Kerala High Court
V.K.Velu vs Anil Kumar
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 25TH DAY OF APRIL 2017/5TH VAISAKHA, 1939
WP(C).No. 20532 of 2010 (N)
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PETITIONER(S):
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V.K.VELU
RESIDING AT PLOT NO.101,MUKKUNI MALA,
EDAKONAM, PALLICHAL,THIRUVANANTHAPURAM. [EXPIRED].
SUPPLEMENTAL PETITIONERS 2 TO 5:
2.OMANA,W/O.LATE V.K.VELU,
AGED 68 YEARS, RESIDING ATPLOT NO.101,
MUKKUNNIMALA, EDAKKODE, PALLICHAL,
THIRUVANANTHAPURAM.
3.SAJEEV,S/O.LATE V.K.VELU, AGED 44 YEARS,
RESIDING AT "SREERATNAM", SANTHIGIRI P.O.,
ANANTHAPURAM, THIRUVANANTHAPURAM DISTRICT.
4.RAJEEV,S/O.LATE V.K.VELU, AGED 40 YEARS,
RESIDING AT PLOT NO.101, MUKKUNNIMALA, EDAKKODE,
PALLICHAL, THIRUVANANTHAPURAM.
5.PRADEEP, S/O.LATE V.K.VELU, AGED 36 YEARS,
RESIDING AT CHINGANTHARA HOUSE, THURAVOOR P.O.,
ALAPPUZHA DISTRICT 688 532.
SUPPLEMENTAL PETITIONERS 2 TO 5 ARE IMPLEADED AS PER ORDER
DATED 6.7.2011 IN I.A.NO.10564/2011.
BY ADVS.SRI.K.P.DANDAPANI (SR.)
SRI.MILLU DANDAPANI
RESPONDENT(S):
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1. ANIL KUMAR
S/O.NARAYANA PANICKER, PANKAJAVILAS,P.P.NO.95,
MOOKUNNIMALA, NEMAM PO,
THIRUVANANTHAPURAM.PIN 695121.
W.P.(C).NO.20532/2010
2. SURESHBABU,S/O.SOMAN,CONTRACTOR,
THEKKUMMOODU,THIRUVANANTHAPURAM. PIN 695101
3. GEOLOGIST, DEPARTMENT OF MINING AND
GEOLOGY, DISTRICT OFFICE,THIRUVANANTHAPURAM.
4. THE VILLAGE OFFICER, PALLICHAL VILLAGE,
NEYYATINKARA TALUK, THIRUVANANTHAPURAM.
5. THE TAHASILDAR,OFFICE OF THE TALUK
OFFICE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.
6. THE DISTRICT COLLECTOR, COLLECTORATE,
THIRUVANANTHAPURAM.
ADDL.R7 IMPLEADED:
7.M/S. SOUTHERN GRANITES AND INDUSTRIES,
MOOKKUNNIMALA, EDAKKODE, NEMOM P.O.,
THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER
K.J.THOMASKUTTY.
ADDL.R7 IS IMPLEADED AS PER ORDER DATED 7.9.2010 IN
I.A.NO.12230/10.
R,ADDL.R7 BY ADV.SRI.BECHU KURIAN THOMAS
R,R1 &2 BY ADV. SRI.GEORGE THOMAS (MEVADA)(SR.)
R,R1,2 BY ADV. SRI.T.RAJASEKHARAN NAIR
RR3 TO R6 BY SRI.RANJITH THAMPAN, ADDL. ADVOCATE
GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-04-2017 ALONG WITH WPC.NO.17088/2011 AND CONNECTED CASES, THE
COURT ON 25-04-2017 DELIVERED THE FOLLOWING:
W.P.(C).NO.20532/2010
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE PATTANO.LA II 84/70 DATED 2.6.1970.
EXT.P2: COPY OF THE GIFT DEED NO.317/86.
EXT.P3: COPY OF THE GIFT DEED NO.428/1986.
EXT.P4: COPY OF THE SALE DEED NO.1916/05 OF SRO BALARAMAPURAM.
EXT.P5: COPY OF SKETCH PLAN PREPARED BY THE VILLAGE OFFICER
PALLICHAL.
EXT.P6: COPY OF THE REPORT DATED 20.4.2009 OF PALLICHAL VILLAGE
OFFICER.
EXT.P7: COPY OF THE JUDGMENT IN WP(C).NO.9605/2009 DATED 13/8/2009.
EXT.P8: COPY OF THE JUDGMENT IN WA.NO.1908/2009 DATED 25/8/09.
EXT.P9: COPY OF THE APPLICATION DATED 21.12.2010 SUBMITTED BY THE
PETITIONER BEFORE THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.
EXT.P10: COPY OF THE REPORT DATED 10.1.2011 SUBMITTED BY THE VILLAGE
OFFICER.
EXT.P11: COPY OF THE DIRECTION DATED 8.2.2011 ISSUED BY THE DISTRICT
COLLECTOR TO THE TAHSILDAR TO ISSUE ASTOP MEMO.
EXT.P12: COPY OF THE DIRECTION DATED 8.2.2011 ISSUED BY THE DISTRICT
COLLECTOR TO THE CIRCLE INSPECTOR OF POLICE TO ISSUE A STOP MEMO.
EXT.P13: COPY OF REPORT OF THE 4TH RESPONDENT TO THE OFFICE OF THE
5TH RESPONDENT, VIDE NO.67/2011 DATED 1.4.2011.
EXT.P14: COPY OF PROCEEDINGS NO.F.2089/11 DATED 20.4.2011 OF THE
REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM.
EXT.P15: COPY OF REPORT DATED 7.6.2011 OF THE 4TH RESPONDENT TO THE
REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM.
EXT.P16: COPY OF REPORT NO.1121 OF 2011 DATED 10.6.2011 OF THE 4TH
RESPONDENT TO THE REVENUE DIVISIONAL OFFICER,
THIRUVANANTHAPURAM.
W.P.(C).NO.20532/2010
EXT.P17: COPY OF COMMUNICATION NO.SAC/S 7393/3/P4 DATED 7.9.2009 OF THE
HEADQUARTERS SOUTHERN AIR COMMAND, IAF, THIRUVANANTHAPURAM TO
THE 6TH RESPONDENT AND SUPERINTENDENT OF POLICE,
THIRUVANANTHAPURAM.
