Oasis Dale Aggregate Products (P) Ltd. v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941** ## **WP(C).No.3904 OF 2020(K)** ## **PETITIONER:** **OASIS DALE AGGREGATE PRODUCTS (P) LTD., THOZHUPADAM P.O, CHELAKARA, THRISSUR-680 568, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. MADAPPAN ABDUL RASHEED.** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SRI.PAUL JACOB (P) SRI.ENOCH DAVID SIMON JOEL SRI.RONY JOSE SRI.GEORGE A.CHERIAN SRI.LEO LUKOSE SMT.SUZANNE KURIAN SHRI.AMAL AMIR ALI** ## **RESPONDENTS:** |**1**|**UNION OF INDIA,**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**MINISTRY OF ENVIRONMENT AND FORESTS,**| ||**INDIRA PARYAVARAN BHAVAN,**| ||**JORBAGH ROAD, NEW DELHI-110003.**| |**2**|**STANDING COMMITTEE OF THE NATIONAL BOARD**| ||**FOR WILDLIFE,**| ||**NATIONAL BOARD FOR WILDLIFE,**| ||**MINISTRY OF ENVIRONMENT AND FORESTS,**| ||**INDIRA PARYAVARAN BHAVAN,**| ||**JORBAGH ROAD, NEW DELHI-110003.**| |**3**|**STATE OF KERALA,**| ||**REPRESENTED BY THE SECRETARY,**| ||**DEPARTMENT OF FORESTS AND WILDLIFE,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| **WP(C).No.3904 OF 2020(K)** **2** **4 DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004.** - **5 PRINCIPAL CHIEF FOREST CONSERVATOR (WILDLIFE) AND CHIEF WILDLIFE WARDEN, FOREST HEADQUARTERS, NANDAVANAM, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.** - **6 DISTRICT GEOLOGIST, DISTRICT OFFICE, CHEMBUKAVU, THRISSUR-680 020** - **7 STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, 3RD FLOOR, KSRTC COMPLEX, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS MEMBER SECRETARY.** **SRI.P.RAMACHANDRAN, CGC FOR R1 AND R2, SRI.K.SANDESH RAJA, SPL.GP (FOREST), SRI.M.P.SREEKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.3904 OF 2020(K)** **3** **ALEXANDER THOMAS, J. =========================== W.P(C) No.3904 of 2020 ===========================** Dated this the 12[th] day of February, 2020 ## **JUDGMENT** The case projected in this Writ Petition (Civil) is as follows: Petitioner is in possession of all licenses for operating a quarry. Ext.P3 stop memo has been issued on the ground that Petitioner has not obtained clearance from the National Board for Wildlife for operating the quarry. Clearance is insisted on the ground that the Peechi-Vazhani Wildlife Sanctuary is situated within 10 kms of the quarry. From 2002, need was felt for earmarking Eco-Sensitive Zones (ESZ) around National Parks/Wildlife Sanctuaries. Since no effective steps were being taken by the Central and State Governments, the Hon'ble Supreme Court by order dated 04.12.2006 warned that if the ESZs are not notified, the Court will have to declare 10 km around the Parks/Sanctuaries as the ESZ. This was misinterpreted as a ban on activities, especially mining , within 10 km. Subsequently by the judgment reported in 2014 (6) SCC 590, it was clarified that by order dated 04.12.2006, it has not prohibited mining activities within 10 km from the boundaries of National Parks/Wildlife Sanctuaries. Thereafter, notifications were issued by the Central **WP(C).No.3904 OF 2020(K)** **4** Government notifying ESZ. Ext.P7 draft notification was issued in 2016 notifying the ESZ for the Peechi-Vazhani Wildlife Sanctuary. The extent of the ESZ was notified as 2.98 kms. Petitioner's unit is situated more than 6 km from the ESZ. However, alleging that the notification is only in the draft stage, it is being interpreted that the ESZ will have to be treated as 10 kms. The fact that the 10 km prescription need not be adhered to even in cases where the ESZ notification is only in the draft stage has been affirmed by the Hon'ble Supreme Court in Ext.P8 order dated 11.12.2018. Ext.P3 have been issued on the premise that activities within 10 km of a Park/Sanctuary require clearance irrespective of whether they are outside the ESZ. The same is clearly against the spirit of Ext.P8 order of the Hon'ble Supreme Court. 2. In the light of these averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - “i. Issue a writ of certiorai or any other appropriate writ, order or direction calling for the records leading to Ext.P3 and quash the same. - ii. Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P9 and quash the same to the extent it directs requiring a clearance from the 2[nd] Respondent for activities within 10 km of National Park/Wildlife Sanctuary even in cases where Draft ESZ Notification have been issued. - iii Issue a writ in the nature of declaration declaring that Petitioner does not require clearance from the 2[nd] Respondent for operating the quarry covered by Ext.P1 series of licenses and Ext.P2 EC. - iv. Issue a writ of mandamus or any other appropriate writ order or **WP(C).No.3904 OF 2020(K)** **5** direction directing the 1[st] Respondent to issue the final notification under Rule 5 of the Environment Protection Rules in so far as it relates to Ext.P7 Draft Notification as expeditiously as possible at any rate, within a period of 2 weeks. - v. 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.” 3. Heard Sri.Bechu Kurian Thomas, learned Senior Counsel instructed by Sri.Enoch David Simon Joel, learned counsel appearing for the petitioner, Sri.P.Ramachandran, learned Central Government Counsel appearing for the respondents 1 & 2, Sri.K.Sandesh Raja, learned Special Government Pleader (Forest) appearing for R-3 to R-6 and Sri.M.P.Sreekrishnan, learned counsel appearing for R-7. 4. It is pointed out that this Court in similar circumstances has rendered decisions as in the judgment dated 24.01.2020 in W.P(C)No.1303/2020 in the case between Travancore Readymix Pvt. Ltd. v. Union of India and others. The said judgment dated 24.01.2020 rendered by this Court in W.P(C)No.1303/2020 reads as follows: “The petitioner has approached this Court challenging Ext.P3 stop memo dated 16.10.2019 issued by the 6th respondent, calling upon the petitioner to obtain the Clearance from the Standing Committee for National Board for Wild Life. Similar kind of memos were challenged in this Court in various other writ petitions No.28014/2019 and other connected petitions and vide order dated 18.12.2019, this Court issued certain directions. The directions contained therein were issued in terms of the interim orders as well as judgments rendered by the Supreme Court in Goa Foundation v. Union of India [(2011) 15 Supreme Court Cases 793] as well as Goa Foundation v. Union of India and others [(2014) 6 supreme Court cases 590] and the case of the petitioner is also falling within the aforementioned parameters. Accordingly, I dispose of the writ petition with similar directions as contained in the judgment of this Court cited supra, **WP(C).No.3904 OF 2020(K)** **6** which is as under:- “a) Since the petitioner asserts that he is in possession of a mining lease prior to 18.05.2012 and therefore, not being obligated to obtain an Environmental clearance, the Government is directed to open a file in his name containing all other relevant documents, including the Mining Lease; and forward it to the Ministry of Environment, Forest and Climate Changerecording therein that the petitioner has not obtained an Environmental Clearance for this reason-within fifteen days from the date of receipt of a copy of this judgment. If, for any reason, any other germane documents are found wanting, the Government will be at liberty to ask the petitioner to make available all such before the Secretary, Environment Department, so that there will be no delay in forwarding the same by the Government within the period granted above without seeking further extension of time. b) The Government of Kerala will forthwith and within a period of fifteen days from the date of receipt of a copy of this judgment forward the Environmental Clearances, along with all other necessary papers, to the MoEF. If, for any reason, the necessary papers are found wanting, the Government will be at liberty to seek such from the State Environment Impact Assessment Authority (SEIAA), who will make the same available without any delay. I also leave liberty to the petitioner to make available his papers before the competent authority of the Government, which is stated to be the Secretary, Environment Department, for such purpose. I make it clear that the intent of this Court is that there shall be