Kerala High Court
English Indian Clays Limited vs The District Collector on 4 October, 2018
Equivalent citations: AIRONLINE 2018 KER 1005
Bench: K.Vinod Chandran, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940
W.A.No.1099 of 2010
AGAINST THE JUDGMENT IN WP(C) NO.29634/2009 DATED 04-06-2010
OF HIGH COURT OF KERALA
APPELLANT/S:
ENGLISH INDIAN CLAYS LIMITED,
HAVING ITS REGISTERED OFFICE AT T.C.79/34, VELI,
THIRUVANANTHAPURAM-695021,
REPRESENTED BY ITS MANAGER (MINES) SRI.JOSE MATHEW.
BY ADVS.
SRI.E.K.NANDAKUMAR (SR.)
SRI.K.JOHN MATHAI
SRI.P.BENNY THOMAS
SRI.P.GOPINATH MENON
RESPONDENT/S:
1 THE DISTRICT COLLECTOR,
THIRUVANANTHAPURAM-695001.
2 THE VILLAGE OFFICER,
VEILOOR VILLAGE, THIRUVANANTHAPURAM TALUK,
THIRUVANANTHAPURAM DISTRICT, PIN-695 001.
3 KARTHIKEYAN
ASSISTANT SUB INSPECTOR OF POLICE (CRIME BRANCH),
'GOKULAM', MULLASSERY,
THIRUVANANTHAPURAM DISTRICT-695010.
4 ADDL.R4. STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY,
GOVT. SECRETARIAT, TRIVANDRUM.
--------------------------------------------------
(ADDITIONAL 4TH RESPONDENT IS IMPLEADED AS PER ORDER
DATED 02.07.2018 IN IA 500/2010.)
W.A.Nos.1099 of 2010 & - 2 -
connected cases
5 ADDL.R5 K.MAHESWARAN, AGED 58 YEARS
S/O.KUNJU KRISHNAN, RESIDING AT SREE SAILAM,
VALIKONAM, MANGALAPURAM, THONNAKKAL P.O.,
THIRUVANANTHAPURAM, PIN - 695317.
6 ADDL.R6 V.MADHU, AGED 34 YEARS
S/O.VIDYANANDAN, PADINJATUVILA VEEDU,
PILLA VEEDU MRUI, VALIKONAM, VEILOOR, MANGALAPURAM,
THONNAKKAL P.O., THIRUVANANTHAPURAM, PIN - 695317.
7 ADDL.R7 T.SAJAYAN, AGED 31 YEARS
S/O.THAMPI, NEDUKARPPIL VEEDU, MUNDUKONAM,
PILLA VEEDU MURI, THONNAKKAL P.O.,
THIRUVANANTHAPURAM, PIN - 695317.
--------------------------------------------------
(ADDITIONAL RESPONDENTS 5 TO 7 ARE IMPLEADED AS PER
ORDER DATED 10.07.2013 IN IA 471/13.)
BY ADVS.
R1, R2 & R4 BY GOVERNMENT PLEADER SMT.K.B.SONY.
R5 TO R7 BY SRI.T.MADHU
SRI.B.K.RAJAGOPAL
OTHER PRESENT:
SRI K V SOHAN, STATE ATTORNEY.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2018,
ALONG WITH WA.1761/2018, WP(C).8843/2013, WP(C).3251/2015 &
WP(C).32230/2015, THE COURT ON 04.10.2018 DELIVERED THE FOLLOWING:
W.A.Nos.1099 of 2010 & - 3 -
connected cases
"C.R."
W.A.Nos.1099 of 2010 & 1761 of 2018,
W.P.(C) Nos.8843 of 2013-E, 3251 of 2015-F & 32230 of 2015-C.
JUDGMENT
Dated, this the 04th day of October, 2018 Vinod Chandran,J.
All the above cases deal with the mining activities of a Company, called "English India Clays Limited". The different cases are dealt with in chronological order herein below.
2. W.A.No.1099 of 2010 is filed by English India Clays Limited, hereinafter referred to as "the Company", challenging the judgment of the learned Single Judge in W.P. (C) No.29634 of 2009 refusing to interfere with Exhibit P9 order passed by the District Collector under the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity "Paddy Land Act"]. The order directed the Company to stop the construction activities carried on in the property in violation of the Paddy Land Act and Rules. The learned Single Judge refused to consider the matter under Article 226 of the Constitution for reason of an effective alternate remedy and relegated the Company to that statutory remedy of revision under Section 28 of the Paddy Land Act.
3. W.P(C) No.8843 of 2013 is a writ petition filed by the Company seeking police protection for mining and W.A.Nos.1099 of 2010 & - 4 - connected cases transportation of china clay from the areas covered by Exhibit P1 order of the Government and Exhibit P2 lease. There was an interim order granted on 07.10.2013 on condition of the Company having all necessary licences, permit, consent, etc. for mining and transporting the clay.
4. W.P(C) No.3251 of 2015 is a writ petition filed by one individual, seeking interference to Exhibit P3 order of the District Collector, which withdrew an earlier interdiction made to the mining activities carried on by the Company.
5. W.P(C) No.32230 of 2015 again is filed by four individuals, who claim to be residents of the area in which the mining activities are carried on, seeking interdiction of the mining activities carried on in Veilur Village of Thiruvananthapuram District for reason of no prior Environmental Clearance [for brevity "EC"] having been obtained. The writ petition also seeks penalty proceedings for offences under the Environment Protection Act, 1986 [for brevity "Act of 1986"] as contemplated in Section 19.
6. W.A.No.1761 of 2018 is filed by two individuals, one of whom is the petitioner in W.P(C) No.3251 of 2015, against the judgment of a learned Single Judge in a writ petition filed by the Company. The Company by W.P.(C) W.A.Nos.1099 of 2010 & - 5 - connected cases No.31654 of 2017 approached this Court for expeditious consideration of their application for EC, wherein the learned Single Judge permitted the Company to carry on mining activities provisionally, since there was a recommendation issued by the State Level Expert Appraisal Committee [for brevity "SEAC"]. The permission so granted was by placing reliance on the notifications issued by the Ministry of Environment, Forest & Climate Change [for brevity "MoEF&CC"], which deemed such grant if there was a recommendation issued by the SEAC and the State Environment Impact Assessment Authority [for brevity "SEIAA"] does not respond within 45 days of the receipt of such recommendation.
7. Sri.T.Madhu, learned Counsel appearing for the appellants in W.A.No.1761 of 2018 argues that the Company had commenced and carried on mining activities from the year 2008 itself on the strength of Exhibits P1 to P3 [W.P.(C) No.31654 of 2017] Government Orders without obtaining an Environmental Clearance [for brevity "EC"]. The application for EC itself was made long after the commencement of mining; when Annexure A2 notification of the Ministry of Environment & Forests [for brevity "MoEF"] specifically required prior EC insofar as lease areas in excess of 5 hectares. Exhibits P1 and P2 though below 5 hectares, lie contiguously and Exhibit P3 W.A.Nos.1099 of 2010 & - 6 - connected cases shows extent more than 5 hectares. Specific reliance is placed on Deepak Kumar v. State of Haryana [(2012) 4 SCC 629] to contend that even by the notification of the MoEF of 1994, which was modified by the notification of 14.09.2006 [ExhibitA2], there was a requirement of prior EC for mining areas in excess of 5 hectares. The appellants are said to be persons living quite near the mining area and it is alleged that in addition to no prior EC having been obtained, the specific conditions of lease have been violated by the Company.
