Shaji Joseph and Sijomon P.C. v. State of Kerala and Others (W.P.(C) Nos.19657 of 2021 and 21767 of 2021)

W.P.(C)Nos.19657 & 21767/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 WP(C) NO. 19657 OF 2021** ## **PETITIONERS:** |1|SHAJI JOSEPH| |---|---| ||AGED 47 YEARS| ||S/O. JOSEPH, VALIYAPARAMBIL HOUSE,| ||KALATHUKADAVU P. O., THALAPPALAM VILLAGE,| ||MEENACHIL TALUK, KOTTAYAM DISTRICT.| |2|SIJOMON P. C.| ||AGED 40 YEARS| ||S/O. CHACKO P. M., PARAMTHOTTU HOUSE,| ||KALATHUKADAVU P. O., THALAPPALAM VILLAGE,| ||MEENACHIL TALUK, KOTTAYAM DISTRICT.| ||BY ADV SRI P.C.HARIDAS| |**RESPONDENTS:**|| |1|STATE OF KERALA| ||REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF| ||REVENUE, GOVERNMENT SECRETARIAT,| ||THIRUVANANTHAPURAM - 695 001.| |2|THE STATE ENVIRONMNET IMPACT ASSESSMENT AUTHORITY| ||SEIAA, KERALA)| ||K.S.R.T.C. BUS STAND TERMINAL COMPLEX, 4TH FLOOR,| ||THAMBANOOR, THIRUVANANTHAPURAM - 695 001.,| ||REPRESENTED BY ITS MEMBER SECRETARY.| |3|THE MEMBER SECRETARY| ||THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY| ||(SEIAA, KERALA), K.S.R.T.C. BUS STAND TERMINAL| ||COMPLEX, 4TH FLOOR, THAMBANOOR,| ||THIRUVANANTHAPURAM - 695 001.| |4|THE KERALA STATE LEVEL EXPERT APPRAISAL COMMITTEE| ||(SEAC)| ||THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY| ||(SEIAA, KERALA), K.S.R.T.C. BUS STAND TERMINAL| ||COMPLEX, 4TH FLOOR, THAMBANOOR, THIRUVANANTHAPURAM -| ||695 001., REPRESENTED BY ITS CHAIRMAN.| W.P.(C)Nos.19657 & 21767/2021 2 5 THE THALAPPULAM GRAMA PANCHAYAT PLASSANAL P. O., KOTTAYAM DISTRICT - 686579, REPRESENTED BY ITS SECRETARY. 6 THE SUB INSPECTOR OF POLICE, ERATTUPETTA, KOTTAYAM DISTRICT - 686121. 7 TOMY THOMAS S/O. THOMAS, PULICKAL HOUSE, KALATHUKADAVU P. O., THALAPPALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686579. BY ADVS. R5 BY SRI GEORGEKUTTY MATHEW R1 & R6 BY GOVT.PLEADER SRI B.S.SYAMANTHAK R7 BY SRI JOBI JOSE KONDODY R2 TO R4 BY SRI M.P.SREEKRISHNAN (SC) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.03.2022,ALONG WITH WPC.21767/2021, THE COURT ON 11.3.2022 DELIVERED THE FOLLOWING: W.P.(C)Nos.19657 & 21767/2021 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** ## **WP(C) NO. 21767 OF 2021** ## **PETITIONER:** TOMY THOMAS AGED 54 YEARS KOTTAYAM - 686 579. BY ADVS. SRI JOBI JOSE KONDODY SRI P.DEEPAK ## **RESPONDENTS:** 1 THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA, KERALA) REPRESENTED BY ITS MEMBER SECRETARY, KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANUR, THIRUVANANTHAPURAM - 695 001. 2 THE MEMBER SECRETARY STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY SEIAA, KERALA), KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANUR, THIRUVANANTHAPURAM - 695 001. 3 THE KERALA STATE LEVEL EXPERT APPRAISAL COMMITTEE (SEAC) REPRESENTED BY ITS CHAIRMAN, THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA, KERALA), KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANUR, THIRUVANANTHAPURAM - 695 001. 4 K.G.ANILKUMAR AGED 56 YEARS S/O.GOPINATHAN NAIR, KIZHAKKEMALA PROTECTION COUNCIL, KALLARAYATHU HOUSE, THALAPPALAM, PLASSANAL P.O., KOTTAYAM - 686 579. W.P.(C)Nos.19657 & 21767/2021 4 ## **ADDL.R5 IMPLEADED** 5 ADDL.R5 THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, PARYAVARAN BHAWAN, C.G.O COMPLEX, LODHI ROAD, NEW DELHI - 110 003, REPRESENTED BY ITS SECRETARY. [ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 25.01.2022 IN WP(C) 21767/2021] BY ADVS. R1 TO R3 BY SRI M.P.SREEKRISHNAN R4 BY SRI P.B.SAHASRANAMAN (SR.) SRI T.S.HARIKUMAR R5 BY SRI S.MANU (ASGI) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.03.2022, ALONG WITH WPC 19657/2021, THE COURT ON 11.3.2022 DELIVERED THE FOLLOWING: W.P.