EXT.P18: COPY OF ORDER, G.O.(RT) NO.1222/2010/ID DATED 21.8.2010 OF THE
ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA TO THE
DIRECTOR OF MINING AND GEOLOGY,THIRUVANANTHAPURAM.
EXT.P19: COPY OF REPORT DATED 22.11.2011 SUBMITTED BY THE 6TH
RESPONDENT TO THE COMMISSIONER, LAND REVENUE, VIDE NO.B7/37203/09.
EXT.P20: PHOTOGRAPHS REFERRED TO IN THE AFFIDAVIT.
RESPONDENTS EXHIBITS:
EXT.R1(A): COPY OF THE COMMUNICATION ISSUED BY THE GOVERNMENT OF
KERALA TO THE DISTRICT LABOUR OFFICER, THIRUVANANTHAPURAM.
EXT.R1(B): COPY OF THE ORDER DATED 11.9.1986.
EXT.R1(C): COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE
GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE,
THIRUVANANTHAPURAM, IN FAVOUR OF 2ND RESPONDENT.
EXT.R1(D): COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER,
PALLICHAL VILLAGE, BEFORE THE DISTRICT COLLECTOR.
EXT.R1(E): COPY OF THE INTERIM ORDER DATED 31.3.2010 PASSED BY THIS
COURT.
EXT.R1(F): COPY OF THE JUDGMENT DATED 8.7.2010 PASSED BY THE DIVISION
BENCH OF THIS COURT IN W.P.(C).NO.9384/2010.
EXT.R1(G): PHOTOGRAPHS (3 NOS)
EXT.R1(H): COPY OF ORDER OF ASSIGNMENT OF LAND.
//TRUE COPY//
P.S.TO JUDGE
'C.R.'
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).NOS.20532 OF 2010, 17088 OF 2011, 10212,
10238, 12101, 12116, 12277, 14639, 15915 & 22237
OF 2012, 32619 OF 2015, 40532 OF 2016, 610,
613 & 644 OF 2017
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Dated this the 25th day of April, 2017
J U D G M E N T
Introduction:
These cases bring to the fore, yet again, the unending and vexed issue of striking a balance between the development needs of human society and the ecological necessity to preserve natural resources. The activity of granite quarrying is one that has become so rampant in the State of Kerala that the time has probably come for the State to review its existing policy with regard to grant of quarrying leases and permits and ensure that quarrying activities in the State are effectively regulated through the legislative measures that are already in place. A recent study (March, 2017) conducted by the Kerala Forest Research Institute, Peechi, finds that there are a total of 5924 Quarries in the State covering an area of 7156.6 Hectares. Central Kerala ranks the highest, in terms of the number of quarries and the area quarried, with 2438 quarries covering an area of 3610.4 Hectares. North Kerala has 1969 quarries covering an area of W.P.(C).No.20532/2010 & con. Cases 2 1871.97 Hectares, and South Kerala has 1517 quarries covering an area of 1675.21 Hectares. 50% of these quarries are in the 0.02-0.5 Hectare category, 35.7% in the 0.5-2 Hectare category, 73 granite quarries with an area above 10 Hectare and 19 Quarries having an area greater than 20 Hectares. There are 78 granite quarries within 1 Km proximity of the epicenters of recorded earthquakes in Kerala. Similarly, there are 79 quarries with a total area of 85.83 Hectares within 500 metres from protected forests and 1378 quarries functioning within 1 Km from the reserved forests. (See: Paper titled "Mapping of Granite Quarries in Kerala, India: A critical mapping initiative; by TV Sajeev and Alex CJ; Forest Health Division, Kerala Forest Research Institute Peechi).
2. While the quarrying activities in respect of granite metal were being regulated through the Mines and Minerals (Development & Regulation) Act, 1957 and the Kerala Minor Mineral Concession Rules, 1967, the latter Rules were superseded by the Kerala Minor Mineral Concession Rules, 2015, which brought in more stringent regulatory measures to govern the grant of quarrying leases and permits. Notifications issued under the Environment Protection Act W.P.(C).No.20532/2010 & con. Cases 3 and Rules also envisage that quarrying leases and permits be granted only after a thorough audit of the environmental impact that such activities can occasion. It is apparent, therefore, that there are adequate legislative measures in place to regulate quarrying activities. Litigation in this area has, however, revealed the shortcomings with regard to the implementation of these regulatory measures.
Brief Facts:
In these writ petitions, save for W.P.(C).Nos.14639/2012, 17088/2011, 20532/2010, 32619/2015 and 40532/2016, that are filed by neighbouring landowners, the other writ petitions are preferred by persons who either own, or have rights over, lands in Pallichal Village in Neyyatinkara Taluk, in an area that is locally referred to as Mookunnimala, and hold quarrying leases for quarrying Granite metal. The lands in question were originally assigned to the predecessors in interest of the present owners, in terms of the Kerala Government Land Assignment Act, 1960, [hereinafter referred to as the '1960 Act'] read with the Special Rules for Assignment of Government Lands for Rubber Cultivation, 1960. In their writ W.P.(C).No.20532/2010 & con. Cases 4 petitions, which comprise of two sets - the first of which were filed challenging stop memos that were issued by the respondents in 2012, and the second of which were filed challenging stop memos that were issued by the respondents in the year 2016 - they are aggrieved by the action of the respondents in interfering with the working of the quarries during the currency of subsisting leases, the terms of which are scheduled to expire only during the period between 2018 and 2022.
3. The stop memos that were issued to the various writ petitioners in the year 2012, appear to have been pursuant to the directions issued by this court in the judgment dated 13.08.2009 in W.P.(C).No.9605/2008, where this Court found that lands assigned to various quarrying permit holders in Malyattoor - Neeleeswaram Grama Panchayat had, in fact, been issued under Patta's that contained a clause that the assigned lands would not be used for purposes other than for rubber cultivation, and hence the assigned lands could not be used for quarrying activities. The observations of the Court are to be found in paragraph 5 of the judgment and read as follows:
W.P.(C).No.20532/2010 & con. Cases 5
"5. In view of the specific contention raised by the petitioners that quarrying undertaken by respondents 3 and 4 is in violation of the patta issued to them, I directed the 5th respondent to produce a copy of the patta issued to the predecessor-in-interest of respondents 3 and 4 as also the order of assignment of land on registry. The same have been produced as Ext.P5(a). The patta is one issued to one Uthuppu Simon, who is the predecessor-in- interest of respondents 3 and 4, containing the caption that the same is issued under Rule 8-D(ii) of Special Rules for Assignment of Government Lands for Rubber Cultivation. (In the present rules, there is no Rule 8D and therefore, the form may have been printed under the erstwhile rules, which have been replaced by the Special Rules for Assignment of Government Lands for Rubber Cultivation, 1960). The order of assignment of land on registry also contains the caption, 'Form of Order of Assignment of Land on registry for Rubber Cultivation" . Clause 4 of the Order of Assignment reads thus:
"4. The land assigned will be about 1.41 hectares, in area of which 1.21 hectares shall be put under rubber cultivation and the remaining area shall be used for the construction of a dwelling house and for a domestic garden, if so desired by the assignee."
