M/S. Kinalur Rock Sand, Mankayam v. Ministry of Environment, Forest & Climate Change and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944** **WP(C) NO. 29274 OF 2021** ## **PETITIONER/S:** **M/S. KINALUR ROCK SAND MANKAYAM, M M PARAMBA P. O., KINALUR, KOZHIKODE DISTRICT - 673574, REPRESENTED BY ITS MANAGING PARTNER, SHRI VISHNU SUKUMARAN.** **BY ADVS. PHILIP J.VETTICKATTU SAJITHA GEORGE** ## **RESPONDENT/S:** - **1 THE MINISTRY OF ENVIRONMENT FOREST & CLIMATE CHANGE INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI - 110 003, REPRESENTED BY ITS SECRETARY.** - **2 STANDING COMMITTEE FOR NATIONAL BOARD FOR WILD LIFE MINISTRY OF ENVIRONMENT FOREST & CLIMATE CHANGE, INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI - 110 003, REPRESENTED BY ITS MEMBER SECRETARY.** - **3 STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA KERALA), 4TH FLOOR, KSRTC BUS TERMINAL COMPLEX, TRIVANDRUM - 695 001, REPRESENTED BY ITS MEMBER SECRETARY.** - **4 THE DIRECTOR OF MINING AND GEOLOGY DEPARTMENT GOVERNMENT OF KERALA, KESAVADASAPURAM, PATTOM P. O., THIRUVANANTHAPURAM, PIN - 695 001.** - **5 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY INDUSTRIES (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **WP(C) NO. 29274 OF 2021 ..2..** **6 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **7 THE CHIEF WILD LIFE WARDEN FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014.** **R BY SPL.GP SRI.NAGARAJ NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 29274 OF 2021 ..3..** ## **JUDGMENT** The petitioner is a grantee of letter of intent by the Senior Geologist with respect to an extent of 4.0558 hectares of land comprised in Re-Sy.No.109 of Kinalur Village, Thamarassery Taluk, Kozhikode District for conducting quarrying operation on the strength of quarrying permit. The State Level Environment Impact Assessment Authority (SEIAA)/ 3[rd] respondent while issuing Ext.P10 Environmental Clearance has imposed a condition to the effect that the petitioner should obtain a clearance from the Standing Committee for National Board for Wild Life (SCNBWL), in terms of Ext.P3 Office Memorandum dated 08.08.2019 before commencing quarrying operation. The condition No.3 in Ext.P10 reads as under: “3. As the quarry site is located within 10 km radius of the Malabar Wildlife Sanctuary, as per OM dated 8.8.2019 of MoEF&CC clearance from Standing ## **WP(C) NO. 29274 OF 2021 ..4..** Committee of the National Board for Wildlife is mandatory for starting a quarry. Hence Project Proponent is directed to obtain a clearance from Standing Committee of the National Board for Wildlife before starting any activity at site.” 2. The petitioner is challenging condition No.3 in Ext.P10 to the extent it imposes the condition that the petitioner should obtain clearance from SCNBWL in terms of Ext.P3 O.M. The learned Counsel for the petitioner submits that in similar circumstances, this Court had, on the basis of the direction of the Hon'ble Supreme Court in **T.N.Godavarman Thirumulpad** v. **Union of India** [2022 (3) KLT 739 (SC) : 2022 (3) Online 1032 (SC)] quashed similar general condition in the Environmental Clearance. 3. This Court, on 21.06.2022 directed the 7[th] respondent to conduct an inspection and submit a report with regard to the distance from the site of the petitioner to the Malabar Wildlife Sanctuary. **WP(C) NO. 29274 OF 2021 ..5..** 4. The learned Government Pleader, on instructions, submits that the distance from the site of the petitioner to the Sanctuary is more than three kms. 5. This Court in paragraphs 16 to 20 of the judgment in W.P.(C) Nos.12829 of 2022 and 14883 of 2022 has held thus: “16. After perusing the writ petitions and hearing the counsel appearing on either side, I find that the Hon'be Apex Court in **T.N. Godavarman Thirumulpad v. Union of India** [2022 (3) KLT 739 (SC)] has considered the issue. Hon'be Apex Court in **T.N. Godavarman Thirumulpad** (supra) gave the following directions: ## “44. We accordingly direct: (a) Each protected forest, that is national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9th February 2011 shall be strictly adhered to. For Jamua Ramgarh wildlife sanctuary, it shall be 500 metres so far as subsisting activities are concerned. (b) In the event, however, the ESZ is already prescribed as per law that goes beyond one kilometre buffer zone, the wider margin as ESZ shall prevail. If such wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular national park or wildlife sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained. **WP(C) NO. 29274 OF 2021 ..6..