K P Granite Industries v. Karavaram Grama Panchayat and State of Kerala and District Geologist

W.A.No. 105/2022 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 ## WA NO. 105 OF 2022 JUDGMENT DATED 07.12.2021 IN WP(C) 21760/2021 OF HIGH COURT OF KERALA ## APPELLANTS/RESPONDENTS 2 & 3: - 1 KARAVARAM GRAMA PANCHAYAT KARAVARAM P.O, THIRUVANANTHAPURAM, PIN 695 605 REPRESENTED BY ITS SECRETARY - 2 THE SECRETARY KARAVARAM GRAMA PANCHAYAT,KARAVARAM P.O, THIRUVANANTHAPURAM, PIN 695 605 BY ADVS. BIJU BALAKRISHNAN V.S.RAKHEE K.J.GISHA AJMAL P. PARVATHY S.R. ## RESPONDENTS/PETITIONER & RESPONDENTS 1 & 4 IN THE WRIT PETITION: - 1 K P GRANITES A REGISTERED PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER R.J KARUNANIDHI, AGED 62 YEARS, S/O. JAYARAMAN ACHARI, T.R SUKUMARAN NAIR ROAD, PERUMTHANNI, THIRUVANANTHAPURAM 695 008. - 2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. - 3 THE DISTRICT GEOLOGIST W.A.No. 105/2022 : 2 : DEPARTMENT OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O, THIRUVANANTHAPURAM 695 004. R1 BY ADV G.SREEKUMAR (CHELUR) R2 & R3 BY SRI. TEK CHAND SR. GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No. 105/2022 : 3 : ## **Dated this the 14[th ] day of February, 2022.** ## **JUDGMENT** ## **SHAJI P. CHALY.** Respondent Nos. 2 and 3 in W.P.(C) No. 21760 of 2021 have filed this appeal challenging the judgment of the learned single Judge dated 07.12.2021, by which the learned single Judge has allowed the writ petition and directed as follows: 7. Having considered the contentions advanced, I am of the opinion that since the Panchayat had requested for a clarification from the Director of Panchayats, who had required the Panchayat to approach the Director of Mining and Geology for a clarification and since Ext.P16 clarification appears to have been issued by the Director of Mining and Geology, the Panchayat is liable to take a decision on the application for D & O licence, taking note of the clarification issued by the Director of Mining and Geology, which is produced as Ext.P16. There will, accordingly, be a direction to the Panchayat to take up the application for D & O licence submitted by the petitioner and to consider and pass orders on the same, taking note of Ext.P16 clarification. The petitioner shall make available a copy of Ext.P1 as well as the earlier lease deed entered into by the petitioner with the District Geologist on 11.4.2012 before the Panchayat for consideration. The application shall be considered and appropriate orders passed within a period of three weeks from the date on which W.A.No. 105/2022 : 4 : the petitioner produces the documents as directed above before the Panchayat.” 2. Brief material facts for the disposal of the appeal are as follows: The writ petitioner is engaged in quarrying granite 'dimension stones' in the property covered by Ext. P2 order dated 27.02.2012 issued by the Director of Mining and Geology recommending execution of the quarrying lease deed under the Kerala Minor Mineral Concession Rules, 1967 ('Rules, 1967' for short) and as per the survey map issued by the Tahsildar, Chirayinkeezhu, subject to the conditions prescribed thereunder, for a period of 20 years. 3. The case of the writ petitioner is that the law in respect of securing environmental clearance for a quarry with less than 5 hectares has been explained by the Apex Court in Ext. P2 order dated 27.02.2012 in I.A. Nos. 12-13 of 2011 in SLP (C) No. 19628-19629 of 2009 and therefore, according to the writ petitioner, there is no requirement for an environmental clearance certificate from the State Environment Impact Assessment Authority, since the petitioner would not come under the time limit fixed in accordance with Ext. P2 order of the Apex Court. It is also submitted that the Pollution Control Board has issued the consent to operate up to the year 2026 and all other W.A.No. 105/2022 : 5 : statutory formalities have been complied with and the unit of the petitioner is also having a dangerous and offensive trade licence as per the provisions of the Kerala Panchayat Raj Act, 1994 ('Act, 1994' for short). However, at the time when the renewal was sought for, the second appellant/third respondent i.e., the Secretary of the Karavaram Grama Panchayat, insisted that environmental clearance had to be obtained. 4. The case projected by the writ petitioner is that such an insistence made by the Secretary of the Grama Panchayat is illegal, since it runs contrary to the directives contained in Ext. P2 order of the Hon'ble Supreme Court dated 27.02. 