Clause 5 reads thus:
"The registry shall be liable to be cancelled for contravention of conditions 1 to 3 above or the conditions specified in the patta."
Clause 10 reads thus:
"The assignee shall not use the land or suffer it to be used except for the purposes for which it is assigned."
Clause 13 reads thus:
"The existing and customary rights of Government and the public in roads, Paths, rivers, streams, channels through or bordering the land, and the right of Government in mines and quarries subjecent to the said W.P.(C).No.20532/2010 & con. Cases 6 land reserved and are in no way affected by the grant."
Condition No.1 of the patta reads thus:
"1. The assignee shall not use the land or suffer it to be used except for the purpose for which it is assigned."
Rule 20 of the Special Rules for Assignment of Government Land for Rubber Cultivation, 1960, reads thus:
"20. (1) Non-compliance with or violation of any of the rules or condition of licence shall entail the cancellation of the licence. The Government may resume the land in such cases and no compensation shall be payable to such licensees.
(2) In the event of such resumption the Government may recover form the original allottee the entire amount of the loans distributed to him with interest till date, and the survey and demarcation charges including contour alignment charges and all other sums use from him in respect of the land resumed:
Provided, however, that if the land contains improvements made by the original allottee and Government decided to take over the land with such improvements, the Government may recover from the allottee the amount, if any, by which the value of the improvements as assessed by the Director of Agriculture falls short of the amounts due to the Government from the allottee:
Provided further that if the value of the improvements aforesaid is in excess of the amounts due to the Government, the allottee shall have no claim for such excess.
(3) Government shall also be at liberty to recover proportionate rental upto the date of resumption at the rates applicable to similar lands.
W.P.(C).No.20532/2010 & con. Cases 7
(4) When the entire amount due to the Government from the allottee has been recovered under sub-rule (1) aforesaid or the allottee has made alternate arrangements for payment of such amounts to the satisfaction of the Director of Agriculture the allottee may be permitted to dismantle and remove the buildings or other structures, if any; constructed by him."
Section 8 of the Kerala Land Assignment Act reads thus:
"8. Assignment to take effect with restrictions, conditions, etc. according to their tenor.- All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary.
Explanation.- In this section, the expression, "Government land" shall include land under the control or management of the Government at the time of the assignment."
In view of the conditions of assignment and the above said provisions of law, I have absolutely no doubt in my mind that respondents 3 and 4 could not have undertaken any sort of activities in the property assigned to their predecessor-in-interest other than cultivation of rubber. Respondents 3 and 4 have no case that the property has been cultivated with rubber. On the other hand, their specific contention is that the land is totally unsuitable for rubber cultivation. According to me, if respondents 3 and 4 had a case that the land is not suitable for rubber cultivation, they could not have on their own used the same for any other purpose, especially quarrying, which has been specifically reserved for the Government, in the said property. Therefore, even if respondents 3 and 4 could not have used the land for rubber cultivation, they could certainly not have done quarrying, except with prior permission of the Government and getting the conditions of grant changed appropriately. The counsel for respondents 3 and 4 would contend that the fact that W.P.(C).No.20532/2010 & con. Cases 8 the Village Officer had issued possession certificate pursuant to an application submitted by respondents 3 and 4 for applying for quarrying permit and the fact that the Geologist had issued a quarrying permit would go to show that it was with the permission of the Government that respondents 3 and 4 had undertaken the quarrying. I am unable to agree. Simply because a possession certificate has been issued by the Village Officer for applying for quarrying permit and a quarrying permit has been issued by the Geologist, the same do not absolve respondents 3 and 4 from honouring the specific conditions of assignment contained in Ext.P5(a). That would not also lead to an inference of permission from the Government for quarrying also. The permission contemplated should have been on an application for such permission submitted by respondents 3 and 4. The permission cannot be inferred from the mere fact that respondents 3 and 4 had obtained a quarrying permit on the basis of the possession certificate issued by the Village Officer. Further when the assignment itself is with the condition that the right of the Government in the quarries is reserved, by appropriating the granite available in the property to themselves, actually respondents 3 and 4 have misappropriated property belonging to the Government without permission. Therefore, in view of Rule 20 of the Rules quoted above, the assignment itself is liable to be cancelled. In view of the fact that respondents 3 and 4 have misappropriated themselves the property belonging to the Government by quarrying granite from the quarry which has been reserved to the Government, respondents 3 and 4 are also liable to refund the entire value of the granite quarried by them from the property in question to the State.
The writ petitions were thereafter disposed with the following directions to the State Government;
"7. In the above circumstances, this writ petition is disposed of with the following directions: W.P.(C).No.20532/2010 & con. Cases 9
(a) The 5th respondent shall take immediate steps to cancel the patta issued to respondents 3 and 4 for violation of the conditions of assignment as well as the rules under which the assignment has been granted. In view of the fact that respondents 3 and 4 have appropriated the properties belonging to the Government in the form of granite quarried from the property which was reserved to the Government, the 5th respondent shall take immediate steps to see that the value of the granite quarried by respondents 3 and 4 is recovered from respondents 3 and 4 in accordance with law after complying with all procedural formalities thereof.
(b) If, any similarly situated assignee has conducted quarrying in the properties assigned to them for rubber cultivation, the 5th respondent shall take appropriate proceedings against them also for cancelling of patta and recovery of value of the granite quarried by them, after affording an opportunity of being heard to them as in the case of respondents 3 and 4 as directed above.
