Thulaseedharan v. State of Kerala, W.P.(C).No. 7085 of 2007 (R)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE P.S. GOPINATHAN FRIDAY, THE 17TH DAY OF AUGUST 2012/26TH SRAVANA 1934 WP(C).No. 7085 of 2007 (R) -------------------------PETITIONER(S): ------------THULASEEDHARAN, S/O. LATE BHANU, AGED 40, RESIDING AT 'ARUN NILAYAM', IVORKALANADUVIL PUTHANAMBALAM P.O., KUNNATHOOR VILLAGE AND TALUK KOLLAM DISTRICT. BY ADVS.SRI.K.JAYAKUMAR SRI.R.SURAJ KUMAR RESPONDENT(S): -------------1. STATEOF KERALA REP. BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOLLAM. 3. THE REVENUE DIVISIONAL OFFICER, KOLLAM. 4. THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE KOLLAM. 5. TAHSILDAR, KUNNATHOOR VILLAGE OFFICE, KUNNATHOOR VILLAGE AND TALUK, KOLLAM DISTRICT. 6. KUNNATHUR GRAMA PANCHAYATH, KUNNATHOOR VILLAGE TAND TALUK, KOLLAM DISTRICT REPRESENTED BY ITS SECRETARY. 7. ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONROL BOARD DISTRICT OFFICE, KOLLAM. 8. MADHUSOODANAN PILLAI, S/O.GOPALA PILLA, 'USHUS', PUTHANAMBALAM P.O. PADINJATTINKARA, NADUVILAMURIYIL, KUNNATHUR VILLAGE KUNNATHUR TALUK, KOLLAM DISTRICT. 9. ANIL KUMAR, KARAKKAT, NEDIYAVILA, KUNNATHUR VILLAGE KUNNATHUR TALUK, KOLLAM DISTRICT. 10. RAJASEKHARAN NAIR, S/O.SUKUMARA PILLAI, (MEMBER, 9TH WARD, KUNNATHUR GRAMA PANCHAYATH) PURANGOTTU VEEDU, PUTHANAMBALAM P.O. IVORKALANADUVIL, KUNNATHUR VILLAGE, KUNNATHUR TALUK KOLLAM DISTRICT. 11. C.N.NANDAKUMAR, ARYA BRICKS, KALAIPURAM P.O., KOTTARAKARA TALUK KOLLAM DISRICT. 12. SANTHOSH KUMAR, GIRISH BHAVAN, INVORKALANADUVIL PADINJATTETHIL PUTHANAMBALAM, KUNNATHUR VILLAGE AND TALUK, KOLLAM. 13. VIJAYA KUMAR, S/O.GOPALA PILLAI, PILLANATH VEEDU, IVORKALANADUVIL PADINJATTETHIL PUTHANAMBALAM SOUTH, KUNNATHUR VILLAGE AND TALUK KOLLAM. 14. VAMADEVAN PILLA, THEMBRA VEEDU, IVORKALANADUVIL PADINJATTETHIL PUTHANAMBALAM, KUNNATHUR VILLAGE AND TALUK, KOLLAM. 15. SIVA PRASAD, S/O.KUNHIRAMAN PILLA, PALLATH KIZHAKKETHIL IVORKALANADUVIL PADINJATTETHIL, PUTHANAMBALAM KUNNATHUR VILLAGE AND TALUK, KOLLAM. ADDL.R16. N. SIVAN PILLAI, KEEZHUTTU VADAKKEKTHIL PUTHEN VEEDU, POOVATTOOR EAST, KALAYAPURAM, KOTTARAKKARA, (GENERAL SECRETARY, KOLLAM JILLA MANAL THOZHILALI UNION KTUC(B), KERALA CONGRESS OFFICE, KOTTARAKKARA (REG.NO.Q.O2-18/89). ADDL.R17. C.K. SADASIVAN, CHAMAGAD KIZHAKKEDATH, KOTTATHALA, KOTTARAKARA, SECRETARY, KOTTARAKKARA TALUK, MANAL THOZHILALI UNION (CITU), CITU OFFICE, KOTTARAKKARA, REG.NO.9-02-30/88). ADDL.R18. G. MADAHAVAN NAIR, CHAITHRAM, KULAKKADA KIZHAKKU P.O., KOTTARAKKARA (KOTTARAKARA TALUK MANAL THOZHILALI UNION (AITUC) , AITUC OFICE, KOTTARAKARA (REG.NO.02-02-20048) ADDL.R19. O. RAJAN, DHANYABHAYAN, POOVATTOOR EAST, KOTTARAKKARA, SECRETARY, KOTTARAKKARA TALUK MANAL THOZHILALI UNION CONGRESS (INTUC), CONGRESS HOUSE, KOTTARAKKARA (REG.NO.270/81). ADDL.R20 WEST KALLADA GRAMA PANCHAYATH, VILANTHARU (PO), KOLLAM REP. BY THE SECREATARY. ADDL.R21 THE KUNNATHUR TALUK MANAL THOZHILALI UNION (CITU), REP. BY ITS UNIT SECRETARY, K. BABU, RESIDING AT KARTHIYAYANI SADANAM, IYVERKALA EAST P.O., PUTHOOR VIA, KOLLAM. ADDL.R22 MADHYA THIRUVITHAMKUR MANAL THOZHILALI UNION (AITUC), REP. BY ITS