Kerala High Court
Annamma Poulose vs District Collector
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938
WP(C).No. 16763 of 2016 (U)
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PETITIONER(S):
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ANNAMMA POULOSE
W/O. M.POULOSE, PUTHENPURA VADAKKATHIL,
PALLIMURI, SOORANAD P.O., PAROZHY,
CHAKKUVALLY, KOLLAM DISTRICT-690 522.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
SRI.P.J.JOE PAUL
RESPONDENT(S):
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1. DISTRICT COLLECTOR
COLLECTORATE, KOLLAM-691 001.
2. REVENUE DIVISIONAL OFFICER
REVENUE DIVISIONAL OFFICE,
KOLLAM-691 001.
3. TAHSILDAR,TALUK OFFICE,
KUNNATHOOR-690 520.
4. VILLAGE OFFICER
VILLAGE OFFICE, PORUVAZHI P.O.,
KOLLAM-690 520.
5. SECRETARY
PORUVAZHY GRAMA PANCHAYATH,
PORUVAZHY P.O., KOLLAM-690 520.
6. GEOLOGIST
OFFICE OF DISTRICT GEOLOGIST,
KOLLAM-691 001.
7. P.V.SHERIF
ROYAL PALACE, THEKKEMURI,
SOORANAD NORTH VILLAGE,
KOLLAM DISTRICT-690 522.
WP(C).No. 16763 of 2016 (U)
8. SHANAVAS M.
ROYAL PALACE, PALLIMURI, PORUVAZHY P.O.,
KOLLAM DISTRICT-690 520.
9. SHAMLA MOL
W/O. SHANAVAS M., ROYAL PALACE,
PALLIMURI, PORUVAZHY P.O.,
KOLLAM DISTRICT-690 520.
10. MOHAMMED SHAN
S/O. SHANAVAS M., ROYAL PALACE,
PALLIMURI, PORUVAZHY P.O.,
KOLLAM DISTRICT-690 520.
11. MOHAMMED SHAHIL
S/O. SHANAVAS M., ROYAL PALACE,
PALLIMURI, PORUVAZHY P.O.,
KOLLAM DISTRICT-690 520.
12. ABDUL SATHAR SAIT
S/O. HAJI HASSAN YAKKOOB SAIT,
UPPUKOTTIL HOUSE, MUKKUKAVALA,
PERINGALA, KAYAMKULAM-690 502.
13. MUHAMMED RAFI
MELEVILAYIL, PORUVAZHY P.O.,
KOLLAM DISTRICT-690 520.
14. SINI
W/O. MUHAMMED RAFI, MELEVILAYIL,
PORUVAZHY P.O., KOLLAM DISTRICT-690 520.
R1 TO R4 BY GOVERNMENT PLEADER SRI.RENIL ANTO
R5 BY ADVS. SRI.K.SIJU
SMT.S.SEETHA
R7 TO R12 BY ADV. SRI.P.K.ABDU RAHEEM
SRI.SOORAJ T.ELENJICKAL
SRI.P.A.MOHAMMED SHAH
SMT.P.M.MAZNA MANSOOR
SMT.V.A.HARITHA
SMT.SANDHYA R.NAIR
R13 & 14 BY DR.K.P.SATHEESAN SENIOR ADVOCATE
BY ADV. SRI.P.MOHANDAS (ERNAKULAM)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09/11/2016,THE COURT ON 07-12-2016 DELIVERED THE
FOLLOWING:
bp
WP(C).No. 16763 of 2016 (U)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1: A COPY OF TAX RECEIPT EVIDENCING REMITTANCE OF TAX
IN RESPECT OF PROPERTY.
P2: A COPY OF ORDER NO.A11.23053/08 DTD.13.5.2008 OF
THE 1ST RESPONDENT.
P3: A COPY OF COUNTER AFFIDAVIT FILED BY THE 1ST
RESPONDENT IN WPC 8919/2010 BEFORE THE HON'BLE
COURT.
P4: A COPY OF JUDGMENT DTD.5.6.2012 IN WPC NO.8919 OF
2010.
P5: A COPY OF ORDER NO.L10-19449/2010 DTD.16.7.2012.
P6: A COPY OF PERMIT NO.A3-2201/2015 DTD.22.4.2015
ISSUED BY THE 5TH RESPONDENT TO THE 8TH RESPONDENT.
