One Earth One Life v. Ministry of Environment and Forests and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 3RD DAY OF AUGUST 2018 / 12TH SRAVANA, 1940 WP(C).No. 3787 of 2015 ----------------------------- PETITIONER(S) --------------------- ## ONE EARTH ONE LIFE REG.No.246/1988, USHAS, PERAMANGALAM.P.O., THRISSUR, REPRESENTED BY ITS LEGAL CELL DIRECTOR, TONY THOMAS, KIZHAKKEKARA HOUSE, IRUMBAKACHOLA.P.O., KANJIRAPUZHA, PALAKKAD DISTRICT, KERALA-678 591. BY ADVS. RAJAN VISHNURAJ HARISH VASUDEVAN RESPONDENT(S): ------------------------ 1. MINISTRY OF ENVIRONMENT AND FORESTS, PARYAVARAN BHAVAN, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003, REPRESENTED BY ITS SECRETARY. 2. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, - GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. PRINCIPAL SECRETARY DEPARTMENT OF FOREST AND WILDLIFE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4. SUPERINTENDING ARCHEOLOGIST ARCHEOLOGICAL SURVEY OF INDIA, THRISSUR CIRCLE, PURATATVA BHAVAN, K.S.H.B FLATS, PULLAZHI.P.O., THRISSUR-680 012. 5. THE DIRECTOR DIRECTORATE OF ARCHAEOLOGY, SREEPADAM PALACE, NEAR FORT(P.O), THIRUVANANTHAPURAM-23. 6. THE DIRECTOR OF MINING AND GEOLOGY DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM.P.O., THIRUVANANTHAPURAM-695 004. WP(C).No. 3787 OF 2015 (S) - 2 - 7. THE DISTRICT COLLECTOR THRISSUR DISTRICT, KERALA-680 001. 8. SPECIAL TAHSILDAR (LA), TALUK OFFICE, CHALAKKUDI TALUK, THRISSUR - 680 307 9. THE GEOLOGIST DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, THRISSUR, KERALA-691 002. 10. THE ENVIRONMENTAL ENGINEER KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, THRISSUR-695 004. 11. CHIEF FOREST CONSERVATOR, OFFICE OF THE CHIEF FOREST CONSERVATOR, CENTRAL CIRCLE, THRISSUR DISTRICT. 680 001. 12. DIVISIONAL FOREST OFFICE, CHALAKKUDI DIVISION, THRISSUR-680 307. 13. SIJO C.J CHERAPARAMBIL HOUSE, MUPLIYAM.P.O., THRISSUR-680 312. 14. M/S PANTHALLOOKKARAN GRANITES MUNNIYATTUKUNNU, INCHAKUNDU.P.O., THRISSUR, REPRESENTED BY ITS MANAGING PARTNER CA.ASHARAF, PIN-680 312. 15. M/S VICTORY GRANITE METALS MANNAMPETTA, VARAKKARA.P.O., THRISSUR-680 302, REPRESENTED BY ITS MANAGING PARTNER, E.M.SUNNY. 16. M.V.JOHNSON - MANIYARKKAN HOUSE, MUPLIYAM.P.O., THRISSUR-680 312. 17. V.B.HARIDAS - VAYIKKAPARAMBIL HOUSE, MUPLIYAM.P.O., THRISSUR-680 312. 18. JANARDHANAN - KOOMULLY HOUSE, MURIKKINGAL.P.O., THRISSUR-680 684. 19. V.B.RAMACHANDRAN - VAYIKKAPARAMBIL HOUSE, VELUPAADAM.P.O., THRISSUR-680 303. 20. VISHWAMBHARAN T.C - THALLIKAL HOUSE, VARANTHARAPPILLY.P.O., THRISSUR-680 303. 21. M.K.DIVAKARAN - MUNDANPLAKKAL HOUSE, MUPLIYAM.P.O., THRISSUR-680 312. 22. P.C.BENNY - PANJIKKARAN HOUSE, MUPLIYAM.P.O., THRISSUR-680 312. 23. C.K.SHEELA - ANKARAN HOUSE, NANDIPULAM.P.O., THRISSUR-680 312. WP(C).No. 3787 OF 2015 (S) - 3 - ADDL.24. DIVYA PRAKASAN K.U W/O PRAKASAN, KARANATH HOUSE, PADY P.O., KODALY, THRISSUR DISTRICT. [ ADDITIONAL RESPONDENT NO.24 IS IMPLEADED VIDE ORDER DATED 12.8.2016 IN I.A.NO.1269/2016] R1 & 4 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2,3, BY SPL. GOVT. PLEADER FOR FOREST SRI.NAGARAJ NARAYANAN, R5-9, 11 & 12 BY GOVTERNMENT PLEADER SRI. SURIN GEORGE IPE R10 BY ADV. SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, R13 & 22 BY ADV. SRI.B.PREMNATH R15 BY ADV. SRI.T.M.CHANDRAN R15 BY ADV. SRI.S.SUJITH R15 BY ADV. SRI.V.A.SASIDHARAN R15 BY ADV. SRI.JOSEPH ALBIN NEDUNTHALLY R16-R20,R23 BY ADV. SRI.RENJITH THAMPAN (SR.) R16-R20,R23 BY ADV. SMT.P.R.REENA R13, 14 & 22 BY ADV. SRI.PHILIP J.VETTICKATTU R21 BY ADV. SRI.ALIAS M.CHERIAN R. BY ADV. SRI.S.SREEKUMAR (SR.) RADDL 24 BY ADV. SRI.BECHU KURIAN THOMAS (SR.) RADDL 24 BY ADV. SRI.ENOCH DAVID SIMON JOEL RADDL 24 BY ADV. SRI.GEORGE A.CHERIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8.6.2018, THE COURT ON 03-08-2018 DELIVERED THE FOLLOWING: WP(C).No. 3787 OF 2015 (S) - 1 - ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------ P1A TRUE PHOTOCOPY OF THE COMMUNICATION NO.F.NO.1/119/TSR/2012-M-2456 DATED 03.09.2013. - P2A TRUE PHOTOCOPY OF THE PATTA ISSUED IN SY.NO.436/P IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE ALONG WITH ITS TRANSLATION. - P2(A)- A TRUE PHOTOCOPY OF THE QUARRYING LEASE IN FAVOUR OF THE 13[TH] RESPONDENT IN SY.NO.436/P IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE. - P3A TRUE PHOTOCOPY OF THE QUARRYING LEASE IN FAVOUR OF THE 14[TH] RESPONDENT IN SY.NO.436 IN MUKUNDAPURAM TALUK OF VARANTHARAPILLY VILLAGE. - P4A TRUE PHOTOCOPY OF THE QUARRYING LEASE IN FAVOUR OF THE 15[TH] RESPONDENT IN SY.NO.419/P IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE. - P5A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 15.02.2014 IN FAVOUR OF THE 16[TH] RESPONDENT IN SY.NO.21/426/1 IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE. - P6A TRUE PHOTOCOPY OF THE PATTA IN SY.NO.419/P IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE ALONG WITH ITS TRANSLATION. - P6(A)- A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 28.02.2014 IN FAVOUR OF THE 17[TH] RESPONDENT IN SY.NO.419/P IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE. - P7A TRUE PHOTOCOPY OF THE PATTA IN SY.NO.419/P IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE ALONG WITH ITS TRANSLATION. - P7(A)- A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 20.02.2013 ISSUED IN FAVOUR OF THE 18[TH] RESPONDENT IN SY.NO.419/P IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE. - P8A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 14.03.2014 IN FAVOUR OF THE 19[TH] RESPONDENT. - P9A TRUE PHOTOCOPY OF THE PATTA IN SY.NO.21/433/3 IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE ALONG WITH ITS TRANSLATION. - P9(A)- A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 14.03.2014 IN FAVOUR OF THE 2O[TH] RESPONDENT IN SY.NO.21/433/3 IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE. - P10A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 18.03.2014 IN FAVOUR OF THE 21[TH] RESPONDENT. - P11A TRUE PHOTOCOPY OF THE PATTA IN SY.NO.436/P IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE ALONG WITH ITS TRANSLATION. WP(C).No. 3787 OF 2015 (S) - 2 - - P11(A)- A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 13.03.2014 IN FAVOUR OF THE 22[ND] RESPONDENT IN SY.NO.436/P IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE. - P12A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 26.04.2013 IN FAVOUR OF THE 23[RD] RESPONDENT IN SY.NO.21/433/4 IN MUKUNDAPURAM TALUK OF MUPLIYAM VILLAGE. - P13A TRUE PHOTOCOPY OF THE LETTER NO.V2 251/05 DATED 13.01.2006. ALONG WITH ITS TRANSLATION - P14A TRUE PHOTOCOPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN WPC NO.26846/2005. - P15A TRUE PHOTOCOPY OF THE COMMUNICATION NO.G3-8442/11 DATED 10.01.2012.ALONG WITH ITS TRANSLALTION. - P16A TRUE PHOTOCOPY OF THE LETTER NO.C.A2-5498/2010 DATED 11.10.2013 FROM THE 12[TH] RESPONDENT TO THE 7TH RESPONDENT.ALONG WITH ITS TRANSLALTION. - P17A TRUE PHOTOCOPY OF THE NEWSPEPER ARTICLE REPORTED IN THE HINDU ON 10.12.2014. - P18TRUE PHOTOGRAPHS SHOWING THE UNSCIENTIFIC AND ILLEGAL QUARRIES BEING CONDUCTED IN MUNIYATTUKUNNU. - P19 A TRUE PHOTOCOPY OF THE GOVERNMENT ORDER DATED 21.8.2010 ISSUED BY THE 2[ND] RESPONDENT. - P20 A TRUE COPY OF THE SURVEY SKETCH OBTAINED FROM FOREST DEPARTMENT. - P21 A TRUE PHOTOCOPY OF THE AGENDA OF FAC MEETING ON 12.7.2011. - P22 A TRUE PHOTOCOPY OF THE GUIDELINES DATED 30.9.2011 ISSUED BY MoEF. - P23 A TRUE PHOTOCOPY OF THE LETTER DATED 16.10.2015. - P24 A TRUE PHOTOCOPY OF THE LETTER DATED 16.11.2015. - P25 A TRUE PHOTOCOPY OF THE LETTER DATED 30.4.2015. - P26 A TRUE PHOTOCOPY OF THE LETTER DATED 8.9.2015. - P27 A TRUE PHOTOCOPY OF THE LETTER DATED 13.11.2015. ## RESPONDENT'S EXHIBITS ----------------------------------- EXHIBIT R2(A) TRUE COPY OF THE GAZETTE NOTIFICATION PUBLISHED IN COCHIN GOVERNMENT GAZETTE ON 29.1.1938. EXHIBIT R2(B) TRUE COPY OF THE PETITION RECEIVED FROM SRI.MANOJ, PULICKAL, SECRETARY, KERALA PRAKRITHI SAMRAKSHANA SAMITHI (WITH ENGLISH TRANSLALTION) WP(C).No. 3787 OF 2015 (S) - 3 - EXHIBIT R13 (A) - TRUE COPY OF THE LETTER DATED 23.3.1993 ISSUED BY THE MINISTRY OF ENVIRONMENT AND FOREST. - EXHIBIT R13 (B) - TRUE COPY OF THE LETTER DATED 31.1.1995 ISSUED BY THE MINISTRY OF ENVIRONMENT AND FOREST. - EXHIBIT R13 (C) - TRUE COPY OF ORDER DATED 25.10.1999 PASSED BY THE GOVERNMENT OF KERALA. - EXHIBIT R13 (D) - TRUE COPY OF LIST OF OCCUPANTS IN THRISSUR DISTRICT PRIOR TO 1.1.1977. - EXHIBIT R13 (E) - TRUE COPY OF THE JUDGMENT PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A. NO.1164/2010. - EXHIBIT R13 (F) - TRUE COPY OF CONSENT DATED 5.3.2015 AND VALID UPTO 28.2.2016 ISSUED BY THE POLLUTION CONTROL BOARD. - EXHIBIT R13 (G) - TRUE COPY OF EXPLOSIVE LICENSE ISSUED FROM THE EXPLOSIVE DEPARTMENT. - EXHIBIT R13 (H): - TRUE COPY OF EXTRACT OF PERMANENT 'B' REGISTER (SUPPLEMENTAL 'A' REGISTER). - EXHIBIT R13 (H)(I) - TRUE COPY OF ENGLISH TRANSLALTION OF EXT.R13(H). EXHIBIT R13 (I) - TRUE COPY OF REPORT SUBMITTED BY THE VILLAGE OFFICER TO THE TALUK OFFICE. - EXHIBIT R13 (I)(I) - TRUE COPY OF ENGLISH TRANSLALTION OF EXT.R13(I) EXHIBIT R14 (A) - TRUE COPY OF LETTER DATED 23.3.1993 ISSUED BY THE MINISTRY OF ENVIRONMENT AND FOREST. - EXHIBIT R14 (B) - TRUE COPY OF THE LETTER DATED 31.1.1995 ISSUED BY THE MINISTRY OF ENVIRONMENT AND FOREST. - EXHIBIT R14 (C) - TRUE COPY OF ORDER DATED 25.10.1999 PASSED BY THE GOVERNMENT OF KERALA. - EXHIBIT R14 (D) - TRUE COPY OF LIST OF OCCUPANTS IN THRISSUR DISTRICT PRIOR TO 1.1.1977. - EXHIBIT R14 (E) - TRUE COPY OF THE JUDGMENT PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A. NO.1164/2010. - EXHIBIT R14(F) - TRUE COPY OF EXPLOSIVE LICENSE ISSUED FROM THE EXPLOSIVE DEPARTMENT. - EXHIBIT R14(H): - TRUE COPY OF EXTRACT OF PERMANENT 'B' REGISTER (SUPPLEMENTAL 'A' REGISTER). - EXHIBIT R14(H)(I) - TRUE COPY OF ENGLISH TRANSLATION OF EXT.R14(H). WP(C).No. 3787 OF 2015 (S) - 4 - EXHIBIT R14(I) – TRUE COPY OF REPORT SUBMITTED BY THE VILLAGE OFFICER TO THE TALUK OFFICE. EXHIBIT R14(I)(I) - TRUE COPY OF ENGLISH TRANSLATION OF EXT.R14(I). EXHIBIT R15 (A) - TRUE COPY OF THE LETTER DATED 23.3.1993. EXHIBIT R15 (B) - TRUE COPY OF THE LETTER DATED 31.1.1995 EXHIBIT R15 (C) - TRUE COPY OF THE LETTER DATED 25.10.1999 EXHIBIT R15 (D) - TRUE COPY OF THE REPORT SUBMITTED BY THE COMMITTEE. EXHIBIT R15 (E) - TRUE COPY OF THE ORDER DATED 19.11.1999 EXHIBIT R15 (F) - TRUE COPY OF THE LETTER DATED 19.11.1999 EXHIBIT R15 (G) - TRUE COPY OF LIST OF PERSONS. EXHIBIT R15 (H) - TRUE COPY OF PATTAYAM DATED 20.5.2000 WITH ENGLISH TRANSLATION EXHIBIT R15 (I) - TRUE COPY OF JUDGMENT DATED 15.11.2004 IN W.P.