IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ashok Bhushan and A.M. Shaffique, JJ.
Nature Lovers' Forum - Appellant
Vs.
State of Kerala and Ors. - Respondents
W.P. (C) Nos. 34463 of 2015 (G), 33463 and 8531 of 2015
Decided On : 07-12-2015
Constitution of India, 1950 - Article 77 - Environment (Protection) Act, 1986 - Sections 3(1) & 5 - Kerala Minor Mineral Concession Rules, 2015 - Rules 9 &12 - Lease - Notification of - Time of Renewal - Findings of - Scope of -Held, Ratio of judgment in Deepak Kumar's case has not come to an end after 2015 Rules have been framed - Whether 2015 Rules have been framed in accordance with ratio of the judgment and law laid down by the Apex Court inDeepak Kumar's case has to be looked into and examined - Judgment of Apex Court in Deepak Kumar's case did not contemplate any retrospective operation nor Office Memorandum contemplated any such retrospective operation - Leases are granted for a particular year and question of renewal shall come only after expiry of original period of lease - It is clear that any lease which was continuing on date of judgment of Apex Court as well as Office Memorandum issued by MoEF required environmental clearance at time of renewal - There is no such law laid down by Division Bench in All Kerala River Protection Council's case or Deepak Kumar's case (2012) 4 SCC 629) that in so far as permits are concerned at time of renewal of permits subsequent to judgment of Apex Court in Deepak Kumar's caseand Office Memorandum they do not require any environmental clearance - Court conclude that proviso to Rule 12 as inserted by Notification cannot be said to be in accordance with ratio of judgment laid down in Deepak Kumar's case-Office Memorandum issued by MoEF clearly emanate from its power under Sections 3(1) and 5 - MoEF has issued the order in exercise of statutory power and it is not an executive order issued under Art.77 of Constitution - When an order is issued in exercise of statutory power it is not an executive order so as to conform to rule framed under Art.77(2) - Court conclude that Office Memorandum has been issued in exercise of powers under 1986 Act and further order cannot be said to have become infructuous after framing of 2015 Rules by State Government - Court is of clear opinion that proviso to Rule 12 as inserted by Notification is arbitrary and unreasonable
Ashok Bhushan, J.
1. These three Writ Petitions, filed as public interest litigation, challenge the Notification dated 05.10.2015 (published in the Kerala Gazette Extraordinary dated 06.10.2015) by which proviso to Rule 12 of the Kerala Minor Mineral Concession Rules, 2015 has been inserted. Petitioners prays that the said proviso to Rule 12 inserted as per the aforesaid Notification be declared as ultra vires. Some other reliefs have also been claimed in W.P(C) Nos. 33463 and 8531 of 2015 which shall be referred to hereinafter. In W.P.(C) No. 34463 of 2015 counter affidavit has been filed on behalf of the State which has been adopted in the other two Writ Petitions by memo filed on behalf of the State of Kerala. Writ Petition No. 34463 of 2015 is being treated as the leading case.
2. Brief facts of the case as emerged from the pleadings of the parties are as follows:
W.P. (C) No. 34463 of 2015 (Nature Lovers' Forum, Thiruvananthapuram v. State of Kerala and Others):
3. Petitioner, a voluntary organization, registered under the Travancore-Cochin Scientific, Literary and Charitable Societies Act, 1955, in this Writ Petition has raised an environmental issue affecting public interest. Petitioner's case is that the Apex Court in Deepak Kumar and Others v. State of Haryana and Others ([2012] 4 SCC 629) has issued various directions for protecting the environment and ecology. The Apex Court had further directed that lease of area less than 5 hectares be granted/renewed only after getting environmental clearance. The Apex Court further directed all the State Governments to frame Rules incorporating the model guidelines issued by the Ministry of Environment and Forests. The Apex Court directed the State Governments to incorporate regulatory regime for grant of lease of minor minerals of an area less than 5 hectares. The State Government in pursuance of the Notification has framed the Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as "the 2015 Rules") on 07.02.2015. The 2015 Rules provides for grant of lease/permit of minor minerals after obtaining environmental clearance. Proviso to Rule 12 provided that environmental clearance required under Rule 9 shall not be insisted in the case of renewal of quarrying permits in respect of quarries which had a valid permit as on the 9th day of January, 2015. The said proviso was amended by Notification dated 19th May, 2015 wherein in the place of the words "in respect of quarries which had a valid permit as on 9th day of January, 2015" the words "in respect of granite (building stone) quarries which had a valid permit during the financial year 2014-15" have been substituted. Further amendment has been made by Notification dated 05.10.2015 to the second proviso by which in the place of the second proviso, a new proviso had been inserted which provides that "the mining plan and environmental clearance required under Rule 9 shall not be insisted in respect of renewal of quarrying permits of granite (building stone) quarries which had quarrying permits under the Kerala Minor Mineral Concession Rules, 1967 on or before 26.02.2012". Petitioner challenges the Notification dated 05.10.2015 alleging that the Notification has been issued brazenly with impunity for serving its own end for exploiting the minerals by grant of mining leases/permits in violation of the Notification issued by the Ministry of Environment and Forests (for short, "the MoEF) and in disobedience of the order passed by this Court in W.P (C) No. 31148 of 2014 and the directions issued by the Apex Court in Deepak Kumar's case (supra). Petitioner prayed for the following reliefs:
"i. Declare that the substitution of words and figures in the first proviso of Rule 12 of Kerala Minor Mineral Concession Rules, 2015 that "in respect of granite (building stone) quarries which had a valid permit during the financial year 2014-15" as per S.R.O. No. 335 of 2015 dated 19.05.2015 and substitution of words and figures in
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