P7: A COPY OF PERMIT NO.A3-5158/2014 DTD.19.11.2014
ISSUED BY THE 5TH RESPONDENT TO THE 12TH RESPONDENT.
P8: A COPY OF PERMIT NO.A3-5694/2015 DTD.6.11.2015
ISSUED BY 5TH RESPONDENT TO 13TH RESPONDENT.
P9: A COPY OF REPORT DTD.5.6.2015 MADE BY THE 3RD
RESPONDENT TO TEH 1ST RESPONDENT.
P9(A): A COPY OF REPORT DTD.14.1.2016 SENT BY 3RD
RESPONDENT TO RESPONDENTS 1 AND 2 OBTAINED UNDER
RIGHT TO INFORMATION ACT.
P10: A COPY OF ORDER NO.724/2015-16/DOQ/S2/2819/2015
DTD.5.1.2016 ISSUED BY THE 6TH RESPONDENT IN FAVOUR
OF THE 13TH RESPONDENT.
P11: A COPY OF ORDER NO.837/2015-16/DOQ/S2/1636/2015
DTD.11.4.2016 ISSUED BY THE 6TH RESPONDENT IN FAVOUR
OF THE 12TH RESPONDENT.
P12: A COPY OF ORDER NO.34/2016-17/DOQ/S2/1636/2015
DTD.11.4.2016 ISSUED BY THE 6TH RESPONDENT IN FAVOUR
OF THE 12TH RESPONDENT.
P13: A COPY OF JUDGMENT DTD.3.2.2016 IN WPC
NO.4131/2016.
WP(C).No. 16763 of 2016 (U)
P14: COPIES OF PHOTOGRAPHS DEPICTING THE EFFECT OF
RAMPANT EXTRACTION OF ORDINARY LATERITE.
RESPONDENT(S)' EXHIBITS :
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EXT.R8(a): COPY OF THE BUILDING PERMIT ISSUED TO THE R8.
EXT.R8(b): COPY OF THE BUILDING TAX RECEIPT ISSUED TO THE
RESPONDENT 8 DT 31/3/2016.
EXT.R8(c): COPY OF THE PHOTOGRAPH SHOWING THE COMPLETED
CONSTRUCTION.
EXT.R8(d): COPY OF THE PHOTOGRAPHS DATED NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
*CR*
K. VINOD CHANDRAN, J
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W.P(C) No. 16763 of 2016
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Dated this the 07th day of December, 2016
J U D G M E N T
The petitioner is concerned with the large scale removal of ordinary earth from her adjacent properties belonging to the respondents 7 to 14. The petitioner contends that such removal has been effected by reason of exemption available; both in the Kerala Minor Mineral Concession Rules 1967 ( for short Rules of 1967) and the Kerala Minor Mineral Concession Rules 2015 (for short KMMC Rules); the latter of which superseded the former. The exemption, for excavation of ordinary earth on the strength of building permits issued by the Local Self WPC.No.16763/2016 : 2 : Government Institutions (LSGI's) is said to be creating regular instances of wide spread mining all over the State without any quarrying permit, thus resulting in deleterious consequences to the environment. The petitioner in the instant case, is pointedly concerned about the mining conducted by respondents 7 to 14, in her adjacent property; resulting in the loss of lateral support to her property.
2. The petitioner is the owner in possession of 6.10 Ares of property comprised in Sy.No. 126/13 of Poruvazhi Village in Kunnathur Taluk wherein the petitioner and her family are residing in a residential building. The 7th respondent owned 1 Acre and 23=cents of property to the western side of the petitioner's property. A building permit was obtained by the 7th respondent for construction of a WPC.No.16763/2016 : 3 : commercial building based on which large scale quarrying of ordinary earth was carried on in the property. But for excavation of earth no construction was effected thus rendering illegal the mining carried on; based on an exemption, the condition of which was not satisfied; is the argument.
