Disposed

Cherupara Granites v. State of Kerala

Kerala HC4 Dec 2019WP(C)/12649/2019

Case brief

AI extract

What is this about?

Justice Shaji P. Chaly disposed of a writ petition challenging a Forest Department stop memo issued for alleged encroachment into forest property amidst conflicting claims. The court held the issue requires factual adjudication by a District Collector convening a meeting of stakeholders and reserved the bail rules for the Forward History of Rules Act. The parties were directed to comply within spe

What did the court decide?

The writ petition is disposed of with liberty to file objections to the stop memo; District Collector to convene a meeting of stakeholders to finalize the issue within two months.

Cherupara Granites Vs State of Kerala — Environment and Pollution | Kerala HC (2019)

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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 SHAJI P.CHALY

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WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941 WP(C).No.12649 OF 2019(E)

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PETITIONER/S:

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CHERUPARA GRANITES, VETTILAPPARA P.O., AREACODE, MALAPPURAM, REPRESENTED BY ITS MANAGING PARTNER, SRI. P.P.VEERAN.

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BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SRI.PAUL JACOB (P) SRI.ENOCH DAVID SIMON JOEL SRI.RONY JOSE SRI.GEORGE A.CHERIAN SRI.LEO LUKOSE SMT.SUZANNE KURIAN

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.

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**2 DIVISIONAL FOREST OFFICER, NILAMBUR NORTH DIVISION, NILAMBUR P.O., MALAPPURAM- 679 329. *ADDL. THE DISTRICT COLLECTOR, R3 COLLECTORATE, MALAPPURAM - 679 329. ADDL. STATE ENIVRONMENTAL IMPACT ASSESSMENT AUTHORITY, R4 DEVI KRIPA, PALLIMUKKU, PETTAH P.O., TRIVANDRUM, KERALA - 695024, REP. BY ITS MEMBER SECRETARY. ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DATED 02.12.2019 IN IA 1/2019 IN WPC NO.12649/2019.

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BY ADVS. R1 TO ADDL.R3 - SRI. K.SANDESH RAJA, SPECIAL G.P. ADDL.R4 - SRI. M.P. SREEKRISHNAN, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.12649 of 2019

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JUDGMENT

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This writ petition is filed by a quarry operator,

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seeking to quash Ext.P7 stop memo issued by the Divisional Forest Officer, Nilambur North Division, Malappuram District, directing the petitioner to stop the quarry operations, since the petitioner has encroached into an extent of 0.25 cents of forest property, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows:

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Petitioner is conducting a quarry with all the requisite licences and permits including Environmental Clearance, in the property belonging to him, having an extent of 1.2141 Hectares situated in Survey No.8/2 part in Vettilappara Village. The property shares its boundary on the eastern side with 4 plots that were originally assigned under the Kerala Private Forest (Vesting and Assignment) Rules, 1974. According to the petitioner, it was on the basis of a false allegation that petitioner quarried from 0.25 cents of the said neighbouring land, the Divisional Forest Officer has issued the stop memo, directing stoppage of the entire quarrying activity.

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W.P.(C)No.12649 of 2019 3

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petitioner is alleged to have conducted illegal quarrying is not a forest land, and therefore, the DFO has no authority or jurisdiction to issue a stop memo.

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It is also submitted that, the property of the petitioner does not share any boundary with any forest land also. That apart, it is stated that, 0.25 cents of property alleged to have encroached upon by the petitioner is an assigned land to private persons, which was subsequently transferred by the Forest Department to the Revenue Department in the year 1978, and therefore, from 1978, the land ceased to be a forest and the Forest Department lost all control over the said lands by the creation of proprietary rights by virtue of the assignment.

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The 2^nd respondent has filed a detailed statement, and an affidavit before this Court, basically refuting the contentions and allegations raised by the petitioner. The paramount contention advanced is that, Ext.P1(d) Environmental Clearance has

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been obtained by the petitioner suppressing the fact that the mining is to be done in the vested forest, and

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the petitioner has stated that there is no forest

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within 10 kms. of the quarry unit as per the

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W.P.(C)No.12649 of 2019

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environmental clearance issued. Ext.P1(d) environmental clearance has been granted based on the suppression of fact and fraud committed by the petitioner in his own application, and therefore, illegal and the same cannot be taken as a ground for conducting illegal quarrying in forest land. Therefore, Ext.P1(d) obtained based on suppression is to be treated as null and void in the eye of law.

