Dismissed

Prasannan Thomas v. the District Collector,Idukki & Ors.

Kerala HC19 Nov 2011WP(C)/29426/2010

Case brief

AI extract

What is this about?

The petitioner applied for a quarrying permit for ordinary sand. After a preliminary Writ Petition was disposed of by the Court directing reconsideration, the First Respondent rejected the application based on an adverse report regarding groundwater impact. The current Court examined conflicting expert reports and dismissed the writ petition, holding the First Respondent's decision was not illegal

What did the court decide?

The writ petition was dismissed, and the order of the First Respondent rejecting the application was upheld.

Prasannan Thomas Vs the District Collector,Idukki & Ors. — Property and Title | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE ANTONY DOMINIC SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933

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WP(C).No. 29426 of 2010(C)

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----------------------------------------

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PETITIONER(S):

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------------------------

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PRASANNAN THOMAS, AGED 35 YEARS, S/O.THOMAS, PUTHIYEDATH HOUSE, KOCHARA P.O., MANTHIPPARA, IDUKKI DISTRICT.

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BY ADV. SRI.JOBI JOSE KONDODY

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RESPONDENT(S):

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----------------------------

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1. THE DISTRICT COLLECTOR, COLLECTORATE, KUIYILIMALA, PAINAVU, IDUKKI DISTRICT.PIN-685 101

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2. THE GEOLOGIST,

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MINING & GEOLOGY DISTRICT OFFICE, MINI CIVIL STATION, THODUPUZHA P.O, IDUKKI DISTRICT-PIN-685 584.

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3. THE DISTRICT OFFICER, GROUND WATER DEPARTMENT (DISTRICT OFFICE), THODUPUZHA, IDUKKI DISTRICT-PIN-685 584.

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4. THE DIRECTOR, GROUND WATER DEPARTMENT, JALA VIJHJNAN BHAVAN, AMBALAMUKKU, KAWDIAR (PO), THIRUVANANTHAPURAM.695 003

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5. THE SUPERINTENDING HYDRO GEOLOGIST, GROUND WATER DEPARTMENT, JALA VIJHJNAN BHAVAN, AMBALAMUKKU, KAWDIAR (PO), THIRUVANANTHAPURAM.695 003

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*ADDL.R6 IMPLEADED

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*R6: THE DIRECTOR, DIRECTORATE OF MINING AND GEOLOGY, PATTAM PALACE .P.O., KESAVADASAPURAM, TRIVANDRUM.

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*** IS SUO MOTU IMPLEADED AS PER ORDER DATED 20/8/2011.**

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R1 TO R6 BY GOVERNMENT PLEADER SRI.MOHAMMED SHAH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C)NO.29426/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER DATED 03/08/2009.

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P2 COPY OF THE APPLICATION FILED BEFORE THE 1ST RESPONDENT BY THE PETITIONER DATED 03/08/2009.

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P3 COPY OF THE ORDER DATED 04/08/2009 ISSUED BY THE TAHSILDAR, UDUMPUNCHOLA TO THE VILLAGE OFFICER,KARUNAPURAM.

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P4 COPY OF THE SKETCH AND PLAN PREPARED BY THE VILLAGE OFFICER, KARUNAPURAM.

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P5 COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KARUNAPURAM DATED 05/08/2009.

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P6 COPY OF THE LETTER DATED 02/10/2009 ISSUED BY THE 1ST RESPONDENT TO THE TAHSILDAR, UDUMPUNCHOLA.

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P7 COPY OF THE COMMUNICATION DATED 07/10/2009 ISSUED BY THE TAHSILDAR, UDUMPUNCHOLA TO THE 2ND RESPONDENT.

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P8 COPY OF THE COMMUNICATION DATED 21/10/2009 ISSUED BY THE 2ND RESPONDENT TO THE TAHSILDAR, UDUMPUNCHOLA.

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P9 COPY OF THE LETTER DATED 01/12/2009 ISSUED BY THE 1ST RESPONDENT TO THE DEPUTY COLLECTOR (TRAINEE), TALUK OFFICE, UDUMPUNCHOLA.

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P10 COPY OF THE NOTIFICATION DATED 12/03/2009 IN SRO NO.256/2009 ISSUED BY THE INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA.

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P11 COPY OF THE ORDER DATED 08/01/2010 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

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P12 COPY OF THE INSPECTION REPORT ALLEGED TO HAVE BEEN CONDUCTED BY THE DEPUTY COLLECTOR (TRAINEE) DATED 07/01/2010.

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P13 COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN WP(C) NO.2282 OF 2010.

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P14 COPY OF THE JUDGEMENT DATED 08/03/2010 IN WP(C)NO.2282 OF 2010 PASSED BY THIS HON'BLE COURT.

