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Devadaru Agro-Land Ventures Pvt. Ltd., Kasargode, Represented by Its Managing Director, Mathew Jose v/s State of Kerala, Represented by Its Secretary to Government, Industries Department, Thiruvananthapuram & Others

    WP(C). No. 21354 of 2020 (T)

    Decided On, 16 April 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.B. SURESH KUMAR

    For the Petitioner: George Poonthottam, Sr. Advocate, Nisha George, Vishnu B. Kurup, Riji Rajendran, J. Vishnu, Advocates. For the Respondents: Ranjith Thampan, Addl.Advocate General.



Judgment Text

1. Petitioner intends to extract granite building stones from a land measuring 1.7765 hectares located at Kidoor in Kasargod District. Licence in Form LE-3 of the Explosives Rules, 2008 (the Rules) is required for storing explosives required for extracting granite building stones. Rule 103 (1) of the Rules provides that the applicant desiring to obtain the said licence shall apply to the District Magistrate for a certificate to the effect that there is no objection to the applicant receiving licence for the site proposed. In the light of the said provision, the petitioner submitted an application on 04.01.2018 before the competent authority namely, the third respondent for the No-objection Certificate (NOC). The third respondent referred the matter to the District Police Chief, the Revenue Divisional Officer, the Divisional Officer, the Fire and Rescue Services Department, the District Geologist and also to the Grama Panchayat for their views in the matter. The authorities aforesaid did not raise any objection to the request made by the petitioner. Thereupon, the third respondent issued the public notice provided for under Rule 103(3) of the Rules inviting objections, if any, from the general public on the project proposed by the petitioner. No objection was received by the third respondent pursuant to the public notice. Thereafter, the third respondent inspected the site of the petitioner. After the site inspection, the third respondent sought the views of the Kerala State Biodiversity Board on the project of the petitioner. In response to the said reference, the Kerala State Biodiversity Board has informed the third respondent that a natural habitat of birds with approximately 150 species exists in the vicinity of the site of the proposed project and that the bird habitat would be disrupted and lost, if the project is permitted. Later, it was noticed by the third respondent that steps are being taken by the District Tourism Promotion Council to establish a bird sanctuary at the place where the natural habitat of the birds exists, as pointed out by the Kerala State Biodiversity Board. The third respondent, in the circumstances, called for a report from the District Tourism Promotion Council and they, in turn, reported that they have obtained administrative sanction for establishing the bird sanctuary at that place by spending a sum of Rs.2.74 Crores. Though the petitioner was heard on the application preferred by them for NOC earlier, after receipt of the report from the District Tourism Promotion Council, they were heard again by the third respondent in the matter. In the course of the said hearing, the petitioner has pointed out that the site proposed by the District Tourism Promotion Council for establishing the Bird Sanctuary is about 1 kilometers away from the site of the proposed project. In the light of the said stand of the petitioner, the third respondent called for a report from the Tahsildar concerned as to the distance between the two sites and the said officer has reported that the aerial distance between the sites is only 350 meters. In the said report, the Tahsildar has also stated that the proposed project of the petitioner would adversely affect the bird habitat. Thereupon, the third respondent declined the NOC sought by the petitioner in terms of Ext.P21 order, holding that the proposed project of the petitioner would adversely affect the biodiversity in the area. Ext.P21 order is under challenge in the writ petition.

