Kerala High Court
Unknown vs Present on 12 October, 2015
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939
WP(C).No. 32474 of 2015
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PETITIONER(S)
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1 P.D JOSE,AGED 60 YEARS,
S/O.DEVASSY, PANAPARAMBIL HOUSE, ILLITHODE,
MALAYATTOOR PO, ERNAKULAM DISTRICT, PIN 683 587.
2 SUKUMAR GOPALAN,
S/O.GOPALAN, PUTTUMPURATH HOUSE, MULAMKUZHI,
MALAYATTOOR, ERNAKULAM DISTRICT, PIN 683 587.
BY ADVS.SRI.K.ABDUL JAWAD
SMT.V.K.ANJU
SMT.P.M.CIGY
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, INDUSTRIES
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2. THE DISTRICT COLLECTOR
ERNAKULAM, COLLECORATE, KAKKNADU, ERNAKULAM PIN 682 011.
3. THE TAHSILDAR
ALUVA, ERNAKULAM DISTRICT, PIN 683 576.
4. THE GEOLOGIST, DISTRICT OFFICE OF THE DEPARTMENT MINING &
GEOLOGY, CIVIL STATION, KAKKNADU, ERNAKULAM DISTRICT PIN 682 030.
5. THE STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT
AUTHORITY, KERALA
REPRESENTED BY ITS CHAIRMAN, PALLIMUKKU, PETTA PO,
THIRUVANANTHPAURAM PIN 695 024.
6. THE KERALA STATE POLLUTION CONTROL BOARD,
REPRESENTED BY ITS ENVIRONMENTAL ENGINEER,
THE DISTRICT OFFICE, ERNAKULAM, PIN 682 011.
7. THE DIRECTOR OF MINES SAFETY
BANGALORE, PIN 560 002.
8. THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,
KENDRIYA BHAVAN, BLOCK C-2, 3RD FLOOR, KAKKANADU PO,
ERNAKULAM DISTRICT PIN 682 037.
WP(C).No. 32474 of 2015 (H)
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9. MALAYATTOOR - NEELESWARAM GRAMA PANCHAYATH,
NEELEESWARAM PO, ERNAKULAM DISTRICT, PIN 683 574.
10. P.D.BABY,
PALATTY HOUSE, MALAYATTOOR PO,
ERNAKULAM DISTRICT, PIN 683 587.
R1 TO R5 BY SPECIAL GOVERNMENT PLEADER SRI HANIL KUMAR
R6 BY SRI. T.NAVEEN SC,
R7,R8 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R9 BY ADVS. DR.K.P.SATHEESAN (SR.)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.ANOOP.V.NAIR
SRI.S.VIBHEESHANAN
SRI.K.SUDHINKUMAR
R10 BY ADV. DR.GEORGE ABRAHAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2018,
ALONG WITH WPC 22641/2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
K.V.
WP(C).No. 32474 of 2015 (H)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1- TRUE COPY OF THE LAND TAX RECEIPT DATED 12.10.2015
P2- TRUE COPY OF THE LAND TAX RECEIPT DATED 29.7.15
P3- TRUE COY OF THE QUARRYING PERMIT DATED 6.11.2014
P4- TRUE OCPY OF THE ORDER OF RENEWAL IS WRONGLY DATED AS 20.4.14
P5- TRUE COPY OF THE LOCATION SKETCH OF THE PROPERTY DATED 21.10.2014
P6- TRUE COPY OF THE LICENSE DATED 9.4.2015 THAT IS VALID UP TO 31.3.2016
P7- TRUE COPY OF THE COMPLAINT DATED 21.8.2015 PREFERRED BY THE 1ST
PETITIONER BEFORE THE VILLAGE OFFICER, MALAYATTOOR
P8- TRUE COPY OF THE COMPLAINT DATED 22.8.2015 PREFERRED BY THE 1ST
PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, KALADY
P9- TRUE COPY OF THE COMPLAINT DATED 22.8.2015 PREFERRED BY THE 1ST
RESPONDENT BEFORE THE 9TH RESPONDENT
P10- TRUE COPY OF THE CERTIFICATE DATED 21.10.14 ISSUED BY THE VILLAGE OFICER,
MALAYATTOOR
P11- TRUE COPY OF THE APPLICATION DATED 20.8.2015 MADE BY THE 1ST PETITONER
UNDER THE RIGHT TO INFORMATION ACT
P12- TRUE COPY OF THE REPLY DATED 11.9.15 ISSUED BY THE 4TH RESPONDENT
P13- TRUE COPY OF THE APPLICATION DATED 13.8.2015 UNDER TH R.T.I ACT SUBMITTED
BY THE 1ST PETITIONER
P14- TRUE COPY OF THE REPLY DATED 10.9.15 ISSUED BY THE SECRETARY FO THE 9TH
RESPONDENT
P15- TRUE CPY OF THE APPLICATION DATED 28.2.2015 FOR LICENCE SUBMITTED BY THE
10TH RESPONDENT
P16- TRUE PHOTOGRAPHS OF THE QUARRY OF THE 10TH RESPONDENT AND THE
NARROW ROADS THROUGH WHICH THE TRANSPORATION IS MADE
P17- TRUE COPY OF THE BLASTER'S CERTIFICATE SUBMITTED BY THE 10TH
RESPONDENT SHOWING THE BLASTER APPOINTED BY HIM
P18- TRUE COPY OF THE GAZETTE NOTIFICATION DATED 5.10.2015 BY THE 1ST
RESPONDENT
P19- TRUE COPY OF THE LICENSE APPLICATION OF THE 10TH RESPONDENT 28.2.2015.
