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2018 DIGILAW 169 (KER)

Raji Mathew v. Directorate of Mining and Geology

2018-02-20

A.K.JAYASANKARAN NAMBIAR

body2018
JUDGMENT : As all these Writ Petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment. 2. In all these Writ Petitions, the petitioners are persons who are engaged in stone quarrying and crushing operations. It is not in dispute that they all hold quarrying leases/permits issued by the statutory authorities under the Mines and Minerals (Development and Regulation) Act, 1957 read with the Kerala Minor Mineral Concession Rules, 2015. It would appear that the petitioners had all approached the respective Environment Impact Assessment Authorities (either district level or State level) under the Environment (Protection) Act, Rules and Notifications issued there under, for the purposes of obtaining an Environmental Clearance certificate. The applications submitted by the petitioners were not considered/processed by the respective Environment Impact Assessment Authorities on the ground that there was an ambiguity with regard to whether or not the area, where the quarrying/crushing operations were proposed, fell within the ambit of Ecologically Sensitive Areas (ESA) as notified by the Central Government, in the Ministry of Environment, Forest and Climate Change. In the Writ Petitions, the prayers sought for are essentially to direct 826 the respective Environment Impact Assessment Authorities to process the applications for Environmental Clearance, expeditiously, by treating the petitioners project as falling under non-ESA category. 3. A counter affidavit has been filed for and on behalf of the additional 7th respondent in W.P.(C) No.31959 of 2017, wherein the details of the steps taken by the Committee constituted by the State Government to finalise the cadastral map of ESA villages is narrated and it is stated that, after identifying particular villages in the State, which could be categorised as ecologically sensitive areas, a further survey was done so as to identify the particular areas within those villages, which could be categorised as ESA for the purposes of the draft notification issued by the Central Government in the Ministry of Environment, Forest and Climate Change. 4. I have heard the learned counsel appearing for the petitioners in all these Writ Petitions, the learned Government Pleader appearing for the official respondents from the State as also the learned Standing Counsel appearing for the Pollution Control Board, in all these Writ Petitions. 5. 4. I have heard the learned counsel appearing for the petitioners in all these Writ Petitions, the learned Government Pleader appearing for the official respondents from the State as also the learned Standing Counsel appearing for the Pollution Control Board, in all these Writ Petitions. 5. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find from the averments in the Writ Petition, as also the averments in the counter affidavit filed on behalf of the 7th respondent, that the main issue that arises in the instant cases is with regard to the identification of ecologically sensitive areas within the State of Kerala, for the purposes of imposing restrictions in respect of specified activities within the said areas. It is the contention of the petitioners in these Writ Petitions that the areas, where they are carrying on quarrying/crushing operations, are not those that have been identified by the State Government as falling under the category of ecologically sensitive areas. I find that, by a draft notification dated 27.02.2017, produced as Ext.P10 in W.P.(C) No.31959 of 2017, the Central Government in the Ministry of Environment, Forest and Climate Change had, after taking note of the report submitted by the High Level Working Group constituted by the Ministry to study the preservation of the ecology, environmental integrity and holistic development of the Western Ghats, found that it was necessary to notify an identified area of 56,825 Sq.km spread across six States namely, Gujarat, Maharashtra, Goa, Karnataka, Kerala and Tamil Nadu as the Western Ghats ecologically sensitive area. With regard to the fixing of the boundaries and description of the Western Ghats eco sensitive area in the State of Kerala, the draft notification finds that the eco sensitive area in the State of Kerala is spread over an area of 9993.7 Sq.Km., which includes 917 Sq.Km, of forest area and 886.7 Sq.Km. of non-forest area and the boundary and description of eco sensitive area and the village-wise details of eco sensitive area proposed by the State Government are available on the website of the Kerala State Biodiversity Board. of non-forest area and the boundary and description of eco sensitive area and the village-wise details of eco sensitive area proposed by the State Government are available on the website of the Kerala State Biodiversity Board. With a view to ascertain the area that has been notified in the website of the Kerala State Biodiversity Board, this Court called for a report from the additional 7th respondent and, it is in response to the said request for a report, that 827 the counter affidavit has been filed for and on behalf of the additional 7th respondent. Along with the counter affidavit of the said respondent, the recommendations of the expert committee, including the recommendations as well as survey based ESA details as approved by the Committee and submitted to the Government, have been produced in the form of two volumes, marked together as Ext.R7(e). It is clear from a perusal of the said document, together with the averments in the counter affidavit of the 7th respondent that, while the cadastral map for the ESA Villages in Idukki District (in W.P.