 629]** . The actions taken by the DEAC cannot hence be understood to have been nullified in any manner known to law. Merely for the reason that at a later point of time the constitution of the DEAC was found to be defective, it cannot be said that all that had been done by the DEAC till then have to be undone. [See **Gokaraju Rangaraju (supra)** and **St.Mary's (supra)** ]. 12. In the result, the writ petition is allowed. Ext.P13 order is quashed. The 1[st] respondent is directed to issue a certificate of Deemed EC to the petitioner, with respect to the quarry project for which Ext.P1 letter of intent was granted by the Senior Geologist, Department of Mining and Geology, District Office, Ernakulam, within two weeks from the date of receipt of a certified copy of this judgment. Sd/- **==> picture [320 x 32] intentionally omitted <==** **T.R.RAVI JUDGE** dsn W.P.(C)No.12031 OF 2021 14 ## **APPENDIX OF WP(C) 12031/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF LETTER OF INTENT ISSUED BY THE SENIOR GEOLOGIST DATED 23.11.2017 - Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF FORM IM APPLICATION SUBMITTED BY THE PETITIONER SANS THE DOCUMENTS DATED 22.2.2018 - Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF THE 20TH MEETING OF THE DEAC HELD ON 6.4.2018 - Exhibit P4 TRUE COPY OF THE DECISION OF THE DEAC TAKEN ON 3.5.2018 RECOMMENDING TO GRANT CLEARANCE - Exhibit P5 TRUE COPY OF THE ORDER DATED 13.9.2018 PASSED BY THE NATIONAL GREEN TRIBUNAL - Exhibit P6 TRUE COPY OF THE ORDER DATED 11.12.2018 PASSED BY THE NATIONAL GREEN TRIBUNAL - Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 20.1.2019 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR - Exhibit P8 TRUE COPY OF THE RECEIPT SHOWING ACCEPTANCE OF REPRESENTATION SUBMITTED BY THE PETITIONER DATED 20.3.2019 - Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 5.5.2020 SUBMITTED BY THE PETITIONER BEFORE THE SEIAA - Exhibit P10 TRUE COPY OF JUDGMENT DATED 19.6.2020 IN WPC NO 12073/2020 OF THIS HONBLE COURT - Exhibit P11 TRUE COPY OF ENLARGEMENT PETITION DATED 1.12.2020 FILED BY THE RESPONDENT IN WPC NO 12073/2020 - Exhibit P12 TRUE COPY OF THE REPRESENTATION DATED 20 7.2020 SUBMITTED BY THE PETITIONER BEFORE THE SEIAA - Exhibit P13 TRUE COPY OF THE ORDER DATED 29.4.2021 PASSED BY THE 1ST RESPONDENT - Exhibit P14 TRUE COPY OF JUDGMENT DATED 23.11.2018 IN WA NO 2274/2018 OF THIS HONBLE COURT - Exhibit P15 TRUE COPY OF JUDGMENT DATED 27.9.2018 IN WPC NO 20245/2018 OF THIS HONBLE COURT