Kerala High Court: Environmental Clearance Mandatory for Quarrying Earth Even for NHAI Projects, Clarification Limited to NHAI Work Orders - 2025-04-07

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Kerala High Court Upholds Environmental Clearance Requirement for Quarrying Earth for Highway Projects

Ernakulam, Kerala - In a significant judgment delivered on March 10, 2025, the Kerala High Court clarified that even for National Highway projects, environmental clearance (EC) is mandatory for quarrying ordinary earth. Justice T.R.Ravi presiding over the case, dismissed the contentions of a concessionaire seeking exemption based on a Supreme Court clarification, emphasizing that the clarification was specifically limited to work orders issued directly by the National Highway Authority of India (NHAI), and not to contracts undertaken by concessionaires for material procurement.

Case Overview: Challenge to Quarrying Permits

The judgment was delivered in a batch of three writ petitions (WP(C) Nos. 12684, 13596, and 32704 of 2024) filed by residents of Pampakkuda and Thiruvaniyur Grama Panchayats in Ernakulam district. The petitioners challenged quarrying activities undertaken by M/s Oriental Structural Engineers Pvt. Ltd., a concessionaire engaged in the "Six Laning from Kodungallur to Edappally Section" of NH 66. The concessionaire was extracting ordinary earth based on agreements with landowners, and the petitioners argued these activities lacked the necessary environmental clearance from the State Environment Impact Assessment Authority (SEIAA). They sought to quash the quarrying permits issued without EC and halt further excavation.

Arguments and Counter-arguments

Petitioners' Stance: Advocate Paul Abraham Vakkanal, representing the petitioners, argued that in light of the Supreme Court's judgment in Noble M. Paikada v. Union of India , which struck down Entry 6 of Appendix IX of the EIA notification (exempting ordinary earth extraction for linear projects), environmental clearance is now compulsory. They contended that the subsequent clarification orders from the Supreme Court only pertained to NHAI work orders issued before March 21, 2024, and did not extend the exemption to concessionaires or their material procurement activities. They further argued that the quarry sites, located kilometers away from the highway construction site, did not qualify for any exemption even if it were still in effect.

Concessionaire 's Defence: Represented by Advocate M. Ajay , the concessionaire argued that the Supreme Court's clarification order protected projects for which work orders were issued prior to March 21, 2024. They submitted that the concession agreement between NHAI and M/s Oriental Structural Engineers was executed before this date, and the project was included in the list NHAI submitted to the Supreme Court. The concessionaire asserted that the clarification should logically extend to concessionaires, as NHAI projects are typically implemented through them. They argued denying them the exemption would contradict the purpose of the Supreme Court's clarification, which aimed to avoid disruption to ongoing highway projects.

Court's Reasoning: Narrow Interpretation of Supreme Court Clarification

Justice Ravi meticulously examined the Supreme Court’s judgment in Noble M. Paikada and its subsequent clarification orders. The court emphasized that the Supreme Court had explicitly invalidated Entry 6 because it was a "blanket exception, completely unguided, which is per se arbitrary." Regarding the clarification orders, Justice Ravi observed:

> "The clarificatory order only safeguards work orders relating to the extraction of ordinary earth, the sourcing of ordinary earth, and the borrowing of ordinary earth, for linear projects. The mere fact that Entry 6 does not speak about the beneficiary, cannot by itself mean that every person who is undertaking the said work is entitled to the exemption. The Hon'ble Supreme Court has held that Entry 6 is invalid. The clarification was issued only for the work orders issued by the NHAI and that too on an application filed by the NHAI."

The High Court distinguished between a work order issued by NHAI and the obligations of a concessionaire under a concession agreement. The court noted that the NHAI's work order to the concessionaire was for highway construction, not specifically for earth extraction. Extracting earth was an obligation the concessionaire undertook to fulfill the project.

Furthermore, the court highlighted the concessionaire's contractual responsibility to "ensure and procure and that its contractors comply with all applicable permits and applicable laws." This obligation, the court reasoned, included obtaining environmental clearances. Extending the Supreme Court's clarification to concessionaires' private contracts for earth procurement would be an overreach and undermine the original Noble M. Paikada judgment. The fact that the quarry site was 50 km away from the highway project further weakened the concessionaire's claim of exemption.

Justice Ravi also relied on previous judgments of the Kerala High Court in similar cases, such as M/s.Oriental Structural Engineers Private Ltd. v. The Circle Inspector of Police & Ors. and Nedumkunnam Grama Panchayat v. State of Kerala & Ors. , which had similarly ruled that environmental clearance was necessary in comparable situations.

Verdict and Implications

The Kerala High Court allowed all three writ petitions, quashing the quarrying permits issued to the concessionaire and landowners without valid environmental clearance. The court directed the respondents to ensure that no excavation, mining, or quarrying of ordinary earth occurs in the specified properties without obtaining prior EC from the SEIAA.

This judgment reinforces the importance of environmental regulations, even for large-scale infrastructure projects like National Highways. It clarifies that exemptions from environmental clearance must be narrowly construed and cannot be extended to private contractors or material suppliers involved in such projects. The ruling underscores that concessionaires are responsible for securing all necessary environmental permits, ensuring sustainable and legally compliant development.