(c) The above proceedings against respondents 3 and 4 and other assignees who are guilty of violation of conditions of the grant shall be initiated and completed as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment and a report shall be filed in this Court within two weeks therefrom. Post this case for that purpose on 7.12.2009.
Before parting with the case, I note with distress that despite such illegality on a large scale having been brought to the notice of respondents 2, 5 and 6 they have not chosen to act on their own to protect the natural resources of the State which belong to the people. In the counter affidavits filed by respondents 2 and 6, they did not choose to take exception to the action of respondents 3 and 4 and instead of taking appropriate action against them and other similar persons, they have taken a stand favourable to respondents 3 and 4. The natural resources of the State belong to the people and respondents 2, 5 and 6, who are duty bound to protect W.P.(C).No.20532/2010 & con. Cases 10 the same, have taken a stand favourale to persons who have illegally appropriated the same unto themselves, thus failing in their duties. I fervently hope that they would at least act now with the urgency the situation demands and restore to the State what is legitimately due to it, failing which the Government shall initiate appropriate action in the matter against them also. The Secretary to the Government shall also file a report in regard to the action taken in respect thereof. The Registry shall forward a copy of this judgment to the Chief Secretary to the Government for appropriate action and report.
4. Although, an intra court appeal was preferred by the petitioners therein, the Division Bench only allowed the appeal in part, and to the limited extent of setting aside the direction of the learned single judge that permitted a recovery, from the appellants, of the value of the granite quarried by them. The Division Bench upheld the other directions of the learned single judge. Dealing with the contention of the appellants therein, with regard to the reservation by the Government of its rights in respect of mines and quarries subjacent to the assigned lands, it was found that the said clause would not come to the rescue of the appellants since it did not give a licence to the appellants to carry on mining operations contrary to the purposes for which the land had been assigned. W.P.(C).No.20532/2010 & con. Cases 11
5. A Special Leave Petition [SLP], that was thereafter preferred before the Supreme Court, also came to be dismissed by an order dated 22.01.2010. In the said order, it was clarified that, if the lands in question, after resumption by the State Government, were notified for the grant of quarrying leases, the petitioners therein would not be barred from applying for the same.
6. It is, therefore, that in the first set of stop memos issued to the various writ petitioners herein, the stand taken is that quarrying activities cannot be permitted in lands that were assigned solely for rubber cultivation. It would appear, however, that, in the said writ petitions, interim orders were passed, staying the operation of the stop memos and, hence, the petitioners were carrying on their quarrying activities till the second set of stop memos were issued to them in 2016. These latter stop memos were issued, inter alia, on the ground that the quarrying activities were seen undertaken without obtaining a prior environment clearance from the State Level Environment Impact Assessment Authority. When these stop memos were separately impugned before this court, this court felt that it would be in the fitness of things to decide all the writ petitions W.P.(C).No.20532/2010 & con. Cases 12 together so that the issues covered by both the sets of stop memos could be adjudicated together.
Submissions of Counsel:
7. I have heard the learned Senior Counsel Sri. Bechu Kurien Thomas, as also other counsel for the petitioners in the writ petitions and the learned Additional Advocate General Sri. Ranjith Thampan and learned counsel Sri. Suresh B.S for the respondents.
8. The submissions made on behalf of the petitioners can be summarised as follows:
1. The lands in question, on which quarrying activities are being carried out, are all lands that were assigned to the predecessors-in-interest to the petitioners herein, under the Special Rules for assignment of Government lands for cultivation of Rubber. The Patta that was granted, although contained a clause that prohibited the use of the land for any purpose other than for what it was assigned, also contained a clause that reserved a right in the Government to deal with the minerals subjacent to the lands assigned. It was in exercise of the right so reserved that the Government decided to grant quarrying leases in respect of the lands in question and the said leases were W.P.(C).No.20532/2010 & con. Cases 13 executed by the State Government in terms of Article 299 of the Constitution of India. Thus, merely because the lands had been assigned for rubber cultivation, it did not follow that the State Government could not exercise its sovereign right to enter into contracts for exploitation of the minerals subjacent to the lands in question.
2. As regards the issue of obtaining environmental clearance, the non-obtaining of which was the basis for the stop memos issued to the petitioners in 2016, it is stated that the quarrying leases in question were all issued prior to 2012 and hence, going by the decision of a Division bench of this court in All Kerala River Protection Council v. State of Kerala - [2015 (2) KLT 78], the issue of obtaining a prior environment clearance for quarrying operations would arise only at the time of approaching the Government for a renewal of the Quarrying lease.
9. Per Contra, the submissions on behalf of the respondents can be summarised as follows:
1. It is stated that the lands forming part of Mookunnimala were notified as Reserve Forests vide a Notification dated 08.08.1896, in terms of Section 18 of the Trivandrum Forest Regulations of 1068 (M.E). The notification is produced as Ext.R1(f) in a statement filed W.P.(C).No.20532/2010 & con. Cases 14 in W.P.(C).No.40532/2016. The lands on which the petitioners are carrying on quarrying operations are thus stated to be forest lands, that were assigned for rubber cultivation in accordance with the Special Rules for Assignment of Government Land for Rubber Cultivation. Relying on the judgments of the Supreme Court in TN Godavarman Thirumulpad v. Union of India - [(1997) 2 SCC 267], Ambica Quarry Works v. State of Gujarat and Others - [1987 KHC 836] and Nature Lovers Movement v. State of Kerala and Others - [(2009) 5 SCC 373], it is contended that, by virtue of the provisions of the Forest Conservation Act, the lands in question cannot be used for any non-forest use, and quarrying activities would therefore have to be prohibited on the said lands.
2. Relying on a report of the Bio-Diversity Board, produced as Ext. R1(h) along with the statement filed in W.P.(C).No.40532/2016, it is pointed out that the lands in Mookunnimala, where the quarrying operations are being carried on, lie close to Naval and Air Force stations and hence such activities could not have been carried on in the said area without first obtaining the consent of the said authorities.
3. Rebutting the contention of the petitioners with regard to quarrying being permitted in terms of the patta, it is pointed out that the issue was considered by W.P.(C).No.20532/2010 & con. Cases 15 this court in the judgment dated 13.08.2009 in W.P.(C).
No.9605/2008. The decision of the single judge was upheld by a Division Bench of this Court and attained finality through the dismissal of the SLP by the Supreme Court. It is contended, therefore, that the petitioners could not be heard to say that they could carry on quarrying activities on the land, in contravention of the express terms of the grant.