(C).17730/2004 EXHIBIT R15 (J) - TRUE COPY OF THE ORDER DATED 25.6.2005. EXHIBIT R15 (K) - TRUE COPY OF JUDGMENT DATED 7.10.2010 EXHIBIT R15 (L) - TRUE COPY OF JUDGMENT DATED 1.12.2010 EXHIBIT R15 (M) - TRUE COPY OF CONSENT VARIATION ORDER DATED 7.3.2015 EXHIBIT R15 (N) - TRUE COPY OF THE CERTIFICATE DATED 5.8.2005. EXHIBIT R15 (O) - TRUE COPY OF CERTIFICATE DATED 5.8.2005 ISSUED BY THE VILLAGE OFFICER ALONG WITH ENGLISH TRANSLALTION. EXHIBIT R16 (A) - TRUE COPY OF LETTER DATED 23.3.1993 OF THE GOVERNMENT OF INDIA MINISTRY OF ENVIRONMENT AND FOREST. EXHIBIT R16 (B) - TRUE COPY OF THE LETTER DATED 31.1.1995 OF THE MINISTRY OF ENVIRONMENT AND FOREST. EXHIBIT R16 (C) - TRUE COPY OF THE GOVERNMENT ORDER DATED 25.10.1999. EXHIBIT R16 (D) - TRUE COPY OF THE REPORT OF THE COMMITTEE CONSTITUTED AS PER EXT.R16(C) GOVERNMENT ORDER. EXHIBIT R16 (E) - TRUE COPY OF THE LETTER DATED 16.11.1999 OF REVENUE DEPARTMENT. EXHIBIT R16 (F) - TRUE COPY OF THE ORDER OF THE SUB COLLECTOR, THRISSUR NO. B2-11905/2014. EXHIBIT R16 (G) - TRUE COPY OF THE PROCEEDINGS OF THE SUB COLLECTOR NO. B2-1906/2014 DATED 20.8.2014. WP(C).No. 3787 OF 2015 (S) - 5 - EXHIBIT R16 (H) - TRUE COPY OF THE ORDER OF STAY IN W.P(C).NO.18539/2014 DATED 18.7.2014. EXHIBIT R18 (A) - TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 17.2.2014 WITH ENGLISH TRANSLATION EXHIBIT R18 (B) - TRUE COPY OF THE PURCHASE CERTIFICATE/PATTA DATED 21.5.1970. EXHIBIT R21-A: - TRUE COPY OF THE QUARRYING PERMIT NO.139/CRP/1314/GS/2021/C2/TDO/13 DATED 18.3.2014. EXHIBIT R21-B - TRUE COPY OF THE CONSENT NO.PCB/DO/TSR/F/ICO/3704/2014 DATED 30/8/2014. EXHIBIT R21-C - TRUE COPY OF THE LICENSE NO.A1-340/2014-15 DATED 21/1/2015 WITH ENGLISH TRANSLATION. EXHIBIT R21-D - TRUE COPY OF THE SHORTFIRER'S CERTIFICATE NO. E/SE/KL/30/534(E68036) DATED 14-9-2012. EXHIBIT R21-E - TRUE COPY OF THE ORDER NO.C6-17271/14/L.DIS DATED 27.10.2014. EXHIBIT R21-F - TRUE COPY OF THE LETTER NO.1/119/TSR/2012-M/1498 DATED 29.5.2012. EXHIBIT R22 (A) - TRUE COPY OF EXTRACT OF PERMANENT 'B' REGISTER OBTAINED FROM THE VILLAGE OFFICE. EXHIBIT R22 (A)(I) - TRUE COPY OF ENGLISH TRANSLATION OF EXT.R22(A) EXHIBIT R22 (B) - TRUE COPY OF REPORT OF VILLAGE OFFICER, SUBMITTED BEFORE THE TALUK OFFICE. EXHIBIT R22 (B)(I) - TRUE COPY OF ENGLISH TRANSLATION OF EXT.R22(B). EXHIBIT R22 (C) - TRUE COPY OF LETTER DATED 23.3.1993 ISSUED BY THE MINISTRY OF ENVIRONMENT AND FOREST. EXHIBIT R22 (D) - TRUE COPY OF LETTER DATED 31.1.1995 ISSUED BY THE MINISTRY OF ENVIRONMENT AND FOREST. EXHIBIT R22 (E) - TRUE COPY OF LIST OF ORIGINAL ASSIGNEES PREPARED AFTER THE JOINT SURVEY CONDUCTED BY FOREST & REVENUE. EXHIBIT R22 (F) - TRUE COPY OF CERTIFICATE ISSUED BY THE VILLAGE OFFICER. EXHIBIT R22 (F)(I) - TRUE COPY OF ENGLISH TRANSLATION OF EXT.R22(F) // TRUE COPY // P.S. TO JUDGE “ **C.R.** ” ## **HRISHIKESH ROY, Ag.C.J & P.R.RAMACHANDRA MENON, J.** -----------------------------------W.P.(C) No.3787 of 2015 S -----------------------------------Dated this, the 3[rd] day of August, 2018 ## **JUDGMENT** ## **Hrishikesh Roy, Ag.C.J.:** Heard Sri.Harish Vasudevan, the learned counsel for the petitioner. Sri. Nagaraj Narayanan, Special Government Pleader (Forest), appears for the State authorities. Learned Senior Counsel, Sri. S.Sreekumar represents respondents 13, 14 and 22. The additional respondent No.24 is represented by Sri.Bechu Kurian Thomas, learned Senior Counsel. The learned counsel Sri.T.M.Chandran represents the respondent No.15. 2. The petitioner is a registered voluntary organisation, working towards the protection and improvement of forest areas and to safeguard the interest of environment in Kerala. The focus of their interest in this case is the conservation of the hill, "Muniyattukunnu", which is part of Reserve Forest and where quarrying activities of respondents 13 to 23 are going on, destroying the forest and endangering the "Dolmens" or "Muniyaras", which are ancient monuments of Megalithic Era. 3. The Muniyattukunnu hillock is situated in Varantharappilly Panchayath in Mupliyam Village in Thrissur District and the concern for the preservation and protection of "Muniyaras" or "Dolmens" in the area has also been expressed to the District Collector, by the Archaeological Survey of India, through their communication WP(C) No.3787 of 2015 - 2 - of 3.9.2013, Ext.P1. In this letter, the 4[th] respondent stated that the quarrying and mining activities in the ancient site are posing threat to the protected monuments and such damaging activities must be prevented, under the Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968 (hereinafter referred to as the “Monuments Act, 1968”). ## PETITIONER'S ARGUMENTS 4.1 The petitioner contends that the respondents are operating quarrying or mining units in Mupliyam Village, which is categorised as a forest land. While a portion of the forest land has been specially assigned for limited use like dwelling home, shop and cultivation, the mining lease and quarrying permits in the area have been illegally granted by disregarding the obligation to protect forest and also to augment afforestation, in the denuded areas. 4.2 The copies of the pattas granted under Ext.P2 series are referred to by the petitioner to project that those pattas were issued under the Kerala Land Assignment (Regularisation of Occupation of Forest Lands prior to 1.1.1977) Special Rules, 1993 (hereinafter referred to as “the Assignment Special Rules, 1993”) and only a limited right of utilising the surface land for dwelling house/cultivation/shop is allowed, while the Government have reserved for itself, the sub-soil rights in the assigned land. 4.3 According to the petitioner, the categorisation of land continues to remain Reserve Forest and accordingly it is submitted that not only this area cannot be utilised for granite stone quarrying purpose, but the patta itself stipulates the obligation of the assignee to protect the already identified standing trees, on the assigned land. It is further contended that despite the patta, the right over the trees within the patta land, rests with the Forest Department and according to the petitioner, the quarry activities have resulted in wanton WP(C) No.3787 of 2015 - 3 - destruction of the standing trees and it has also posed a serious threat to the “ Dolmens” which are required to be protected under the Monuments Act, 1968. 4.4 The land where the quarrying activities are carried out, is part of Kodassery Reserve Forest, where limited rights were granted to the encroachers by issuing patta under the Assignment Special Rules, 1993, but the status of the land continues to be Reserve Forest land. Under Rule 3, such patta land can only be used for agriculture or for construction of house or for construction of shops and while alienation of the land is permitted, the transferee cannot use the land for any other purpose, than those specified in Rule 3 of the Assignment Special Rules. It is thus argued that utilising the land for any other purpose would mean infringement of the patta conditions by the assignee and quarrying activities in such land cannot be permitted, on account of the express prohibition contained in the Assignment Special Rules. In this context, it is further submitted that nonforest activities like mining and quarrying over these lands will require mandatory environmental clearance, from the Central Government and such clearance not having been granted, the utilisation of the land for non forest purpose should lead to cancellation of patta. 4.5 While the topography of the land is altered through encroachment and destruction, the petitioner highlights the fact that since the area continues to be categorised as Reserve Forest, afforestation and protection of the area should be the goal of the State but allowing quarrying activities will entirely destroy the area. Moreover, the destruction of whatever green cover which is now available on the top soil, will have significant negative impact on the people, permitted to reside in the area. 5. In course of his submission, the petitioner's counsel relies on the ratio WP(C) No.3787 of 2015 - 4 - of Nature Lovers Movement v. State of Kerala, reported in (2009) 5 SCC 373, to contend that the Forest (Conservation) Act, 1980 (hereinafter referred to as “Conservation Act”) was enacted to check further deforestation and to prevent ecological imbalance and therefore, the provisions made under this Act must apply to all forests, irrespective of the nature or ownership or classification thereof. The counsel draws specific attention to the following two paragraphs of the verdict: “23. …............................................................................... 1. …....................................................................... 2. The 1980 Act is prospective in operation and the provisions contained therein are not applicable to cases in which the forest land has already been used for non-forest purposes prior to 25-10-1980. 3. The Scheme framed by the State Government for compensatory afforestation satisfies the condition imposed by the Government of India in its letter dated 23.3.1993 and the decision of the State Government to grant pattas/leasehold rights to pre1.1.1977 unauthorised occupants/encroachers of forest land did not involve violation of any constitutional or legal provision. 4. The decision of the Central Government to grant approval to the use of the forest land for non-forest purpose is not violative of Articles 48-A or 51-A of the constitution. 5. The provisions of the 1993 Rules are legal and valid. 6. The cut off date i.e. 1-1-1977 fixed for assignment of forest land is not arbitrary. 7.The unauthorised occupants/encroachers are liable to pay compensation for the injury caused to the general public by using forest land for non-forest purposes. 