M/s. Surya Granites v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE SHIRCY V. MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940 WA.No. 1201 of 2018 IN WPC. 40525/2017 AGAINST THE ORDER IN WP(C) 40525/2017 of HIGH COURT OF KERALA DATED 13-06-2018 APPELLANT/PETITIONER IN W.P(C)NO.40525/2017 M/S. SURYA GRANITES, A PARTNERSHIP FIRM REPRESENTED BY ITS PARTNER, ASHWIN K.J., KAPRAKATTU HOUSE, OKKAL P.O., ONAMPILLY, KALADY, ERNAKULAM. BY SENIOR ADVOCATE SRI S. SRFEEKUMAR ADVS.SRI.PHILIP J.VETTICKATTU SRI.VINEETH KURIAKOSE RESPONDENTS/RESPONDENTS IN W.P(C)NO.40525/2017: 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001. 2. THE SECRETARY TO GOVERNMENT, FOREST DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001. 3. THE DIRECTOR OF MINING & GEOLOGY, OFFICE OF THE DIRECTOR OF MINING & GEOLOGY, KESAVADASAPURAM, PATTOM P.O., TRIVANDRUM-695004. WA 1201/2018 2 4. THE WILD LIFE WARDEN, OFFICE OF THE WILD LIFE WARDEN, DIVISION PEECHI, PEECHI P.O., THRISSUR DISTRICT, PIN-680001. 5. THE CHIEF FOREST CONSERVATOR, WILD LIFE, PALAKKAD-678001. 6. THE MEMBER SECRETARY, DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY AND SUB COLLECTOR, PALAKKAD-678001. 7. THE KUTHANNUR GRAMA PANCHAYAT, - REPRESENTED BY ITS SECRETARY, KUTHANNUR P.O., PALAKKAD 678 721. R 1 TO 6 BY GOVERNMENT PLEADER MR. SANDESH RAJA R 7 BY SRI.SAJAN VARGHEESE K. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA 1201/2018 3 WA 1201/2018 APPELLANTS' ANNEXURES: ANNEXURE A: COPY OF THE PRINT OUT OF WILD LIFE CONSERVATION STRATEGY, 2002 TAKEN FROM THE WEB SITE. ANNEXURE B : COPY OF THE NOTIFICATION DT. 7.12.2015 PUBLISHING THE DRAFT NOTIFICATION. ks. TRUE COPY P.S. TO JUDGE ## **K.SURENDRA MOHAN & SHIRCY V.,JJ. -----------------------------------------------------** ## **W.A.No.1201 of 2018** ## **-----------------------------------------------------Dated this the 25[th] day of June, 2018 JUDGMENT** ## **Surendra Mohan, J.** The petitioner in W.P.(C)No.40525 of 2017 is before us challenging an interim order dated 13.6.2018 passed by the learned Single Judge. 2. The writ petition has been filed challenging Exts.P9 and P10 proceedings issued by the Wild Life Warden, Peechi and the Secretary, Kuthannur Grama Panchayat respectively. As per Ext.P9 dated 16.10.2017, a direction has been issued to the Secretary of the Grama Panchayat to take necessary steps to ensure that unauthorized quarrying within a 10 KM radius of Choolannur Peacock Sanctuary is stopped, with intimation to the said authority. Pursuant to Ext.P9, Ext.P10 communication has been issued to the appellant herein, directing him to show cause why a stop memo should not be issued to him against the functioning of his quarry. WA 1201/2018 2 3. According to the appellant, though he has submitted his explanation, Ext.P11, no further orders have been passed thereon till date. It was challenging Exts.P9 and P10 that the writ petition was filed by the petitioner who is conducting a quarry. The petitioner is a partnership firm, represented by its partner. 4. Initially, it appears that, an int erim order had been granted by this Court on 15.12.2017 which was being extended from time to time. While so, the learned Single Judge has, by the interim order appealed against, directed the appellant to stop their quarrying activities for a period of three months and to obtain a clearance from the National Board for Wild Life, complying with the formalities stipulated by the guidelines issued by the Government of India, Ministry of Environment, Forest and Climate Change (Wild Life Division) on 10.4.2015. The procedure stipulated by the guidelines has been extracted in the impugned order by the learned Single Judge. In compliance with the procedure stipulated above, the appellant has been directed to submit WA 1201/2018 3 an application before the Divisional Forest Officer concerned. The authorities have been directed to pass necessary orders in the matter, within three months from the date of receipt of a copy of the application of the appellant. 