REJI PROTHASIS v. MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGES and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 07TH DAY OF FEBRUARY 2020 / 18TH MAGHA, 1941** ## **WP(C).No.21444 OF 2019(E)** ## **PETITIONER:** **REJI PROTHASIS AGED 53 YEARS S/O.PROTHASIS,KOONINACKAL HOUSE, ATHIRAMPUZHA.P.O,KOTTAYAM DISTRICT-686562.** **BY ADV. SRI.MANOJ P.KUNJACHAN** ## **RESPONDENTS:** - **1 MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGES REP.BY ITS SECRETARY,NIRMAN BHAVAN, NEW DELHI,CHANAKYAPURI-110011.** - **2 GEOLOGIST,** **DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION,KAKKANADU,ERNAKULAM DISTRICT-682030.** - **3 SECRETARY, POTHRIKKA GRAMA PANCHAYATH, POOTHRIKKA.P.O,ERNAKULAM DISTRICT-682308.** **BY ADV. MR.K.K.SETHUKUMAR, CGC BY GOVERNMENT PLEADER BY SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **GP SRI PAUL ABRAHAM VAKKANAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.21444 OF 2019(E)** **2** ## **JUDGMENT** The petitioner is the owner in possession of a land having an extent of 36.42 Ares of property comprised of in Re.Sy.Nos.269/1-3 and 269/1-5 of Aikaranadu South Village. For constructing a villa petitioner submitted an application for issuance of the building permit to the 3[rd] respondent (hereinafter called the Panchayath) having a plinth area of 1162.8 square metres. Learned counsel appearing on behalf the petitioner submits that the necessary particular for obtaining the permit were also enclosed. Simultaneously, an application for obtaining the development permit was also submitted, which was issued on 08.07.2019 vide Ext.P4. In the meantime even the building permit dated 26.07.2019 (Ext.P2) was issued. The grievance of the petitioner in the instant case is to the limited extent of the imposition of a condition in the development permit for obtaining Environmental Clearance. He submitted that as per the Environmental Impact Assessment Notification of 2006, was issued by the Government of India under the Environmental Protection Act and Rules, the permission under the aforementioned provisions is mandatorily **WP(C).No.21444 OF 2019(E)** **3** required for an area is more than twenty thousand square metres but for not less than that. Once the area in this case is 1162.8 square metres the impugned condition in the development plan is not sustainable. In support of the aforementioned contentions reliance has been laid to the judgment of the Division Bench of this Court in _**District Geologist Department of Mining and Geology, Thissur and Others v. Sivaraman and Others**_ [2019 (5) KHC 929]. 2. Per contra learned counsel appearing for the Panchayath supports the impugned condition on the premise that the Environmental Clearance is pre-requisite for the purpose of undertaking the task of project for establishing villas owing to the involvement of the construction material. No harm and prejudice is caused for obtaining the permission thus urged this Court for dismissal of this writ petition. 3. Similar in the contention of Mr.Paul Abraham Vakkanal, learned Government Pleader, but he submits that other prayer of the petitioner for issuance of an appropriate direction to the Geologist for considering the request Ext.P6 for issuing transit passes and quarrying permit is not in the **WP(C).No.21444 OF 2019(E)** **4** prescribed form and therefore, intervention of this Court is not warranted. 4. In rebuttal, the counsel for the petitioner submits that his client would not be averse in submitting the application in a prescribed form along with necessary documents as required under the statutes and Rules ie. Minor and Mineral Concession Acts and Rules framed thereunder. 5. Having heard the learned counsel for the parties, perused the paper book and record, I am of the view that the impugned condition in the development plan Exts.P4 and P5 commanding the petitioner to obtain the Environmental Clearance is _ex facie_ not sustainable in the eyes of law. The controversy involving the similar question has already been pondered by the Division Bench of this court in the judgment referred (supra). It would be apt to produce paragraph 9 of the judgment, same reads as thus: 9. The Notification issued by the Government of India in exercise of the power vested under S.3(2)(ii) of the Environmental (protection) Act, 1986, specifically enumerates the activities for which there is requirement of getting prior environmental clearance from