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P15 COPY OF THE REPORT ON IMPACT OF SAND MINING ON GROUND WATER RESOURCE OF CHAKKUPALLAM, KARUNAPURAM AREA PREPARED BY THE 3RD RESPONDENT.

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P16 COPY OF THE ORDER DATED 18/05/2010 PASSED BY THE 1ST RESPONDENT REJECTING EXHIBIT P2 APPLICATION.

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RESPONDENT'S EXHIBITS:

NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

ANTONY DOMINIC, J.

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W.P.(C) No. 29426 of 2010 C

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Dated this the 19^th day of November, 2011

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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Petitioner applied for quarrying permit for mining

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ordinary earth from his property comprised in Survey No.15/8 of Karunapuram village in Udumpanchola Taluk in Idukki district. For that purpose, he made Ext.P2 application to the first respondent for a No Objection Certificate. The first respondent obtained reports from the Village Officer and Tahsildar. But, however, based on Ext.P12 report from the Deputy Collector(Trainee), first respondent passed Ext.P11 order rejecting the application of the petitioner for NOC. At that stage, petitioner approached this Court by filing W.P.(C) No.2282/2010. This Court disposed of the writ petition by Ext.P13 judgment directing reconsideration of the matter. Accordingly, Ext.P15 report was obtained which was adverse to the petitioner. Based on the said report, once again the request of the petitioner was rejected by Ext.P16.

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W.P.(C) No.29426/2010

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: 2 :

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Aggrieved by Ext.P16, this writ petition is filed.

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When the writ petition was heard by this Court on 20.08.2011, noticing contradiction in the counter affidavit filed by the second respondent and Ext.P15 report of the third respondent, this Court passed a detailed order, impleading the additional sixth respondent and also calling upon respondents 4 and 6 to examine the matter and file their reports to reconcile the contradictory proceedings taken by respondents 2 and 3. Accordingly, reports have been filed by respondents 4 and 6. The fourth respondent has filed a detailed report, the relevant portion of which reads thus:-

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“There are sand deposits in river channels and paleo channels of rivers in Kerala. But in Idukki District, sand is also found in low lying valleys and terraces in the foothill areas of hillocks in certain regions of Karunapuram village and nearby areas. These deposits were formed as a result of extensive rainfall received in the highland plateau during Holocene period

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W.P.(C) No.29426/2010

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: 3 :

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In all the places where sand mining is taking place, ground water level is lowering and depletion is the after effect of indiscriminate sand mining. There is scientific reason for this impact. Ground water always move from areas of higher elevation to lower elevation and ultimately discharges to rivers and streams as base flow. The velocity of ground water movement is controlled by the hydraulic gradient of the aquifer. When the land is being deepened in lower areas for sand mining, hydraulic gradient of the aquifer increases and it results in increased velocity of movement of ground water. It results in increased discharge of ground water from higher areas to lower areas and rivers in non monsoon season and subsequent drying up of wells.

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2. The reports of the District Officer, Groundwater Department, Idukki were examined and the important observations of the District Officer, Groundwater Department are following:

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W.P.(C) No.29426/2010

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: 4 :

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1. A layer of sand/clayey sand of 1 to 3.5 mts thickness is present on the surface in this area in the valleys, terraces and lower slopes. It is underlain by weathered crystalline rocks. It acts as the phreatic (shallow, unconfined) aquifers in this region.

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2. Sand mining activities started in this area in 2002-2004 periods.

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3. The source of Mupallam Swajaldhara Scheme is an open well near the mining areas which is drying up in summer now.

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4. The topmost layer

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comprising sand and clayey sand in this area act as a good collection and storage medium of ground water during monsoon period and replenish the ground water reservoir of the area. While removing this portion, the storage capacity of the terrain will be lost and rain water flow out of the area as runoff. This is the reason for the drying up of the wells soon after the rainy season.

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W.P.(C) No.29426/2010

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: 5 :

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5. As per Groundwater Estimation Committee 2004, the area investigated belongs to critical and semi critical blocks of the district.

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6. Sand mining from this area will affect the recharge, storage and availability of ground water resources of the area.

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3. The observations and

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recommendations of the District Officer, Ground Water Department, Idukki in this case is agreed to. His observations are substantiated by the water level trends of the hydrographs of observation wells. Long term water level trend of observation wells shown an increasing trend before 2004, but it shows a declining trend after 2004. The open wells in the area dry up during summer and hence people depend on bore wells for the water for domestic and irrigation purposes. The drying up of open wells can definitely be attributed to indiscriminate sand mining in this area.

