Sanchayita Lahkar

The High Court of Kerala Single Bench of Justice C. Jayachandran declared that the 12 April 2022 amendment to the Environment Impact Assessment framework—S.O. 1807(E)—is ultra vires insofar as it applies to mines and mining operations under clause 9(iv), and struck it down along with the subsequent Office Memorandum dated 13 December 2022. The Court dismissed the batch of petitions seeking the benefit of the amendment, vacated all interim orders, and directed the competent authority designated as the 6th respondent to proceed in accordance with law, treating the concerned Environmental Clearance as having expired. It further directed that appropriate action shall follow in respect of the petitioners’ quarries in the connected matters, depending upon the validity of their Environmental Clearances.

The proceedings arose out of a common judgment that addressed one writ petition challenging the constitutional validity of the Central Government’s S.O. 1807(E) dated 12 April 2022 and its clarificatory Office Memorandum dated 13 December 2022, alongside sixty-six writ petitions seeking the benefits of those measures. The Court recorded that the Ministry of Environment, Forest and Climate Change issued S.O. 1807(E) to extend the validity period of Environmental Clearance for certain projects and activities, followed by an explanatory Office Memorandum.

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By way of background, the judgment traced the evolution of the environmental clearance regime. Prior to the EIA Notification of 27 January 1994, there was no statutory requirement for environmental clearance. The 1994 Notification mandated prior environmental clearance for specified categories, including mining of major minerals over five hectares, with the MoEF&CC as the approving authority. The 2006 EIA Notification then constituted State Level Environment Impact Assessment Authorities (SEIAA) and State Level Expert Appraisal Committees (SEAC), empowering the latter to screen Category B projects. The Court noted further developments following Deepak Kumar v. State of Haryana, including the requirement—via Office Memoranda in 2012 and 2013—that mining of minor minerals irrespective of lease size would require prior environmental clearance, and the 2015 amendment to the Mines and Minerals (Development and Regulation) Act extending the tenure of mining leases to fifty years. Consequent changes included the 2016 notifications creating District Level mechanisms (DEIAA/DEAC), with later directions ensuring that State-level formalities applied equally at the district level.

The impugned 2022 amendment altered the manner in which the validity of Environmental Clearances for mining projects is determined. The Court reproduced clause 9(iv), as amended, which provides that prior Environmental Clearance “shall be valid for the project life as laid down in the mining plan… subject to a maximum of thirty years,” with a proviso enabling extension by a further twenty years subject to periodic five-yearly reviews of environmental safeguards.

The subsequent Office Memorandum dated 13 December 2022 clarified the applicability of S.O. 1807(E), including automatic extension of validity for clearances that had not expired as on 12 April 2022 and the circumstances in which further extensions might be granted upon application. The tabular clarification included a specific row for “Mining Projects” indicating thirty years of increased validity and a further extendable period of twenty years.

On the facts of the lead challenge—W.P.(C) No. 44547 of 2024—the petitioner asserted that mining activity near his residence continued on the strength of the impugned measures although the Environmental Clearance granted to the ninth respondent quarry had otherwise expired after its original five-year term plus the COVID-19 extension. He contended that, but for S.O. 1807(E) and the Office Memorandum, operations should have ceased upon expiry of the EC, and argued that the amendment violated the Environment (Protection) Rules, especially by displacing the SEAC’s role in estimating project life and by resort to Rule 5(4) without demonstrating “public interest” to dispense with the notice and consultation obligations under Rule 5(3).

Several project proponents and an association of quarry E.C. holders were impleaded and advanced submissions. Among the positions recorded were the claims that long-term mine planning under the Kerala Minor Mineral Concession Rules ensures scientific determination of mine life; that “project life” should be treated as coinciding with “mine life” as per an approved mining plan; and that, following the impugned amendment, SEAC had lost jurisdiction to estimate project life. They submitted that Environmental Clearances would continue for the remainder of mine life, and that the purpose of the amendment was to align EC validity with the tenure of the mining lease.