the concerned Regulatory Authority. The list of projects or activities **WP(C).No.21444 OF 2019(E)** **5** requiring such environmental clearance is scheduled in the Notification. Serial No.8 in the schedule deals with building or construction projects. It is specified that building which are having built area between the 20,000M2 and 1,50,000M2 alone need to get prior environmental clearance. Learned counsel appearing for the respondents had pointed out that, the Notification was amended through another Notification, dated 15/11/2018, wherein serial No.8(a) of the scheduled was amended to the extent of including building having built up area between 50,000M2 and 1,50,000M2. It is pointed out that, in the schedule itself it is explained that the term “built – up area” includes built – up or covered area on all the floors put together, including its basement and other service areas which are proposed in the buildings or construction. Further it is noticed that, in paragraph 7 of the Notification, specifically under paragraph 7(1) (B), it is stipulated that, those activities which are included in Appendix IX shall be exempted from obtaining prior environmental clearance. Item No.9 in Appendix IX is prescribes as “digging of foundation for building not requiring prior environmental clearance”. Therefore it is evident that, going by the terms of the Notification, total built – up area of the buildings in question involved in these cases, will fall under the exempted category, as per item No. 8(a) of the schedule of the Notification. Further, the activity intended is, excavation of earth for the purpose of digging of foundation, which will also fall within the exempted category under item No.IX; “ digging of foundations for building not requiring prior environmental clearance”. Therefore it is evident that the buildings involved in these cases will fall under the exempted **WP(C).No.21444 OF 2019(E)** **6** category as per item No.8(a) of the Schedule of the Notification. They will also fall within the exempted category under item No.IX of Appendix – IX. Hence we do not find any illegality or error with respect to the findings rendered by the learned Single Judge in directing consideration of the application for quarrying permit, without insisting upon production of any environmental clearance certificate. In the result, the writ appeals deserves no merit and the same are hereby dismissed. In view of dismissal of the writ appeals, learned Government Pleader appearing for the appellants sought indulgence to extend the time limit stipulated for consideration of the application, by a further period of two weeks from today. The request in this regard is hereby allowed.” For the reason aforementioned, I am of the view that the impugned condition is not sustainable as it is exempted. Rest of the conditions are directed to be complied with by the petitioner. Now coming to the second prayer of the petitioner for issuance of an appropriate direction to the geologist, since, the counsel has undertaken to submit an application under the relevant provisions of the Kerala Minor Mineral Concession Acts and Rules framed thereunder, it is directed that in case, such application is filed within a period of two weeks thereof from the receipt of certified copy of this judgment, the Geologist will **WP(C).No.21444 OF 2019(E)** **7** take a decision thereon in accordance with law within a period of one month thereafter, if necessary, after affording an opportunity of hearing. This writ petition will stand disposed of with the aforementioned observations. **Sd/-** nak **AMIT RAWAL JUDGE** **WP(C).No.21444 OF 2019(E)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER AIKARANADU SOUTH DATED 20.01.2018** **EXHIBIT P2** **TREU COPY OF THE BUILDING PERMIT DT.26.07.2019** **EXHIBIT P3 TRUE COPY OF THE APPROVED PLAN** - **EXHIBIT P4 TRUE COPY OF THE DEVELOPMENT PERMIT** - **EXHIBIT P5 TRUE COPY OF THE PLAN ATTACKED TO DEVELOPMENT PERMIT** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 2ND RESPONDENT DT.28.07.2019** - **EXHIBIT P7 TRUE COPY OF NOTIFICATION OF THE MINISTRY OF ENVIRONMENT,FOREST AND CLIMATE CHANGE DATED 15.11.2018** - **EXHIBIT P8** - **TRUE COPY OF THE JUDGMENT IN W.P(c)NO.12894 OF 2019 DATED 07.05.2019.** - **EXHIBIT P9 TRUE COPY OF THE NOTIFICATION DATED 15.1.2016** **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 4.4.2018 IN WPC NO 10931/2018** //TRUE COPY// P.A TO JUDGE