(C)Nos.19657 & 21767/2021 5 **T.R.RAVI, J. ----------------------------W.P.(C)Nos.19657 & 21767 of 2021 ------------------------------Dated this the 11th day of March, 2022** ## **JUDGMENT** W.P.(C)No.21767 of 2021 has been filed praying to quash Ext.P20 minutes of the 1st respondent and for a direction to the 1st respondent to comply with the directions contained in Exts.P7 and P16 judgments of this Court untrammeled by the pendency of O.A.No.76/2021 before the National Green Tribunal, Southern Zone, Chennai and for consequential directions. 2. W.P.(C)No.19657 of 2021 has been filed praying for a direction to respondents 2 to 4 to take steps to complete the proceedings before them in respect of the quarry of the petitioner in W.P.(C)No.21767 of 2021 and to ensure that the petitioner does not conduct quarry or crusher unit without environmental clearance from the 2nd respondent and other clearances/consents/licenses from lawful authorities. As the above two writ petitions relate to the functioning of the very same quarry, they are being heard and disposed of together. The reference to the Exhibits and the parties are as in W.P.(C)No.21767 of 2021, unless otherwise specified. 3. The petitioner was granted an environmental clearance (EC) W.P.(C)Nos.19657 & 21767/2021 6 on 4.3.2016 which has been produced as Ext.P1. Ext.P1 was valid for a period of five years and the period has now expired. He had also been granted Ext.P2 quarrying lease dated 27.5.2016, which is valid till 26.5.2028. When the necessary licence was not being issued by the Panchayat, the petitioner approached this Court by filing W.P. (C)No.15505 of 2016, which ultimately resulted in Ext.P6 judgment rendered by a Full Bench of this Court. The Full Bench of this Court in **Tomy Thomas v. State of Kerala** reported in **[2019 (3) KLT 987]** held that after the amendment of Section 233 of the Kerala Panchayat Raj Act, 1994 in 2018, the Panchayat was obliged to grant permissions in cases where the authorities mentioned under Section 233 of the Act had issued such permissions or consents or No Objection Certificates. The Full Bench relegated the writ petition to be heard by the Single Judge. It is categorically held that after the amendment, the option to refuse a permit is no longer available with the Panchayat. While so, on a report received from the Sub Inspector of Police, Erattupetta, the 1st respondent issued a stop memo directing the petitioner to stop quarrying activities. The stop memo is dated 22.9.2016 and has been produced as Ext.P5. The petitioner had challenged Ext.P5 before this Court in W.P.(C)No.31684 of 2016 which was disposed of by Ext.P7 judgment dated 4.10.2019. It can be seen from Ext.P7 that the writ petition was disposed of along with W.P.(C)Nos.15505 of 2016 and W.P.(C)Nos.19657 & 21767/2021 7 25529 of 2019. This Court directed the 1st respondent to finalise the proceedings pertaining to Ext.P5 stop memo after affording an opportunity of hearing to the petitioner and the petitioners in W.P. (C)No.25529 of 2019 and the 8th respondent in W.P.(C)No.31684 of 2016. W.P.(C)No.15505 of 2016 was disposed of based on the judgment of the Full Bench. W.A.No.2566 of 2019 filed against the judgment in W.P.(C)No.25529 of 2019 was dismissed by a Division Bench with liberty to the appellants therein to challenge the validity of amendments brought into the Environmental Impact Assessment Notification, 2006 (EIA, 2006). 