Remanded

Vijayamma Komalan v. the District Geologist Department of Mining and Geology Mining and Geology Kollam District Office

Kerala HC25 Nov 2019WP(C)/8676/2019

Case brief

AI extract

What is this about?

The Court consolidated two writ petitions regarding allegations of illegal granite mining versus a building stop order. After reviewing a site inspection report confirming valid permissions for earth and stone removal for construction, the Court remitted the matter to the Panchayat Secretary for further inquiry and final decision.

What did the court decide?

Directed the Secretary of the Piravanthoor Panchayat to hear both parties and decide on the necessity of further action, including the stop order, within one month.

Vijayamma Komalan Vs the District Geologist… — 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 DEVAN RAMACHANDRAN

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MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941

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WP(C).No.8676 OF 2019(H)

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PETITIONER:

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VIJAYAMMA KOMALAN AGED 55 YEARS W/O. KOMALAN, KARTHIKA, PIRAVANTHOOR P.O, KOLLAM DISTRICT, PIN-689 696

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BY ADVS. SRI.B.JITHU SRI.P.MOHAMED SABAH

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RESPONDENTS:

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1 THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY MINING AND GEOLOGY, KOLLAM DISTRICT OFFICE ASRAMAM, KOLLAM DISTRICT, PIN-691 008

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2 THE DISTRICT COLLECTOR

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CIVIL STATION, KANAKAMUKKU KOLLAM, PIN-691 013.

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3 THE DISTRICT POLICE CHIEF, KOLLAM RURAL OFFICE, KOTTARAKKARA, PIN-691 506

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4 THE KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ENVIRONMENTAL ENGINEER, DISTRICT OFFICE, KOLLAM, USHUS BUILDING, BIG BAZAR, KOLLAM, PIN-691 001

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5 PIRAVANTHOOR PANCHAYATH REPRESENTED BY ITS SECRETARY, PANCHAYATH BUILDING, PIRAVANTHOOR, PIN-689 696.

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6 KERALA STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY

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REPRESENTED BY ITS CHAIRMAN, PALLIMUKKU, PETTA, THIRUVANANTHAPURAM-695 024

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7 PRAKASH G AYYAPPAS RESIDING AT MANCHALLOOR, NADAKKUNNU ROAD, PATHANAPURAM, KOLLAM-689 695

¶19

¶20

WP(C).Nos.8676/2019(H)& 10223/2019(C)

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8 REVENUE DIVISIONAL OFFICER PUNALUR, MINI CIVIL STATION, THENKASI ROAD, PUNALUR, KOLLAM-691 305

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9 DISTRICT MEDICAL OFFICER HEALTH DEPARTMENT, 2ND FLOOR, VAADY-CIVIL STATION ROAD, ANANDAVALLESWARAM, VIDYA NAGAR, KOLLAM-691 013

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R1-3, R8-9 BY GOVERNMENT PLEADER R5 BY ADV. SRI.MANOJ RAMASWAMY R7 BY ADV. SRI.C.S.MANU R7 BY ADV. SRI.S.K.PREMRA SRI.T. NAVEEN, SC, PCB

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SR.GP K.AMMINIKUTTY; SC SEIAA M.P.SREEKRISHNAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2019, ALONG WITH WP(C).10223/2019(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).Nos.8676/2019(H)& 10223/2019(C)

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¶28

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶29

PRESENT

¶30

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶31

MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941

¶32

WP(C).No.10223 OF 2019(C)

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PETITIONER:

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G.PRAKASH AGED 47 YEARS S/O.GOPALAKRISHNA PILLAI, AYYAPPAS, MANJALLUR, PATHANAPURAM.P.O. KOLLAM DISTRICT, PIN-689695.

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BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ

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RESPONDENTS:

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1 PIRAVANTHOOR GRAMA PANCHAYATH PANCHAYATH BUILDING, VETTITHITA.P.O., PIRAVANTHOOR, KOLLAM DISTRICT, PIN-689696, REPRESENTED BY ITS SECRETARY.

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2 SECRETARY, PIRAVANTHOOR GRAMA PANCHAYAT, PANCHAYATH BUILDING, VETTITHIRA.P.O, PIRAVANTHOOR, KOLLAM DISTRICT, PIN-689696.