P20- TRUE COPY OF THE REPLY DATED 31.10.2015 ISSUED BY THE 9TH RESPONDENT.
RESPONDENTS EXHIBITS:
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R2(A) A TRUE COPY OF THE PATTA UNDER RULE 9(2) OF THE KERALA LAND ASSIGNMENT
RULES TO ONE KUTTY S/O AYYAPPAN, ISSUED BY THE TAHASILDAR, ALUVA
ON 25.5.1981.
WP(C).No. 32474 of 2015 (H)
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R9(A) TRUE COPY OF THE RESOLUTION PASSED BY THE MALAYATTOR-NEELEESWARAM GRAMA
PANCHAYAT COMMITTEE AS ITEM NO 2 IN ITS MEETING HELD ON 30.10.2006.
R10(A) TRUE COPY OF THE LETTER OF INDENT, ISSUED BY THE MINIG AND GEOLOGY
DEPARTMENT TO RESPONDENT NO 10.
R10(B) TRUE COPY OF THE JUDGMENT DATED 22.2.2010 PASSED BY THIS HON'BLE COURT IN
WPC NO 2809/2010
R10(C)TRUE COPY OF THE INTEGRATED CONSENT DATED 10.11.2015 ISSUED BY THE
POLLUTION CONTROL BOARD.
R10(D)TRUE COPY OF THE INTEGRATED CONSENT DATED 10.11.2015 ISSUED TO THE
PETITIONER IN RESPECT OF SY.NO 163/4.
R10(E)TRUE COPY OF THE INTERIM ORDER DATED 20.1P.2015 PASSED BY THIS HON'BLE
COURT IN WPC NO 31418/2015.
R10(F)TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THIS RESPONDENT AND SRI
CHINNA VEERA SWAMY.
R10(G) A COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT DATED 30.9.2015.
R10(H) A COPY OF THE ORDER PASSED BY THE HON'BLE SUPEME COURT DATED 7.12.2015.
R10(I) A COPY OF THE ORDER PASSED BY THE SUPREME COURT IN SPECIAL LEAVE TO
APPEAL (CIVIL) NO 36036/2015.
R10(J) A COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY OF ALL KERALA QUARRYING
PERMIT HOLDERS ASSOCIATION.
R10(K) TRUE COPY OF THE PATTA.
R10(L) TRUE COPY OF THE TITLE DEED NO 376/2002.
R10(M) TRUE COPY OF THE TITLE DEED NO 998/15.
/TRUE COPY/
K.V. P.S.TO JUDGE
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).Nos.32474 of 2015 & 22641 of 2017
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Dated this the 6th day of February, 2018
JUDGMENT
The petitioners in both these writ petitions are the same. As the issue involved in both these cases is the same, they are taken up together for consideration and disposed by this common judgment.
