K.G. Gangadharan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 17TH DAY OF AUGUST 2016/26TH SRAVANA, 1938** ## **W.P(C).No.13769 of 2016 (U)** **---------------------------------------** **PETITIONER(S):-** **---------------** **K.G.GANGADHARAN, AGED 64 YEARS, S/O.GOPALAN,** **KALLEPPILLIL, KODUNGA, WARD NO.6, KOOTTICKAL VILLAGE, ELAMKADU P.O., KOTTAYAM DISTRICT- 686 514.** **BY ADVS.SRI.RAJAN VISHNURAJ SRI.V.HARISH.** **RESPONDENT(S):-** - **---------------** **1. STATE OF KERALA,** - **REPRESENTED BY ITS CHIEF SECRETARY, DEPARTMENT OF INDUSTRIES, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. KERALA STATE BIO DIVERSITY BOARD, L-14, JAI NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM- 695 001, REPRESENTED BY ITS MEMBER SECRETARY.** **3. DISTRICT COLLECTOR, KOTTAYAM, CIVIL STATION, KOTTAYAM- 686 001.** **4. THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING & GEOLOGY, CIVIL STATION, KOTTAYAM- 686 002.** **5. THE DIRECTOR OF MINING & GEOLOGY, HEAD OFFICE, DEPARTMENT OF MINING & GEOLOGY, THIRUVANANTHAPURAM- 695 001.** **6. ADDITIONAL TAHSILDAR, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT- 686 001.** **7. V.C.JOSEPH, VAZHATHARA HOUSE, VADAVATHOOR P.O., KOTTAYAM DISTRICT- 686 001.** **R1 TO R6 BY SENIOR GOVERNMENT PLEADER SRI.RENIL ANTO KANDAMKULATHY. R7 BY ADV. DR.MATHEW A KUZHALNADAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-** ## **WP(C).No.13769 of 2016 (U)** ## **--------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**EXT.P1:**|**A TRUE PHOTOCOPY OF THE ORDER DATED 5.11.2008 GRANTING**| ||**LEASE TO THE 7TH RESPONDENT**| |**EXT.P2:**|**A TRUE PHOTOCOPY OF CESS REPORT PREPARED BY**| ||**S.CHANDRASEKHARAN AND K.VINCENT PAUL.**| |**EXT.P3:**|**A TRUE PHOTOCOPY OF COMMUNICATION DATED 24.8.2013 FROM**| ||**THE 2ND RESPONDENT TO THE PRINCIPAL SECRETARY, LSGD**| ||**ALONG WITH THE STUDY REPORT.**| |**EXT.P4:**|**A TRUE PHOTOCOPY OF COMMUNICATION NO.114-13816/13 DATED**| ||**22.12.2014 ALONG WITH THE REPORT OF THE TALUK SURVEYOR.**| |**EXT.P5:**|**A TRUE PHOTOCOPY OF COMMUNICATION NO.H4-4212/2014 DATED**| ||**10.2.2015 FROM THE OFFICE OF THE 3RD RESPONDENT TO THE**| ||**6TH RESPONDENT.**| |**EXT.P6:**|**A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE DIRECTION**| ||**DATED 13.11.2013.**| |**EXT.P7:**|**A TRUE PHOTOCOPY OF RTI REPLY DATED 12.2.2014 ISSUED**| ||**BY THE UNDER SECRETARY, LSG DEPARTMENT.**| |**EXT.P8:**|**A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 2.1.2016**| ||**PREFERRED BY THE PETITIONER BEFORE THE IST RESPONDENT.**| |**EXT.P9:**|**TRUE PHOTOCOPY OF JUDGMENT IN GOA FOUNDATION & ANR. V.**| ||**UNION OF JNDIA & ORS IN O.A.NO.26 OF 2012.**| |**EXT.P10:**|**TRUE PHOTOCOPY OF THE COMMUNICATION DATED 21.04.2016**| ||**FROM THE OFFICE OF THE CHAIRMAN OF THE KERALA STATE**| ||**POLLUTION CONTROL BOARD.**| **RESPONDENT(S)' EXHIBITS:--------------------------** **EXT.R7(a) TRUE COPY OF THE LICENCE ISSUED TO THE 7TH RESPONDENT BY THE KOOTTIKKAL PANCHAYATH DATED 29.03.2016. EXT.R7(b) TRUE COPY OF EXT.P3 REPORT PRODUCED IN THE WRIT PETITION IN ITS ORIGINAL FORM. EXT.R7(c) TRUE COPY OF THE SATELLITE PHOTOGRAPH OF THE ARIAL VIEW SHOWING THE DIFFERENCE IN ELEVATION AND DISTANCE FROM THE QUARRY AND VALIANTHA WATERSHED AREA. EXT.R7(d) TRUE COPY OF THE COMPLAINT/REPRESENTATION SUBMITTED BY THE 7TH RESPONDENT BEFORE THE MINISTER FOR ENVIRONMENT.** **- 2 -** **WP(C).No.13769 of 2016 (U)** **EXT.R7(e) TRUE COPY OF THE RE-INVESTIGATION ORDER ISSUED BY THE 2ND RESPONDENT DATED 20.02.2016. EXT.R7(f) TRUE COPY OF THE LETTER TESTIFYING THE EXCLUSION OF KOOTTIKKAL VILLAGE AND THE COMMUNICATION FROM THE MoEF, GOVERNMENT OF INDIA DATED 12.08.2015. EXT.R7(g) TRUE COPY OF THE NOTIFICATION OF THE MINISTRY OF ENVIRONMENT AND FORESTS, DATED 10.03.2014. EXT.R7(h) TRUE COPY OF THE REPLY OF THE STATE PUBLIC INFORMATION OFFICER AND UNDER SECRETARY, ENVIRONMENTAL DEPARTMENT OF KERALA, IN RESPONSE TO THE QUESTION RAISED UNDER THE RIGHT TO INFORMATION ACT, DATED 18.04.2016. EXT.R7(i) TRUE COPY OF THE COMPLAINT DATED 15.01.2013, GIVEN BY THE SREE NARAYANA PURUSHA SWAYAM SAHAYA SANGAM TO THE CHAIRMAN OF KERALA STATE VIODIVERSITY BOARD, THIRUVANANTHAPURAM.** **Vku/[ true copy ]** K. Vinod Chandran, J. ---------------------------------------W.P.