8. Sri.P.Ravindran, learned Senior Counsel appearing for the respondent-Company in W.A.No.1761 of 2018 points out that Deepak Kumar (supra) issued directions with respect to leases of minor minerals, including their renewal for an area of less than 5 hectares to be granted by the States or Union Territories only after getting EC from MoEF. Exhibits P1 and P2 are said to be leases having lesser area. The directions of the Hon'ble Supreme Court in Deepak Kumar (supra) was reiterated by a Division Bench of this Court in All Kerala River Protection Council v. State of Kerala [2015 (2) KLT 78]. Common Cause v. Union of India [(2017) 9 SCC 499] is also relied on to argue that only renewals of a mining lease after 27.01.1994 will require an EC. In the case of the W.A.Nos.1099 of 2010 & - 7 - connected cases Company, it is pointed out that SEAC had once recommended the issuance of EC, which recommendation was considered by the SEIAA as seen from Exhibit P7. The SEIAA found that there are two complaints about the project by one Janasakthi Action Council and one Thanal and there were certain decisions arrived at a joint meeting held on 16.03.2016 at the Chamber of the District Collector. The SEIAA, hence, directed the SEAC to make recommendations after ascertaining whether those conditions of the District Level meeting having been implemented. By Exhibit P9, the SEAC very strangely recommended issuance of EC after completion of proceedings against violations pointed out. It is asserted that no such violation has been brought to the notice of the Company till now and the Company is also not aware of any proceedings taken. Exhibits P11 and P12 again are minutes of the meetings of SEAC and SEIAA respectively, wherein a concrete decision has not been taken. It is in these circumstances that W.P.(C) No.31654 of 2017 was filed.
9. The learned Senior Counsel would also pointedly refer to the interim order dated 04.12.2015, which vacated the stay granted in W.P.(C) 32230 of 2015 on 26.10.2015 . The Division Bench noticed the suppression insofar as the petitioner in W.P.(C) No.3251 of 2015, Nizamuddin.M., though W.A.Nos.1099 of 2010 & - 8 - connected cases a party respondent in W.P.(C) No.8843 of 2013 having not disclosed the interim order of police protection granted in W.P.(C) No.8843 of 2013. It is also argued that the Division Bench, by that order, had found that even the objectors did not have a case that the Company had not left a buffer of 50 metres from their residences to the mining pit, which only is the stipulation in Exhibit P2 order of the Government. It is contended that the learned Single Judge was fully justified in passing the order, since SEAC has made clear recommendation for grant of EC, on which the SEIAA was dragging its feet refusing to grant EC on one reason or other; all flimsy and legally impermissible. It is contended that even if for argument sake the contention of violation is accepted, the appraisal had to be done by the Central Impact Assessment Committee and the grant too made by the Central Impact Assessment Authority. The learned Single Judge had specifically directed the State to forward the application to the Central Appraisal Authority by order dated 08.01.2018. A direction was also issued that dehors the time limit prescribed in the notification dated 14.03.2017, a decision has to be taken within six weeks from the date of receipt of the files. Later, by notification dated 08.03.2018, it had been clarified that even if there is violation, EC can be W.A.Nos.1099 of 2010 & - 9 - connected cases dealt with by Environment Appraisal Committee at the State level itself. At that point, SEIAA was not constituted and since it would take time, the learned Single Judge invoked the deeming provision and granted a provisional permission to start the mining activity. The provisional grant was also subject to final decision by the SEIAA. There is absolutely no reason to interfere with the judgment, is the submission.
10. The learned State Attorney, on behalf of the State, submits that as of now SEIAA is reconstituted and there could be a consideration made within a time frame.
11. Sri.Harish Vasudevan, learned Counsel appearing for the petitioners in W.P.(C) No.32230 of 2015; who also got themselves impleaded in W.A. 1761 of 2018 submits that the decisions cited by the Company does not at all aid the Company. It is pointed out that the further directions in Deepak Kumar (supra) insofar as insisting for EC even with respect to mining area of less than 5 hectares, is not applicable in the case of the Company since Exhibit P3 is above 5 hectares and there is a clear admission by the Company in the counter affidavit dated 02.11.2015 in W.P.(C) No.32230 of 2015 that the Company had ownership of 26.6 acres of land in the total lease area of 35 acres. It is also averred, by the Company, that the mining activities have been W.A.Nos.1099 of 2010 & - 10 - connected cases carried on until 2013 confined to pit No.1 coming within the area owned by the Company. This is in clear violation of the condition in Exhibit P2, which speaks of the requirement to get the ownership of the entire land before entering the area under the grant as per Clause 13 of Exhibit P2. It is pointed out that many of the violations were observed by the Director of Mine Safety, Bangalore Region, Bangalore, which were intimated to the Company on which no action was taken. Specific reference is made to the Communication produced as Exhibit R12(c) in W.A. 1761 of 2018 to contend that, following Common Cause judgment (supra) there is a direction by the Government to all the District Geologists to carry out a survey so as to assess illegal quarrying carried on and mulct liability and recover 100% cost/value of the illegally removed minerals, as directed by the Supreme Court. On the application for EC, it is submitted that an environment impact assessment cannot be carried out as of now since the quarrying has been commenced and clay has been already quarried in large quantities destroying the very topography and ecology of the land. What is possible now is only assessment of the amount of clay illegally quarried as of now by the Company; since there is no prior EC obtained. In this context it is also pointed out that the submission of the W.A.Nos.1099 of 2010 & - 11 - connected cases State that an assessment would be carried out by the SEIAA as of now cannot at all be countenanced. The requirement for a prior EC is to ensure that no adverse impact is caused to the environment by reason of the mining activities sought to be commenced. For example, an endangered species of either animal or plant kingdom existing in the area would be a cause for concern and the mining activity would necessarily endanger such species; which would be an adverse impact as assessed by the authority. The mining activities having been commenced and continued illegally without any environment impact assessment, there would be no purpose served as of now in proceeding with an impact assessment. The mining activity would have to be stopped and the illegal quarrying assessed and the value of minerals extracted recovered from the Company and criminal proceedings taken against the Company. There is absolutely no cause for directing a further environment impact assessment study, is the compelling argument of the petitioners in W.P.(C) No.32230 of 2015.
12. Sri.P.B.Krishnan, learned Counsel appearing for the Company in W.P.(C) No.8843 of 2013 and 32230 of 2015, contend that the Company had been carrying on the mining activities in accordance with the various sanctions and approvals obtained, which are produced as Exhibits R8(a) to W.A.Nos.1099 of 2010 & - 12 - connected cases R8(e) along with the counter affidavit in W.P.(C) No.32230 of 2015. It is also pointed out from the counter affidavit that the Company had purchased about 26.6 acres of land out of the total lease area of 35 acres. Exhibit R8(a) is the lease executed by the Government in pursuance of Exhibit P2 order of the Government. The mining activities carried on was only in the area which the Company owned. The writ petitions are ill-motivated and have to be dismissed, argues learned Counsel.
13. Learned Counsel Sri.Poulose appears for the Company in W.A.No.1099 of 2010. It is contended that the stop memo was not with respect to a mining activity carried on. Therein, the stop memo was issued under the Paddy Land Act when the Company started construction of a road in the property which was leased out to the Company for the purpose of transporting the clay mined. It is contended that the Mining Regulation Act being a Central Act, the permissions granted under it would have an overriding effect as against the restrictions under the State enactment, the Paddy Land Act. The Company having permits under the Central legislation, would be entitled to carry out mining dehors the restrictions in the State legislation.
W.A.Nos.1099 of 2010 & - 13 -connected cases
14. We agree with the Division Bench order dated 04.12.2015 in W.P.(C) No.32230 of 2015 insofar as finding suppression on the part of Nizamuddin, the petitioner in W.P. (C) No.3251 of 2015, who is also one of the appellants in W.A.No.1761 of 2018. The said Nizamuddin was the 4th respondent in W.P.(C) No.8843 of 2013, which sought police protection; granted by an interim order dated 07.10.2013. When W.P.(C) No.3251 of 2015 was filed, he should have necessarily spoken of the said interim order, which obviously he did not. We could not, however, seek an explanation since the Counsel who appear in W.P(C) No.3251 of 2015 is not present. We notice that the said Nizamuddin is one of the appellants in W.A.No.1761 of 2018. However, there is one another appellant and the suppression alleged is not serious enough to non-suit the appellants. We say this especially noticing the conduct of the Company who filed W.P(C) No.31654 of 2017 before this Court when two writ petitions, numbered as W.P.(C).3251 of 2015 and 32230 of 2015, were pending before this Court, objecting to the mining activity carried on by the Company, without impleading the said objectors.