(C) No.31959 of 2017), in Pathanamthitta District (in W.P.(C) No.2950 of 2018) and in Kottayam District (in W.P.(C) No.3644 of 2018) clearly shows the Peerumede, Konny and Kootikkal respectively, as ecologically sensitive villages, the list drawn up of ESA lands in the said villages shows that only the areas falling in particular Block numbers, survey numbers and sub divisions thereunder are classified as ESA for the purposes of the draft notification referred above. The question then arises as to whether, the mere identification of lands as ESA for the purposes of the draft notification, would enable the petitioners, whose lands admittedly do not come within the lands specified as ESA for the proposes of the draft notification, to contend that their applications for environmental clearance should now be considered by the respective Environment Impact Assessment Authorities by treating them as not falling under an ESA? In this connection, it is relevant to note that, a particular procedure is specified in S.3 of the Environment (Protection) Act, read with R.5 of the Environment (Protection) Rules under the Environment (Protection) Act, and Rules, for finalising a draft notification. In this connection, it is relevant to note that, a particular procedure is specified in S.3 of the Environment (Protection) Act, read with R.5 of the Environment (Protection) Rules under the Environment (Protection) Act, and Rules, for finalising a draft notification. In particular, the provisions of R.4(3) mandate that whenever it appears to the Central Government that it is expedient to impose prohibitions or restrictions on the locations of an industry or the carrying on of process and operations in an area, it has to notify in the official gazette, its intention to do so. The manner in which the notification must be issued, as also the procedure that has to be thereafter followed for the purposes of finalising the notification, is spelt out in R.5(3) of the Environment (Protection) Rules. It becomes apparent from a reading of the said Rule that the Central Government, after giving notice of its intention to impose prohibitions or restrictions on location of an industry or the carrying on of processes and operations in an area, has to consider objections by persons who are affected by such a notification and thereafter, it has to take a decision with regard to finalisation of its intention to impose prohibitions or restrictions in the particular area that was notified. It follows, therefore, that if any area is not included in the draft notification, the process of finalisation that follows cannot result in the inclusion of any such area that is not specified in the draft notification. It is in the backdrop of this statutory procedure, that one must examine the effect of an exclusion of the area where the petitioners are carrying on operations, from the draft notification dated 27.02.2017. In my view, since the area where the petitioners are carrying on the quarrying operations is not presently included in an area that has been identified as ecologically sensitive area for the purposes of the draft notification, the mere fact that there is a delay in the finalisation of the said draft notification, 828 ought not to stand in the way of a consideration of the applications submitted by the petitioners for environmental clearance, pending the issuance of final notification by the Central Government. Under the said circumstances, I am of the view that the Writ Petitions must necessarily succeed and be allowed to the limited extent of directing the Environment Impact Assessment Authorities concerned to consider the applications for environmental clearance submitted by the petitioners herein, in accordance with the 2006 Environment Impact Assessment Notification as amended from time to time, and by treating the area, where the petitioners are carrying on their quarrying operations, as not falling under the ambit of ecologically sensitive areas for the purposes of the draft notification referred above. The Environment Impact Assessment Authorities concerned shall bear in mind that, the starting point of limitation for the purposes of the deeming provisions under the 2006 Notification, in the case of the applications submitted by the petitioners herein, will commence from the date of production of a copy of this judgment before the said authorities.