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It is also pointed out that, General condition No.29 of the State Environment Impact Assessment Authority, Kerala clearly states that 100 metres buffer distance should be maintained from forest boundaries. However, the said condition is not seen complied with in this case. Yet another contention advanced is that, 3 landslides have occurred at Odakkayam Bit II area, which is near to the Chalikkal Bit Circuit-I, and the site of the incident is situated within 1 k.m. distance from the quarry. It is also pointed out that, 7 tribal people from Nelliyayi colony have lost their lives due to heavy landslides during 2018 from the Urangattiri Malavaram area. Therefore, it is evident that, the hill tracts in Odakkayam area are highly landslide prone area and highly ecologically fragile area. That apart, it is submitted that, Eenthumpaly colony,

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W.P.(C)No.12649 of 2019 5

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consisting of 50 Adivasi people, is situated within 700 metres away from this quarry.

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Among other contentions, it is also stated that, as per Rule 6 of the Kerala Private Forest (Vesting and Assignment) Rules, 1974, no developmental works other than agriculture and housing can be done in the land even if assuming to be assigned from the vested forest. In the affidavit filed on 06.11.2019, as directed by this Court, it is pointed out that, Vested Forest Item No.26, Urgattiri Malavaram, Chalikkal Circuit-I is situated adjoining and sharing the land in which the quarry exists. Hence the distance between the existing blasted area and vested forest is '0' metres, and the said forest area is demarcated with permanent cairns. Series of photographs are produced as Exts.R2(a) to R2(d).

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I have heard Sri. Bechu Kurian Thomas, learned Senior Counsel appearing for the petitioner, assisted by Advocate Sri. Enoch David Simon Joel, and Sri. Sandesh Raja K., learned Special Government Pleader (Forests), and perused the pleadings and the documents on record.

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The discussion of facts made above would make it clear that, the challenge made by the petitioner is

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W.P.(C)No.12649 of 2019

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against Ext.P7 stop memo issued by the Forest Department, basically on the ground that the forest authorities are not having any power to interfere with the quarrying operations carried out by the petitioner after securing all clearances from the respective statutory authorities. It is an admitted fact that, petitioner is having necessary licences and clearances from the respective statutory authorities. In Ext.P7 stop memo, the allegation made against the petitioner is that, petitioner has encroached into an area of 0.25 cents of land and conducted quarrying operations, which is violative of the licence conditions. It is also pointed out thereunder that, the said area is a forest area, and therefore, the encroachment made by the petitioner has interfered with the Forest laws and the General Conditions contained under the environmental clearance.

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However, in the affidavit filed by the

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Divisional Forest Officer, as pointed out above, it is stated that, the blasted area is situated immediate to the Urgattiri Malavaram, Chalikkal Circuit-I and the distance between the quarry and the forest is '0' metres. Of course, from the series of photographs produced along with the affidavit, it is clear that,

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W.P.(C)No.12649 of 2019 7

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cairns are put up by the Forest Department. However, learned Senior Counsel for the petitioner submitted that, the cairns that are seen in the photographs are installed after the filing of the writ petition, and therefore, the attempt of the Forest Department is to demonstrate that the quarry conducted by the petitioner is in violation of the General Conditions of Ext.P1(d) environmental clearance.

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It is an admitted fact that, as per General Condition No.29 of the General Conditions, 100 metres buffer distance shall be maintained from the forest boundaries. Going by the pleadings put forth by the Divisional Forest Officer, the factual circumstances put forth by the petitioner that there is no forest anywhere near the quarry of the petitioner has become a disputed fact, and it can only be adjudicated and deciphered by a fact finding body. Learned Senior Counsel has also a contention that the Divisional Forest Officer as well as the District Collector were members of the State Environmental Impact Assessment Authority, and therefore, the contention put forth by the Forest Department now that the quarry is situated close to the forest cannot be sustained under law, since such aspects would have been noted by the

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W.P.(C)No.12649 of 2019 8

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Divisional Forest Officer as well as the District

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Collector, if it was actually existing so.