15. We see from the cause title of W.P.(C) 31654 of 2017 that neither the petitioner in W.P.(C) No.3251 of 2015 nor any of the petitioners in W.P.(C) No.32230 of 2015 were W.A.Nos.1099 of 2010 & - 14 - connected cases impleaded by the Company. Additional respondents 8 to 10, employees supporting the stand of the Company were impleaded in W.P.(C) No.31654 of 2017, which was on an application made by them. We also notice that the Writ Petitions filed against the specific mining activities sought to be continued by the Company in W.P.(C) No. 31654 of 2017 and the Writ Petition filed for Police Protection were clubbed along with another W.A. 1099 of 2010 filed by the Company against the order under the Paddy Land Act with respect to the very same properties, long before the filing of W.P.(C) No. 31654 of 2017. The Company however has not mentioned the pendency of these cases before the learned Single Judge, though ExhibitP6 order of the Division Bench was produced therein.
16. We are also perturbed by the inability of the various Counsel who were engaged by the Company in the different cases, to co-relate the matters dealt with in each of these cases. The learned Senior Counsel was instructed to appear through one Counsel for the Company in W.A.No.1761 of 2018 and another Counsel represented the Company in W.P. (C).No.8843 of 2013 and W.P.(C) No.32230 of 2015. Yet another Counsel appeared for the Company in W.A.No.1099 of 2010. There is nothing wrong in the Company having engaged different Counsel in the different cases. But, when we asked W.A.Nos.1099 of 2010 & - 15 - connected cases each of the Counsel as to the connection between the cases, they feigned ignorance; which only points to the fact that the different Counsel were not appraised of the facts in the other cases. There was also a deliberate attempt by the Company to suppress the pending litigation before the Division Bench, on the identical subject matter, when the matter was argued before the learned Single Judge. We are sure that if the Senior Counsel or the instructing Counsel were apprised of the facts they would have pointed it out to the Court.
17. Proceeding with the adjudication, in the following paragraphs, this Court would refer to the documents produced in W.A.No.1761 of 2018 and in W.P.(C) 31654 of 2017 and wherever other documents are referred to, the case in which it is produced will be noticed in brackets. At the outset, it has to be noticed that there can be absolutely no dispute as to the fact that the Company had commenced its mining operations in the leased out lands without obtaining an EC. The notification of the MoEF dated 14.09.2006 is produced as Annexure A2. Paragraph 4 of the notification indicates that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities W.A.Nos.1099 of 2010 & - 16 - connected cases listed in the Schedule to the notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority is obtained. Clause 4(iii) also specifies that in the absence of a duly constituted SEIAA or SEAC, which is competent to consider Category 'B' projects in the Schedule; the Category 'B' project shall be treated as Category 'A' project. Hence, even if there is no State Committee or authority constituted, the prior EC had to be obtained from the Central authority. The Schedule indicates at Sl.No.1 - mining of minerals - and includes as Category 'B'; mining lease areas between 5 hectares and 50 hectares. It cannot, hence, be doubted that for mining area beyond 5 hectares there had to be an EC obtained even prior to the commencement of the mining activity.
18. The documents produced by the Company in W.P.(C) No.31654 of 2017, from which W.A.No.1761 of 2018 arises, indicates Exhibits P1, P2 and P3 orders issued by the Government. Exhibit P1 [dated 20.05.2008] is with respect to 2.6588 hectares, Exhibit P2 [dated 16.01.2008] is with respect to 2.8999 hectares; both in Melthonnakkal Village of W.A.Nos.1099 of 2010 & - 17 - connected cases Thiruvananthapuram Taluk and Exhibit P3 [dated 16.01.2008] is with respect to 14.5129 hectares of land comprised in Veilur Village of Thiruvananthapuram Taluk. We do not have the benefit of looking into the lease deeds executed as per Exhibits P1 and P2, which orders are respectively for projects within an area below 5 hectares. We have to immediately notice that together they would exceed the 5 hectare limit and in that circumstance, we have to look at the specific apprehension raised by the learned Judges of the Hon'ble Supreme Court in Deepak Kumar (supra) as to an attempt to flout the notification dated 14.09.2006 by breaking homogeneous areas into pieces of less than 5 hectares; raising a serious question as to the possible environmental or ecological impact on quarrying of minor minerals (sic-paragraph 4). This apprehension we respectfully observe was the foundation of the decision in Deepak Kumar (supra).
19. We will come back to Exhibits P1 and P2 a bit later; since as we see from the various documents produced, EC has been sought at a very late hour after about seven years from the issuance of the orders permitting lease with respect to all the three areas as is seen from the consideration by the SEAC and SEIAA. As of now, we will W.A.Nos.1099 of 2010 & - 18 - connected cases concentrate on the lease permitted by Exhibit P3 of 14.5129 hectares, which, undoubtedly, require a prior EC. We find a lease also having been executed by the government in favour of the Company, produced as Exhibit R8(a) along with the counter affidavit of the Company in W.P.(C) No.32230 of 2015. The Schedule in Part I of the said document shows it to contain 14.5129 hectares lying as one parcel of land in various survey numbers. The EIA notification dated 14.09.2006 (ExhibitA2) mandates that there should be a prior EC before mining activities are carried on in such properties. The Company asserts that they made an application and that they have been running from pillar to post to get an EC. Recommendations have been made by SEAC; but the issue sent back for consideration by SEIAA. However, the fact remains that these were all initiated only in the year 2015; by which time, even according to the Company, they had commenced activities in the land leased out as per Exhibit P3. The minutes of the meetings of SEIAA, produced as ExhibitP7 clearly show that the application of the Company was received on 06.10.2015.
20. We specifically refer to paragraphs 17 and 18 of the counter affidavit filed by the Company in W.P.(C) No.32230 of 2015, which are extracted here under: W.A.Nos.1099 of 2010 & - 19 -
connected cases "17. The Writ Petition proceeds on the basis that the Petitioners are residing in buildings located within the 50 Mtrs of the mining area. The allegation that there are residential buildings within 50 Mtrs of the mining areas is incorrect.
ExhibitR8(a) Indenture of Lease takes in 14.5129 Hectares (35 Acres). The lease is by the Government to carry out mining operations. The lessee, that is Respondent No.8 Company, has to acquire surface rights in the land from the land owners. Respondent No.8 has purchased about 26.6 Acres of land in the leased area of 35 acres. The remaining extent belongs to other individuals.
18. The mining operations, as per the approved mining plan, are confined to areas within the extent belonging to Respondent No.8. The operation of the Company until 2013 was confined to Pit No.1. Since then Pit No.1 has been partially reclaimed. Mining operations are not being carried out in Pit No.1. The distance of the residential building of Petitioner No.1 from Pit No.1 is more than 50 Mtrs. The residence of Petitioners, 2, 3 and 4 are located about 150 Mtrs from Pit No.1. The Petitioners had raised no objection to the operation of Pit No.1. In fact, Petitioner No.1 had even sold an extent of property nearest to Pit No.1 to Respondent No.8. A true copy of the sale deed dated 07.04.2011 is produced herewith ...". W.A.Nos.1099 of 2010 & - 20 - connected cases
21. The clear admissions herein would indicate that the Company had ownership only over 26.6 acres of land in the total lease area of 35 acres and that they had commenced operations on the basis of the approved mining plan, confining the mining activities to the extent belonging to the Company. There is absolutely no case set up that there was an EC obtained prior to the commencement of the mining activities as mandated in the notification dated 14.09.2006. In this context, we have to specifically refer to the photographs produced by the petitioner in W.P.(C) No.32230 of 2015 as Exhibit P13, which indicates large scale mining having been done in the area adjacent to which, at least in one photograph there is seen lush growth of greenery. We would not have normally referred to photographs but for the fact that there is no specific objection raised on the photographs or a denial as to the photographs not being of the mining site in which the Company operates. While the Company asserts that the mining pits were filled with overburden, the photographs does not indicate any such filling having been carried out. We cannot but observe that this validates the contention raised by the petitioners in W.P(C) No.32230 of 2015 that there is absolutely no purpose served in conducting an environmental impact assessment W.A.Nos.1099 of 2010 & - 21 - connected cases study. The mining activity commenced by the Company without a prior EC is, hence, illegal insofar as Exhibit P3 order dated 16.01.2008.