4. Alternatively, it is contended that, since the quarrying lease was sought by the petitioners in respect of a natural resource of the State, the doctrine of public trust ought to have prompted the petitioners to disclose the restrictive covenants that adhered to the land, consequent to the express terms of the Patta assigned in respect of the lands, to the authorities at the time of applying for a quarrying lease. The petitioners allegedly obtained their quarrying leases, fraudulently, through such non-disclosure.
10. Responding to the contention with regard to Forest Lands, it is submitted by the learned senior counsel for the petitioners that;
1. The issue as to whether or not the lands on which quarrying activities were being carried on were forest lands is one that is urged only at the time of hearing of W.P.(C).No.20532/2010 & con. Cases 16 the writ petitions.
2. Referring to the notification dated 8.8.1896 issued under the Trivandrum Forest Regulations, it is contended that while it may be a fact that the lands were once notified as forming part of a reserved forest, by efflux of time and subsequent actions of the State Government, the lands had ceased to be forest lands.
3. Reliance is placed on the documents produced on behalf of the petitioners, through I.A.'s filed during the course of hearing, to contend that the State Government had permitted the use of the land for non-forest purposes, and it was for non-forest purposes that the lands were assigned in the 1960's. It is contended that the change in the user of the land, as also the ownership thereof, ensured that the lands could not be seen as Forest Lands consequent to their assignment and transfer of registry.
The Issues:
On a consideration of the pleadings in these writ petitions, as well as the arguments advanced before me by learned counsel appearing for the parties, I find that the following issues arise for consideration in these writ petitions:
W.P.(C).No.20532/2010 & con. Cases 17
(i) Whether the lands owned by the various quarrying leaseholders, and covered by the quarrying leases, are to be treated as Forest Lands for the purposes of applying the restrictions envisaged under the Forest Conservation Act, 1980?
(ii) If the lands in question are not Forest Lands, then whether, on account of the conditions imposed in the original order of assignment of the lands, issued to the predecessors in interest of the quarrying leaseholders, the quarrying activities carried on by the said leaseholders can be seen as in violation of the terms of assignment of the land concerned, and therefore illegal?
(iii) Whether the quarrying leases obtained by the leaseholders are liable to be cancelled on the ground that they were obtained without a proper disclosure of the nature of the lands in respect of which the leases were applied for and obtained, and the restrictive covenants that applied to the said land?
(iv) Whether the quarrying leaseholders are required to obtain an environmental clearance certificate for continuing with their quarrying activities?
Findings:
W.P.(C).No.20532/2010 & con. Cases 18
Re: Issue 1 The contention advanced on behalf of the official respondents of the State Government, as well as the petitioners in W.P.(C).Nos. 14639/2012, 17088/2011, 20532/2010, 32619/2015 and 40532/2016, that the lands on which quarrying activities are being carried on, are essentially lands that have been notified as reserved forests, is premised on the Notification dated 08.08.1896 that declares the areas in question to be reserved forests. The notification in question is one that is issued in terms of Section 18 of the Trivandrum Forest Regulation of 1068. Subsequent legislative measures have seen the enactment of the Kerala Forests Act, a State Legislation, and the Forests Conservation Act, 1980, a Central Legislation, both relatable to Entry 17A in List III of the Seventh Schedule to the Constitution of India. A working plan prepared by the Forest Department of the State in 1968 reveals that more than 2 Square Kilometers of land, that was notified as reserved forest, was clear felled at the instance of the State Government and earmarked for allotment to landless persons for rubber cultivation. Thereafter, the said lands were assigned in terms of the Assignment Rules that were framed under the 1960 Act. The assignments, having been effected to the predecessors in interest W.P.(C).No.20532/2010 & con. Cases 19 of the present land owners, also had the effect of transferring the title over the said lands to the said persons. The question then arises, as to whether, after a transfer of registry in respect of the land, whereby the State Government relinquished its title over the land in favour of the assignee, the notification declaring the lands as reserved forests would continue to apply in respect of the said lands, so as to impose restrictions with regard to the manner of use of the lands. In my view, the transfer of registry in respect of the land effectively divested the title over the land from the State Government and vested it in the assignee. The land in question, upon assignment and thereafter, ceased to be Forest land for the purposes of the Kerala Forest Act and Rules, as also for the purposes of the Forest Conservation Act, 1980. Consequently, the notification that once included the said lands in the category of reserved forests, ceased to have any application to the said lands after their assignment to the predecessors in interest of the present land owners.
11. There is yet another aspect of the matter. The Forest Conservation Act, 1980 was brought into force with effect from 25.10.1980. The scheme of the said Act was explained by the Supreme W.P.(C).No.20532/2010 & con. Cases 20 Court in Ambica Quarry Works v. State of Gujarat and Others -
[1987 KHC 836] as follows:
"6. ..................... This was an Act passed by the Parliament to provide for the conservation of forest and for matters connected therewith or ancillary thereto. The Statement of Objects of the said Act is relevant. It is stated that deforestation caused ecological imbalances and led to environmental deterioration. It recognised that deforestation had been taking place on a large scale in the country and it had thereby caused widespread concern. With a view to checking further deforestation, an Ordinance had been promulgated on 25th October, 1980. The Ordinance made the prior approval of the Central Government necessary for dereservation of reserved forests and for the use of forest land for non forest purposes. The Ordinance had also provided for the constitution of an advisory committee to advise the Central Government with regard to grant of such approval. The 1980 Act replaced the said Ordinance. The Act extends to the whole of India except the State of Jammu and Kashmir, and came into force on 25th October, 1980. S.2 of the said Act is only relevant for our present purpose. It provides as follows:
2. Restriction on the dereservation of forests or use of forest land for non forest purpose:- Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non forest purpose.
Explanation:- For the purposes of this section "non W.P.(C).No.20532/2010 & con. Cases 21 forest purpose" means breaking up or clearing of any forest land or portion thereof for any purpose other than reafforestation."
7. The said section makes it obligatory for the State Government to obtain the permission of the Central Government for (1) dereservation of reserved forest and (2) for use of forest land for non forest purposes. It is apparent, therefore, that the two dual situations were intended to be prevented by the legislation in question, namely dereservation of reserved forest, and use of forest land for non forest purposes."