4. The 1st respondent, after the directions issued by this Court in Ext.P7 judgment, considered the matter and decided to forward the relevant documents collected during the hearing of SEAC for fresh field inspection and report after notice to the interested parties. The SEAC at its meeting held on 13th and 14th January 2020 directed the petitioner to carry out a study on the impact of blasting on nearby structures and nuisance while transportation of the mined material. When orders were getting delayed, the petitioner filed W.P.(C)No.14072 of 2020 seeking directions to the 1st respondent to finalise the stop memo proceedings. It was pointed out in the said writ petition that after the earlier directions, the 1st respondent SEIAA had enquired into the aspect and had sought to assess several parameters which cannot be done without W.P.(C)Nos.19657 & 21767/2021 8 functioning the quarry. This Court accepted the above contention and by Ext.P15 judgment, quashed the stop memo dated 22.9.2016 and permitted the petitioner to temporarily function the quarry strictly in accordance with the terms and conditions of quarrying lease, explosive licence, statutory consent of the State Pollution Control Board and the EC granted by the respondents. The respondents were directed to monitor the functioning of the quarry and to see whether any of the terms are violated and to ensure that the parameters which were called for are obtained. The temporary functioning of the quarry was permitted till final orders are passed in the matter in accordance with the judgment Ext.P7. Ext.P15 judgment was challenged in W.A.Nos.1392 of 2020 and 1393 of 2020. By judgment Ext.P16 dated 22.10.2020, this Court disposed of the appeals without interfering with the directions given in Ext.P15 judgment. 5. According to the petitioner, without disclosing the proceedings before this Court, an Original Application was filed as O.A.No.76/2021 before the National Green Tribunal, Southern Zonal Bench, Chennai (NGT) wherein it was complained that operating of the quarry is without any valid licence and the petitioner is liable to be prosecuted. The petitioner appeared before the NGT and produced Exts.P15 and P16 judgments. The grievance of the petitioner is that the NGT was continuing with the proceedings even after coming to know W.P.(C)Nos.19657 & 21767/2021 9 that the persons before the NGT had already approached this Court. Pending the proceedings before the NGT, the SEAC considered the case of the petitioner in its meeting held from 27th to 30th July, 2021. The Committee found that quarrying in the location as per the approved mining plan is feasible subject to the conditions laid down in the EC which had been issued earlier along with certain additional conditions which had been stated by the SEAC and recorded in the minutes. Ext.P19 is the minutes of the meeting containing the conditions. Even though the recommendation of the SEAC had been received, the 1st respondent in its meeting held on 14th, 15th and 16th September, 2021 decided to adjourn the case and wait for the final order of the NGT before proceeding further. 6. The counsel for the petitioner submits that even though he had been issued with a valid EC as early as on 4.3.2016, he has not been able to exploit the EC and the quarrying lease granted as per Ext.P2, owing to several litigations before different forums. This resulted in the expiry of the period of the EC on 4.3.2021 which stood extended by one year as per orders issued by the Central Government in the Ministry of Environment and Forest extending the period of EC by one year. It is pointed out that even the extended period is now over. It is further pointed out that the NGT has on 6.12.2021 closed the original application after recording the recommendations of the SEAC W.P.