24. Learned counsel for the appellants submitted that his client is not serious in pressing the challenge to the Central Government's decision to approve the use of forest land for non forest purpose, namely, assignment of forest land to pre 1.1.1977 unauthorised occupants/encroachers because the said decision was taken for solving the problem being faced by 50000 families which are settled in forest areas for last more than five decades, but argued that the declaration made by the Full Bench of the High Court that the 1980 Act is prospective and is not applicable to the cases involving use of forest land for non-forest purpose prior to 25-10-1980 is ex facie erroneous and is liable to be set aside, else the same is likely to be misused by the State Governments for regularising the encroachments of forest land made prior to 25-10-1980 without seeking prior approval of the Central Government”. WP(C) No.3787 of 2015 - 5 - ## RESPONDENTS' ARGUMENTS 6.1 On the other hand, learned senior counsel Sri. S.Sreekumar submits that the quarrying leases are issued in respect of lands which are assigned under the provisions of the Assignment Special Rules,1993 and the permission under Section 2 of the Conservation Act, 1980 is necessary for conducting quarrying operations. The Senior Counsel projects that 28,588.159 hectares of forest land spreading across 5 Districts were identified by the Government as occupied by the people and these lands were decided to be assigned to the concerned occupants by issuing them pattas, decades earlier. This was done because of the realisation that forest lands have been converted by human occupation and it may not be possible to restore those lands to its original nature. But, by the time pattas came to be issued to the occupiers, as per the 1978 Policy decision, the Conservation Act was promulgated by the Central Government and this necessitated the State Government to move the Central Government for their prior approval for diversion, regularisation and assignment on Registry, all those lands for agricultural and non forest use. Based on the recommendation of the Forest Advisory Committee, the Central Government had, in principle, approved it. Thereafter, the Assignment Special Rules,1993 were framed as a special purpose vehicle, to implement the scheme of assignment. 6.2. Sri. Sreekumar projects that because of encroachment and development, the concerned land has long ceased to be a forest land. The limited right of cultivation/dwelling house/shop enjoyed by the assignees, according to him, relates to the surface area only and the Senior Counsel argues that the right in respect of the minerals in the sub-soil, continues to vest on the Government WP(C) No.3787 of 2015 - 6 - and extraction right can be legally permitted to a third party by the State, on Royalty share module, for the extracted minerals. 6.3 The learned Senior Counsel refers to the Kerala Minor Mineral Concession Rules, 1967 (hereinafter referred to as “Mineral Rules, 1967”) to submit that grant of quarrying lease in respect of the land in which, the minerals lie and vest in the Government, is permissible under Chapter V, and accordingly, the mining/quarrying operation by the private litigants in respect of lands, which are assigned under the Special Assignment Rules, 1993 on the basis of the lease granted to them by the Kerala Government, is contended to be permitted by law. 6.4 The respondent's counsel took pain to read the Full Bench decision of this Court in Nature Lover's Movement (supra), to point out that the Court itself noted that lands were transformed into agricultural holdings and on account of the human settlement for decades, there is no scope for reverting the land to its original status. In reality, the land has ceased to be forest land with the development of township, educational institutions, hospitals, etc. and only in Government records, they are categorised as forest lands. This conclusion of the Full Bench was in consideration of the Supreme Court in 2009 (2) KLT Suppl.884 (SC), in the case of Nature Lovers' Movement v. State of Kerala, where even the Supreme Court noted that the lands proposed to be assigned have actually ceased to be forest land and it may not be possible to restore those lands to their original status of vegetation or ecology, as thousands of families occupying these areas cannot now be evicted **.** 6.5 Referring to another passage of the Full Bench judgment, the learned Senior Counsel asserts that, there must be adjustment and reconciliation between preservation of environment and development of economy and that is why the Full Bench dismissed the Public Interest Litigation by declaring that the steps taken for WP(C) No.3787 of 2015 - 7 - sustainable development are in conformity with the prior approval granted by the Central Government. 6.6 According to Sri.Sreekumar, a further order of de-reservation under Section 26 of the Kerala Forest Act, 1961 in respect of the assigned land is inconsequential and not warranted and the categorisation of the land in the Government records will not obstruct the use of the land for non forest purposes, on account of the prior approval granted by the Central Government under the Forest Conservation Act. 6.7 The learned Senior Counsel, next contends that mining is an activity involving sub-soil and neither the Assignment Special Rules, 1993 nor any patta conditions attached to the pattas suggest that the sub-soil rights were also transferred to the assignees by way of grant. According to him, the Government reserved for itself the rights on the minerals in the sub-soil at the time of making the assignment and, reserving the rights over the trees under clause (1) of the patta does not mean that the character of the land remained as Reserve Forest. 6.8 Referring to the Mineral Rules, 1967, the respondents argue that the Government continues to reserve for itself the right over the minerals in the lands assigned under the Assignment Special Rules, 1993 and the patta holders were not transferred/granted the mineral rights. On the basis of Clause (1) of the quarrying lease in Form H read with Rule 13 of the Mineral Rules, 1967, the Senior Counsel contends that quarrying operation conducted by the respondents will not infringe the patta conditions. 6.9 On the issue of protected monuments, that is, the “Muniyaras” under the Monuments Act, 1968, the Senior Counsel points out that quarrying leases were in respect of areas which were never notified as protected area under Section 4 of the Monuments Act,1968. Consequently, he argues that, only such WP(C) No.3787 of 2015 - 8 - quarrying operation within the notified area can be prohibited under Section 19 of the Monuments Act,1968 and quarrying operation outside the protected area, is legally permissible. 7.1 Representing the additional respondent No.24, Sri.Bechu Kurian Thomas, learned Senior Counsel in his turn submits that mineral extracted by the respondents through quarrying/mining activities, is helping to sustain the developmental goals of the Kerala Government and that is why the mining leases, according to him, were consciously granted with the due approval of the jurisdictional Geologists. 7.2 The Senior Counsel highlights that quarrying activities are done in adherence to the terms of the lease agreement and such activity cannot be said to be destroying the forest land, as has been suggested by the petitioner, since the land ceased to be forest land and is currently occupied by a large number of pre 1.1.1977 category encroachers, who have been issued pattas. On that basis, the exploitation of the sub-soil minerals with due permission, is projected to be legally permissible. 7.3 Sri.Kurian refers to the Kerala Forest Act, 1961 (hereinafter referred to as “1961 Forest Act”) to indicate that the Government has power to constitute any land at the disposal of the Government, as Reserve Forest under section 3 and he refers to the definition Section 2(g) to highlight that the concerned land having been assigned since, cannot be said to be now available for categorisation as Reserve Forest, under the 1961 Forest Act. 7.4 According to the counsel, whenever any such claim is admitted under Section 10, the Government has the power under Section 15 to, either (i) to come to an agreement with the claimant for surrender of the right; or (ii) exclude the WP(C) No.3787 of 2015 - 9 - land from the limits of the proposed Reserve; or to (iii) proceed to acquire the land according to the law in force for acquisition of land for public purpose and, on this basis, it is argued that in the event the right of the lease-holder is to be interfered, the authorities must adopt either of the procedure provided under Section 15 of the 1961 Forest Act. 8.1 Appearing for the respondent No.15, the learned counsel Sri. T.M.Chandran submits that the concerned land operated by his client, was the patta land of one P.K.Janardhanan and the said rocky land is unfit for cultivation. That is why, when the land was sold in public auction, respondent No.15 purchased the rocky land to conduct quarrying operation and such quarrying activity is duly permitted by the Government. According to him, as the property was acquired through a court sale, no encumbrance can be made over the property. On this basis, he argues that interference of the Court would be unjustified. 8.2 It is the further submission of Sri.T.M.Chandran that when the respondent No.15 is conducting quarrying operation in the property with due permission and all Government dues have been paid without any default, his enjoyment without any obstruction must be protected. The counsel then refers to Exts.R15(n) and R15(o) produced with the counter affidavit to argue that the land in question is not a forest land but is demarcated as revenue puramboke. 8.3 Sri.T.M.Chandran adopts the other arguments advanced by the two Senior Counsel and submits that since the deforestation took place 4 decades back, and there is human habitation in the area, which has been recognised through assignment, the respondent No.15 has the right to extract the minerals WP(C) No.3787 of 2015 - 10 - from his property and he cannot be prevented from using the said property for carrying out quarrying operations, during the subsistence of the lease. 8.4 According to the counsel, there are no Dolmens within the vicinity of his property and therefore, his activities cannot be restricted under the Monuments Act. 9.1 Representing the State authorities, the learned Special Government Pleader Sri.Nagaraj Narayanan however submits that, right of ownership is limited by nature and he refers to the 7[th] condition in the patta (Ext.P2) to highlight that the existing and customary rights of the Government and also of the public, in the roads, parks, rivers, streams and channels running through the boundaries, are not impacted by the grant. Consequently, the right of the Government to a share in the mines and quarries adjacent to the said lands, are reserved and are not made available to the patta holder. 