N. Nandakumar v. Director of Mining and Geology; State Environment Impact Assessment Authority (SEIAA); Kizhakkencheri Grama Panchayat; District Level Crisis Management Committee; Chief Wildlife Warden; Wildlife Warden Peechi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022/7TH ASWINA, 1944** **WP(C) NO. 27076 OF 2022** **PETITIONER:** **K.N.NANDAKUMAR AGED 54 YEARS S/O. NARAYANAN NAIR, KORACHADATH HOUSE, 12TH STREET, MUSEUM CROSS LANE, CHEMBUKKAVU, THRISSUR DISTRICT, PIN - 680 020.** **BY ADVS. SANTHOSH MATHEW ARUN THOMAS BINU PAUL KARTHIKA MARIA ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL MATHEW NEVIN THOMAS KURIAN ANTONY MATHEW** ## **RESPONDENTS:** - **1 THE DIRECTOR OF MINING AND GEOLOGY DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004.** - **2 STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA), KERALA, 4TH FLOOR, KSRTC BUS TERMINAL COMPLEX, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY ITS MEMBER SECRETARY.** - **3 SECRETARY, KIZHAKKENCHERI GRAMA PANCHAYATH, KUNDUKAD - CHITTADY ROAD, KIZHAKKENCHERI - 1, MAMPAD, PALAKKAD, PIN - 678 684.** W.P.(C) No.27076/2022 : 2 : - **4 CHAIRMAN, DISTRICT LEVEL CRISIS MANAGEMENT COMMITTEE, QM65+C3P, KENATHUPARAMBU, KUNATHURMEDU, DISTRICT COLLECTORATE, PALAKKAD-678013.** - **5 THE CHIEF WILD LIFE WARDEN, FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.** - **6 THE WILDLIFE WARDEN, PEECHI WILDLIFE DIVISION, PEECHI P.O., THRISSUR-680653.** **BY ADVS.** **SRI.T.P.SAJAN, SPL.GOVERNMENT PLEADER (FORESTS) SRI.N.KRISHNA PRASAD-R3 SMT.GAYATHRI POTI-R3 SRI.P.SREEKRISHNAN (SC)-R2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.27076/2022 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.27076 of 2022 ````````````````````````````````````````````````````````````` _Dated this the 29[th] day of September, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The Kizhakkencheri Grama Panchayat, on an application filed by the petitioner for issuance of a licence to start Quarry, has informed the petitioner as per Ext.P18 letter that his application cannot be processed further in the absence of NOC from Disaster Management Authority and Clearance from Standing Committee of National Board for Wildlife. The petitioner is aggrieved by Ext.P18 communication. 2. The petitioner is in possession of 7.6546 Hectares of private Patta land in Survey No.272(Pt.) of Kizhakkencheri-II Village, Alathur Taluk of Palakkad District. The petitioner is desirous of starting quarrying operations in W.P.(C) No.27076/2022 : 4 : the land. He obtained Ext.P1 Letter of Intent from the 1[st] respondent-Director of Mining and Geology. Ext.P1 required the petitioner to obtain Environmental Clearance (EC) from SEIAA, Consent to Operate from Pollution Control Board, Explosives Licence from Petroleum and Explosives Safety Organisation and D&O Licence from the Grama Panchayat. 3. The petitioner obtained Ext.P2-EC from the State Environment Impact Assessment Authority (SEIAA), Ext.P3 Consent to Operate from the Pollution Control Board and Ext.P4 NOC for obtaining Explosives licence, from the District Magistrate. The Deputy Chief Controller of Explosives has granted Ext.P5 Explosives licence. But, the Secretary to the Grama Panchayat, as per Ext.P8, informed the petitioner that his application for D&O Licence cannot be considered unless clearances from SCNBWL and NOC from District Disaster Management Authority are obtained. 4. The petitioner states that insistence on clearances from the SCNBWL and DDMA made by the Grama Panchayat is based on Ext.P7 communication given by the W.P.(C) No.27076/2022 : 5 : SEIAA to the Grama Panchayat. Ext.P7 is based on Ext.P8 Minutes of the SEIAA meeting. Exts.P7, P8 and P18 are illegal and unsustainable, contends the petitioner. 5. The learned counsel for the petitioner argued that the insistence made on NOC from DDMA and Clearance from SCNBWL is arbitrary and illegal. The 2[nd] respondentSEIAA cannot alter or amend the conditions contained in Ext.P2 Environmental Clearance and that too without hearing the petitioner. The reliance placed by the SEIAA on Ext.P10 Office Memorandum issued by the Ministry of Environment, Forest and Climate Change to insist Clearance from SCNBWL is unsustainable. Any restriction on Environmental Clearance cannot be imposed only in accordance with Section 3 of the Environment (Protection) Act, 1986. 6. The proposed Quarry in question is located beyond the Eco Sensitive Zone of both Peechi-Vazhani Wildlife Sanctuary and Chimmony Wildlife Sanctuary. Any order restricting the provisions of Section 3 of the Environment (Protection) Act, 1986 and Rule 5 of the W.P.