Princy Anto and Anson Anto and Alex Anto and Ann Mary Anto v The Geologist, Mining and Geology Department, Thrissur; District Environment Impact Assessment Authority, Thrissur District

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941 WP(C).No.5741 OF 2019(P)** ## **PETITIONER/S:** - **1 PRINCY ANTO, AGED 49 YEARS W/O.NEREPARAMBIL VAREED AUTO, AMBALLUR, MUKUNDAPURAM, THRISSUR.** - **2 ANSON ANTO, S/O.NAREPARAMBIL VAREED AUTO, 3 ALEX ANTO, S/O.NEREPARAMBIL VAREED AUTO, 4 ANN MARY ANTO, D/O.NEREPARAMBIL VAREED AUTO, (PETITIONERS 2 TO 4 REPRESENTED BY THEIR MOTHER AND POWER OF ATTORNEY HOLDER PRINCY ANTO, THE 1ST PETITIONER, SINCE THEY ARE STUDYING ABROAD).** **BY ADVS. SRI.PHILIP J.VETTICKATTU SMT.ANEY PAUL** ## **RESPONDENT/S:** - **1 THE GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, DISTRICT OFFICE, THRISSUR, CHEMBUKKAV, THRISSUR- 680020.** - **2 THE DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, THRISSUR DISTRICT, THRISSUR, REPRESENTED BY ITS CHAIRMAN, THE DISTRICT COLLECTOR, COLLECTORATE, THRISSUR- 680001. BY GP – SRI.K.J.MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 5741/19 2 **CR** ## **JUDGMENT** The Environment Impact Assessment Notification, 2006, issued by the Government of India, Ministry of Environment, Forest and Climate Change exempts the requirement for obtaining Environmental Clearance for the construction of a building up to 20,000M[2] in area; while Appendix IX to it, confines this exemption solely to the digging of the foundation for such constructions. 2. In the afore statutory milieu, the issue raised in this Writ Petition is whether the benefits of the exemptions noticed above would apply even to a construction which includes a cellar/basement. While the petitioner contends in the affirmative, the official respondents asserts to the contrary. 3. The petitioners have approached this Court with a specific allegation that their WPC 5741/19 3 application for Quarrying Permit preferred before the District Geologist for the purpose of construction of a building in their property, comprised of 0.1773 hectares of land, in Sy.No.496/1 of the Kizhakke Chalakkudy Village-on the strength of a valid Building Permit and Development Permit, namely Ext.P5 and P6 respectively, obtained from the Chalakkudy Municipality is not being considered by the District Geologist, insisting that they must obtain prior Environmental Clearance from the State Environment Impact Assessment Authority (SEIAA for short) for such purpose. 4. The petitioners say that this requirement, now insisted upon by the District Geologist, is contrary to the provisions of the Environmental Impact Assessment Notification, 2006, since the construction of a basement has been specifically exempted under Appendix IX of the said notification. They, therefore, pray WPC 5741/19 4 that the District Geologist be directed to take up Ext.P6 application for Quarrying Permit and dispose of the same, without insisting on an Environmental Clearance. 5. In response to the above, learned Government Pleader, Sri.K.J.Manuraj, submits that a detailed counter affidavit has been placed on record by the District Geologist, wherein, the following have been clearly stated: 9. However, on inspection it is found that the proposed site is situated in between NH 47 and KSRTC Bus stand in Chalakudy Town. The site is within 50 meter distance of NH 47 where an over bride is also located. As per amendment notification of Kerala Minor Mineral Concession Rules 2015 dated 22.06.2017, in order to grant quarrying permit for extraction of ordinary earth a distance of 100 meter is required from bridge on National Highway. There are a lot of huge buildings, Tower line, a small canal and number of residential buildings surrounding the proposed site. The site is a plain ground with loose soil. Since the area contains loose soil the mining will affect the stability of the nearby buildings and other public structures. Besides, on verifying the development plan of the proposed building it is noticed that the petitioner has to mine the earth for constructing lower cellar and upper WPC 5741/19 5 cellar having a Plinth area of 1204.92 square meter below the ground level. The depth of the lower and upper cellar is shown as 4.2 meter from the ground level. So the petitioner has to dig the land for lower cellar and upper cellar below the ground level up to a depth of 4.2 meter. Even if environmental clearance is obtained from SEIAA, digging of soil without making piling will be danger since it is loose soil in the applied area. Hence it is difficult to grant permission for extraction of ordinary earth without proper precautionary measures. Moreover, in the notification dated 14.09.2006 of the Government of India, Ministry of Environment, Forest and Climate Change, any project involving the building construction up to 20000M2, does not require prior Environmental Clearance. But the express provision in Appendix IX to said notification it is meant only for digging of foundation of the building and not construction of any cellar in the basement as in the case of the petitioner. Hence the petitioner's contention that the Environmental Clearance is not necessary as per the notification does not hold good. Thus, Environmental Clearance is insisted to construct a cellar which is more 4.2 meter depth from ground level. He submits that the 1[st] respondent-Geologist can, therefore, consider the application of the petitioner for the construction of a cellar only if it is submitted along with an Environmental Clearance and statutory documents as have been enumerated above. He, therefore, WPC 5741/19 6 prays that this Writ Petition be dismissed. 