W.P.(C).No.16743 of 2020 (Anil GeevargheSe v. State of Kerala & Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **WP(C).No.16743 OF 2020(P)** ## **PETITIONER/S:** **ANIL GEEVARGHESE, AGED 51 YEARS S/O.GEEVARGHESE, MURAM THOOKIL, MANOMOHAN BANGLAW, MULAKULAM SOUTH P.O., MULAKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**THE DIRECTOR, MINING AND GEOLOGY, OFFICE OF THE**| ||**MINING AND GEOLOGY, KESAVADASAPURAM, PATTAM,**| ||**THIRUVANANTHAPURAM-695001.**| |**3**|**THE DISTRICT GEOLOGIST,DEPARTMENT OF MINING AND**| ||**GEOLOGY, KOTTAYAM DISTRICT-686610.**| ## **OTHER PRESENT:** ## **GP SRI KJ MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ## ================== W.P.(C).No. 16743 of 2020 ================== Dated this the 25[th] day of August, 2020 **J U D G M E N T** ## The case set up in the above Writ Petition (Civil) is as follows: _That the petitioner intended to construct three buildings in his property having a total plinth area of 819.777 M2, for which the petitioner obtained three building permits and three development permits from the Secretary, Velloor Grama Panchayath. The Petitioner has also submitted Ext.P-11 application before the 3[rd] respondent for mining permit for extraction and transportation of minerals from the foundation of a building and transportation of the same. That the same was not considered by the 3[rd] respondent till date on the ground that the application is not accompanied with environment clearance, since the plinth area of the building is more than 300 square meters. That prior environmental clearance has been exempted by the Ministry of Environment Forest and Climate Change for the building having a plinth area less than 20000 M2 by Notification dated 15.1.2016 and 19.12.2016. This position has been upheld by the Division Bench of this court in the decision in_ _**District Geologist Vs. Sivaraman** [2020(1)KLT 375]. It is urged that the petitioner is entitled to get the benefit of Notification of Ministry of Environment Forest and climate Change dated 15.1.2016 and 19.12.2016. That due to the adamant stand on the part of 3[rd] respondent, the petitioner is not in a position to construct the building, which according to the petitioner, causes heavy loss and hardship to the petitioner. Moreover it is reliably understood that the Government of Kerala has even exempted quarrying permit to extract ordinary earth from the foundation of building having plinth area up to 20000 sq. mtrs. In identical matters this court has interfered and directed the concerned geologists to issue permits to the respective petitioners without insisting environmental clearance._ 2. It is in the light of the above averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the W.P.(C).16743/20 - : 3 :- ## following prayers: - _“1. Issue a writ of mandamus or any other appropriate writ, orders or direction to the third respondent to consider exhibit P11 application submitted by the petitioner for mining permit to extract and transport minerals from the foundation of a building without insisting environmental clearance since it has been exempted as per the notification of Ministry of Environment Forest and Climate Change dated 15.1.2016 and 19.12.2016 as clarified by the judgment of this honourable court in District geologist Vs. Sivaraman 2020 (1) KLT 375 and issue Mining Permit, Transit Permit and sufficient Transit Passes for transportation of said earth within a reasonable period which this honourable court may deem fit and proper in the interest of justice and circumstances of the case._ _2. Declare that quarrying permit and environmental clearance are not required for extraction and transportation of minerals removed from the foundation of a building having a plinth area of less than 20000M2 as per the Notification of Ministry of Environment Forest and Climate Change dated 15.1.2016 and 19.12.2016 and policy of Government of Kerala._ _3. Issue such other writ, orders or directions, which this Honourable Court may deem fit and proper in the interest of justice and circumstances of the case.”_ 3. Heard Sri.P.M.Ziraj, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 4. Going by the pleadings and materials on record, it is seen that the petitioner has obtained Exts.P3, P-4 and P-5 building permits for construction of residential buildings having plinth areas of 273.37 m[2] , 273.86 m[2 ] and 272.54 m[2 ] respectively, thus totalling to 819.77 m[2] from the Secretary, Velloor Grama Panchayat, Kottayam District, in terms of provisions contained in the Kerala Panchayat Building Rules. The petitioner would also state that he has also secured development permits as per Exts.P-6, P-7 and P-8, issued by the local body W.P.