Jaison Basil v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 9[TH] DAY OF JULY 2021 / 18TH ASHADHA, 1943 WP(C) NO. 24337 OF 2017** ## **PETITIONER:** **JAISON BASIL, AGED 55 YEARS, S/O.BASALEOUS, KANDAMKARY HOUSE, S.T JUDE NAGAR, KILIYANTHARA P.O, KANNUR 670 706.** **BY ADVS. SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.T.C.KRISHNA SMT.PREETHI RAMAKRISHNAN SRI.PRATAP ABRAHAM VARGHESE** ## **RESPONDENTS:** - **1 THE CHIEF SECRETARY, STATE OF KERALA, GOVERNMENT SECRETARIAT, THRIUVANANTHAPURAM 695 001** - **2 THE PRINCIPAL SECRETARY TO INDUSTRIES, STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM 695 001** - **3 THE REVENUE PRINCIPAL SECRETARY, STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **4 THE DIRECTOR, MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, THIRUVANANTHAPURAM 695 004** - **5 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, KANNUR 670 003.** - **6 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, KASARAGODE 671 121** - **7 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST,MINING AND GEOLOGY DEPARTMENT, KOZHIKODE 673 001** - **8 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, MALAPPURAM 676 503** WP(C) NO. 24337 OF 2017 :: 2 :: - **9 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, PALAKKAD 678 014.** - **10 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT,THRISSUR 680 003** - **11 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST,MINING AND GEOLOGY DEPARTMENT, ERNAKULAM 682 030** - **12 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, IDUKKI** - **13 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, KOTTAYAM 686 002** - **14 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, PATHANAMTHITTA 689 645** - **15 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, KOLLAM 691 507** - **16 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, THIRUVANANTHAPURAM 695 001** - **17 M/S ARANHIKKAL GRANITE UNIT, PATHAPPIRIYAM P.O, MALAPPURAM, PIN 676 123.** - **18 K.A ABRAHAM, MANAGING PARTNER, POABSON GRANITE PRODUCTS PVT LTD, THELAKKADU P.O, PERINTHALMANNA 679 325** - **19 P.K MOHAMMED ASHRAF, MANAGING PARTNER, HIGH TECH METALS, NADUVAKKADU, OORAKAM, MALAPPURAM 676 519** - **20 THE MANAGING DIRECTOR, PORTLAND GRANITE (P) LTD. PULIKKAL P.O, MALAPPURAM, PIN 673 637** - **21 M/S ASSOCIATES ENGINEERING AND CHEMICALS, THAVANOOR P.O, MALAPPURAM 679 573** - **22 MS. LUXURY SAND PRIVATE LIMITED, CB 122, RIVIERA RETREAT, THEVARA WATER FRONT, THEVARA, KOCHI 682 013** - **23 M/S POABS GRANITES PVT LTD, CHULLY P.O, ANKAMALY, ERNAKULAM, PIN 683581** WP(C) NO. 24337 OF 2017 :: 3 :: - **24 GEORGE ANTONY, MANAGING PARTNER, M/S. GK GRANITES, KIZHAKKAMBALAM, ERNAKULAM 683 562.** - **25 MANAGING PARTNER, M/S. G K GRANITES, CHULLY P.O, ANKAMALY, ERNAKULAM 683581** - **26 GEORGE ANTONY, MANAGING DIRECTOR, CRYSTAL GRANITES, CHULLY P.O, ANKAMALY, ERNAKULAM 683581** - **27 JOJI P.L, PUTHUSSERY HOUSE, THABORE, P.O MOOKKANNOOR, ERNAKULAM PIN 683577** - **28 JEOMON JOSEPH, EDATHALA HOUSE, NEELESWARAM P.O. ERNAKULAM, PIN 683574** - **29 SLABS AND AGGREGATES, PROPRIETOR, VARKEYSONS ENGINEERS, KODAYIRUPPU P.O, KOLENCHERY 682 308** - **30 M/S COCHIN GRANITES, PULICKAL ASSOCIATES, NORTH MAZHUVANNOOR P.O, CHEENIKUZHY, PERUMBAVOOR 686 669** - **31 MANAGING PARTNER, MARTHOMA GRANITES, EDAVETTY P.O, THODUPUZHA, IDUKKI 685 588** - **32 ABY DOMINIC, MANAGING PARTNER, KARIPARAMBIL CRUSHER WORKS, POOVANCHY, MUNDAKKAYAM 686 513** - **33 M/S POABS ROCKS PRODUCTS, NELLICKAPARAMBU P.O, MUKKAM, PIN 673 602** - **34 P.T DAVIS, MANAGING PARTNER, THOMSON METALS, KOMBIDINJAMAKKAL, THAZHEKKADU P.O, THRISSUR 680 683** - **35 SRI SADANADAN, ABADYIL NEW BUNGLAVU, PANNIVIZHA,ADOOR 691 523** - **36 MANAGING DIRECTOR, VIMROCK, GRANITES, THEKKUMALA, VADASSERIKARA, RANNI 689 662** - **37 NAVEEN PHILIP MATHEW, THEKKENEDUMPLACKAL HOUSE, MALLAPPILLY WEST P.O, PATHANAMTHITTA 689 585** **BY ADVS. SR.GOVERNMENT PLEADER SRI.TEKCHAND SRI.N.JAMES KOSHY SRI.SHIBU JOSEPH SRI.P.S.SREEDHARAN PILLAI ALEX ABRAHAM SRI.CHERIAN GEE VARGHESE** WP(C) NO. 24337 OF 2017 :: 4 :: **SRI.ENOCH DAVID SIMON JOEL SRI.P.HARIDAS SRI.P.MARTIN JOSE SRI.PHILIP J.VETTICKATTU SRI.P.PRIJITH SRI.RENJI GEORGE CHERIAN SRI.SHIBU JOSEPH SRI.S.SREEKUMAR SR. SRI.P.K.SURESH KUMAR SR. SRI.K.P.SUDHEER SRI.S.K.SAJU SRI.P.C.SHIJIN SRI.THOMAS P.KURUVILLA SRI.P.VISWANATHAN SRI.VINEETH KURIAKOSE SRI.P.M.ZIRAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 24337 OF 2017 :: 5 :: ## **JUDGMENT** Dated this the 9[th] day of July 2021 ## **S.MANIKUMAR, C.J.