3. The permission granted by the RDO to remove ordinary earth from the said property having an extent of more than 1 acre, upto 3 to 4 meters height from the road level was canceled as per Ext.P2, on the complaint made by the petitioner. The 7th respondent then approached this Court with a writ petition against the obstruction caused to the excavation and removal of sand from his property wherein the District Collector had filed a counter affidavit WPC.No.16763/2016 : 4 : as is evidenced by Ext.P3. The District Collector had opposed the said activity and this Court refused to entertain the challenge and directed the District Collector to hear the parties and take decision in accordance with law as per Ext.P4. The District Collector had passed Ext.P5 refusing consent to extract sand from the subject land.
4. The 7th respondent then transferred the property in the names of others; more particularly respondents 8 to 13 who are related to the 7th respondent. These persons had obtained Exts.P6, P7 and P8 building permits from the LSGI, after the KMMC Rules came into force. Again when large scale excavation of earth was carried out, respondents 7 to 14 relied on the exemption available under Rule 14 of KMMC Rules. The various party WPC.No.16763/2016 : 5 : respondents were also granted transit permits as indicated in Exts.P10 to P12 in the year 2016 which are also challenged in the above writ petition. The petitioner points to Exts. P9 and P9(a) reports of Additional Tahasildar, Kollam to contend that there is gross misuse of the exemption under Rule 14 of the KMMC Rules as also the earlier Rules of 1967 in which amendments on similar lines had been made by G.O(P)193/2014/ID dated 30.06.2014
5. The 8th respondent has filed a counter affidavit for and on behalf of himself and the respondent 9 to 12, who are his wife and children. It is contended that the 7th respondent who is the father-in-law of the 8th respondent had constructed a shopping complex as per the WPC.No.16763/2016 : 6 : building permit granted to him. It is also contended that the excavation carried on was to level the property and bring it to the level of the road passing through the boundary of the property. The 8th respondent also relies on the exemption granted under the earlier Rules of 1967 as also the KMMC Rules to assert that no mining/quarrying permit as such is required and that he had excavated the sand and removed it for the purpose of construction of residential building.
6. This Court has time and again been confronted with claims for exemption raised under Rule 14 of the KMMC Rules; seeking direction to the District Geologist to issue Form O(A) under the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) WPC.No.16763/2016 : 7 : Rules 2015 (for short "Transportation Rules" only). This Court had also in W.P(C) No 23251 of 2016 sought for an explanation from the State as to what is intended by the "exemption" which order dated 19.08.2016 is reproduced here under:
"The above writ petition has been filed, seeking a further permit for carrying out excavation of red earth for the purpose of a building construction. The petitioner, on the basis of a building permit, the plan of which is produced at Ext.P3 for construction of a building having a total plinth area of 95.6 sq.meter, has sought for excavation, which has been granted as per Exts.P5 & P6. The WPC.No.16763/2016 : 8 : photographs produced by the petitioner itself shows that an entire hill has been razed to the ground for the purpose of building a residential house of 95.6 sq.meter.
2. This is a gross misuse of the exemption provided under sub-Rule (2) of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, wherein extraction of ordinary earth for construction of residential buildings, having a plinth area of less than 300 sq. Meters, is exempted. The above provision, according to this Court, is only to grant exemption in so far as removing the earth, which is extracted for WPC.No.16763/2016 : 9 : the purpose of building the foundation and not to change the terrain of the land itself.
3. This Court has come across a number of such petitions, in which claim for O(A) Forms for transport of ordinary earth is sought for, on the basis of the exemption, which as revealed herein has been grossly misused. It is also to be noticed that the exemption only requires a permit obtained from the Local Self Government Authority and it does not speak of any actual construction being undertaken or finished within a specified time. Hence, any person having land could seek for a permit, carry WPC.No.16763/2016 : 10 : out extraction and then not carry out the construction at all, in which event, the extraction would have been permitted in contravention of the Rules.
4. The State of Kerala represented by the Chief Secretary, Government Secretariat, Trivandrum, the Law Secretary, Government Secretariat, Trivandrum and the Principal Secretary, Industries Department, Government Secretariat, Trivandrum are impleaded suo motu as addl. Respondents 5, 6 & 7.
5. The Geologist, who have issued Exts.P5 &P6 orders, M/s.Getha S.R and WPC.No.16763/2016 : 11 : Dr.Saji Kumar S are impleaded as Addl. Respondents 8&9 and are directed to file an affidavit, explaining the circumstances and the legal provisions under which Exts.P5 & P6 permits were respectively issued by them.