(C)Nos.19657 & 21767/2021 10 which had been placed before the NGT in the form of a report by the 1 st respondent. The NGT directed that the 1st respondent may take further action in the matter in accordance with law. Since the 1 st respondent had not been reconstituted after its term was over, the matter was pending without a decision. The counsel points out that the 1st respondent has now been reconstituted and they can now take a decision on the stop memo as has been directed by this Court in Ext.P7 judgment and confirmed by Ext.P8 judgment by the Division Bench. It is submitted that once a decision is taken on the stop memo, and if it is in favour of the petitioner, the 1st respondent will have to consider granting extension of the EC in accordance with Clause 9 of the EIA, 2006. 7. Having regard to the entire facts, the contentions and prayers put forward by the counsel for the petitioner is fully justified. The writ petition (W.P.(C)No.21767 of 2021) is hence disposed of directing the 1st respondent to finalise Ext.P5 stop memo as directed by this Court in Ext.P7 judgment, in the light of the recommendations made by the SEAC as evident from Ext.P19 minutes. The decision shall be taken within one month from today and communicated to the petitioner. The petitioner shall within 10 days from receiving the communication, if the decision is to revoke the stop memo, submit the application in Form 1 as required under EIA, 2006 for the purpose of W.P.(C)Nos.19657 & 21767/2021 11 extension of the environmental clearance granted as per Ext.P1. The 1 st respondent shall on receipt of such an application consider the extension in terms of Clause 9 of EIA, 2006 and pass orders within one month therefrom. 8. In view of the directions above, no further orders are required in W.P.(C)No.19657 of 2021 and the judgment in W.P. (C)No.21767 of 2021 will be applicable to the said writ petition also. **T.R.RAVI JUDGE** dsn W.P.(C)Nos.19657 & 21767/2021 12 ## **APPENDIX OF WP(C) 19657/2021** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE ENVIRONMENTAL ASSESSMENT| ||REPORT DATED 17.05.2012.| |Exhibit P2|TRUE COPY OF THE ENVIRONMENTAL CLEARANCE| ||NO.24/2016 DATED 04.03.2016 ISSUED TO THE| ||7TH RESPONDENT.| |Exhibit P3|TRUE COPY OF THE JUDGMENT DATED 04.10.2019| ||IN W.P.(C) NO.15505/2016.| |Exhibit P4|TRUE COPY OF THE JUDGMENT DATED 10.10.2020| ||IN W.P.(C) NO.14072/2020.| |Exhibit P5|TRUE COPY OF THE JUDGMENT DATED 22.10.2020| ||IN THE W.A. NO.1392/2020 AND CONNECTED| ||CASE.| |Exhibit P6|TRUE COPY OF THE REPRESENTATION DATED| ||03.02.2021 OF THE 1ST PETITIONER.| |Exhibit P7|TRUE COPY OF REPLY DATED 17.02.2021 GIVEN| ||TO EXHIBIT P6.| |Exhibit P8|TRUE COPY OF THE REPRESENTATION DATED| ||08.09.2021 SUBMITTED BY THE PETITIONERS TO| ||THE 2ND RESPONDENT.| |**RESPONDENT EXHIBITS**|| |Exhibit R7 A|A TRUE COPY OF THE GAZATTEE OF INDIA DATED| ||18.1.12021 WHEREBY THE MOEF AND CC| ||EXTENDED THE VALIDITY PERIOD OF THE| ||EXISTING ENVIRONMENTAL CLEARANCE FOR A| ||PERIOD OF ONE YEAR| |Exhibit R7 B|A TRUE COPY OF THE MINUTES OF THE MEETING| ||OF THE 2ND RESPONDENT DATED 14TH TO 16TH| ||SEPTEMBER, 2021 RATIFYING EXHIBIT R7| |Exhibit R7 C|A TRUE COPY OF THE RELEVANT PAGE OF| ||MINUTES OF THE MEETING OF THE 2ND| ||RESPONDENT DATED 14TH TO 16TH SEPTEMBER,| ||2021 RATIFYING EXHIBIT R7 A| W.P.(C)Nos.19657 & 21767/2021 13 ## **APPENDIX OF WP(C) 21767/2021** |**APPENDIX OF WP(C) 21767/2021**|**APPENDIX OF WP(C) 21767/2021**| |---|---| |PETITIONER EXHIBITS|| |Exhibit P1|A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE| ||DATED 04/03/2016 ISSUED BY THE 1ST RESPONDENT| ||TO THE PETITIONER.