K. Vasudevan Namboothiri v. State of Kerala and Senior Geologist

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** ## **WP(C).No.14317 OF 2020(L)** ## **PETITIONER/S:** **K.P.VASUDEVAN NAMBOOTHIRI, AGED 72 YEARS PRESIDENT, MARAKKARA EDUCATIONAL AND DEVELOPMENT SOCIETY, REG. NO 2/1966 MARAKKARA, KADAMPUZHA, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.SUJAI SATHIAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 SENIOR GEOLOGIST, DISTRICT OFFICE OF MINING AND GEOLOGY DEPARTMENT, MINIC IVIL STATION, MANJERI, MALAPPURAM 676 505** ## **OTHER PRESENT:** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.14317 OF 2020(L)** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.14317 Of 2020 --------------------------------Dated this the 24[th] day of July, 2020. ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _“1) To issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext P8 to the extent the same insist for environmental clearance certificate for consideration of Ext P6 application._ - _2) To issue writ of mandamus directing the 2[nd] respondent to consider the Ext P6 application in the light of Ext P7 notification and P9 Government Order amending Rule 14 of the Concession Rules 2015._ - _3) Issue such other appropriate writs, orders or directions as this Hon’ble Court deems fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.T.Sethumadhavan, learned Senior Counsel instructed by Smt.Asha Mariam Mathews, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. According to the petitioner, he has already secured Ext.P-4 building permit dated 27.1.2019 issued by the Marakkara Grama Panchayath under the provisions of the Kerala Panchayat Building Rules for constructing a commercial building having an extent of 925 sq.m. in the property having an extent of 87.82 Ares. Further that the petitioner has also secured Ext.P-5 development ::3:: ## **WP(C).No.14317 OF 2020(L)** permit from the said Panchayath authorities for excavation of the soil for laying foundation work in respect of the commercial building covered by Ext.P-1 building permit and the total quantity of earth to be excavated for the said work permitted by Ext.P-5 development permit dated 14.10.2019 is 2832.1 cubic meters. In view of the prescriptions contained in Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 as it existed then, the petitioner has been advised to move an application before the 2[nd] respondent-Geologist seeking for grant of quarrying permit and for consequential permission as the total construction area covered by Ext.P-4 building permit is 925 sq.m., which is above the threshold level of 300 sq.m. mentioned in Rule 14(2) of the Rules. According to the petitioner, no Environmental Clearance is required in such a case from the State Environment Impact Assessment Authority as the total area of the construction is below the threshold limit of 20,000 sq.m. as prescribed in Ext.P-7 Environment Impact Assessment notification issued by the competent authority of the Union Ministry concerned. It also appears that the petitioner has stated in Ext.P-6 application that apart from earth excavation for the abovesaid construction activity, removal of laterite stone up to the permitted depth of 2 meters is involved. The petitioner by way ::4:: ## **WP(C).No.14317 OF 2020(L)** of abundant caution has made those aspects also clear in Ext.P-6 application. The 2[nd] respondent-Geologist has now passed the impugned Ext.P-8 order dated 6.1.2020 directing that the petitioner's application as per Ext.P-6 could be considered only after he secures environmental Clearance from the Environmental Impact Assessment Authority as the proposed construction activity is above 300 sq.m. Ext.P-8 order passed by the 2[nd] respondentGeologist reads as follows: "നന: ഡഡ.