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Anyhow, in my considered opinion, the issues raised by the parties are to be adjudicated by making appropriate site visits, and identifying the issues with reference to necessary sketches, maps etc. maintained by the Forest and the Revenue Departments. Therefore, it is only better that the issue is decided by the District Collector by convening a meeting of all the stakeholders including the Conservator of Forest or any other person nominated by the said authority. Moreover, I find that, Ext.P7 challenged by the petitioner is a stop memo and the petitioner can raise all contentions by filing suitable objection to Ext.P7

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and establish before any of the authority that the allegations raised in Ext.P7 are not at all correct, factually or legally.

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Therefore, the writ petition is disposed of, leaving open the liberty of the petitioner to submit suitable objection to Ext.P7 and produce all attendant documents before the Divisional Forest Officer, within three weeks from the date of receipt of a copy of this judgment. The Divisional Forest Officer, after receipt of objection from the petitioner, shall place the

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W.P.(C)No.12649 of 2019

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matter before the District Collector, Malappuram, who is the additional 3^rd respondent in this writ petition. On receipt of the objection and all other required documents from the Divisional Forest Officer, the District Collector shall convene a meeting of the Forest and Revenue Departments and the State Environmental Impact Assessment Authority and finalize the issue within two months thereafter, after providing all opportunity of hearing and participation to the respective stakeholders.

Sd/-

SHAJI P.CHALY

JUDGE

St/-05.12.2019

W.P.(C)No.12649 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE 16.05.2011 VALID	QUARRYING LEASE DATED TILL 15.05.2021.
EXHIBIT P1(A)	TRUE COPY OF THE VALID TILL 31.01. POLLUTION CONTROL	CONSENT DATED 01.02.2018 2023 ISSUED BY THE BOARD.
EXHIBIT P1(B)	TRUE COPY OF THE 12.04.2018 VALID	PANCHAYAT LICENSE DATED TILL 31.03.2023.
EXHIBIT P1(C)	TRUE COPY OF THE 11.01.2017 VALID	EXPLOSIVE LICENSE DATED TILL 31.03.2022.
EXHIBIT P1(D)	TRUE COPY OF THE CERTIFICATE DATED 30.11.2021.	ENVIRONMENTAL CLEARANCE 01.12.2017 VALID TILL
EXHIBIT P2	TRUE COPY OF SALE AREACODE SRO.	DEED NO.3202/2010 OF
EXHIBIT P3	TRUE COPY OF PURC NO.92/1997 ISSUED MALAPPURAM.	HASE CERTIFICATE BY THE LAND TRIBUNAL,
EXHIBIT P4	TRUE COPY OF THE 23.03.2015 WITH N THE 2ND RESPONDEN	REPORT AND SKETCH DATED O.C1-7965/2014 ISSUED BY T.
EXHIBIT P5	TRUE COPY OF THE 29.01.2019 PREPAR	REPORT AND SKETCH DATED ED BY THE 2ND RESPONDENT.
EXHIBIT P6	TRUE COPY OF THE WITH NO.C1-54/19 RESPONDENT.	LETTER DATED 11.02.2019 ISSUED BY THE 2ND
EXHIBIT P7	TRUE COPY OF THE NO.C1-54/19 ISSUE	STOP MEMO DATED 05.04.2019 D BY THE 2ND RESPONDENT.

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RESPONDENT'S/S EXH	IBITS:
EXHIBIT R2(a):	TRUE COPY OF THE PHOTOGRAPH OF THE RESERVE FOREST AND THE QUARRY.
EXHIBIT R2(b):	TRUE COPY OF THE PHOTOGRAPH OF THE RESERVE
	FOREST AND THE QUARRY.

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W.P.(C)No.12649 of 2019

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EXHIBIT R2(c): TRUE COPY OF THE PHOTOGRAPH OF THE RESERVE FOREST AND THE QUARRY. EXHIBIT R2(d): TRUE COPY OF THE PHOTOGRAPH OF THE RESERVE FOREST AND THE QUARRY.

Cherupara Granites v. State of Kerala

Case brief

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Cherupara Granites v. State of Kerala

Case brief

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