2012, wherein it was ordered that the leases of minor minerals, including their renewal for an area of less than 5 hectares be granted by the State/Union Territories only after getting environmental clearance from the Ministry of Environment and Forests. It was in the aforesaid background that the writ petition was filed, seeking directions to the appellants to consider the application for license without insisting for environmental clearance. 5. The learned single Judge has found that since the Panchayat had requested for a clarification from the Director of Panchayats and who, in turn, required the Panchayat to approach the Director of Mining and Geology for clarification and since Ext. P16 clarification W.A.No. 105/2022 : 6 : appears to have been issued by the Director of Mining and Geology, the Panchayat is liable to take a decision on the application for D & O licence, taking note of the circular issued by the Director of Mining and Geology as per Ext. P16. It is, thus, challenging the legality and correctness of the judgment of the writ court, the Panchayat and the Secretary have preferred the appeal . 6. The paramount contention advanced by the appellants is that though the writ petitioners have submitted Ext. P7 application dated 25.01.2021 seeking issuance of licence under Sections 232 and 233 of the Act, 1994 to conduct the quarry operations in an extent of 1.0670 hectares of land comprised in survey Nos. 150/1, 150/2 and 150/3 of Karavaram Village, Chirayinkeezhu Taluk, Thiruvananthapuram District, the same was not issued to them, since they have obtained only a quarrying grant on 16.01.2012, evident from Ext. P1, which would not extend to them the benefit of the order of the Apex Court referred to supra as there was no subsisting lease arrangement on the date of the order of the Apex Court. It is also pointed out that, it is specifically mentioned in the order that the quarrying lease for 20 years would be granted to the writ petitioner from the date of execution of the quarrying lease deed under the Rules, 1967. 7. But, fact remains, along with Ext. P7 application dated W.A.No. 105/2022 : 7 : 25.01.2021, the writ petitioner has produced a lease deed dated 19.10.2013 before the appellants, which is after the date of the order of the Apex Court ie., 27.02.2012, and thus, the environmental clearance certificate is mandatory to conduct quarrying operations below 5 Hectares of property. It was, therefore, that the appellants have sought for clarification from the District Geologist, the third respondent, as well as the Director of Panchayats as to whether environmental clearance certificate from the State Environment Impact Assessment Authority is required before granting licence under Sections 232 and 233 of the Act, 1994. 8. It is also submitted that the issue with respect to the requirement of the environmental clearance on the basis of Ext. P2 order of the Apex Court was considered by a Division Bench of this Court in _**All Kerala River Protection Council v. State of Kerala**_ (2015(2) KLT 78), wherein, according to the appellants, it is held that environmental clearance certificate is required for quarrying lease executed after 18.05.2012, the date on which the Government of India, Ministry of Environment and Forests has passed orders insisting for environmental Clearance for conducting quarry in less than 5 hectares. The sum and substance of the contentions advanced by the appellants is that the learned single Judge did have occasion to W.A.No. 105/2022 : 8 : consider these material aspects, involved in the writ petition, since relevant and material documents were not produced by the writ petitioner, and it was accordingly that the appellants were directed to consider Ext. P7 application submitted by the writ petitioner on production of Ext. P1 order dated 16.01.2012 issued by the Director of Mining and Geology as well as the earlier lease deed dated 11.04.2012. 9. We have heard the learned counsel for the appellants Sri. Biju Balakrishnan, learned counsel for the first respondent/writ petitioner, Sri. G. Sreekumar (Chelur) and Sri. Tek Chand, learned Senior Government Pleader for the State and its officials, and perused the pleadings and materials on record. 10. In fact, in order to understand the contentions raised by the rival parties appropriately, we directed the learned counsel for the writ petitioner to produce certain documents, including the proceedings of the District Registrar (General), Thiruvananthapuram with respect to the adjudication of the stamp duty required for the lease deed on the basis of Ext P1 order dated 16.01.2012. 