ഒ.എന / എന-94/2020. മമൈനഡങങ് & ജഡയയയോളജഡ വകുപങ്, മൈലപ്പുറന ജഡലയോ കയോരരയോലയന മൈഡനഡ സഡവഡൽ യസ്റ്റേഷൻ, മൈയഞ്ചേരഡ email: geo.mal.dmg@Kerala.gov.in Phone: 0483-2760695 തതീയ്യതഡ: 6-1-2020 യപ്രേകഡതൻ ` സതീനഡയർ ജഡയയയോളജഡസ്റ്റേങ്.മൈലപ്പുറന. സസതീകർതയോവങ് ശതീ.കക.പഡ.വയോസുയദേവൻ നമ്പൂതഡരഡ , പ്രേസഡഡണങ്, മൈയോറയോക്കര എഡഡ് **യ** ൂക്കഷണൽ & ഡവലപങ്കമൈനങ് കസയോമസറഡ , മൈയോറയോക്കര, കയോടയോമ്പുഴ, മൈലപ്പുറന ജഡല. മൈയോനരകര , വഡഷയന: മമൈൻസങ് & മൈഡനറൽസങ്' - മമൈനർ മൈഡനറൽ- സയോധയോരണ മൈണങ് - കകടഡട നഡർമൈയോണയോവശരയോർതന മൈണങ് നതീക്കന കചെയ് **യ** നുള്ള അയപക - സനബനഡചങ്. സൂചെന: 1) 2015-കല യകരള മമൈനർ മൈഡനറൽ കൺസഷൻ ചെടങ്ങൾ 2) 06-01-2020 തതീയ്യതഡയഡകല തയോങ്കളുകട അയപക. ***** യമൈൽ സൂചെന (2) പ്രേകയോരന തഡരൂർ തയോലൂക്കങ് മൈയോറയോക്കര വഡയലജഡൽ റതീ.സർകവ്വെ നമ്പർ 174/2A1-ൽ കപട സ്ഥലതങ് കകടഡട നഡർമൈയോണയോവശരയോർതന അയപക സയോധയോരണ മൈണന, കചെങ്കലന നതീക്കന കചെയ്യുന്നതഡനങ് തയോങ്കൾ സമൈർപഡചഡരുന്നുവയലയോ.. കകടഡടതഡകെൻറ വഡസതീർണന 300 M[2] -ൽ അയപക അധഡകമുള്ളതഡനയോൽ തയോങ്കളുകട പരഡഗണഡക്കുന്നതഡനങ് പയോരഡസ്ഥഡതഡകയോനുമൈതഡ ആവശരമൈയോണങ്. ആയതഡനയോൽ പയോരഡസ്ഥഡതഡകയോനുമൈതഡ ::5:: **WP(C).No.14317 OF 2020(L)** ലഭരമൈയോകുന്ന മുറക്കങ് തയോങ്കളുകട അയപക പരഡഗണഡക്കുന്നതയോകണന്ന വഡവരന അറഡയഡക്കുന്നു. വഡശസസതയയയോകട. സതീനഡയർ ജഡയയയോളജഡസ്റ്റേങ്.” Now, the provisions contained in Rule 14 (2) of the Kerala Minor Mineral Concession Rules have been amended with prospective effect from 12.6.2020 as can be seen from Ext.P-9 statutory SRO notification No.391/20 dated 12.6.2020. Rule 14 (2) of the Kerala Minor Mineral Concession Rules before amendment provides as follows: ## _**“14. Quarrying Permit for Ordinary earth** .—_ _1. xxx xxx xxx_ _2. Notwithstanding anything contained in sub-rule (1), No quarrying permit is required under these rules for extraction of ordinary earth in connection with the construction of residential buildings including flats or commercial buildings having a plinth area of 300 square metres if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities concerned:_ _Provided that in cases where transportation of ordinary earth is required, the owner of the land shall obtain mineral transit passes for the quantity to be transported under the Kerala Minerals (Prevention of illegal mining, storage and transportation) Rules, 2015 after making payment of royalty, on an application submitted in this regard. Such application shall be accompanied by (1) valid building permit for construction of building obtained from the Local Self Government authorities concerned, (2) land development permit obtained from the Local Self Government authorities concerned in cases where the levelling of the land and extraction of ordinary earth is involved and (3) possession and enjoyment certificate of the land issued by the Village Officer concerned:_ _Provided further that in cases where levelling of land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authorities concerned which shall contain the area of land to be developed for the construction of the building and the quantity of ordinary earth to be extracted for such construction”_ ::6:: ## **WP(C).No.14317 OF 2020(L)** From a reading of Rule 14(2) of the Rules, it can be seen that if the construction area exceeds the threshold limit of 300 sq.m. then quarrying permit would also be required for conduct of excavation work in relation to construction activity. From Ext.P-5 building permit, it can be seen that construction area involved is 925 sq.m and so going by the unamended provisions of Rule 14 of the Rules, the petitioner has to secure quarrying permit for the earth excavation. However, the stand taken by the 2[nd] respondent in Ext.P8 that the petitioner would necessarily secure Environmental Clearance before