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2019 Supreme(Ker) 990
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Devan Ramachandran, J.
Princy Anto and Ors. – Petitioners
Versus
The Geologist, Mining And Geology Department And Ors. – Respondents
WP(C).No.5741 OF 2019(P)
Decided On : 11-12-2019
For the Petitioner: Sri.Philip J.Vettickattu, Smt.Aney Paul, Advs.
For the Respondent: Sri.K.J.Manuraj, GP
IMPORTANT POINT
Clause 8 of the Environment Impact Notification, since the basement is also a part of the total plinth area, it becomes indubitable that the conjoined effect of these provisions would not require an owner to obtain an Environmental Clearance even for the purpose of construction of a foundation of a building which provides for a basement or cellar area-The petitioners are entitled to the reliefs on this aspect in this Writ Petition
Headnote:
Environment Impact Assessment Notification, 2006, Clause 8- In the absence of the statutory requirement of obtaining an Environmental Clearance, it is up to the Geologist, who is also equally competent, to verify all the relevant aspects and then impose such conditions as may be necessary and imperative to ensure that the construction proposed by the petitioners does not cause any damage to any other properties neighbouring to it or to the buildings standing thereon-The petitioners says that they have already obtained Ext.P13 NOC from the National Highway Authorities- -The Geologist must now consider their application adverting to the said NOC and also in terms of my observations.
Statement of facts:
The Environment Impact Assessment Notification, 2006, issued by the Government of India, Ministry of Environment, Forest and Climate Change exempts the requirement for obtaining Environmental Clearance for the construction of a building up to 20,000M2 in area; while Appendix IX to it, confines this exemption solely to the digging of the foundation for such constructions
Finding of the court:
Direct the 1st respondent-Geologist to take up the application of the petitioners for Quarrying Permit, strictly for the purpose of making a foundation in terms of the Building Permit and after ensuring that only such amount of minerals are allowed to be quarried and removed which are unexpendably necessary for the purpose of such construction and nothing more; and then issue appropriate orders thereon, after adverting to all necessary and relevant inputs, including Ext.P13 NOC issued by the National Highway Authority of India.
Result : Ordered
JUDGMENT :
The Environment Impact Assessment Notification, 2006, issued by the Government of India, Ministry of Environment, Forest and Climate Change exempts the requirement for obtaining Environmental Clearance for the construction of a building up to 20,000M2 in area; while Appendix IX to it, confines this exemption solely to the digging of the foundation for such constructions.
2. In the afore statutory milieu, the issue raised in this Writ Petition is whether the benefits of the exemptions noticed above would apply even to a construction which includes a cellar/basement. While the petitioner contends in the affirmative, the official respondents asserts to the contrary.
3. The petitioners have approached this Court with a specific allegation that their application for Quarrying Permit preferred before the District Geologist for the purpose of construction of a building in their property, comprised of 0.1773 hectares of land, in Sy.No.496/1 of the Kizhakke Chalakkudy Village-on the strength of a valid Building Permit and Development Permit, namely Ext.P5 and P6 respectively, obtained from the Chalakkudy Municipality is not being considered by the District Geologist, insisting that they must obtain prior Environmental Clearance from the State Environment Impact Assessment Authority (SEIAA for short) for such purpose.
4. The petitioners say that this requirement, now insisted upon by the District Geologist, is contrary to the provisions of the Environmental Impact Assessment Notification, 2006, since the construction of a basement has been specifically exempted under Appendix IX of the said notification. They, therefore, pray that the District Geologist be directed to take up Ext.P6 application for Quarrying Permit and dispose of the same, without insisting on an Environmental Clearance.
5. In response to the above, learned Government Pleader, Sri.K.J.Manuraj, submits that a detailed counter affidavit has been placed on record by the District Geologist, wherein, the following have been clearly stated:
“9. However, on inspection it is found that the proposed site is situated in between NH 47 and KSRTC Bus stand in Chalakudy Town. The site is within 50 meter distance of NH 47 where an over bride is also located. As per amendment notification of Kerala Minor Mineral Concession Rules 2015 dated 22.06.2017, in order to grant quarrying permit for extraction of ordinary earth a distance of 100 meter is required from bridge on National Highway. There are a lot of huge buildings, Tower line, a small canal and number of residential buildings surrounding the proposed site. The site is a plain ground with loose soil. Since the area contains loose soil the mining will affect the stability of the nearby buildings and other public structures. Besides, on verifying the development plan of the proposed building it is noticed that the petitioner has to mine the earth for constructing lower cellar and upper cellar having a Plinth area of 1204.92 square meter below the ground level. The depth of the lower and upper cellar is shown as 4.2 meter from the ground level. So the petitioner has to dig the land for lower cellar and upper cellar below the ground level up to a depth of 4.2 meter. Even if environmental clearance is obtained from SEIAA, digging of soil without making piling will be danger since it is loose soil in the applied area. Hence it is difficult to grant permission for extraction of ordinary earth without proper precautionary measures. Moreover, in the notification dated 14.09.2006 of the Government of India, Ministry of Environment, Forest and Climate Change, any project involving the building construction up to 20000M2, does not require prior Environmental Clearance. But the express provision in Appendix IX to said notification it is meant only for digging of foundation of the building and not construction of any cellar in the basem