(C) No.13769 of 2016-U ---------------------------------------Dated this the 17[th] day of August, 2016 ## **JUDGMENT** The petitioner, a nearby resident of a quarry conducted by the 7[th] respondent, seeks to interdict the latter's operations for reason of the threat caused to life and property personally and also the large-scale depredation of natural resources resulting in degradation of the ecology and environment. The 7[th] respondent is carrying on the quarry operations, admittedly in accordance with a lease obtained from the 4[th] respondent. The order evidencing such lease is produced at Exhibit P1 which indicates the 7[th] respondent having been granted quarrying lease over an area of 2.0249 ha of Patta land comprised in survey numbers 21/1-3-4-5, 26 and 26/4 of Koottickal Village, Kanjirapally Taluk, Kottayam District. The period of lease is also specified as 20 years, which permits such operations till 04/11/2020. - 2 - WP(C).13769 of 2016 2. The petitioner grounds his contentions on Exhibits P2, P3 and P6. Exhibit P2 is a report obtained from the Centre for Earth Science Studies (CESS) of the year 1993, which, according to the petitioner, speaks of possibility of landslide in the area around the Koottickal Panjayat and make certain recommendations for evolving proper land-use norms in tune with the hazard zonation. Exhibit P3 is a report of the Kerala State Biodiversity Board, which specifically deals with the quarrying and crusher units in the vicinity of the Koottickal Grama Panchayat. The said document is of more recent origin, ie: of the year 2013, in which specifically the quarry owned by the 7[th] respondent is referred to and it is also reported that a stream originating from the quarry is blocked and narrowed by concrete constructions all along the premises. Exhibit P3 notices the existence of other quarries in the area and after specifically referring to the flora and fauna, indigenous to the area, the studies by CESS and the reports of Prof.Gadgil and Dr.Kasturirangan also are referred to. The recommendations include stopping of all mining and - 3 - WP(C).13769 of 2016 quarrying activities in the area; comprising the Vagamon hill ranges, including the Valiantha Watershed area. The specific recommendation is to declare it as a protected area (PA). 3. The two documents above referred, according to the petitioner, projects the very fragile nature of the land and the recommendations demand immediate closure of all quarrying and mining operations. Exhibits P4 and P5 evidence the quarrying operations having encroached into puramboke Government land, and the necessity for a survey, which could be carried on only after the operations in the quarry are put to a stop. Exhibit P5 is a communication from the District Collector to take further action in the matter by conducting a survey. The authorities are alleged to have slept over the matter. 4. The petitioner also relies on the notification issued by the Ministry of Environment and Forests (MoEF), under Section 5 of the Environment (Protection) Act, 1986; produced as Exhibit P6. It speaks of prohibition of, among others, quarrying and mining WP(C).13769 of 2016 - 4 - operations in the areas declared as Ecologically Sensitive Areas (ESA). As far as the State of Kerala is concerned, specifically Koottickal Panchayat has been included in the list appended to the notification. The petitioner demands immediate closure of the quarrying operations carried on by the 7[th] respondent, despite the same being under valid permit, for reason of the permit having been issued in violation of environmental laws and without looking at the dire consequences that could befall the residents of the locality and the flora and fauna, which are indigenous to the said area, comprised within the Western Ghats, one of the very few global biodiversity spots left in the world. 5. The 7[th] respondent stoutly oppose the prayers made by the petitioner, asserting his right to carry on quarrying operations as permitted by the 4[th] respondent, on payment of such royalties and other payments due to the Government. The 7[th] respondent would point out that the study made by the CESS is of the year 1993 and it is also not clear as to the provocation for such a study and in any - 5 - WP(C).13769 of 2016 event the document produced at Exhibit P2 is only a preliminary report and nothing is placed on record as to what has transpired after the same. Exhibit P3 report of the Kerala State Biodiversity Board is countered with a recommendation issued by the very same Board produced at Exhibit R7(e), which speaks of a new assessment to verify the disparity insofar as the Valiantha watershed area being away from the Kodunga area. Reliance is placed on Exhibit R7(f), to point out that the Ministry of Environment, Forests and Climate Change (MoEF&CC, as the Ministry has been new renamed) has agreed to the proposal of the State of Kerala to reduce the villages coming within the ESA to 119 from 123. It is also seen from the said document that draft notification dated 10/03/2014 has been issued by MoEF&CC making such reduction as sought for by the State. Exhibit R7(g) is the notification referred to; which read with the answer received under the Right to Information Act {Exhibit R7(h)} specifically speak of the Kootickal Panchayat along with three others having been excluded from the ESA. The respondent argues WP(C).13769 of 2016 - 6 - that the writ petition has to be dismissed as devoid of merit. 