** Grievance raised in this writ petition is with respect to the functioning of granite quarries operated by respondents 17 to 37, without any environmental clearance. According to the petitioner, grant of lease for mining purpose to these respondents without obtaining prior Environmental Clearance is illegal. Petitioner has also alleged that the respondents are not taking any steps to effectively monitor and check the functioning of these quarries. These quarries are functioning in violation of the directions issued by the Apex Court in _**Deepak Kumar Vs. State of Haryana and others reported in 2012 (4) SCC 629**_ . Hence this writ petition, for the following prayers: - A) Issue a writ of mandamus or other appropriate writ or order, directing the 1[st] respondent to cancel the mining leases issued to respondents 17 to 37 after Exhibit P1 notification and the order of the Honourable Supreme Court in 2012 (4) SCC 629. - B) Hold that the grant of mining lease to respondents 17 to 37 without prior environmental clearance invisaged in Exhibit P1 is arbitrary and illegal. 2. Mr.P.Ramakrishnan, learned counsel for the petitioner has urged various grounds in support of the contentions raised in this writ petition. According to him, for any activity concerning mining of minerals, environmental clearance is a prerequisite. One of the mandatory requirements mentioned in WP(C) NO. 24337 OF 2017 :: 6 :: Ext.P1 notification, dated 14.9.2006 issued by the Government of India, under Section 3(1)(v) and 3(2) of the Environment Protection Act, 1986 is prior environmental clearance from the concerned regulatory authority, before commencement of projects, expansion and modernization of existing project or activity listed in the Schedule to the notification. Mining of minerals is at Sl.No.1 in the schedule. According to the learned counsel, issuance of mining leases in violation of statutory prescriptions is an infringement on the petitioner’s rights under Article 21 of the Constitution of India. 3. We have perused the counter affidavit filed on behalf of respondent No.7/the District Geologist wherein, it is clearly stated that no indiscriminate quarrying operations in the river bed and ground water resources are going on in Kozhikode district. It is further submitted that mining operations in the district are going on with the required environmental clearance issued by the competent authority. Relevant portion of the counter affidavit reads thus: “3. The 33[rd] respondent of the petition is a quarry proponent of Kozhikode District. Three quarrying leases have been granted to this proponent in Kodiyathur Village of Kozhikode District. Out of these three quarrying leases, only one has obtained environmental clearance and this quarry alone is functioning at present and the two other quarries are not working now. The office of the 7[th] respondent conducts inspections occasionally and once it was found that the 33rd respondent was extracting granite building stone from area other than the lease area. 4. The quarrying lease of the 33rd respondent was compounded as per the provisions of Registered Metal Crusher Unit Compounding system. In this system the crusher is compounded in force of the quarrying lease connected with the crusher. As the royalty is realized in compounding manner and based on the production in the crusher there was no restriction for the extraction in quantity of minerals. In this case, before WP(C) NO. 24337 OF 2017 :: 7 :: the institution of mining plan for the quarrying operations, there was no restriction for extraction under this system. The mining plan is prepared for this quarry and it suggests the quantity of mineral to be extracted from a quarry site. After the institution of the mining plan for the quarry operations it is monitored that no excess quantity of extraction is allowed. It is submitted that 20% excess extraction is allowable as per the provisions of the mining plan. It is submitted further that the office of the 7th respondent conducts inspections occasionally to monitor the mining activities within the District. No indiscriminate mining or other such serious illegality could be found out by this office. 5. The 7th respondent did not issue movement permits to mine minerals without environmental clearance after the issue of the Judgment of the Hon'ble Supreme Court in Deepak Kumar v State of Haryana case. No quarrying lease has been seen granted/renewed the above said within the District of Kozhikode after the issue of the abovesaid Judgment of the Hon'ble Supreme Court and so no illegal quarrying is going on in this district. No quarrying operations of such a grade to change the climatic pattern and water resources are seen in this district. The quarry operations in this district are not affecting the life, fundamental right and healthy environment of the public. It is submitted that the mining plan has been introduced in the mining field to propagate sustainable development of minerals. So the mineral resources are protected at a maximum level by these means. No quarrying operations are there in this district violating the statutory prescriptions. 