M/S. KIZHAKKETHALAKKAL ROCKS v. UNION OF INDIA

1. This hearing has been done through hybrid mode. CM APPL. 52383/2022(for early hearing)

2. These are applications for early hearing. Due to the heavy board, early hearing is not possible. Accordingly, this application is rejected. CM APPL.52492/2022(for direction) in W.P.(C)-12129/2019

3. The present writ petition has been filed by the Petitioner - M/s Kizhakkethalakkal Rocks, Kumily. It has been filed inter-alia seeking issuance of writ/ order thereby calling for records of the communication issued by Respondent No. 2 - The Director, Impact Assessment Division (Ministry of Environment, Forests and Climate Change) to the Petitioner dated 22nd November, 2018 and quash the same and declare the Petitioner entitled to grant of deemed environmental clearance.

4. This application bearing no. CM APPL.52492/2022 has been filed by the Petitioner seeking directions that the Respondent No.3 - State Environmental Impact Assessment Authority, Kerala (SEIAA) ought not to take the final decision with respect to the application of the Petitioner for grant of environmental clearance as the same would render the aforementioned writ petition infructuous.

5. The case of the Petitioner is that in terms of the circular dated 23rd October, 2017 passed by the Respondent No.1 - Union of India (Ministry of Environment, Forests and Climate Change), once there is any proposal examined by the Central Expert Appraisal Committee (hereinafter as ‘EAC’), due to non-existence of State Authority, then the matter ought to be decided at the Central level itself even if the State Authority is constituted later on. The said circular relied upon is extracted hereinbelow: “Sub: Consideration of Category "B" proposals at the Central level in the absence of duly constituted State Lovel Environment Impact Assessment Authority (SEIAA) or State Expert Appraisal Committee (SEAC), etc. As per para 4(iii) of the Environment Impact Assessment (EIA) Notification, 2006 all projects or activities covered under Category B in the Schedule, in the absence of duly constituted SEIAA or SEAC, in the respective States/UTs shall be considered at the central level.

2. For consideration of such proposals, the following clarifications are issued for compliance with immediate effect: i) If the SEIAA/SEAC is constituted before the Expert Appraisal Committee (EAC) meeting wherein the proposal (Terms of Reference(TOR)/Environment Clearance (EC) is listed as an agenda item for consideration, then the proposal, be not appraised by the EAC and it shall be transferred online to the concerned SEIAA/SEAC. ii)In cases of ToR issued at the central level due to non-existence/functioning of SEIAA/SEAC, proposals for Environment Clearance shall be submitted to SEIAA/SEAC only if constituted in the meantime. If any such proposal is submitted at the central level, the concerned Member Secretary shall transfer it online to the SEIAA/SEAC. iii)In cases, the proposal is appraised by the EAC due to non-existence of SEIAA/SEAC, then irrespective of whether recommended, deferred or additional information sought, it will continue to be appraised and decided at the central level, even if the SEIAA/SEAC is constituted later on. iv) The concerned Member Secretary, while transferring the proposal online to the SEIAA/SEAC, shall inform the Project Proponent also online in this regard. This issue with the approval of Competent Authority.”

6. According to Mr. Naveen Kumar, ld. Counsel for the Petitioner the subsequent circular dated 27th September, 2022 issued by the Respondent No.1 also reiterates the said position.

7. In the present case, it is noticed that the Petitioner sought a mining lease and since at that time SEIAA was not functional it was referred to the Respondent No. 2 /EAC. However, vide decision taken on 22nd November, 2018, considering the flood situation and other natural disasters in Kerala, the EAC was of the opinion that the SEIAA having been constituted by then, the matter ought to be transferred to it. The said decision is set out below: “The proposal of M/s Kizhakethalackal Rocks with mine lease area of 12.4408 ha. at Sy. No 184/lA, Elappara Village Peermade Taluk, Idukki District, Kerala, was considered by the EAC in its meeting held during 19th - 20th July 2018 as the SEIAA Kerala was not functional and returned the application in the present form as it was applied under the TOR category.

2. The ECA noted that the Kerala is suffering from Natural Disasters viz. Floods and torrential rains. Although the exact reasons for such disaster is yet to ascertain by the concerned Authorities, as per media reports mining may be one of the reasons for such disaster. The Committee also noted that the Ministry is receiving several mining proposals from the State of Kerala (Category B[2]) due to tenure of SEIAA Kerala has expired. The Committee does not know that how many such proposals have already been cleared by SEIAA. EAC, therefore, doesn't have visibility of how intensive mining activity is and what would be its cumulative impact. The Committee, therefore, is of the view that considering the situation in the State of Kerala, it is very much necessary to have a holistic view on the mining in the State of Kerala.

3. In view of the above, it is informed that SEIAA Kerala has been constituted vide S.0.4913 (E) dated 19th September 2018 and the above mentioned proposal has been transferred to SEIAA Kerala as they would have holistic view on the mining in the state of Kerala as they would have the visibility of how intensive mining activity is and what would be its cumulative impact.”

8. The Court notes that the entire purpose of the circular dated 23nd October, 2017 and 27th September, 2022 is for ensuring quick handling of environment clearances. However, this cannot mean that if the local authorities’ inputs are required or if the EAC deems it appropriate to transfer the matter to the local SEIAA, due to exceptional circumstances, the same cannot be done.

9. The SEIAA, in the present case, has, admittedly, commenced the appraisal process of the Petitioner and the site inspection was to be done on 1st November, 2022.

10. Under these circumstances the Court does not find any justification to interdict or stop the SEIAA, Kerala from inspecting the site or from taking a decision pursuant to the decision of the EAC dated 22nd November, 2018.

11. There is no merit in the application, the same is accordingly rejected.

12. If the SEIAA takes any decision, the Petitioner’s remedies are left open. The said decision shall also subject to the outcome of the present writ petition. W.P.(C)-12129/2019