5. According to the learned Senior Counsel, Adv.Sri.S.Sreekumar who appears for the appellant, the learned Single Judge seriously erred in directing the appellant to comply with the formalities stipulated by the guidelines referred to in the impugned order. It is contended that only an area of 1 KM radius around a wild life sanctuary is treated as Eco Sensitive Area. Though there was a proposal to extend the said area to 10 KMs, the same according to the learned Senior Counsel, was not accepted and no notification stipulating 10 KMs as the area that should be designated as Eco Sensitive Area, has been issued by the authorities. It is contended that, the appellant is carrying on quarrying on the strength of a lease issued to them in accordance with law. It is also contended that they have all the necessary licenses and permits for conducting WA 1201/2018 4 the operations, including the clearance from the Kerala State Pollution Control Board. Placing reliance on the decision of the Apex Court in _**Goa Foundation vs. Union of India and others [2011 (15) SCC 791]**_ , it is contended that what has been recognized as an Eco Sensitive Area around a wild life sanctuary extend only to a radius of 1 Km. Therefore, according to the learned Senior Counsel, the interim order passed by the learned Single Judge requires to be interfered with and set aside. 6. Our attention is drawn to the provisions of the Wild Life (Protection) Act to point out that Section 34 thereof does not clothe the 4[th] respondent with the power to issue the direction contained in Ext.P9. For the above reason, it is contended that Exts.P9 and P10 orders are issued without the authority of law, unsustainable and liable to be set aside. 7. Heard. This appeal is posted before us for admission. 8. We have been taken through the order appealed against as well as the other documents produced by the WA 1201/2018 5 appellant in the writ petition. We have also been taken through the judgment of the Apex Court in _**Goa Foundation's**_ case (supra) to contend that the order appealed against requires to be interfered with and set aside. However, though we have examined the order appealed against carefully, we do not find any infirmity, warranting an interference therewith, in appeal. The writ petition, as already noticed above, has been filed challenging Exts.P9 and P10 proceedings. The question as to whether the said proceedings are sustainable or not has to be decided in the writ petition. It cannot be disputed that the learned Single Judge has the power to pass interim orders to be in force until the writ petition is finally disposed of. As per the interim order against which this appeal is filed, what has been directed is only that, the appellant shall stop the quarrying activities for a period of three months and that within the said period, they shall obtain a clearance from the National Board for Wild Life following the procedures stipulated by the guidelines issued by the Government of WA 1201/2018 6 India. 9. We remind ourselves of the fact that, quarrying is an activity that has serious deleterious effects on the environment. Therefore, the activity of quarrying requires a closer look and regulation in a strict manner. It is common knowledge that extraction of granite by quarrying reduces the land to gaping craters that often get filled up with rain water to remain as death traps for animals as well as the unwary public. The craters also exist permanently as festering sores on the environment. Therefore, considering the seriousness of the issues involved, it is only appropriate that clearance from the National Board for Wild Life is obtained by the appellant before he carries on his quarrying activities, especially in view of the fact that the Peacock Sanctuary is located in close proximity. 10. In the above context, the caution exercised by the learned Single has to be appreciated. It is only appropriate that, the appellant is permitted to carry on his activity only after obtaining the requisite clearance. The limits of the Eco WA 1201/2018 7 Sensitive Area would vary with reference to each wild life sanctuary and could be determined and fixed only by persons who are competent to do so. In view of the above fact also, we are of the view that the learned Single Judge has been right in directing the appellant to obtain the clearance as directed in the interim order. For the foregoing reasons, the appeal fails and is dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **SHIRCY.V JUDGE** smm True copy P.S.To Judge