2. The petitioners are stated to be farmers, who are residing in the neighbourhood of the property of the 10 th respondent in W.P. (C) No.32474 of 2015, and the 5th respondent in W.P.(C) No.22641 of 2017 (hereinafter referred to as 'quarry operator' for brevity). In W.P.(C) No.32474 of 2015, the petitioners seek a declaration that no quarrying operations can be carried on by the quarry operator on the land that was assigned to him in terms of the Kerala Land Assignment Act and Rules for agricultural purposes and for a direction to the official respondents of the State to take immediate and appropriate action to stop the alleged illegal quarrying by the 10th respondent on the aforementioned land. The averments in the writ petition would indicate that the petitioners challenge the quarrying operations carried on by the quarry operator on various grounds namely, (1) that the land on which the quarrying operations are carried on by the quarry operator, is land W.P.(C).Nos.32474 of 2015 & 22641 of 2017 -2- that was assigned to him in terms of the Kerala Land Assignment Act and Rules for agricultural purposes and inasmuch as the said quarry operator does not have the specific permission from the Government for carrying on the quarrying operations, the said activity in the assigned land is illegal, (2) It is stated that the quarry operator did not obtain any environmental clearance prior to commencing the quarrying operations, and therefore the operations are illegal in terms of the Environmental Protection Act and Rules (3) It is also the case of the petitioners that, although the quarry operator had obtained a D&O licence from the Panchayath in question, the D&O licence was not preceded by the requisite permission under Section 233 of the Panchayath Raj Act, (4) It is the case of the petitioners that the quarrying operations were carried on by the quarry operator without complying with the procedure under the Metaliferous Mines Regulation Act. W.P.(C) No.32474 of 2015 was admitted by this Court on 27.10.2015, and thereafter, by an interim order dated 08.09.2016, the undertaking of the quarry operator that he was not functioning the quarry, since he did not have any environmental clearance, was recorded and the official respondents of the State were directed to ensure that the quarry did not function without proper sanctions and environmental clearance. It would appear that, subsequent to the date of the interim order, the quarry operator did not operate the W.P.(C).Nos.32474 of 2015 & 22641 of 2017 -3- quarry, and took steps to apply for an environmental clearance. At that stage, the petitioners approached this Court through W.P.(C) No.22641 of 2017, wherein it is contended that the application submitted by the quarry operator for environmental clearance is liable to be rejected for the reason that the quarry itself is situated on land that was assigned to the quarry operator for agricultural purposes and therefore, cannot be used for quarrying purposes. A prayer is also sought for directing the authorities entrusted with the task of granting environmental clearance to consider the objections preferred by the petitioners pointing out various discrepancies in the application submitted by the quarry operator, before passing final orders on the application for environmental clearance. The said writ petition was admitted on 10.07.2017 and by an interim order of the same date, further proceedings pursuant to the application submitted by the quarry operator for environmental clearance was directed to be stayed for a period of one month. The said interim order was subsequently extended until further orders by an order dated 31.08.2017. Thus, as of today, while the quarry operator has stopped the quarrying activities in the land, the processing of the application submitted by the quarry operator for environmental clearance also stands stayed on account of the interim order passed by this Court. W.P.(C).Nos.32474 of 2015 & 22641 of 2017 -4-
3. A counter affidavit has been filed in both the writ petitions by the quarry operator, wherein the fact of the quarry operator having obtained the D&O licence from the respondent Panchayath is highlighted to indicate that the quarrying operations were begun after obtaining the necessary clearance from the statutory authorities. With regard to the quarrying activities that were carried on in the property prior to 18.05.2012, it is stated that the requirement of obtaining an environmental clearance certificate came in only with effect from 18.05.2012 and for the prior period, he had the necessary permissions from the statutory authorities for carrying out the quarrying activities. With regard to the specific contention pertaining to the land on which the quarrying operations was carried on, reliance is placed on Exts.R5(b), R5(c), R5(d), R5(e) and R5(f) judgments/interim orders/orders of this Court and the order of the Supreme Court to contend that very allegation that the land assigned for the purposes of rubber cultivation could not be used for quarrying of rock had been considered by this Court and also the Supreme Court in respect of the same land as is involved in the present writ petition and this Court had unequivocally permitted the quarry operator to carry on the quarrying operations in the said property. It is stated that inasmuch as this Court had already gone into the issue and decided the issue in favour of the quarry operator, the very same W.P.(C).Nos.32474 of 2015 & 22641 of 2017 -5- issue could not be agitated through a fresh writ petition albeit at the instance of another person. The judgment of the Supreme Court in the case in Thirumala Tirupati Devasthanams v. K.M. Krishnaiah [JT 1998 (2) SC 231] is relied upon to contend that the earlier judgments of this Court and the Supreme Court pertaining to the same land of the quarry operator would have evidentiary value in a subsequent litigation involving the same property. The judgment of this Court dated 06.11.2014 in W.P.(C) No.16054 of 2013 is also relied upon to contend that, in respect of the same property and the same quarry operator, this Court had already held that they were entitled to the quarrying permit issued by the Geologist, and that the said authorities had no right to interfere with the rights that had accrued to the quarry operator by virtue of the land assignment. The said judgment clarified that, if there was any violation of the conditions of the patta, it was for the authority who issued the patta to cancel the same, and without canceling the patta, the quarrying permits issued also could not have been be canceled. The said judgment is also relied upon to contend that, inasmuch as the quarry operator's right to conduct quarrying operations on the assigned land has already engaged the attention of this Court, and the quarry operator was permitted to carry on the operations, the issue of legality of the action of the quarry operator in carrying on such operations on assigned land W.P.(C).Nos.32474 of 2015 & 22641 of 2017 -6- cannot be gone into afresh in these proceedings.
