Existence Of Scheduled Caste Colony Nearby By Itself Is No Reason To Prohibit Activity Of Construction Once Environmental Clearance Is Obtained: Kerala HC

Finding that the linear project has obtained Environmental Clearance based on EIA studies only after incorporating sourcing of such construction materials and other activities, then alone requirement of EC is exempted, the Kerala High Court held that the petitioner-Company is entitled to police protection to carry out their activities.

At the same time, the High Court directed the Respondents (Gram Panchayat) to grant adequate protection to the petitioner for removing red earth from the 0.9858 hectares of land in accordance with the mining plan and permit issued by the Mining and Geology Department, from the threats of the fifth respondent and persons claiming under him.

A Single Judge Bench of Justice N. Nagaresh observed that “if linear project has obtained EC based on EIA studies incorporating sourcing of construction material, then a separate EC is not necessary and that if such sourcing of material is not considered in the EIA or such linear projects does not attract provisions of EC, then such individual activities will be subject to Environmental Clearance."

The Bench also expressed that “the exemption from EC provided for works relating to linear projects shall be subject to SOP alone. Extraction of ordinary earth for work relating to linear projects does not require a separate Environmental Clearance.”

Pointing out that the authorities whom the Panchayat has approached to cancel the Quarrying Permit / other permissions, have not passed any orders cancelling the permission/s granted to the tenth respondent, the Bench ruled that the existence of an SC Colony nearby by itself cannot be a reason to prohibit the activity as long as the activity is following the law of the land.

Advocate Paul Abraham Vakkanal appeared for the Petitioners whereas Advocate M. P. Sreekrishnan appeared for the Respondents.

The brief facts of the case were that the petitioners belong to the Scheduled Caste (SC) community and reside in Thekkumala SC Colony. According to the petitioners, about 150 families live in and around the foothills of Thekkumala. The 10th respondent has undertaken National Highway (NH) project work and has entered into an agreement for the extraction of ordinary earth with respondents. The tenth respondent has obtained a Quarrying Permit. When permission of the second respondent Grama Panchayat was sought, the Panchayat cancelled the permission granted to the tenth respondent in view of the possible adverse environmental impact. The Grama Sabha also, requested the Government to cancel the permissions granted. the Panchayat has prohibited the plying of heavy vehicles as the activity causes damage to the road. The Panchayat again, requested the Geology Department to cancel the permission granted to the tenth respondent.

The petitioners also submitted a series of representations to the Kerala State Commission for SC and ST and to the District Collector. The Secretary to Panchayat has issued a Stop Memo. The petitioners seek to quash the Quarrying Permit issued to the tenth respondent and to direct first to fifth respondents to conduct an Environmental Impact Assessment Study on the work of quarrying of ordinary earth Thekkumala before permitting quarrying in the area. The petitioners seek to enforce the Stop Memo issued by the Panchayat. Certain other incidental reliefs are also sought. The tenth respondent resisted the writ petition filing counter affidavit. There is no such hill at all in Maneed Panchayat, contended the tenth respondent, along with the claim that there is no SC Colony either and the petitioners are not residents of the area where quarrying work or transportation takes place.

After considering the submission, the Bench noted that the activities of extraction/sourcing/borrowing of ordinary earth for linear projects need to follow the SOP.

The Bench pointed that the authorities whom the Panchayat has approached to cancel the Quarrying Permit / other permissions have not passed any orders cancelling the permission/s granted to the tenth respondent.

The Bench further mentioned that it is not necessary to decide the issue at this stage as the 10th respondent would submit that they are ready to apply for a fresh Quarrying Permit following the SOP. In this case, it will be open to the District Geologist to act in accordance with the law.

While stating that the Government of Kerala issued GO authorizing the District Geologist within the respective area of jurisdiction to issue quarrying permits for extraction or sourcing or borrowing of ordinary earth for linear projects, the Bench mentioned that the GO clarified that such extraction can be conducted with the previous permission of the Geologist concerned, with proper study by the Government Engineers who supervise the government work and excavate ordinary earth scientifically based on the recommendation of the Engineers.

Referring to the case of Jimmichan Mathew @ Tomy v. State of Kerala [2022 (1) KLT 373], the Bench reiterated that “the Grama Panchayats have no power to regulate traffic through public roads, which power is vested with the authorities under the Motor Vehicles Act.”

Accordingly, on finding no merit in the petition, the High Court dismissed the same.

Cause Title: P. K. Sasi and Ors. v. State Environment Impact Assessment Authority (SEIAA) and Ors. [Neutral Citation: 2023/KER/62595]

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