9.2 The learned Government advocate refers to the counter affidavit filed by the Chief Secretary of the State to submit that the status of the land continues to be Reserve Forest, notwithstanding the issuance of the patta under Special Rules, 1993. Hence quarrying in such assigned lands definitely infringes the patta conditions. 9.3 According to the Government Advocate, the quarrying permits should not have been granted, as such destructive activities on the sub-soil would invariably impact the surface area of the land and would also violate the patta conditions where-under, only limited activities were permitted to the assignees. 9.4 It is further pointed out by the State Counsel that since the forest land and the puramboke land are situated side by side, a joint survey by the Revenue and Forest Department must be conducted and the protection of the standing WP(C) No.3787 of 2015 - 11 - trees in the patta land and further afforestation should be the aim, instead of allowing quarrying operations, which will create ecological imbalance and will be a health hazard for the permitted occupiers, who would expect retention and expansion of the green cover in their surroundings. 9.5. The Government Advocate highlights that the Kerala Government is yet to de-notify the Reserve Forest land and therefore, the counsel submits that utilisation of the land for any activity leading to deforestation, should be strictly prohibited by tilting the balance in favour of public interest, where the private interest of the lease-holder must give away. 9.6 Sri.Nagaraj Narayanan, then refers to the ratio in the judgment of the Apex Court in Nature Lovers' Movement (supra) to point out that the term “forest land” according to Section 2 of the Conservation Act, will not only include “forest” as is understood in the dictionary sense, but also any area recorded as forest in the Government records irrespective of the ownership. On this basis he argues that, since de-notification of the land from the Reserve Forest category is not done, the consequence arising out of the protective categorisation, will continue to operate on the land in question, despite the assignment or the quarrying lease, granted over that. ## ISSUES ARISING FOR CONSIDERATION 10. From the arguments advanced by the learned counsel for the parties, the issues that arise for our consideration in this case are: ( **A** ) Whether the lands in Mupliyam Village where quarrying activities are carried out, should be considered as forest lands requiring strict application of the Forest Conservation Act, 1980? ( **B** ) Whether on account of the destruction of forest and large scale settlement and assignment over the area, the lands can be treated as non-forest lands, where quarrying activities can be permitted? WP(C) No.3787 of 2015 - 12 - ( **C** ) Whether the reserve forest land assigned for the limited purpose of agriculture, dwelling house or shop can also be utilised for quarrying activities? ( **D** ) Whether the quarrying activities pause a threat on the Muniyaras which are required to be protected under the Monuments Act, 1968? ( **E** ) Whether the quarrying lease obtained by the respondents was with full disclosure of the nature of the land and whether the leaseholders will be covered by the restrictive conditions that applied to the patta holders of the assigned land? ( **F** ) Whether by the nature of the destruction of the land, the State authorities are absolved of their obligation to foster afforestation instead of further destruction of the already denuded land? ## DISCUSSION 11. This is one of those cases where the Court is required to strike a balance between the need to shield our natural resources and the development demands of the people. Since the litigation relates to quarrying activity, we may benefit by referring to the study done by the Kerala Forest Research Institute, Peechi, relating to quarrying activities in Kerala, in the article "Mapping of Granite Quarries in Kerala, India: A critical mapping initiative". The relevant findings are extracted in the judgment in V.K.Velu and others v. Anil Kumar, reported in 2017(2) KHC 911:- “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 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 WP(C) No.3787 of 2015 - 13 - 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).” “(B) The shortcomings in the regulatory measures were recorded by the Judge, in the following passage:- 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 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.” 12. It is important to bear in mind that the lands on which quarrying activities are being carried on, were notified as Reserved Forests, under the Notification dated 08.08.1896, 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 identified by the State Government and earmarked for allotment to landless persons for rubber WP(C) No.3787 of 2015 - 14 - cultivation. Thereafter, the said lands were assigned in terms of the Special Assignment Rules that were framed under the 1960 Act. 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. 13. There is yet another aspect of the matter. The Forest Conservation Act, 1980 was brought into force with effect from 25.10.1980. The Supreme Court in Ambica Quarry Works v. State of Gujarat and Others - [1987 KHC 836] explained the Scheme of the Act 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 25[th] 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 25[th] 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 WP(C) No.3787 of 2015 - 15 - (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 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.” 14. Likewise, 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. 15. Given the stated objective of the Forest Conservation Act, 1980, and the restrictions placed on State Governments, through Section 2 of the Act, against any de-reservation of forests, assignment of such lands or utilization of forest lands for non-forest purposes, and clearing of such forests, without obtaining prior approval of the Central Government, it is clear that the provisions of the Act would equally apply to lands that were "Forests" as on 25.10.1980. The statutory provisions would also apply to Government lands that were leased out for nonforest purposes, prior to 25.10.1980, but come up for lease renewal after 25.10.1980. WP(C) No.3787 of 2015 - 16 - 16. The State Government has enacted the Kerala Forest (Prohibition of Felling of Standing Trees of Land Temporarily or Permanently Assigned) Rules 1995 (hereinafter referred to as “the 1995 Rules”), Assignment Special Rules,1993 and also the Preservation of Trees Act, 1986 and this Court while referring to these enactments, in The Divisional Forest Officer, Malayattoor and Others v. P.M.Jalal and another, reported in 2015 (5) KHC 468, indicated that the three statutes operate for three different objects and purpose. For the land covered under the Special Assignment Rules,1993 both the Preservation of Trees Act and also the 1995 Rules apply, with respect to the trees covered thereby. Therefore, the assignee is bound by the terms of the patta and is also required by law to preserve the trees mentioned in the patta notwithstanding that they may not be covered by the Preservation of Trees Act, since cutting of trees would result in penal consequences for the violator, under the Kerala Forest Act. The Court observed that the objective of these enactments is for the preservation of ecological balance and protection of soil, which in turn will have direct bearing on the sustenance and protection of environment and forest wealth. Therefore, the objective of this Court should be to prevent wanton waste of forest and strict interpretation against the violators would be in public interest. 17. In Haridas.R v. State of Kerala, reported in 2016 (5) KHC 615, this Court was considering the right of the assignee of the original pattadar where the patta was specifically intended for the purpose of personal cultivation. Adverting to what can be the legitimate expectation of such assignee, this Court observed that the intention of such assignment is to enable the assignee to carry on the cultivation, which has a larger social aspect embedded within the very intention of assignment viz., promotion of cultivation of cash or food crops, enriching the WP(C) No.3787 of 2015 - 17 - economy of the State and ensure the availability of food and fodder. Therefore, when the purpose of assignment is not adhered, the State would be competent to cancel the assignment and either vest the land back to the Government or to assign it to others, for the purpose of cultivation. It can be inferred from this decision, that, no better right can be claimed by the assignee other than that was intended or indicated, for the original patta holder. 18. In another Division Bench decision viz. V.R.Thirumalaiswamy Gounder v. Chief Conservator of Forests (1996 KHC 546), the Court was considering the case of a firm involved with the cultivation of cardamom, encroaching upon the reserve forest. The Government decided to grant lease to the firm in respect of the encroached land prior to the commencement of the Conservation Act, but before the actual execution of the lease, the Conservation Act came into force, which necessitated prior approval of the Central Government to utilise the land for non forest purposes. In that context, the court opined that even if the land had been broken up prior to 25.10.1980 and was used for a non forest purpose, that by itself cannot dispense with the need to have prior approval of the Central Government, in view of the fact that the land proposed to be leased out for cardamom cultivation, is now part of the notified Reserve Forest. 