(C).16743/20 - : 4 :- concerned. Further that the petitioner has submitted Ext.P-11 application dated 24.2.2020 before the 3[rd] respondent District Geologist seeking for grant of quarrying permit for undertaking excavation work in relation to the abovesaid construction activities covered by Exst.P-3 to P-5 and Exts.P-6 to P-8 development permits. The complaint of the petitioner is that Ext.P-11 application dated 24.2.2020 has not been considered by the 3[rd] respondent District Geologist, though the said application has been received, as can be seen from Ext.P-12 chalan counter foil dated 15.3.2020. That the petitioner could reliably learn that the stand of the 3[rd] respondent is that since the total plinth area of the abovesaid construction exceeds 300 sq.mtr., the petitioner should initially obtain environmental clearance from the Kerala State Environment Impact Assessment Authority in terms of the provisions contained in the Environment Impact Assessment Notification, 2006, before his application for grant for quarrying permit as sought for in Ext.P-11 in terms of Rule 14 of the Kerala Minor Mineral Concessions Rules. The said aspect is not longer res intrega and is covered against the respondents by various decisions of this Court including the one rendered by a Division Bench of this Court in _**District Geologist v. Sivaraman**_ , W.P.(C).16743/20 - : 5 :- [2020(1) KLT 375] wherein it has been held that, in view of the norms issued by the Union Ministry of Environment, Forest & Climate Change, regarding environmental clearance, if the total plinth area of the proposed construction, for which excavation of ordinary earth is required, does not exceed the threshold limit of 20,000 sq.mtr. then the environmental clearance is not required. In other words, environmental clearance is required only if the total construction area in question exceeds the limit of 20,000 sq.mtr. That apart, it is also now brought to the notice of this Court that, after the filing of Ext.P-11 application dated 24.2.2020, the competent authority of the State Government had already issued statutory notification amending the provisions contained in Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015, prospectively w.e.f. 12.6.2020, whereby it has been held that the threshold requirement of 300 sq.ms of construction area has now been increased to 20,000 sq.ms. and therefore, w.e.f. 12.6.2020, no quarrying permit is not required for doing excavation work for carrying out foundation work of a construction activity, if the total area of the construction does not exceed 20,000 sq.ms. 5. Rule 14 of the Kerala Minor Mineral Concessions Rules, W.P.(C).16743/20 - : 6 :- ## 2015, as it stood prior to 12.6.2020, reads as follows: _**“Rule 14: Quarrying Permit for Ordinary earth.--** (1) A quarrying permit under these rules shall be obtained for extraction of ordinary earth used for filling or levelling purposes in construction of embankments, roads, railways or buildings in Form N:_ _(2) Notwithstanding anything contained in sub-rule (1), no quarrying permit is required under these rules for extraction of ordinary earth in connection with the construction of residential buildings including flats or commercial buildings having a plinth area of 300 square meters if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities concerned;_ _Provided that in cases where transportation of ordinary earth is required, the owner of the land shall obtain mineral transit passes for the quantity to be transported under the Kerala Minerals (Prevention of illegal Mining, Storage and Transportation) Rules, 2015 after making payment of royalty, on an application submitted in this regard. Such application shall be accompanied by (1) valid building permit for construction of building obtained from the Local Self Government authorities concerned, (2) land development permit obtained from the Local Self Government authorities concerned in cases where the levelling of the land and extraction of ordinary earth is involved and (3) possession and enjoyment certificate of the land issued by the Village Officer concerned:_ _Provided further that in cases where levelling of land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authorities concerned which shall contain the area of land to be developed for the construction of the building and the quantity of ordinary earth to be extracted for such construction._ _(3) A person who applies for mineral transit passes for transportation of ordinary earth under this rule shall also submit along with the application a sworn affidavit in stamped paper to the effect that he will carry out the proposed construction as per the building plan and building permit and shall complete at least the construction of basement of the building within one year from the date of issuance of mineral transit passes and intimate the same to the competent authority._ _(4) In the event of extraction of ordinary earth outside the permitted area, the permission granted for extraction and transportation shall be liable for cancellation and the offender shall be liable to pay an amount equal to five times the royalty of the ordinary earth extracted outside the area of permission as penalty._ W.P.(C).16743/20 - : 7 :- _(5) In the event of failure to complete at least the construction of basement of building within one year from the date of issuance of mineral transit passes the act of extraction of ordinary earth shall be treated as illegal and the offender shall be liable to pay an amount equal to five times the royalty of the ordinary earth extracted from the area, in addition to the amount already paid.”