6. The learned Government Pleader is directed to take notice for the addl.
Respondents suo motu impleaded. The addl. Respondents 5 to 7 shall file affidavit, specifically explaining the consequence of the exemption granted in the Rules within a period of two weeks from today and the addl. Respondents 8 & 9 shall file their WPC.No.16763/2016 : 12 : affidavit in explanation also within that time."
8. The said writ petition along with numerous, similar, writ petitions, which sought for removal of ordinary earth, on the basis of building permits issued by the local authorities are posted together and is posted today for hearing.
9. It has to be noticed that the building permits are issued for various validity periods ranging from 3 to 5 years. Immediately on issuance of such building permits the land owners approach this Court seeking removal of sand and issuance of Form O(A) harping on the exemption granted under Rule 14. As a matter of regular practice this Court used to issue directions to grant such O(A) forms. WPC.No.16763/2016 : 13 : Time and again it was brought to the notice of this Court that there is widespread illegal mining on the strength of building permits and no construction being effected. There are also no safeguards to ensure that a building is constructed, when earth is removed, on the strength of an exemption based on the building permit.
10. Then again, this Court had occasion to consider two writ petitions filed by an identical petitioner for the very same relief of issuance of Form O(A) under the Transportation Rules numbered as W.P(C) Nos.16751/2016 & 17358/2016. This Court had initiated proceedings and sought for explanation from the Advocates appearing, and the petitioner, since there was an abuse; insofar as two identical writ petitions having been WPC.No.16763/2016 : 14 : moved by the very same petitioner for identical relief. In the course of such proceedings initiated suo motu by this Court, it was brought to the notice of this Court that the petitioner had never filed the writ petitions. The petitioner when issued with notice appeared in person before this Court and also filed an affidavit contending that he was the owner of the land but had never even sought for a permit for construction of a building. Notice was then issued to the Panchayath and files were directed to be produced. From the files, it was revealed that the application said to have been filed by the land owner was not even signed. This Court has directed the Superintendent of Police to carry out investigation with respect to the said discrepancies noticed by this Court. The aforesaid facts WPC.No.16763/2016 : 15 : lends credence to the allegation that there is a mafia operating in the State carrying out illegal excavation under the guise of extraction for the purpose of building residential houses having plinth area less than 300 sq.meters.
11. Yet another Writ Petition numbered as W.P (C) No.22825/2016 also came up for consideration before this Court wherein the petitioner who obtained a building permit carried out large scale excavation of clay for manufacture of bricks on the strength of a building permit issued by the local authority. In that case also, no construction of building was effected even after two years of issuance of permit. The permit however had a further period of validity of one year. In such circumstance, this WPC.No.16763/2016 : 16 : Court refused to interfere with the order of the Panchayath refusing renewal of license for the brick manufacturing unit and also directed prosecution steps to be taken under the KMMC Rules if a building is not constructed within the validity period.
12. These facts are noticed only to emphasise the truth behind the allegation of misuse of the exemption under Rule 14 of the KMMC Rules. In this context, Exts.P9 & P9(a) reports filed by the Additional Tahasildar and the Tahasildar in the instant case brings forth very significant facts and reasoning. This Court cannot but observe that the reports reveal a perceptive officer; the like of which is dwindling in numbers in the present administrative system. The reasoning adopted by the officer in Exts.P9 WPC.No.16763/2016 : 17 : and P9(a)are worthy of reiteration even by this Court.
13. Ext.P9 is a report with respect to the excavation of ordinary earth in the Kunnathur Taluk on the basis of a complaint made by the convener of one 'Punarjani Club'. It is noticed that in the villages of Poruvazhi, Suranad and Kunnathur there were about 70 transit passes issued by the Geologist on the basis of the building permits issued by the LSGI. It was observed that the quantity permitted to be excavated was noticed in tons and not in cubic meters, making it very difficult to assess the exact quantity of earth excavated and initiate proceedings. It was also observed that such permits were issued without looking at the positioning of the excavated land with reference to the neighboring lands and the loss WPC.No.16763/2016 : 18 : of lateral support occasioned for reason of the excavation. As to the transit passes issued, on the basis of the building permits of LSGI, it was specifically reported that there are mafia groups existing in the Taluk, who through the land owners approach the LSGI for a building permit, merely for the purpose of excavation of ordinary earth and sale of the same. The said activity was also found to have caused deleterious effect to the environment and ecology of the area and caused large scale damage to the neighboring properties by rendering them infirm and useless for reason of the excavation carried on in the adjacent land.