** (c) The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain responsible for proper compliance of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZs forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones. ## (d) Mining within the national parks and wildlife sanctuaries shall not be permitted. (e) In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9th February 2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ. (f) The minimum width of the ESZ may be diluted in ## **WP(C) NO. 29274 OF 2021 ..7..** overwhelming public interest but for that purpose the State or Union Territory concerned shall approach the CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, this Court shall pass appropriate order. (g) In the event the CEC, MoEF&CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues consider it necessary for maintaining a wider or larger ESZ in respect of any national park or wildlife sanctuary, such body or individual shall approach the CEC. In such a situation the CEC shall be at liberty to examine the need of a wider ESZ in respect of any national park or wildlife sanctuary in consultation with all the stakeholders including the State or Union Territory concerned, MoEF&CC as also the Standing Committee of National Board of Wildlife and then approach this Court with its recommendations. (h) In respect of sanctuaries or national parks for which the proposal of a State or Union Territory has not been given, the 10 kilometres buffer zone as ESZ, as indicated in the order passed by this Court on 4th December 2006 in the case of Goa Foundation (supra) and also contained in the Guidelines of 9th February 2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at. (i) I.A. No. 1412 of 2005 and I.A.No.117831 of 2019 do not relate to the issues involved in I.A. No.1000 of 2003. These applications may be placed before the appropriate Bench to be heard independently. (j) For the same reason, I.A. No.1992 of 2007 shall also be dealt with independently by the appropriate Bench and no order is being passed concerning this ## **WP(C) NO. 29274 OF 2021 ..8..** application at this stage. (k) The application of the State of Rajasthan registered as I.A. No.3880 of 2015 relates to clarification of an order passed in the case of Goa Foundation (W.P.(C) No.460 of 2004). Let this application be placed before the Bench taking up the case of Goa Foundation. (l) I.A.No.96949 of 2019 and I.A.No.65571 of 2021 are disposed of with directions that the MoEF&CC as also CEC shall proceed to take a decision in regard to the draft proposal for ESZ made by the State of Maharashtra to the extent of 03.89 kilometres and the MoEF&CC shall take final decision on that basis within a period of three months, if said decision has not already been taken. (m) Prayers for impleadment of the applicants in I.A. Nos. 984 of 2003, 1026 of 2004, 1123 of 2004, 1197 of 2004 and 1251 of 2004 are allowed. Necessary amendments may be carried out in these regards. (n) For the reasons already given, however, prayers of the applicants in I.A. Nos.982 of 2003, 1027 of 2004, 1124 of 2004, 1198 of 2004, 1210 of 2004, 1250 of 2004 and 1512 of 2006 are rejected. (o) The CEC shall quantify the compensation to be recovered from each miner indulging in mining activities within the Jamua Ramgarh sanctuary in violation of any statutory provision or order of this Court. Specific recommendations for compensatory afforestation, reclamation, clearing overburden dumping as also compensation in monetary units for degradation of forest resources shall also be made. A further set of recommendations concerning confiscation of earth moving equipments and other machineries lying within or in the periphery of the said sanctuary shall be made by the CEC. Recommendations shall be made within a ## **WP(C) NO. 29274 OF 2021 ..9..