_ 6. Rule 14(2) of the KMMC Rules, 2015 has been amended prospectively w.e.f. 12.6.2020 as per the abovesaid SRO No.391/2020 published in Kerala Gazette and the amendment notification made prospectively from 12.6.2020 reads as follows: _“(2) Notwithstanding anything contained in sub-rube (1), no quarrying permit is required under these rules for extraction of ordinary earth in connection with the construction and digging of foundation for the buildings not requiring environmental clearance under the Environment (Protection) Act, 1986 (Central Act 29 of 1986), if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities concerned or if the owner of the land is entitled to construct such building as per the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (16 of 2019).”_ 7. As per the abovesaid amendment made prospectively from 12.6.2020, the operative portion of Rule 14(2) of the KKMC has been amended and it has been stipulated that so long as the construction activity does not require environmental clearance, then quarrying permit is not necessary for conduct of excavation of ordinary earth in relation to such construction activity. However, the abovesaid two provisos appended to Rule 14(2) of the KMMC Rules have not been amended and hence if the party concerned after extraction of ordinary earth in relation to the construction activity W.P.(C).16743/20 - : 8 :- wants to remove and transport the said excavated ordinary earth from the constructed site to another place by a vehicle, then necessarily transit pass should be obtained from the District Geologist concerned as required in the provisions contained in the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, framed under the Mines & Mineral (Development and Regulation) Act, 1957, etc. The legal position on the abovesaid aspect has been declared and ordered. Hence from a reading of the pleadings and materials on record, it appears that the case of the petitioner is that construction activity proposed by Exts.P-3 to P-5 building permits are 3 separate building constructions and each of them is below the earlier threshold limit of 300 sq.mtr. However, it is submitted by the petitioner that the stand of the 3[rd] respondent is that the construction area of all the 3 abovesaid building permits covered by Exts.P-3 to P-5 should be taken together for deciding the issue as per the threshold limits of the plinth area of the construction and even if that be so, it appears that the total construction area of all the 3 buildings covered by Ext.P-3 to P-5 comes to 819.777 sq. If that be so, the said construction area is below the threshold limit of 20000 sq.mtr. and hence no environmental clearance is required for W.P.(C).16743/20 - : 9 :- excavation of the ordinary earth for such construction activity. Further, for such excavation of the ordinary earth in relation to the said construction activity to be made on or after 12.6.2020, even the requirement of quarrying permit in terms of Rule 14(2) KMMC Rules, has been dispensed with. These actual factual aspects are to be considered and determined by the 3[rd ] respondent District Geologist while considering Ext.P-11 application. The 3[rd] respondent District Geologist will immediately take up for consideration the matters in relation to Ext.P-11 application dated 24.2.2020 and may conduct an inspection of the construction site with due prior notice to the petitioner and copy of the said inspection report should also be given to the petitioner in advance and thereafter the 3[rd] respondent should afford a reasonable opportunity of being heard to the petitioner and then a decision should be taken on the matters covered by Ext.P-11 application, in accordance with the legal principles stated herein above. The decision in this regard should be duly taken by the 3[rd] respondent District Geologist within 3 weeks from the date of production of a certified copy of this judgment. The petitioner will produce certified copy of this judgment along with copies of the memorandum of the W.P.(C). with all the W.P.(C).16743/20 - : 10 :- exhibits before the 3[rd] respondent District Geologist for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** W.P.(C).16743/20 - : 11 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 17.5.2019 ISSUED BY THE VILLAGE OFFICER, VELLOOR VILLAGE.** **EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 2.3.2020 ISSUED BY THE VILLAGE OFFICER, VELLOOR VILLAGE. EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT DATED 9.10.2018 ISSUED FROM THE VELLOOR GRAMA PANCHAYATH. EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT DATED 9.10.2018 ISSUED FROM THE VELLOOR GRAMA PANCHAYATH. EXHIBIT P5 TRUE COPY OF THE BUILDING PERMIT DATED 9.5.2019 ISSUED FROM THE VELLOOR GRAMA PANCHAYATH. EXHIBIT P6 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 18.3.2019 ISSUED FROM THE VELLOOR GRAMA PANCHAYATH. EXHIBIT P7 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 18.3.2019 ISSUED FROM THE VELLOOR GRAMA PANCHAYATH. EXHIBIT P8 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 19.12.2019 ISSUED FROM THE VELLOOR GRAMA PANCHAYATH. EXHIBIT P9 TRUE COPY OF THE NON ASSIGNMENT CERTIFICATE WITHOUT DATE ISSUED BY THE VILLAGE OFFICER, VELLOOR VILLAGE. EXHIBIT P10 TRUE COPY OF THE DEMARCATION CERTIFICATE WITHOUT DATED ISSUED BY THE VILLAGE OFFICER, VELLOOR VILLAGE.** W.P.(C).16743/20 - : 12 :- **EXHIBIT P11 TRUE COPY OF THE APPLICATION DATED 24.2.2020 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT ON 16.3.2020. EXHIBIT P12 TRUE COPY OF THE COUNTERFOIL OF THE CHELAN TOWARDS THE APPLICATION FEE DATED 16.3.2020.**