Kerala High Court
Moideen Kutty M.O vs State Of Kerala on 13 January, 2022
Author: T.R. Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
WP(C) NO. 9764 OF 2020
PETITIONER:
ABDURAHIMAN KARATTUCHALI
AGED 60 YEARS
S/O. KUNHAMUTTY HAJI, PANTHALLANCHERY HOUSE,
OZHUKOOR P.O., MORAYOOR,
MALAPPURAM DISTRICT.
BY ADV SRI BABU S. NAIR
RESPONDENTS:
1 THE DISTRICT GEOLOGIST,
DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE,
MANJERI, MALAPPURAM DISTRICT, PIN-676 121.
2 THE SOIL CONSERVATION OFFICER,
DISTRICT SOIL CONSERVATION OFFICE, MANJERI,
MALAPPURAM DISTRICT, PIN-676 121.
ADDL.R3 TO R6 IMPLEADED
ADDL.R3. SASIKUMARAN,
AGED 59 YEARS, S/O. CHERIYAKUNJAN, PULIKKALAKKANDI
HOUSE, CHEACODE AMSOM AND DESOM, CHEACODE POST,
KONDOTTY TALUK, MALAPPURAM-673645.
ADDL.R4 SUKUMARAN,
AGED 44 YEARS, S/O. BHARATHAN,
PULIKKALAKKANDI HOUSE, CHEACODE AMSOM AND DESOM,
CHEACODE POST,KONDOTTY TALUK,
MALAPPURAM-673645.
ADDL.R5 BHASKARAN,
AGED 51 YEARS, S/O. VALIYAKUNJAN,
PULIKKALAKKANDI HOUSE, CHEACODE AMSOM AND DESOM,
CHEACODE POST, KONDOTTY TALUK,
MALAPPURAM-673645.
ADDL.R6 SREENIVASAN,
AGED 33 YEARS, S/O. RAMANKUTTY, PULIKKALAKKANDI
HOUSE, CHEACODE AMSOM AND DESOM, CHEACODE POST,
KONDOTTY TALUK, MALAPPURAM-673645.
(ADDITIONAL R3 TO R6 ARE IMPLEADED AS PER ORDER DATED
01/10/2020 IN IA 2/2020)
W. P. (C).Nos.9764 & 24078/2020 2
*ADDL.R7 & R8 IMPLEADED
*ADDL.R7 THE KERALA STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
V.I.P.ROAD, KALOOR, ERNAKULAM-682017. (**DELETED)
*ADDL.R8 THE PRESIDENT,
CHERIYAPARAMBATH, HAYATHUDHEEN JUMA MASJID WAQF,
REG.NO.RA-8316, CHERIYAPARAMBA, CHEACODE P.O.,
MALAPPURAM-673645 (**DELETED)
*ADDL.R7 AND R8 ARE IMPLEADED AS PER ORDER
1.10.2020 IN IA.3/2020 IN WP(C) 9764/2020.
**ADDL. R7 AND ADDL. R8 ARE DELETED AS PER ORDER
DATED 05.11.2020 IN IA.5/2020 IN WP(C) 9764/2020.
*** ADDL.R9 IMPLEADED
THE STATE ENVIRONMENTAL IMPACT ASSESSMENT
ADDL.R9 AUTHORITY, KERALA, VELAKKUDI
THIRUVANANTHAPURAM - 695 024 (IS SUO MOTU
IMPLEADED AS PER ORDER DT.19.11.2020 IN
WPC.9764/2020)
BY ADVS.
R1 & R2 BY SRI VIPIN NARAYAN, GOVERNMENT PLEADER
R3 & R6 P.S.ABDUL KAREEM
SRI.R.ABDUL AHAD
R9 BY SRI M.P.SREEKRISHNAN, (SC, SEIAA)
SRI A.HAROON RASHEED, ADV.COMMISSIONER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
ON 17.11.2021, ALONG WITH WP(C).24078/2020, THE COURT ON
13.1.2022 DELIVERED THE FOLLOWING:
W. P. (C).Nos.9764 & 24078/2020 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
WP(C) NO. 24078 OF 2020
PETITIONER:
MOIDEEN KUTTY M.O
AGED 65 YEARS
S/O ASSAIN,
MADASSEERI OTTATHINGAL HOUSE,
CHEEKODE PO,
MALAPPURAM-673645.
