All Kerala River Protection ... vs State Of Kerala
2021 Latest Caselaw 20640 Ker

W.P.(C) No. 27100/2018               : 1:



                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                      &

                   THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

           TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943

                            WP(C) NO. 27100 OF 2018

PETITIONER/S:

              ALL KERALA RIVER PROTECTION COUNCIL
              REG.NO.1052/98/EKM, HIGH ROAD, ALUVA-683 031, REPRESENTED
              BY ITS GENERAL SECRETARY T.V.RAJAN, S/O.APPUTTI, AGED 63
              YEARS, SAMSKRITH, KUTHIRAVATTOM P.O., KOZHIKODE DISTRICT,
              PIN-673 016.

         SMT. DAISY A. PHILIPOSE

RESPONDENT/S:

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

     2        THE DISTRICT COLLECTOR,
              CIVIL STATION, KALPETTA, WAYANAD, PIN-673 121.

     3        THE SUB COLLECTOR,
              REVENUE DIVISIONAL OFFICE, MANANTHAVADY P.O., WAYANAD, PIN-
              670 645.

     4        THE DISTRICT SURVEY SUPERINTENDENT,
              MINI CIVIL STATION, MANATHAVADY, WAYANAD, PIN-670 645.

     5        THE GEOLOGIST,
              DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, PBM
              BUILDING, MENNANGADI, WAYANAD, PIN-673 571.

     6        THE ENVIRONMENTAL ENGINEER,
              DISTRICT OFFICE OF THE KERALA STATE POLLUTION CONTROL
              BOARD, JASAM COMPLEX, PINANGODE ROAD, KALPETTA,
              PIN-673 121.

     7        VELLAMUNDA GRAMA PANCHAYATH,
 W.P.(C) No. 27100/2018               : 2:


           REPRESENTED BY ITS SECRETARY, WAYANAD, PIN-670 731.

     8     THE VILLAGE OFFICER,
           VELLAMUNDA VILLAGE, WAYANAD, PIN-670 731.

     9     M/S. ATHANI BRICKS AND METALS(P)LTD.,
           VARAMBETTA P.O., PADINJARATHARA, WAYANAD, PIN-673 575,
           REPRESENTED BY ITS MANAGING DIRECTOR, MATHEW JOSEPH.




           SRI.S.KANNAN,SENIOR GOVERNMENT PLEADER

           R9 BY SMT. NISHA GEORGE

           R6 BY SRI. NAVEEN T, SC

           R7 BY SRI. FIROZ K.M., SC




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 27100/2018              : 3:


                    Dated this the 5th day of October, 2021.

                                   JUDGMENT

S. MANIKUMAR,CJ.

The petitioner, a voluntary organization registered under the

Travancore-Cochin Scientific, Literary and Charitable Societies Act, has

filed this writ petition for and on behalf of the members of the

Scheduled Tribe, said to have been seriously affected, by the severe

environmental pollution and damage caused by the quarrying

operations conducted by the 9 th respondent, in an extent of 1.6795

hectares of property comprised in Survey No. 622/1Apt of Vellamunda

Panchayat in Wayanad District.

2. On the basis of the enquiry report dated 04.04.2018

submitted by the Sub Collector, Mananthavady before the District

Collector stating that there are 5 houses within 50 meters on the

southern side of the quarry, and that there are houses at a distance of

54 meters and 89 meters respectively, and another house, under

construction at a distance of 89 meters and that if mining is permitted

to continue as such, the neighbouring Scheduled Tribe families would

have to live in fear of death; and that there are chances that their lives

and properties would be in danger, the District Collector, Wayanad has

issued Ext. P6 order dated 09.05.2018 directing the Geologist to verify,

whether any quarry is functioning within the prohibitory distance and

to take appropriate action in accordance with law. But, no action was

taken to implement Ext. P6 order. Hence, the petitioner has filed this

writ petition seeking the following reliefs:

1. Issue a writ of certiorari calling for the records relating to Ext.P1 and P2 and quash the same as illegal.

2. Issue a writ of mandamus directing respondent No. 2 to take immediate and effective steps to prohibit respondent No. 9 from conducting granite quarrying operations in the property having an extent of 1.6795 hectares, comprised in Survey No. 622/1A pt of Vellamunda Village in Mananthavady Taluk in Wayanad District.

3. Issue a writ of mandamus directing respondent No. 2 to take immediate and effective action to implement Ext.P5.

4. Issue a writ of mandamus directing respondent No. 2 to take immediate steps to recover 1.97 acres of land comprised in Resurvey No. 239 of Vellamunda Village in Mananthavady Taluk in Wayanad District, from the possession of the 9 th respondent in accordance with law.

