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2021 DIGILAW 216 (KER)

Mani v. Environmental Engineer

2021-03-04

N.NAGARESH

body2021
JUDGMENT : 1. These Writ Petitions are filed against quarrying operations in the land comprised in Survey Nos.397/4-1, 397/4-2, 397/7-2, 398/4, 398/5 and 397/6 in Koovappady Village of Kunnathunad Taluk. Hence, they are heard together and being disposed of by a common judgment. 2. W.P.(C) No.30938/2016 has been filed by a resident of Koovappady Panchayat challenging Ext.P1 quarrying permit issued by the Department of Mining and Geology, Government of Kerala and Ext.P6 Consent to Operate issued by the Kerala State Pollution Control Board. The validity of Ext.P1 expired on 25.11.2016 and that of Ext.P6, on 31.03.2017. Hence, this Writ Petition has become infructuous. 3. W.P.(C) No.19908/2018 has been filed by two local residents challenging Ext.P2 Environmental Clearance (EC) given by the District Environmental Impact Assessments Authority (DEIAA). Ext.P9 D&O Licence issued by the Grama Panchayat is also under challenge, but the validity of the D&O Licence stands expired on 03.05.2018. 4. W.P.(C) No.29607/2018 has been filed by the petitioners challenging Ext.P1 NOC for quarrying, issued by the Executive Engineer, Periyar Valley Irrigation Project (PVIP). The validity of Ext.P1 stands expired on expiry of one year period from 11.07.2018. The validity of Ext.P3 Quarrying permit which is also under challenge, stands expired on 11.06.2019. Ext.P4 Consent to Operate issued by the Kerala Pollution Control Board, which is valid up to 31.03.2017, is also under challenge in this Writ Petition. 5. In W.P.(C) No.5839/2019, the petitioners seek to quash Ext.P3 NOC issued by the Executive Engineer, Public Health Division, KWA, Aluva and direct respondents 5 and 6 to ensure that registered rubber plantations exempted under the Kerala Land Reforms Act are not used for running granite quarry. 6. W.P.(C) No.18819/2019 has been filed challenging Ext.P2 Environment Clearance and Ext.P6 Explosive Licence in view of the pendency of Ext.P4 Charge Sheet. The parties to the Writ Petitions are referred to in this judgment, as they are arrayed in W.P.(C) No.19908/2018 (unless otherwise specified), for convenience. 7. In W.P.(C) No.19908/2018, the petitioners would state that they are residing near the proposed quarry in Koovappady Village, which is posing a threat to the residential houses of the petitioners and others. The 5th respondent-Project Proponent was conducting granite quarry for several years in the neighbourhood. Due to heavy blasting, houses including those of the petitioners were damaged. The 5th respondent applied for Environmental Clearance (EC) for continuing the operation of quarry suppressing relevant facts. The 5th respondent-Project Proponent was conducting granite quarry for several years in the neighbourhood. Due to heavy blasting, houses including those of the petitioners were damaged. The 5th respondent applied for Environmental Clearance (EC) for continuing the operation of quarry suppressing relevant facts. Existence of irrigation canals, bridges, water reservoirs etc. were suppressed in the application for Environmental Clearance (EC). Existence of pending litigation was suppressed in EC application. Though the petitioners and others raised valid objections against grant of environmental clearance, the 1st respondent District Environmental Impact Assessment Authority (DEIAA), Ernakulam issued Ext.P2 EC. The Panchayat authorities granted licence to the unit, on an incomplete application. Hence, Ext.P2 EC and Ext.P9 D&O licence are liable to be set aside. 8. The petitioners in W.P.(C) No.19908/2018 are the petitioners in W.P.(C) No.29607/2018. In W.P.(C) No.29607/2018, the petitioners contended that an irrigation canal is passing within 190 m. of the quarrying site. There are six bridges over the canal within a radius of 1 km. There are two public water resources of Kerala Water Authority within a radius of 400 m. Ext.P1 NOC has been issued by the Executive Engineer illegally, ignoring all these facts. No norms are laid down by the Government for grant of NOC for running quarries near canals, water tanks, bridges etc. Originally, the Second proviso to Rule 10 of the Kerala Minor Mineral Concession Rules, 2015 required a minimum distance of 100 metres from residential houses, public roads etc. for running granite quarry. The rules were illegally amended as per Ext.P2 specifying the distance as “within the distance specified by the Kerala State Pollution Control Board from time to time”. The amendment is illegal. Therefore, Ext.P3 quarrying permit is liable to be set aside. 9. In W.P.(C) No.5839/2019 filed by the very same petitioners, it has been alleged that the Executive Engineer, PH Division, KWA has issued Ext.P3 NOC, without any authority. The Executive Engineer, KWA is incompetent to give recommendations or reports. Ext.P3 has been issued without ensuring the protection of water tanks from the probable damage that may result from the operation of quarry. Hence, Ext.P3 is liable to be quashed. 10. In W.P.(C) No.18819/2019 filed by another resident of Koovappady Grama Panchayat, the petitioner stated that the EC has been issued by the Chairman, DEIAA in violation of guidelines and statutory provisions. Hence, Ext.P3 is liable to be quashed. 