Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 7TH DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943 WA NO. 33 OF 2022 AGAINST THE JUDGMENT IN W.P.(C). No.21423/2021 DATED 23.12.2021
APPELLANT/PETITIONER: V.K.L.INFRASTRUCTURE FACILITIES PRIVATE LTD., MADAPURAM, KUTHIRAKULAM. P.O. VEMBAYAM, THIRUVANANTHAPURAM-695 615. REPRESENTED BY ITS DIRECTOR SHAJI MATHEW, AGED 44 YEARS, BY ADVS. P.B.SAHASRANAMAN T.S.HARIKUMAR RESPONDENTS/RESPONDENTSS: 1 STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY(SEIAA), KERALA), REPRESENTED BY ITS MEMBER SECRETARY, KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANUR, THIRUVANANTHAPURAM 695 001 2 DISTRICT COLLECTOR, COLLECTORATE, 2ND FLOOR CIVIL STATION BUILDING, CIVIL STATION ROAD, THIRUVANANTHAPURAM-695043. OTHER PRESENT: SRI. M.P.SREEKRISHNAN, SC FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 7th day of February, 2022 S. Manikumar, CJ. Before the writ court, decision of 112 th meeting of the State Level Environment Impact Assessment Authority (SEIAA), Kerala dated 14 th, 15th and 16th September 2021, recommending the District Collector to issue a stop memo to VKL Infrastructure Facilities Pvt. Ltd., Thiruvananthapuram/appellant herein, was under challenge.
2. Decision taken by the said authority on the complaint against functioning of VKL Infrastructure Facilities Pvt. Ltd., Thiruvananthapuram is extracted hereunder:
(B) Complaint against functioning of VKL Infrastructure Facilities Pvt. Ltd, Manickal Village, Nedumangad, Thiruvananthapuram. Environmental Clearance for two lease areas of M/S VKL.
Infrastructure Facilities Pvt. Ltd was issued in a single order
no. 753(A)/B/SEIAA/EC1/302/2015 dated 13-09-2017. Total area under 753(A) is 4.3211 Ha and under 753(B) is 4.0394 Ha. Life of mine 753 (A) is 16 years and 753(B) is 22 years. Validity of EC is five years. Main complaints are: i) Quarrying is done very near to the Thampuran Para against a specific order no B7-2372/2012 dated 17-4-2013 of the District Collector, Thiruvananthapuram. The said
order prohibits any type of mining and allied activities
within 200 m radius of Thampuran Para and Thampuratty Para. ii) Quarrying is done in govt /puramboke land. Though surveying is done, no final decision is seen taken on this by the Revenue Department. iii) There are houses down the slope. The aerial distances to these houses were not considered while granting EC and allied permits. Fly rocks is a problem to these houses.
Recommendation of SEAC
1) Functioning of the said quarry may be stopped with immediate effect. 2) Mining & Geology Department and Revenue Department may be requested to ensure compliance of the order no B7- Thiruvananthapuram (Copy enclosed). 3) Revenue Department may be requested to take a final decision on encroachment of puramboke/govt. land by the quarry owner before allowing further mining in the area. 4) Aerial distances to nearby houses have to be measured and the threat due to explosions should be assessed by the Mining & Geology Department considering the slope of the hill.
Decision of Authority:
1. Request District Collector to issue a stop memo with immediate effect as recommended by SEAC.
2. SEIAA Secretariat to take action on point no 2, 3, and 4 listed above.
3. The decision on functioning of the quarry will be decided after getting satisfactory replies from respective authorities on issues raised above and after a field inspection by SEAC.
3. Adverting to the submissions, vide judgment dated
23.12.2021 in W.P(C). No.21423 of 2021, la earned Single Judge held
that the decision of SEAC to recommend a temporary cessation of quarrying activities cannot be said to be illegal warranting interference.
4. At the same time, learned Single Judge directed the District
Collector, Thiruvananthapuram/respondent No.2 therein, to make available all the reports required before the State Environment Impact Assessment Authority, Thiruvananthapuram, for proper consideration of the request made by the petitioner for withdrawal of the stop memo.
5. For brevity, operative portion of the judgment is reproduced:
“7. I have considered the contentions advanced. The petitioner raises legal contentions with regard to the issuance of the stop memo. However, it is not in dispute before me that several complaints have been raised with regard to the functioning of the quarry and inspections have also been carried out at the instance of the SEAC and reports have been generated, apparently, with notice to the petitioner. Though it is contended
that the reliance on Ext.P3 stop memo is completely unjustified in the light of Ext.P4, the learned Government Pleader drew my attention to the specific condition provided in the EC itself that a buffer distance of 100m must be left as no development zone from the line connecting the top points of the two rocky knobs of Thampuran Para and the eastern edge of the DTPC building. It is, therefore, contended that in case the petitioner has actually conducted any quarrying activity within 100m of the Thampuran Para, the same could be violative of the conditions in the EC dehors the legal contentions raised with regard to the vacating of Ext.P3 order by Ext.P4. It is further submitted that further violations which have been raised in the complaints are also of an extremely serious nature and that a proper resolution of the said violations which were noticed in the repeated site visits are to be completed before the petitioner can be permitted to carry out the quarrying operations. On a consideration of the facts, I notice that the Sub Committee had carried out inspections in the quarry after informing the project proponent of the same. Though it is true that the show-cause notices and the stop memo issued to the petitioner have not been rendered after specifically putting the petitioner on notice, I also notice that the EC itself contains stringent conditions which are required to be followed by the petitioner. In the factual situation available in the instant case, I am of the opinion that the contention that the petitioner ought to have been specifically put on notice before a decision had been taken by the SEAC cannot be accepted in the facts and circumstances of the instant case. The SEAC has only recommended a temporary cessation of the quarrying activities until the apprehensions which were raised on the basis of site
visits stand appropriately resolved.
8. In the above view of the matter, I am of the opinion that
the contention raised by the petitioner that the petitioner is to be permitted to carry out the quarrying activities, in accordance with the EC and quarrying permit, without waiting for the reports as called for by the SEAC cannot be accepted. However, in view of the fact that the petitioner has a specific case that he had been operating the quarry in accordance with the EC and the quarrying permit, I am of the opinion that the reports called for by the SEAC are liable to be expedited and placed before the next meeting of the SEAC so that an appropriate decision can be taken in the matter. The 2nd respondent is, therefore, directed to take appropriate steps to make available all the reports required before the 1st respondent for a proper consideration of the request made by the petitioner for withdrawal of the stop memo. Appropriate action shall be taken within a period of one month from the date of receipt of a copy of this judgment. Writ Petition is ordered accordingly."
6. The said decision is impugned in this writ appeal on the grounds inter alia that a notice, as contemplated under rule 4 of Environment Protection Rules, 1986, has not been served.
7. We have heard learned counsel for the appellant. However,
during the course of arguments, we find that acting on the decision Exhibit P2 of SEAC, the District Collector, Thiruvananthapuram has already issued a stop memo vide its proceedings dated 12.10.2021.
8. Posed with the question as to whether the said order of the
District Collector has been challenged, Mr. P.B. Sahasranaman, learned counsel for the appellant submitted that instead of pursuing the present writ appeal, the appellant would challenge the order of the District Collector directing to stop quarrying activities and directing the Tahsildar concerned to take appropriate action in accordance with the Kerala Land Conservancy Act and Rules.
9. Having regard to the direction issued in paragraph No.8 of
impugned judgment, Mr. P.B. Sahasranaman, learned counsel for the appellant also submitted that sufficient protection has already been given by the writ court directing the District Collector, Thiruvananthapuram to make available all reports before the State Environment Impact Assessment Authority, Member Secretary, Thiruvananthapuram/first respondent, for appropriate consideration of the request for withdrawal of stop memo.
10. However, it is the concern of learned counsel that State Environment Appraisal Committee (SEAC) has not been reconstituted, despite the directions given by this Court.
11. Submission of learned counsel for the appellant that the
order of the District Collector, Thiruvananthapuram dated 12.10.2021
will be challenged before the court, in accordance with law, is placed on record. Accordingly, there is no need to delve into the issues raised in this writ appeal. Writ appeal is disposed of accordingly. Sd/- S. Manikumar, Chief Justice Sd/- Shaji P. Chaly, Judge sou.