V.J. Chacko v. State Level Environment Impact Assessment Authority (SEIAA), Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` MONDAY, THE 19[TH] DAY OF JUNE 2023 / 29TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 10552 OF 2023`** ## **`PETITIONER`** ``` V.J.CHACKO, AGED 55 YEARS MANAGING PARTNER, M/S. PARLIKKAD GRANITES, VADAKKETHALA PINDANIHOUSE, CHETTUPUZHA P.O, THRISSUR, PIN - 680012 ``` ``` BY ADV BINU PAUL ``` ## **`RESPONDENTS:`** - **`1 STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA), KERALA, 4TH FLOOR, KSRTC BUS TERMINAL COMPLEX, TRIVANDRUM REPRESENTED BY ITS MEMBER SECRETARY, PIN - 695001`** - **`2 THE CHIEF WILD LIFE WARDEN, FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695014`** - **`3 DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, CHEMPUKAVU, THRISSUR, PIN - 680020`** ``` BY ADVS. M.P.SREEKRISHNAN BINU PAUL ``` ## **`SR.GP-AMMINIKKUTTY`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.10552 OF 2023 ``` ``` 2 ``` **JUDGMENT** Dated this the 19[th] day of June, 2023 The petitioner, who is engaged in quarrying and mining in Wadakkancherry Village in Thalappilly Taluk of Thrissur District, has filed this writ petition seeking to command the 3[rd] respondent to consider Ext.P5 and to grant Quarrying Permit to the petitioner without insisting for SCNBWL Clearance. 2. The petitioner submitted application on 26.12.2012 for grant of Quarrying Permit to the Geologist, Mining and Geology. The 3[rd] respondent informed the petitioner that his application for Quarrying Permit can be issued only after clearance from the Standing Committee of the National Board of Wild Life (SCNBWL). 3. The petitioner states that the petitioner's Quarry is situated more than 6.7 kilometers away from the Eco Sensitive ``` WP(C) NO.10552 OF 2023 ``` ``` 3 ``` Zone of Peechi-Vazhani Wildlife Sanctury. Therefore, the proposed buffer Zones identified and demarcated will not take in the quarrying area of the petitioner. The petitioner pointed out that recently the Hon'ble Apex Court in **T.N.Godavarman Thirumulpad v. Union of India** [2022 (3) KLT 739 (SC)] has held that the restriction applicable to ESZ is confined to the proposed area only. 4. In view of the judgment of the Apex Court, the stand taken by the District Geologist cannot stand the scrutiny of law. The 3[rd] respondent is compellable to grant quarrying lease to the petitioner without insisting for SCNBWL Clearance, contends the petitioner. 5. The Government Pleader entered appearance and resisted the writ petition. The Government Pleader pointed out that it is mandatory to take prior clearance from SCNBWL for the developmental activities/projects which fall within 10 Kilometres from the boundary of the National Parks and ``` WP(C) NO.10552 OF 2023 ``` ``` 4 ``` Sanctuaries, where the notification is only in the draft stage or no final notification is issued. Therefore, it cannot be said that the petitioner is eligible to get the Quarrying Lease. 6. In Ext.P7, the 2[nd] respondent-Chief Wildlife Warden would also indicate that the distance of the petitioner's Quarry is 6.7 Kilometres far from the Peechi-Vazhani Wild Life Sanctury. 7. The Senior Government Pleader submitted that the direction of the Apex Court given in the judgment in **T.N.Godavarman Thirumulpad** (supra) is that in the event of CEC, MOEF & CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues considers it necessary for maintaining wider or larger ESZ in respect of National Park or Wildlife Sanctuary, such body or individual shall approach the CEC. In such situation, the CEC shall be at liberty to examine the need of a wider ESZ in respect of any National ``` WP(C) NO.10552 OF 2023 ``` ``` 5 ``` Park or Wildlife Sanctuary in consultation with all the Stakeholders including the State or Union Territory concerned, MOEF & CC as also the Standing Committee of National Board of Wildlife and then approach the Apex Court with its recommendations. The Senior Government Pleader further submitted that the issue is pending before this Court and any order that may be passed in this writ petition will be subject to the decision of the Division Bench. 8. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents. 9. Ext.P8 notification dated 25.11.2020 would indicate that the extent of Eco-Sensitive Zone at various directions, in respect of Peechi-Vazhani is from 0 Kilometres to 2.1 Kilometres. The petitioner's quarry is 6.67 Kilometres away. 10. The Hon'ble Apex Court in **T.N.Godavarman** **Thirumulpad** (supra) gave the following directions: “ ``` WP(C) NO.10552 OF 2023 ``` ``` 6 ``` 44. We accordingly direct: (a) Each protected forest, that is national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9th February 2011 shall be strictly adhered to. For Jamua Ramgarh wildlife sanctuary, it shall be 500 metres so far as subsisting activities are concerned. (b) In the event, however, the ESZ is already prescribed as per law that goes beyond one kilometre buffer zone, the wider margin as ESZ shall prevail. If such wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular national park or wildlife sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained. (c) The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain responsible for proper compliance of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZS forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones. (d) Mining within the national parks and wildlife sanctuaries shall not be permitted. (e) In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as the 9th February 2011 Guidelines, such activities may ``` WP(C) NO.10552 OF 2023 ``` ``` 7 ``` continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ. (f) The minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned shall approach the CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, this Court shall pass appropriate order. (g) In the event the CEC, MoEF&CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues consider necessary for maintaining a wider or larger ESZ respect any national park or wildlife sanctuary, such body or individual shall approach the CEC. In such situation the CEC shall be at liberty examine the need of wider ESZ in respect of any national park wildlife sanctuary consultation with all the stakeholders including the State or Union Territory concerned, MoEF&CC as also the Standing Committee of National Board of Wildlife and then approach this Court with its recommendations. (h) In respect of sanctuaries or national parks for which the proposal of State or Union Territory has not been given, the 10 kilometres buffer zone as ESZ. as indicated the order passed by this Court on 4th December 2006 in the case Goa Foundation (supra) and also contained in ``` WP(C) NO.10552 OF 2023 ``` ``` 8 ``` the Guidelines of February 2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till final decision in that regard is arrived at. (i) I.A. No. 1412 2005 and I.A.No.117831 of 2019 do not relate to the issues involved I.A. No.1000 2003. These applications may be placed before the appropriate Bench to be heard independently. (j) For the same reason, I.A. No.1992 of 2007 shall also be dealt with independently by the appropriate Bench and no order is being passed concerning this application this stage. (k) The application of the State Rajasthan registered as I.A. No.3880 of 2015 relates to clarification of an order passed in the case of Goa Foundation (W.P.(C) No.460 of 2004). Let this application be placed before the Bench taking up the case Goa Foundation. (l) I.A.No.96949 of 2019 and I.A.No.65571 of 2021 are disposed of with directions that the MoEF&CC as also CEC shall proceed to take decision regard to draft proposal for ESZ made by the State of Maharashtra to the extent 03.89 kilometres and the MoEF&CC shall take final decision on that basis within period three months, said decision has not already been taken. (m) Prayers for impleadment of the applicants I.A. Nos. 984 of 2003, 1026 of 2004, 1123 2004, 1197 2004 and 1251 of 2004 are allowed. Necessary amendments may carried out these regards. (n) For the reasons already given, however, prayers of the applicants I.A. Nos.982 of 2003, 1027 2004, 1124 2004, 1198 of 2004, 1210 of 2004, 1250 2004 and 1512 2006 are rejected. (o) The CEC shall quantify compensation to recovered from each of any statutory provision order Court. Specific ``` WP(C) NO.10552 OF 2023 ``` ``` 9 ``` recommendations for compensatory afforestation, reclamation, clearing overburden dumping as also compensation monetary units for degradation forest resources shall made. further recommendations concerning confiscation of earth moving