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4 . The reports of the Geologist,

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W.P.(C) No.29426/2010

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: 6 :

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Mining and Geology Department, Idukki were also examined and the views about the geology of the area, occurrence of sand deposit and its origin can be agreed to. But the statement that there will not be any deterioration to the water availability of the area due to the extraction of ordinary sand from the property since the applied land is a dry land lying well above the water table cannot be agreed to. Sand layer is highly porous and it acts as a good medium for rain water infiltration during rainy season. If the sand is removed from the surface, the underlying clay will be exposed. Being an impervious layer, clay will not allow the infiltration of rain water. Also the deepening of the land will increase the hydraulic gradient of aquifer in this area. So ground water in this area will be affected by the sand mining, irrespective of the land, whether it is wet land or dry land.”

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As against the report thus filed by the fourth respondent, the additional sixth respondent has filed a report

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W.P.(C) No.29426/2010

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: 7 :

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dated 04.10.2011, which reads thus:-

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“ 1. The area applied for grant of quarrying permit for quarrying ordinary sand from an area of 0.7204 hectares of land falls as a part of highland plateau and is situated in Karunapuram Village of Udumbanchola Taluk of Idukki District. The area is characterized by the presence of sedimentary sequences composed of a mixture of sand, silt and clay in variable proportions in certain areas of Karunapuram, Chekkupallom, Anakkara, Chellorkovil and Puttadi the sand bearing formation is unconformably lying over a clay formation below which hard crystalline rock formation exists. In the applied area the hard crystalline rock exists 4 meters below the ground surface level. The average thickness of sandy layer is 2 meters and it is between the upper soil over burden and the lower clay layer. The occurrence of sandy layer is found only upto a maximum depth of 4 meters from the

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W.P.(C) No.29426/2010

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: 8 :

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ground surface level. Since the clay layer and the crystalline hard rock lies below the sandy layer, the removal of sand layer of average thickness of 2 meters may not affect considerably the environment and ecology of th area. The third respondent has reported that the depth of bore wells in the area is from 80 to 100 meters below the ground level. The decline in ground water level in deep aquifer which is located at a depth of 80-100 meters below the ground surface level may not be due to mining of sand layer located upto a depth of 4 meters from the ground level. It is also to be noted that the water level in the dug wells in the area are also located at a depth beyond the level of occurrence of sand layer. The applied area for quarrying is only a small extent when compared to the extent of highland plateau in question. It being a small extent, extraction of sand from this area will not have a significant impact on the ground water fluctuations in the long run. The geological and geomorphological

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W.P.(C) No.29426/2010

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: 9 :

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setting of the area is against to arrive at a conclusion that the sand mining from the applied area would adversely affect the recharge, storage and availability of ground water resources of the area in question though there may be a seasonal fluctuation in the ground water level within a short span. In order to avoid such effects further extraction should be allowed only on the strict condition that the pits formed due to mining shall be reclaimed and made fit for cultivation with suitable soil as soon as the mining is over. The removal of this layer of sand and subsequent reclamation of the pits with suitable soil may not have any adverse impact on the ground water resource of the area. The amended Kerala Minor Mineral Concession Rules 1967 also stipulates the condition of reclamation of pits. The third respondent has reported that the rock found beneath the sandy layer is highly fracture and interconnected. In such a case the rock will have good ground water potential.”

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W.P.(C) No.29426/2010

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: 10 :

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From the report of the fourth respondent, it can be seen that he has given cogent reasons to substantiate the conclusion that if the sand mining is permitted, it will affect the ground water resources in the area. It was pointed out by the counsel for the petitioner that by Ext.P10 notification dated 12.03.2009, the Kerala Minor Mineral Concession Rules, 1967 have been amended to ensure that mine pits are filled up and that by the said method, the danger pointed out by the fourth respondent can be avoided. Still, having regard to the contents of the report, particularly paragraph 2 thereof, I am inclined to think that the filling up of the mine pits by ordinary earth will not be a substitute and that the danger highlighted in the report of the fourth respondent could not be undone by such a method.

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In so far as the report filed by the sixth respondent is concerned, the sixth respondent does not say that there will not be any environmental or ecological impact, if mining is permitted. On the other hand, he only says that having regard

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W.P.(C) No.29426/2010

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: 11 :

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to the fact that the area is a small area, under strict condition of reclamation of the mining and making the land cultivated, mining could be permitted. However, on the totality of the contents of the report of the fourth respondent and on comparison of the report of the sixth respondent with the report furnished by the fourth respondent, I am inclined to think that the report of the fourth respondent is one which is more specific to the issues arising and is a confidence inspiring one.

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In that view of the matter, I am inclined to accept the report of the sixth respondent and for that reason and consequently, I hold that Ext.P16 decision of the first respondent accepting Ext.P15, cannot be said to be illegal, warranting interference by this Court.

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Writ petition fails and accordingly, it is dismissed.

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Sd/- (ANTONY DOMINIC, JUDGE)

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aks/19/11

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// True Copy //

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P.A. To Judge

Prasannan Thomas v. the District Collector,Idukki & Ors.

Case brief

What is this about?

What did the court decide?

Prasannan Thomas v. the District Collector,Idukki & Ors.

Case brief

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