14. Ext.P9(a) is a further report on the very same issue which again pointed out that in all the five Panchayaths except the two, where there is a prohibition of WPC.No.16763/2016 : 19 : mining, hills were razed to the ground on the strength of the Form O(A) issued by the Geology department based on building permits issued by the LSGI. After G.O(P) 16/2015/ID dated 07.02.2015 ie: the KMMC Rules; it was pointed out that 100 permits for excavation of ordinary earth permitting excavation of 500 metric tons were issued by the Geological Department, thus resulting in excavation and sale of more than 50000 metric tons of ordinary earth; which means excavation of almost 5000 to 10000 lorry loads of ordinary earth. The enormity of the figures is mind boggling even with reference to few Panchayaths, while this is a phenomenon characteristic to the entire State.
15. The activity carried on as noticed above is WPC.No.16763/2016 : 20 : based on Rule 14 of the KMMC Rules which is extracted here under:
1. A quarrying permit under these rules shall be obtained for extraction of ordinary earth used for filling or levelling purposes in construction of embankments, roads, railways or buildings in Form N:
2. Notwithstanding anything contained in sub-rule(1), No quarrying permit is required under these rules for extraction of ordinary earth in connection with the construction of residential buildings including flats or commercial buildings having a plinth area of 300 square metres if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities concerned:
WPC.No.16763/2016 : 21 :
Provided that in cases where transportation of ordinary earth is required, the owner shall pay royalty for the quantity to be transported and shall obtain mineral transit passes under the Kerala State Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 from the competent authority:
Provided further that the competent authority shall not issue mineral transit passes for removal of ordinary earth exceeding the quantity needed to be extracted, as ascertained by it through a site inspection.
16. An exemption is provided under Sub-rule (2) of Rule 14 for extraction of ordinary earth for construction of residential buildings including flats or commercial buildings having a plinth area of 300 sq.meters, on the WPC.No.16763/2016 : 22 : owner of the land obtaining a building permit from the local authority. The proviso to the sub-rule also speaks of mineral transit passes to be issued when transportation of ordinary earth is required.
17. Section 4 of the Mines and Minerals (Development and Regulation) Act,1957 (for brevity MMDR Act) provides that no person shall undertake any reconnaissance, prospecting or mining operations except under and in accordance with the terms and conditions of the reconnaissance permit, a prospecting license or a mining lease. The State Government has been conferred with the power to make rules in respect of minor minerals under Section 15 of the Act which power has been invoked to frame the KMMC Rules of 2015. Section 15 does not WPC.No.16763/2016 : 23 : grant any power to the State Government to exempt any activity which involves minor mineral quarrying; from the requirement of a permit, license or lease.
18. The power of the respective legislatures, was considered by the Hon'ble Supreme Court in 2012 (11) SCC 1 (Monnet Ispat & Energy Ltd. V. Union of India. Entry 54 of List I and Entry 23 of List II was looked into, to find that the States power to regulate mines and mineral development is taken away to the extent of regulations made by the Union Parliament. It was held so in Paragraph 130:
The same philosophy is reflected in our Constitution. The management of the mineral resources has been left with both the Central Government and the State WPC.No.16763/2016 : 24 : Governments in terms of List I Entry 54 and List II Entry 23. In the scheme of our Constitution, the State Legislatures enjoy the power to enact legislation on the topics of "mines and minerals development". The only fetter imposed on the State Legislatures under Entry 23 is by the latter part of the said entry which says, "subject to the provisions of List I with respect to regulation and development under the control of the Union". In other words, the State Legislature loses its jurisdiction to the extent to which the Union Government had taken over control, the regulation of mines and development of minerals as manifested by legislation incorporating the declaration and no more. If Parliament by its law has declared that regulation of mines and development of minerals should in the WPC.No.16763/2016 : 25 : public interest be under the control of the Union, which it did by making declaration in Section 2 of the 1957 Act, to the extent of such legislation incorporating the declaration, the power of the State Legislature is excluded. The requisite declaration has the effect of taking out regulation of mines and development of minerals from List II Entry 23 to that extent. It needs no elaboration that to the extent to which the Central Government had taken under "its control" "the regulation of mines and development of minerals" under the 1957 Act, the States had lost their legislative competence. By the presence of the expression "to the extent hereinafter provided" in Section 2, the Union has assumed control to the extent provided in the 1957 Act. The 1957 Act prescribes the WPC.No.16763/2016 : 26 : extent of control and specifies it. We must bear in mind that as the declaration made in Section 2 trenches upon the State legislative power, it has to be construed strictly. Any legislation by the State after such declaration, trespassing the field occupied in the declaration cannot constitutionally stand. To find out what is left within the competence of the State Legislature on the declaration having been made in Section 2 of the 1957 Act, one does not have to look outside the provisions of the 1957 Act but as observed in Baijnath Kadio, "have to work it out from the terms of that Act". In order that the declaration made by Parliament should be effective, the making of rules or enforcement of rules so made is not decisive.
