## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON**
**THURSDAY, THE 28TH DAY OF FEBRUARY 2013/9TH PHALGUNA 1934**
## **WP(C).No. 5019 of 2013 (B) --------------------------**
## **PETITIONER(S):**
**----------------------**
**P.L. MOHANAN, S/O.PARAMESWARAN, AGED 51 YEARS, LAKSHMI VILASAM, MANTHANAM MURI, KUNANTHANAM P.O., MALLAPPALLY, PATHANAMTHITTA DIST.**
**BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.JUSTINE JACOB**
**RESPONDENT(S): -------------------------**
**1. THE STATE OF KERALA REPRESENTED BY ADDITIONAL SECRETARY REVENUE (P) DEPARTMENT, GOVERNMENT SECRETARIAT TRIVANDRUM PIN-695 001**
## **2. THE DISTRICT COLLECTOR**
**CIVIL STATION, PATHANAMTHITTA, PIN - 689 645**
## **3. THE GEOLOGIST**
- **PATHANAMTHITTA, PIN - 689 645.**
**R2 & R3 BY GOVERNMENT PLEADER ADV. SRI. GEORGE MICHERIL**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**NS**
**WP(C).No. 5019 of 2013 (B)**
## **APPENDIX**
## **PETITIONER(S) EXHIBITS :**
## **EXHIBIT-P1 - COPY OF PROCEEDINGS DTD.03-10-2008 ISSUED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA ADDRESSED TO THE PRINCIPAL SECRETARY TO REVENUE DEPARTMENT, GOVERNMENT.**
- **EXHIBIT-P2 - COPY OF THE GOVERNMENT ORDER DTD.18-2-2009. (ORDER OF KERALA LAND UTILIZATION ORDER)**
- **EXHIBIT-P3 - COPY OF THE JUDGMENT IN WPC.NO.6505/2009 OF THIS HON'BLE COURT DTD.26-3-2009.**
- **EXHIBIT-P4 - COPY OF THE ORDER NO.2624/2009/REVENUE DTD.3-8-2009 ISSUED BY THE GOVERNMENT.**
- **EXHIBIT-P5 - COPY OF JUDGMENT IN WPC.NO.11270/2010 DTD.10-11-2011 OF THIS HON'BLE COURT.**
- **EXHIBIT-P6 - COPY OF ORDER DATED 03-4-2012 FOR R1.(QUARRYING PERMIT ORDER)**
- **EXHIBIT-P7 - COPY OF QUARRYING PERMIT FOR MINING ISSUED BY MINING & GEOLOGY DEPARTMENT DATED 21-5-2012.**
**EXHIBIT-P8 - COPY OF JUDGMENT DATED 14-8-2012 IN WPC. NO.15956/12.**
**EXHIBIT-P9 - COPY OF ORDER DATED 25-8-2012 OF 3RD RESPONDENT.**
- **EXHIBIT-P10 - COPY OF JUDGMENT IN CON.COSE © NO.1470 OF 2012 DATED 27-11-2012 OF THIS HON'BLE COURT.**
**EXHIBIT-P11 - COPY OF ORDER DATED 27-11-2012 OF THE 3RD RESPONDENT.**
- **EXHIBIT-P12 - COPY OF CIRCULAR DATED 12-12-2012 OF THE DIRECTOR OF MINING AND GEOLOGY .**
**EXHIBIT-P13 - COPY OF JUDGMENT DATED 4-1-2013 IN WPC.NO.30808 OF 2012.**
- **EXHIBIT-P14 - COPY OF LETTER DATED 21-1-2013 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.**
**EXHIBIT-P15 - COPY OF LETTER DATED 01-2-2013 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.**
**EXHIBIT-P16 - COPY OF PROCEEDINGS DATED 07-2-2013 OF THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS : NIL**
**/ TRUE COPY/**
**NS**
**P.A. TO JUDGE**
## **P.R. RAMACHANDRA MENON, J.**
## **---------------------------------------**
## **W.P.(C). No. 5019 of 2013 ---------------------------------------Dated this the 28[th] day of February, 2013**
## **JUDGMENT**
The rights and liberties of the petitioner to have mining permit renewed, is the subject matter of consideration.
2. The sequence of events as narrated in the writ petition shows that, the petitioner, in the attempt to procure necessary permit to conduct the mining operation in the land in question, had approached this Court by filing W.P.(C).No. 11270/2010 which culminated in Ext.P5 judgment dated 10.11.2011, whereby the 1[st] respondent was directed to consider the matter and pass appropriate orders. Pursuant to the said verdict, the issue was considered at length and the Government passed Ext.P6 order dated 03.04.2012, whereby sanction was given to have the permit issued in the light of the observations made therein and subject to the following conditions:
“(i) mining of sand has to be done in a manner that does not seriously affect the environment of the area or the drainage system.
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(ii) after the mining is completed, the land has to be levelled. The Department of Mining and Geology will also ensure that the conditions mentioned above are followed during and after the mining procedure.”
3. Pursuant to the above order, consequential order was passed by the 3[rd] respondent Geologist vide Ext.P7 dated 21.05.2012, whereby the petitioner was granted permit which was valid for the period upto 20.08.2012, prescribing various conditions to be satisfied by the petitioner. According to the petitioner, all the above conditions are satisfied, and there cannot be any dispute in this regard.
4. However, in the meanwhile, some of the local public raised objection and caused physical obstructions with regard to the mining operations, which made the petitioner to approach this Court by filing W.P.(C).No.15956/2012. The issue was considered in detail and this Court directed the Environmental Engineer of the Pollution Control Board to conduct a spot inspection and to file a report. Accordingly, inspection was conducted and the Environmental Engineer submitted a report before this Court with the following observations:
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“1. Chances of well water depletion in the nearby wells.