19. The issuance of patta in the Reserve Forest land was elaborately considered in Nature Lovers Movement v. State of Kerala, reported in AIR 2000 Kerala 131, and in this proceedings, the Full Bench referred to the situation in the area. The circumstances in the Forest Land leading to the issuance of patta for rehabilitation of the pre 1.1.1977 encroachers, was recorded and the proposal made by the Kerala Government in that context, for diversion of forest land for WP(C) No.3787 of 2015 - 18 - agricultural and non-forest use, to an extent of 28,588.159 hectares in the five Districts including Thrissur District, for regularisation of pre-1.1.1977 encroachers and assignment of such land to them, under the Special Rules,1993. The State's proposal was mooted to the Central Government, in the following letter dated 26.6.1986. "GOVERNMENT OF KERALA Forest Environment & Wild Life (C) Department No. 51289/FGI/83/AD Trivandrum **Dated: 26.6.1986** From The Agricultural Production Commissioner & Secretary (Agriculture & Forests) To The Secretary to Government of India, Ministry of Forest and Environment, Department of Forest and Wild Life, Government of India, Krishi Bhavan, New Delhi. Sir, Sub: Forests-Assignment of Forest Lands which have already come under Agricultural occupations-clearance under Forest Conservation Act requested. Several forest areas in Kerala came to be exposed to human occupation particularly since 1956, primarily due to the very heavy pressure of population and secondarily due to Governmental programmes like colonization schemes, grow more food schemes, arable land scheme, hydro power projects, plantations etc. In the sixties and seventies, the perspective was one of providing land based employment to landless people. It was on account of this that some of the above schemes came under implementation. Forest lands were transferred for non forest purposes. Pressure built up for further expansion into forest areas adjoining converted lands. Government did carry out evictions of unauthorised encroachments from time to time from forest as well as project areas. Nonetheless, this kind of pressure continued and by the time the Central Forest Conservation law came into force in 1980, there still were a large number of unauthorised occupations in forest areas. In the meantime, Government took the decision to regularize all the occupations that had come into being prior to 1.1.1977. The matter was taken up by the Chief Minister of Kerala with the Prime Minister in a letter dated 20th of March 1984. He sought the special intervention of the Prime Minister in the matter of regularization of pre-1.1.1977 occupations. The Union Minister for Agriculture, Shri Rao Birendra Singh in his letter number 1598-Minister(Agriculture)/8 dated 23rd of March 1984 (Copy enclosed) replied to the Chief Minister stating that the Government of India agree in principle that occupations prior to 1.1.1977 may be regularized by issue of title deeds under the Kerala Land Assignment Rules to eligible persons. However, he wanted full details regarding extent, period of occupation, pattern of cultivation, impact of encroachments on conservation aspects etc. WP(C) No.3787 of 2015 - 19 - Largely, the encroachments are in five Revenue Districts (14 Forest Divisions). Detailed joint field verification has been got conducted by teams of Revenue and Forest officials to determine the particulars of occupants, estimated area of individual holding, nature of cultivation, age of occupations etc. To be specific, the following are the division-wise details of the encroachments:(The estimated number of holdings is over 50,000) |Detailed joint field verification has been got conducted by teams of Revenue and Forest<br>officials to determine the particulars of occupants, estimated area of individual holding,<br>nature of cultivation, age of occupations etc.<br>To be specific, the following are the division-wise details of the encroachments:-<br>(The estimated number of holdings is over 50,000)|Detailed joint field verification has been got conducted by teams of Revenue and Forest<br>officials to determine the particulars of occupants, estimated area of individual holding,<br>nature of cultivation, age of occupations etc.<br>To be specific, the following are the division-wise details of the encroachments:-<br>(The estimated number of holdings is over 50,000)|Detailed joint field verification has been got conducted by teams of Revenue and Forest<br>officials to determine the particulars of occupants, estimated area of individual holding,<br>nature of cultivation, age of occupations etc.<br>To be specific, the following are the division-wise details of the encroachments:-<br>(The estimated number of holdings is over 50,000)| |---|---|---| |----------------------------------------------------------------------------------------------------------------------||| |**Name of forest division**|**District**|**Estimated area of the**| |||**occupations (in hectares)**| |----------------------------------------------------------------------------------------------------------------------||| |1. Chalakudy|Trichur|380.00| |2. Trichur|Trichur|2340.00| |3. Munnar|Ernakulam|185.00| |4. Munnar|Idukki|180.00| |5. Munnar|Idukki|6940.65| |(Cardamom Hill Reserve)||| |6. Kothamangalam|Ernakulam|160.00| |7. Kothamangalam|Idukki|2430.00| |8. Malayattur|Ernakulam|30.00| |9. Malayattur|Idukki|410.00| |10. Kottayam|Idukki|1500.00| |11. Kottayam|Idukki|13443.94| |(Cardamom Hill Reserve)||| |12. Periyar Wild Life -|Idukki|480.00| |- Sanctuary||| |13. Konni|Pathanamthitta|60.00| |14. Thenmala|Quilon|70.00| ||Total|28588.159| So far as Udumpanchola Taluk (Kottayam Division) is concerned it was resurveyed during the period from 1974 to 1977. This re-survey was done close to the crucial date of 1.1.1977. Resurvey records are also very authentic having been prepared after following the statutory formalities under the Survey and Boundaries Act including detailed field survey. So far occupations in Udumpanchola taluk have not been subjected to further joint field verification referred to above. The lands proposed to be assigned have actually ceased to be forest lands years back. They are forest lands only on record. Townships with colleges, Schools, hospitals, etc. have come up in many of these places. These lands cannot be restored to their original status of vegetation or ecology and for that purpose thousands of families occupying these areas cannot be evicted. So far as the areas other than Udumpanchola taluk are concerned, extent of occupations has been assessed only on the basis of ocular estimation. Permanent demarcation of the line of control through a regular survey will have to be done before the occupants are assigned lands. In the occupied lands, there is some residual tree growth of very sparse distribution. Such residual tree growth can be salvaged before title deeds are given. The Chief Conservator of Forests has recommended that for compensatory afforestation revenue land will have to be made available. This recommendation is not feasible of implementation. Vacant revenue lands of the extent required for compensatory afforestation are just not available. We cannot also acquire lands, costs being prohibitive. Acquisition will also involve displacement of the occupants which exactly Government are trying to avoid in the unauthorisedly occupied areas. Proforma statements and maps are submitted herewith Division wise. While proforma statements have been authenticated by forest officials including the Chief Conservator of Forests, the attached maps have not been authenticated by them. The reasons is that, as already stated, in regard to areas other than Udumpanchola WP(C) No.3787 of 2015 - 20 - occupations wise survey have not been done. So the maps have been prepared only approximately indicating the life of the occupations on copies of the relevant survey of India sheets. Government of India may be pleased to convey their concurrence under the Forest Conservation Act for the purpose of enabling issue of title deeds to the occupants of these forest areas which already stand converted on ground for agricultural purpose for a number of years now. Yours faithfully Sd/- For The Agricultural Production Commissioner & Secretary (Agriculture & Forests)" 20. In response to the above proposal, the Ministry of Environment and Forests, Government of India in their communication dated 23.3.1993 granted the approval, under Section 2 of the Forest Conservation Act, stipulating conditions (i) to (vi) (noted below), including ground survey, demarcation, soil conservation and compensatory afforestation, over double the degraded land. The letter being relevant is extracted:- “No.8-118/86-FC Government of India, Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, Lodi Road, New Delhi – 110 003. 23 – 3 - 1993 The Secretary, Forest and Wildlife Department, Government of Kerala, Thiruvananthapuram, Kerala. Sub: Diversion of forest land for agricultural and other non forest uses – Proposal - regarding. ….... Sir, I am directed to refer to your letter No.51289/FG/1/80 dated 26-6-1986 on the above mentioned subject seeking prior approval of the Central Government in accordance with Section 2 of the Forest (Conservation) Act, 1980. 2. After careful consideration of the proposal of the State Government, the Central Government hereby agrees in principle for approval for diversion of 28.588.159 hectares as forest land in Idukki, Pathanamthitta, Thrissur, Ernakulam and Kollam districts for regularisation of pre-1-1-1977 encroachments in Kerala subject to the fulfilment of following conditions. WP(C) No.3787 of 2015 - 21 - i) Ground verification and demarcation of area to be regularised in favour of individual encroachers shall be done by the State Government. ii) Regularisation of encroachments shall not be done in favour of encroachers (otherwise found eligible) either in the midst of the forest area or in the Periyar Tiger Reserve/Wild life sanctuary. Such encroachers are to be shifted on the fringe of the forests, for which excess area available for eligible encroachers may be utilised. iii) Detailed map showing demarcation of the area to be regularised in favour of individual encroachers shall be got prepared. iv) Regularisation of encroachments in favour of eligible encroachers shall not be done in excess of assignment permissible as per Kerala Land Assignment Rules, 1988, the excess area with such encroachers shall be taken back from the possession of the encroachers and shall be utilised for shifting eligible encroachers from the midst of the forest area or from Periyar Tiger Reserve area. v) A comprehensive scheme for soil conservation and agro forestry shall be prepared and implemented as a time bound programme to check accelerated soil erosion and siltat of dams taking place in the area. vi) The State Government shall give firm committing that funds for the compensation afforestation over double the degraded forest land shall be provided to the Forest Department, as per the phased compensatory afforestation scheme compensatory afforestation shall be done with a period not exceeding five years. 