SECRETARY, S. HARIS, ARYA BHAVANAM, PUTHENAMBALAM P.O., KOLLAM. ADDL.R23 THE KOLLAM DISTRICT MANAL THOZHILALI UNION (KTUC-B) REG.NO.02-18/89 REP. BY ITS UNIT SECRETARY, G. PRABHAKARAN PILLAI, BINDU SADANAM, IYVERKALA NADUVIL, IYVERKALA EAST P.O., PUTHUR, KOLLAM. ARE IMPLEADED AS ADDITIONAL RESPONDENTS 16 TO 19,ADDL.R20 AND ADDL.R21 TO 23 AS PER ORDER DATED 23.3.2007 IN IA'S 4392/07,4311/07 AND 4486/07 RESPECTIVELY. ADDL.R24 SUNIL KUMAR, S/O. N. KRISHNAN, UDAYANAM, CHANGANKULANGARA, OCHIRA, KOLLAM DIST. ADDL.R25. S. SUDARSANAN, SUDHEESH BHAVAN, KUNNATHOR EAST, KOLLAM DIST. ADDL.R26 TO R28 Addl. R26 MANAL THOZHILALI UNION (CITU), CHOORALLOOR KADAVU REP. BY ITS CONVENOR, UDAYAKUMARAN NAIR, KARICKAL PADINJATTATHU KANNIMEL CHERY, PATTAZHI VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. ADDL.R27 NIRMANA THOZHILALI UNION (BMS) KUZHUNELIL KADAVU REP. BY ITS CONVENOR, RAVEENDRANATH, S/O. NARAYANAN UNNITHAN, RABIRALAYAM,MEENAMCHERRY, PATTAZHI VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. ADDL.R28 MANAL THOZHILALI UNION KTUC (B), KUZHUVELIL KADAVU REP. BY ITS CONVENOR, GOPALAKRISHNAN, S/O. DAMODARAN,MANGALATHU VEEDU, NECHENI VADAKKU MUNREOTHURUTH, KOLLAM DISTRICT ARE IMPLEADED AS ADDL.R24,R25 AND ADDL.R26 TO R28 AS PER ORDER DATED 28.3.07 IN IA'S 4747/07,4799/07AND 4837/07. BY ADV. SRI.P.B.SURESH KUMAR BY ADV. SRI.LEGY ABRAHAM BY ADV. SRI.C.N.SIVANKUTTY BY ADV. SRI.JOHN JOSEPH(ROY) BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) BY ADV. SRI.BINDU SREEKUMAR BY ADV. SRI.K.G.RENGANATH BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR BY ADV. SRI.T.S.RAJASENAN BY ADV. SRI.P.C.SASIDHARAN BY ADV. GOVERNMENT PLEADER BY ADV. SRI.K.HARILAL BY ADV. SRI.R.GOPAN BY ADV. DR.K.P.SATHEESAN BY ADV. SRI.K.K.GOPINATHAN NAIR BY ADV. SRI.M.R.JAYAPRASAD BY ADV. SRI.K.K.RAJEEV BY ADV. SRI.B.RADHAKRISHNA PILLAI BY ADV. SMT.S.AMBIKA DEVI BY ADV. SRI.P.U.SHAILAJAN BY ADV. SRI.R.JYOTHIKRISHNAN BY ADV. SRI.V.M.KRISHNAKUMAR BY ADV. SRI.M.H.HANIL KUMAR BY ADV. SMT.P.R.REENA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1708-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: EXT.P(1)(a)PHOTOGRAPH EVIDENCING THE ILLLEGAL MINING OF SAND ADJACENT TO THE KALLADA RIVER BANK BEING CARRID OUT BY R8 TO R15. EXT.P(1)(b) PHOTOGRAPH EVIDENCING LOADED LORRIES CARRYING THE MINED SAND EXT.P(1)(c) PHOTOGRAPH EVIDENCING LOADED LORRIES CARRYING THE MINED SAND EXT.P(1)(d) PHOTOGRAPH EVIDENCING LOADED LORRIES CARRYING THE MINED SAND EXT.P(1)(e) PHOTOGRAPH EVIDENCING THE LARGE SCHALE OPERATION BEING CONDUCTED BY R8 TO 15. EXT.P(1)(f)PHOTOGRAPH EVIDENCING LOADED LORRIES CARRYING THE MINED SAND EXT.P(1)(g) PHOTOGRAPH EVIDENCING LORRY LOADS. EXT.P(1)(h) PHOTOGRAPH EVIDENCING LORRY LOADS. EXT.P(1)(I) PHOTOGRAPH EVIDENCING LORRY LOADS. EXT.P2 PHOTOGRAPH EXT.P2(a) PHOTOGRAPH EXT.P2(b)PHOTOGRAPH EXT.P3 COPY OF THE REPRESENTATION DATED 11.3.08. EXT.P4 COPY OF THE REPRESENTATION DATED 23.1.10. EXT.P5 COPY OF THE REPRESENTATION DATED 8.3.10. EXT.P6 COPY OF THE REQUEST DATED 27..4.11. EXT.P7 COPY OF THE ORDER DATED 17..2.07 ISSUED BY R4. RESPONDENTS' EXHIBITS: EXT.R8(a) COPY OF THE FINAL REPORT IN C.C.NO.37/2004 PENDING