6. The Western Ghats is one of the world's “hottest hotspots” of biodiversity, declared by the UNESCO as a World Heritage Site. The forest ecosystem of the said mountain ranges is said to influence the monsoon weather pattern in India and moderate the tropical climate of the region. It is taking into account these aspects also that the MoEF&CC has come out with notifications under the Act of 1986; bringing in restrictions as to the developmental activities and other operations; having a deleterious effect on the ecology and environment. It is seen from Exhibit P6 notification issued on 13/11/2013, that Koottickal Panchayat is included under ESA, in which context, the petitioner argues; the quarrying operations would have to be stopped. 7. However, as submitted by the learned Counsel for the 7[th] respondent; after Exhibit P6 notification, the Ministry has thought it fit to issue a further draft notification dated 10/03/2014 {Exhibit R& (g)} wherein admittedly, there is a reduction of the villages notified as WP(C).13769 of 2016 - 7 - ESA within the State of Kerala, as recommended by the State itself. It is also very evident from Exhibit R7(h) that Koottickal Village, where the 7[th] respondent is carrying on the quarry, has been excluded from the ESA. The contention of the learned Counsel appearing for the petitioner is that till the draft notification is finalised, after hearing the objections; which objections are said to have been filed by the petitioner also, with respect to the specific area; there can be no quarrying carried on merely on the strength of a draft notification having proposed certain areas earlier notified as ESA to be removed from such categorisation. In this context reference can be usefully made to the decision referred to by the learned counsel for the 7[th] respondent. Though not strictly applicable, it is seen that in **W.P.(C) 26100 of 2014** _**[Ratheesh Vs. Geologist]**_ ; the interim order extracted notices, an Office Memorandum dated 20/12/2013 issued by the Ministry itself and extracts clause 5, which reads as follows: “It is also reiterated that the prohibition of identified categories of projects/activities as stated under para 2(vii) WP(C).13769 of 2016 ## - 8 - above, in the ESA shall apply to new and/or expansion of these activities from the date specified therein. The existing projects/activities under these categories may continue, according to law, except for existing mines which should be phased out within the next 5 years of expiry of their mine lease, whichever is earlier”. 8. Hence as far as existing projects/activities are concerned, the contemplation was that the mines would be phased out in the next 5 years or expiry of their lease, whichever is earlier. This is also in tune with the notification produced at Exhibit P6; clause 9 of which is extracted hereunder: “9. Now therefore, in exercise of powers conferred under Section 5 of Environment (Protection) Act, 1986, the following directions are hereby issued: The following category of new and/or expansion projects/ activities shall be prohibited in ESA from the date of issue of these directions except those cases which have been received by EACs/MoEF or SEACs/SEIAAs before the date of putting HLWG report on the website of the Ministry, i.e., 17.4.2013 and which are pending with EACs/MoEF or SEACs/SEIAAs. Such projects will be dealt under the guidelines and rules applicable - 9 - WP(C).13769 of 2016 at the time of application before the respective EACs/MoEF or SEACs/SEIAAs. Apart from such cases, no pending case or any fresh case shall be considered by the EACs/MoEF or SEACs/SEIAAs from the date of issue of these directions. - (a) Mining, quarrying and sand mining - (b) Thermal Power Plants - (c) Building and construction projects of 20,000 sq.m. area and above. - (d) Township and area development projects with an area of 50 ha and above and/or with built up area of 1,50,000 sq.m. and above. - (e) Red category of industries”. 9. Exhibit P6 also speaks only of prohibition of 'new and/or expansion projects/activities' and it was never intended that an abrupt closure of all projects/activities, commenced and continued validly, be made effective in the ESA. The said position has been clarified by the National Green Tribunal in its order, produced as Exhibit P9, where the specific notifications herein referred were considered, along with the affidavit filed by the Ministry as specifically directed by the Tribunal. It was held so in WP(C).13769 of 2016 - 10 - ## paragraph 13, 14, 15 and 16: “13. We are of the considered view that it is not for this Tribunal to pass any anticipated orders or to provide any limitations in the exercise of statutory power vested in the Ministry in terms of the Act of 1986. It is for the Ministry to take all the initiatives in relation to defining the eco-sensitive areas in the Western Ghats region and take it to its logical end by issuing final notification. The only pious hope that we express in the order is that the Ministry should act with utmost expeditiousness and ensure that the interest of the States, individuals, and all concerned stakeholders are not jeopardised any longer. The MoEF itself has stated in paragraph-I of its affidavit that directions under section 5 of the Act of 1986 have been issued on 13.11.2013 for providing immediate protection to the Western Ghats to maintain its environmental integrity, which is in force. It will be in the interest of all the stakeholders, including MoEF, that the matters are not further complicated and third party interest are not put into jeopardy that these directions will operate to the entire eco-sensitive area of the Western Ghats and no fresh Environmental Clearance or permissions are issued by the MoEF till it issues the final notification in terms of section-3 of the Act of 1986. WP(C).13769 of 2016 - 11 - 14. Thus, it is now exclusively for the MoEF to determine and decide the rival contentions, and the period for which the restrictions as issued by the MoEF in its order dated 13/11/2013 should remain operative. It is the duty expected of the MoEF to maintain the environmental tranquillity and ecology of the areas under consideration, in the condition as they exist today, and not to allow irreversible alteration of the areas in question by granting Environmental Clearance or permitting activities which would have an adverse impact on the eco-sensitive areas. 15. We may also notice that on behalf of the State of Kerala, it was specifically contended before us that they have already submitted not only their objections but even their physical measurements of the area that could be declared as “eco-sensitive area” and the matter is pending with the MoEF now for a considerable time. All that we can direct is that this matter should also be dealt with by the MoEF with utmost expeditiousness. It will be obviously open to the MoEF to declare the ecologically sensitive areas, State-wise or collectively, for the entire Western Ghats which is relatable to all six the states afore-indicated. WP(C).13769 of 2016 - 12 - 16. Thus, with the above directions, we dispose of the main Application No.26 of 2012 while leaving the parties to bear their own costs”. 10. This Court shares the opinion of the learned Tribunal that it is for the Ministry, in exercise of its statutory powers to determine the ESA and the manner in which the same are protected after hearing the opinion of the respective States as also the objections thereto. In the above circumstances though the notification now in force, Exhibit P6 includes Koottickal Village within the ESA, even then; for existing projects there is no prohibition as such in the notification. Further the office memorandum of the Ministry, dated 20/12/2013 permits continued operations till the expiry of 5 years or the expiry of the permit, whichever happens earlier. Thus, despite the petitioner having a permit valid till 2020, the five-year period from Exhibit P6 notification, occurring earlier, would be the date on which the petitioner would be obliged to stop WP(C).13769 of 2016 - 13 - the quarry going by Exhibit P6 notification. On such interpretation the notifications relied on by the petitioner would not by themselves create an impediment to the 7[th] respondent to continue the quarry till the expiry of the five-year period from the notification at Exhibit P6. 11. The other contentions raised are with respect to Exhibit P2 and P3 which have not been considered by any of the authorities till date. There has been no consideration of such impact on environment, particularly to the area in which the mining activity has been permitted, at the time of issuance of Exhibit P1 permit by the 4[th] respondent. This is so because at the time of issuance of Exhibit P1 permit, there was no requirement for an Environmental Clearance, since the same was brought about by _**Deepak Kumar v. State of Haryana**_ **[(2012) 4 SCC 629]** and the Office Memorandum (OM) dated 18/05/2012, making environmental clearance mandatory for grant//renewal of mining lease even for lease of areas less than 5 hectares, brought out by the MoEF&CC, in tune with the said Supreme Court decision. - 14 - WP(C).13769 of 2016 12. Be that as it may, the district administration has thought it fit to conduct a survey especially to verify whether there is any encroachment into Government land by the 7[th] respondent. It is also clear from Exhibit P4 and P5 that the quarry has to be closed down, to effectively conduct the survey. The petitioner's contentions based on Exhibits P2 and P3 would also have