19. Hence the power of the State is taken away to WPC.No.16763/2016 : 27 : the extent provided in the MMDR Act, as declared in Section 2 of the said Act. Section 4 is a prohibition from undertaking any reconnaissance, prospecting or mining without a permit, license or lease. Section 14 as it originally stood exempted minor minerals from Section 4 to 13; which stood amended with effect from 10.02.1987 (Act 37 of 1986); making inapplicable only Sections 5 to 13, to minor minerals. In the teeth of Section 4, the State framing rules under Section 15 of the MMDR Act could not have altogether exempted a mining activity from being carried out without permit, license or lease.
20. Digging of trenches for foundation of buildings cannot strictly come within the meaning of mining operation, which definition under the MMDR Act, WPC.No.16763/2016 : 28 : postulates 'winning' of minerals. Especially when small buildings are constructed, the ordinary earth excavated would also be not commercially exploited since it is spread around the construction made, if the nature of land permits a foundation without piling. But when large scale excavation is necessitated and the excavated earth or clay has to be transported out, then there follows a commercial exploitation of the minor mineral in which case the same has to follow the procedure under the MMDR Act and the Rules. The State could hence regulate the grant of quarry leases, mining leases or other mineral concession under Section 15 of the MMDR Act, in specific instances but cannot altogether exempt the requirement of a permit, made mandatory under Section 4 of the MMDR Act. The WPC.No.16763/2016 : 29 : State could all the same exempt payment of royalty when trenches for foundation are dug and the earth excavated is spread over the very same property; which would not involve any winning of a mineral.
21. In this context, the notification brought out by the Ministry of Environment, Forest and Climate Change (MoEF & CC) dated 15.01.2016 [S.O 141(E)] is also relevant. The said notification amended the EIA notification of 2006 (SO 1533 EE) dated 14.09.2006 brought out in exercise of the powers conferred under the Environment (Protection) Act, 1986. The same is also an enactment of the Union Parliament, and the regulations prescribed there under would have the same effect on the States power under Entry 23 List II. It speaks of exemption WPC.No.16763/2016 : 30 : of certain cases from requirement of 'Environmental Clearance' ( for short "EC" only) under Appendix-IX. It provides exemption as Sl.No.9 "for digging of foundation for buildings not requiring prior environmental clearance". Hence a mere digging for construction of a building would not require an EC; if there is no commercial exploitation of the excavated earth carried out.
22. The State Government could hence bring in regulations with respect to digging of foundations for buildings where the ordinary earth extracted as in the case of buildings having a plinth area of 300 square meters, would not require an "EC". However, when Form O(A) is to be issued under the transportation rules, to commercially exploit the minor mineral, as explicit from the word WPC.No.16763/2016 : 31 : "winning any mineral" in the definition clause under the Act; there should be a proper permit applied for with EC.
23. The anomaly is also insofar as the exemption being used to carry out large scale quarrying of ordinary earth on the strength of the building permits, which buildings are often not constructed. What is intended by the Central Government is very clear in the notification, i.e, the digging of foundation for the buildings. It only speaks of earth removed when trenches for such foundation are dug, which often is spread around the building constructed.
