WA Nos. 1392 of 2020 and 1393 of 2020 (Kerala High Court: K.G. Anil Kumar v. State Environment Impact Assessment Authority (SEIAA); Thalapalam Grama Panchayat v. Tomy Thomas, SEIAA, SEAC)

w. A. Nos. 1392 & 1393 of 2020 -1- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942** **WA.No.1392 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 14072/2020(H) OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **K.G. ANILKUMAR, AGED 56 YEARS,SON OF GOPINATHAN NAIR,CONVENER,KIZHAKKEMALA PROTECTION COUNCIL,KALLARAYATHU HOUSE,THALAPPALAM,PLASSANAL(PO), KOTTAYAM-686 579.** **BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR** ## **RESPONDENT/S:** - **1 TOMY THOMAS AGED 54 YEARS,S/O. THOMAS, PULICKAL HOUSE,KALTHUKADAVU( P.O.), ERATTUPETTA,KOTTAYAM-686 579.** - **2 THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY(SIEAA)KERALA, REPRESENTED BY ITS MEMBER SECRETARY, KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR,THAMPANUR, THIRUVANANTHAPURAM-695 001.** |**3**|**THE MEMBER SECRETARY,**| |---|---| ||**STATE ENVIRONMENT IMPACT ASSESSMENT**| ||**AUTHORITY(SEIAA) KERALA, KSRTC BUS TERMINAL**| ||**COMPLEX,4THFLOOR,THAMPANUR,**| ||**THIRUVANANTHAPURAM-695 001.**| w. A. Nos. 1392 & 1393 of 2020 -2- **4 THE KERALA STATE LEVEL EXPERT APPRAISAL COMMITTEE(SEAC), REPRESENTED BY ITS CHAIRMAN,THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY(SEIAA) KERALA),KSRTC BUS TERMINAL COMPLEX,4THFLOOR,THAMPANUR, THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.JOBI JOSE KONDODY** ## **OTHER PRESENT:** **SRI.JOBI JOSE KONDODY FOR R1, SRI. M.P.SREEKRISHNAN FOR R2 TO R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.10.2020, ALONG WITH WA.1393/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** w. A. Nos. 1392 & 1393 of 2020 -3- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942** **WA.No.1393 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 14072/2020(H) OF HIGH COURT OF KERALA** ## **APPELLANT/S:** |||**THE PRESIDENT**| |---|---|---| |||**THALAPALAM GRAMA PANCHAYAT,**| |||**PLASANAL P.O.,KOTTAYAM DISTRICT,**| |||**PIN-686 579.**| |||**BY ADV. SRI.GEORGEKUTTY MATHEW**| |**DENT/S**|**:**|| |**1**||**TOMY THOMAS,**| |||**AGED 54 YEARS,S/O. THOMAS,**| |||**PULICKAL HOUSE,KALTHUKADAVU P.O.,**| |||**ERATTUPETTA,KOTTAYAM DISTRICT,**| |||**PIN-686 579.**| |**2**||**THE STATE ENVIRONMENTIMPACT ASSESSMENT AUTHORITY**| |||**(SEIAA), KERALA,**| |||**REPRESENTED BY ITS MEMBER SECRETARY,**| |||**KSRTC BUS TERMINAL COMPLEX,**| |||**FOURTH FLOOR,THAMPANUR,**| |||**THIRUVANANTHAPURAM-695 001.**| |**3**||**THE MEMBER SECRETARY,**| |||**THE STATE ENVIRONMENT IMPACT ASSESSMENT**| |||**AUTHORITY(SEIAA) KERALA, KSRTC BUS TERMINAL**| |||**COMPLEX,FOURTH FLOOR,THAMPANUR,THIRUVANANTHAPURAM-**| |||**695 001.**| ## **RESPONDENT/S:** w. A. Nos. 1392 & 1393 of 2020 -4- **4 THE KERALA STATE LEVEL EXPERT APPRAISAL COMMITTEE(SEIAC), REPRESENTED BY ITS CHAIRMAN,THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY(SEIAA) KERALA,KSRTC BUS TERMINAL COMPLEX,FOURTH FLOOR,THAMPANUR,THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.JOBI JOSE KONDODY SRI. M.P.SREEKRISHNAN FOR R2 TO R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.10.2020, ALONG WITH WA.1392/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** w. A. Nos. 1392 & 1393 of 2020 -5- ## **J U D G M E N T** ## **[ W.A. Nos. 1392 of 2020 & 1393 of 2020 ]** Dated this the 22[nd] day of October, 2020 ## Shaji P. Chaly, J. The appeals are preferred by third parties to the judgment in W. P. (C) No. 14072 of 2020 dated 10.08.2020, after securing leave to prefer appeal from this Court. 2. Appellant in writ appeal No. 1392 of 2020, Sri. K. G. Anil Kumar was the petitioner in earlier round of litigation by and between the parties and the writ petitioner namely Tomy Thomas and appellant in writ appeal No. 1393 of 2020 is the President of Thalapalam Grama Panchayat, Kottayam District, was also a party in the earlier round of litigation by and between the parties, but they were not arrayed as parties in the W. P. (C) No. 14072 of 2020. However, we found that they ought to have been made parties in the writ petition and it was accordingly that the leave petitions were allowed and permission was granted to prefer the writ appeals. w. A. Nos. 1392 & 1393 of 2020 -6- 3. The subject issue relates to conduct of a quarry by the writ petitioner, who is the 1[st] respondent in the appeals, within the limits of Thalapalam Grama Panchayat. Various writ petitions were pending before this Court in respect of the quarry conducted by the writ petitioner for and against and the first among them were W. P. (C) Nos. 15505 of 2016, 31684 of 2016 and 25529 of 2019. The writ petitions were disposed