2. A counter Affidavit has been filed on behalf of the third respondent justifying Ext.P21 order.

3. Heard the learned Senior Counsel for the petitioner as also the learned Additional Advocate General.

4. The learned Senior Counsel for the petitioner submitted that despite the fact that no objection was raised by the District Police Chief, the Revenue Divisional Officer, the Divisional Officer, Fire and Rescue Services Department, the District Geologist and the Grama Panchayat to the application of the petitioner on the reference made by the third respondent and despite the fact that no objection was received by the third respondent pursuant to the public notice issued in terms of Rule 103(3) of the Rules, the third respondent chose not to issue the NOC sought by the petitioner for reasons best known to him, and it is for the purpose of declining the request made by the petitioner that he has called for the views of the Kerala State Biodiversity Board as also the report of the District Tourism Promotion Council. It was also submitted by the learned Senior Counsel that the reports furnished by the Kerala State Biodiversity Board, the District Tourism Promotion Council and the Tahsildar are reports prepared by the said authorities as instructed by the third respondent. In order to bring home the said point, the learned Senior Counsel has pointed out that initially when the application was referred to the Revenue Divisional Officer, the said officer, in turn obtained a report from the Tahsildar, and the Tahsildar who had not raised any objection then has subsequently reported to the third respondent that the site is objectionable on account of its proximity to the bird habitat. It was argued by the learned Senior Counsel that if at all a bird sanctuary is to be established, it is for the State Government to do so in terms of Section 18 of the Wild Life (Protection) Act, 1972. According to the learned Senior Counsel, in the absence of a bird sanctuary established by the State Government under Section 18 of the Wild Life (Protection) Act, 1972, the third respondent ought to have granted the NOC sought by the petitioner. It was also submitted that the third respondent has declined the NOC sought by the petitioner pretending that he is doing so in the interest of the public and such a course is permissible under Rule 103 of the Rules. It was argued by the learned Senior Counsel that the expression “interest of public” made mention of in Rule 103(3) of the Rules confers authority on the third respondent only to ascertain whether any member of the public is likely to be affected by the proposed project of the applicant and the said expression does not clothe the third respondent with the authority to decline NOC in public interest. It was also argued by the learned Senior Counsel that in the absence of any authority conferred on the third respondent to decline NOC on a ground which is not made mention of in the said provision, the impugned order can be regarded only as an order passed without jurisdiction.

5. Per contra, the learned Additional Advocate General submitted that in the matter of considering requests for NOC under Rule 103(1) of the Rules, it is obligatory on the part of the competent authority to ensure that the project is not objectionable from all angles and the third respondent is well within his powers in declining the NOC in a case where he is convinced that the biodiversity in the area would be affected on account of the project proposed by the applicant.

6. I have considered the contentions advanced by the learned Senior Counsel for the petitioner as also the learned Additional Advocate General.

7. Let us first refer to the statutory provision invoked by the petitioner for the NOC. As noted, Rule 103 of the Rules is a statutory provision. The relevant portions of Rule 103 read thus:

103. Procedure to be observed for issue of no objection certificate and for grant of licence.— (1) The applicant desiring to obtain a licence from the Chief Controller or Controller, shall apply to the District Magistrate or the Director General of Mines Safety with copies of the site plan showing the location of the premises proposed to be licensed for issue of a certificate to the effect that there is no objection to the applicant receiving licence for the site proposed.

(2) x x x x x x x

(3) The District Magistrate on receipt of application referred in sub-rule (1), shall make verification of the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other verifications or enquiries as may be specifically required by the licensing authority to be carried out, if any, and on any other matter as deemed necessary.

(a) For verification of the interest of public, the District Magistrate shall forthwith cause a notice to be published calling upon the public to submit objections, if any, with reasons thereof, within a period of one month from the date of publication of the notice and specifying the date, time and place for consideration of objections by him. Where the site of the proposed premises lies within 1.5 kilometers of the limits of the jurisdiction of any town planning municipal authority or port or air port or satellite or space craft launching station or similar establishments of national importance, the District Magistrate shall cause the notice to be served to such authority or establishment. The day of hearing for consideration of objections shall be fixed as early as possible, after the expiration of the period of one month from the date of publication of notice. On receipt of objection, the District Magistrate shall call the person or persons raising objection and also the applicant, giving not less than seven clear days before the day fixed for hearing for consideration of the objection. On the day fixed for the hearing or any day to which such hearing may be adjourned from time to time, the District Magistrate shall hear any objection relating to the purpose of no objection certificate and shall make such enquiry, as he may deem necessary to assess justification of such objection.