10. In W.P.(C) No.18819/2019 filed by another resident of Koovappady Grama Panchayat, the petitioner stated that the EC has been issued by the Chairman, DEIAA in violation of guidelines and statutory provisions. The DEIAA has failed to enquire into and satisfy whether data provided in the application for EC were correct. The DEIAA failed to obtain NOC from the Executive Engineer, KWA and Executive Engineer, PVIP before granting EC. The DEIAA failed to take note of the criminal case registered against the grantee of EC and his Blaster, which showed that serious physical injury was sustained by a student due to quarrying operation. 11. In the counter affidavit filed by the 3rd respondent-Geologist in W.P.(C) No.19908/2018, the 3rd respondent alleged that the petitioners have no bona fides and have not made out a case to warrant interference of this Court under Article 226 of the Constitution of India. Quarrying permit has been issued after an inspection conducted on 15.02.2017 and after due process of law. The quarrying area satisfied statutory distance criteria as contemplated under law. The 5th respondent has obtained all statutory permissions and licences to hold a valid quarrying permit. The irrigation canal is at a distance of 750 m. from the quarrying area. The nearest road is 107m. far and the nearest residential building is at a distance of 109m. Before issuing Ext.P2 EC, the 1st petitioner was heard. The DEIAA also conducted a site inspection on 22.06.2018. There are no residential or other structures within the prohibitory distance. Though Ext.P6 stop memo was issued, the 5th respondent obtained Ext.P2 EC. The petitioners have alternate statutory remedy. 12. The 5th respondent, who is the grantee of EC, filed his counter affidavit and additional counter affidavit. The 5th respondent has obtained all valid licences/permissions/NOC from statutory authorities to conduct quarrying operations. In the additional counter affidavit, the 5th respondent stated that the petitioners have absolutely no cause of action. The residence of petitioners is almost 250 m. far from the quarrying site. For challenging environmental clearance and the D&O licence, there are effective alternative statutory remedies. There is no reason to believe that the petitioners’ house buildings are damaged due to quarrying operations. The allegation that there are six bridges over the canal, is denied. The existence of human habitations were properly shown in the sketch submitted to the authorities. For challenging environmental clearance and the D&O licence, there are effective alternative statutory remedies. There is no reason to believe that the petitioners’ house buildings are damaged due to quarrying operations. The allegation that there are six bridges over the canal, is denied. The existence of human habitations were properly shown in the sketch submitted to the authorities. The 1st respondent has considered the objections raised by local residents. A committee deputed by the DEIAA inspected the site before grant of EC. The Writ Petition is therefore liable to be dismissed. 13. The 4th respondent, who is Secretary to the Grama Panchayat, stated in his counter affidavit that entire aspects were considered on merits before issuing license to conduct quarrying operations. Ext.P2 EC was taken into account by the Panchayat. As the expert body had considered all aspects of the case, the Panchayat Committee resolved to grant licence to the 5th respondent. 14. The counsel for the petitioner in W.P.(C) No.19908 of 2018 argued that Ext.P2 EC is obtained by deliberate concealment of relevant materials and submitting incorrect and misleading data before the DEIAA. The DEIAA insisted prior NOC from the Irrigation Department which owned a canal and a number of bridges near the quarry. Prior NOC of Kerala Water Authority was also not obtained. And later NOC was issued in violation of Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003. 15. The learned counsel for the petitioner further argued that the DEIAA who granted Ext.P2 EC did not consist of competent persons for proper environmental impact assessment. There were no experts in the field of groundwater, in the committee. Opinion of structural engineers were not obtained. The learned counsel for the petitioner further argued that DEIAA is not legally competent to issue Ext.P2 EC since EC for quarries below 5 Hectares is to be issued only by State Environmental Impact Assessment Authority. There are procedural lapses in the proceedings leading to Ext.P2. The petitioners are entitled to live in a pollution free atmosphere. The commercial interest of the 5th respondent cannot supersede the right guaranteed to the petitioners under Article 21 of the Constitution of India. 16. Ext.P9 D&O licence ought to have been issued by the Secretary. In this case, it is seen that Ext.P9 D&O licence has been issued on the basis of the decision taken by the Committee of the Grama Panchayat. 17. 16. Ext.P9 D&O licence ought to have been issued by the Secretary. In this case, it is seen that Ext.P9 D&O licence has been issued on the basis of the decision taken by the Committee of the Grama Panchayat. 17. Placing reliance on the judgment of this Court in Sobin P.K. v. District Geologist, Ernakulam and others ( 2020 (1) KHC 1 ), the learned counsel for the petitioner argued that Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003 would take in Water Tanks maintained by the Kerala Water Authority and NOC of Kerala Water Authority was also necessary. Relying on the judgment of this Court in Joseph v. State of Kerala ( 2003 (3) KLT 296 ), the learned counsel argued that the petitioners have a superior right to life under Article 226 and no privilege can be given to any Project Proponent which would undermine the right to life of petitioners. 18. The learned counsel for the 5th respondent, on the other hand, argued that the petitioners have no locus standi to file the Writ Petition as none of their fundamental rights are infringed. The 5th respondent had disclosed all facts and made available all relevant documents before the DEIAA for grant of EC. All the petitioners are residing beyond the statutory limits and they have no legal right to approach this court. The DEIAA has considered the issues raised by the petitioners. 19. The 5th respondent further stated that the petitioners had approached the Kerala State Human Rights Commission. They forwarded complaint to DEIAA also. Now, by discarding the jurisdiction of the Human Rights Commission and DEIAA, the petitioners have filed these Writ Petitions. The Writ Petitions are abuse of the process of this Court. The petitioners have effective alternate remedy available. The Writ Petitions are therefore liable to be dismissed. 20. I have heard the learned counsel for the petitioners in the Writ Petitions and the learned Government Pleader and the learned counsel appearing for the respondents. 21. The petitioners state that an irrigation canal is passing at a distance of 750 m. from the quarrying site. There are six bridges over the canal within a radius of 1 Km. and a public water reservoir within a radius of 400 m. The Kerala Irrigation and Water Conservation Act mandates written permission from Irrigation Officer for conducting mining or quarrying operation. There are six bridges over the canal within a radius of 1 Km. and a public water reservoir within a radius of 400 m. The Kerala Irrigation and Water Conservation Act mandates written permission from Irrigation Officer for conducting mining or quarrying operation. Ext.P2 is issued without obtaining permission from the 2nd respondent-Executive Engineer, Irrigation Department. An application for Environmental Clearance presupposes that the applicant has obtained a Consent to Operate from the Pollution Control Board, Explosive Licence issued by a competent authority, D&O licence from Local Self Government and approved mining plan. A pre-feesibility report and district survey report are to be uploaded along with the application for EC. 22. Ext.P2 EC would show that a Sub Committee of the DEAC visited the quarry project site and submitted a report. The Committee opined that the eco-friendly plan presented by the 5th respondent is appreciative to incorporate the scientific and modern methods of mining. The inspection team looked into the impacts of ecosystem, flora, fauna, soil, Landform and air quality which are likely to be altered on starting mining operations. The potential for natural hazards like landslides, surface shift, erosion, flooding or any adverse environmental conditions were ruled out. 23. The inspection also revealed that there are no perennial watercourses or streams within the prohibited area. The proposed site did not possess any high-quality or valuable resources other than granite building stone. Therefore, the DEAC approved the mining project and recommended the DEIAA to grant EC. 24. The DEIAA considered the recommendations of the DEAC. The DEIAA noticed that there are complaints about some cracks on nearby buildings. The DEIAA noted that the shortest distance of the proposed quarry and the residences in question is 100 m. The complainants did not submit any documents in support of their claims. Considering the recommendations of the DEAC, it was decided by the DEIAA to grant Environmental Clearance. Ext.P2 would disclose that the DEIAA had caused a site inspection before issuance of EC and found that there are no residences within the statutory distance. Accordingly, the DEIAA issued EC on certain conditions, one of which was that all statutory clearances should be obtained as applicable, by the Project Proponent from the respective competent authorities including that for blasting and storage of explosives. 25. Accordingly, the DEIAA issued EC on certain conditions, one of which was that all statutory clearances should be obtained as applicable, by the Project Proponent from the respective competent authorities including that for blasting and storage of explosives. 25. It has to be noted that the DEIAA caused a site inspection and did not notice any suppression of facts or misleading information in the application for EC submitted by the Project Proponent. As regards criminal proceedings against the 5th respondent, it has been stated that all accused in the said S.C. No.646/2016 were acquitted. The allegation against Ext.P9 D&O licence is that the application submitted by the 5th respondent was incomplete. However, the Secretary to the Grama Panchayat has filed affidavit to the effect that the application submitted by the 5th respondent was complete in all respects. 26. The petitioners contend that the amendments made to Rule 10 of the Kerala Minor Mineral Concession Rules, 2015, are illegal. There is no allegation that the Rules have been amended by an authority who is not competent to do so. The Rules do not infringe any provisions of Part III of the Constitution of India. I do not find any merit in the contention of the petitioners that the authorities under the Kerala Minor Mineral Concession Rules cannot adopt the distance criteria specified by the Kerala Pollution Control Board. 27. It is seen that the 4th respondent-Grama Panchayat has issued D&O licence to the Project Proponent. The 4th respondent considered the fact that Ext.P2 EC was granted by an expert body consisting of the District Collector, Sub Collector, DFO and Member of National Board for Wildlife. Elements including pollution and impact on wildlife were also considered. Though certain persons complained against grant of D&O licence to the 5th respondent, the objections were found not based on any materials. It was under such circumstances that the Panchayat granted D&O licence. 28. Thus, it is evident that the DEIAA has granted EC, after causing an inspection of the locality and considering the objections of the petitioners. The contention of the petitioners is that there are residences, bridges, canals and water reservoirs within prohibited distance. The argument of the petitioners is disputed by the official respondents as well as the 5th respondent. 28. Thus, it is evident that the DEIAA has granted EC, after causing an inspection of the locality and considering the objections of the petitioners. The contention of the petitioners is that there are residences, bridges, canals and water reservoirs within prohibited distance. The argument of the petitioners is disputed by the official respondents as well as the 5th respondent. Though the petitioners relied on certain documents to establish their case in this regard, since the facts involved are disputed, this court in exercise of the jurisdiction under Article 226 cannot enter into a factual adjudication on those aspects. 29. The petitioners argue that under the Kerala Irrigation and Water Conservation Act, it is mandatory to obtain written permission from Irrigation Officer for conducting mining or quarrying operations using explosives within a radius of 1 km. of any bridge, dam, check dam or any other work, structure or construction, owned controlled or maintained by the Government, a local authority or any other authority. The petitioners rely on Ext.P3 judgment of a learned Single judge in W.P.(C) No.23565/2017, wherein it has been held that recommendations made by DEAC without considering the impact of quarrying operations within the prohibited distance would be illegal. Hence, Ext.P2 EC is to be declared as illegal. 30. In the case of the 5th respondent, the Executive Engineer, PVIP No.1, Perumbavoor has issued Ext.R5(f) proceedings dated 11.07.2018 granting NOC for conducting quarrying operations. The Executive Engineer of the P.H. Division, KWA has also issued Ext.P3 NOC (in W.P.(C) No.5839/2019). It is true that Ext.P2 EC was issued prior to the issuance of Ext.R5(f) and Ext.P3 NOC. Since the competent authority under the Irrigation Department and KWA have issued NOC, this Court does not deem it necessary to interfere with Ext.P2 EC for the sole reason that the DEIAA has issued EC before the issuance of NOC by the Irrigation Engineer. 31. It is submitted at the Bar that W.A.No.2388/2017 is pending against Ext.P3 judgment in W.P.(C) No.23565/2017. 32. It is to be noted that the petitioners have an alternate remedy against Ext.P2 EC under Section 16 of the National Green Tribunal Act. When an alternate remedy is available, normally the petitioners cannot be permitted to bypass the said remedy. 31. It is submitted at the Bar that W.A.No.2388/2017 is pending against Ext.P3 judgment in W.P.(C) No.23565/2017. 32. It is to be noted that the petitioners have an alternate remedy against Ext.P2 EC under Section 16 of the National Green Tribunal Act. When an alternate remedy is available, normally the petitioners cannot be permitted to bypass the said remedy. The petitioners have not made out a case warranting interference in Ext.P2 EC, in exercise of the powers of this court under Article 226 of the Constitution of India. It may also be noted that Clause 52 of Ext.P2 gives power to the authorities to withdraw the EC for concealment of any factual data. Clause 53 provides that the DEIAA may revoke or suspend the EC for non-implementation of any of the conditions in the interest of environmental protection. 33. The petitioners have challenged Ext.P9 D&O licence issued by the Grama Panchayat. The 4th respondent has specifically stated that the application submitted by the 5th respondent for grant of D&O licence was complete in all respects and it is evident that the 4th respondent has also considered the field report. In the circumstances, this Court does not find any reason to hold that Ext.P9 D&O licence was issued illegally. 34. In W.P.(C) No.29607/2018, the grievance of the petitioners is regarding issuance of Ext.P1 NOC by the Executive Engineer, PVIP. According to the petitioner, Clause 4 of Ext.P1 provides that if due to the functioning of the quarry, the working of canal is put to danger, the quarry owner would be liable to restore the canal at own expense without any objection. The learned counsel for the petitioner would contend that the said condition would imply that canal will be ruined and water supply will be stopped due to quarrying operations. The condition mentioned in Ext.P1 is unenforceable as there is no agreement from the part of the Project Proponent for the reconstruction of the canal in case of damage. 35. The said argument is not acceptable. When NOC has been granted on such condition, if the Project Proponent proceed with the quarrying operation on the strength of such NOC, it would constitute an enforceable condition under which the Project Proponent will be liable to restore the canal in case of damage due to quarrying operations. 35. The said argument is not acceptable. When NOC has been granted on such condition, if the Project Proponent proceed with the quarrying operation on the strength of such NOC, it would constitute an enforceable condition under which the Project Proponent will be liable to restore the canal in case of damage due to quarrying operations. Respondents 1 to 6 have statutory mechanism to recover any damage in case it happens due to the functioning of the quarry. The argument of the petitioners is therefore liable to be rejected. 36. The petitioners challenged Ext.P2 amendments to Rules 10 and 40 of the Kerala Minor Mineral Concession Rules, 2015 in order to impugn Ext.P3 quarrying permit. The contention is that the 1st respondent has sub-delegate its rights of making rules. The amendment provides that the prohibited distance should be those specified by the Kerala State Pollution Control Board from time to time, which prescription is vague, contend the petitioners. It is the conditions laid down by the Government which should be followed by the Pollution Control Board and not vice versa. Going through the amended provisions, this court finds no excessive delegation. Pollution Control Board is an expert statutory body which is competent to lay down criteria for permitting potentially polluting activities including quarries. There is no illegality in the action of the authorities in adopting the distance criteria laid down by the Pollution Control Board. 37. The challenge in W.P.(C) No.5839/2019 is against Ext.P3 NOC in the Writ Petition issued to the Project Proponent, by the Executive Engineer, P.H. Division, KWA. It is alleged that said Executive Engineer is not the Authority competent to issue NOC for quarrying operations. Only SEIAA can give clearance. The said Ext.P3 is issued without regard to probability of damage. While issuing the said Ext.P3 NOC, the authority under the KWA noted that the site of the quarry is at a radial distance of 480 m. away from the 9 lakh capacity overhead tank and 281 m. away from the defunct OH tank of 65000 litres capacity. 38. Before issuing notice NOC, the advise of the Director, Centre for Earth Science Studies and National Centre for Earth Science Studies were obtained. In their studies, it was noted that leaks are occurring in the pipelines even when quarries are not functioning. 38. Before issuing notice NOC, the advise of the Director, Centre for Earth Science Studies and National Centre for Earth Science Studies were obtained. In their studies, it was noted that leaks are occurring in the pipelines even when quarries are not functioning. The leak is due to heavy traffic on the road and for other technical reasons such as air blocks in the road. The old-age of pipes, pressure variation etc. are also contributing to the leaks. Therefore, leakages in pipelines are not as a result of quarrying operation. In fact, the Centre for Earth Science Studies has also ruled out the possibility of falling rock pieces beyond the buffer distance of hundred metres. Therefore, the structures do not face any danger. As the Executive Engineer, PH Division, Kerala Water Authority has issued the NOC after obtaining report of Centre for Earth Science Studies, this Court do not find any reason to interfere with the NOC. 39. In W.P.(C) No.18819/2019, the challenge is against Ext.P2 EC and Ext.P6 Explosives Licence issued to the Project Proponent. The grounds on which the EC is challenged are similar to the grounds urged in W.P.(C) No.19908/2018, which are already dealt with herein above. The grievance against issuance of Ext.P6 Explosives Licence, is that the Blasters Certificate issued to the Blaster engaged by the Project Proponent, Ext.P7, has already expired and hence Ext.P6 Explosives Licence is not liable to be renewed. 40. From the pleadings and arguments, it has come out that there was a criminal case against the Project Proponent, SC No.646/2016 and the court has acquitted all the accused. As regards the validity of Ext.P6 Explosives Licence, the validity of Ext.P6 licence stands expired on 31.03.2019. Therefore, this Court finds no reason to adjudicate on the validity of the said expired licence at this stage. For the reasons stated hereinabove, the Writ Petitions are dismissed.