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2022 Supreme(Ker) 864
IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.R. RAVI, J.
Pious Kurian – Appellant
Versus
State of Kerala – Respondent
W.P.(C) No.28029 of 2020
Decided on : 01-11-2022
Advocate Appeared:
For the Appellant : Georgekutty Mathew (Adv.)
For the Respondent: Renjith Thampan (Sr. Adv.), V M Krishnakumar (Adv.), Philip J Vettickattu (Adv.), S Kannan (Sr. GP), Prakash C Vadakkan J (Adv.), M P Sreekrishnan (Adv.)
Headnote:
Constitution of India, 1950 – Article 226 – Criminal Procedure Code, 1973 – Section 482 – National Green Tribunal Act, 2010 – Section 16 – Kerala Government Land Assignment Act, 1960 – Section 8 – Kerala Minor Mineral Concession Rules, 2014 – Rule 39 – Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 – Persons aggrieved – Environmental Clearance – Writ Petition – Preliminary issue has been raised in these Writ Petitions by respondents regarding maintainability of Writ Petition – Counsel on either side addressed arguments on issue and said question alone is being considered – Held, Specific case of petitioners is that they are not espousing cause of public and are persons aggrieved by actions of respondents – It is pleaded that they are residing near quarry in question and their life and property will be put to risk if quarry functions – It is in this background that they allege that orders are issued without authority and there is mala fides – True, above contentions are factually disputed by respondents – However, that is a matter to be considered in Writ Petition – Court hence find that it is not a case where the principles stated in Divine Retreat (supra) should be applied – As already stated, this Court has not gone into merits of contentions and whether or not contention of petitioners that there is risk to their life and property is factually correct, is a matter to be considered later – Ordered Accordingly.
ORDER :
T.R. Ravi, J.
1. A preliminary issue has been raised in these Writ Petitions by the respondents regarding the maintainability of the Writ Petition. The counsel on either side addressed arguments on the issue and the said question alone is being considered. The short facts required for consideration of the preliminary issue are as follows;
2. W.P.(C)No.28029/2020 has been filed challenging Ext.P2 environmental clearance issued by the SEIAA, Ext.P3 quarrying lease executed by the Geologist in favour of the 12th respondent in the Writ Petition, Ext.P4 D. & O. licence issued by the 8th respondent Panchayat, Ext.P17 inspection report of the 5th respondent Geologist and Ext.P23 order passed by the 3rd respondent Director of Mining and Geology in Ext.P8 representation submitted by the petitioners and others.
3. In W.P.(C) No.28787/2021, the petitioners have challenged Ext.P2 order of the Land Revenue Commissioner on Ext.P1 complaint which was filed contending that respondents 10 and 11 are misusing assigned Government land for quarrying in violation of the assignment conditions causing loss to public fund. The petitioners in both these Writ Petitions are the same. The 12th respondent in W.P.(C)No.28029/2020 is the 10th respondent in W.P.(C)No.28787/2021. According to the party respondents, the petitioners do not have the locus standi to challenge the orders as they are not persons affected and remedy, if at all, is to prefer a public interest litigation, clearly showing the bona fides of the petitioners and the persons whose cause they propose to take up.
4. Heard Sri Georgekutty Mathew on behalf of the petitioners in both the Writ Petitions, Sri Renjith Thampan, Senior Advocate instructed by Sri V.M.Krishnakumar on behalf of the 11th respondent in W.P.(C)No.28787/2021, Sri Philip J.Vettickattu on behalf of the 10th respondent in W.P.(C)No.28787/2021 and respondents 12 and 13 in W.P.(C)No.28029/2020, Sri S.Kannan, Senior Government Pleader on behalf of the official respondents/State, Sri.Prakash C.Vadakkan, Standing Counsel for the 8th respondent in W.P.(C)No.28029/2020 and 9th respondent in W.P.(C)No.28787/2021 and Sri M.P.Sreekrishnan, Standing Counsel for SEIAA.
5. The petitioners claim that they are residing with their families near the quarry site and this fact is admitted by the Geologist in Ext.P17 report, wherein it is stated that the writ petitioners are residing at a distance of 202 Metres, 580 Metres and 780 Metres from the quarry. Reliance is placed on the minutes of the SEIAC, produced as Ext.P5 in W.P.(C)No.28029/2020, to submit that the quarrying is sought to be done in a land having a very steep slope exceeding 35 degrees, which makes it a tough terrain for a quarry. It is stated that the possibility of “fly rock” is high and there are several dwelling units in the lower slopes. The petitioners hence submit that even though the residences of the petitioners are beyond 200 metres, due to the steep slope, they will be affected by “fly rock”. It is contended that the petitioners being persons who are personally aggrieved, they cannot maintain a Public Interest Litigation. The next contention is that a Writ Petition under Article 226 of the Constitution is maintainable against proceedings which are without authority or are tainted by mala fides. According to the petitioners, Ext.P23 order in W.P.(C)No.28029 of 2020 issued by the 11th respondent is mala fide and is in violation of Rule 39 of the Kerala Minor Mineral Concession Rules which mandates that the mining lease can be granted to a private person in the lands owned by him. The contention is that the proponents have not produced their title deeds regarding the quarry site and in the absence of such title deed, Ext.P3 is illegal and without the authority of law. It is also stated that the 11th respondent who had issued Ext.P3 while he was a Geologist of Kottayam had issued Ext.P23 order as the order of Director of Mining and Geology confirming his own illegal procee