6. It is most humbly submitted that all the quarries in this District are functioning at present with environmental clearance. The Hon'ble Supreme Court in order dated 02.12.2016, in SLP No.30103/2015 ordered to the effect that environmental clearance is mandatory for all types of mining activities. It is submitted that the 7th respondent did not issue movement permits to mine minerals without environmental clearance after the abovesaid order of the Honourable Supreme Court. Hence in the above facts and circumstances, the Writ Petition is devoid of merit and liable to be dismissed.” 4. In the counter affidavit filed on behalf of 4th respondent/ the Director Mining and Geology, Directorate of Mining and Geology, it is averred that Environmental Clearance is mandated only at the time of renewal of lease for WP(C) NO. 24337 OF 2017 :: 8 :: existing lease holders. No lease without Environmental Clearance had been granted, after the direction of the Hon'ble Apex Court in Deepak Kumar's Case. It is also averred that respondents quarry operators are carrying out their activities in accordance with the restriction in the mining plan and also on the strength of various requisite licenses like D&O Licence, Consent to operate, explosive licence etc. Relevant portions of the said counter affidavit read as under: “3. It is respectfully submitted that writ petition is filed by the petitioner mainly aggrieved by the functioning of granite quarries operated by the respondents 17 to 37 without any environmental clearance. The petitioner alleged that these quarries are functioning in violation of the orders of the Hon’ble Supreme Court dated 27.2.2012 in SLP(C) No.19628 - 19629 - Deepak Kumar etc Vs. State of Haryana and others and hence are liable to be interdicted. At this instance it is submitted that the verdict of the Hon'ble Supreme Court in the aforesaid SLP never insists an environmental clearance for existing mining projects. The State of Kerala had ensured that none of the leases for mining operations had been granted without a prior environmental clearance after the promulgation of orders by the Hon'ble Apex Court in the year, 2012. 4. It is submitted that the parliament enacted the Environmental (Protection) Act, 1986 to provide for protection and improvement of environment and matters connected therewith. Section 3 of 1986 Act empowered the Central Government to take measures to protect and improve environment and Section 5 empowered the Central Government to give directions. In exercise of Rule 5(3) of 1986 Rules Central Government issued notification dated 27.01.1994 prohibiting expansion and modernization of any activity or new projects listed in the schedule unless it has been accorded environmental clearance by the Central Government. Thereafter, in supersession of 1994 notification, another notification dated 14.09.2006 was issued where restriction was imposed on construction of new projects or activities or the expansion or modernization of existing projects or activities which were to be undertaken only after getting prior environmental clearance. It is true that "mining of minerals" is a project included in the schedule of Notification. Projects were categorized into A & B and mining of minerals of area of less than 50 Ha and more than 5 Ha were included in category B. WP(C) NO. 24337 OF 2017 :: 9 :: 5. It is submitted that the Hon'ble Supreme Court in Deepak Kumar's case issued direction that "leases of minor minerals including their renewal for an area of less than 5 Ha be granted by the States/Union Territories only after getting environmental clearance from MoEF. It is stated that after the judgment of the Apex Court dated 27.02.2012 in Deepak Kumar's case, MoEF came up with office Memorandum dated 18.05.2012, true copy of the office Memorandum dated 18.05.2012 is produced herewith and marked as Exhibit R4(a). 6. By direction dated 18.05.2012, Government of India included mining areas of less than 5 Ha under the environmental regime as contemplated by notification dated 14.09.2006. Government of India directed that mining projects with lease area upto 50Ha including projects of minor mineral with lease area less than or equal to 5 Ha would be treated as category B. Thus it is clear that even if for lease area less than 5Ha, after order dated 27.02.2012 of the Apex Court in Deepak Kumar's case, Environmental Clearance is required for grant/renewal of mining leases. 