3. After receipt of compliance report on the fulfilment of the above conditions from the State Government, formal approval will be issued in this regard under Section 2 of the Forest (Conservation) Act, 1980. Transfer of forest land to user agency should not be effected by the State Government till formal order approving diversion of forest land are issued by the Central Government. **==> picture [134 x 31] intentionally omitted <==** 21. The Conservation Act was intended to provide for protection of forest and for such other incidental purposes and the provisions will have overriding effect on all other laws. The diversion of any forest land will require prior approval of the Central Government under Section 2 and, under Section 4, the Forest (Conservation) Rules 1981 have been framed which provide for the composition of Advisory Committee and how the proposal for diversion of forest land, is to be dealt by the authorities. 22. Neither the word “Forest” nor “Forest land” are defined in the Act or the Rules, but the courts have recognised that all areas recorded as Forests in the Government records irrespective of ownership, should be understood as Forest under the Act and the Rules. 23. The Kerala Government while seeking approval of the Forest and Environmental Ministry for regularisation of the pre1.1.1977 encroachers in the WP(C) No.3787 of 2015 - 22 - forest land in the letter dated 15.3.1993, had committed to the following: - (1). The status of the land will continue to be reserved forests. - (2). Survey of individual holdings should be completed before issuance of patta. - (3). Encroachments in Periyar Tiger Reserve and Wildlife Sanctuaries will not be regularised. - (4). Eligible encroachers residing in Sanctuaries and Periyar Tiger Reserve maybe given land from the excess land taken over from other encroachers. - (5). Assignment may be made as per Land Assignment Rules. - (6). All encroachments after 1.1.1977 should be evicted. - (7). Soil conservation measures should be taken up in the proposed assignment areas. - (8). Alienation of the land should be prohibited. 24. The above letter of the Kerala Government led to the in-principle approval of the Central Government, for diversion of forest land. In that context, the Full Bench of this Court noted that the lands proposed to be assigned, have actually ceased to be forest land and they are shown as forest land, only in the Government records. In fact, townships with educational and hospital facilities have come up in many of those areas and it would be impossible to evict around 35 lakh occupiers from the protected land. Thus treating it as a human and socio-economic problem, the pre 1.1.1977 encroachers, were proposed to be rehabilitated with due approval of the Central Government and such proposal and resultant action were approved by the Full Bench of this Court, in the case of Nature Lovers' Movement (supra). 25. When a Special Leave Petition was filed against the Full Bench judgment dt. 7.10.1999, the Supreme Court in Nature Lovers Movement v. State of Kerala, reported in (2009) 5 SCC 373, on account of the approval granted by the Central Government, refused to interfere with the action taken by the State Government to regularise the encroachment in the forest land in the five districts. However, in the same context, the Apex Court also indicated that the word “forest” in the Forest Conservation Act will not only include “forest” as is understood in the WP(C) No.3787 of 2015 - 23 - dictionary sense, but shall also cover any area recorded as forest in the Government records, irrespective of ownership. 26. The version of some of the private respondents that the Government, while passing Ext.R15(e) order dated 19.11.1999,has fixed/reduced the compensation payable by the occupants of forest land prior to 01.01.1977, in connection with assignment in terms of the Kerala Land Assignment Special Rules, 1993 only as Rs.5000/- per acre is not correct, though Condition No.2 mentions the figure as Rs.5000/- per acre. Evidently, the said Government order was passed, accepting Ext.R15(d) report of the Committee dates 25.10.1999. The Committee, based on the relevant facts and figures arrived at a finding that the cost of afforestation worked to be Rs.12,140/- per acre. After considering the said cost for compensatory afforestation and also the loss due to the damage on environment, the compensation payable by the occupant was fixed as Rs.15,000/per acre. This was accepted by the Government, leading to Ext.R15(e) Government order dated 19.11.1999, but then, a typographical error occurred in showing the compensation as Rs.5000/- per acre, instead of Rs.15,000/- per acre. This, however, does not tilt the balance in any manner, so far as the issue involved in this case is concerned. 27. On the issue whether the pattadars have any ownership right in the minerals below the surface of the land, this Court in Shibu v. Tahsildar reported in 1993 (2) KLT 870, considered the question and declared that in the absence of an express covenant created in favour of the patta holders, the Government's right to sole ownership right of the minerals is not impacted. In other words, only the surface right is allowed to the grantee and the pattadar has no right in the minerals, below the surface of the land. 28. As to which category of land can be considered as ecologically fragile WP(C) No.3787 of 2015 - 24 - within the meaning of Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, (hereinafter referred to as “Fragile Lands Act, 2003”), in the Division Bench judgment in State of Kerala v. Kumari Varma, reported in 2011(1) KLT 1008, the learned Court referred to Section 3 thereof, which prescribes the power of the Government to declare any land at the disposal of the Government as Reserve Forest. The expression 'land at the disposal of the Government' is defined under Section 2(g), which reads as under: “2(g). “land at the disposal of Government” includes all unoccupied land, all temporarily occupied land and all land occupied without permission, whether assessed or unassessed; but does not include land, the properties of land holders such as Jenmies, Devaswoms, or holders of Inam lands; also all holdings of land in any way subject to the payment of land revenue direct to Government and all other registered holdings of land in proprietary right”. The above provision suggests that the land over which the proprietary rights exist cannot be notified as forest land, but following the procedure under Chapter 2, the State can create private rights by granting patta under Section 7 of the Act. 29. In State of Kerala v. New World Investments(P)Ltd., reported in ILR 2016 (1) Ker.817, the Division Bench was referring to the provisions of the Forest Act, 1961 (Kerala Act 4 of 1962) and observed that, when an area is declared as reserve forest, there is prohibition of right of any description over the reserve forest and the statutory scheme admits only two contingencies (i) grant or contract in writing made by or on behalf of the Government and (ii) by or on behalf of some persons in whom such right or the power to create such right is vested when the notification under Section 19 was published or by succession from such person. 30. It is now appropriate to refer to patta conditions. Ext.P2 is the annexed patta which was issued to one Saleena Jose, W/o.Jose in Mupliyam Village and the WP(C) No.3787 of 2015 - 25 - ## covenants covering the patta are noted as under: ## “CONDITIONS: 1. The full right over all the trees within the grant and specified in the schedule vests in the Government forest Dept. and the assignee is bound to take care of all trees standing on the land at the time of assignment or that may come into existence subsequent to it. 2. The assignee is bound to afford all facilities to the officers of Govt. in the matter of inspecting the land periodically for checking the trees referred to in condition (1) above and removing them if necessary. 3. Alienation of the assigned land is strictly forbidden unless under the conditions of rule 15 sub-rule 2 in the event of alienation in contravention of the provision of this sub-rule it shall be open to the Government for resume the land without payment of any compensation. 4. In the case of an assignee allowed to pay the cost in instalments, if the assignee fails to pay any instalment in time the grant shall be cancelled. 5. No fees shall be levied (collected) related to survey and demarcation. 6. No previous arrears (dues) of patta on the land shall be levied. 7. The existing and customary rights of the Government and the public in roads and paths, rivers, streams and channels running through or bounding the land and the right of Government to a share in the mines and quarries adjacent to the said land are reserved and are in no way affected by the grant. *(Clause 7 incorrectly translated as indicated below in Note A) 8. All established rights of way and benefits with respect to road/path/other easement rights shall be respected by the assignee. 9. The land revenue or any tax or fee levied in lieu thereof on the land will be liable to revision. 10. In the event of any violation of any rules or conditions on grant, the Govt. has the right to resume the land without any compensation. This Patta subject to the order of Hon. Supreme Court. Chalan No.2027 Dt.23.6.2000 Rs.3560/Land Value Chalan No.2028 Dt.23.6.2000 Rs.1780/Compensation SCHEDULE Name of trees (Plot No.2) No. Other particulars 1. Teak 5 3 2. Kanjiram6 x 245 1 Other reserved trees if any should be mentioned. Sd/- Tahsildar Spl.Tahsildar (LA) Unit No.2, Thrissur” *NOTE A: - The translation of the above clause 7 of the Malayalam document does not appear to be correct and the actual clause as contained in the Malayalam WP(C) No.3787 of 2015 - 26 - version reads as follows: **==> picture [404 x 224] intentionally omitted <==** The English version does not appear to be the verbatim translation of clause 7 in Malayalam version. The Malayalam version does not refer to any right of the Government to a share in the quarries and mines, but refers to the 'right of access' referred by the Government to have access to the nearby mines or quarries through the assigned land. 31. The above assignment document makes it abundantly clear that full right over all the trees continue to vest in the Forest Department and the assignee is made bound to protect not only the standing trees but also those that may come up subsequently. Thus an element of protection of standing trees and afforestation is inherent in the Patta. In addition, the Government retained for itself the rights in the roads, paths, rivers, streams and channels running through or bounding the land. This makes it amply clear that assignment of the land was not intended to destroy the trees but their protection and further growth was envisaged, even while quarrying activities was not ruled out altogether. 