22. Now we shall look at the various recommendations said to have been made by the SEAC. Exhibit P7 is a consideration made in the 66th meeting of the SEIAA on 07.04.2017. Item Nos.66.12 refers to survey numbers as seen from Exhibit P2 order having a total area of 2.8999 hectares. The application of the Company is dated 06.10.2015 for EC under EIA notification of 2006. The orders referred to therein are dated 16.01.2008 and 20.05.2008, which respectively are Exhibits P2 and P1. The field visit conducted by the Sub Committee of SEAC, Kerala comprising of two members is said to have given a common report for reason of the 2 projects being nearly adjacent to each other and under the same management. We have to notice this points to a case of breaking up of a homogeneous area into pieces of less than 5 hectares whereby apprehension could be validly presumed of adverse impact to environment caused by quarrying of minor minerals. As we noticed, Exhibits P1 and P2 are two separate Government orders, each of which is concerned with less than 5 hectares; but together 5.5587 hectares [2.6588 + 2.8999]. Hence, even the said property requires a prior EC W.A.Nos.1099 of 2010 & - 22 - connected cases before mining activity is carried on.
23. Coming back to Exhibit P7, it is seen that the SEIAA noticed the recommendation of the SEAC for issuance of EC subject to general conditions. Noticing the two complaints raised by one Janasakthi Action Council and Thanal and the joint meeting held in the Chamber of the District Collector, the SEAC was directed to make a clear cut recommendation. Under item No.66.14, the application for EC with respect to Exhibit P1 order was considered, wherein, as noticed above, the SEAC had given a joint report. The report of the SEAC as extracted in Exhibit P7; a portion of which is extracted here under:
"The proponent is having multiple leases in contiguous area in the locality for mining china clay. Many of the leases are obtained prior to 2006 when the MoEF notification dated 27.01.1994 was in force. According to the above notification, mining of major minerals with leases in more than 5 ha required environment clearance and at that point in time china clay was classified as a major mineral. The proponent was mining china clay from a contiguous area of more than 5 ha though the areas of individual leases were less than 5 ha. Hence the company has failed to comply with the conditions of MoEF Notification dtd.27.01.1994 and to that extent there is violation. This is brought to the attention of SEIAA for taking suitable decision before EC is granted as recommended above".W.A.Nos.1099 of 2010 & - 23 -
connected cases Hence, the SEAC had specifically declined the recommendation on the ground of the lands covered in Exhibits P1 and P2 lying contiguously to each other and the same requiring prior EC while the Company had commenced mining operations even before obtaining a prior EC. As of now it is undisputed that clay is a minor mineral, the jurisdiction over the mining of which is conferred on the State Government. The mining activities as per Exhibit P3, going by the area itself required a prior EC. The entire activity carried out by the Company was illegal attracting the rigour of the judgment in Common Cause (supra). The learned Senior Counsel Sri. P. Ravindran had contented that no violation was ever put to the Company. However, as pointed by learned Counsel Sri.Harish Vasudevan, the consideration by the authority is in the presence of the project proponent and the orders passed are available in the website. The Company, hence, cannot feign ignorance.
24. Exhibit P9 is the further consideration made by the SEAC. Exhibit P9 though produced as a document, are minutes of different meetings of the SEAC, not even produced in the chronological order. The 3rd page of Exhibit P9 produced [being page 8 of the minutes containing a total of 16 pages] is the minutes of the 68th meeting of SEAC held on W.A.Nos.1099 of 2010 & - 24 - connected cases 20th & 21st February, 2017. Item Nos.68.19 and 68.20 are with respect to Exhibits P1 and P2 orders. The violation was noticed therein also; the violation being the failure to comply with the notification dated 27.01.1994. The 1 st and 2nd pages of ExhibitP9 are the minutes of the 75th meeting of the SEAC held on 29th & 30th June, 2017. [being pages 5 and 6 of the minutes containing a total of 16 pages]. Item Nos.75.08 and 75.09 are with respect to Exhibits P1 and P2. The committee specifically stated that EC can be issued only after the completion of proceedings for violations already pointed out. Item No.75.10 again was on similar lines and was concerned with lands covered in Exhibit P3. We reject the contention of the Company that the violations were never informed to them. However, we take note of the fact that the Government has not initiated any proceedings with respect to violation, which we find quite surprising especially in the context of the environmental depredation that was carried out by the Company in the areas wherein orders were issued for permitting lease, but no prior EC was obtained.
25. Exhibit P11 is the minutes of the SEAC, and Item No.80.12 dealt with the application for EC as against Exhibit P2 order. There the SEAC specifically noticed that the lease area is contiguous to many other lease areas in the locality W.A.Nos.1099 of 2010 & - 25 - connected cases and the activities being in violation of the MoEF Notification dated 27.01.1994. The violation having been confirmed it was directed that proceedings be initiated under the Environment Protection Act. The SEIAA noticed the above observations of the SEAC in Exhibit P12 and directed a site inspection to be conducted by the SEAC. We do not see any concrete recommendation having given by the SEAC, on which the SEIAA refused to act or respond to. The deliberations of both the SEAC and SEIAA, as produced by the Company raises serious issues of violation of the notifications of 1994 and 2006 issued by the MoEF. The Company commenced mining in all the properties covered by Exhibits P1 to P3 without prior EC, which was a mandatory requirement. Only when the matter gave rise to agitations and protests as also litigation before this Court, did the Company approach the authorities for EC, long after the activity was commenced.
26. On the question of violation, we also notice Exhibit P3 and specifically Clause 13, which is extracted here under:
"13. Before entering the area under this grant the lessee shall obtain consent of the land owners for 8.7475 Ha of free hold land not under their possession or obtain possession of the said land by purchase as envisaged in Rule 22(3)(h) of Mineral Concession Rules, 1960".W.A.Nos.1099 of 2010 & - 26 -
connected cases The above indicates that the Company who was permitted lease of 14.5129 hectares of land comprised in various survey numbers of Veilur Village did not have ownership of 8.7475 hectares of land comprised in the larger area. The right of mining permitted by the Government, as per Exhibit P3, is of china clay, now a mineral mineral {under Exhibit A15 Gazette Notification}. Without making a declaration as to the subsoil and mineral rights in the Travancore area, as distinguished from the Malabar area, let us assume it vests in the Government. Even then, no such activity can be carried out without the consent of the landlord who has the surface rights over the land. The specific condition in Clause 13 is that before entering the area under the grant, the lessee shall obtain consent of the land owners. Hence, even for commencing operations in a part of the land, consent would have to be obtained from the entire property owners within the area covered by Exhibit P3. Admittedly as seen from the counter affidavit in W.P.(C) No.32230 of 2015, the Company has purchased only 26.6 acres of land. The Company does not speak of any consent having been obtained from the land owners of the other properties comprised in the area covered by Exhibit P3. The Company also admits to have commenced W.A.Nos.1099 of 2010 & - 27 - connected cases mining operations in the land without a prior EC. We are surprised at the manner in which the Government so casually and without any enquiry granted mining permission on lands belonging to others without reference to the individual land owners. This lends credence to the allegation of mining operators entering into homogeneous tracts of land, by virtue of purchases made from certain land owners and then coercing the adjacent property owners to sell the same to them for throw-away prices. The unsuspecting individuals are forced so to do for reason of the large scale blasting operations carried on nearby, thus endangering their life and constructions in the property, rendering their property virtually useless and life miserable.