BY ADVS.
SRI P.S.ABDUL KAREEM
SRI.R.ABDUL AHAD
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 STATE ENVIRONMENTAL
IMPACT ASSESSMENT AUTHORITY, KERALA, VELAKKUDI,
THIRUVANANTHAPURAM-695024, REPRESENTED BY ITS
CHAIRMAN.
3 DISTRICT ENVIROMENTAL IMPACT ASSESSMENT AUTHORITY,
MALAPPURAM, REPRESENTED BY ITS MEMEBR SECRETARY AND
REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, PERINTHALMANNA,
MALAPPURAM-679322.
4 KERALA STATE DISASTER MANAGEMENT AUTHORITY,
VIKASBHAVAN PO, THIRUVANANTHAPURAM-695033,
REPRESENTED BY ITS CHAIRMAN.
5 DISTRICT DISASTER MANAGEMENT
AUTHORITY, MALAPPURAM REPRESENTED BY ITS CHAIRMAN
AND DISTRICT COLLECTOR, MALAPPURAM,
CIVIL STATION, MALAPPURAM-676505.
6 DISTRICT GEOLOGIST
MINI CIVIL STATION, MANJERI,
W. P. (C).Nos.9764 & 24078/2020 4
MALAPPURAM-676121.
7 NATIONAL CENTRE FOR EARTH SCIENCE STUDIES,
AKKULAM, THIRUVANANTHAPURAM-695011,
REPRESENTED BY ITS DIRECTOR.
8 ABDURAHIMAN KARATTUCHALI
AGED 60 YEARS
S/O KUNHAMUTTY HAJI,
PANTHALLANCHERY HOUSE, OZHUKOOR PO,
MORAYOOR, MALAPPURAM-673642.
BY ADVS.
SRI VIPIN NARAYAN, GOVERNMENT PLEADER
SRI.M.P.SREEKRISHNAN( SC, SEIAA)
R8 BY SRI.BABU S. NAIR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 17.11.2021, ALONG WITH WP(C).9764/2020, THE COURT ON
13.1.2022 DELIVERED THE FOLLOWING:
W. P. (C).Nos.9764 & 24078/2020 5
T.R. RAVI, J.
--------------------------------------------
W. P. (C). Nos. 9764 & 24078 of 2020
--------------------------------------------
Dated this the 13th day of January, 2022
JUDGMENT
Common questions arise for consideration in these writ petitions and hence they are heard and disposed of together. WPC No. 9764 of 2020
2. The petitioner is a quarry operator, who had been issued with an environmental clearance on 26.04.2018 followed by a quarrying permit on 06.06.2018. The environmental clearance and the quarrying permit have been produced as Exts.P1 & P2 in writ petition. Ext.P1 says that the maximum period of excavation shall not exceed 3 years and the validity of the clearance is for 3 years. Ext.P2 quarrying permit was valid till 05.06.2019. There were objections to the quarry being operated from the local residents and the petitioner had filed WP(C) No.38775/2018 seeking Police protection. This Court by judgment dated 18.12.2018 directed the Police to give adequate and effective protection for pursuing the quarrying operation in so far as Exts.P1 & P2 are valid. In paragraph 6 of the judgment this Court had noticed the report of W. P. (C).Nos.9764 & 24078/2020 6 the District Collector stating that there is no chance for any landsliding and other adverse calamities in the quarrying site. Ext.P3 is the judgment in WP(C) No.38775/2018. When the quarrying permit was due to expire, the petitioner filed Ext.P4 application seeking renewal. By Ext.P6 dated 24.12.2019, the Senior Geologist rejected the request. It is seen from the order that the petitioner had all the required clearances as per law. It is however stated that on inspecting the houses of persons residing down hill, it was seen that there was seepage in several places and it is felt that, if mining is permitted it can result in natural disasters like landslide. The petitioner challenged Ext.P6 order in WP(C) No.141/2020. By Ext.P7 judgment, this Court set aside Ext.P6 and remitted the case back to the Senior Geologist for fresh consideration after affording an opportunity of hearing to the petitioner. The petitioner placed the judgment before the Senior Geologist along with Ext.P8 representation dated 19.02.2020. By Ext.P9 order, the request was again rejected by the Senior Geologist. It is stated in the order that after the environmental clearances was granted on 26.04.2018, in 2018 & 2019, there were landslides in Malappuram District. It is further stated that on inspection of the residences in the downhill, it was noticed there W. P. (C).Nos.9764 & 24078/2020 7 was seepage behind the houses, which can be a reason for a natural disaster. It is further stated that the situation that was prevailing at the time of grant of environmental clearances and when the District Collector had filed the affidavit stating there is no likelihood of landslide, has considerably changed when the inspection was conducted on 12.12.2019. It is stated that no further site inspection is required. Ext.P9 has been challenged in this writ petition.