no delay in forwarding the papers and that the Government will be obligated to do so within the period granted herein, without seeking any further extension of time. c) On the files as ordered above reaching the MoEF, they will be obligated to place it before the Standing Committee within a period of one week from the date on which it is received, so as to enable the said authority to take a decision in terms of the directions of the Hon'ble Supreme Court. d) The Standing Committee, on receiving the files as per the afore directions, will immediately process the files and make their recommendations, as per the interim order of the Hon'ble Supreme Court in Goa Foundation ((2011) 15 SCC 793) and this shall be done not later than two months from the date on which they receive the files from the MoEF. e) The afore directions having been issued, I must also clarify that the stop memos issued by the Geologists will remain in force only during the period that I have fixed above and if there is any delay by any authority, be that the Government of Kerala or the MoEF or the Standing Committee, in complying with the afore directions, on the expiry of the cumulative **WP(C).No.3904 OF 2020(K)** **7** period mentioned above, the said memos issued by the Geologists will become inoperative and the petitioner will, thereupon, be entitled to commence his activities as per the Environmental Clearances and the Mining Leases obtained by him. Needless to say, if, during the aforementioned period, the final notification is issued by the MoEF under the provisions of the Environment (Protection) Act, 1986 with respect to the Eco Sensitive Zones in Kerala, the interdiction as ordered above will stand vacated from that date and the petitioner will be entitled to operate his quarries depending upon the said notification and as per the stipulations therein. f) By way of a further clarification, I order that the afore directions and the operation of the stop memos will be only with respect to the petitioner's quarrying activities and that the operation of the stone crusher units, if any, as long as they are done in compliance with all necessary imperative and statutory conditions and as long as the raw material for the same is from other sources and not from the quarries in question, will not be covered by him, thereby to mean that he can continue to operate them, notwithstanding the stop memos issued by the Geologists, subject to further orders to be issued by the Standing Committee.” 5. After having heard both sides, it is ordered that the directions and orders passed by this Court in the abovesaid judgment dated 24.01.2020 in W.P(C)No.1003/2020 will relate this case as well. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd **WP(C).No.3904 OF 2020(K)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE QUARRYING LEASE DATED 27.10.2017 VALID TILL 26.10.2029 ISSUED TO THE PETITIONER EXHIBIT P1 (A) TRUE COPY OF THE CONSENT TO OPERATE THE QUARRY ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 30.5.2022 EXHIBIT P1 (B) TRUE COPY OF THE D & O LICENSE FOR THE PERIOD 2019-20 EXHIBIT P2 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 31.5.2017 ISSUED BY THE DEIAA THRISSUR. EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 10.10.2019 WITH NO 1991/C2/TDO/18 ISSUED BY THE 6TH RESPONDENT EXHIBIT P4 TRUE COPY OF THE LETTER DATED 31.1.2020 ISSUED BY THE WILDLIFE WARDEN UNDER THE RTI ACT. EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 13.6.2018 IN WPC NO 40525/2017 ON THE FILES OF THIS HON'BLE COURT EXHIBIT P5 (A) TRUE COPY OF THE JUDGMENT DATED 25.6.2018 IN WA NO 1201/2018 ON THE FILES OF THIS HON'BLE COURT EXHIBIT P6 TRUE COPY OF THE OFFICE MEMORANDUM DATED 2.12.2009 WITH NO J-11013/41/2006-IA.II(I) ISSUED BY THE 1ST RESPONDENT EXHIBIT P7 TRUE COPY OF THE NOTIFICATION DATED 3.3.2016 WITH SO 657 (E) ISSUED BY THE 1ST RESPONDENT EXHIBIT P8 TRUE COPY OF THE ORDER DATED 11.12.2018 IN WPC NO 202/1995 ON THE FILES OF THE HON'BLE SUPREME COURT** **9** ## **WP(C).No.3904 OF 2020(K)** **EXHIBIT P9** **TRUE COPY OF THE OFFICE MEMORANDUM DATED 8.8.2019 WITH F.NO 22-43/2018-IA.III ISSUED BY THE 1ST RESPONDENT**