27. In this context, we have to notice the tacit approval of the State Government and its officers to the illegal quarrying carried on by the Company. We have to notice that Exhibit R8(a) produced in W.P.(C) No.32230 of 2015 is a lease executed on the basis of Exhibit P3 order of the Government permitting quarrying in a property having extent of more than 5 hectares. The said lease deed was executed without verifying whether the lessee-Company had obtained prior EC with respect to the property as per the EIA notification of 1994 and 2006. A complaint was acted upon by W.A.Nos.1099 of 2010 & - 28 - connected cases the Principal Secretary by issuance of a stop memo, which is produced as Exhibit P4 dated 28.02.2014. However, within one month, by Exhibit P5 dated 29.03.2014 the Principal Secretary canceled the same. It is seen from Exhibit P5 that the Southern Range Mineral Squad of the Mining and Geology Department had conducted an inspection of the premises on 19.03.2014. The leases under which the Company was carrying on its mining operations were read as items 2 to 9 in Exhibit P5. Item No.1 read in Exhibit P5 is Exhibit P3, bearing G.O. (MS) No.9/08/ID dated 16.01.2008. Exhibit P1 is read as item No.2 and Exhibit P2 is not seen referred to in Exhibit P5. It is stated in Exhibit P5 that the inspecting squad reported that the leases read from 2 to 9 were validly executed and that the operations were carried on as per the approved mining plan issued by the Indian Bureau of Mines. The squad also found absolutely no violation and hence the Principal Secretary withdrew the stop memo insofar as the leases read from 2 to 9. However, there is no verification of EC carried out by the inspecting squad or the Principal Secretary. It is also pertinent that by Exhibit P5, in its last paragraph the Principal Secretary noticed that with respect to the mining lease read as 1 in Exhibit P5, the operations will be started only after an approved scheme of mining is obtained from the W.A.Nos.1099 of 2010 & - 29 - connected cases Indian Bureau of Mines and after considering the objections of the local residents. Obviously neither the Inspecting Squad nor the Principal Secretary have realized that, the Company had commenced operations by virtue of the Exhibit P3 and Exhibit R8(a) (W.P.(C)32230 of 2015) long before and had even obtained an order of police protection to carry on the activities. In fact, the specific submission made by the Company in its counter affidavit filed in W.P.(C) 32230 of 2015, as extracted herein-above, is that the lease permitted as per Exhibit P2 and Exhibit R8(a) have been commenced in 26.6 acres of land purchased by the Company. This reveals the lackadaisical attitude displayed by the Government officers who are duty bound to ensure preservation of environment and effectively implement the provisions of the Environment Protection Act and the notifications issued there-under; which have statutory force.
28. Pertinent also is the "Regional Environmental Impact Assessment Study in Clay Mining Areas of Mangalapuram, Thiruvananthapuram", produced as Annexure A3, which study has been conducted by the State's own Directorate of Mining and Geology. The study was also conducted on the basis of the concerns raised by the local residents regarding the environmental depredation. The issues dealt with were W.A.Nos.1099 of 2010 & - 30 - connected cases depletion of water level, dust emission and environmental degradation including conversion of mining area into huge pits left uncovered after mining. The field studies have been carried out between May, 2008 to March, 2010 wherein the major presence was of two mining industries, one of which is the Company. For mitigation of dust emission, frequent sprinkling of water, use of dust suppressants, in the mining area and transportation tracks, were recommended. It is reported that though the overburden and inter-burden generated has to be used for refilling the pits, the pits are left as it is and the overburden disposed of for construction purposes in other areas. One of the pertinent observations made was that there was rampant conversion of paddy lands in proximity to the mining area causing serious environmental problems, such as seepage, spreading of acid mine waters etc:. It was noticed that mines were operated without proper benches. The mine pits at Thonnakkal and Karamood were said to have been deepened to 30 to 40 metres from ground level, where no recharge of water to augment the groundwater storage is possible. This is said to be a direct result of absence of time bound back-filling by the mine operators. The Hydro-geological investigations raised serious concerns of lowering of water level, drainage of ground water resources, W.A.Nos.1099 of 2010 & - 31 - connected cases reversal of ground water flow into the mining pits, increase of acidity in the soil and so on and so forth. On the socio-economic impact study, it was found that the mechanized open cast mining operations offered little employment to the local population which otherwise depended on agriculture and allied activities. The socio-economic problems were reported to have attracted the attention of the judiciary, the Government and also the social workers. Despite the detailed study and report of wide spread environment depredation the Company was allowed to carry on its operations, which were also per se illegal for no prior EC having been obtained. The report was kept in cold storage and no action is seen to have been taken by the Government to stop the mining activities which were reported to be causing serious concerns to the environment and the life of the people of the locality. There are also many paper reports produced along with the Writ Appeal by the appellants as Annexure A5 to A16 which need not be referred to by this Court separately. The Government or its officers hence cannot claim ignorance of what was happening in the locality.
29.Useful reference can also be made to the proposal made by the Director of Mining and Geology produced in W.P. (C)No.32230 of 2015 as Exhibit P1 dated 27/28.012006, which W.A.Nos.1099 of 2010 & - 32 - connected cases led to the issuance of Exhibit P2 order produced therein dated 16.01.2008, based on which Exhibit R8(a) lease deed was executed on 17.11.2008. The Director specifically refers to the application for mining in a total area of 14.5129 hectares and has conveniently not brought to the notice of the Government the necessity for a prior EC with respect to areas above 5 hectares. The Indian Bureau of Mines had by Exhibit P7 dated 26.03.2010, based on a reference from the Prime Minister's office, issued a communication to the Director of Mining and Geology. The communication indicates a decision having been taken to carry out inspection of the area along with senior officials of the Government and directed a senior officer to be deputed for the said purpose. Pursuant to the inspection, Exhibit P9 dated 22.9.2014 was issued to the Managing Director of the Company, who is the nominated owner, directing initiation of suitable action to rectify the violations. The State Directorate of Mining and Geology though part of the inspection team, failed to take any action in the matter. Subsequent to the above inspection, Exhibit P11 is issued by the State Directorate, seeking production of Notarized affidavit of consent of all house owners within 50 metres of the mining area. The communication at Exhibit P11 ignores the requirements in Exhibit P3 insofar W.A.Nos.1099 of 2010 & - 33 - connected cases as obtaining consent from all the land owners within the larger area leased out for the purpose of mining. Exhibit P11 in fact notices that the Company has obtained ownership only with respect to 5.7654 hectares of land and again ignores the requirement of a prior EC.
30. We cannot also condone the action of the successive Governments in having remained a silent spectator to the gross violations carried out by the Company. In this context we have to notice the earlier litigation before this Court on an identical aspect of requirement of EC. The Division Bench judgment of this Court in All Kerala River Protection Council (supra) was challenged before the Hon'ble Supreme Court in a S.L.P., where the Hon'ble Supreme Court granted a status quo order as on 13.10.2015. Later, the State submitted before the Hon'ble Supreme Court that all existing permits would be renewed for a period of one year. On the basis of the concession made before the Hon'ble Supreme Court, renewals were granted indiscriminately when the matter was placed before this Court in a batch of cases, the judgment in which was reported in 2016 (3) KLT 102 [Joseph Mathew v. State of Kerala]. This Court said so in paragraph 17 to 21, which are extracted herein below:
W.A.Nos.1099 of 2010 & - 34 -
connected cases "17. Whatever the reason be; it is this tacit approval to quarrying operations being continued, that is reflected in the consecutive Government orders brought out by the Government of Kerala, dated 23.11.2012, 11.12.2012 and G.O.(Ms)No.5/2014/ID dated 10.01.2014. All these orders reflect a concern arising out of acute shortage of raw materials in the construction field. This runs contrary to the theory of sustainable development and the public trust doctrine reiterated by the Hon'ble Supreme Court, in various decisions referred to in All Kerala River Protection Council and Nature Lovers' Forum. The permission granted to issue short-term permits, for periods not exceeding one year to existing quarries of less than 5 hectares was also against the mandate in S.14 of the MMDR Act as amended in 1986, the EIA Notification of 2006, the decision in Deepak Kumar, and the Office Memorandum dated 18.05.2012 brought out by MoEF. The cited G.Os of the State were held to be illegal in All Kerala River Protection Council.