BEFORE THE JFCM, SASTHAMCOTTA. EXT.R8(b) COPY OF THE LETTER NO.A-3530/05 DATED 9.6.2005 GIVEN BY THE RDO, KOLLAM TO THE GEOLOGIST, KOLLAM. EXT.P8(c) COPY OF THE LETTER NO.A.4079/05 DATED 28.6.2005 GIVEN BY THE RDO,KOLLAM TO THE GEOLOGIST, KOLLAM. EXT.P8(d) COPY OF THE LETTER DATED 1.6.12 ISSUED BY R4 TO MADHUSOODANAN PILLAI. EXT.P8(e) COPY OF THE LETTER DATED 1.6.12 ISSUED BY R4 TO ANIL KUMAR EXT.P8(f) COPY OF THE LETTER DATED 1.6.12 ISSUED BY R4 TO VIJAYAKUMAR EXT.P8(g) COPY OF THE LETTER DATED 1.6.12 ISSUED BY R4 TO SIVAPRASAD. EXT.P8(h) COPY OF THE APPLICATION DATED 1.6.12 FILED BY MADHUSOODANAN PILLAI BEFORE THE DISTRICT COLLECTOR. EXT.P8(I) COPY OF THE APPLIATION DATED 1.6.12 FILED BY ANILKUMAMR BEFORE THE DISTRICT COLLECTOR. EXT.P8(j) COPY OF THE APPLICATION DATED 1.6.12 FILED BY SIVAPRASADBEFORE THE DISTRICT COLLECTOR. EXT.P8(K) COPY OF THE LETTER DATED 1.10.11 OF THE GOVERNMENT EXT.P8(l) COPY OF THE LETTER DATED 12.6.12 ISSUED BY R4. EXT.P8(m) COPY OF THE APPLICATION DATED 12.6.12 FILED BY R8 BEFORE THE DISTRICT COLLECTOR EXT.R12(a) COPY OF THE POSSESSION CERTIFICATE NO.4386/06 DATED 17.12.06 IN RESPECT OF PROPERTY COMPRISED IN RE.SY.NO.282/4 AND OTHERS. EXT.R12(b) COPY OF THE LOCATION SKETCH OF THE PROPERTY OF THE R12 ISSUED BY THE KUNNATHOOR VILLAGE OFFICER. EXT.R12 (c ) COPY OF THE CLAY MINING PERMIT DATED 7..2.2007 ISSUED BY THE R4 IN RESPECT OF THE PROPERTY OF R12. EXT.R12(d) COPY OF THE CASH MEMORANDUM NO.27 DATED 7.2.2007 EXT.R12(e) COPY OF THE JUDGMENT IN WPC.NO.25868/06 DATED 26.10.06 OF THIS COURT. RESPONDENTS' ANNEXURE: ANNEXURE A: COPY OF PERMIT FOR QUARRYING CLAY NO.60/200607/DOQ/MM/BC/S2/1067/2007 DTD 8.3.07 ISSUED BY GEOLOGIST TO THE 2ND PETITIONER. ANNEXURE B COPY OF THE ORDER NO.47/2006-07/DOQ/S2.1222/07 DATED 15.3.07 OF GEOLOGIST. ANNNEXURE A COPY OF THE LETTER DATED 17.2.07 SENT BY THE petitioner TO THE EXECUTIVE ENGINEER, KOLLAM. ANNEXURE B COPY OF THE CIRCULAR DATED 10.1.1997 ISSUED BY THE CHIF ENGINEER PWD. ANNEXURE C COPY OF THE LETTER DATED 24.2.07 SENT BY THE EXECUTIVE ENGINEER, KOLLAM /TRUE COPY/ P.S. TO JUDGE CL ## **C.N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ.** **...................................................... W.P(C).NO. 7085 OF 2007 ...................................................... Dated this the 17[th] day of August, 2012** ## **JUDGMENT** ## **Ramachandran Nair, J:** This is a public interest litigation filed for direction to the State Government and its agencies to take effective measures to prevent illegal mining of clay from the properties belonging to party respondents 8 to 15. This writ petition happened to be posted before Division Bench along with several writ appeals and connected cases which are disposed of through separate judgment. 2. We heard counsel appearing for the petitioner, Government Pleader for respondents 1 to 7 and Senior Counsel Sri. Ranjith Thampan appearing for respondents 8,9,13 and 15. 