equipments and other machineries lying within or periphery of the said sanctuary shall made CEC. Recommendations shall made period of four before this Court in the form an application. This Court shall consider passing appropriate going through such application. The exercise concerning such reparation, including quantifying compensation shall be undertaken giving the mining operator, State and MoEF&CC opportunity hearing. (p) In the event there is any subsisting order of High Court any Court subordinate such High covering any the issues Court this order, this order shall prevail over any such order which may be contrary these directions. (q) We have already observed there are certain overlapping issues involved in Writ Petition the of 2004) and Petition (C) No.435 2012). request the Hon'ble the Chief Justice India to consider having present Writ Petition i.e. Re: T.N. Godavarman Thirumulpad Union India & Ors., W.P.(C) No.460 of 2004 (Goa Foundation Union India) as also W.P. No.435 of 2012 (Goa Foundation Union India & Ors.) be heard together before the same Bench. The registry may place this order before the Hon'ble the Chief Justice of India.” 11. The directions given by the Hon'ble Apex Court would show that if wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular National Park or Wildlife Sanctuary awaiting final decision in ``` WP(C) NO.10552 OF 2023 ``` ``` 10 ``` that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained. 12. The directions at paragraph 44(h) would show that in respect of Sanctuaries or National Parks for which the proposal of a State or Union Territory has not been given, the 10 Kilometres buffer zone as ESZ, as indicated in the order passed by the Apex Court on 4 th December, 2006 in the case of **Goa Foundation v. Union of India** [(2006 (4) KLT Online 1110 (SC)] and also contained in the Guidelines of 9th February, 2011 shall be implemented. 13. The directions of the Apex Court contained in paragraph 44(p) would show that in the event there is any subsisting order of any High Court or any Court Subordinate to such High Court covering any of the issues dealt with by the Apex Court in the order, then the order of the Apex court shall prevail over any such order which are contrary to the ``` WP(C) NO.10552 OF 2023 ``` ``` 11 ``` directions. In view of the judgment of the Hon'ble Apex Court in **T.N.Godavarman Thirumulpad** (supra), the writ petition is disposed of directing the 3[rd] respondent consider Ext.P5 application and to grant Quarrying Permit in favour of the petitioner without insisting for SCNBWL Clearance, if the petitioner satisfies all other statutory requirements. Sd/- **N.NAGARESH** **JUDGE** hmh ``` WP(C) NO.10552 OF 2023 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 10552/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1THE TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 20.10.2022 ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY-KERALA ``` ``` Exhibit P2THE TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 20.10.2022 Exhibit P3THE TRUE COPY OF THE D&O LICENSE (LICENSING OF DANGEROUS AND OFFENSIVE TRADES AND FACTORIES) ISSUED BY THE SECRETARY OF VADAKKANCHERRY GRAMA PANCHAYATH DATED 08.03.2023 Exhibit P4THE TRUE COPY OF THE EXPLOSIVES LICENSE RENEWED ON 28.02.2023 ISSUED BY JOINT CONTROLLER OF EXPLOSIVES, SOUTH CIRCLE, CHENNAI Exhibit P5THE TRUE COPY OF THE APPLICATION DATED 26.12.2022 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT- DISTRICT GEOLOGIST ``` ``` Exhibit P6THE TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE WILD LIFE WARDEN PEECHI DIVISION DATED 30.12.2022 Exhibit P7THE TRUE COPY OF THE LETTER DATED 08.02.2023 ISSUED BY THE WILD LIFE WARDEN PEECHI DIVISION TO THE 3RD RESPONDENT DISTRICT GEOLOGIST Exhibit P8TRUE COPY OF THE DRAFT NOTIFICATION PUBLISHED BY THE CENTRAL GOVERNMENT DEMARCATING THE BOUNDARIES OF PEECHI- VAZHANI WILDLIFE SANCTUARY AND ITS ECO- SENSITIVE ZONE DATED 25.11.2020 Exhibit P9THE TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT IN WP(C) NO.19710 OF 2022 DATED 27.07.2022 Exhibit P10THE TRUE COPY OF THE ORDER OF THE 3RD ``` ``` WP(C) NO.10552 OF 2023 ``` ``` 13 ``` ## **`RESPONDENT DATED 29.04.2023`** ``` RESPONDENT ANNEXURES Annexure R4(a)True copy of the Office memorandum vide no F22-43/2018-A dated 8 .8.2019 by MOEFCC ```