6. In reply to the afore, Sri.Philip J. Vettickattu, learned counsel for the petitioners, submits that, as is evidenced from Ext.P12, the petitioners have already obtained the necessary No Objection Certificate for the Highway Authorities and that the requirement of an Environmental Clearance for the purpose of construction of a cellar is completely contrary to the provisions of the Environment Impact Assessment Notification, 2006, in particular, Rule 8A thereon, which defines 'built up area' to be the covered area on all plots put together, including its basement and other service areas which are proposed in the construction. The learned counsel says that, therefore, going by the afore notification, the basement is also a part of the plinth area and consequently, that the provisions of Appendix IX of the notification and in particular, WPC 5741/19 7 condition No.9 therein, exempts the requirement of an Environmental Clearance for the purpose of construction of a foundation, even for a building which contains a cellar/basement area. He, therefore, prays that this Writ Petition be ordered. 7. I have considered the afore submissions and also evaluated the submissions made by the learned counsel for the parties as afore. 8. When one examines the Environment Impact Assessment Notification, 2006, it is evident that while dealing with buildings and construction projects, it is provided in Clause 8(a) that a construction of less than 20,000 square metres does not require to obtain an Environmental Clearance; while 'built up area' has been defined therein to mean the area of all floors including basement. To appreciate the singular issues in this Writ Petition, it is necessary to read these provisions, for WPC 5741/19 8 ## which I deem it appropriate to extract them as below: 8(a) Building and construction >20,000 sq.mtrs The term 'built and <1,50,000 up area' for projects sq.mtrs. of the purpose of built up area this notification is the built up or covered area on all floors put together including its basement and other service areas, which are proposed in the buildings and construction projects. Note 1. The projects or activities shall not include industrial shed, Universities, college, hostel or educational institutions, but such buildings shall ensure sustainable environmental management, solid and liquid and implement environmental conditions given at Appendix XIV. Note 2. General Condition shall not apply. Note 3. The exemptions granted at Note 1 will be available only for industrial WPC 5741/19 9 shed after integration of environmental norms with building permissions at the level of local authority. 9. Further, the provisions of the Kerala Municipality Building Rules also provide for the construction of a building with a cellar/basement area and there is no prohibition therein in making such a construction. 10. The above being so, I cannot find favour with the submissions made on behalf of the 1[st] respondent by the learned Government Pleader that when a cellar/basement is proposed in a building, then Environmental Clearance becomes mandatory, since the foundation can be constructed only after digging deep into the property. Going by the afore notification and the provisions thereof, especially, Appendix IX of the same, it is without doubt that the construction of a foundation for a building of WPC 5741/19 10 less than 20,000 square metres would not require the owner to obtain an Environmental Clearance. This becomes perspicuous if one examines the relevant provisions in Appendix IX to the Notification, which is reproduced as below: The following cases shall not require prior environmental clearance, namely:- 1. Extraction of ordinary clay or sand, manually, by the Kumhars (Potter) to prepare earthen pots, lamp, toys, etc. as per their customs. 2. Extraction of ordinary clay or sand, manually, by earthen tile makers who prepare earthen tiles. 3. Removal of sand deposits on agricultural field after flood by farmers. 4. Customary extraction of sand and ordinary earth from sources situated in Gram Panchayat for personal use or community work in village. 5. Community works like de-silting of village ponds or tanks, construction of village roads, ponds, bunds undertaken in Mahatma Gandhi National Rural Employment and Guarantee Schemes, other Government sponsored schemes, and community efforts. 6. Dredging and de-silting of dams, reservoirs, weirs, barrages, river, and canals for the purpose of their maintenance, upkeep and disaster management. 7. Traditional occupational work of sand by Vanjara and Oads in Gujrat vide notification number GU/90(16)/MCR-2189(68)/5-CHH, dated the 14[th] February, 1990 of the Government of Gujrat. 8. Digging of well for irrigation or drinking water. 9. Digging of foundation for building not requiring prior environmental clearance. 