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R1-2 BY ADV. SRI.MANOJ RAMASWAMY

¶40

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2019, ALONG WITH WP(C).8676/2019(H), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶41

WP(C).Nos.8676/2019(H)& 10223/2019(C)

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JUDGMENT

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I am considering these two writ petitions together since the factual circumstances involved therein are inter-depended and since the prayers sought for in them are opposing each other, but confined to the same factual matrix.

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W.P.(C).No.8676/2019 has been filed by a certain Smt.Vijayamma Komalan alleging that the 7^th respondentSri.Prakash.G.Ayyappas, is illegally extracting granite and other minerals from his property, in blatant violation of all laws and that this is causing irreparable pollution and prejudice to the residents of the locality. She has also prayed that the official respondents be directed to calculate the “unlawful gain” obtained by the 7^th respondent, through his illegal mining activities and that he be penalized properly, as is warranted under the applicable Statutes and Regulations. She further says that she and various others have preferred Ext.P3 representation before respondents 2 and 8, who are the District Collector and the Revenue Divisional Officer respectively, and prays that the same be directed to be taken up and disposed of at the earliest.

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WP(C).Nos.8676/2019(H)& 10223/2019(C)

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While so, the afore mentioned Sri.Prakash.G.Ayyappas, filed W.P.(C).No.10223/2019 impugning Ext.P7 order of the 5^th respondent-Grama Panchayat, whereby a building being constructed by him has been directed to be stopped on the ground that he is engaged in illegal quarrying of granite and because he has constructed a compound wall in violation of the applicable Building Rules. The petitioner says that the contents of Ext.P7 are wholly incorrect, since his construction is supported by a sanctioned Building Permit and Plan issued by the said Panchayat and that the extraction of granite has not been done commercially, but only to develop the property and that too, under a valid permission granted by the Geologist and such other competent Authorities. Sri.Prakash.G.Ayyappas, therefore, prays that Ext.P7 in this writ petition be quashed and he be allowed to continue with the construction.

¶49

Noticing the afore opposing contentions of the parties, this Court had, by an order dated 27.05.2019, in W.P. (C).NO.8676/2019, directed the Geologist to make a site inspection and file a report. I notice that a report dated 31.05.2019 has been placed on record wherein the following have been stated:

¶50

WP(C).Nos.8676/2019(H)& 10223/2019(C)

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“1. As per the directions of the Hon’ble High Court in W.P.(C).No.8676/2019 order dated 27.05.2019. This respondent along with others in the office inspected the averred property of the 7^th respondent on 30.05.2019. During the inspection it was revealed that a quantity of 1700 MT of Ordinary Earth has been removed from the averred site owned by the 7^th respondent. On verification of the concerned filed in the office it was revealed that two permissions (No.402/18-19/OE/DOQ/S2/3423/18 dated 23.11.2018 and No.710/18-19/OE/DOQ/S2/3423/18 dated 22.02.2019 for 1200 MT and 640 MT of ordinary earth respectively) to extract 1840 MT of ordinary earth was granted to the 7^th respondent. Copy of the permission given in enclosed as Annexure I & II. After removing 1700 MT of ordinary earth, the 7^th respondent applied this office to grant permission for removal of granite building stone which got exposed on removal of the overlying over burden, the ordinary earth. After inspection since it was reveled that about 682 M (1705 MT) of granite building, a permission to remove granite building stone to the above mentioned quantity was granted from this office as per proceedings order No.763/18-19/GBS/DOQ/S2/323/18 dated 11.03.2019. Copy of the permission is enclosed as Annexure III. On verification of the averred site it is seen that a small quantity of granite building stone has already been extracted using non explosive and the remaining quantity is still insitu at the site and it is yet to be removed. The removal of ordinary earth and exposure of granite building stone due to the removal of ordinary earth is visible in Annexure IV (photo). The site inspection conducted by this respondent revealed that granite building stone extracted from the site has not been

¶53

WP(C).Nos.8676/2019(H)& 10223/2019(C)

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transported outside so far and the 7^th respondent has not exceeded the limits of permissible quantity of granite building stone and some quantity of the granite building stone he has already extracted was used for the construction of the retaining wall as evidenced it photographs enclosed as Annexure V.

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Hence it is concluded that the extraction of ordinary earth as well as granite building stone has been done in the averred site by the 7^th respondent as per the permissions granted and no violation was noted. He has to extract a balance of about 630 M³ of granite building stone from the averred site to make it ready for the construction of the building.”