(b) If the quantity of explosives does not exceed one hundred kilograms or in case of ANFO or Liquid Oxygen Explosives or SME or transport of explosives in a road van, the notice for public for objection as stated in clause (a) shall not be necessary.

(4) x x x x x x

(5) The authority referred to in sub-rule (3) or subrule (4) shall complete the enquiry within a period of three months and such authority shall after being satisfied, grant no objection certificate along with site plan duly signed and sealed by such authority.

(6) If the authority referred to in sub-rule (3) or sub-rule (4) objects to the grant of the no objection certificate on any of the grounds relating to the purpose of no objection certificate, no licence shall be granted by the licensing authority except with the sanction of the Central Government.

(7) The authority referred to in sub-rule (3) or sub-rule (4) shall grant the no objection certificate in the format specified in Part 2 of Schedule V or convey his refusal for granting no objection certificate with reasons thereof in writing to the applicant as expeditiously as possible but not later than six months from the date of receipt of application from the applicant.

(8) x x x x x x x

As revealed from the extracted provision, what is contemplated in Rule 103(1) of the Rules is a NOC in respect of the site of the proposed project of the applicant. Rule 103(3) of the Rules casts an obligation on the competent authority to verify the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other matter as the competent authority deemed necessary. In other words, the jurisdiction of the competent authority under Rule 103(1) of the Rules is to ensure that the site of the proposed project of the applicant is not objectionable on account of the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other matter as the competent authority deemed necessary. As noted, the ground on which the request made by the petitioner for NOC was declined by the third respondent is that the biodiversity in the area would be affected if the project is permitted. The question that arises for consideration, therefore, is whether the third respondent was justified in rejecting the request made by the petitioner for NOC on that ground.

8. Before examining the question, let us see whether the third respondent was justified in holding that the biodiversity in the area would be affected, if the project of the petitioner is permitted. The Kerala State Biodiversity Board is a statutory body constituted under the Biological Diversity Act, 2002. It is seen that on the reference made by the third respondent on detecting the existence of the bird habitat near the site of the proposed project of the petitioner, the Kerala State Biodiversity Board has constituted a committee of experts to submit a report on the potential impact of the proposed project on the bird life in the vicinity. Ext R3(b) is the report prepared by the said committee. It is seen that after a detailed investigation, the committee came to the conclusion that a natural habitat of birds with approximately 150 species exists in the vicinity and the bird life in the habitat will be severely disrupted and lost, if the project of the petitioner is permitted. The relevant portions of the report read thus:

“x x x x x x In addition, the ecological value of the locality is enhanced by the presence of the species such as Justicia ekakusuma, and Lepidagathis keralensis a plant that was discovered from the lateritic plateaus. The Lepidagathis is a known larval food plant of three species of butterflies belonging to the group Blues'. The plateau also harbours the plant species named Canscora bhatiana which was discovered first-time in year 2012 from the rocky outcrop of the Seethamgoli, which is not far away from the site. Availability of the larval food plants and the flowering plants which offers copious amount of nectar has made this a preferred habitat of butterfly species such as; Red Helen, Spotted Small Flat, Common Onyx, Pointed Ciliate Blue, Malayan, Great Orange Tip, Malabar Banded Peacock, Southern Bird wing etc. Some of these species are protected by the provisions available in the Wild Life (Protection) Act of 1972.

x x x x x x x x

The refuge, cover and diversity of food options offered by the diverse habitats has made this a bird heaven and breeding ground, especially for the species such as Red-whiskered bulbul, White cheeked barbet, Green Bee-eater, Red-wattled lapwing, Black drongo etc. As a habitat where the Orange Breasted Green Pigeon is sighted in most seasons, the Kidoor has a unique and important position among the other bird sanctuaries and habitats in Kerala. Apart from this, the sanctuary harbour populations of Yellowlegged green pigeon and Emerald Dove among other species of pigeons and doves stand out among the bird breeding areas in the state. Among the birds reported from the locality the species such as Oriental darter and Black headed ibis belong to the 'Near Threatened' category of the IUCN. The Woolly Necked Stork reported from the locality is considered 'Vulnerable' by the IUCN. The Western Ghats endemic species, those which found only in the Western Ghats not elsewhere, found in the locality include species such as Flame Throated Bulbul, Rufous Babbler, Grey Headed bulbul etc. out of these, the survival status of the Grey headed bulbul is 'near threatened'.