(C) No.27076/2022 : 6 : Environment (Protection) Rules, 1986 can be imposed only following the procedure laid down in Rule 5. 7. Till a Notification is issued by the Central Government, there cannot be any prohibition to carry out mining activity beyond 1 Km. of the boundaries of the National Parks and Wildlife Sanctuaries, contended the learned counsel for the petitioner. There is no requirement in the Kerala Panchayat Raj Act or under the Rules made thereunder to insist for a Consent/NOC from DDMA, pointed out the counsel. 8. The respondents resisted the writ petition and argued that the State Environmental Impact Authority (SIEAA) is the authority competent to grant Environmental Clearance. The SIEAA can put any condition to grant Environmental Clearance for conducting quarrying operations. The conditions insisted by the respondents are in larger public interest and in the interest of environmental protection. W.P.(C) No.27076/2022 : 7 : 9. The proposed quarry of the petitioner is in close proximity of Eco Sensitive Zones of Peechi-Vazhani Wildlife Sanctuary and Chimmony Wildlife Sanctuary. The area is disaster prone. Therefore, the SIEAA as well as the Panchayat authorities are justified in stipulating that the petitioner shall obtain Clearance from the SCNBWL and NOC from the DDMA. The stipulations have the sanction of the judgment of the Hon'ble Apex Court and of the National Green Tribunal, contended the respondents. 10. I have heard the learned counsel for the petitioner, the learned Special Government Pleader (Forests) for the 1[st] respondent and the respective Standing Counsel for respondents 2 and 3. 11. The petitioner proposes to start quarrying activity in 7.6546 Hectares of Patta land possessed by him in Kizhakkencheri-II Village in Palakkad District. The petitioner has obtained Ext.P1 Letter of Intent from the 1[st] respondentDirector of Mining and Geology. The petitioner obtained Ext.P2 Environmental Clearance from the SEIAA. The W.P.(C) No.27076/2022 : 8 : Kerala State Pollution Control Board has issued Ext.P3 Consent to Operate. As regards Explosives Licence, the District Magistrate has given Ext.P4 NOC based on which the Deputy Controller of Explosives under the Petroleum and Explosives Safety Organisation has issued Ext.P5 explosives Licence in Form LE-3 of the Explosives Rules, 2008. 12. In the meanwhile, the 109[th] meeting of the Kerala State Level Environmental Impact Assessment Authority held on 26[th] and 27[th] April, 2021 noted that the 3[rd] respondentSecretary to Kizhakkancheri Grama Panchayat has requested to re-examine the Environmental Clearance issued to the petitioner. The Authority noted that the project is located at a distance of about 4 to 5 Km. from Chimmony Wildlife Sanctuary and as per the existing norms of the Ministry of Environment, Forests and Climate Change, the project proponent shall obtain Clearance from the SCNBWL before he commences the quarry operation. 13. On the afore premises, the State Environmental Impact Assessment Authority decided to inform the W.P.(C) No.27076/2022 : 9 : Secretary, Grama Panchayat that (1) the EC was given subject to a condition that the Proponent should obtain Clearance from Standing Committee of the National Board for Wild Life before he commences the quarry operations and that (2) even if the Project Proponent gets clearance from Standing Committee of the National Board for Wild Life, under the circumstances narrated by Secretary, Kizhakkancherry Grama Panchayat, the Project Proponent should obtain a NOC from the District Disaster Management Authority before he commences the quarry operations. 14. Based on Ext.P8, the 3[rd] respondent has declined to issue D&O licence to the petitioner as per Ext.P18 communication which informed the petitioner that in the absence of Clearance from SCNBWL and NOC from the DDMA, the petitioner’s application for licence cannot be processed. The petitioner challenged Exts.P8 and P18 on various grounds, including violation of principles of natural justice in altering Environmental Clearance conditions without notice. W.P.(C) No.27076/2022 : 10 : 15. As regards Clearance from the SCNBWL, this Court finds that the issue was considered by this Court in the judgment in W.P.(C) No.19710 of 2022. Taking into consideration the judgment delivered by the Hon’ble Apex Court in _**Re: T.N. Godavarman Thirumulpad v. Union of India and others** [2022 (3) KLT 739],_ this Court held that:- “12. 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. 13. 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 4 th December, 2006 in the case of Goa Foundation v. Union of India [(2006 (4) KLT Online 1110 (SC)] and also contained in the Guidelines of 9th February, 2011 shall be implemented. 