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2021 Supreme(Online)(KER) 29046
HIGH COURT OF KERALA
N. NAGARESH, J
ANEESH.K.K – Appellant
Versus
THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, – Respondent
WP(C)/15433/2021
SRI.SANTHOSH MATHEW, SRI.ARUN THOMAS, SRI.JENNIS STEPHEN, SRI.VIJAY V. PAUL, SMT.KARTHIKA MARIA, SMT.VEENA RAVEENDRAN, SRI.ANIL SEBASTIAN PULICKEL, SMT.DIVYA SARA GEORGE, SMT.JAISY ELZA JOE, SRI.NAGARAJ NARAYAN, SPL. GOVERNMENT PLEADER (FOREST), SRI.GEORGEKUTTY MATHEW, ANIL SEBASTIAN PULICKEL, KARTHIK RAJAGOPAL, JAISY ELZA JOE, NANDA SANAL, JENNIS STEPHEN, ABI BENNY AREECKAL, SANITA SABU VARGHESE, VIJAY V. PAUL, MATHEW NEVIN THOMAS, MANASA BENNY GEORGE, KARTHIKA MARIA, SRI.NAGARAJ NARAYAN, SPL.GOVERNMENT PLEADER (FOREST)
Clearances from environmental authorities remain valid unless legally challenged, and prohibitions on operations must be grounded in established legal regulations.
Headnote:
Wildlife - Quarrying Operations - Environmental Laws - 8 August 2019 MoEF&CC OM, Explosives Rules 2008 - Summary: The court addressed environmental impact regulations and their application to quarrying near wildlife sanctuaries, emphasizing the requirement for clearance from SCNBWL when proximity to wildlife areas exists.
Fact of the Case:
The petitioner challenged orders requiring wildlife clearance for granite quarrying operations near Talakavery Wildlife Sanctuary, asserting valid environmental clearances were obtained previously and arguing the orders were unjustified.
Finding of the Court:
The court found the orders prohibiting quarrying operations unsustainable, ruling that environmental clearances were valid and addressing public impact concerns were insufficient grounds for denying NOC under Explosives Rules.
Issues: Whether prohibiting quarrying operations based on environmental impact, despite existing clearances, is legally justifiable, and whether further clearance from SCNBWL is needed.
Ratio Decidendi: The requirement for SCNBWL clearance must be based on applicable laws and previous environmental approvals, which the respondent failed to properly consider, leading to an unlawful prohibition of quarrying.
Final Decision: The court set aside the prohibitory orders and directed reconsideration of the NOC application for quarrying.
J U D G M E N T
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Dated this the 6th day of September, 2021 [WP(C) Nos.5904 & 15433 of 2021]
The petitioner in WP(C) No.5904/2021, who has obtained leasehold rights over 2.2621 Hectares of property in Kasaragod District to conduct granite quarrying operations, has filed this writ petition seeking to quash Ext.P23 order and Ext.P24 communication. The petitioner is aggrieved by the requirement contained in Ext.P23 order to obtain clearance from the Standing Committee for National Board for Wildlife (SCNBWL).
2. The petitioner states that he owns leasehold right over 2.2621 Hectares of land in Re-survey No.193 in Maloth Village, Vellarikundu Taluk of Kasaragod District. The petitioner proposes to conduct granite quarrying operations and for that purpose to construct an Explosive Magazine. According to the petitioner, the land is situated 2.13 Km. away from Talakavery Wild Life Sanctuary. For mining minor minerals from land having a lease area of less than 5 Hectares, Ext.P1 Notification dated 15.05.2017 of the Ministry of Environment, Forest and Climate Change (MoEF&CC) will not apply.
3. The District Environmental Impact Assessment Authority (DEIAA) granted Environmental Clearance (EC) to the petitioner on 25.04.2018, as per Ext.P6. Ext.P6 was issued after getting Site Inspection Report of the District Forest Officer and Expert Member. It was issued after the Sector Specific Appraisal Committee, namely the District Expert Appraisal Committee (DEAC), conducted an inspection and cleared the project. The Senior Geologist approved Ext.P7 Mining Plan. The Pollution Control Board issued Ext.P12 Consent to Operate, on 16.06.2018.
4. The petitioner submitted Ext.P13 application under Rule 103 of the Explosives Rules , 2008 before the 1st respondent-District Magistrate seeking NOC for grant of LE-3 Explosives Licence. The District Geologist gave Ext.P14 recommendation to the District Magistrate, which is favourable to the petitioner. The District Police Chief gave Ext.P15 'No Objection Certificate'. The Revenue Divisional Officer gave Ext.P17 letter recommending the entitlement of the petitioner. The Divisional Officer, Fire and Rescue Department, also gave his 'No Objection' to the 1st respondent. By Ext.P18, the Balal Grama Panchayat informed the 1st respondent that they also have no objection in granting Explosives Licence to the petitioner. The Deputy Chief Controller of Explosives issued Ext.P21 approval for the site.
5. The 1st respondent issued Ext.P19 public notice inviting objections from the public. None raised any objection. The 1st respondent issued Ext.P20 communication to the Divisional Forest Officer, District Tribal Development Officer and District Scheduled Caste Development Officer requiring to conduct enquiry and submit reports. Finally, the 1st respondent dismissed Ext.P13 application passing Ext.P23 order prohibiting all quarrying operations in the proposed site. In Ext.P23, it was stated that the petitioner is free to approach SEIAA for obtaining a valid Environment Impact Assessment (EIA) study report and Social Impact Assessment (SIA) reports from accredited agencies. The 1st respondent also ordered that a clearance from SCNBWL is also mandatory since Talakavery Wildlife Sanctuary is 1.5 Km. away from the proposed site. Consequent to Ext.P23, the conditional approval granted by the 3rd respondent-Deputy Chief Controller of Explosives was withdrawn and cancelled as per Ext.P24.
The petitioner is aggrieved by Exts.P23 and P24.
6. WP(C) No.15433/2021 has been filed by the petitioners, who are residing near the proposed site, seeking to set aside Ext.P1 (Ext.P23 in WP(C) No.5904/2021) to the extent it gives liberty to the 2nd respondent (petitioner in WP(C) No.5904/2021) to approach the 1st respondent again for NOC under Rule 103 of the Explosives Rules . The petitioners in WP(C) No.15433/2021 contended that quarrying in the area is dangerous not only to human habitats but also to flora and fauna and hence