** period of four months before this Court in the form of an application. This Court shall consider passing appropriate order upon going through such application. The exercise concerning such reparation, including quantifying compensation shall be undertaken upon giving the mining operator, State and MoEF&CC opportunity of hearing. (p) In the event there is any subsisting order of any High Court or any Court subordinate to such High Court covering any of the issues dealt with by this Court in this order, this order shall prevail over any such order which may be contrary to these directions. (q) We have already observed that there are certain overlapping issues involved in this Writ Petition and the cases of Goa Foundation (Writ Petition (C) No.460 of 2004) and (Writ Petition (C) No.435 of 2012). We request the Hon’ble the Chief Justice of India to consider having the present Writ Petition i.e. In Re: T.N. Godavarman Thirumulpad v. Union of India & Ors., W.P.(C) No.460 of 2004 (Goa Foundation v. Union of India) as also W.P. (C) No.435 of 2012 (Goa Foundation v. Union of India & Ors.) be heard together before the same Bench. The registry may place this order before the Hon’ble the Chief Justice of India. 17. The directions given by the Hon'ble Apex Court would show that if wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular National Park or Wildlife Sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained. 18. The directions at paragraph 44(h) would show that in respect of Sanctuaries or National Parks for which the proposal of a State or Union Territory has not been given, the 10 Kilometres buffer zone as ESZ, as indicated in the order passed by the Apex Court on 4th December, 2006 in the case of Goa ## **WP(C) NO. 29274 OF 2021 ..10..** Foundation v. Union of India [(2006 (4) KLT Online 1110 (SC)] and also contained in the Guidelines of 9th February, 2011 shall be implemented. 19. The directions of the Apex Court contained in paragraph 44(p) would show that in the event there is any subsisting order of any High Court or any Court Subordinate to such High Court covering any of the issues dealt with by the Apex Court in the order, then the order of the Apex court shall prevail over any such order which are contrary to the directions. 20. In view of the directions given by the Hon'be Apex Court and following the judgment of this Court in W.P.(C) No.19710/2022, W.P.(C) No.12829/2022 is allowed to the extent of quashing general condition No.(i) of Ext.P20 Environmental Clearance.....” In the light of the judgment in W.P.(C) Nos.12829 of 2022 and 14883 of 2022, this writ petition is allowed to the extent of quashing condition No.3 in Ext.P10 Environment Clearance certificate. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB/30/09/2022 ## **WP(C) NO. 29274 OF 2021 ..11..** ## **APPENDIX OF WP(C) 29274/2021** ## **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF LETTER OF INTENT ISSUED BY THE DIRECTOR MINING & GEOLOGY DEPARTMENT DATED 09.05.2018.** **Exhibit P2 TRUE COPY OF RELEVANT PAGES OF ENVIRONMENTAL CLEARANCE DATED 23.09.2021.** - **Exhibit P3 TRUE COPY OF OFFICE MEMORANDUM DATED 08.08.2019 ISSUED BY THE 1ST RESPONDENT.** - **Exhibit P4 TRUE COPY OF DRAFT NOTIFICATION OF MALABAR WILD LIFE SANCTUARY DATED 05.08.2020.** - **Exhibit P5 TRUE COPY OF PRINT OUT OF WILD LIFE CONSERVATION STRATEGY, 2002, TAKEN FROM THE WEBSITE.** - **Exhibit P6 TRUE COPY OF RELEVANT PAGES OF DECISION TAKEN BY THE GOVERNMENT OF KERALA DATED 29.11.2019.** - **Exhibit P7 TRUE COPY OF REFERENCE ORDER OF THIS HON'BLE COURT IN WP(C) NO.20034/2021, DATED 08.04.2021.** - **Exhibit P8 TRUE COPY OF INTERIM ORDER DATED 10.11.2021 OF THIS HON'BLE COURT IN WP(C) NO.24095/2021.** - **Exhibit P9 TRUE COPY OF INTERIM ORDER DATED 30.11.2021 OF THIS HON'BLE COURT IN WP(C) NO.25750/2021.** - **Exhibit P10 TRUE COPY OF ENVIRONMENTAL CLEARANCE DATED 23.09.2021 ISSUED TO THE PETITIONER BY THE COMPETENT AUTHORITY**