12. In TN Godavarman Thirumalpad v. Union of India - [(1997) 2 SCC 267], the Supreme Court while examining the issue as to what constitutes a "forest" for the purposes of the 1980 Act observed that the term "Forest" includes all lands understood as Forests in the dictionary sense as also any area recorded as Forest in the Government records, irrespective of ownership.
13. Given the stated objective of the Forest Conservation Act, 1980, of checking the further deforestation of Forests in the country, and the embargo placed on State Governments, through Section 2 of the Act, against any de-reservation of forests, assignment of such lands, utilization of forest lands for non-forest purposes, and clearing of such forests, without obtaining prior approval of the Central W.P.(C).No.20532/2010 & con. Cases 22 Government, it is clear that the provisions of the Act apply to lands that were "Forests" as on 25.10.1980. The provisions of the Act would also apply to Government lands that were leased out for non-forest purposes, prior to 25.10.1980, but came up for renewal of the lease after 25.10.1980. In the latter mentioned cases, the possibility of reclaiming areas where deforestation had taken place was seen as sufficient to achieve the objective of checking further de-forestation, and bringing the said lands also within the ambit of the 1980 Act [See: Ambica Quarry Works case (Supra)].
14. In the instant cases, however, the assignment of lands, that were earlier forest lands, took place in the 1960's and the assignment was for the purposes of rubber cultivation, admittedly a non-forest activity. The affidavit filed by the Additional Principal Chief Conservator of Forests, on 09.02.2017, in W.P.(C).No.40532 of 2016, states as follows @ paragraphs 8, 9 and 10:
"8. Forest land in Mookkunnimala was permanently diverted for rubber cultivation during 1960-61, well before the Forest (Conservation) Act, 1980 came into existence. Rubber Plantation Scheme was intended to be taken up in 1,00,000 acres of land of which 50,000 acres was to be obtained by dis-reserving the Government reserve forest and the remaining 50,000 acres were to be W.P.(C).No.20532/2010 & con. Cases 23 handed over after the State acquired the private forest land of Malabar.
9. The Government file on the subject (Page 37 of File No.52495 of Director, State Archives) has several references to the effect that the initial proposal of 1,00,000 acre was reduced to 50,000 acres, to 20,000 acres and finally only 14,742 acres could be earmarked due to unsuitability of the identified land as well as due to the delay on the part of Chief Conservator of Forests to clear fell the forest land and make it available, which was the only role expected of him.
10. It is submitted that in view of the fact that the majority of the area of Mookkunnimala reserve was handed over to Revenue Department for assignment under the rubber cultivation scheme, the Forest Department has initiated proceedings for dis-reserving the Mookkunnimala reserve. This procedure commenced after transfer of land from the Forest Department to Revenue Department. From the files, it is clear that during 1975, the proposal for dis-reserving several such forests was proceeding. As regards Mookkunnimala reserve as well as certain other reserve forests which were given assignment to the Revenue Department. However, the department was not able to trace out a notification under Section 26 of the Kerala Forest Act formally dis-reserving this forest. It is submitted that after the commencement of Forest (Conservation) Act, 1980 such a notification can be issued only after sanction from the Central Government.
15. The said averments in the affidavit of the Additional Principal Chief Conservator of Forests, find corroboration in the working plans, prepared by the Forest Department of the State W.P.(C).No.20532/2010 & con. Cases 24 Government, for the Trivandrum Forest Division, for the years 1964- 65 to 1973-74 and for the years from 1990-91 to 1999-2000. While the former plan shows an area of 2 Square Kilometers and 12.25 Hectares as the area covered by Mookunnimala, an area of 34.26 Acres is seen kept as sandalwood area and the remaining area as clear-felled for rubber plantation. Similarly, the latter plan also refers to an extent of 212.250 Hectares as forming part of "Mookunni Reserve"
(erroneously mentioned as "Kokunni Reserve), as having been diverted for non-forestry purposes prior to 1962. Thus, it is evident that the lands within the extent shown in the working plans ceased to be Forest Lands, in the true sense of the term. That apart, the documents produced by the petitioner in W.P. 610 of 2017, as Exts.P13 to P15 indicate that there were land acquisition proceedings initiated in relation to properties forming part of erstwhile Mookunnimala forest land, for the purposes of setting up an Air Force base and a Military Firing Range. Ext.P18 produced in the same writ petition is a copy of the base note prepared by the Deputy Collector (Land Acquisition) that refers to an order issued by the State Government in 1962 to assign lands in Mookunnimala to various persons. In the land acquisition proceedings that followed, W.P.(C).No.20532/2010 & con. Cases 25 compensation is also seen paid to various claimants in connection with the said proceedings. The said documents clearly indicate that the lands, in respect of which the petitioners trace the title to the assignments effected in the 1960's, and on which the quarrying activities are now being carried on, are lands that do not belong to the State Government any more and further, are not Forest lands for the purposes of the 1980 Act.
16. It is also significant to note, in this regard, that the Supreme Court had, in its judgment dated 12.12.1996 in W.P.(Civil) 202/95, directed the State Governments to constitute, within a period of one month, a committee to identify "Forests, areas which were earlier forests but subsequently degraded, denuded or cleared and areas covered by plantation trees". The committees were directed to give their report within a month of being constituted. Acting on the directions of the Court, the State Government through a notification G.O.(Rt) 15/97/F&WLD dated 10.01.1997, constituted an expert committee with Sri. V. Gopinathan, Conservator of Forests, Working Plan and Research Circle, Thiruvananthapuram as the Chairman-cum- Convenor. In the report submitted by the said committee before the W.P.(C).No.20532/2010 & con. Cases 26 Supreme Court, the Mookunnimala area does not find a mention.
17. The upshot of the aforesaid discussion, therefore, is that the lands, in respect of which the quarrying leases covered by these writ petitions have been granted, cannot be seen as Forest Lands for the purposes of invoking the provisions of the Forest Conservation Act, 1980. This issue is answered accordingly, in favour of the said petitioners.
Re: Issues (ii) & (iii):
It is the case of the petitioners in W.P(C).Nos.14639/2012, 17088/2011, 20532/2010, 32619/2015 and 40532/2016, that the lands, on which quarrying activities are being carried on, are lands that were originally assigned in terms of the Kerala Government Land Assignment Act, read with the Special Rules for Assignment of Government Lands for Rubber Cultivation, 1960. It is contended, placing reliance on the judgment of this Court in W.P.(C). No.9605/2008, which was affirmed by a Division Bench of this Court, as well as by the Supreme Court, which dismissed the SLP preferred against the Division Bench judgment, that the quarrying activities on W.P.(C).No.20532/2010 & con. Cases 27 the assigned lands virtually amount to a breach of the terms of assignment, which is not permissible. To appreciate the said contention it would be necessary to notice the relevant clauses in the order of assignment issued in respect of the assigned lands. They read as under:
"1. On assignment the assignee shall be liable to pay:-
(i) Value of the land at 16% of the rate per acre fixed by Government subject to a minimum of Rs.40 per acre.
(ii) 25 per cent of the land value arrived at 16 percent as mentioned in condition (i) above as a premium in consideration of the loss of Forest Revenue to Government;
(iii) Survey and demarcation charges of the assigned land as fixed by Government.
2. All amounts due to Government under rule 1 above shall also be a charge on the land.
3. The assignee or his successor in interest shall ordinarily reside in the land assigned.
4. The land assigned will be about 1.41 hectares, in area of which 1.21 hectares shall be put under Rubber cultivation and the remaining area shall be used for the construction of a dwelling house and for a domestic garden, if so desired by the assignee.
5. The registry shall be liable to be cancelled for contravention of conditions 1 to 3 above or the conditions specified in the parra.
6. ..............
7. ..............
8. ..............
W.P.(C).No.20532/2010 & con. Cases 28
9. ..............
10. The assignee shall not use the land or suffer it to be used except for the purposes for which it is assigned.
11. ............
12. ............
13. The existing and customary rights of Government and the public in roads, Paths, rivers, streams, channels etc. through or bordering the land, and the right of Government in mines and quarries subjecent to the said land are reserved and are in no way affected by the grant."
18. The assignment of the lands, in the instant cases, was pursuant to the provisions of Rule 8 of the 1960 Rules, which reads as under;
"8. On the expiry of the period of licence, the Government may assign such lands to the licensee by public auction or on registry subject to such conditions and restrictions as they may deem fit to impose. The procedure laid down in Sections 4 and 5 of the Kerala Land Assignment Act shall be followed in making such assignments."
19. Sections 4 and 5 of the Kerala Government Land Assignment Act, 1960, read as follows:
4. Procedure to be followed before Government lands are assigned:- (1) When any Government land is proposed to be assigned by the prescribed authority, otherwise than by way of lease W.P.(C).No.20532/2010 & con. Cases 29 or licence, the Tahsildar of the taluk in which the land is situate or any officer empowered by the Government in this behalf shall notify in the prescribed manner that such land will, by public auction or otherwise, be assigned, and call upon those who have got any claim to such land to prefer to him their objections, if any, in writing, within a time which shall be specified in such notification.
(2) If any objection is preferred within the time specified in the notification, the Tahsildar or such other office shall enquire into the same and pass an order in writing either accepting or rejecting the claim in full or in part and intimate in writing the fact of such disposal to the claimant.
(3) For the purposes of the enquiry under sub- section (2) the officer making the enquiry shall have all the powers conferred upon the Collectors and Tahsildars by the law for the time being in force regarding summoning of persons for disposal of matters connected with revenue administration.
5. Order of assignment:- (a) when the time fixed in the notification under sub-section (1) of Section 4 has elapsed and no objection has been preferred; or
(b) when any objection preferred is rejected and-
(i) the time for preferring an appeal from the order has elapsed and no appeal has been preferred; or
(ii) when an appeal has been preferred and the appeal is, rejected by the appellate authority the land may, subject to such rules as may be made by the Government in this behalf, be assigned by the prescribed authority."
20. It is not in dispute in these cases that the land was validly W.P.(C).No.20532/2010 & con. Cases 30 assigned to the predecessors in interest of the present landowners. The only issue to be considered is whether the use of the land for quarrying activities could be seen as a violation of the conditions of the assignment, leading to a cancellation of the assignment itself. It can be seen from a perusal of the relevant clauses of the order of assignment extracted above that clause 5 contemplates a cancellation of the Registry only for contravention of conditions 1 to 3 in the order of assignment or the conditions specified in the Patta. Condition 1 of the Patta reads as follows:
"1. The assignee shall not use the land or suffer it to be used except for the purposes for which it is assigned"
21. If one views the assignment as solely for the purposes of rubber cultivation, perhaps it could be contended that the use of the assigned land for any other purpose, including quarrying activities, would entail a cancellation of the Registry. One cannot, however, ignore clause 13 of the order of assignment that expressly reserves to the Government its existing and customary rights, including its rights in mines and quarries subjacent to the land. In my view, this express W.P.(C).No.20532/2010 & con. Cases 31 reservation, by the Government, of its rights in mines and quarries, enables the Government to grant leases and permits for exploitation of minerals subjacent to the land, the ownership of which vests with the Government. Through the grant of quarrying leases, therefore, the Government must be seen as exercising its sovereign rights over the minerals subjacent to the assigned land, a right that it had reserved to itself while assigning the land in question. It is also relevant to note that the quarrying leases in the instant cases were all signed for and on behalf of the Governor of the State and are, therefore, Government Contracts that satisfy the requirements of Article 299 of the Constitution of India. In the decision of this court in W.P.(C). No.9605/2008, the learned single judge did not have to consider the effect, of the grant of a quarrying lease, on the assignment of land. The said case involved the grant of a quarrying permit by the Geologist, based on a possession certificate issued by the Village Officer, and the court found that the mere obtaining of a quarrying permit did not imply that a permission had been obtained from the Government to undertake quarrying activities by ignoring the specific conditions of assignment. In my view the facts in the instant cases are clearly distinguishable and further, in view of the Government having W.P.(C).No.20532/2010 & con. Cases 32 exercised its executive power while granting the quarrying leases, the quarrying activities cannot be seen as violative of the conditions governing the assignment of the lands in question. For the same reasons, I also do not find merit in the contention advanced on behalf of the State Government that the quarrying leases obtained by the leaseholders are liable to be cancelled on the ground that they were obtained without a proper disclosure of the nature of the lands in respect of which the leases were applied for and obtained, and the restrictive covenants that applied to the said land. The Government having exercised its executive power while granting quarrying leases, pursuant to an express reservation of the power at the time of assignment of the lands, cannot be heard to say that it was not aware of the basic purpose for which the lands were assigned. Thus, I answer issues (ii) and (iii) in the negative and in favour of the quarrying leaseholders.