¶57

Subsequently, it is seen that the 1^st respondent has filed a counter affidavit in W.P.(C).NO.8676/2019, wherein the following have been averred:

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“3. This respondent has received an application from the 7^th respondent on 08.10.2018 requesting for permission for removal of ordinary earth from 12.15 ares of land comprised in survey No.566/1/34/2/3 in Piravanthoor Village, Pathanapuram Taluk, Kollam district for the construction of a residential building. Along with the application the 7^th respondent has submitted a notarized copy of the building permit issued by the Piravanthoor Grama Panchayat which shows that the total building area is 283.48m² , a development permit from the concerned Panchayat (notarized copy) which shows that 3542m³ of ordinary earth has to be excavated from the said land for the purpose of construction of the building in

¶59

WP(C).Nos.8676/2019(H)& 10223/2019(C)

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question and other relevant documents. True copies of the notarized copy of the building permit issued by the Piravanthoor Grama Panchayat and a development permit from the concerned Panchayat is produced herewith and marked as Exhibit R1(a) and R1(b) respectively.

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On receipt of the application by this respondent from the 7^th respondent, a site inspection was carried out by this respondent’s office in the averred property of the 7^th respondent and being convinced that the ordinary earth has to be removed from the 7^th respondent’s property to construct the building as envisaged in the development permit, as a first instance permission was granted to remove 600m³ of ordinary earth from the averred property as per Rule 14(2) of Kerala Minor Mineral Concession Rules, 2015 after remitting necessary royalty to the Government. On removal of this quantity, the site was again inspected by the Mineral Revenue Inspector from the office of this respondent and permission was granted to remove a further quantity of 320m³ of ordinary earth after the 7^th respondent has remitted the royalty. The averment of the petitioner that the 7^th respondent started illegal excavation of ordinary earth from the said property without obtaining necessary permission is totally incorrect and in contrary he has removed the ordinary earth after obtaining necessary permission from this respondent and this respondent gave permission as per Rule 14(2) of Kerala Minor Mineral Concession Rules 2015 and the copy of those two permissions dated 23.11.2018 and 22.02.2019 granted by this respondent is produced herewith and marked as Exhibit R1 (C) and R1(d) respectively. After removing the ordinary earth from the

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WP(C).Nos.8676/2019(H)& 10223/2019(C)

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site, the 7^th respondent on 05.03.2019 requested this respondent that eventhough the ordinary earth has been removed from the averred site, the rocks present there which became visible only after the removal of ordinary earth and hindrance to the construction of the building, hence permission was sought to remove the rock present there. Again the site was inspected by this respondent’s office and since it was found that the request made by the applicant was genuine, permission was granted to remove 683 m³ of rock from the averred area as per Rule 106 of Kerala Minor Mineral Concession Rules, 2015 after payment of royalty. True copy of the permission granted for extraction of granite building stone dated 11.03.2019 is produced herewith and marked as Exhibit R1(e) . Since the area is populated and since the extraction of granite building stone is necessary for construction of the house of the 7^th respondent Exhibit R1(e) order was issued by this respondent directing the 7^th respondent not to use explosives for blasting of rocks, instead he would use the method of chemical blasting, etc for removal of the rock hindering the construction of the house.

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It is respectfully submitted that commonly chemical blasting methods is practiced to remove granite building stone safely when the area is populated. Explosives are not used and hence there is no explosion while conducting chemical blasting as averred by the petitioner. There is no chance of causage of cracks to building due to chemical blasting. To the best of the knowledge of this respondent, there is no such unbearable odour or serious threat to the health of children in the nearby locality where chemical blasting is practiced contrary it is one of the safest methods instead of using

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WP(C).Nos.8676/2019(H)& 10223/2019(C)

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explosives to remove granite building stone when such a removal becomes inevitable as in the case of the seventh respondent. No over extraction of minerals were noted so far from the averred area. The seventh respondent was given transit passes to remove 920 m³ of ordinary earth from the averred area after payment of royalty and also permission to extract 682 m³ of granite building stone after payment of royalty due to government which hinders the construction of his house. Hence there is no huge exploitation of natural resources as averred by the petitioner. There was no major mining operations in the area as averred by the petitioner. In contrary removal of ordinary earth and granite building stone was done by the seventh respondent only for the purpose of construction of a residential building that too, it was done after obtaining permission from this respondent as per the existing rules and after paying royalty to the Government.

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The averred area is not a quarry but since the seventh respondent has obtained a building permit and development permit for construction of a house in this site, ordinary earth and granite building stone has to be removed for the construction. After removal of ordinary earth, the granite building stone underneath got exposed and hence he was given permission to remove it after collecting necessary royalty as per the existing rule of the land. The 7^th respondent was also directed to conduct safe extraction without using explosives.

¶71

The 7^th respondent has so far done removal of ordinary earth and granite building stone after obtaining necessary permission from the concerned authorities. There is no major exploitation of natural resources contrary ordinary earth and the rock

¶72

WP(C).Nos.8676/2019(H)& 10223/2019(C)

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underneath is removed only for the purpose of construction of a building by the seventh respondent.

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it is not a quarry in operation. It is only just removal of ordinary earth and the rock underneath for the purpose of construction of a building. No major negative influence on the flora, the ground water table and natural flow of water by this action.

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No environmental clearance is needed to remove ordinary earth and rock from the averred property since the purpose of this removal is just for the construction of a residential building whose plinth area is below 33 m² as per Kerala Minor Mineral Concession Rules, 2015.

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This respondent once the work is completed will assess the extracted ordinary earth and rock from the averred area and surely will take legal action including imposing fine if such an over extraction has taken place.”

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When I consider the afore averments and the contents

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of the report of the District Geologist, it is clear that the official respondents now take the stand that Sri.Prakash.G.Ayyappas has not committed any illegality in his property and that he has, in fact, acted only on the basis of the relevant consents and permissions granted to him, evidenced by Annexures 1,2 and 3 produced along with the afore said report of the District Geologist in W.P.(C).No.8676/2019. In fact, Sri.Prakash.G.Ayyappas has also produced the said documents as Ext.R7(e), R7(f) and R7(g)

¶80

WP(C).Nos.8676/2019(H)& 10223/2019(C)

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in the said writ petition and these prima facie show that the activity being carried on by him is being done under proper legal sanction. I am, therefore, of the view that the Secretary of the Grama Panchayat must now hear Sri.Prakash. G.Ayyappas as well as Smt.Vijayamma Komalan and then take a final decision as to whether any further interdiction is necessary with respect to the construction being carried on by the former, as has been ordered through Ext.P7 in W.P.(C).No.10223/2019.

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In the afore perspective and for the reasons above, I order these writ petitions and direct the Secretary of the Piravanthoor Panchayat to hear the petitioners in both these cases and take a decision, adverting to the afore extracted averments in the counter affidavit of the 5^th respondent as also his report, as to whether the allegations made by Smt.Vijayamma Komalan requires any further action, and the resultant order shall be issued as expeditiously as is possible, but not later than one month from the date of a receipt of a copy of this judgment.

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While completing the afore exercise the Secretary of the Panchayat will also be at liberty to look into the allegation that Sri.Prakash.G.Ayyappas has constructed a compound wall causing damage to certain works completed by the Panchayat and a final

¶85

WP(C).Nos.8676/2019(H)& 10223/2019(C)

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decision in terms of this judgment will be taken after ensuring that all such damage or deficiencies have been rectified by Sri.Praksh.G.Ayyappas, as asserted by him.

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After I dictated this judgment, Sri.C.S.Manu-learned counsel for the petitioner submitted that the time granted to his client through Ext.R7(f) has expired and therefore, that the Authority be directed to extend the same. I am afraid that I am not in a position to accede to this request at this time and I am of the view that after the afore directed exercise is completed by the Secretary, the petitioner will be at liberty to approach the competent Authority for extension of Ext.R7(f), which shall be then considered based on the decision to be taken by the Secretary in terms of this judgment.

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This writ petition is thus ordered.

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Sd/-

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DEVAN RAMACHANDRAN

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nak

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JUDGE

¶94

WP(C).Nos.8676/2019(H)& 10223/2019(C)

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APPENDIX OF WP(C) 8676/2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, PIRAVANTHOOR WITH RESPECT TO THE PROPERTY OF THE PETITIONER.

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EXHIBIT P2 TRUE COPY OF THE PHOTOGRAPHS (2 IN NUMBER) SHOWING THE MINING OPERATIONS OF THE 7TH RESPONDENT.

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EXHIBIT P3 TRUE COPY OF THE MASS REPRESENTATION DATED 20.2.2019 SUBMITTED BY THE PETITIONER AND OTHER RESIDENTS OF THE LOCALITY BEFORE THE 2ND RESPONDENT.