32. Next, we need to examine the lease conditions covering the quarrying lease. For instance, Ext.P2(a) executed on 22.7.2011 between the State WP(C) No.3787 of 2015 - 27 - Government and Sijo C.J (Respondent No.13) permitted extraction and removal of granite to the lease-holder. But conditions common in the lease deeds make it explicit that the lease is subject to all rules and regulations and quarrying activity must not be against public interest besides safety, health and inconvenience of the employees. What can be reasonably inferred from above is that none had absolute rights through the quarrying lease and for this proposition, we can seek support from Salmond's Jurisprudence, 12[th] edition, where the characteristics of legal rights are stated as below:- “41. The characteristics of a legal right: Every legal right has the five following characteristics:- (1) It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, or the person of inherence. (2) It avails against a person, upon whom lies the correlative duty. He may be distinguished as the person bound, or as the subject of the duty, or as the person of incidence. (3) It obliges the person bound to an act or omission in favour of the person entitled. This may be termed the content of the right. (4) The act or omission relates to some thing (in the widest sense of that word), which may be termed the object or subject-matter of the right. (5) Every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner. Thus if A buys a piece of land from B, A is the subject or owner of the right so acquired. The persons bound by the correlative duty are persons in general, for a right of this kind avails against all the world. The content of the right consists in non-interference with the purchaser's exclusive use of the land. The object or subject-matter of the right is the land. And finally the title of the right is the conveyance by which it was acquired from its former owner.” 33. But, from the indiscriminate issuance of mining lease and permits, the total non application of mind to the aforesaid restrictive conditions is discernible, which must be enforced in greater public interest. The quarry WP(C) No.3787 of 2015 - 28 - operations in the sub-soil is bound to destroy the protective cover essential for the surface area. Moreover, the granite rocks act as a fulcrum in preventing soil erosion. The public interest requires segregation of the areas fit for agriculture and the rocky area and then perhaps allow limited regulated quarrying only in the rocky segment. However, when the cultivation area and inhibited areas stand in close proximity to the rocky land where quarrying operations have been permitted, it would be foolish to assume that quarrying and mining activities can be carried out without any negative impact in the surrounding cultivable/inhabitable area. In fact, soil conservation would be a major casuality in the quarry areas. Therefore, it is essential to foster protection of both the earth's surface and also the sub-soil and here the forests have a major role. Forests are great natural reservoirs. A thick forest traps and keeps its rainfalls. It seeps through the floor into the sub-soil and feeds the stream during the rainless period. Trees play a crucial role in the monsoon cycle. By seeding clouds, they encourage the rain to fall; by trapping it, they help recharge the aquifers and hold ground water in store for the common good. 34. In matters of such crucial public interest, there should be close collaboration of the Revenue and Forest Departments, the authority of Mining and Geology Directorate. A joint survey to demarcate the area with forest cover and more importantly to mark out the areas where afforestation should be attempted, must be carried out by the Government agencies. But, here what is noticed is that quarry permits are granted only on the basis of one dimensional assumption of the fact that the area is uncultivable rocky area without any reference to the situation of inhabitation and cultivation, in the adjacent and the surrounding lands. 35. The authorities should also take into account, the possibility of WP(C) No.3787 of 2015 - 29 - destruction of the Dolmens/Muniyaras and the negative impact on such monolithic monuments through the quarrying and blasting operation in near vicinity. But no such attention appeared to have been paid in permitting such quarry operations in close vicinity of the monuments of archaeological importance. 36. The preservation of ancient monuments is emphasized by the Monuments Preservation Act and since Dolmens are standing on firm rocky foundations, it would certainly endanger the standing monuments, if quarry operations including blasting operations are permitted in those areas, to extract granite from the rocky terrain. 37. In the above backdrop, we are of the considered opinion that even if the site of the ancient monuments and its surroundings have not been statutorily declared as a protective area, in the interest of the standing Muniyaras, the surrounding areas are deemed to be protected, under Section 3(2) of the Monument Regulation Act. 38. The quarrying for minerals is certainly a non-forest activity and therefore, without securing prior permission from the Central Government, such non-forest activity cannot be permitted in the lands declared as Reserve Forest which continue to be categorized so, in the revenue records. But, no attention appears to have been paid to this aspect, when the quarry permits were granted to the respondents 13 - 23. The protection of the environment and soil conservation is paramount in public interest, as otherwise, the right to enjoyment of life, guaranteed under Art.21 of the Constitution, would be impacted for the inhabitants of the area. While the development needs may also have to be accounted for, the courts must bear in mind that environment must be protected and pollution be minimized for greater interest of mankind. 39. The concern expressed by Ext.P1 document by the authorities of the WP(C) No.3787 of 2015 - 30 - Archaeological Survey of India for protection of the monuments of historical importance which are placed in jeopardy through quarrying and mining activities, as also the concern expressed by the Forest Range Officer in Ext.P13 letter, cannot, in our view, be brushed aside since destruction and endangering the safety of Muniyaras is clearly highlighted through these letters, which call for emergent intervention of the authorities. 40. We also share our concern with the facts highlighted in Ext.P15 letter of Chief Forest Conservator, where it is stated that granite stone mafia and land mafias have joined together and influenced some officials and are operating on the basis of forged documents, by using banned explosives. The concerned officials are also found wanting in carrying out the survey of the area to determine the forest, the revenue area and and the patta area boundaries. Endangering the forest and historical wealth of the State even with permitted mining operations in the protected area can hardly be allowed. In fact, the constitutional mandate is for protection and improvement of the natural environment, including forest as also preservation of the heritage and therefore, there can be no escape from the proposition that there is a legal and constitutional duty cast on everyone, particularly the Government authorities, to protect the environment, in larger public interest. 41. In V.K.Velu and others v. Anil Kumar [2017(2) KHC 911], a learned Judge of this Court expressed concern about the pro-active role of the Government in giving permits for mining, lease and other activities. In that context, the learned Judge referred to the doctrine of Public Trust in the following passage: “........................................... . It must keep in mind the doctrine of Public Trust, which was developed as a legal theory by the ancient Roman Empire, and was WP(C) No.3787 of 2015 - 31 - 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 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 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; WP(C) No.3787 of 2015 - 32 - (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 holds that the present generation has no right to deplete all the existing resources and leave nothing to the next and future generations. ........................................................................ ." 42. As earlier noted, our natural resources must be protected but at the same time, the competing need to engage in developmental activities will have to be borne in mind. It is the responsibility of the present generation not to deplete all the existing resources and leave nothing to the future generations and the State must, therefore, step in and prevent the cause of environmental degradation. In many places of Kerala, loss of top soil is outpacing the nature's ability to patch up and the result is that soil that feeds all of us, undergoes severe degradation. With conversion of green land for human habitation, substantial damage is already done and that perhaps is irreversible. But, exploitation of granite stones from the subsoil through machines and explosives and the resultant impact, is something about which, we should be concerned about today, as a matter of precaution. The State is a Trustee of natural resources, as had been declared by the Supreme Court in M.C.Mehta v. Kamal Nath (supra) and therefore, these natural resources must not be allowed to be indiscriminately exploited for private gains, particularly in areas WP(C) No.3787 of 2015 - 33 - which are ecologically fragile. The consequences thereof may not be fully realised now, but the future generations are bound to suffer for our lack of vision. 