18. Then came Notifications dated 19.05.2015 and 05.10.2015; in quick succession, first amending the proviso to R.12 of MMCR of 2015 and then substituting it and R.13. The effect of such amendments were as follows:
"Proviso to R.12;
originally enacted:
"Provided that, the environmental clearance required under Rule 9 shall not be insisted, in the case of renewal of quarrying permits, in W.A.Nos.1099 of 2010 & - 35 - connected cases respect of quarries which had a valid permit as on 9th day of January, 2015".
after 19.05.2015:
"Provided that, the environmental clearance required under Rule 9 shall not be insisted, in the case of renewal of quarrying permits, in respect of granite (building stone) quarries which had a valid permit during the financial year 2014-15".
after 05.10.2015:
"2. Amendment of the Rules.- In the Kerala Minor Mineral Concession Rules, 2015.--
(i) In Rule 12, for the first and second proviso the following proviso shall be substituted, namely:-
Provided that the mining plan and environmental clearance required under Rule 9 shall not be insisted in respect of renewal of quarrying permits of granite (building stone) quarries which had quarrying permits under the Kerala Minor Mineral Concession Rules, 1967 on or before 26th February, 2012.
(ii) For Rule 13, the following rule shall be substituted, namely:--
13. Restriction on grant of quarrying permit in the same area.- A permit holder shall not be eligible for a permit on a particular area of contiguous land owned and possessed by him if he W.A.Nos.1099 of 2010 & - 36 - connected cases has availed himself of permits for quarrying in the same land for a period of 3 years in different spells from the date of publication of the Kerala Minor Mineral Concession (Second Amendment) Rules, 2015:
Provided that the permit holder may apply for a quarrying lease in case he desires to continue quarrying from the area for a period of more than 3 years if he is able to satisfy all the conditions laid down in the rules dealing with quarrying leases".
19. These amendments were challenged by activists, which challenge was answered in Nature Lovers Forum. The State revealed it's unerring support to the quarries; by seeking to sustain the amendments as falling within the competence of the executive Government. The directions issued by the Hon'ble Supreme Court in Deepak Kumar was argued to be an interim arrangement; till the directions, therein to frame regulations were complied with by the States and Union Territories. The State having brought out the MMCR of 2015; it was argued that the directions in Deepak Kumar can have no further effect. The OM dated 18.05.2012, having been issued in compliance of Deepak Kumar, on the same reasoning was argued as no more applicable after the Rules were framed. The OM dated 18.05.2012 was challenged as being not in compliance with the provisions of the Rules framed under Article 77 of the Constitution of W.A.Nos.1099 of 2010 & - 37 - connected cases India. The OM being a circular issued by the Director, for compliance of Deepak Kumar; cannot be preferred to the proviso to R.12, was the argument.
The said arguments were given short shrift by the Division Bench in Nature Lovers Forum.
20. The Explanatory Note appended to the notification dated 05.10.2015 was extracted to find that the analogy drawn and the support garnered, from the declaration, in All Kerala River Protection Council; of those mining leases which were current on the date of judgment of the Apex Court in Deepak Kumar and the OM dated 18.05.2012, was wholly inappropriate. It was categorically held that:
"It is clear that any lease which was continuing on the date of judgment of the Apex Court on 27.02.2012 as well as Office Memorandum dated 18.05.2012, issued by the MoEF required environmental clearance at the time of renewal. Hence there is no such law laid down by the Division Bench in All Kerala River Protection Council's case or Deepak Kumar's case (supra) that in so far as permits are concerned at the time of renewal of permits subsequent to the judgment of the Apex Court in Deepak Kumar's case (supra) and the Office Memorandum dated 18.05.2012, they do not require any environmental clearance. As noted above, the Apex Court in Deepak Kumar's case (supra) has emphasised about the regulatory regime for W.A.Nos.1099 of 2010 & - 38 - connected cases mining of minor minerals also. The Apex Court thus clearly noted that environmental clearance be insisted for mining area of less than 5 hectares and the interim direction issued on 29.02.2012 has to be read as sum total of what was laid down in the said judgment and the State cannot be heard to contend that since it has framed the 2015 Rules, it is absolved from following the ratio laid down by the Apex Court in Deepak Kumar's case (supra). We thus conclude that proviso to R.12 as inserted by Notification dated 05.10.2015 cannot be said to be in accordance with the ratio of the judgment laid down in Deepak Kumar's case (supra)" (sic: para 17 page 93).
21. The in-effectiveness of the OM dated 18.05.2012 on the ground of it being not an executive order issued under Article 77 of the Constitution; was also repelled by the Division Bench in Nature Lovers Forum. However we need not dwell on the said argument; since as of now the prescriptions in the OM incorporated by the EIA notification dated 15.01.2016 of the Ministry of Environment, Forest and Climate Change (as is now the MoEF). The notifications of the Government of Kerala permitting short-term mining permits of one year, successively brought out; on the pretext of non-availability of building materials, has been consistently held to be illegal by the binding precedents noticed above. When that is so, it W.A.Nos.1099 of 2010 & - 39 - connected cases is incomprehensible as to how an undertaking made by the State before the Hon'ble Supreme Court could override the authoritative pronouncements made by that Court in Deepak Kumar and this Court in All Kerala River Protection Council, Najeeb.M.K. and Nature Lovers Forum".
31. In Joseph Mathew (supra) this Court found that the status quo order passed by the Hon'ble Supreme Court or the concession made by the Government, does not at all permit mining without EC. This Court also noticed the explanation of the Chief Secretary filed on a query raised by the Court, in paragraph 13, which is also extracted herein-below:
13. In fact the stand of the Government as revealed in an affidavit dated 25.09.2015; filed by none other than the then Chief Secretary, affirmed so in para 13:
"13. Regarding the averments contained in ground No.G of the Writ Petition, it is submitted that the contention of the Environment Department is that the Hon'ble Supreme Court of India in its judgment dated 27.02.2012 in Deepak Kumar and others v. State of Haryana, prior environmental clearance is made mandatory for all kinds of mining projects (New and renewal cases) involving mining of minor mineral irrespective of their area and memorandum (OM).No.L-11011/47/2011-IA-ll(M) dated 18.05.2012. It is to be noted that lease/permit for mining granted without W.A.Nos.1099 of 2010 & - 40 - connected cases Environmental clearance after the judgment of the Hon'ble Supreme Court is blatantly illegal. The judgment pronounced by the Hon'ble National Green Tribunal (PB) in O.A. No.123 of 2014 and allied cases on 13.01.2015 also undoubtedly clarified the requirement of prior environmental clearance and all the laws/rules made by certain other States violating the Hon'ble Supreme Court judgment had been quashed. Procedure for consideration of proposals for grant of Environmental clearance under EIA notification 2006 which involve forest land or wild life habitat is clearly dealt in OM.No.J-11013/41/2006-IA-ll(1) dated 02.12.2009 of Ministry of Environment & Forests. It has been held by this Hon'ble High Court in All Kerala River Protection Council v. State of Kerala reported in 2015 (2) KLT 78 vide paragraph 70 to the effect that once the rules has framed, the judgment of the Apex Court and the interim measure ordered therein served its main purpose and the situation thereafter will be governed by the KMMCR 2015. But the position has been reversed as per the judgment in W.A. No.1514 of 2015. The Decision of the Environment Department to have environmental clearance for all quarries irrespective of extent or category (lease/permit/ working/new) has been legally vindicated by the judgment of the Hon'ble High Court of Kerala in W.A.No.1514/2015 requiring environmental clearance for working quarries as well. Some of the W.A.Nos.1099 of 2010 & - 41 - connected cases provisions of KMMCR 2015 which allowed mining without environmental clearance were also questioned in the Hon'ble High Court and the Court made it clear that the mining operations on the basis of mining permits/renewed mining permit shall be allowed to continue only if they have prior Environmental clearance".