The Court also recorded submissions addressing the maintainability of the constitutional challenge and the adequacy of representation of affected project proponents. It noted that the author of the notification—the MoEF&CC—was a party that advanced elaborate arguments; that representative project proponents, including an association, were impleaded and heard; and that the batch of sixty-six petitions seeking the amendment’s benefit were heard together with the vires petition.

In examining the statutory framework, the judgment set out the scheme of the Environment (Protection) Act and Rules, especially Rule 5(3) requiring notice and an opportunity to file objections before prohibitions or restrictions are imposed or modified, and Rule 5(4) permitting dispensation with such notice in public interest. It recorded that S.O. 1807(E) was issued without compliance with Rule 5(3)(a) and that the basis for invoking Rule 5(4) was not discernible from the notification or the Union’s counter.

The Court then compared the unamended and amended Clause 9, recording the “essential difference” that, earlier, expert bodies under the EIA 2006 regime estimated project life, whereas post-amendment, project life is tied to the mining plan under the MMDR framework—approved and periodically renewed by the mining authority.

As regards relief, the Court proceeded to determine the vires of S.O. 1807(E) and the Office Memorandum, noting the presence of sixty-six petitions premised on the challenged measures and the significance of the issues to environmental protection and the right to life. It held that the writ court’s jurisdiction to entertain and decide the challenge was not ousted and that it was appropriate to exercise jurisdiction under Article 226.

“The Ministry of Environment, Forest and Climate Change (MoEF & CC) in the Central Government issued a notification, S.O. 1807(E) dated 12.04.2022 extending the validity period of the Environmental Clearance (‘E.C.’, for short) for certain projects and activities. A clarification, in the nature of an Official Memorandum (‘O.M.’, for short) dated 13.12.2022 followed.”

“Ext.P8 notification is clarified by Ext.P9 Office Memorandum dated 13.12.2022, which is also extracted here below, in full… The validity of the Environmental Clearances, which had not expired as on the date of publication of Notification i.e. 12/04/2022, shall stand automatically extended to respective increased validity as mentioned at para no. 1 column (C) above.”

“It could be seen from the above comparative table that, as per the unamended Clause 9 of EIA notification, 2006, the prior E.C. granted for a mining project was valid for the ‘project life’, as estimated by EAC or SEIAA or DEIAA, subject to a maximum of of 30 years; whereas, in the amended Clause 9 of the EIA notification, the prior E.C. granted for the mining projects is stipulated to be valid for ‘project life’, as laid down in the mining plan, approved and renewed by the competent authority from time to time, subject to a maximum of 30 years, whichever is earlier.”

“The essential difference noticeable is that the power of the expert body constituted under EIA Notification, 2006, to estimate the ‘project life’ has been given a go-bye completely. Instead, the project life is stipulated to be as the one laid down in the mining plan, approved and renewed by the competent authority from time to time.”

“Project life, as prescribed in Clause 9 of the E.I.A. Notification, 2006, has to be estimated by the Expert Appraisal Committees concerned and fixed as part of the overall assessment of the entire project/activity, having due regard to the project in hand, the concept of sustainable extraction of minerals, precautionary principles and environmental parameters of the proposed quarrying site.”

“Admittedly, there was no compliance of Rule 5(3)(a), in so far as the subject notification is concerned and the same is issued by invoking the powers under Section 5(4). As to what was the public interest, which compelled the Central Government to dispense with the requirement of notice under Rule 5(3)(a), is neither decipherable from Ext.P8 notification, nor from the counter affidavit filed by the MoEF & CC.”