of by common judgment dated 04.10.2019, directing the Grama Panchayat as well as the State Environment Impact Assessment Authority (SEIAA) Kerala, to consider and dispose of license / consent applications pending before them, taking into account the respective plans and other documents required for consideration. Even though writ appeal No. 2566 of 2019 was filed against the common judgment of this Court in W. P. (C) No. 25529 of 2019, it was dismissed as per Ext. P11 judgment, with liberty to the appellants to challenge the validity of Ext. P3 amendment in appropriate proceedings, dehors the decision taken by SEIAA in accordance with the directions contained in the judgment of the learned Single Judge. However, consequent to the decision taken by the Panchayat, Sri. Tomy Thomas approached this Court by filing W. P. (C) No. 5897 of 2020, which was disposed of as per Ext. P15 w. A. Nos. 1392 & 1393 of 2020 -7- ## judgment dated 27.05.2020, in the following manner:- “12. After hearing all the parties concerned and taking note of the legal principles laid down by the Full Bench of this Court in Tommy Thomas's case (supra), thus Court is of the considered view that respondents 1 and 2 has to consider and grant the requisite establishment and trade licences as the case may be as submitted in Ext.P6 joint application without any further delay, provided that the 3[rd] respondent Kerala State Environmental Impact Assessment Authority vacates or revokes the stop memo. Accordingly it is ordered that the 1[st] respondent Committee of the Thalappalam Grama Panchayat as well as the 2[nd] respondent Secretary of the said Panchayat will consider the issue relating to the plea made by the petitioner for grant of the establishment licence as well as the trade licence as made out in Ext.P6 and to grant such licences after affording reasonable opportunity of being heard to the petitioner and to grant the same within two weeks from the date of receipt of the communication from the 3[rd] respondent subject to the condition that those licences need be granted only if 3[rd] respondent vacates the stop memo issued in relation to Ext.P1 environmental clearance. In case there is any delay on the part of the 3[rd] respondent to communicate a copy of the proceedings of the 3[rd] respondent, it is open to the petitioner to produce a copy of such proceedings so passed by the 3[rd] respondent before the 2[nd] respondent to avoid any further delay. Ext.P6 joint application seeking such licences is for a period of five years. It is hoped and expected that respondents 1 and 2 will rise up to the occasion and will fully adhere to the Rule of law and should show due reference and respect to the legal principles w. A. Nos. 1392 & 1393 of 2020 -8- laid down by the Full Bench of this Court in **Tommy Thomas's case** (supra) so that the petitioner herein who happens to be the litigant therein is not unnecessarily harassed and driven for further litigation.” 4. Anyhow, in accordance with the directions contained in the common judgment namely Ext. P10, State Expert Appraisal Committee (SEAC) has considered the issue in its meeting held from 2[nd] to 4[th] June, 2020 and has taken the following decision:- - “ **Item No. 111.59** Judgment dated 4.10.2019 in WP (C) No. 31684/2016 filed by Tomy Thomas (File No. 1255/EC4/2016/SEIAA) (Common Judgment in WP (C). 31684/2016, WP (C). 15505/2016 & WP (C) 25529/2019) Decision: The Committee accepted the observations in the Field Inspection Report and decided that the environmental and social safeguards of the building stone quarry has to be evolved through a detailed Environmental Impact Assessment study and precise Environmental Management Plan for the proposed project. The EIA should cover the impact of the activities of the proposed project in and around the site within an impact zone of 3km radius. The impact assessment should specifically cover the impacts on: w. A. Nos. 1392 & 1393 of 2020 -9- i. All the buildings and corrected structure within the radius of 500m and the impact due to the proposed blasting; ii. Different types of buildings and constructed structures within the impact of 3km radius and the impact due to the proposed blasting; iii. Air quality and noise level of the impact zone due to blasting and transportation; iv. Surface drainage; - v. Groundwater levels due to blasting and consequent vibration; - vi. Sloping terrain with special reference to the possibility of inducing landslides; - vii. Biodiversity and viii.Social aspects including employment, income and involuntary land acquisition. The study should cover an area of 3km radius of the proposed mining spot. A detailed land use and land cover map of an