It is incomprehensible how the officers of the State in the lower echelons of the official hierarchy then acted contrary to the prescriptions. When the State was aware of the mandate for EC, it brought out successive notifications in violation of the Supreme Court judgment in Deepak Kumar (supra). The State also permitted indiscriminate quarrying; all in the name of development throwing to the winds all concerns for the environment. The aforesaid judgment by one of us has become final insofar as the SLP filed against All Kerala River Protection Council having been dismissed by the Hon'ble Supreme Court on which basis the appeals from Joseph Mathew [supra] were rejected by the Division Bench.
32. 'Sustained development' is the catch word which the Government, its officers and the citizens too have to re-emphasize on, especially in the context of the recent floods and landslides which devastated the State and its citizens. The studies, discussions and discourses on the W.A.Nos.1099 of 2010 & - 42 - connected cases cause of the flood and landslide, in the aftermath, pointedly refer to deforestation, encroachments [into forest lands and water tracts], [mindless] mining [of sand] and [indiscriminate] quarrying [of minerals]. Especially the blasting operations, which unsettles the topography of the region, disturbs the consistency of the lands generally and particularly the compactness of the hills and mountains. There are laws in place and officers to implement it, which however, is not effectively implemented. The past one century has seen tremendous development in science and technology and the so called human advances are equally matched only by the impact it left on the environment and the flora and fauna, who have an equal right over this earth. The human influence and the constant strife to better themselves and their lives has resulted in drastic climatic changes resulting in recurrent natural calamities all over the world, one of which befell on this State. The State is a narrow strip of land between the mountains and the deep sea; which accentuates it charm in the best of times and raises an alarm, an ominous portend, in times of floods and landslides. It is time the law makers, the government and the administrators sat up and pondered upon (i) How to re-build by sustainable alternative methods?, (ii) What can be done to W.A.Nos.1099 of 2010 & - 43 - connected cases prevent recurrence of a like calamity? after introspecting on
(iii) Why such a disaster occurred? We cannot shut our eyes or ears to the refrain that in reality the disaster inflicted by nature, is man made.
33. The present case is a classic case in which illegal mining was allowed to be carried on by the successive Governments without any care for the environment and ignoring the pleas of the local residents. What assumes special significance is that the Government and its officers did not look at the foundational aspect of a mine beyond 5 hectares requiring a prior EC. The Company had been carrying on the mining activities illegally, as found by us and large scale mining leading to environmental depredation having been occasioned already, we are of the opinion that there could be no environment impact assessment made at this stage. The adverse impact on the lands in the locality is already revealed from Exhibit A3 study carried out by the Department of the Government itself. We are surprised that even now the State is willing to go ahead with an impact assessment study; which would be futile and counter productive.
34. W.P.(C) No.8843 of 2013 is filed for police protection to transport crude china clay, for which the Company obtained permit, produced as Exhibit P5 therein, in W.A.Nos.1099 of 2010 & - 44 - connected cases the year 2013. Hence, long prior to the application for EC (2015), the Company had commenced mining operations in the lands covered under Exhibits P1, P2 and P3; which is against the notifications of 1994 and 2006 issued by the MoEF. The writ petition seeking police protection, hence, has to be dismissed.
35. W.A.1099 of 2010 is an appeal from the judgment of the learned Single Judge relegating the Company to the remedies available under the Paddy Land Act. The argument that the overriding effect of the Central Legislation puts to naught any restriction by a State Legislation; here the Paddy Land Act, is only to be noticed and rejected. A permission to mine china clay granted under the Minor Mineral Concession Rules, 1967 framed under The Mines and Minerals (Development and Regulation) Act, 1957 (for brevity MMDR Act) will not grant any immunity from the provisions of the Paddy Land Act. The MMDR Act is "An Act to provide for development and regulation of mines and minerals under the control of the Union". As held by the Hon'ble Supreme Court in Thressiamma Jacob Vs. Department of Mining and Geology {2013 (3) KLT 275 (SC)} it is only a regulatory measure. We extract para 54 of the decision :-
W.A.Nos.1099 of 2010 & - 45 -
connected cases "54. Mines and Minerals Act is an enactment made by the Parliament to regulate the mining activities in this country. The said Act does not in any way purport to declare the proprietary rights of the State in the mineral wealth nor does it contain any provision divesting any owner of a mine of his proprietary rights. On the other hand, various enactments made by the Parliament such as Coking Coal Mines (Nationalisation) Act, 1972 and Coal Bearing Areas (Acquisition and Development) Act, 1957 make express declarations under Section 4 and 7 respectively providing for acquisition of the mines and rights in or over the land from which coal is obtainable. If the understanding of the State of Kerala that in view of the provisions of the Mines and Minerals Development (Regulation) Act, 1957, the proprietary rights in mines stand transferred and vest in the State, it would be wholly an unnecessary exercise on the part of the Parliament to make laws such as the ones mentioned above dealing with the nationalisation of mines".
The MMDR Act has been enacted by the Union Parliament sourcing its power under Article 245 and Entry number 54 of List 1 of the Seventh Schedule to the Constitution. The Paddy Land Act also traces its source to the legislative field as available in Entry 33 of List III of Schedule VIII being -
"Trade and commerce in and production, supply and distribution of" inter alia "foodstuffs including edible W.A.Nos.1099 of 2010 & - 46 - connected cases oilseeds and oils". The specific power available under the field of legislation in List III of the Seventh Schedule cannot be fettered by the general power of regulation in List I {(2005) 3 SCC 711 State Of W.B. Vs Purvi Communication (P) Ltd.} Further the State is the authority to grant lease and permits for mining of minor minerals which cannot be granted ignoring a State legislation intended at preservation of paddy fields, to enhance production of food grains.
36. We are informed that the construction activities have been carried out and completed on the basis of the interim order obtained at the time of filing of the writ petition itself. However, that does not deter us in refusing to interfere with the refusal of exercise of discretion by the learned Single Judge. We direct the Company to proceed as directed by the learned Singe Judge within a period of three weeks from today failing which the District Collector will implement the order under the Paddy Land Act and resort to further action of restoration of paddy land as mandated in the Paddy Land Act.
37. W.P.(C) 32330 of 2015, 3251 of 2015 and W.A.No.1761 of 2018 are on identical subject matter. We find that the the Company had commenced mining operations without prior EC as stipulated in the notifications of 1994 and 2006. W.A.Nos.1099 of 2010 & - 47 - connected cases Large scale mining has been carried out and Annexure A3 report referred to by us emphasizes the large scale environmental damage caused in the area. We agree with the petitioners in W.P.(C)No.32230 of 2015 that an environment impact assessment at this stage in the area would be futile insofar the impact has already been occasioned in a deleterious manner. We do not see any EC having been produced by the Company which admittedly has 9 orders of permission for mining issued by the Government, in various tracts of land. It is also not clear as to whether the lease has been executed by the Government in accordance with the Government orders. There is no question of any deeming provision being applied for reason of the delay in consideration of the recommendation of the SEAC by the SEIAA. We have already seen that a proper consideration was made by the SEIAA and serious apprehensions and concerns were raised by the SEIAA; which are justified. Be that as it may, even if there is delay on the part of the authority, the deeming provision has no application, insofar as the Company required a prior EC insofar as areas above 5 hectares. Exhibits P1 and P2 produced in WP(C) No.31654 of 2017 though individually below 5 hectares, together they constitute more than 5 hectares. The minutes of the meetings of the SEAC and the SEIAA clearly W.A.Nos.1099 of 2010 & - 48 - connected cases indicate that they are adjacent properties raising a concern of division of homogeneous tracts into plots of lesser than 5 hectares, clearly covered by the binding decision in Deepak Kumar (supra). Exhibit P3 is a lease above 5 hectares and there is no contention raised of a prior EC having been obtained. The assertions in the writ petition for police protection and the counter affidavits filed by the Company clearly indicate that operations have been carried on by virtue of Exhibit P3 and Exhibit R8(a). We are of the opinion that the Company by its contumacious act and the blatant violation of the Environment Protection Act and the EIA notifications, is not entitled to carry on any mining activity in the area. We allow W.A. 1761 of 2018 setting aside the judgment of the learned Singe Judge in W.P.(C) 31654 of 2017 and dismiss the writ petition.