11. The basic facts and the consequential proceedings in regard to Ext. P1 order of the Director of Mining and Geology dated 16.01.2012, execution of Annexure II lease deed dated 11.04.2012 W.A.No. 105/2022 : 9 : pursuant to the same, consequential stamp duty adjudication proceedings, and the lease deed executed by and between the petitioner and the Mining and Geology Department on 19.10.2013 and registered on 30.10.2013, are all admitted facts and now discernible from the records produced in the writ appeal. 12. The question that basically emerges for consideration is whether the lease deed was subsisting on the date of Ext P2 order of the Apex Court, or on 18.05.2012, the date on which the Government of India has passed the order making the environmental Clearance compulsory for a quarry of less than 5 hectares, thus exempting the writ petitioner from acquiring an environmental clearance certificate. A reference to Ext. P1 order dated 16.01.2012 is required to identify and settle the exact issues raised by the rival parties. Ext. P1 order dated 16.01.2012 is an order issued by the Director of Mining and Geology granting quarrying lease to the writ petitioner for a period of 20 years. However, it is clear from the order that the twenty-year period would start to run from the date of execution of the quarrying lease deed under the Rules, 1967. Rest of the conditions contained thereunder may not be of much importance to sort out the issue. 13. It is an undoubted fact, that if the quarrying lease deed was executed after Ext P2 order or after 18.05.2012, necessarily an W.A.No. 105/2022 : 10 : environmental clearance certificate as directed by the Apex Court in Ext. P2 order is required to operate the quarry. The writ petitioner has submitted Ext. P7 application dated 25.01.2021 seeking issuance of licence under Sections 232 and 233 of the Act, 1994 along with the lease deed dated 19.10.2013 executed by and between the petitioner and the Mining and Geology Department, from which it is explicit that, it is after the date of Ext P2 order of the Apex Court and the cut off date of 18.05.2012 of the Government of India. 14. The basic contention advanced by the counsel for the writ petitioners is that, what is to be looked into for the purpose of the requirements in the order of the Apex Court and the cut off date is the order of the Mining and Geology Department issued to the writ petitioner dated 16.01.2012 granting quarrying lease, and since the said order is before both the dates specified above, writ petitioners are exempted from producing the environmental clearance certificate from the State Environment Impact Assessment Authority. 15. Anyhow, the additional documents produced in the writ appeal as Annexures I to VII were not produced before the learned single Judge. From the additional documents produced in the appeal, we could gather that on the basis of Ext. P1 order dated 16.01.2012, proceedings were initiated for adjudicating the stamp duty of the W.A.No. 105/2022 : 11 : quarrying lease and accordingly, as per Annexure IV proceedings dated 10.05.2012 of the District Registrar General, stamp duty was fixed at the rate of Rs. 84,445/-. However, as per Annexure V proceedings dated 29.10.2013, an additional stamp duty of 60,803/- was also fixed. 16. It is true, as per Annexure VI, a quarrying lease was actually executed by and between the parties on 11.04.2012, i.e., three months from the date of Ext. P1 order of grant, but subsequent to Ext.P2 order of the Apex Court. It was thereafter that Annexure VII lease deed was executed on 19.10.2013, which was the lease deed produced by the writ petitioner before the appellant Grama Panchayat for securing licence from the Panchayat. 17. On a reading of Annexure VII lease deed dated 19.10.2013, we find that the lease deed is registered only on 30.10.2013. Registration of a lease deed is mandatory as per Section 33 of the Rules, 1967, which specifies that all quarrying leases granted under the chapter shall be registered in accordance with the provisions of the Indian Registration Act, 1908. It is true, on registration of any documents, by virtue of Section 47 of the Indian Registration Act, 1908, the lease will start operating from the date of execution i.e., in the instant case, 19.10.2013. W.A.No. 105/2022 : 12 : 18. Apparently, stamp duty was not adjudicated before the cut off dates and the same was adjudicated subsequently, and the lease deed dated 19.10.2013 was finally registered on 30.10.2013. These aspects are quite evident and clear from the documents produced by the writ petitioners in the appeal on our directions. Therefore, the question remains to be considered is whether the cut off date is to be calculated taking into account Ext. P1 order dated 16.01.2012 or the lease deed finally executed and registered as per Annexure VII executed on 19.10.2013 and registered on 30. 