Ext.P-6 application could be considered is legally wrong in view of the statutory notification issued by the competent authority of the Union Ministry concerned that environmental clearance is not required if the construction area is below the threshold limit of 20,000 sq.m. In the instant case, the construction area covered by Ext.P-4 building permit being 925 sq.m. is much below the said threshold limit, there is no question of insisting that the petitioner should necessarily obtain Environmental Clearance from the State Environmental Impact Assessment Authority before his application for quarrying permit could be considered. Hence Ext.P-8 is liable to be interdicted on that ground alone. However, it is to be noted that Rule 14(2) of the ::7:: ## **WP(C).No.14317 OF 2020(L)** Rules has been amended as per Ext.P-9 statutory notification with prospective effect from 12.6.2020 and the amended provisions of Rule 14(2) of the Rules reads as follows: ## _**“14. Quarrying Permit for Ordinary earth.-**_ _(1) xxx xxx xxx_ _(2) Notwithstanding anything contained in sub-rule (1), no quarrying permit is required under these rules for extraction of ordinary earth in connection with the construction and digging of foundation for the buildings not requiring environmental clearance under the Environment (Protection) Act, 1986 (Central Act 29 of 1986), if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities concerned or if the owner of the land is entitled to construct such building as per the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (16 of 2019).”_ A reading of the amended provisions of the Rules would make it clear that in cases where Environmental Clearance is not required, then there is no necessity for the party concerned to secure quarrying permit for conducting excavation work in relation to the construction activity. In view of Ext.P-7 notification there is no necessity for production of Environmental Clearance for construction area below 20000 sq.m. It is also by now well settled by the rulings of this Court, including the judgment of the Division Bench of this Court in _**District Geologist v. Sivaraman**_ [2020 (1) KLT 375 = 2019 (5) KHC 929] that Environmental Clearance in relation to construction activity is not required in case plinth area of the construction/built up area does not exceed the threshold limit of ::8:: ## **WP(C).No.14317 OF 2020(L)** 20,000 sq.m. In the instant case, since construction area covered by Ext.P-4 is well below the said threshold limit of 20000 sq.m., the petitioner need not secure either the Environmental Clearance nor the quarrying permit for the purpose of earth excavation. The position in that regard is ordered and declared. 4. Further the petitioner has stated in Ext.P-6 application that the said excavation work would also involve extraction of laterite stone but within the permitted depth of 2 meters, etc., and since the laterite stone is a ' _minor mineral_ ' in terms of Sec.3(e) of the Mines and Minerals (Development & Regulation) Act, 1957, the factual issue as to whether the extraction and quarrying of laterite stone is within the prescriptions of the KMMC Rules or whether any specific permission as per that Rule is to be taken, etc., will have to be taken by the 2[nd] respondent-District Geologist. Accordingly, the impugned Ext.P-8 order dated 6.1.2020 issued by the 2[nd] respondent-District Geologist will stand quashed and set aside and consequently Ext.P-6 application dated 1.6.2020 filed by the petitioner will stand remitted to the 2[nd] respondent for ::9:: **WP(C).No.14317 OF 2020(L)** consideration afresh to the limited extent in regard to his limited plea for extraction of