area covering 500m radius of the proposed mining spot should also be submitted. The Committee decided to direct the proponent to submit the above details/documents so that a studied decision can be taken on the matter.” ## 5. Thereafter, the SEIAA has passed an order dated 30.06.2020, w. A. Nos. 1392 & 1393 of 2020 -10- ## namely Ext. P17 in the writ petition, which reads thus:- “Attention is invited to the reference cited. It is informed that your proposal was placed in the 111[th] meeting of SEAC. The Committee accepted the observations in the Field Inspection Report and decided that the environmental and social safeguard of the building stone quarry has to be evolved through a detailed Environmental Impact Assessment study and precise Environmental Management Plan for the proposed project. The EIA should cover the impact of the activities of the proposed project in and around the site within an impact zone of 3km radius. The impact assessment should specifically cover the impacts on: - i. All the buildings and constructed structures within the radius of 500m and the impact due to the proposed blasting; - ii. Different types of buildings and constructed structures within the impact zone of 3km radius and the impact due to the proposed blasting; - iii. Air quality and noise level of the impact zone due to blasting and transportation; - iv. Surface drainage; - v. Groundwater levels due to blasting and consequent vibration; - vi. Sloping terrain with special reference to the possibility of inducing landslides; - vii. Biodiversity and - viii. Social aspects including employment, income and involuntary land acquisition. The study should cover an w. A. Nos. 1392 & 1393 of 2020 -11- area of 3km radius of the proposed mining spot. A detailed land use and land cover map of an area covering 500m radius of the proposed mining spot should also be submitted. The Committee decided to direct the proponent to submit the above details/documents so that a studied decision can be taken on the matter.” 6. It was basically challenging Ext. P16 decision of the SEAC in the meeting held on 2[nd] to 4[th] June 2020 and Ext. P17, W. P. (C) No. 14072 of 2020 was filed. A writ of mandamus was also sought to finalize the proceedings pertaining to Ext. P9 order of SEIAA dated 22.09.2016, whereby orders were passed to stop the operation of the quarry on the basis of complaint submitted by Sri. K. G. Anil Kumar, appellant in writ appeal No. 1392 of 2020. 7. The learned Single Judge after considering the entire issues and taking note of the facts and circumstances on the basis of the judgments rendered by this Court, namely Exts. P10 and P15, has disposed of the writ petition with the following directions:- “(i) Exts. P-16 & P-17 to the limited extent, it has not ordered for vacating or revoking Ext.P-9 stop memo dated 22.9.2016 will stand quashed and set aside. It is made clear that Exts.P-16 & P-17 in all other aspects are not interdicted by this Court and the respondents will be at liberty to assess various w. A. Nos. 1392 & 1393 of 2020 -12- aspects mentioned in Exts.P-16 & P-17 and the respondents will also be at liberty to take a final decision on the matters ordered in Ext.P-10 judgment, though the time limit has expired long ago. (ii) In view of the above limited interdiction made to Exts.P-16 & P-17 it is further consequently ordered that the impugned Ext.P-9 stop memo dated 22.9.2016 will stand quashed and set aside. The petitioner is temporarily permitted to function the quarry, but he can do so strictly in accordance with the terms and conditions of quarrying lease, explosives licence, statutory consent of the State Pollution Control Board and Ext.P-5 EC granted by the respondents. (ii) The respondents will be at liberty to monitor the functioning of the petitioner's quarry and if it is found on the basis of objective materials that the petitioner has violated the terms and conditions of Exts.P-5 EC then the respondents will be at liberty to take necessary action in that regard. So also if the petitioner violates quarrying licence, explosive licence, statutory consent of the State PCB, etc., then also the appropriate authorities are at liberty to take appropriate action in that regard in accordance with law but subject to a fair procedure. (iv) The respondents will immediately take steps to ensure that various parameters mentioned in Exts.P-16 & P-17 are duly assessed, if necessary on the basis of further inspection, such inspection should be done with prior notice to the petitioner and a copy of the inspection report should also be given to the petitioner. w. A. Nos. 1392 & 1393 of 2020 -13- (v) Thereafter the competent authority among the respondents