Bird species such as Osprey, Honey Buzzard, Crested serpent eagle, Black kite, Shikra, White Bellied Sea Eagle, Booted Eagle, Brahminy Kite, Crested Goshawk, Changeable Hawk Eagle, Peregrine Falcon present in the locality is protected under the Wild Life (Protection) Act, 1972 by listing them under the Schedule-1 with strict and stringent penalties for endangering their survival. Apart from the point of view of the biodiversity survival value of the sanctuary as the refuge and breeding ground of the rare and vulnerable species of the bird species, the habitat has a larger role to play in maintaining the ecology and diversity of the species in the adjoining landscape. The population of not only the birds species, but also of the other organisms including the flying insectivores mammals, pollinating insects, lizards and reptiles, small mammals are maintained by population spill-over from such refuges protected by traditions and local wisdoms.

A group of bird lovers and naturalists under the lead of Mr. Raju Kidoor, who is also the convenor of the BMC, had been monitoring and documenting the avian diversity of the locality from September 2016. The checklist updated up to 2018 December includes an impressive list of 156 species of birds reported from the sanctuary and its immediate vicinity. The observations were also published as an academic paper titled 'Avian Diversity of Kidoor, a village in the lateritic midlands of Kasaragad District, North Kerala' in the journal 'Malabar Trogon' (Vol 16.3), a publication of the Malabar Natural History Society. According to the observations, the 156 bird species documented from the sanctuary and its vicinity belongs to the 18 orders and 56 avian families. Out of these, Woolly-necked Stork (Ciconia episcopus) is vulnerable specie and three species including Black headed ibis (Threskiornis melanocephalus), Oriental Darter (Anhinga melanogaster) and Grey-headed Bulbul (Brachypodius priocephalus) belong to the Near Threatened category according to the World Conservation Union. Orange breasted green pigeon, a rare and patchily distributed species in Kerala is reported from the bird conglomeration most of the year accepting the August and September Months. Sasikumar et. al. (2011) has testified that Orange breasted king fisher is a rare bird in Kerala. Kidoor must be one of the few locations in Kerala from where this rare species has been reordered consistently in most months in large numbers. This is the only site in the district from where the European white stork (Ciconia ciconia), a transcontinental migratory bird is reported so far.

Five species of birds reported from the locality including the species Grey-fronted Green Pigeon (Treron affinis), Nilgiri flowerpecker (Dicaeum concolor), Flame-throated Bulbul (Pycnonotus gularis), Grey- headed Bulbul, Rufous Babbler (Argya subrufa) and Malabar Starling (Sturnia blythii) are endemic species which are known to occur only in the Western Ghats region in the world.

Twelve species of birds present in the sanctuary belongs to the Schedule 1 of the Indian Wild Life (Protection) Act, 1972 including the Indian Peafowl (Pavo cristatus) and Peregrine or Shaheen Falcon (Falco peregrinus peregrinator). The data on the bird life from the site shows that this is an excellent and preferred breeding ground for a number of species.”

The fact that the place referred to in the report aforesaid is situated approximately 300 meters away from the site of the proposed project of the petitioner is not in dispute. In the aforesaid circumstances, according to me, the third respondent cannot be found fault with for having rendered the finding that the biodiversity in the area would be affected if the project is permitted.