7. It is submitted that after the verdict of the Hon'ble Supreme Court in Deepak Kumar's case no quarrying leases were granted/renewed in the State without getting prior Environmental Clearance. It is true that certain quarrying leases with an area greater than 5 Ha were granted after the issuance of EIA Notification 2006, without prior Environmental Clearance. This had happened due to oversight and all such lessees were given instructions to produce Environmental Clearance for continuing quarrying activity in the leased land. A true copy of the instruction transmitted by the respondent to all sub offices for producing Environmental Clearance for continuing quarrying activity in the leased land is produced herewith and marked as Exhibit R4(b). 8. It is reported that few of such operators had approached this Hon'ble Court and obtained favourable orders permitting continuation of operations. The true copy of consolidated details of quarrying leases operating in the State with attributes as area of lease, its status, Environmental Clearance etc. is produced herewith and marked as Exhibit R4(c). 9. It can be seen from the table that 8 of the leases with are greater than 5Ha are not having Environmental Clearance and except one all others have terminated operation due to want of the said requirement. The only operational quarry with lease area greater than 5Ha without Environmental Clearance is in ldukki District and this has been permitted in obedience to the judgment passed by this Hon'ble Court in W.P.(C) No.20554/2015. In that case, the Hon'ble Court has allowed the petitioner to undertake the WP(C) NO. 24337 OF 2017 :: 10 :: quarrying operation in an area 2Ha within the leased land. It is submitted that, the Hon'ble Apex Court had never issued any direction to stop the existing mining projects. The directions are binding for new projects and renewals. 10. It is submitted that, Government have established effective mechanism to monitor the mining activities carried out by the respective quarry operators. Mining activities are pursued in accordance with the approved scientific mining plan as insisted in the KMMC Rules, 2015. Those lease holders who have opted for payment of consolidated Royalty and registration for their own crusher unit (RMCU registration) with leases and crusher units attached can produce and despatch the quantity as allowed in the mining plan; without restricting themselves to the quantity permitted in the lease deed. For lease granted before the enactment of KMMC Rules, 2015, they can also conduct the quarrying operation in accordance with the stipulations in the mining plan. It is worthwhile to point out that the institution of mining plan has effectively reduced the unscientific plunder of mineral wealth thereby safeguarding the environmental values. 11. It is submitted that, respondent quarry operators are carrying out their activities in accordance with the restriction in the mining plan and also on the strength of various requisite licenses like D&O Licence, Consent to operate, explosive licence etc. The state has never compromised the environmental values and implemented the obligation of environmental protection. 12. It is submitted that Environmental Clearance is mandated only at the time of renewal of lease for existing lease holders. No leases without Environmental Clearance had been granted after the direction of the Hon'ble Apex Court in Deepak Kumar's Case.” 5. We have heard the learned counsel for the parties and perused the materials available on record. 6. Sum and substance of the averments made in the counter affidavit filed by the official respondents in this writ petition is that mining operations in the districts are going on with the required environmental clearance issued by the competent authority and no quarrying operations are permitted in the districts without WP(C) NO. 24337 OF 2017 :: 11 :: environmental clearance or prior permissions from the authorities concerned. Placing on record the abovesaid submission, we are of the view that there is no need to issue any reliefs as prayed for in this writ petition. Writ petition is disposed of. **SD/S.MANIKUMAR CHIEF JUSTICE SD/SHAJI P. CHALY JUDGE** jes WP(C) NO. 24337 OF 2017 :: 1 :: ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 14/9/2006 ISSUED BY THE GOVERNMENT OF INDIA** **EXHIBIT P2 TRUE COPY OF REPLY DATED 15/10/2015 RECEIVED UNDER THE RIGHT TO INFORMATION ACT FROM STATE PUBLIC INFORMATION ACT** ## **RESPONDENTS'ANNEXURES:** **EXHIBIT R4(a) TRUE COPY OF THE OFFICE MEMORANDUM DATED 18.5.2012.** **EXHIBIT R4(b) TRUE COPY OF THE INSTRUCTION TRANSMITTED BY THE RESPONDENT TO ALL SUB OFFICES FOR PRODUCING ENVIRONMENTAL CLEARANCE FOR CONTINUING QUARRYING ACTIVITY IN THE LEASED LAND.** **EXHIBIT R4(c) TRUE COPY OF CONSOLIDATED DETAILS OF QUARRYING LEASES OPERATING IN THE STATE WITH ATTRIBUTES AS AREA OF LEASE, ITS STATUTE, ENVIRONMENTAL CLEARANCE ETC.** **// TRUE COPY //** ## **P.S. TO JUDGE**