“There are as many as 66 Writ Petitions claiming the benefit of the impugned Ext.P8 notification. Secondly, the issue is with respect to the protection of environment, as well as the protection of right to life under Article 21 of the Constitution. Therefore, it is all the more imperative upon a constitutional court to look into the legal validity and constitutionality of the subject notification…”

“This Court fully endorses the submissions… When the specific prayer sought for… is to quash the subject notification by issuance of a Writ of Certiorari, the jurisdiction of this Court cannot be doubted at all, for, such a relief cannot be granted by the National Green Tribunal. It is also settled, by now, that the existence of an alternate remedy, by itself… is not a ground in all cases to hold that the High Court cannot exercise its jurisdiction under Article 226… By the nature of the challenge… it is only appropriate that the High Court exercises its writ jurisdiction…”

“Therefore, the contention that the challenge to the subject notification S.O.1807(E) cannot be considered in the absence of all the project proponents in the party array cannot be countenanced and is, therefore, hereby repelled.”

“In the light of the above discussion W.P.(C) No.44547/2024 is allowed. The impugned Ext.P8 notification dated 12.04.2022 – insofar as it is applicable to mines and mining operations as provided in clause 9(iv) – is declared ultra vires the Environment (Protection) Act, the Environment (Protection) Rules, and also, the EIA notification, 2006 and hence struck down as unconstitutional. Ext.P9 Office Memorandum is also declared illegal and ultra vires…”

“Consequently, the 6th respondent will stand directed, by a writ of mandamus, to take action in accord with law regarding the quarrying operations of the 9th respondent, treating Ext.P20 E.C. to have expired… the 66 Writ Petitions filed, claiming the benefit of Ext.P8 notification and Ext.P9 Office Memorandum, will stand dismissed. All the interim orders will stand vacated… appropriate action by the 6th respondent shall follow in respect of the quarries run by the petitioners in the said 66 Writ Petitions, depending upon the validity of the E.Cs issued to such quarry project.”

The  judgment recorded that “W.P.(C) No.44547/2024 is allowed.” The Court then stated that “The impugned Ext.P8 notification dated 12.04.2022 – insofar as it is applicable to mines and mining operations as provided in clause 9(iv) – is declared ultra vires the Environment (Protection) Act, the Environment (Protection) Rules, and also, the EIA notification, 2006 and hence struck down as unconstitutional.” It further held that “Ext.P9 Office Memorandum is also declared illegal and ultra vires the Environment (Protection) Act, the Environment (Protection) Rules and the EIA notification, 2006, insofar as it pertains to mines and mining operations.”

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Pursuant to these declarations, the Court issued a mandamus: “Consequently, the 6th respondent will stand directed, by a writ of mandamus, to take action in accord with law regarding the quarrying operations of the 9th respondent, treating Ext.P20 E.C. to have expired.” The judgment then addressed the remaining batch matters: “Consequentially, the 66 Writ Petitions filed, claiming the benefit of Ext.P8 notification and Ext.P9 Office Memorandum, will stand dismissed.”

As to interim protection and pending applications across the batch, the Court ordered: “All the interim orders will stand vacated. Interlocutory applications, if any, pending in all the 67 Writ Petitions will stand closed.” It then clarified the consequence of the suo motu consideration of vires beyond the contours of the pleadings in the lead petition: “Since the constitutional vires of Exts.P8 and P9 have been considered suo moto – beyond the scope of the challenge in W.P.(C) No.44547/2024 – and struck down as unconstitutional, appropriate action by the 6th respondent shall follow in respect of the quarries run by the petitioners in the said 66 Writ Petitions, depending upon the validity of the E.Cs issued to such quarry project.”

Advocates Representing the Parties

For the Petitioners: Sri. V. Harish, Advocate; Sri. Philip J. Vettickattu, Advocate; Smt. Usha Nandini, Advocate  

For the Respondents: Smt. Deepa Narayanan, Senior Government Pleader; Sri. Ajith Viswanathan, Government Pleader; Sri. M.P. Sreekrishnan, Standing Counsel (SEIAA/SEAC); Sri. T. Naveen, Standing Counsel (Pollution Control Board); Smt. Ramola Nayanpally, Amicus Curiae.

Case Title: C.P. Muhammed v. The Geologist and Ors. and connected cases

Neutral Citation: 2025:KER:63722

Case Number: WP(C) NO.23150 OF 2023

Bench: Justice C. Jayachandran.