to be looked into when such a survey is conducted. The District Collector was found to have wide powers in the decision reported in _**Gokuldas V. Geologist**_ **[2009 (3) KLT 924]** ; where the source of such power was traced to Article 21 of the Constitution itself. A Division Bench of this Court also had in _**Thilakan V. C.I. of Police**_ **[2008 (1) KLT 141]** , declined police protection for extraction of earth from a privately owned property; finding that the right to life under Article 21 includes right to decent environment. It was declared that none can claim absolute right to indulge in activities resulting in environmental degradation, even in privately owned lands. WP(C).13769 of 2016 - 15 - 13. Exhibit P2 is issued by the Board constituted under The Biological Diversity Act, 2002. The power of the State Biodiversity Board to restrict certain activities as provided under Section 24, is with reference to the activities covered under Section 7. Section 7 deals with commercial utilisation of biological resources, bio survey and bio utilisation for commercial purposes, with prior intimation to the State Biodiversity Board. The functions of the Biodiversity Board, at the National and State level, as delineated in Sections 18 and 23 are advisory, on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of the utilisation of biological reserves. The National Board also advises the State Governments in selecting areas of biodiversity as Heritage sites and implementation of measures for management of such sites. The State Board is also conferred with the power to regulate the granting of approvals or other wise request; for commercial utilisation or bio survey and bio utilisation of bio reserves. The quarrying activity WP(C).13769 of 2016 - 16 - which is the subject matter of the above writ petition though does not deal with utilisation of bio reserves, could always have a debilitating effect on the ecology and the conservation of bio-diversity of the region. Admittedly Western Ghats has been declared as a heritage site, but in the absence of any regulation/prohibition of quarries, brought out by the State, there can be no interdiction caused, based on Exhibit P3 recommendations. The State Government would have to address such recommendations as provided under the Biological Diversity Act. 14. The further contention raised by the petitioner is with respect to The Disaster Management Act, 2005 placing reliance on Exhibit P2 and the apprehension of a landslide being caused in the area. As was noticed earlier, Exhibit P2 is of the year 1993 and it would not be proper for this Court to direct any authority to take action on the basis of the said report. But the said aspect is well within the authority of the District Disaster Management Authority as constituted under Section 25, the Chairperson of which is the District WP(C).13769 of 2016 - 17 - Collector, who also is the head of the revenue department of the District. In the context of a survey being taken up, it would be proper for the District Collector to consider the said aspect also, involving such expert body as thought fit, in the survey operations. In the circumstances detailed herein above, for the present, suffice it to direct a survey to be conducted of the properties, which shall be commenced within two weeks from the date of receipt of the certified copy of this judgment and shall be concluded within three months from the date of commencement. The District Collector shall depute a suitable officer to carry on the survey, and on such report of survey and the impact caused on the environment as certified by a competent expert body, further action shall be taken by written orders either permitting the continuance of the quarry or stoppage of the same, after supplying the copy of the reports to the 7[th] respondent and affording a hearing. It is made clear that this Court has not made any observations on merit regarding the survey or the possible deleterious effect on the environment; occasioned by WP(C).13769 of 2016 - 18 - reason of the quarry, which would have to be looked into by the District Disaster Management Authority. Together with the survey it is directed that the Kerala State Bio Diversity Board shall conduct an assessment of the area with reference to its extensive bio diversity, terrain and ecosystems and make suitable recommendations to the State under the Act constituting the said Board. The same shall also be expedited within the time provided herein above. The writ petition would stand disposed of with the above directions; making it clear that during the period in which the survey is carried out, as directed herein above, the 7[th] respondent would not carry on any quarrying operations. The parties shall bear their respective costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]