3. When the matter is taken up for hearing, Government Pleader submitted that the Supreme Court in **Deepak Kumar v. State of Haryana** ( 2012) 4 SCC 629) has : 2: **W.P(C).NO. 7085 OF 2007** issued directions to the State Government to frame Rules for regulating mining and other activities affecting environment in the State. The basic idea is to first conduct a study on the impact of ecology on account of mining and other activities, so that, permissions are granted only where there is no ecological disaster or adverse impact on the environment. The Government, however, concedes that there cannot be blank prohibition against mining because entire construction materials like rubble, clay, sand etc are sourced only from land. The extensive cost of transportation compels Government to permit limited mining in neighbouring areas for construction purpose. Generally Kerala has rock formation, sand and clay deposits in a distributable manner, so that, mining can be permitted in many places and centres, so the construction needs of the people of all such areas can be met. Government Pleader submitted that Government has constituted a committee which probably has to conduct study and frame Rules and Guidelines for permitting mining. Since Government is engaged in the process, there is no need for us to go into illegality of mining alleged by the petitioner : 3: **W.P(C).NO. 7085 OF 2007** in this case. 4. Leaving it open to the Government to frame Rules and to permit mining only under the same, we feel only temporary orders are required to be issued to concerned authorities to permit mining subject to such conditions as are required until the Rules are framed. 5. In this case, the petitioner has produced photographs which show that deep mining of clay is going on in extensive areas stated to be around 60 acres. Looking at the photographs, we are convinced that the area has good quality clay suitable for making bricks, tiles and other construction materials and probably at deeper levels, better quality clay may be available fit for use in manufacture of even ceramic products and for use by other industries. Even mining a limited depth of 10 feet, will render the land unfit for any kind of cultivation unless filled up with earth. Mining is always permitted after leaving reasonable distances from residential houses, schools and other buildings, roads and railways, so that, the same does not lead to any threat to the stability of buildings and roads. Similarly side margin : 4: **W.P(C).NO. 7085 OF 2007** has to be provided to pathways, roads and also even canals. Mined pit is also fit for useful purposes like storage of water during monsoon for drinking as well as irrigation purposes. Similarly, water formation in mined pit can be used for aqua farming. In fact, going by the small holdings in Kerala, mining pits formed in small extent of properties render the land useless to the owner for any other purpose and such pits are dangerous to human and animal life. Therefore small areas mined should be filled up and extensive areas mined could be grouped together for common utilization by the land owners together or by the State or even by the local authority. In our view, it would be possible for the Government to permit mining beyond a certain limit on condition of vesting of mined land in Government or local