38. We allow W.P.(C) 3251 and 32230 of 2015 and direct that the judgment in Common Cause (supra) be implemented by the Government through its officers after conducting an inspection of the site. We direct the Director of Mining and Geology of the State to immediately seek for deputation of two officers from the Regional Controller of Mines, the 4th respondent in W.P(C)NO.32230 of 2015. A team shall be constituted, headed by the Senior Officer deputed by W.A.Nos.1099 of 2010 & - 49 - connected cases the Regional Controller of Mines and the officers of the State Directorate of Mining and Geology, who shall inspect the premises, assess the illegal extraction carried out of China clay as also the overburden diverted and taken out of the premises, in violation of the mining plan and recover 100% of the value of such materials excavated from the land. The District Collector shall, if necessary, with police force, immediately take possession of the lands in which mining has been carried out to facilitate an independent enquiry by the team constituted above. We say this to prevent filling up of any pits, hampering the assessment directed herein. There shall be no activity carried on in the premises till the inspection is conducted, the value of the illegal mining and extraction assessed as also recovery made from the Company.
39. We find that the actions of the Company in having approached this Court for police protection, without a prior EC and then seeking issuance of EC relying on a deeming provision without impleading those persons who had approached this Court challenging the mining activity for reason of no prior EC having been obtained, is a clear abuse of process. This has led to wide spread extraction having been carried out illegally on the strength of the orders of this Court. We W.A.Nos.1099 of 2010 & - 50 - connected cases in this context refer to (2004) 2 SCC 783 [Karnataka Rare Earth Vs. Senior Geologist, Department of Mines and Geology]. There the mining leases granted by the Government, in violation of a statutory prohibition was set aside in a Public Interest litigation. The appeal was rejected by the Division Bench of the High Court and the appeal to the Supreme Court also stood rejected. However there was a stay by the Supreme Court initially and the operations were carried on by the grantees. On dismissal of the appeal by the Supreme Court the State proceeded for recovery of the value of the granite extracted. Justifying the action of the State the Hon'ble Supreme Court held so:
"10. In South Eastern Coalfields Ltd. this Court dealt with the effect on the rights of the parties who have acted bona fide, protected by interim orders of the court and incurred rights and obligations while the interim orders stood vacated or reversed at the end. The Court referred to the doctrine of actus curiae neminem gravabit and held that the doctrine was not confined in its application only to such acts of the court which were erroneous; the doctrine is applicable to all such acts as to which it can be held that the court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading W.A.Nos.1099 of 2010 & - 51 - connected cases the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost.
11. In the facts of this case, in spite of the judgment of the High Court, if the appellants would not have persuaded this Court to pass the interim orders, they would not have been entitled to operate the mining leases and to raise and remove and dispose of the minerals extracted. But for the interim orders passed by this Court, there is no difference between the appellants and any person raising, without any lawful authority, any mineral from any land, attracting applicability of sub-section (5) of Section 21. As the appellants have lost from the Court, they cannot be allowed to retain the benefit earned by them under the interim orders of the Court. The High Court has rightly held the appellants liable to be placed in the same position in which they would W.A.Nos.1099 of 2010 & - 52 - connected cases have been if this Court would not have protected them by issuing interim orders. All that the State Government is demanding from the appellants is the price of the minor minerals. Rent, royalty or tax has already been recovered by the State Government and, therefore, there is no demand under that head. No penal proceedings, much less any criminal proceedings, have been initiated against the appellants. It is absolutely incorrect to contend that the appellants are being asked to pay any penalty or are being subjected to any penal action. It is not the case of the appellants that they are being asked to pay a price more than what they have realised from the exports or that the price appointed by the respondent State is in any manner arbitrary or unreasonable".
The aforesaid declaration apply squarely in the above case and the State would be fully justified in recovering the value of the illegally extracted mineral and over burden, even under orders of this Court.
40. We also cannot let free the Company for the clear abuse carried out before this Court. The Writ Appeal of 2010, the writ petitions of 2015 and the writ petition seeking police protection of 2013 were pending before the Division Bench of this Court when the Company filed W.P(C).No.31654 of 2017. We do not see any of the petitioners W.A.Nos.1099 of 2010 & - 53 - connected cases in the writ petitions of 2015 having been impleaded in W.P. (C)No.31654 of 2017. The Company had filed a writ petition with only the official respondents. The private parties impleaded, subsequently are the workers who got themselves impleaded for the purpose of supporting the writ petition. The parties who were opposing the mining activities and were agitating their cause before this Court from 2015 in which writ petitions the Company had received notice, have not been impleaded in the writ petition of the Company filed in 2017. We have already noticed that the Company had been carrying on illegal mining even prior to 2013, in which year the writ petition for police protection was filed. The writ petition filed for police protection and the writ petition for availing the deeming provision under the EIA notification were filed without prior EC which is a mandatory requirement under the EIA notification. This was the specific ground taken by the objectors in their writ petitions. There is clear abuse of process and we impose exemplary cost of Rs.10,00,000/-[Rupees ten lakhs] on the Company which will be paid within a period of two months, to the Chief Minister's Relief Fund of the State of Kerala, failing which the District Collector would be entitled to proceed for recovery under the Kerala Revenue Recovery Act, in which event, the W.A.Nos.1099 of 2010 & - 54 - connected cases amounts would carry interest at 12% from the date on which police protection was ordered in favour of the Company. The amounts so recovered would also be transferred to the Chief Minister's Relief Fund. It is made clear that the costs imposed by us will be in addition to the recovery made of the value of the illegal extraction at the rate of 100% as directed by the Hon'ble Supreme Court in Common Cause (supra).
41. We further notice that the private parties were treated unfairly insofar as not being impleaded in a writ petition seeking EC for mining when they had already been before this Court with writ petitions objecting to such activity. However we notice that an earlier Division Bench had observed that M.Nizamuddin was guilty of suppression; who would not be entitled to any costs. We direct the Company to pay cost of Rs.10,000/- [Rupees ten thousand] each to the petitioners in W.P.(C) 32230 of 2015 and the 2 nd appellant in W.A.1761 of 2018, who filed an appeal with an application for leave. If the cost is not paid as directed hereinabove, then the petitioners and the appellant shall be entitled to approach the District Collector, who shall collect the same through revenue recovery proceedings deeming the same to be arrears on land revenue with 12% interest from the date of W.P.(C) 32230 of 2015 and pay the proceeds to the individual W.A.Nos.1099 of 2010 & - 55 - connected cases petitioners and appellant. It is also made clear that this shall not interfere with the right of the parties to claim damages caused to their properties, before the appropriate authority or the appropriate Court; the liberty to which shall stand reserved.
42. We also direct the State to initiate prosecution against the officials of the Company and the erring officers of the State, under the Environment Protection Act and report on the steps taken within a period of two months.
Ordered accordingly.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
ASHOK MENON JUDGE W.A.Nos.1099 of 2010 & - 56 - connected cases APPENDIX [IN W.A.NO.1099 OF 2010] APPELLANTS' EXHIBITS/ANNEXURES :
NIL RESPONDENT'S EXHIBITS/ANNEXURES:
EXHIBIT R5(a) TRUE COPY OF THE PROCEEDINGS DATED 19.10.2011 OF THE REGIONAL CONTROLLER OF MINES, INDIAN BUREAU OF MINES.
EXHIBIT R5(b) TRUE COPY OF THE JUDGMENT DATED 28.02.2013 IN R.P.NO.1161/2012 ON THE FILE OF THIS HON'BLE COURT.
EXHIBIT R5(c) TRUE COPY OF THE REPORT DATED 5.6.2013 OF THE CHIEF CONTROLLER OF MINES.
EXHIBIT R5(d) TRUE COPY OF THE PROCEEDINGS DATED 12.09.2008 OF THE REGIONAL CONTROLLER OF MINES, BANGALORE.
ANNEXURE R5(a) TRUE COPY OF THE PROCEEDINGS DATED 12.09.2008 OF THE REGIONAL CONTROLLER OF MINES, INDIAN BUREAU OF MINES.
Vku/-
[true copy]