24. The facts as noticed above, would reveal that an entire area is leveled by large scale extraction of ordinary earth, thus changing the very terrain of the land WPC.No.16763/2016 : 32 : itself and mutilating the face of the earth. Constructions made in hilly terrains are to be architecturally designed to suit the topography of the land and hills and hillocks cannot be razed to the ground so as to construct buildings of less than 300 square meters. Large scale excavations changing the topography and mutilating the nature of the land is not exempted under the MMDR Act, which as of now, regulates the exploitation of mines, minerals and its development. The reports produced herein indicate that entire hills and hillocks are erased from the face of earth altering the very topography and land terrain of the region. The exemption claimed is also to make small constructions which construction also does not materialise, especially there being no mandate in putting up a WPC.No.16763/2016 : 33 : structure for which building permit has been issued.
25. Quarrying operations so carried on; on the strength of building permits is not by reason only of the exemption under sub-rule (2), but more by reason of the proviso which permits transportation of ordinary earth from the site in which exemption under sub-rule (2) of Rule 14 is claimed. Similar is the exemption available in Rule 106 of the MMDR Act, and the issuance of special transit passes. This leads to commercial exploitation of the minor mineral, of course with payment of royalty. But such commercial exploitation brings the activity under the definition of 'mining operations' as defined in Section 3
(d) ('winning' of any mineral) of the MMDR Act, which mandates a permit,license or lease under Section 4 of the WPC.No.16763/2016 : 34 : Act. The State could bring in regulations to liberalize grant of permits for digging of trenches for foundation and transportation of excavated minor mineral, but there cannot be any exemption as such and issuance of Form O (A) for the asking. Sub-rule (2) of Rule 14 and the provisos, of the KMMC Rules hence has to be found to be ultra vires the MMDR Act. Sub-rule (1) to (4) of Rule 106, on the same reasoning, also are ultra vires the MMDR Act. The exemption granted with a condition of payment of royalty, reveals an undue anxiety to ensure revenue; without any concern as to the preservation of natural wealth; which is alien to the regulatory regime of the MMDR Act. It exceeds the rule making authority conceded to the State, with respect to minor minerals, under Section 15 of the WPC.No.16763/2016 : 35 : Act.
26. The transportation on payment of royalty can only be effected when there is a valid permit/lease/license and not otherwise. The State in its anxiety to ensure payment of royalty had overlooked the object sought to be achieved by the Union Parliament in providing for regulatory measures for mining operations, which earlier resulted in indiscriminate removal of mineral resources. The State exceeded its power in providing for exemption and issuance of transit passes under the KMMC Rules for excavation carried on without a permit. It is hence declared that Sub-rule (2) of Rule 14 and sub-rules (1), (2), (3) and (4) of Rule 106 of the KMMC Rules are ultra vires the MMDR Act.
WPC.No.16763/2016 : 36 :
27. On the conclusions arrived at and the declaration made, it is directed that the party respondent shall not carry on any further excavation of ordinary earth from the properties owned by them on the strength of the building permit issued by the LSGI nor can they be issued with any transit passes under the Transportation Rules. The party respondents would not be permitted to dig trenches, even for the foundation of the buildings, in their respective lands, if any transportation of the excavated earth is required; without obtaining permits as provided in the KMMC Rules. If however no transportation is required, the Geologist on an application made, shall consult the Engineer attached to the LSGI to decide on the exact quantity of earth to be removed, for constructing the WPC.No.16763/2016 : 37 : foundation of the building (i.e, for digging of trenches alone), which earth shall not be taken out of the property. No transit passes need be issued if the earth excavated to dig trenches can be spread around the building constructed. The Geologist shall also obtain an undertaking from the applicant to ensure construction of the foundation within at least six months of the date of issue of permit, failing which prosecution steps shall be initiated against the permit holder and the royalty together with penalty recovered.
28. The State would also look into the aspect of regulation of excavation carried out for the purpose of foundation of small buildings; providing strict guidelines, ensuring the preservation of land and requiring the WPC.No.16763/2016 : 38 : construction to be made within a time frame of the excavation, imposing deterrent penalty on failure. When however, any removal of excavated earth and transportation is required, then there would be commercial exploitation of the 'won' minor mineral which shall not come within the purview of the liberal regime; where the excavated earth is retained in the property.
Writ petition would stand allowed. No Costs.
Sd/-
(K. VINOD CHANDRAN, JUDGE)
jma //true copy//
P.A to Judge