M/S Thoppil Granites Pvt. Ltd. v. Director of Mining & Geology, Government of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942** ## **WP(C).No.16970 OF 2020(U)** ## **PETITIONER:** **M/S.THOPPIL GRANITES PVT. LTD., VATTAKARIKKAM, VATTAKARIKKAM P.O., KOLLAYIL, KOLLAM691 541, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. THAJUDEEN A.** **BY ADVS. SRI.ENOCH DAVID SIMON JOEL SRI.RONY JOSE SRI.GEORGE A.CHERIAN SRI.LEO LUKOSE** ## **RESPONDENTS:** **THE DIRECTOR OF MINING & GEOLOGY DIRECTORATE OF MINING & GEOLOGY, PATTOM P.O., THIRUVANANTHAPURAM-695 004.** ## **OTHER PRESENT:** ## **SR GP SRI SAIGI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.16970 OF 2020(U) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No. 16970 of 2020 ---------------------------------------------Dated this the 26[th] day of August, 2020 ## **JUDGMENT** The prayers in this writ petition (civil) is as follows:- _“i) Issue a writ of mandamus or other appropriate writ, order or direction directing the Respondent to consider and pass orders on Ext.P-1 application as expeditiously as possible, at any rate, within a period of 2 weeks._ _ii) Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case.”_ The case set up in this Writ Petition (Civil) is as follows:- _That the petitioner submitted Ext.P-1 application for grant of quarrying lease under Rule 27 of the KMMC Rules, 2015 before the respondent on 21.02.2018. Even after lapse of more than 2 years no orders have been passed till date._ It is in the light of the above factual averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the aforementioned prayers:- 2. Heard Sri.Enoch David Simon Joel, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned WP(C).No.16970 OF 2020(U) 3 Senior Government Pleader appearing for the respondent. 3. Taking note of the facts and circumstances, it is for the Director of Mining & Geology to take a decision on the matter raised in Ext.P-1 application dated 21.02.2018, in accordance with law. Since the National Green Tribunal has recently passed order dated 21.07.2020 in O.A. No.304/2019, whereby new stipulations have been made regarding distance criteria and this Court has passed interim order dated 06.08.2018 in W.P.(C) No.15305/2015 & connected cases ordering maintenance of status-quo only based on Rule 40(1)(i) of the Kerala Minor Mineral Concession Rules, 2015, only in regard to quarrying leases and quarrying permits which are valid as on 21.07.2020, etc. and though the said order has been later extended upto 28.09.2020 as per order dated 18.08.2020, etc. Those aspects are now at the interlocutory stage. Therefore, it is for the respondent-Director of Mining & Geology to ascertain from the office of the Advocate General and the Government Pleader concerned, about the exact nature of such orders passed by this Court in relation to the new distance criteria ordered by the National Green Tribunal and as to whether the said order passed by this Court has been WP(C).No.16970 OF 2020(U) 4 subsequently modified, etc. This the Court would say as it has been stated in the said orders passed by this Court in the above writ petition (civil) that the said order of status-quo would apply for only for holders of quarrying leases and quarrying permits which are current as on 21.07.2020 (date of the impugned order of the National Green Tribunal) and that applications in relation to fresh grant of quarrying lease and quarrying permits and renewal of quarrying lease and quarrying permits which do not satisfy the new distance norms as per the NGT order may neither be granted nor refused but need only be processed, etc. It is for the Director of Mining and Geology to ascertain about the currency of such interim orders passed by this Court and to take a decision taking note of such orders as well. 4. In this regard it is appropriate to refer to paragraph No.9 of the interim order dated 06.08.2020 rendered by his Court in W.P.(C) No.15305/2015 & connected cases, which involves the challenge as against the impugned order dated 21.07.2020, rendered by the National Green Tribunal in O.A. No.304/2019, which reads as follows:- _“This matter has been heard for quite some time and the learned Advocates appearing for the petitioners in these cases, the learned Addl. Advocate General appearing for the State authorities, the learned Advocates appearing_ WP(C).No.16970 OF 2020(U) 5 _for the respondent-Central Pollution Control Board, respondent-State Pollution Control Board and the learned Advocate appearing for contesting respondent No.5 have also been heard for some time._ _2. Sri.Ranjith Thampan, learned Addl. Advocate General appearing for the respondent State authorities would submit that the impugned order of the National Green Tribunal dated 21.7.2020 [produced as Ext.P-8 in W.P.