3. The petitioner has filed I.A.No.1/2020 producing Ext.P10 report of the District Disaster Management Authority, Malappuram on the basis of the inspection carried out on 26.08.2019. As per the report, the area where mining is sought to be done is in the moderate risk area as far as landslide is concerned. It is also stated that there had been no landslides during 2018 in this area. The authority has finally stated that the permission can be granted for mining in accordance with the mining plan.
4. The respondents 3 to 6, who were impleaded in the writ petition, have filed counter affidavits opposing the prayers made in the writ petition. W.P(C) No.24078 of 2020 has been filed by a resident of the area, challenging the environmental clearance and the quarrying permit that has been issued to the petitioner in W. P. (C).Nos.9764 & 24078/2020 8 W.P(C) No.9764 of 2020 and there are consequential prayers for stopping the mining and quarrying activities. The contention is that the area where quarrying is sought be done is fragile in nature and the possibility of landslide is huge. The petitioner has also filed Exhibit P14 petition before the State Disaster Management Authority on 23.2.2021 which is stated to be pending.
5. On 1.10.2020, this Court issued an interim order in W.P. (C)No. 9764 of 2020, appointing Advocate Commissioner to inspect the area in question in the presence of the Geologist and file a report before the Court. Thereafter, on 19.11.2020, a common order was passed in the two writ petitions directing the State Environmental Impact Assessment Authority who was impleaded as additional respondent, to constitute a team and inspect the site of mining covered by the mining plan and file a report before the Court as to the veracity of the submission that source of drinking water is depleted consequent upon the mining and any other related ecological and environmental impact. The above two interim orders were challenged before a Division Bench of this Court in Writ Appeal Nos.1546 and 1580 of 2020. This Court allowed the writ appeals in part, setting aside the interim order passed on 10.1.2020 to the extent it directs renewal of the permit W. P. (C).Nos.9764 & 24078/2020 9 and declined interference with the order dated 19.11.2020.
6. On the basis of the order dated 19.11.2020 referred above, the Special Committee constituted by the SEIAA has filed a report on 19.1.2021. The conclusions recorded in the report in short are that during mining, proper drainage channels could be planned to discharge water, in case of heavy rainfall to avoid water pooling in the mining pits and to reduce intensive percolation if laterite quarrying is to be continued in the area. There is a requirement of about 220 litres per family per day working out to about 6600 litres per day for the 30 families and the the present water tank provides 20000 litres/day for the use of the families. Laterite mining activity is carried out with the help of semi- mechanized method by using an excavator without drilling and blasting since the rock is porous, which ensures that there will be no major noise and vibrations capable of destabilizing the small sized laterite boulders on the top and the large sized boulders on the slope. Since the mining lease area is located at 126 m height and the Village is at the foot hills away from the mining area, no ground water level will be encountered as far as the ground water is concerned. Generally water environment would have adverse effects due to mine discharges and siltation due to storm water. W. P. (C).Nos.9764 & 24078/2020 10 As this is an open cast mining it will not generate any waste water as there is no mineral processing involved. Therefore, the question of disposal of water will not arise. It is further concluded that the mining activity conducted much above the groundwater level does not lead to any ground water contamination. The report however says that the mining proponent should be advised to protect the top soil dump with retaining walls/gabions lined with granite pieces and strictly follow the guidelines in the mining plan and also instructions issued by the departments (especially Mining and Geology, Groundwater Department and Pollution Control Board) concerned from time to time and that alternately, the proponent can use the top soil for filling up the mined area before proceeding to the next area.