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EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT DATED 31/5/2019 ISSUED FROM THE OFFICE OF THE VIGILANCE AND ANTI-CORRUPTION BUERO, KOLLAM UNIT.

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EXHIBIT P5 TRUE COPY OF THE PHOTOGRAPH (3NOS) SHOWING THE LOADING OF THE GRANITE STONES FROM THE PROPERTY OF THE 7TH RESPONDENT.

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RESPONDENTS' EXHIBITS:

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EXHIBIT-R1(a) TRUE COPY OF THE NOTARIZED COPY OF THE BUILDING PERMIT ISSUED BY THE PIRAVANTHOOR GRAMA PANCHAYATH. EXHIBIT-R1(b) TRUE COPY OF THE DEVELOPMENT PERMIT FROM THE CONCERNED PANCHAYATH. EXHIBIT-R1(c) TRUE COPY OF THE PERMISSION DATED 23.11.2018. EXHIBIT-R1(d) TRUE COPY OF THE PERMISSION DATED 22.02.2019. EXHIBIT-R1(e) TRUE COPY OF THE PERMISSION GRANTED FOR EXTRATION OF GRANITE BUILDING STONE DATED 11.03.2019.

¶105

WP(C).Nos.8676/2019(H)& 10223/2019(C)

¶106

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EXHIBIT-R7(A) TRUE COPY OF THE SALE DEED REGISTERED AS DOCUMENT NO.1001/2018 OF SRO PATHANAPURAM

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EXHIBIT-R7(B) TRUE COPY OF THE BASIC TAX RECEIPT DATED3-8-2018 ISSUED BY THE VILLAGE OFFICER, PIRAVANTHUR VILLAGE EXHIBIT-R7(C) TRUE COPY OF THE DEVELOPMENT PERMIT DATED 19-09-2018 ISSUED BY THE PIRAVANTUR GRAMA PANCHAYAT EXHIBIT-R7(D) TRUE COPY OF THE BUILDING PERMIT DATED 27-09-2018 ISSUED BY THEPIRAVANTHUR GRAMA PANCHAYAT EXHIBIT-R7(E) TRUE COPY OF THE ORDER DATED 23-11-2018 ISSUED BY THE DISTRICT GEOLOGIST, KOLLAM TO THE 7TH RESPONDENT EXHIBIT-R7(F) TRUE COPY OF THE ORDER DATED 22-2-2019 ISSUED BY THEDISTRICT GEOLOGIST TO THE PETITIONER EXHIBIT-R7(G) TRUE COPY OF THE ORDER DATED 11.3.2019 ISSUED BY THE DISTRICT GEOLOGIST, KOLLAM

¶109

WP(C).Nos.8676/2019(H)& 10223/2019(C)

¶110

¶111

APPENDIX OF WP(C) 10223/2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SALE DEED REGISTERED AS DOCUMENT NO.1001/2018 OF SRO PATHANAPURAM IN FAVOUR OF THE PETITIONER.

¶114

EXHIBIT P1 A TRUE COPY OF THE BASIC TAX RECEIPT DATED 3/8/2018 ISSUED BY THE VILLAGE OFFICER, PIRAVANTHUR VILLAGE TO THE PETITIONER EXHIBIT P2 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 19/9/2018 ISSUED BY THE PIRAVANTHUR GRAM PANCHAYAT TO THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT DATED 27/09/2018 ISSUED BY THE PIRAVANTHUR GRAMA PANCHAYAT TO THE PETITIONER. EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 23/11/2018 ISSUED BY THE DISTRICT GEOLOGIST, KOLLAM TO THE PETITONER EXHIBIT P5 TRUE COPY OF THE ORDER DATED 22/2/2019 ISSUED BY THE DISTRICT GEOLOGIST TO THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 11/3/2019 ISSUED BY THE DISTRICT GEOLOGIST, KOLLAM TO THE PETITIONER.

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EXHIBIT P7 TRUE COPY OF THE STOP MEMO BEARING NO.A3-2336/2019 DATED 20/03/2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER

¶116

//TRUE COPY// P.A TO JUDGE

Vijayamma Komalan v. the District Geologist Department of Mining and Geology Mining and Geology Kollam District Office

Case brief

What is this about?

What did the court decide?

Vijayamma Komalan v. the District Geologist Department of Mining and Geology Mining and Geology Kollam District Office

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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