(C.) No.15309/2020] has been rendered without reasonable opportunity of being heard to the Government of Kerala in the Industries Department, Director of Mining & Geology etc. and that it is well settled by a series of rulings of the Apex Court that the power to regulate the functioning of mining activities in relation to minor minerals is vested exclusively with the State Government in terms of Sec.15 of the Mines & Minerals (Regulation and Development) Act, 1957 (MMDR Act) enacted by the Parliament. That Rule 10(f) and Rule 40(i) of the Kerala Minor Mineral Concession Rules, 2015 framed under the said MMDR Act stipulates that the distance criteria in question is 50 metres. That when the said statutory prescriptions have been made by the rule making authority in terms of the exclusive powers conferred in that regard by the Parliament on the basis of the abovesaid plenary law, the competent authorities of the State Government in the Industries Department (who is Administrative Department concerned in relation to the subject matter) as well as the Director of Mining & Geology, Government of Kerala should have been heard in order to enable them to give their versions and also to contest the matter on merits._ _3. Further, various other submissions have been made by the learned Advocates appearing for the petitioners regarding the lack of jurisdiction of the Tribunal to pass an order in the nature of the impugned order, which, according to him, substantially has led to striking down of the said statutory Rule in the abovesaid KMMC Rules and making a new provision in lieu thereof, etc._ _4. It has been held by the Apex Court in decisions as in Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd. and Ors. [2019 SCC Online 221] that under the National Green Tribunal Act, the Tribunal exercising jurisdiction under the Act cannot strike down the statutory Rules or Regulations and that it would be incorrect to state that the Tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers of judicial review, under Article_ WP(C).No.16970 OF 2020(U) 6 _226 of the Constitution of India and that the National Green Tribunal has no such general power of judicial review akin to that conferred in terms of Article 226 of the Constitution of India, etc._ _5. Further, Sri.Ranjith Thamban, learned Addl.Advocate General appearing for the respondent– State would submit that he has been instructed to submit by the respondent–State authorities that the State would be moving a writ petition (civil) under Articles 226 and/or 227 of the Constitution of India to challenge the abovesaid order dated 21.7.2020 rendered by the National Green Tribunal and that it is expected that the said petition would be filed within a day or two. This Court had also made certain suggestions to the learned Addl.Advocate General appearing for the State to seriously consider the appointment of expert committee to examine serious ways and means to substantially reduce the demand and consumption of granite metal etc., especially in the construction sector and for tarred road maintenance work, etc._ _6. The learned Addl.Advocate General assured that the respondent–State would positively consider those suggestions and that he would require two days time to get specific instructions and then make submissions on those matters also. Both sides have made their respective rival pleas regarding the issue of maintainability of these petitions under Article 226 of the Constitution of India. Therein the contesting respondent (applicant in the OA on the file of the NGT) would contend that the remedy of the petitioners in such cases could only be to approach the Apex Court by filing statutory appeal in terms of Sec.22 of National Green Tribunal Act. The learned Advocates appearing for the petitioners and the learned Addl. Advocate General appearing for the respondent-State would submit that the legal principles laid down by this Court in decisions as in K.K.Rocks & Granites India (P) Ltd. v. Latha S. & Ors. [2016 (5) KHC 456], Society of Indian Automobile Manufactures, New Delhi v. State of Kerala and others [2016 KHC 645], etc. would be a complete answer to the abovesaid objections and that since the impugned order has been passed in derogation of principles of natural justice and fairness and since the impugned order would also amount to striking down the statutory rule and making a new provision in lieu thereof etc., this is a fit case where this Court can exercise its powers of judicial review and superintendence in terms of Article 226 and/or 227 of the Constitution of