7. It can be seen from the report of the Expert Body that mining activity can be permitted with certain guidelines which are already contained in the mining plan and as per instructions issued by the Department from time to time. The only major issue noticed is that the top soil dumped needs to be protected with retaining walls/gabions lined with granite pieces. In the light of the report, I am of the opinion that the writ petitions can be disposed of directing the Senior Geologist to consider and pass orders on the W. P. (C).Nos.9764 & 24078/2020 11 application dated 3.4.2021 which has been produced as Ext.P14 in W.P.(C)No.9764/2020.
8. In the result, the writ petitions are disposed of directing the Senior Geologist to consider and pass orders on the application dated 3.4.2021 which has been produced as Ext.P14 in W.P. (C)No.9764/2020 within one month from the date of receipt of a copy of this judgment, after hearing the petitioners in both these writ petitions and respondents 3 to 6 in W.P.(C)No.9764/2020.
Sd/-
T.R. RAVI JUDGE dsn W. P. (C).Nos.9764 & 24078/2020 12 APPENDIX OF WP(C) 9764/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED TO THE PETITIONER BY THE DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, MALAPPURAM DATED, 26.4.2018.
EXHIBIT P2 TRUE COPY OF THE QUARRYING PERMIT ISSUED TO THE PETITIONER BY THE RESPONDENT DATED, 6.6.2018.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 19.12.2018 IN WP(C) NO.38775/2018 OF THIS HON'BLE COURT. EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR RENEWAL OF QUARRYING PERMIT SUBMITTED BY THE PETITIONER DATED, NIL.
EXHIBIT P5 TRUE COPY OF THE CHALAN RECEIPT ISSUED FROM THE SUB TREASURY, MANJERI DATED 17.6.2019. EXHIBIT P6 TRUE COPY OF THE ORDER DATED, 24.12.2019 ISSUED BY THE RESPONDENT AS NO.D.O.M./M- 2310/2019.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED, 7.1.2020 IN WPC NO.141/2020 OF THIS HON'BLE COURT.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED, 19.2.2020.
EXHIBIT P9 TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT AS NO.274/2019-20/L.S./DOM/M- 2310/2019 DATED 2.3.2020.
EXHIBIT P10 TRUE COPY OF THE REPORT OF THE DISTRICT DISASTER MANAGEMENT AUTHORITY, MALAPPURAM IN THE INSPECTION CONDUCTED ON 26/08/2019, ISSUED UNDERE THE R.T.I. ACT BY THE INFORMATION OFFICER DATED 08/07/2020. EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN I.A.NO.1/2020. IA.NO.3/2020, IA.NO.4/2020 IN WPC.NO.10596/2020 DATED 09/09/2020.
EXHIBIT P12 TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER TO THE HONOURABLE MINISTER FOR INDUSTRIES, DATED 05.06.2020 W. P. (C).Nos.9764 & 24078/2020 13 EXHIBIT P13 TRUE COPY OF THE NOTICE OF HEARING ISSUED TO THE PETITIONER BY THE SECRETARY TO THE GOVERNMENT,DEPARTMENT OF INDUSTRIES DATED 05.10.2020 EXHIBIT P14 TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER DT.3.4.2021 BEFORE THE 1ST RESPONDENT.
EXHIBIT P15 TRUE COPY OF NOTICE ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT DT.8.9.2021 EXHIBIT P16 TRUE COPY OF APPLICATION FOR RENEWAL OF QUARRYING PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DT.3.11.2021 EXHIBIT P17 TRUE COPY OF CHALAN RECEIPT ISSUED FROM THE SUB TREASURY, MANJERI DT.3.11.2021.
RESPONDENT EXHIBITS EXHIBIT R3(a): A TRUE COPY OF THE REPORT NO.274/2018 SUBMITTED BY THE VILLAGE OFFICER, CHEACODE TO THE DISTRICT COLLECTOR MALLAPURAM DATED 03/12/2018.
EXHIBIT R3(b): TRUE COPY OF THE COMPLAINT SUBMITTED TO DISTRICT COLLECTOR MALAPPURAM ALONG WITH RECEIPT DATED 23/11/2018.