10.2013. 20. The paramount contention advanced by the learned counsel for the writ petitioners is that the subject issue was considered by the Division Bench of this Court in A _**ll Kerala River Protection Council**_ (supra), and he has invited our attention to paragraph 56 of the judgment, which reads thus: “56. Order of the Apex Court in Deepak Kumar’s case (supra) is in the nature of an interim order which is clear by the words used “in the meanwhile”. The order directed that leases of minor minerals including their renewal for an area of less than five hectares be granted by the State/Union Territories only after getting environmental clearance from MoEF. The order thus used the words “be granted” which clearly meant that it referred to the leases to be granted, after the Government of India’s order dated 18.05.2012. Paragraph 3 of the order used the word “henceforth” which clearly meant that the order was to be operated with regard to leases and renewals which were to be granted for an area less than 5 hectares W.A.No. 105/2022 : 13 : after the issue of the order.” 21. According to the learned counsel for the writ petitioner, the Division Bench has explained the order passed by the Apex Court in Ext P2, and held that the date of the order that grants lease is to be reckoned for all practical purposes. However, we are unable to agree with the same, because it is explicit and clear therefrom that the requirement is a quarrying lease prior to the cut off date. Apart from the same, the approach made by the Division Bench is clear from the directions contained in paragraph 82 of the judgment, which reads thus: 82. In view of the foregoing discussion, we come to the following conclusions. (i) In case where quarrying/mining/lease which were existing on the date of issuance of Notification dated 14.09.2006 or on the date of issue of the order dated 18.05.2012 by the Government of India, Ministry of Environment and Forests with regard to area less than 5 hectares no environmental clearance with regard to extraction of minor mineral is required. Notification dated 14.09.2006 contemplated obtaining environmental clearance only with regard to new projects/new activities. (ii) Government Order dated 10.01.2014 cannot be relied on by the parties in view of the restraint order issued by the National Green Tribunal dated 27.09.2013 till such time the restraint order continues. (iii) By amendment of Section 14 by Act 37 of 1986 making Section 4 applicable to minor minerals also the provision contained in Section 4 shall be applicable to mining operations by a person W.A.No. 105/2022 : 14 : holding mining lease or any other kind of mineral concession. It cannot be accepted that mining operation with effect from 10.02.1987 cannot be continued by a person holding any other mineral concession apart from mining lease. (iv) Judgment of the Apex Court in Deepak Kumar’s case (supra) did not contemplate environmental clearance for an area less than 5 hectares with regard to existing mining lease/mining permits on the date of judgment. Paragraph 29 of the judgment clearly directed that leases of minor minerals including their renewal for an area of less than five hectares be granted by the State/Union Territories only after getting environmental clearance. (v) Environmental clearance as contemplated by Notification dated 14.9.2006 required environmental clearance for new projects/new activities. (vi) The Notification dated 14.09.2006 having been applied vide order dated 18.5.2012 of the Government of India, Ministry of Environment and Forests all mining operations for new project and new activities for an area less than 5 hectares after 18.5.2012 required environmental clearance carried through either a mining lease or mining permit. (vii) Interim order passed by the Apex Court on 27.01.2012 was intended by the Supreme Court to operate till the Rules have been framed by the States taking into consideration the guidelines and recommendations of the Ministry of Environment and Forests. (viii) As per Rule 68 no mining/quarrying operations can be permitted without there being an approved mining plan. But such rule is subject to exception as engrafted in Rule 66, i.e., for existing lease holders, time has been allowed to submit mining plan.” 22. Therefore, reading together paragraphs 56 and 82 of the judgment, we have no doubt in our mind that the date to be reckoned W.A.No. 105/2022 : 15 : for the purpose of the environmental clearance certificate is the order of the Government of India dated 18.05.2012; that is to say, on which date there should have been a mining lease in force. This is quite clear from the directions contained in paragraph 82 of the judgment. 