should consider the various aspects in the matter including the parameters to be assessed as per Exts.P-16 & P-17 as well as in accordance with the observations made by this Court in para 9 of Ext.P-10 judgment, after hearing the petitioner as well as the objector concerned without any further delay, at any rate, within 2-3 months from the date of production of a certified copy of this judgment. (vi) Needless to say, in view of the abovesaid directions, the petitioner may temporarily function his quarry until final orders are passed in the matter as aforedirected and in accordance with Ext.P-10 judgment and care should be taken by the respondents to ensure that assessment of the various parameters mentioned in Exts.P-16 & P-17 is done preferably when the quarry is in operation so that real impact could be duly assessed by the respondents. Further, needless to say, if the final decision as aforedirected, taken by the 1[st] respondent is in favour of the petitioner then proceedings in that regard may be issued so that the petitioner can produce a copy of the said proceedings before the Panchayath Secretary concerned for consideration of the matter as already directed by this Court in Ext.P-15 judgment dated 27.5.2020 in W.P.(C).No.5897/2020.” 8. It is thus challenging the legality and correctness of the direction so issued, the writ appeals are preferred by the complainant Sri. K. G. Anil Kumar and the Thalapalam Grama Panchayat. The w. A. Nos. 1392 & 1393 of 2020 -14- paramount contention advanced by the appellants is that the judgment was rendered by the learned Single Judge without hearing the affected parties, who are necessary parties in view of the complaint filed and the directions issued in Exts. P10 and P15 judgments. It is also submitted that the learned Single Judge has directed to operate the quarry, without obtaining an Environmental Clearance mandated by the Hon'ble Apex Court in **Deepak Kumar v. State of Haryana and Others [(2012) 4 SCC 629)]** . Other contentions are also raised relying upon Article 21 of the Constitution of India and submitted that, if the quarry is allowed to be permitted, it would interfere with the fundamental rights guaranteed to the citizens under Article 21 of the Constitution of India. 9. The Panchayat in its appeal has also addressed almost similar arguments, apart from contending that the learned Single Judge was misdirected by the writ petitioner by placing before the learned Single Judge, incorrect facts and circumstances, which lead to the issuance of the directions and it happened since the Panchayat as well as the affected persons were not made parties in the writ petition. It is also submitted by the learned counsel for the Panchayat that the findings rendered by the learned Single Judge based on the Full Bench w. A. Nos. 1392 & 1393 of 2020 -15- judgment of this Court in **Tomy Thomas v. State of Kerala [2019 (3) KLT 987 (FB)]** has no legal or factual foundations and the permission granted to the writ petitioner to temporarily function the quarry without securing necessary license from the Panchayat cannot be sustained under law. 10. We have heard Sri. P. B. Sahasranaman and Sri. Georgekutty Mathew, learned counsel appearing for the appellants, Sri. Joby Jose Kondody, learned counsel appearing for the writ petitioner and Sri. M. P. Sreekrishnan, learned counsel appearing for the SEIAA and perused the pleadings and materials on record. 11. The discussion of facts made above make it clear that the paramount contention advanced by the appellants is that the impugned judgment was rendered by the learned Single Judge, without hearing appropriate and necessary parties and taking into account the material facts and circumstances involved in the subject matter. Anyhow, we find that on the basis of the directions contained in the impugned judgment, the SEAC in its 114[th] meeting from 6[th] to 8[th] October, 2020 has taken up the matter as item No. 114.02 and has taken a decision after hearing the writ petitioner, the Secretary of Thalapalam Grama w. A. Nos. 1392 & 1393 of 2020 -16- Panchayat as well as the complainant Sri. K. G. Anil Kumar, directing the project proponent, _i.e._ the writ petitioner, to intimate SEIAA while the quarry functions, so that the SEAC can conduct the field inspection, in accordance with the directions contained in Ext. P10 judgment. 12. Therefore, it can be seen that the paramount contention advanced by the appellants that a decision was taken by the learned Single Judge without hearing them and therefore there could be likelihood of decision taken by the SEIAA without hearing them no more survives. 