4. The judgment of the Supreme Court in Thresiamma Jacob v. Geologist, Department of Mining and Geology [2013 (3) KLT 275 (SC)] is also relied upon to contend that the Supreme Court has declared that there is nothing in the law which declares that all mineral wealth and sub-soil rights vest in the State, and on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. The decision is relied upon essentially to contend that even in respect of assigned land, the ownership of the sub-soil is transferred to the quarry operator through the assignor, and even in the absence of any permit granted by the statutory authority, the rights in the sub-soil and minerals would accrue to the assignee of the land. It is further contended that clause (15) of the patta which deals with the reservation of rights in the Government is confined only to the reservation of a share of the rights over the land and nothing more.
5. With regard to the averments in the writ petition in W.P. (C) No.22641 of 2017, as regards the validity of the application for environmental clearance, it is stated that the application for environmental clearance was made before the statutory authorities W.P.(C).Nos.32474 of 2015 & 22641 of 2017 -7- solely for the purpose of complying with the legal requirements as a pre-condition for commencing quarrying activities. It is stated that the petitioners having chosen to challenge the quarrying activities of the quarry operator on the ground of not having an environmental clearance, ought not to have preferred a subsequent writ petition, interdicting further processing of an application for environmental clearance.
6. I have heard the learned counsel for the petitioners in both these writ petitions, the learned counsel for quarry operators in both these writ petitions and also heard the learned Government Pleader for the official respondents of the State.
7. On a consideration of facts and circumstances of the case and the submissions made across the bar, I find that subsequent to the interim order passed in both the writ petitions, the situation today is that although the quarry operator had been engaged in quarrying operations on the strength of permits issued by the State Government in the past as also the statutory clearances obtained from the local authority, the quarrying operations were stopped on the undertaking of the quarry operator that he would not continue with the same without getting an environmental clearance from the statutory authority. When the application for environmental W.P.(C).Nos.32474 of 2015 & 22641 of 2017 -8- clearance was submitted before the authority, the same could not be proceeded with on account of the interdiction by this Court in W.P.(C) No.22641 of 2017. The last mentioned interdiction by this Court was based on the contention of the petitioners that, an application for environmental clearance could not be considered when the clearance was sought in respect of quarrying activities on lands that had been assigned for agricultural purposes. Reliance was placed by the learned counsel for the petitioners on the judgment dated 13.08.2009 in W.P.(C) No.9605 of 2008 as affirmed by the Division Bench of this Court in W.A. No.1908 of 2009 (judgment dated 25.08.2009) as also the order dated 22.01.2010 of the Supreme Court dismissing the SLP that was preferred against the Division Bench judgment. The contention based on the said judgment is that, quarrying operations cannot be permitted on lands that were assigned for specific purposes such as rubber cultivation or agricultural purposes, and the permit obtained by a quarry operator cannot be seen as a permission for using the assigned land for any other purposes. It is seen that the aforesaid judgments came up for consideration before this Court in W.P.(C) No.20532 of 2010 and connected cases, and by the judgment reported in Omana v. Anil Kumar [2017(2) KLT 481] , this Court had taken a different view in respect of assigned land which was the subject matter of quarrying leases granted in terms of W.P.(C).Nos.32474 of 2015 & 22641 of 2017 -9- the Kerala Minor Mineral Concession Rules. While distinguishing the findings of the Division Bench of this Court referred to above, it was held as follows at Paragraphs 20 and 21 in Omana's case (supra) :
b