23. In that view of the matter, we are of the view that the writ petitioner is to secure the environmental clearance certificate from the State Environment Impact Assessment Authority for operating the quarry. This approach made by us would further be strengthened, if a reference is made to Ext. P15 proceedings dated 11.10.2013 issued by the Director of Mining and Geology and it reads thus: ## **“PROCEEDINGS OF THE DIRECTOR OE MINING AND GEOLOGY** Sub: Mines and Minerals GDS-Quaryirg lease to M/s. K.P.Granite Indistries, T.C. 36/999 SRISANTH, Perunthanni, Thiruvananthapuram-8 period of execution extension sanctioned–orders issued. Ref: 1. Kerala Minor Mineral Concession Rules, 1967 2. Pro.Order No. 707/2011-12/2095/M3/2011 dt. 16.1.2012 3. Application dt. 12.08.2013 from M/s. K.P.Granite, Industries, Tvpm 4:Ltr.No. 2410/DOT/MU2010 dt 4.9..2013 from the Geologist, District Office, Tvpm. —--------------------------------------------------------------------------------------------- No,477/2013-2014/2095/M3/2011 Dated, Tvpm., 11.10.2013 —--------------------------------------------------------------------------------------------- ## **ORDER** As per the proceedings order 2nd cited a quarrying lease was granted to M/s. K.P. Granite Industries, T:C.36/999 SRISANTH Perunthanni, W.A.No. 105/2022 : 16 : Thiruvanathapuram-8 to quarry Granite "Dimension, Stone” over an area of 1.0670 hectares of patta land comprised.in Sy. Nos. 150/1, 150/2 & 150/3 of Karavararm Village, Chirayinkeezhu Taluk, Thiruvananthapuram District for 20 (twenty only) years from the date of execution of quarrying lease deed under Rules 1st cited. Accordingly, the lease deed, has been executed between-the lessee and the District Geologist Thiruvananthapuram on 11.04.2012. As per Rule 32 of the Kerala Minor Mineral Concession Rules, 1967 the lessee shall execute a.quarrying lease deed within a period of three months from the date of order in Form H and shall be registered in accordance with the provisions of the Indian Registration Act, 1908. But, the lessee le., M/s. K P Granite Industries vide reference 3 cited has requested to permit them to reexecute the lease deed due to some medical problem. As per reference 4 cited, the Geologist, District Office, Thiruvananthapuram has informed that no mining activities have been done in the lease area and recommend for re-execution of the quarrying lease deed. In the above circumstance, the following orders are issued: Permission is granted to the Geologist, District Office, Thirüvananthäpuram and M/s. K P Granite Industries, T.C. 36/999, ‘SRISANTH’, Perunthanni, Thiruvananthapuram-8 for the re-execution of deed within a period of 3 months on the quarrying lease granted vide proceedings order 2nd cited. sd/- ## **A.Prabhakumar,** ## **DIRECTOR OF MINING AND GEOLOGY.”** 24. Analysing the facts, circumstances and the law discussed above, we are undoubtedly of the opinion that interference is required to the judgment of the learned single Judge. Accordingly, we set aside the judgment dated 07.12.2021 in W.P.(C) No. 21760 of 2021. However, we make it clear that this judgment will not stand in the way W.A.No. 105/2022 : 17 : of the Panchayat considering the application submitted by the writ petitioner on production of the environmental clearance from the statutory authority. Upshot of the above discussion is that, the writ appeal is allowed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_ W.A.No. 105/2022 : 18 : ## **APPENDIX** APPELLANT'S ANXNEXURES: ANNEXURE I: TRUE COPY OF THE ORDER PASSED BY THE DIRECTOR OF MINING AND GEOLOGY DATED 16.01.2012. ANNEXURE II: TRUE COPY OF THE COMMUNICATION OF THE DISTRICT GEOLOGIST DATED 11.04.2012. ANNEXURE III: TRUE COPY OF THE CHALLAN RECEIPT DATED 10.04.2012. ANNEXURE IV: TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT REGISTRAR GENERAL DATED 10.05.2012. ANNEXURE V: TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT GENERAL (AUDIT) DATED 29.10.2013. ANNEXURE VI: TRUE COPY OF THE LEASE DEED DATED 11.04.2012. ANNEXURE VII: TRUE COPY OF THE INDENTURE MADE DATED 19.10.2013. ## RESPONDENTS' ANNEXURES: NIL /TRUE COPY/ rv PS To Judge.