2. Well water contamination (muddiness) due to ground water table disturbance.
3. Chances of flooding in the nearby area during rainy seasons as there is no proper bund as such along the stream.
Based on the findings it is reported that “if sand mining is granted to remove sand from the property under Ext. P10 much environmental problem is not expected to varattar/nearby stream provided a bund of minimum 5 meter width along the periphery of the stream adjoining to the land in question is constructed.”
5. After referring to the facts and figures as above, this Court observed in paragraph '7' that, in the light of Ext.P10 licence and the report of the Environmental Engineer, petitioner is entitled to undertake sand mining from the property covered by Ext.10 therein, subject to the conditions therein and also on constructing a bund of minimum 5 metres width along the periphery of the stream adjoining the boundary of the property
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covered by Ext.P10. It was accordingly, that the petitioner was granted police protection as ordered in Ext.P8.
6. It is stated that the 3[rd] respondent in the meanwhile was pleased to grant renewal of the permit vide Ext.P9 dated 25.08.2012, valid upto 24.11.2012. Subsequently, alleging contumacious act on the part of the petitioner herein, in so far as the direction to effect construction of bund as ordered in Ext.P8 judgment was concerned, one of the obstructors approached this Court by filing Cont.Case (C).No.1470 of 2012. After adverting to the actual facts and circumstances, a Division Bench of this Court as per Ext.P10 judgment arrived at a finding that the allegation of non compliance of the directions given by this Court was not was not liable to be entertained and accordingly, the contempt matter was closed.
7. The petitioner had preferred an application dated 26.11.2012 so as to renew the permit granted vide Ext.P9. This was considered by the 3[rd] respondent who rejected the same as per Ext.P11 dated 27.11.2012 holding that, NOC was required to be issued by the District Collector for further extension. The petitioner approached this Court by filing W.P.(C).No. 30808 of
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2012 raising many a ground, which culminated in Ext.P13 judgment dated 04.01.2013 whereby the impugned order was set aside and the matter was directed to be considered afresh, after giving an opportunity of hearing to the petitioner as specified. Pursuant to the said verdict, the 3[rd] respondent sent Ext.P14 letter dated 21.01.2013 to the 2[nd] respondent, seeking for some clarification, particularly as to the necessity to have issued NOC by the District Collector. This was responded to, vide Ext.P16 dated 07.02.2013 by the 3[rd] respondent, pointing out that, it was open for the 3[rd] respondent to pass appropriate orders in accordance with law, and in tune with the directions given by the Court as per judgment dated 04.01.2013 in W.P.(C). No.30808/2012. The matter was accordingly considered by the 3[rd] respondent, who issued Ext.P16 order dated 07.02.2013, whereby the request for renewal of NOC was rejected, referring to the circumstances given therein. This in turn is under challenge in this writ petition.
8. Sri. S. Sreeekumar, the learned Senior Counsel appearing for the petitioner submits that, the reasons for rejection of renewal application as given by the 3[rd] respondent in
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Ext.P16 are not correct or sustainable under any circumstances. The observations made by the 3[rd] respondent, particularly under serial No.3, 4, 5, 7 and 8 are with reference to the steps to be taken by the District Collector for granting necessary NOC. With regard to the instances at serial Nos. 1 and 2, the learned counsel submits that, this pertains to the law and order situation, which stands taken care of as per Ext.P8 judgment passed by the Division Bench of this Court granting police protection. With regard to the remaining instance, i.e., serial No.6, the learned counsel submits that, the 'news item' that appeared in the media cannot be a restraining factor for considering and granting renewal of the licence in accordance with the relevant provisions of law.
9. Two separate statements have been filed from the part of the respondents 2 and 3 respectively. The 3[rd] respondent seeks to sustain Ext.P14 followed by Ext.P16, while the 2[nd] respondent/District Collector submits in his statement that, no NOC of the District Collector is necessary, as the sanction was originally given by the Government as borne by Ext.P6. It was accordingly, that the 3[rd] respondent was required to pass
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appropriate order based on the actual facts and figures. However, in the very same statement, the 2[nd] respondent also assures the deployment of the police force, if at all any threat to the law and order situation is there.
10. Heard the learned Government Pleader as well.
11. Considering the facts and circumstances, this Court finds that the issue has to be resolved by the 1[st] respondent by passing a 'speaking order', referring to the relevant facts and figures and as to the proper conditions, if at all to be incorporated and enforced for enabling the petitioner to conduct the sand mining (if the same is granted) and it is for the 1[st] respondent to consider the request for renewal of the licence. It is also to be ascertained by the 1[st] respondent whether the direction given by the Apex Court in **Deepak Kumar & Others v State of Haryana & Others (2012) 4 SCC 629** is attracted to the case in hand. This Court refrains from expressing any opinion with regard to the Circular No.3889/M2/2012 dated 12.12.2012, as to whether it is correct or sustainable or it contravenes the directions given by the Hon'ble Supreme Court or in what way the ownership right over the property will decide
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the environmental impact, to hold that environment will be ruined of if it is a Government property, given on lease for quarrying. It is a matter to be considered by the 1[st] respondent. The proceedings as above shall be finalized at the earliest, at any rate, within 'six weeks' from the date of receipt of a copy of this judgment.
The petitioner shall produce a copy of the judgment along with a copy of the writ petition and copies of the statements filed by the second and third respondents before the 1[st] respondent for further steps.
Writ petition is disposed of.
## **P.R. RAMACHANDRA MENON, JUDGE.**
Kp/-
