M/S. Sakthi Metals, Varandarappilly Village, Chalakudy Taluk, Thrissur District, Kerala v. District Environment Impact Assessment Authority (DIEAA) and The Geologist, District Office of the Department of Mining and Geology, Thrissur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY ,THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940 WP(C).No. 8301 of 2018** ## **PETITIONER/S:** **M/S. SAKTHI METALS, VARANDARAPPILLY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT,KERALA, REPRESENTED BY ITS MANAGING PARTNER ABY.A.D. BY ADV. SRI.JOBI JOSE KONDODY** ## **RESPONDENT/S:** **1 DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (DIEAA), REPRESENTED BY ITS MEMBER SECRETARY/ CHAIRMAN,COLLECTORATE, THRISSUR-680 001. 2 THE GEOLOGIST, DISTRICT OFFICE OF THE DEPARTMENT OF MINING AND GEOLOGY, MINI CIVIL STATION, CHEMBUKKAVU,THRISSUR-20. BY SRI. K.J. MANURAJ, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.11.2018, ALONG WITH W.P.(C) NO.21034/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.8301 & 21034 of 2018 2 ## **JUDGMENT** Petitioner in the writ petitions is one and the same and the subject issue relates to non-issuance of environmental clearance by the 1[st] respondent, and therefore, I heard them together and propose to deliver this common judgment. 2. Petitioner is a partnership firm, which has obtained quarrying lease and has been carrying on quarrying activities right from the year 2008, in an extent of 2.3560 hectares of land. Petitioner submitted online application seeking to obtain environmental clearance for a building stone quarry project under B2 category in the aforesaid land, on 04.02.2017. The Mining and Geology Department has issued the 'Letter of Intent' dated 27.10.2015, evident from Ext.P3. True copy of the certificate issued by the Village Officer under Rule 27(f) of the Kerala Minor Mineral Concession Rules, 2015 is produced as Ext.P4, certifying that the land applied for quarrying lease is not assigned for any special purpose and has not been included in the Reserved Forest. The approved mining plan dated 11.03.2016 is produced as Ext.P5. W.P.(C) Nos.8301 & 21034 of 2018 3 3. According to the petitioner, petitioner has submitted the application with all requisite documents as prescribed under the statute. Subsequent to the submission of Ext.P1, the application of the petitioner was taken up for consideration in the meeting of the District Level Expert Appraisal Committee (DEAC) held on 20.03.2017 and the expert committee of DEAC has carried out inspection on 27.04.2017. The Ministry of Environment and Forest has issued notification bearing No.SO 1533 dated 14.09.2006, prescribing the time limit within which the 1[st] respondent shall pass final orders on the application for environmental clearance submitted by an applicant. Accordingly, the 1[st] respondent is required to convey its decision within 105 days from the date of receipt of complete application with requisite documents. 4. Clause 8(iii) of the Notification, 2006 states 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) above, as applicable, the applicant may proceed as if the environmental 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 concerned”. W.P.(C) Nos.8301 & 21034 of 2018 4 According to the petitioner, though more than a year has elapsed, 1[st] respondent has not issued the environmental clearance pursuant to Ext.P1, till date. 5. It is also the case of the petitioner that, in Palakkad District, more than 40 applications for EC have been disposed of in 2017 and in Malappuram District also, several applications have been disposed of, by granting EC, evident from Exts.P6 and P7 online details, whereas the list of proposals of category “B2” projects for which EC has been granted in Thrissur District as obtained online, would show that only two proposals have been granted as on 09.03.2018, evident from Ext.P8. Therefore, according to the petitioner, in view of inaction on the part of the 1[st] respondent, petitioner is entitled to get deemed environmental clearance provided under Clause 8(iii) of the Notification, 2006. 6. While this writ petition was pending consideration, as per order dated 20.04.2018, a direction was issued to the 1[st] respondent to consider Ext.P2 in accordance with Ext.P9 appraisal report of the District Environmental Committee and in accordance with law, within a month. However, the 1[st] respondent has declined environmental clearance as per an order dated 08.06.2018, on the ground that the site for mining was originally ## W.P.(C) Nos.8301 & 21034 of 2018 5 Village Reserve which was later assigned to beneficiaries subject to conditions and as mining on such land would be violative of assignment conditions which would render the assignment liable to be cancelled. Therefore, W.P.(C) No.21034 of 2018 is filed to quash the said order marked as Ext.P8 in the said writ petition, and for other consequential reliefs. Basic contention advanced in the said writ petition is that, since all the statutory authorities have issued necessary clearances so as to carry out quarrying operations, the reasons assigned in Ext.P8 that the property was assigned to beneficiaries subject to conditions and mining as such would be violative of the assignment conditions liable to be cancelled, cannot be sustained under law. 7. A detailed counter affidavit is filed by the 1[st] respondent in W.P.(C) No.21034 of 2018, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the petitioner firm has filed an application for environmental clearance for conducting mining activities in the land specified above and situated in Survey Nos.1150/2P, 1150/3P, 1150/5P, 1149/4P, 1149/1P, 1151/1P, 1151/2P and 1151/3P of Varandarappilly Village, Chalakkudy Taluk, Thrissur District. The application was W.P.(C) Nos.8301 & 21034 of 2018 6 considered by the DEAC on 24.07.2017 and the said authority decided to inspect the site on 15.09.2017. After the site inspection, again the DEAC considered the proposal on 25.09.2017 and decided to recommend the issuance of Environmental Clearance to the applicant subject to various conditions. The application along with recommendation of the DEAC was considered by the District Environmental Impact Assessment Authority (DEIAA) meeting held on 23.10.2017 and the DEIAA decided to allow the application subject to verification of land records pertaining to the mining area. Such a decision was taken, as sufficient material was not available in the records to ascertain the nature and conditions of assignment and stipulations in the assignment order and _Patta_ . 8. The Tahsildar, Chalakkudy by Ext.R1(a) report dated 02.02.2018 reported that the land proposed by the project proponent was assigned for agricultural operations as well as residential purpose under the provisions of the Kerala Land Assignment Rules, 1964. The Tahsildar also reported that the land proposed by the project proponent was included in land assignment _Patta_ Nos.194/70, 196/69, 331/74 and 42/67. It is pointed out that, when the DEIAA considered the recommendation of W.P.(C) Nos.8301 & 21034 of 2018 7 DEAC and the application for Environmental Clearance on 23.10.2017, the report of the Tahsildar dated 02.02.2018 was not available before the District Environmental Impact Assessment Authority. Therefore, the DEIAA provisionally decided to grant Environmental Clearance subject to verification of land assignment _Pattas_ . When it was brought to the notice of the authority that the land was assigned for agricultural purpose under the Kerala Land Assignment Rules, 1964, the DEIAA has decided to reject the application finding that the Environmental Clearance cannot be granted in assigned land without prior permission of the Government. It was accordingly that Ext.R1(b) decision was taken in the meeting held on 05.05.2018. 9. That apart, it is submitted that, the land assigned for agricultural purpose or house site cannot be used for quarrying purposes, referable to Sec.3 of the Kerala Land Assignment Act, that the Government land can be assigned by the Government or any prescribed authority either absolute or restricted to such limitation and conditions as prescribed. So also, Sec.8 of the Kerala Land Assignment Act would show that the assignment takes place with restrictions, conditions and limitations contained in any Patta or other document evidencing the W.P.(C) Nos.8301 & 21034 of 2018 8 assignment on Government Land. It is also pointed out that, the Form of Order of Assignment on Registry also would show that the assignee or any member of the family shall reside in/cultivate the land, and the assignment is liable to be cancelled on contravention of the conditions in Patta. Condition Nos.2 and 3 in the Order of Assignment are as follows: _“Condition No.2: The assignee or any member of his/her family or his successor-in-interest shall reside in/cultivate the land and such residence/cultivation shall commence effectively within a period of one year from the date of receipt of Patta._ _Condition No.3: The registry shall be liable to be cancelled for contravention of condition 1 or 2 above and also for the conditions specified in the Patta.”_ 10. That apart, it is pointed out that, Rule 4 of the Kerala Land Assignment Rules, 1964, prescribes that the Government land may be assigned on registry for purposes of personal cultivation, house sites and beneficial enjoyment of adjoining registered holdings and Rule 8(3) of the Rules stipulates that the registry shall be liable to be cancelled for contravention of the Rules or the conditions of _Pattas_ . Therefore, according to the 1[st] respondent, since the _patta_ is obtained with conditions, the same is not liable to use overlooking the conditions contained in the _Patta_ . Therefore, according W.P.(C) Nos.8301 & 21034 of 2018 9 to the 1[st] respondent, petitioner is not entitled to get any relief as is sought for in the writ petitions. 11. I have heard learned counsel for the petitioner and the learned Government Pleader and perused the pleadings and the documents on record. 12. As is discussed above, the issue raised by the petitioner in the first among the writ petitions is that, since the period of 105 days have elapsed, by virtue of clause 8(iii) of the Notification, 2006, specified above, petitioner is entitled to get deemed environmental clearance. It is an admitted fact that Ext.P2 application was submitted by the petitioner as early as on 04.02.2017, evident from the acknowledgement slip. However, in spite of lapse of 105 days, environmental clearance was not issued to the petitioner. It is also quite evident and clear that, the Village Officer, Mining and Geology Department, and the Government of Kerala have all issued necessary No Objection Certificates in favour of the petitioner. However, for reasons best known to the 1[st] respondent, 1[st] respondent has not taken a final decision in spite of the recommendation made by the DEAC. Therefore, in my considered view, having kept quiet without any intimation to the petitioner, with respect to the application submitted by the petitioner, within the W.P.(C) Nos.8301 & 21034 of 2018 10 aforesaid period, the application can only be legally presumed to be submitted with all requisite documents. Therefore, on expiry of 105 days, petitioner is entitled, as of right, in accordance with the Notification, 2006, to proceed as if the environmental clearance sought for has been granted. However, by virtue of the interim direction issued by this Court, in W.P.(C) No.8301 of 2018 on 20.04.2018, a decision was taken by the DEIAA, evident from Ext.R1(b) on 05.05.2018, deciding to reject the application on the ground that the land was assigned for the purpose of agricultural activities, and therefore, no activities can be undertaken, deviating from the conditions prescribed thereunder. 13. Learned Government Pleader has pointed out the proposition of law laid down by this Court in _**'Haridas R. v. State of Kerala**_ ' [2016 (5) KHC 615], wherein the question of entitlement to make construction in a land assigned for agricultural activities was considered, and it was held that the passage of time would not change the character of assignment and the purpose of assignment has to be looked at when permitting a commercial activity, and any time if it is found that the purpose for assignment is diverted from, State could take proceedings for cancellation of assignment and either vest lands back W.P.(C) Nos.8301 & 21034 of 2018 11 with the Government or assign it to others for the purpose of cultivation. 14. However, since there is a clear statutory fiction created by the Notification, 2006, it is axiomatic that the environmental clearance is secured to the petitioner and the petitioner is entitled as of right to proceed with, as if the same is granted. Therefore, in my considered view, having not taken a decision by the statutory authority in accordance with the prescriptions of the notification referred to above, petitioner is entitled for deemed environmental clearance. However, if there is any violation standing adverse to the petitioner, the statutory authority is entitled to take recourse to sub-clause (v) of Clause 8 of Notification, 2006, if the applicant has deliberately suppressed the relevant information or has furnished misleading information at the time of applying for the environmental clearance. However, it should be done in accordance with the procedure prescribed under the said clause, after affording opportunity to the affected party. 15. Therefore, on an evaluation of the factual and legal circumstances, there will be a direction to the 1[st] respondent to issue necessary orders in accordance with the deemed Environmental Clearance to the petitioner at ## W.P.(C) Nos.8301 & 21034 of 2018 12 the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment. But, at the same time, I make it clear that, in the writ petitions, I have considered the only issue with respect to the entitlement of the petitioner for a deemed Environmental Clearance as is provided under Clause 8(iii) of the Notification, 2006, which will not stand in the way of the authorities taking appropriate action in accordance with law, including the issue with respect to quarrying lease viz., Ext.P1 in W.P.(C) No.8301 of 2018, issued to the petitioner dated 05.02.2008 for a period of 10 years and its expiry. 16. In view of the directions contained above, I am of the considered opinion that, the decision taken by the 1[st] respondent produced as Ext.R1(b) in the counter affidavit filed in W.P.(C) No.21034 of 2018 and the consequential order Ext.P8 dated 08.06.2018 in the said writ petition have no legal sustenance to that extent. Moreover, the issues referable to the decision and order may not have much consequences, since even according to the petitioner, the quarrying lease had a life of ten years only from 2008, which remains expired as of now. Accordingly, it is quashed to the extent concerning deemed environmental clearance, subject to the W.P.(C) Nos.8301 & 21034 of 2018 13 observations and findings contained above. The writ petitions are allowed to the above extent. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) Nos.8301 & 21034 of 2018 14 ## **APPENDIX OF W.P.(C) NO.8301/2018** ## **PETITIONER'S/S EXHIBITS:** |**EXT.P1:**|**TRUE COPY OF THE QUARRYING LEASE**| |---|---| ||**NO.809/2007-08/945/M3/2008 DATED 05.02.2008.**| |**EXT.P2:**|**TRUE COPY OF THE ONLINE ACKNOWLEDGEMENT SLIP**| ||**DATED 04.02.2017.**| |**EXT.P3:**|**TRUE COPY OF THE "LETTER OF INTENT"**| ||**NO.7755/M3/2015 DATED 27.10.2015.**| |**EXT.P4:**|**TRUE COPY OF THE CERTIFICATES ISSUED BY THE**| ||**VILLAGE OFFICER UNDER RULE 27(F) OF THE**| ||**KERALA MINOR MINERAL CONCESSIONS RULES, 2015**| ||**CERTIFYING THAT THE LAND APPLIED FOR**| ||**QUARRYING LEASE IS NOT ASSIGNED FOR ANY**| ||**SPECIAL PURPOSE AND HAS NOT BEEN INCLUDED IN**| ||**THE RESERVED FOREST.**| |**EXT.P5:**|**TRUE COPY OF THE APPROVED MINING PLAN**| ||**CERTIFICATE NO.1182/C2/TDO/2016 DATED**| ||**11.03.2016.**| |**EXT.P6:**|**TRUE COPY OF THE ONLINE DETAILS OBTAINED**| ||**WITH REGARD TO PALAKKAD DISTRICT.**| |**EXT.P7:**|**TRUE COPY OF THE ONLINE DETAILS OBTAINED**| ||**WITH REGARD TO MALAPPURAM DISTRICT.**| |**EXT.P8:**|**TRUE COPY OF THE ONLINE DETAILS OBTAINED**| ||**FROM THE WEBSITE OF PROPOSALS OF CATEGORY**| ||**"B2" PROJECTS FOR WHICH EC HAS BEEN GRANTED**| ||**IN THRISSUR DISTRICT.**| |**EXHIBIT P9**|**TRUE COPY OF THE APPRAISAL REPORT OF THE**| ||**DISTRICT ENVIRONMENTAL APPRAISAL COMMITTEE.**| |**EXHIBIT P10**|**TRUE COPY OF THE DETAILS OF THE LIST OF**| ||**PROPOSALS AS ON 31.3.2018 OBTAINED FROM**| ||**WEBSITE.**| RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-