mineral. Needless to say, since the permitted construction area covered by Ext.P-5 development permit is below the threshold limit of 20,000, there is no necessity for the petitioner to obtain quarrying permit for carrying out other excavation of ordinary earth in relation to the construction activity. The 2[nd] respondent will conduct a site inspection and may also ascertain the documents in Exts.P-4 & P-5, etc., and such site inspection shall be conducted either by the 2[nd] respondent in person or through other qualified Geologist but with prior notice to the petitioner and copy of the inspection report may also be given to the petitioner and thereafter, the petitioner may be given an opportunity of hearing through his representative/counsel, if any, and then should take a considered decision on the matters raised in Ext.P-6 to the extent it concerns the extraction of laterite stone from the property concerned, within a period of one month from the date of production of a certified copy of this judgment. The inspection process should be completed within 2 weeks from the date of receipt of production of a certified copy of this judgment so that overall time limit of one month is strictly adhered to by the ::10:: ## **WP(C).No.14317 OF 2020(L)** 2[nd] respondent. However, it goes without saying that for the other excavated earth, in case the petitioner wants to transport it from the construction site to any other outside places, then necessarily, the petitioner can do so only after obtaining transit pass from the competent authority as per the provisions contained in Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015. The position in that regard is also declared and clarified. The petitioner will produce a certified copy of this judgment along with a copy of the memorandum of Writ Petition with all exhibits before the 2[nd] respondent for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::11:: **WP(C).No.14317 OF 2020(L)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 10-01-1966 OF THE PETITIONER SOCIETY** **EXHIBIT P2 A TRUE COPY OF THE DOCUMENT NO 56 OF 1966 EXECUTED IN FAVOUR OF THE PETITIONER** **EXHIBIT P3 A TRUE COPY OF THE DOCUMENT NO 57 OF 1966 EXECUTED IN FAVOUR OF THE PETITIONER** **EXHIBIT P4 A TRUE COPY OF THE BUILDING PERMIT DATED 27-01-2019 EXHIBIT P5 A TRUE COPY OF THE DEVELOPMENT PERMIT DATED 14-10-2019 EXHIBIT P6 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 06-01-2020 EXHIBIT P6 A A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONER, DATED 03-01-2020 EXHIBIT P6 B A TRUE COPY OF THE SKETCH SUBMITTED BY THE PETITIONER. EXHIBIT P6 C A TRUE COPY OF THE LOCATION MAP SUBMITTED BY THE PETITIONER EXHIBIT P6 D A TRUE COPY OF THE MINUTES OF THE MEETING OF THE MANAGING COMMITTEE OF THE MARKKARA EDUCATIONAL AND DEVELOPMENT SOCIETY DATED 05-01-2020 EXHIBIT P6 E A TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT** ::12:: ## **WP(C).No.14317 OF 2020(L)** **EXHIBIT P6 F A TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY THE MARAKKARA GRAMA PANCHAYAT, DATED 2701-2019** - **EXHIBIT P6 G A TRUE COPY OF THE DEVELOPMENT PERMIT ISSUED TO THE PETITIONER BY THE MARAKKARA GRAMA PANCHAYAT, DATED 1410-2019** - **EXHIBIT P7 A TRUE COPY OF THE NOTIFICATION FROM THE MINISTRY OF ENVIRONMENT AND FORESTS DATED 14-09-2006** - **EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 0601-2020** **EXHIBIT P9 A TRUE COPY OF THE NOTIFICATION ISSUED BY THE INDUSTRIES DEPARTMENT, GOP NO. 16/2020 DATED 12-06-2020** **EXHIBIT P10 A TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN WP(C) NO. 10931 OF 2018 DATED 04-03-2018** **EXHIBIT P11** **A TRUE COPY OF THE ELEVATION PLAN OF THE PROJECT SUBMITTED BY THE PETITIONER.**