14. 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.” W.P.(C) No.27076/2022 : 11 : 16. Ext.P13 map would show that the property of the petitioner is located beyond 3.07 Km. from the Eco Sensitive Zone of Chimmony Wildlife Sanctuary and 2.4 Km. from the Eco Sensitive Zone of the Peechi-Vazhani Wildlife Sanctuary. The proposed quarry of the petitioner is therefore beyond the Eco Sensitive Zone of both the Wildlife Sanctuaries. Therefore, in view of the judgment of the Apex Court in _**Re: T.N. Godavarman Thirumulpad**_ (supra), the insistence imposed by the respondents for Clearance from the SCNBWL is unsustainable. 17. As regards the demand for NOC from the District Disaster Management Authority, this Court has held in the judgment in _**M/s. Malayoram Rock Products Pvt. Ltd. v. Vanimel Grama Panchayat and others** [2021 (4) KLT Online 1131]_ that there is no requirement in the Kerala Panchayat Raj Act or under any Rules made thereunder to insist that one is legally bound to produce consent from the DDMA in order to get licence of Grama Panchayat for quarrying operations. W.P.(C) No.27076/2022 : 12 : 18. In view of the legal position emerging from the judgment of the Apex Court in _**Re: T.N. Godavarman Thirumulpadu**_ (supra) and in _**Malayoram Rock products Pvt. Ltd.**_ (supra), Ext.P8 minutes of the 2[nd] respondent in so far as it is applicable to the petitioner and Ext.P18 communication of the 3[rd] respondent, are arbitrary and unsustainable. Exts.P7, P8 and P18 are therefore set aside to the said extent. The writ petition is disposed of directing the 3[rd] respondent to consider and pass orders on Ext.P16 application of the petitioner for grant of D&O licence, without insisting for clearance from SCNBWL and NOC from the DDMA. Orders in this regard shall be passed within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/03.10.2022 W.P.(C) No.27076/2022 : 13 : ## **APPENDIX OF WP(C) 27076/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 A TRUE COPY OF THE LETTER OF INTENT DATED 07-01-2017 ISSUED BY THE 1ST RESPONDENT.** **Exhibit P2 A TRUE PHOTOCOPY OF THE ENVIRONMENT CLEARANCE NO.45/2018 ISSUED BY THE 2ND RESPONDENT AS PER ITS PROCEEDINGS NO.1134/EC/SEIAA/KL/2017 DATED 17.3.2018.** - **Exhibit P3 A TRUE COPY OF THE CONSENT NO.PCB/PLKD/ICO/F/255/2018 DATED 0505-2018 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** - **Exhibit P4 A TRUE COPY OF THE NOC DATED 15-042017 ISSUED BY THE ADDL. DISTRICT MAGISTRATE.** - **Exhibit P5 A TRUE PHOTOCOPY OF THE LICENSE NO. E/SE /KL/22/174(E112648) DATED 20-062018 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, PETROLEUM AND EXPLOSIVES SAFETY ORGANISATION, GOVERNMENT OF INDIA.** - **Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 01.03.2021 IN W.P(C). NO. 5231 OF 2021 (D) ISSUED BY THIS HON'BLE COURT.** - **Exhibit P7 TRUE COPY OF THE LETTER NO.1134/EC/SEIAA/KL/2017 DATED 31-052021 ISSUED BY THE 2ND RESPONDENT ADDRESSED TO THE 3RD RESPONDENT.** - **Exhibit P8 A TRUE COPY OF THE MINUTES OF THE 109TH MEETING OF THE STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, KERALA HELD ON 26TH AND 27TH APRIL, 2021.** - **Exhibit P9 TRUE COPY OF THE JUDGEMENT DATED 2207-2022 IN W.A. NO. 623/22.** ## W.P.(C) No.27076/2022 : 14 : **Exhibit P10** - **A TRUE COPY OF THE OFFICE MEMORANDUM DATED 08-08-2019 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE.** - **Exhibit P11 A TRUE COPY OF THE DRAFT NOTIFICATION PUBLISHED BY THE CENTRAL GOVERNMENT DEMARCATING THE BOUNDARIES OF PEECHIVAZHANI WILDLIFE SANCTUARY AND ITS ECO-SENSITIVE ZONE.** - **Exhibit P12 A TRUE COPY OF THE DRAFT NOTIFICATION PUBLISHED BY THE CENTRAL GOVERNMENT DEMARCATING THE BOUNDARIES OF CHIMMONY WILDLIFE SANCTUARY AND IT'S ECOSENSITIVE ZONE.** - **Exhibit P13 A TRUE COPY OF THE GOOGLE MAP SHOWING THE DISTANCE BETWEEN THE PETITIONER'S LAND FOR QUARRYING AND THAT OF THE ESZ OF BOTH CHIMMONY WILDLIFE SANCTUARY AND PEECHI-VAZHANI WILDLIFE SANCTUARY.** - **Exhibit P14 A TRUE COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN W.P.(C) 19710/2022 DATED 27-07-2022.** - **Exhibit P15 A TRUE COPY OF THE REPRESENTATION DATED 18-07-2022 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.** - **Exhibit P16 A TRUE COPY OF THE APPLICATION FOR D&O LICENSE WITHOUT ACCOMPANYING DOCUMENTS SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 05-03-2021.** - **Exhibit P17 A TRUE COPY OF THE RECEIPT NO.6355437 DATED 06-03-2021 ISSUED BY THE 3RD RESPONDENT.** - **Exhibit P18 A TRUE COPY OF THE LETTER B3/7585/21 DATED 06-12-2021 ISSUED BY THE 3RD RESPONDENT.** **RESPONDENT'S/S EXHIBITS : NIL**