EXHIBIT R3(c): TRUE COPY OF THE COMPLAINT SUBMITTED TO DISTRICT GEOLOGY OFFICER, MALAPPURAM WITH ENDORSEMENT OF RECEIPT DATED 23/11/2018. EXHIBIT R3(d): TRUE COPY OF THE REPORT NO.566/2015 OF SCHEDULED CASTE DEVELOPMENT OFFICER, AREACODE TO THE DISTRICT SCHEDULED CASTE DEVELO.PMENT OFFICER, MALAPPURAM DATED 28/12/2018 EXHIBIT R3(e): TRUE COPY OF THE REMINDER LETTER NO.A8- 5523/28 OF THE SECRETARY, CHEACODE GRAMA PANCHAYAT DATED 20/03/2019.
EXHIBIT R3(f): TRUE COPY OF THE FIR NO.95 OF 2019 OF VAZHAKKAD POLICE, MALAPPURAM DATED 29/03/2019.
W. P. (C).Nos.9764 & 24078/2020 14APPENDIX OF WP(C) 24078/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE NO.44/2018 ISSUED BY 3RD RESPONDENT DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY, MALAPPURAM DATED 26.04.2018.
EXHIBIT P2 THE TRUE COPY OF THE QUARRYING PERMIT NO.28/2018-19/LT/DOM/M-4185/2017 DATED 06.06.2018 ISSUED BY THE 6TH RESPONDENT DISTRICT GEOLOGIST, MALAPPURAM.
EXHIBIT P3 THE TRUE COPY OF THE COMPLAINT SUBMITTED TO DISTRICT COLLECTOR, MALAPPURAM ALONG WITH RECEIPT DATED 23.11.2018.
EXHIBIT P4 TRUE COPY OF THE COMPLAINT SUBMITTED TO DISTRICT GEOLOGY OFFICER, MALAPPURAM WITH ENDORSEMENT OF RECEIPT DATED 23.11.2018.
EXHIBIT P5 TRUE COPY OF THE REPORT NO.274/2018 SUBMITTED BY THE VILLAGE OFFICER, CHEACODE TO THE DISTRICT COLLECTOR MALLAPPURAM DATED 03.12.2018. EXHIBIT P6 THE TRUE COPY OF THE ORDER NO. DOM/M-2310/2019 ISSUED BY THE SENIOR GEOLOGIST, MALAPPURAM DATED 24.12.2019.
EXHIBIT P7 THE TRUE COPY OF JUDGMENT OF THIS HONOURABLE COURT IN WPC NO.141 OF 2020 DATED 07.01.2020. EXHIBIT P8 THE TRUE COPY OF THE ORDER NO.274/2019- 20/LS/DOM/M-2310/2019 ISSUED BY THE SENIOR GEOLOGIST, MALAPPURAM DATED 02.03.2020. EXHIBIT P9 TRUE COPY OF THE REPORT SUBMITTED BY THE SOIL CONSERVATION OFFICER, DISTRICT SOIL CONSERVATION OFFICE, MANJERI, MALAPPURAM DATED 29/05/2020 IN WPC NO. 9764/2020.
EXHIBIT P10 THE TRUE COPY OF THE DOCUMENT FILED BY THE 8TH RESPONDENT HEREIN (THE PETITIONER IN WPC NO. 9764/2020) BEFORE THIS HONORABLE COURT. EXHIBIT P11 THE TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HONOURABLE COURT IN WPC NO.9764/2020 DATED 01.10.2020.
EXHIBIT P12 THE TRUE COPY OF THE REPORT SUBMITTED BY SRI HAROON RASHEED A THE LEARNED ADVOCATE COMMISSIONER IN WPC NO.9764/2020 BEFORE THIS W. P. (C).Nos.9764 & 24078/2020 15 HONOURABLE COURT DATED 15.10.2020.
EXHIBIT P13 TRUE PHOTOGRAPH OF THE MINING PREMISE. EXHIBIT TRUE PHOTOGRAPHS OF THE MINING PREMISE. P13(A) EXHIBIT TRUE PHOTOGRAPHS OF THE MINING PREMISE. P13(B) EXHIBIT TRUE PHOTOGRAPHS OF THE MINING PREMISE. P13(C) EXHIBIT P14 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER AND ANOTHER BEFORE THE STATE DISASTER MANAGEMENT AUTHORITY DT.23.2.2021 RESPONDENTS' EXTS:
EXT.R2(A): TRUE COPY OF REPORT DT.19.1.2021