10. Excavation of ordinary earth or clay for plugging of any breach caused in canal, nala, drain, water body, etc., to deal with any disaster or flood like situation upon orders of District Collector or District Magistrate. 11. Activities declared by State Government under legislations or rules as non-mining activity with concurrence of the Ministry of Environment, Forest and Climate Change, Government of India. WPC 5741/19 11 11. The only axiomatic question, therefore, is whether the mere construction of a basement would alter this and I am of the view that going by the afore extracted Clause 8 of the Environment Impact Notification, since the basement is also a part of the total plinth area, it becomes indubitable that the conjoined effect of these provisions would not require an owner to obtain an Environmental Clearance even for the purpose of construction of a foundation of a building which provides for a basement or cellar area. Contextually, though in a slightly different set of factual circumstances, a Division Bench of this Court in **District** **Geologist, Department of Mining and Geology, Thrissur and Others v. Sivaraman and Another** **[2019(5) KHC 929]** also has taken a similar view. I am in complete affirmation with the conclusions in the said judgment and therefore, it is without doubt that the petitioners are WPC 5741/19 12 entitled to the reliefs on this aspect in this Writ Petition. 12. That said, I am aware that the specific assertions of the Geologist, as per the averments contained in the counter affidavit filed by him, as extracted above, is to the effect that since the area is one that has a peculiar topography, there are certain safety and precautionary measures that will have to be adopted by the petitioner while making a construction, particularly while digging the property for the purpose of a cellar/basement. I find substantial force in this concern; and am, therefore, of the view that in the absence of the statutory requirement of obtaining an Environmental Clearance, it is up to the Geologist, who is also equally competent, to verify all the relevant aspects and then impose such conditions as may be necessary and imperative to ensure that the construction WPC 5741/19 13 proposed by the petitioners does not cause any damage to any other properties neighbouring to it or to the buildings standing thereon. Since the petitioners says that they have already obtained Ext.P13 NOC from the National Highway Authorities, I am of the view that the Geologist must now consider their application adverting to the said NOC and also in terms of my observations. Resultantly and for the reasons above, I order this writ petition and direct the 1[st] respondent-Geologist to take up the application of the petitioners for Quarrying Permit, strictly for the purpose of making a foundation in terms of the Building Permit and after ensuring that only such amount of minerals are allowed to be quarried and removed which are unexpendably necessary for the purpose of such construction and nothing more; and then issue appropriate orders thereon, after adverting to WPC 5741/19 **==> picture [13 x 7] intentionally omitted <==** all necessary and relevant inputs, including Ext.P13 NOC issued by the National Highway Authority of India. It is needless to say that while issuing the resultant order in terms of this judgment,the Geologist will be entitled to impose all necessary conditions as are required, to ensure that the neighbouring properties and buildings are not, in any manner, impacted. The afore exercise shall be completed by the Geologist, after affording an opportunity of being heard to the petitioners, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment and the resultant order also shall be communicated to the petitioner within that time. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 5741/19 15 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF DEATH CERTIFICATE ISSUED BY THE CONSULATE GENERAL OF INDIA, DUBAI. - EXHIBIT P2 TRUE COPY OF LEGAL HEIR SHIP CERTIFICATE DATED 10.08.2015 ISSUED BY THE TAHSILDAR, MUKUNDAPURAM TALUK. - EXHIBIT P3 TRUE COPY OF LAND TAX RECEIPT ISSUED FROM THE VILLAGE OFFICE, EAST CHALAKUDY VILLAGE. |EXHIBIT P3|TRUE COPY OF LAND TAX RECEIPT ISSUED<br>FROM THE VILLAGE OFFICE, EAST<br>CHALAKUDY VILLAGE.| |---|---| |EXHIBIT P4|TRUE COPY OF POSSESSION CERTIFICATE| ||DATED 15.05.2017 ISSUED FROM THE| ||VILLAGE OFFICE, EAST CHALAKUDY| ||VILLAGE.| |EXHIBIT P5|TRUE COPY OF BUILDING PERMIT DATED| ||28.04.2017 ISSUED BY THE SECRETARY,| ||CHALAKUDY MUNICIPALITY.| |EXHIBIT P6|TRUE COPY OF THE CERTIFICATE ISSUED| ||BY THE SECRETARY CHALAKUDY| ||MUNICIPALITY TO THE GEOLOGIST DATED| ||04.05.2017.| |EXHIBIT P7|TRUE COPY OF AFFIDAVIT EXECUTED BY| ||THE 1ST PETITIONER.| |EXHIBIT P8|TRUE COPY OF LETTER ISSUED BY THE| ||GEOLOGIST INSISTING FOR E.C.FOR| ||GRANTING PERMIT.| |EXHIBIT P9|TRUE COPY OF RELEVANT PAGES OF| ||APPLICATION SUBMITTED BY THE| ||PETITIONER FOR E.C.BEFORE THE 2ND| ||RESPONDENT.| |EXHIBIT P10|TRUE COPY OF THE SITE PLAN APPROVED| ||BY THE CHALAKUDY MUNICIPALITY.| |EXHIBIT P11|TRUE COPY OF BUILDING PLAN APPROVED| ||BY THE CHALAKUDY MUNICIPALITY| WPC 5741/19 16 |EXHIBIT P12|TRUE COPY OF LETTER DATED 24-09-2018| |---|---| ||ISSUED BY THE SENIOR GEOLOGIST AND| ||MEMBER SECRETARY.| |EXHIBIT P13|TRUE COPY OF NOC ISSUED BY THE| ||NATIONAL HIGHWAY AUTHORITY.|