authority for public utility like formation of reservoir for water storage for drinking as well as irrigation purposes of the area. We are sure that Government will keep in mind utilization of mined land for public purposes while mining Rules are made. In fact, if land owners surrender land after mining for public purposes as stated above, there will be nothing wrong in exonerating : 5: **W.P(C).NO. 7085 OF 2007** them from payment of royalty from mining which would also be kept in mind by the Government while making legislation on the subject. 6. What we notice from the photographs in this case is that mining in at least some properties has reached such a level that the land has been rendered useless for cultivation. Filling extensive areas with soil is not financially viable or practically possible. Therefore further mining can safely be permitted in the areas where already mining has reached 10 feet so that pit is utilized thereafter for the purposes as indicated above. We also notice in several cases reaching this Court that the Geology Department is permitting mining up to 10 to 20 feet. Deep mining of land will lead to destruction of farm land otherwise fit for cultivation. Extensive paddy fields in Kerala have been rendered marshy lands on account of part filling of certain areas which prevents proper flow of water conducive for paddy cultivation. So much so, the effort of the Government should be such that the lands that had turned marshy and unfit for cultivation are restored for cultivation and though not necessary for paddy, but for **W.P(C).NO. 7085 OF 2007** : 6: vegetables, food crop and even commercial crop like coconut, coco etc. We are sure that the Government will keep in mind the realities of people unable to utilize their lands in the present condition. Keeping our suggestions as above, we direct the District Collector to permit mining subject to such terms and conditions as he feels fit on application submitted by the petitioner, wherever concurrence is required from the Geologists, subject to it until Rules are made by the Government as above and thereafter mining will be subjected to such Rules. It would also be open to the Collector to convene a meeting of the land owners, industries engaged in clay mining and production of building materials like bricks, tiles etc and also local authorities so that consensus can be drawn for mining as well as private and public utilization of mind land to serve the community as a whole. The District Collector is directed to grant approval to eligible persons within a period of six weeks from the date of production of a copy of this judgment. Government Pleader will forward a copy of this judgment to the Chief Secretary to Government for placing the judgment before the committee : 7: **W.P(C).NO. 7085 OF 2007** constituted to make Rules in terms of the Supreme Court judgment and for issuing guidelines to the District Collector and the RDOs in regard to permission being granted for mining being the land pending framing of Rules. **C.N. RAMACHANDRAN NAIR, JUDGE.** **P.S. GOPINATHAN, JUDGE.** cl # **W.P(C).NO. 7085 OF 2007** : 8: