LAWS(KER)-2022-2-58

JOSEPH Vs. STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY

Decided On February 14, 2022
JOSEPH Appellant
V/S
State Level Environment Impact Assessment Authority Respondents

JUDGEMENT

(1.) The petitioner approached the Senior Geologist for issuance of a letter of intent for conducting quarrying operations in 0.5886 hectors of land comprised in Sy.Nos.462/1-18-1, 462/1-5B-12 and 462/1-6B-13 of Pindimana Village in Kothamangalam Taluk in Ernakulam district, belonging to him. On 23/11/2017, the Senior Geologist granted a letter of intent to the petitioner, subject to the condition that the petitioner obtains all the required licenses and permits as per the Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as 2015 Rules). On 22/2/2018, the petitioner submitted Ext.P2 application before the 2nd respondent, for environmental clearance (hereinafter referred to as EC). The 2nd respondent took up the application for appraisal in its meeting held on 6/4/2018 and thereafter on 3/5/2018. The minutes of the said meetings have been produced as Exts.P3 and P4. After considering the proposal and the report of the Committee and after scrutiny, the 2nd respondent as per Ext.P4 decided to recommend the grant of EC to the petitioner. The grievance of the petitioner is that even though such a recommendation was made, orders granting EC were not issued within the time stipulated in paragraph 8 of the Environment Impact Assessment Notification issued in 2006 (hereinafter referred to as EIA 2006. As per paragraph 8(iii) of the EIA 2006, if the decision of the Regulatory Authority is not communicated to the applicant within the time stipulated in the said provision, the applicant may proceed as if the EC sought for has either been granted or denied by the Regulatory Authority in terms of the final recommendations of the Expert Appraisal Committee. In the case on hand, since the Expert Appraisal Committee has recommended the grant, it is the case of the petitioner that he is entitled to proceed as if the EC has been granted in his favour. It is his further case that, though the right had crystalised on the basis of the deemed grant, the 2nd respondent was duty bound to issue a certificate of EC to the petitioner, since such a certificate is required for submission before the other statutory authorities for getting the consent to operate, licence from the Panchayat, execution of quarrying lease, etc. On enquiry about the reason for not issuing the certificate, the petitioner came to understand that orders are not being issued owing to Ext.P5 order dtd. 13/9/2018 issued by the National Green Tribunal (NGT for short). In Ext.P5, the NGT had observed that applications for EC for areas of zero to five hectares are to be evaluated by the State Level Expert Appraisal Committee (SEAC for short) and not the District Level Expert Appraisal Committee (DEAC for short). The petitioner submits that order of the NGT was issued only on 13/9/2018 and as far as the petitioner is concerned, the petitioner already is entitled to EC by operation of the deeming provision as early as on 22/6/2018 by the passage of time stipulated in the EIA 2006. Ext.P5 order was reiterated by the NGT in Ext.P6 order dtd. 11/12/2018. It is the case of the petitioner that the 2nd respondent lost its jurisdiction and authority only with effect from 13/9/2018, the date on which Ext.P5 was issued by the NGT. As such, all cases where rights have crystallized prior to 13/9/2018, will have to be considered under the de facto doctrine and the proceedings and consequences cannot be taken away. The petitioner submitted representations before the 2nd respondent. Ext.P7 is such a representation dtd. 20/1/2019 which was followed by Ext.P8 representation dtd. 20/3/2019. When no action was being taken, the petitioner submitted a representation before the 1st respondent on 5/5/2020, which is produced as Ext.P9. When the 1st respondent also did not take any action on Ext.P9, the petitioner approached this Court by filing W.P.(C)No.12073 of 2020. By Ext.P10 judgment dtd. 19/6/2020, this Court disposed of the writ petition directing the 1st respondent to take up the representation submitted by the petitioner on 5/5/2020 and pass orders on the same, taking note of the contentions of the petitioner based on the judgments of this Court in W.A.No.2274 of 2018 and W.P.(C)No.20245 of 2018, relating to the effect of the deeming provision. The petitioner was directed to produce the judgment Ext.P10 along with the judgments referred to therein for consideration of the 1st respondent.

(2.) According to the petitioner, the matter was remanded with specific directions and the 1st respondent was to consider the impact of the deeming provision, and, not consider the applications submitted by the petitioner before the 2nd respondent afresh. The petitioner submitted Ext.P12 representation on 20/7/2020 before the 1st respondent. By Ext.P11 order, this Court enlarged the time granted to the 1st respondent for passing orders. When the petitioner came to know that the 1st respondent was proceeding as if it was considering a fresh application before it, the petitioner moved contempt application before this Court. Thereafter, the 1st respondent issued Ext.P13 order rejecting the request of the petitioner by stating that the 1st respondent will be considering the application afresh in accordance with the procedure prescribed in the EIA 2006. The petitioner has produced the judgments referred to in Ext.P10 judgment as Exts.P14 and P15 along with the writ petition. The petitioner has challenged Ext.P13, since it does not consider the issue relating to deemed EC, which has specifically been directed by this Court to be considered in Ext.P10 judgment.

(3.) The 1st respondent has filed a statement justifying their stand stating that as per Clause 8 of the EIA 2006, for constituting a deemed grant, what is required is a decision by concerned Expert Appraisal Committee and going by the judgment of the NGT, the concerned authority can only be seen as the 1st respondent and not the 2nd respondent. It is submitted that since the 2nd respondent does not have the necessary expertise, the NGT found them to be incompetent to go into such aspects relating to environmental impact study. It is further contended that this Court in Ext.P10 judgment has directed the 1st respondent to pass orders on the representations submitted by the petitioner in accordance with law and hence it cannot be treated as a case where this Court had directed consideration of the representation only from the point of view of the deemed grant. It is the case of the 1st respondent that this Court has not prohibited a consideration of the entire aspect.