Saji M. Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE Ag. CHIEF JUSTICE MR.THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938** **RP.No. 412 of 2015** **----------------------------** **AGAINST THE JUDGMENT IN W.P(C).NO.7632/2014, DATED 23-03-2015** **------------------** **REVIEW PETITIONER(S)/PETITIONER :** **---------------------------------------------------------** **SAJI M. MATHEW, AGED 42 YEARS, S/O.M.P.MATHEW, MUTTHILAKATTIL HOUSE, ARYANKAVU (P.O), KOLLAM DISTRICT.** **BY ADVS.SRI.BECHU KURIAN THOMAS SRI.ENOCH DAVID SIMON JOEL** ## **RESPONDENT(S)/RESPONDENTS :** **----------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY SPECIAL SECRETARY TO THE GOVERNMENT (IP), INDUSTRIES (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004.** **3. THE GEOLOGIST, MINING AND GEOLOGY DISTRICT OFFICE, KESAVA NIKETHAN, ASRAMAM (P.O), KOLLAM-691 002.** **4. THE ADDITIONAL PRINCIPAL CHIEF FOREST CONSERVATOR (PROTECTION) FOREST HEAD QUARTERS, THIRUVANANTHAPURAM-695 001.** **R1 TO R3 BY SR.GOVERNMENT PLEADER SRI.C.S.MANILAL R4 BY SPL. GOVT. PLEADER SRI.M.P.MADHAVANKUTTY** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 24-05-2016, THE COURT ON 02-06-2016 PASSED THE FOLLOWING:** Msd. ## **THOTTATHIL B. RADHAKRISHNAN, Ag.C.J. & A.M. SHAFFIQUE, J.** =========================== R.P.No.412 of 2015 in W.P. (C) No. 7632 of 2014 ================== Dated this, the 2[nd] day of June, 2016 ## **O R D E R** ## _**Shaffique, J.**_ The review petition is filed by the petitioner in WP(C) No. 7632/2014 seeking to review common judgment dated 23/3/2015 in a batch of writ petitions which included a decision on merits in regard to the above writ petition. 2. The writ petitions came to be heard by this Court based on reference order of the learned Single Judge by which the Division Bench was called upon to decide basically on the requirement of obtaining environmental clearance for granting mining lease/permit for quarrying activities to be undertaken by various petitioners. The issue came to light soon after the judgment of the Apex Court in _**Deepak Kumar and Others v. State of Haryana**_ [(2012) 4 SCC 629] and the notifications issued by the Government of India, Ministry of Environment and R.P.No.412 of 2015 in W.P. (C) No. 7632 of 2014 -:2:- ## Forests under the Environment (Protection) Act, 1986. 3. The writ petition which is the subject matter of the above review petition was filed seeking to challenge Ext.P9, an order passed by the Government on 19/2/2014, cancelling the quarrying lease granted in favour of the petitioner. The facts involved would disclose that the petitioner was granted with a quarrying lease for a period of twelve years as per lease deed dated 10/3/2010. The lease was initially rejected against which a first appeal was filed. The first appellate authority found that the area do not come under ecologically fragile area and accordingly allowed the appeal. Thereafter, the lease was granted. The Forest Department preferred a second appeal alleging that the distance between Shenthuruni Forest Protection Centre and the proposed area is only 2.5 kms and that no objection certificate was not obtained from the Forest Department. It is stated that the Forest Department confined their challenge to the grant of permit stating that a minimum distance of 75 metres from the reserve forest has to be maintained for quarrying activities and that the quarrying materials should not be transported through forest areas. Accordingly, the second appeal was disposed of permitting R.P.No.412 of 2015 in W.P. (C) No. 7632 of 2014 -:3:- quarrying operations on certain conditions. Ext.P5 is the said order dated 26/4/2012. The contention of the petitioner is that after more than an year, on the basis of a letter issued by the 4[th] respondent, the 1[st] respondent by Ext.P6 order dated 10/6/2013 reviewed the earlier order observing that mining operations cannot be carried out without environmental clearance from State Level Environment Impact Assessment Authority and mining activity would be in violation of the judgment of the Supreme Court. The judgment referred to was _**Deepak Kumar**_ (supra). Petitioner filed WP(C) No. 16940/2013 challenging Ext.P6 and by judgment dated 27/5/2013, this Court directed the 1[st] respondent to pass fresh orders after hearing the parties. It is pursuant to the said direction that Ext.P9 order had been issued. 