Prakash N. v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **WP(C).No.4377 OF 2020(V)** ## **PETITIONER:** **PRAKASH N., AGED 43 YEARS** **S/O. NAGARAJAN, PRAKASH NIVAS, 18/454, VANIYA STREET, MUDAPPALLUR P.O, ALATHUR, PALAKKAD.** **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:** - **12020 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ENVIRONMENT AND FORESTS, INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI 110 003** - **2 STANDING COMMITTEE OF THE NATIONAL BOARD FOR WILDLIFE,** - **NATIONAL BOARD FOR WILDLIFE, MINISTRY OF ENVIRONMENT AND FORESTS, INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI 110 003** - **3 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF FORESTS AND WILDLIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **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** **WP(C).No.4377 OF 2020(V)** **2** **6 DISTRICT GEOLOGIST, DISTRICT OFFICE, TOWN BUS STAND COMPLEX, PALAKKAD 678 014** **R1-2 BY SMT.H.SUBHALEKSHMI, CGC** **SRI.P.VIJAYAKUMAR, ASGI, SRI.NAGARAJ NARAYANAN, SPL.GP(FOREST)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.4377 OF 2020(V)** **3** ## **ALEXANDER THOMAS, J ============================ W.P.(C). NO. 4377 OF 2020** ## **==============================================** ## **Dated this the 19th day of February 2020** ## **J U D G M E N T** The case set up in this writ petition civil are as follows: That 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. Eventhough, the quarry is situated beyond 10 km from a wildlife sanctuary, clearance is being insisted upon on the ground that the buffer zone of a wildlife sanctuary (which is beyond 10 km from the wildlife sanctuary) is situated within 10 km. The requirement of obtaining a clearance from the 2[nd] respondent arises only in cases where activities are carried out within 10 km of a National Park/Wildlife Sanctuary. There is no requirement either under a statute or by a judicial pronouncement which requires any clearance from the 2[nd] respondent for activities that are carried out beyond 10 km of a National Park/Wildlife Sanctuary. The main contentions urged by the petitioner in this case are as follows: a. Ext.P3 is illegal, arbitrary and highly unjustifiable and opposed to law and violative of Article 19(1)(g) of the Constitution of India. b. The requirement of obtaining a clearance from the 2[nd] **WP(C).No.4377 OF 2020(V)** **4** respondent arises only in cases where activities are carried out within 10 km of a National Park/Wildlife Sanctuary. There is no requirement either under a statute or by a judicial pronouncement which requires any clearance from the 2[nd] respondent for activities that are carried out beyond 10 km of a National Park/Wildlife Sanctuary. c. Ext.P4 clearly shows that petitioner's quarry is situated beyond 10 kms from parambikula Wildlife Sanctuary. The fact that the unit is situated at a distance of 6.629 km from the Reserve Forest (buffer zone of Parambikulam Wildlife Sanctuary) cannot be a reason to compel the petitioner to obtain clearance from the 2[nd] respondent. There is absolutely no statutory/judicial backing for such insistence. In such circumstances, petitioner is not obliged under any law to obtain any clearance from any authority. d. Ext.P3 notice directing the petitioner to stop the activity was issued without afforidng an opportunity of hearing to the petitioner. On this ground alone, Ext.P3 is liable to be set aside on account of violation of the principles of natural justice. e. Petitioner's unit is functioning with all the requisite licenses and permits, including an Environmental Clearance Certificate. The unit has been stopped on account of the illegal stop memo issued by the 6[th] respondent. **WP(C).No.4377 OF 2020(V)** **5** f. Several developemental activities are being effecteed due to the shortage of metal. In Kerala, rocks are scarce and it is essential for developmental activities that such rocks wherever available are put to fruitful use. Natural resources are essential for the development of the human race. Roads, railways, buildings all require metal for construction works. Unless quarrying is permitted, the same would affect human life prejudicially. Unless the supply is effected, public interest will suffer. 3. It is in the light of these averments and contentions, the petitioner has filed this writ petition with the following prayers. _I) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P3 and quash the same._ _ii) 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(a) and P1(b) licenses and Ext.P2 EC._ 4. Heard Sri.Bechu Kurian Thomas, learned Senior Counsel instructed by Sri. Enoch David Simon Joel, learned counsel for the petitioner and Sri. Nagaraj Narayanan, learned Special Government Pleader appearing for R3 to R6 and Sri. P. Vijayakumar, learned Assistant Solicitor General appearing for R1 and R2. 5. Sri. Bechu Kurian Thomas instructed by Sri. Enoch David Simon Joel, learned counsel for the petitioner would submit on the basis of instructions that it can be seen from internal page 2 of Ext.P4 through out **WP(C).No.4377 OF 2020(V)** **6** page 28 of the WP(c) that petitioner's name has been included therein as serial No.4 and that the distance between the petitioner's quarry and the notified Wildlife Sanctuary is 11.7 kms which is much beyond the threshold limit of 10 kms and further that the person shown as Sl. No.3 of Ext.P4(2) have approached this Court by filing WP(c) No.3243/2020 before this Court, in which this Court has rendered judgment on 06/02/2020 directing that the said person who is the single petitioner herein may approach the geologist concerned within two weeks and place all his documents and materials in support of his case, whereupon the respondent geologist concerned has been directed to take a considered decision