Kerala HC To Examine Validity Of KMMC Rules Amendment Reducing Distance Rule From 100 Metres To 50 Metres [Read Order]

The Kerala High Court said it would examine the reasonableness and constitutional validity of the amendment made in 2017 to the Kerala Minor Mineral Concession Rules, 2015, to the extent it reduces the earlier distance rule from 100 metres to 50 metres.

If as a matter of fact, there are no compelling reasons based on public interest for the State to engraft the impugned amendment in 2017 for the KMMC Rules, to reduce the distance criteria from 100 metres to 50 metres, then subject to the maintainability of examination of those matters, those aspects will have to be considered in depth, Justice Alexander Thomas observed in an order passed last month while considering petitions seeking quashing of the National Green Tribunal order directing the Central and the State Pollution Control Boards to follow the criteria of maintaining 200 metres from residential/public buildings and inhabited sites while considering granting permission for stone quarrying.

The petitioners and the State Government contended order of the National Green Tribunal would substantially lead to striking down of statutory rule contained in Rules 10(f) and 41(i) of the KMMC Rules, 2015, as amended in 2017, and that it is now well established by decisions of the Apex Court and this Court, that the National Green Tribunal being a creature of a statute and which is not a tribunal as envisaged under Article 323A and 323B of the Constitution of India, may not have the powers of judicial review so as to strike down a statutory rule or regulations.

Till its amendment in 2017, the distance rule for permitted quarrying operations involving blasting happened to be 100 metres, subject to various other stipulations. Post amendment, the distance rule in question reduced to 50 metres, and the distinction between quarrying involving blasting activities and quarrying involving non blasting activities was also generally obliterated, the Court noticed.

The court prima facie, observed that many or quite a few of the quarries now being operated in the State or proposed to be operated would be within the vicinity or within the significant proximity of the Western Ghats in the State. It said:

"Environmentalism and ecological considerations are no longer to be viewed as fads or "fashionable ideology". This is especially so, since this State has seen a great tumultuous flood in August, 2018, and a mini flood in August, 2019, and quite heavy rainfalls occurred even in this year in August, 2020. This State has witnessed not only great floods in August, 2018, but has also seen the terrible calamities and tragedies in the land slides that have occurred both in August, 2019 and this year in August, 2020." 

Posting the cases to 23rd September 2020, the judge further observed:

"After hearing all the parties concerned this Court would prima facie take the view that, the reasonableness and constitutional validity of the amended provisions of the KMMC Rules as per Rules 10(f) and 40(1)(i) made as per S.R.O. No.346/2017 to the extent it reduces the earlier distance rule from 100 metres to 50 metres and various related aspects arising out of the said amended notification may have to be seriously examined in depth. This Court is of the considered view that in such a case, the technical approach of examining the technical submissions and if accepted quashing the impugned order alone might not suffice, and indeed it should be the constitutional responsibility of this Court as a Constitutional Court exercising powers of judicial review and superintendence to have a holistic view and to examine whether the said amended provisions made as per S.R.O. No.346/2017 to the limited extent it reduces the distance rule from 100 metres to 50 metres in the scenarios enumerated therein will have to be considered."

The Court has, however, extended the interim order it passed earlier, till 28th September, which reads as follows:

"In cases where a quarrying permit/quarrying lease issued under the provisions of the Kerala Minor Mineral Concession Rules, 2015 is valid and current as on 21.7.2020 (date of the impugned order rendered by the Tribunal), which do not fulfill the new distance norms stipulated by the NGT order, then it shall be ensured that status quo regarding the distance criteria based on Rule 10(f) and Rule 40(i) of the Kerala Minor Mineral Concession Rules may be maintained by the respondent authorities concerned during validity period of such current permits/lease. Needless to say, in such cases, the competent authorities concerned can insist for strict compliance of the other applicable norms, guidelines, orders, etc. However, it is made clear that in the case of the applications of fresh grant of quarrying permits/quarrying leases or applications for renewal of quarrying permits/leases, which do not fulfill the abovesaid impugned distance criteria stipulated in the order of the Tribunal, then such requests need not be granted for the time being. But at the same time, in those cases, such fresh or renewal application, including that for EC, PCB consent, explosive licence, local body licences, etc. in that regard may be processed and such applications need not be rejected solely on the ground of nonfulfillment of the new distance norms stipulated in the impugned order dated 21.7.2020 of the NGT."

Click here to Read/Download Order

Read Order