SAKEER Vs. STATE OF KERALA REPRESENTED BY ITS SECRETARY, FISHERIES AND PORT DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM

JUDGEMENT

(1.) The petitioner, who is a resident of Ponnani, is aggrieved by Ext.P21 consent issued by the Kerala State Pollution Control Board to the 9th respondent/10th respondent to establish a Sand Purification Unit. The case in the writ petition is essentially that the maintenance dredging works in the portion of the Bharathapuzha river covering a stretch of 21/2 kms. from upstream to the estuary near Ponnani, was awarded to various Co-operative Societies, after dividing the area into separate zones. It is stated that, with effect from 17.8.2016, the work was entrusted by the Government to the Local Self Government Department. Although various writ petitions are filed challenging the said Government Order, the said writ petitions did not meet with any degree of success. Thereafter, based on a project mooted by the 10th respondent, the State Government granted approval to the setting up of a Sand Purification Unit. The work in question was to be awarded on the Swiss Challenge Method, whereby, bids were invited in respect of the project conceived by the project proponent, and on completion of the bidding process, the project proponent would be given a right of first refusal, and in the event of his exercising the said right, the highest bidder in the tender process would be awarded the work subject to a compensation amount being paid to the project proponent for the studies conducted for the project. Although challenges were mounted through various writ petitions to the Swiss Challenge Method that was approved by the Government, the said writ petitions were dismissed by this Court, and the Writ appeals preferred against the said judgments were also dismissed by this Court. Thereafter, the work of running the Sand Purification Unit was awarded to the project proponent itself, and the said project proponent applied for the necessary consent to establish from the Kerala State Pollution Control Board. It is sated that Ext.P21 consent was granted by the Kerala State Pollution Control Board to the 10th respondent to establish the Unit, and this was done by treating the Unit as falling under the 'Orange category'. The challenge in the writ petition is premised on three grounds, namely, that at the time of granting the consent, the Environmental Engineer had not obtained the clarification with regard to categorisation, which he had sought from the Chairman of the Kerala State Pollution Control Board. Secondly, it is pointed out that as per the classification norms prescribed by the Central Pollution Control Board, the classification of the project had to be under the 'Red category'. Thirdly, it is contended that inasmuch as the activity contemplated in the Unit of the 10th respondent was mineral beneficiation, an Environmental Clearance Certificate had necessarily to be obtained by the said respondent before commencing any activities pursuant to the award of the work to him.

(2.) The writ petition was admitted by this Court, and by an interim order dated 8.12.2016, there was an interim stay granted against the operation of Ext.P21 for a period of one month. The said interim order has been extended from time to time and continues to be in force even today.

(3.) A counter affidavit has been filed on behalf of the 10th respondent, wherein, the stand taken is that the petitioner has no locus standi to maintain the writ petition against the 10th respondent. It is stated that the Unit of the 10th respondent is situated far away from the residential premises of the petitioner, and hence, the petitioner cannot be said to be a person aggrieved by any activity of the 10th respondent in his Unit. Responding to the averments in the writ petition with regard to the activity of the 10th respondent, it is clarified that there is no mineral beneficiation involved, and the only process which the 10th respondent resorts to is a purification of the sand that has been dredged and made available, for the purposes of making it available back to the State Government, for supply to the construction sector. It is maintained that, for the said activity, a prior Environmental Clearance is not contemplated in terms of the Environment Impact Assessment Notification issued under the Environment (Protection) Act and Rules. As regards the averments in the writ petition regarding categorisation of the Unit for the purposes of the consent from the Kerala State Pollution Control Board, Ext.P21 consent is sought to be justified on the ground that it was issued based on the application submitted by the 10th respondent which contained adequate data to show that the Unit was classifiable under the 'Orange category'.