13. In that view of the matter, it can also be seen that the judgment is already acted upon and appropriate action is being taken by SEIAA and we have no reasons to think that the SEIAA would take any decision otherwise than in accordance with law and the directions contained in the judgments referred to above. 14. However, learned counsel for the appellants have a case that the learned Single Judge has permitted the writ petitioner to conduct the quarry without securing license from the Panchayat as well as the Environment Authority. However, as per Ext. P15 judgment, w. A. Nos. 1392 & 1393 of 2020 -17- directions were issued to the Panchayat to consider the application of the project proponent and to take appropriate decision in accordance with law, if the project proponent was able to produce the necessary clearance from the SEIAA, since at that point of time, the stop memo issued by the said authority was in force. 15. Therefore, according to the learned counsel for the Panchayat, the Panchayat was not bound to consider the application submitted by the writ petitioner, since he has not produced any clearance from SEIAA and therefore the directions presently issued in the impugned judgment, permitting the writ petitioner to temporarily conduct the quarry, is not in accordance with law. 16. On evaluating the findings contained in the impugned judgment, we are of the clear opinion that the learned Single Judge has taken into account the judgment of the Full Bench in Tomy Thomas supra on this account alone, because it was in that judgment the issue with respect to the power of the Panchayat to take independent decision on the application submitted by any project proponent was adjudicated and decided and it was held after taking into account the provisions of law, the respective amendments made to w. A. Nos. 1392 & 1393 of 2020 -18- the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 that the Panchayat is vested with powers to take independent decision in respect of the application submitted for license, irrespective of production of any consent / clearances issued by other statutory authorities. 17. Therefore, we are of the opinion that since the Panchayat has not taken any decision consequent to directions contained in Ext. P15 judgment and in order to have a practical way out to the issue only, the learned Single Judge permitted the writ petitioner to temporarily function the quarry. 18. According to us, the judgment of the Full Bench in Tomy Thomas supra was not brought to the notice of the learned Single Judge while rendering Ext. P15 judgment on 27.05.2020, because the judgment of the Full Bench in Tomy Thomas supra was dated 30.09.2019, which thus means the direction contained in Ext. P15 judgment in W. P. (C) No. 5897 of 2020, directing the Thalapalam Grama Panchayat to consider the application on production of the clearance from the SEIAA, was not in terms of the judgment of the Full Bench in Tomy Thomas supra. We are also of the view that the w. A. Nos. 1392 & 1393 of 2020 -19- said aspect was realized by the learned Single Judge while rendering the impugned judgment and it was accordingly that, reference is made to the judgment in Tomy Thomas supra in the impugned judgment. Therefore, we do not find much force in the contentions advanced by learned counsel for the Panchayat in that regard. 19. Taking into account all the above aspects and the subsequent development consequent to the decision taken by the SEAC in its 114[th] meeting held from 6[th] to 8[th] October 2020, we are of the considered opinion that there is no requirement for adjudicating the issues raised in the writ appeals on their merit. We are also of the view that specific directions are issued by the learned Single Judge in the impugned judgment, with respect to the consideration of the issue by the SEIAA and time period is also fixed to take a decision. We are also of the further opinion that the temporary functioning of the quarry was permitted in order to assess the impact that can occur while the quarry is physically functioned and the said direction was also issued after hearing SEIAA. Therefore, the permission granted for temporary functioning is with the object of enabling the SEIAA to evaluate and take a decision in respect of the Environmental Clearance, in accordance with law. w. A. Nos. 1392 & 1393 of 2020 -20- In that view of the matter, the writ appeals are disposed of without any interference to the directions made by the learned Single Judge, however, recording the abovesaid aspects and the developments that have taken place consequent to the decision taken in the 114[th] meeting of SEAC, as specified above. **Sd/-** **S. MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P.A. TO JUDGE