4. While answering the reference as per the judgment under review, this Court also examined the factual background of the case and in para 78, it is held as under: _“78. Writ Petition No.7632 of 2014 which is included in Group-III needs a separate consideration since in the said Writ Petition petitioner has prayed for quashing Ext.P9 Government Order dated 19.2.2014 by which the State cancelled the quarry permit granted to the petitioner. Petitioner was_ R.P.No.412 of 2015 in W.P. (C) No. 7632 of 2014 -:4:- _granted quarrying lease on 10.3.2010 for ten years to extract building stones from one acre of land in Sy.No.577/1 part. Initially the application was rejected on 18.4.2009 against which appeal was filed which was allowed by the Joint Secretary of the State of Kerala. The Forest Department had preferred a Second Appeal before the 1[st] respondent where objection was taken that distance between Shenthurni Wild Life Protection Centre and the proposed site is only 2.5 kms. and no-objection from the Forest department was never obtained. The Second Appeal was disposed on certain undertakings. The State Government has cancelled the mining lease on 10.6.2013. Petitioner filed a Writ Petition No.16940 of 2013 where this court set aside the order the State Government and directed the Government to pass fresh order. Now the Government has passed a fresh order on 19.2.2014 whereby the Government held that quarrying lease would stand cancelled. The Government in its order noted that property is lying in the midst of reserved forest covered with variety of endemic flora and fauna. It was further held that land in this area is covered by Aryankavu Village, which is one of the 123 Villages notified as EFA in the Kasthurirangan Report. The Forest Department from the very beginning raised objection regarding running of the quarry. The Village having been included in one of the Villages of 123 Villages notified and the Forest Department of the State having not given no objection, the decision of the_ R.P.No.412 of 2015 in W.P. (C) No. 7632 of 2014 **==> picture [21 x 9] intentionally omitted <==** _State Government in cancelling the lease cannot be faulted.”_ The contention urged in the review petition is that the petitioner's contention regarding validity of Ext.P9 was not examined. According to the petitioner, though there is reference to letter dated 15/1/2014 of Additional Principal Chief Conservator of Forests (Protection) Forest Headquarters in the impugned order, Ext.P9, no such material was furnished to the writ petitioner. That apart, such an issue was never projected during the earlier round of consideration regarding the validity of the permit granted in terms of Ext.P1. The objections raised by the forest department were duly considered and decided in terms of Ext.P5 and there was no reason for reconsidering the same based on other materials which were not provided to the petitioner which resulted in violation of principles of natural justice and it is appropriate that the matter is reheard after recalling the said judgment. 5. Counter affidavit is filed by the 4[th] respondent in the review petition _inter alia_ contending that after direction was issued by this Court as per judgment dated 25/7/2013 in WP(C) R.P.No.412 of 2015 in W.P. (C) No. 7632 of 2014 -:6:- No. 16940/2013, petitioner as well as various departmental officials were heard. The officials of the Forest Department had orally made submission regarding the environmental hazards that may occur if the quarrying starts functioning. Oral submission was made regarding the importance of the location where the quarry was functioning which is within the reserve forest. The Government Secretary after hearing the matter directed the Forest Department to submit the submissions in writing. It is pursuant to the same that letter dated 15/1/2014 was issued. It is therefore contended that no prejudice has been caused to the review petitioner on account of the submission of letter dated 15/1/2014 as the entire issues relating to the same were argued during the time of hearing. That apart, in para 5 of the counter affidavit, the 4[th] respondent has narrated the ecological importance and the wild life movement in the said area. It is submitted that if any quarrying activity is conducted in the said area, it may affect the wild life movement and also cause danger to the biodiversity. 6. In the light of the aforesaid submissions, we do not think that non supply of letter dated 15/1/2014 has caused any R.P.No.412 of 2015 in W.P. (C) No. 7632 of 2014 **==> picture [21 x 9] intentionally omitted <==** prejudice to the petitioner and therefore the contention that there is violation of principles of natural justice is unfounded. As already stated and as extracted above, in the judgment, this Court has considered the validity of Ext.P9 Government Order. The reason stated therein has been upheld for reasons stated therein. 7. Having heard the learned senior counsel appearing for the review petitioner and the learned Government Pleader, we are of the view that there is no violation of natural justice in passing Ext.P9 order. No grounds are made out to review the aforesaid judgment. Review petition is dismissed. ## **THOTTATHIL B. RADHAKRISHNAN, Ag.C.J.** ## **A.M. SHAFFIQUE, JUDGE** Rp