43. It has been asserted by the petitioner that the quarries are being operated by the private respondents without getting environmental clearance, which is stated as a must, in view of the order passed by the Apex Court in Deepak Kumar and others v. State of Haryana [(2012)4 SCC 629]. The stand of the private respondents is that environmental clearance is not necessary, as the actual extent is less than 5 hectares and the law stands already declared by this Court in All Kerala River Protection Council v. State of Kerala [2015(2)KLT 78 (DB)]. But the facts remains that the very same learned Judges, after examining the scope of the said verdict had made it clear in W.A.No.1514 of 2015 (arising from WP(C) No.7781 of 2015) that environmental clearance is a mandatory requirement, even in respect of such quarries having lesser extent than 5 hectares. Similar view is stated to be taken by the National Green Tribunal as well. In so far as no environmental clearance has been obtained from the competent authority, the renewal of permit/functioning of the quarries can never be entertained. 44. Obviously, the quarrying lease was being executed between the Geologist coming under the Department of Mining and Geology, representing the State Government, without any involvement of the Forest or Revenue authorities. This was only with reference to the Kerala Minor Mineral Concession Rules, 1967, framed in terms of the relevant provisions of the Mines and Minerals (Development and Regulation) Act,1957. As such, permission was being granted without ascertaining the nature or purpose of assignment of land involved. The lacuna in this regard was taken note of by the Government, who, accordingly, filled up the gap while framing the new Rules (Rule 4 of the Kerala Minor Mineral Concession WP(C) No.3787 of 2015 - 34 - Rules, 2015), whereby production of the relevant certificate from the Village Officer is insisted, for granting/renewing the leasehold right. As it stands now, no lease can be granted, contrary to the purpose of the assignment. 45. The decision rendered by the Division Bench of this Court in W.A.No.1164 of 2010 [Ext.R14(e)], holding that quarrying activity can be permitted from the land allotted for rubber cultivation, notwithstanding the condition of assignment, does not declare any law, but for the concession made by the Government, stating that it was the then policy of the Government, as putforth by the Government Pleader. Coming to the instant case, the policy of the Governemnt is putforth in crystal-clear terms in the counter affidavit filed by the Chief Secretary to the Government, who represents the Mining Department, the Forest Department as well as the Revenue Department, that the quarrying activity will definitely endanger the ancient monuments of Megalithic era, situated in the nearby areas and that the Government does not want to cause any damage to the environment in this regard. In paragraph 20 of the counter affidavit, the Government asserts that instructions have been given to the District Collector, Thrissur, for cancellation of the pattas and take the lands back to the Government, in view of violations of the conditions and the relevant statutory provisions. 46. The private respondents concede that as per the patta issued to them, the property was assigned only for cultivation/other permissible activities, in terms of Rule 3/4 of the Kerala Land Assignment (Regularisation of Occupation of Forest lLands prior to 01.01.1977) Special Rules, retaining the right of the Government over the trees and the sub soil rights. It is with referrence to this sub soil rights retained with the Government as per the Statute, that the private respondents contend that such right has been validly leased out to them, as per the quarrying WP(C) No.3787 of 2015 - 35 - lease executed between them and the Geologist. When the private respondents concede that the Government is the owner or the ultimate authority to deal with the sub soil right, it is always open for the Government to consider whether they should issue/renew/continue to grant the quarrying lease. The Government have made their stand clear in the counter affidavit that the quarrying activity, has already damaged the ancient monuments in the area and has adversely affected the environment. They have taken a policy decision, not to have the quarrying lease renewed any more; instructing the District Collector to cancel the lease and take the land back to the Government. This Court cannot hold that the said stand/policy is wrong, nor can it be substituted in any manner, more so, considering the larger public interest involved, overeriding the limited private right of the party respondents. 47. Consequent to above, we are of the considered opinion that the Public Trust doctrine must also be made applicable in the present case. It is thus declared that whenever the Government decides to grant quarry permit or renew such permits, it must always take into account the availability of natural resources and the ecological impact and other environmental factors. Very often, quarry permits are granted on the basis of one sided self serving project reports which may not give a clear picture of the ground realities. This, in our considered opinion, is a significant lacuna to be addressed by State authorities. 48. Land degradation is a direct fallout of the quarrying activities and the long term effect of land degradation must be realised. The State must take all measures for soil conservation, as the green cover and trees on the top soil, can result in rejuvenation of the eco system. WP(C) No.3787 of 2015 - 36 - ## DECISION ON THE ISSUES 49. Following the above discussion and having regard to the ratio in TN Godavarman Thirumalpad v. Union of India (supra), as also the doctrine of Public Trust enunciated by the Supreme Court in M.C.Mehta v. Kamal Nath (supra), we are of the considered opinion that the concerned areas which are declared to be Reserve Forest, should continue to receive the protective cover of law, notwithstanding the settlement and assignment over the areas. In other words, these lands should be treated as forest lands. The assignment of these lands, for the limited purpose of settlement and agriculture in the already denuded lands, can be permitted. But, quarrying activities should not be encouraged, since it will cause permanent damage to the area. The removal of granite stones even from the rocky areas, will lead to loosening of the surface soil with its attendant problems of landslide and destruction of the green cover and these can hardly be permitted, if one takes into account the future needs of the mankind. Therefore, answering the issue Nos. ( **A** ), ( **B** ) and ( **C** ), we say that assignment of the land for limited purpose, envisaged under Rule 3 of the Special Assignment Rules, can be permitted. However, quarrying activities in those lands should either be prohibited altogether or should be permitted only under strict regulatory measures. The first three issues are answered accordingly. 50. The Cochin Government Gazette notified on 29.01.1938 reflected the existence of 06 Muniyaras namely, Munipara, Chandravi, Konnakuzhingara, Adirapiliy, Vailath Thandu and Erappanpara, in the Kodasseri areas as ancient monuments within the meaning of the Ancient Monuments Preservation Act, Act IX of 1110 (Cochin Act). This shows that these structures are historically important. Hence, having regard to the Monuments Act, as also the historical and WP(C) No.3787 of 2015 - 37 - archaeological need for preservation of the heritage, the Dolmens of the Muniyaras must definitely be protected. As already declared, even if the areas where the Dolmens are standing are not statutorily declared as protected area, they should be deemed to be protected, under the deeming provisions of the Monuments Act. When quarrying activities are carried out with drilling and blasting operations, they are bound to impact and weaken the foundations of the surrounding areas and therefore, we have no hesitation in declaring that the quarrying activities pose a serious threat to the Muniyaras and the issue No.( **D** ) is answered accordingly. 51. Proceeding to the next issue and applying our mind to the case projected by the parties, as also the stand taken by the Archaeological Survey of India, it is our considered opinion that illegal extraction of granite stones from the area by the respondents 13 to 23 should be stopped immediately. The State should first conduct a detailed survey and demarcate the boundaries of the forest and puramboke land. The survey should be conducted scientifically. Only thereafter, the State should decide on whether the quarrying lease obtained by the private respondents should be renewed or not, and until this exercise is carried out, the quarrying activities in the assigned land, as also the puramboke land should cease. The issue No.( **E** ) is answered accordingly. 52. In so far as issue No.( **F** ) is concerned, there can be no manner of doubt that the State authorities are obliged by statutory and constitutional compulsion to foster afforestation and also to protect the ecology and environment in the future interest of the mankind. Therefore, merely because the green cover is considerably diminished or denuded in the concerned area, it does not mean that further destruction of the land can be allowed. The effort must be to bring back WP(C) No.3787 of 2015 - 38 - the green cover through afforestation and further denuding of forests should be strictly avoided. The issue No.( **F** ) is answered accordingly. 53. The tenure of lease that was granted to the private respondents barring respondent No.13 has expired and therefore, it would be futile to express opinion on those which were issued without involving the Forest or the Revenue authorities and disregarding the purpose of the assigned land. But for the future, we issue direction for putting in place, fool proof measures to ensure that renewal of the mining lease be considered only after an effective survey of the concerned area is carried out with participation of all the stake- holders, particularly the Forest and the Revenue authorities and also the authorities of the Archaeological Department. Only when proper survey and demarcation are made and essential data is collected and the overall ground situation is assessed, the renewal or non-renewal of leases be considered, in the concerned identified areas. In so far as the respondent No.13, whose lease is yet to expire, since the lease was granted without an inclusive consultative process, he cannot be allowed to operate the quarry, until the ordered exercise is completed in the area, where he was operating. It is ordered accordingly. 54. In the result of the foregoing discussion, the case is disposed of with the above conclusion and directions. Sd/- ( **HRISHIKESH ROY** ) Acting Chief Justice Sd/- ( **P.R.RAMACHANDRA MENON** ) Judge