Re: Issue (iv):
The issue of whether the holder of a quarrying lease issued prior to 18.05.2012, and covering an extent of less than 5 Hectares, is required to obtain an environmental clearance certificate for W.P.(C).No.20532/2010 & con. Cases 33 continuing with his quarrying activities, has already been decided by a Division Bench of this court in All Kerala River Protection Council v. State of Kerala - [2015 (2) KLT 78], where it was held that such quarrying lease holders need obtain the environmental clearance certificate only when the lease comes up for renewal. Accordingly, following the said decision of this court, issue (iv) is answered in the negative and in favour of the quarrying leaseholders. In the result:
(1) W.P.(C).Nos.10238/2012, 12116/2012, 10212/2012, 12277/2012, 12101/2012, 15915/2012, 22237/2012, 610/2017, 613/2017, 644/2017 are allowed by quashing the stop memos impugned therein, and answering the issues framed in favour of the petitioners therein.
Further, taking note of the fact that the petitioners were forced to stop their quarrying activities pursuant to the stop memos issued to them, I make it clear that the period for which the petitioners had to stop their quarrying activities during the pendency of these writ petitions shall be added to the validity period of their existing quarrying leases, and the validity period of the quarrying lease extended accordingly by the State Government.
W.P.(C).No.20532/2010 & con. Cases 34 (2) W.P.(C).Nos.20532/2010, 17088/2011, 14639/2012, 32619/2015 and 40532/2016 are dismissed.
(3) The Court places on record its appreciation for the efforts taken by the learned senior counsel Sri. Bechu Kurian Thomas, the Additional Advocate General Sri. Ranjith Thampan and the Amicus Curiae Sri. Hareesh Vasudevan, all of whom made available abundant literature on the subject matter of these writ petitions. While a perusal of the said material greatly aided this Court in arriving at its findings, a reference to all the material referred to has been avoided in this judgment in the interests of brevity.
Post Script:
Before parting with these cases, and taking note of the findings of the study done at the instance of the Kerala Forest Research Institute, the salient points of which have been adverted to in the introductory paragraph of this judgment, this court is of the opinion that the time has probably come for the State Government to reconsider its policy with regard to grant of mining/quarrying leases and permits. The State Government has to remind itself of its role as a W.P.(C).No.20532/2010 & con. Cases 35 guardian of the natural resources within the State and introduce measures to check the indiscriminate grant of mining/quarrying leases and permits. While the present system of grant of mining/quarrying leases relies, to a large extent, on the mining plan and other documents submitted by the project proponent, with the State Government's role being limited to approving the said plan and granting mining leases/permits, the increasing instances of environmental degradation, and pollution related issues, that are voiced by the citizens of the State ought, in my opinion, to spur the State Government into adopting a pro-active role while granting mining leases and permits. It must keep in mind the doctrine of Public Trust, which was developed as a legal theory by the ancient Roman Empire, and was founded on the idea that certain common properties such as rivers, seashore, forests and the air were held by the Government in trusteeship for the free and unimpeded use of the general public. These resources were deemed to be of such great importance to the people as a whole that it was seen as wholly unjustified to make them the subject of private ownership. The said resources being a gift of nature, it was felt that they should be made freely available to everyone irrespective of the status in life. The W.P.(C).No.20532/2010 & con. Cases 36 doctrine therefore enjoins upon the Government to protect the resources for enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. In Illinois Central Railroad Co. v. People of the State of Illinois - 146 US 387: 36 L.Ed 1018 (1892) the US Supreme Court articulated the principle that, when a State holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct that is calculated either to relocate that resource to more restricted uses or subject public uses to the self-interest of private parties. Taking cue from the said decision, the doctrine of public trust was declared, by our Supreme Court, to be part of the law of the land, in M.C.Mehta v. Kamal Nath - [(1997) 1 SCC 388]. It was held that;
"The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership."
The public trust doctrine has been used, over the years, to forge W.P.(C).No.20532/2010 & con. Cases 37 a number of allied principles through which courts have, to a significant extent, checked environmental degradation, as also large- scale depletion of precious natural resources, while at the same time ensuring that developmental activities are not completely curtailed or prohibited. Some of these principles are;
(i) The principle of sustainable development, which advocates the striking of a balance between the need for protection of environment and the competing need to engage in developmental activities;
(ii) The precautionary principle, that requires the State to take environmental measures to anticipate, prevent and attack the causes of environment degradation, and further clarifies that lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The principle also lays the onus of proof on the actor to establish that its actions are environmentally benign;
(iii) The polluter pays principle, that penalizes a person who has caused pollution and;
(iv) The principle of inter-generational equity, that W.P.(C).No.20532/2010 & con. Cases 38 holds that the present generation has no right to deplete all the existing resources and leave nothing to the next and future generations.
The aforesaid principles are not, in my opinion, to be treated as entries in a one-time checklist maintained by the State Government, prior to the grant of permission to exploit mineral resources, or undertake any activity that has serious environmental implications, but are to be applied periodically, during the implementation stages of the permitted activity as well, so that any act, that has the potential to cause damage to the environment or destruction/depletion of the natural resource, is arrested at the earliest stage after its detection. Only through such constant supervision, of permitted activities in relation to natural resources, will the State be able to discharge its duty as a trustee of the natural resources for the benefit its people. Ideally, therefore, the State Government should examine, on a case-to- case basis, whether there is a need to grant a quarrying lease/permit in the area or to renew such leases/permits, taking into account the availability of natural resources, the report of the Bio-Diversity Boards, the impact that such activity would have on the ecological W.P.(C).No.20532/2010 & con. Cases 39 balance of the region and other environmental factors. The data required for such a scrutiny should also be collected and analysed by the Government itself, rather than depending on a report submitted by the project proponent, which could well be a self serving one.
I conclude by observing that, while this court is aware of its constitutional limitations and does not propose to advise the State Government on policy issues, it does hope that the State Government will take serious note of the dangers that can result from an indiscriminate grant of mining leases and permits, and adopt pro- active measures to avoid such eventualities in future.
A.K.JAYASANKARAN NAMBIAR JUDGE prp/