9. The petitioner proceeds on the basis that the third respondent has declined the NOC on the premise that he is empowered to do so in the interest of public and it is on account of the said reason, it was argued on behalf of the petitioner that the expression "interest of public" used in Rule 103(3) of the Rules confers on the third respondent, only the authority to verify whether any member of the public is likely to be affected by the proposed project of the petitioner and the said expression does not confer on the third respondent authority to decline the NOC in public interest on the ground mentioned in the impugned order. No doubt, the expressions “interest of public” and "public interest" are two different concepts. The expression "public interest" means those interests which concern the public at large, whereas the expression “interest of public” is generally used to mean those interests which concern the members of the general public, in contra distinction to the public at large. Be that as it may, the expression “interest of public” used in Rule 103(3) of the Rules, if understood in the light of clause (a) of that provision, would make it clear that the same was intended only to confer power on the competent authority to verify whether any member of the public is likely to be affected by the proposed project of the applicant. The learned counsel for the petitioner is therefore right in contending that the expression “interest of public” used in Rule 103(3) of the Rules does not confer on the third respondent authority to decline the NOC sought by the petitioner on the ground mentioned in the impugned order. But, as revealed from Rule 103(3) of the Rules, the said provision confers power on the competent authority to verify other matters as deemed necessary also, while considering the application for NOC. Does that provision confer power on the third respondent to decline the NOC sought by the petitioner on the ground mentioned in the impugned order is the next question. As noted, what is contemplated in Rule 103(1) of the Rules is NOC in respect of the site of the proposed project of the applicant. When a statutory provision insists NOC from a designated authority before commencing a project on matters specified in the provision and on matters as deemed necessary by the designated authority, according to me, it cannot be said that the designated authority would not be justified in declining the NOC in public interest, if it deems that public interest shall be the consideration in the matter of granting the NOC. Even otherwise, it is now trite that every action of a public authority or of those under public duty shall be guided by public interest [See LIC of India v. Consumer Education and Research Centre, (1995) 5 SCC 482]. It cannot, therefore, be argued that a competent authority exercising power under Rule 103(1) of the Rules cannot decline NOC in public interest. Needless to say that the third respondent cannot be found fault with for having declined the NOC sought by the petitioner in public interest.

10. That apart, Article 48A of the Constitution provides that it shall be the endeavour of the State to protect and improve the environment and to safeguard the forests and wild life of the country. Article 48A of the Constitution reads thus:

48-A. Protection and improvement of environment and safeguarding of forests and wild life.— The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

Likewise, Article 51A(g) of the Constitution provides that it shall be the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Article 51A(g) of the Constitution reads thus:


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51-A. Fundamental duties.—It shall be the duty of every citizen of India— x x x x x x x x x (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; A public authority while discharging its statutory functions, according to me, cannot be unmindful of the aforesaid constitutional provisions. In so far as the provisions of the Constitution is inbuilt in every statute, an authority discharging functions under a statute shall always observe, apply and protect the constitutional provisions and the values inbuilt therein. In other words, even in the absence of any provision, statutory authorities cannot discharge their duties otherwise than in accordance with the mandates in the constitutional provisions. In so far as the State and every citizen is duty bound to protect wild life, a statutory authority cannot be faulted for having passed an order in consonance with the constitutional provisions aforesaid. 11. Now I shall examine the contention raised by the learned Senior Counsel for the petitioner that it is for the State Government under Section 18 of the Wild Life (Protection) Act, 1972 to constitute an area as a sanctuary and insofar as the State Government has so far not constituted the area as a bird sanctuary, the third respondent was not justified in declining the request of the petitioner for NOC. True, Section 18 of the Wild Life (Protection) Act, 1972 empowers the State Government to declare its intention to constitute any area other than an area comprised within reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance, for the purpose of protecting, propagating or developing wild life or its environment. But, merely for the reason that the State Government has not constituted a particular area as a sanctuary in terms of Section 18 of the Wild Life (Protection) Act, 1972, it cannot be said that the authorities functioning under other statutes cannot protect the area which is found to be a natural habitat of birds. 12. I take this view also in the light of the observation made by the Apex Court in T.N.Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277 that even habitats of wild life which have so far not been protected have to be conserved. The writ petition, in the circumstances, is without merits and the same is, accordingly, dismissed.
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