India to examine those issues and that_ WP(C).No.16970 OF 2020(U) 7 _therefore, the objection raised by the petitioners should be relegated to the statutory appellate remedy, is not sustainable etc._ _7. Since the State of Kerala is also proposing to file a writ petition (civil), it will be only in the fitness of things that the matter is adjourned so that the matter could be listed along with the said petition to be filed by the State, which could be treated as lead case. Now, there are hardly 15 working days prior to the Onam Holidays and in view of the serious containment issues in Kochi, listing and consideration of cases, other than a limited number also causes serious logistical problems to this Court. From the submissions made by the petitioners, it appears that there are about more than 720 quarries functioning within the State, with valid quarrying permits or quarrying leases etc. and that many such permit holders/lease holders are likely to file writ petitions challenging the very same order. Moreover, it is apprised to this Court that the respondent-Central Pollution Control Board and respondent-State Pollution Control Board are taking steps for enforcing the impugned order and will even issue stop memos in that regard._ _8. According to the averments in W.P.(C.) No.15309/2020, it is stated that the said writ petitioner is having a valid quarrying lease granted on 6.4.2011 and is current and valid till 5.4.2023. This Court is not now going into the factual details in the other cases. Before taking a decision on admitting the writ petitions and for consideration of the plea made for interim stay, this Court is of the view that the subject matter of the lis will have to be preserved in the meanwhile, as the cases are to be adjourned now, to tag the cases along with the Writ Petition to be filed by the State._ _9. Accordingly, it is ordered that in cases where a quarrying permit/quarrying lease issued under the provisions of the Kerala Minor Mineral Concession Rules, 2015 is valid and current as on 21.7.2020 (date of the impugned order rendered by the Tribunal), which do not fulfill the new distance norms stipulated by the NGT order, then it shall be ensured that status quo regarding the distance criteria based on Rule 10(f) and Rule 40(i) of the Kerala Minor Mineral Concession Rules may be maintained by the respondent authorities concerned during validity period of such current permits/lease. Needless to say, in such cases, the competent authorities concerned can insist for strict compliance of the other applicable norms, guidelines, orders, etc. However, it is_ WP(C).No.16970 OF 2020(U) 8 _made clear that in the case of the applications of fresh grant of quarrying permits/quarrying leases or applications for renewal of quarrying permits/leases, which do not fulfill the abovesaid impugned distance criteria stipulated in the order of the Tribunal, then such requests need not be granted for the time being. But at the same time, in those cases, such fresh or renewal application, including that for EC, PCB consent, explosive licence, local body licences, etc. in that regard may be processed and such applications need not be rejected solely on the ground of non-fulfillment of the new distance norms stipulated in the impugned order dated 21.7.2020 of the NGT. This order will be in force for a period of 2 weeks._ _List these cases on 13.8.2020 in the Admission List.”_ The said order dated 06.08.2020 has been subsequently extended till 28.09.2020. The above said orders are purely provisional and interlocutory in nature and it is for the respondent Director of Mining and Geology to ascertain as to whether those orders have been subsequently extended from time to time or modified, etc., before any decision in the matter is taken. Needless to say, in a case where the applicant for fresh grant or renewal of quarrying lease/quarrying permit fulfills even the new distance norms stipulated as per the order of the National Green Tribunal, then the above said orders of this Court may not have any bearing and in such cases, it is for the respondent authority concerned to consider the matter, in accordance with law. WP(C).No.16970 OF 2020(U) 9 5. Petitioner will produce certified copy of this judgment as well as a copy of the memorandum of this writ petition (civil) along with all the exhibits before the respondentDirector of Mining & Geology for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//03072020 WP(C).No.16970 OF 2020(U) 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 21.2.2018 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXHIBIT P2 TRUE COPY OF THE CHELLAN DATED 9.2.2018** **RESPONDENTS' EXHIBITS:**