on the said plea of the petitioner therein after affording reasonable opportunity of being heard to the petitioners therein as well as the competent officials of the Forest Department concerned within a period of one month therefrom. From a reading of the cause title of the said judgment dated 06/02/2020 rendered by this Court in WP(c) No.3243/2020, it seen that the said petitioner therein is Sl.No.3 of Ext.P4/2 in this WP(c). The said judgment dated 06/02/2020 in WP(c) No.3243/2020, reads as follows: “Petitioner, in the instant case, is a holder of licence/permit for conducting a quarry in the name and style TMT Granites Pvt. Ltd., in 5.0116 Hectares of land in Re-survey No.232 and 411 pt in Mangalam Dam Village in Palakkad District, approached this Court, aggrieved by the Ext.P3 notice issued by the 6[th] respondent - District Geologist, dated 09.10.2019. **WP(C).No.4377 OF 2020(V)** **7** 2. Vide the aforementioned Ext.P3 notice the petitioner was directed to stop all quarrying activity as the petitioner has not obtained clearance from the Standing Committee of the National Board for Wildlife alleging that the Wildlife Sanctuary is situated within 10Km. from the boundary of petitioner's unit. 3. Sri. Paul Jacob, the learned counsel for the petitioner, submits that the petitioner has been granted all licences and permits for conducting a quarry. Reliance has been placed on Lease Deed, Consent from the Pollution Control Board, Copy of D & O licence and Environmental Clearances (Exts.P1, P1(a), P1(b), P1(c) and P2). 4. The case of the petitioner would not be covered in the directions of the judgment of this Court in _**George C.G. and Others v. State of Kerala and Others**_ [2020(1)KHC 345]. In view of Exts.P4 and P5 it reveals that the quarry is situated at a distance of 10.398 km. from the Peechi Wildlife Sanctuary and the buffer zone of Parambikulam Wildlife Sanctuary at Nelliyampathy is situated at a distance of 6.432 km. The buffer zone cannot be taken into consideration as it would be beyond 10mtrs. Ext.P5, information dated 12.12.2019 received under the Right to Information act, discloses that the quarry is situated at a distance of 11.22 km. 5. Without commenting upon the authenticity of the aforementioned documents, I am of the view that the petitioner, instead of approaching this Court, ought to have approached the Geologist by relying upon the documents referred to above. 6. The learned counsel for the petitioner further submits that the petitioner would be satisfied if an appropriate direction is issued in case the petitioner approaches the Geologist, within a period of 2 weeks from the date of receipt of a certified copy of this judgment with all particulars and any additional documents for **WP(C).No.4377 OF 2020(V)** **8** effacing the effect of Ext.P3 notice. Accordingly, it is ordered that in case the petitioner approaches the Geologist within the time as noticed above, the Geologist shall take appropriate decision on such application, after affording an opportunity of hearing to the petitioner and the Forest Department, within a further period of one month. Writ petition is disposed of.” Accordingly, without getting into the merits of the controversy in any manner, it is ordered that the orders and directions already issued by this Court in the judgment dated 06/02/2020 in WP(c) No.3243/2020 will also regulate the case of the petitioner herein as well and the time limit stipulated therein will also be equally applicable. Consequently it is ordered that it is for the petitioner to immediately approach the 6[th] respondent District Geologist, Palakkad and may submit his written submissions in the matter along with the requisite materials and documents in support of his claim and thereafter the District Geologist will afford reasonable opportunity of being heard to the petitioner as well as to the Divisional Forest officer concerned and then may take a considered decision thereon within a period of one month from the date of receipt of the above said written submission along with a certified copy of this judgment. Petitioner may be afforded reasonable opportunity of being heard either in person or through authorized representative / counsel if any. The 6[th] respondent District Geologist will also ascertain and take into **WP(C).No.4377 OF 2020(V)** **9** account, the considered views that may be offered in the matter by the Divisional Forest Officer (Nenmara) in the matter. To facilitate ordinate action this regard, it is ordered that the Divisional Forest Officer, Nenmara will be at liberty to submit a written submission/report before the 6[th] respondent District Geologist and in case the said officer has an inconvenience to attend to personal hearing, then he may depute a competent subordinate officer concerned to attend to personal hearing. With these observations and directions, the above writ petition (civil) will stand disposed of. **Sd/-** **ALEXANDER THOMAS** Nsd //true copy// PA to Judge **JUDGE** **WP(C).No.4377 OF 2020(V)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE QUARRYING PEERMIT DATED 03-06-2019 VALID TILL 31-03-2020 ISSUED TO THE PETITIONER** **EXHIBIT P1 A TRUE COPY OF THE CONSENT TO OPERATE THE QUARRY ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 28-11-2021** **EXHIBIT P1 B TRUE COPY OF THE D AND O LICENSE FOR THE PERIOD 2019-20** - **EXHIBIT P2 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 29-11-2018 ISSUED BY THE DEIAA, PALAKKAD** **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 30-11-2019 WITH NO. DOP/2086/2019/A1 ISSUED BY THE 6TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE INFORMATION DATED 12-122019 OBTAINED UNDER THE RTI ACT** **EXHIBIT P5 TRUE COPY OF THE OFFICE MEMORANDUM DATED 08-08-2019 WITH F.NO. 22-43/2018-IA.III ISSUED BY THE 1ST RESPONDENT.**