| |Exhibit P2|A TRUE COPY OF THE QUARRYING LEASE EXECUTED BY| ||THE PETITIONER AND THE STATE GOVERNMENT UNDER| ||THE PROVISIONS OF THE KERALA MINOR MINERAL| ||CONCESSION RULES, 2015 DATED 27/05/2016 HAVING| ||VALIDITY UPTO 26/05/2028.| |Exhibit P3|A TRUE COPY OF THE INTERIM ORDER DATED| ||26/04/2016 PASSED BY THE LEARNED SINGLE JUDGE| ||OF THIS HONOURABLE COURT IN W.P.(C) NO.15505| ||OF 2016| |Exhibit P4|A TRUE COPY OF THE REFERENCE ORDER DATED| ||20/09/2016 PASSED BY THE LEARNED SINGLE JUDGE| ||OF THIS HONOURABLE COURT IN W.P.(C) NO.15505| ||OF 2016.| |Exhibit P5|A TRUE COPY OF THE ORDER DATED 22/09/2016| ||ISSUED BY THE FIRST RESPONDENT TO THE| ||PETITIONER.| |Exhibit P6|A TRUE COPY OF THE FULL BENCH JUDGMENT| ||REPORTED IN 2019(3) KLT 987 (FB) (TOMY THOMAS| ||VS. STATE OF KERALA) DECIDED ON 30/08/2019.| |Exhibit P7|A TRUE COPY OF THE COMMON JUDGMENT DATED| ||04/10/2019 PASSED BY THE LEARNED SINGLE JUDGE| ||IN WP(C) NOS.15505 OF 2016, 31684 OF 2016 AND| ||25529 OF 2019.| |Exhibit P8|A TRUE COPY OF THE JUDGMENT DATED 08/01/2020| ||PASSED BY THE DIVISION BENCH OF THIS| ||HONOURABLE COURT IN W.A.NO.2566 OF 2019.| |Exhibit P9|A TRUE COPY OF THE RELEVANT PAGES OF THE| ||MINUTES OF THE MEETING OF THE FIRST RESPONDENT| ||HELD ON 21ST AND 22ND NOVEMBER 2019.| |Exhibit P10|A TRUE COPY OF THE RELEVANT PAGES OF THE| ||MINUTES OF THE MEETING OF THE FIRST RESPONDENT| ||HELD ON 23RD AND 24TH DECEMBER, 2019.| |Exhibit P11|A TRUE COPY OF THE RELEVANT PAGES OF THE| ||MINUTES OF THE 108TH MEETING OF THE SEAC| ||KERALA HELD ON 13TH AND 14TH JANUARY, 2020.| |Exhibit P12|A TRUE COPY OF THE JUDGMENT DATED 27/05/2020| W.P.(C)Nos.19657 & 21767/2021 14 ||PASSED BY THE LEARNED SINGLE JUDGE OF THIS|PASSED BY THE LEARNED SINGLE JUDGE OF THIS|PASSED BY THE LEARNED SINGLE JUDGE OF THIS| |---|---|---|---| ||HONOURABLE COURT IN WP(C) NO.5897 OF 2020.||| ||Exhibit P13<br>A TRUE COPY OF THE RELEVANT PAGES OF THE||| ||MINUTES OF THE 111TH MEETING OF||THE SEAC| ||KERALA HELD ON 2-4 JUNE , 2020.||| ||Exhibit P14<br>A TRUE COPY OF THE ORDER DATED 30/06/2020||| ||ISSUED BY THE FIRST RESPONDENT TO THE||| ||PETITIONER.||| ||Exhibit P15<br>A TRUE COPY OF THE JUDGMENT DATED 10/08/2020||| ||PASSED BY THE LEARNED SINGLE JUDGE OF THIS||| ||HON'BLE COURT IN WP(C) NO.14072/2020.||| ||Exhibit P16<br>A TRUE COPY OF THE COMMON JUDGMENT DATED||| ||22/10/2020 PASSED BY THE LEARNED DIVISION||| ||BENCH OF THIS HON'BLE COURT IN||| ||W.A.NO.1392/2020 AND 1393/2020.||| ||Exhibit P17<br>A TRUE COPY OF THE ORIGINAL APPLICATION||| ||NO.76/2021 DATED 18/02/2021 FILED BY THE 4TH||| ||RESPONDENT BEFORE THE NATIONAL GREEN TRIBUNAL||| ||(SOUTHERN ZONE), CHENNAI WITHOUT ANNEXURES.||| ||Exhibit P18<br>A TRUE COPY OF THE REPLY STATEMENT FILED BY||| ||THE PETITIONER DATED 29/03/2021||WITHOUT| ||ANNEXURES BEFORE THE NATIONAL|GREEN TRIBUNAL.|| ||Exhibit P19<br>A TRUE COPY OF THE RELEVANT PAGES OF THE||| ||MINUTES OF 123TH MEETING OF THE||SEAC KERALA ON| ||27TH TO 30TH JULY, 2021.||| ||Exhibit P20<br>A TRUE COPY OF THE RELEVANT PAGES OF MINUTES||| ||OF THE 112TH MEETING OF THE STATE LEVEL||| ||ENVIRONMENT IMPACT ASSESSMENT|AUTHORITY|| ||(SEIAA, KERALA) DATED 14TH TO|16TH SEPTEMBER,|| ||2021.||| ||**RESPONDENTS' EXTS**<br>**:**||| ||EXT.R4(A):<br>TRUE PHOTOSTAT COPY OF ORDER OF||THE NATIONAL| ||GREEN TRIBUNAL SOUTHERN ZONAL|BENCH, CHENNAI IN|| ||O.A.No.76 OF 2021 DT.1.3.2021.||| ||EXT.R4(B):<br>TRUE PHOTOSTAT COPY OF THE PETITION IA No.147||| ||OF 2021 IN OA No.76/2021 OF THE||NATIONAL GREEN| ||TRIBUNAL DT.20TH SEPTEMBER, 2021||| ||EXT.R4(C):<br>TRUE ROUGH SKETCH OF THE CROSS SECTION OF||| ||KIZHAKKEMALA THROUGH EAST WEST DIRECTION,||| ||PREPARED BY THE 4TH RESPONDENT DT.NIL.|||