3. Sub Collector, Revenue Divisional Office, Mananthavady P.O.,

Wayanad and the Geologist, District Office, Department of Mining and

Geology, Wayanad-- Respondent Nos. 3 and 5 have filed their

respective counter affidavits denying the averments in the writ

petition. The 3rd respondent, in the counter affidavit, has stated that

the quarry of M/s. Athani Bricks & Metals (P) Ltd., Varambetta P.O,

Padinjarathara, Wayanad--the 9th respondent is situated in a

geographically steep hilly area; that two landslides had partially

damaged the land of the nearby adivasis; that the lives of the adivasis

were saved due to timely intervention of the revenue as well as police

Departments and that occurrence of landslides fortifies the findings in

the scientific report of NCESS.

4. According to the 3 rd respondent, the District Collector,

Wayanad, the 2nd respondent, in his capacity as the Chairman,

DDMA, Wayanad, by proceedings No. DCWYD/447/2017-DSC2, dated

06.11.2017, formed a committee comprising of the third respondent,

as the team leader, DFO, North Wayanad, the 5 th respondent, the

Tahsildar, Mananthavady and the Secretary, Vellamunda Grama

Panchayath, to enquire into the quarrying operations alleged in

Banasura Hills range, Athani Quarry, situated in the same hill range,

and operated by the company M/s. Athani Bricks and Metals Pvt. Ltd.

represented by its Managing Director, Sri. Mathew Joseph, the 9 th

respondent. According to the petitioner, location of the quarry is at a

place namely, Vellaramkunnu in Vellamunda Village of Mananthavady.

5. It is also stated that the company has been operating

quarry on the basis of a lease agreement executed in the year 2010

between them and the Government for a period of 12 years, i.e., from

16.05.2010 to 15.05.2022. The company holds an extent of 4.15 acres

(1.6795 hectares) in old survey No.622/1A of Vellamunda Village. An

extent of 3.15 Acres is in the name of the Managing Director of the 9 th

respondent, who derived it by virtue of document No.977/08 of

Vellamunda SRO; whereas, the other one acre is on the basis of a

consent letter dated 03.12.2009 issued by Mr.Jiji Lukose, who, in turn,

obtained the said extent of land, by virtue of document No.2805/08 of

Vellamunda SRO.

6. It is further stated that the land measuring 3.15 acres is

having two LA pattas mentioned in the document viz. LA/12/69, dated

20.09.1969 (1.50 acres) and LA/27/86, dated 16.02.1996 (1.65 acres)

respectively, in the names of Sri.Kuttappan and Sri.T.K.Kannan Nair;

whereas, one acre is having only one patta viz., LA/21/84, dated

23.12.1987, in the name of Sri.Cheenikottil Narayanan.

7. It is also stated that for the purpose of executing the lease

agreement, a location sketch of 4.15 acres or the entire land claimed

to be in possession of the Company with side measurements and

names of the neighbouring properties were prepared by the Village

Officer, Vellamunda Village, the 8th respondent on 25.11.2009, which

has been the basis for fixing or identifying the lease land in case of

dispute, till date. The sketch was prepared prima facie, without

verifying the connected documents or village records. Based on the

location sketch, on 26.04.2010, the Director of Mining and Geology

has granted a quarrying lease in respect of the above mentioned

property and as per the terms of the grant, a quarrying lease deed was

also executed.

8. It is stated that as per the records available before the 3rd

respondent, the 9th respondent secured D & O License to conduct the

quarry in the said property from the Vellamunda Grama Panchayat,

represented by its Secretary, Wayanad, the 7th respondent on

04.04.2013. Since there were complaints about the functioning of the

quarry, based on the report of the Divisional Forest Officer, North

Wayanad, the 3rd respondent issued a direction to the Tahsildar,

Mananthavady on 13.12.2013, to take appropriate action for stopping

the operation of the quarry and consequently, Tahsildar, Mananthavady

issued a stop memo to the 9 th respondent on 16.12.2013, for stopping

the operation of the quarry.

9. Issuance of stop memo was challenged by the 9 th respondent

before this Court by filing W.P.(C) No.638/2014, in which this Court

has directed the 2nd respondent to consider and pass orders on the

appeal filed against the stop memo, within a period of one month from

the date of its receipt. Subsequently, the Additional District Magistrate

concerned inspected the quarry site and directed the Tahsildar,

Mananthavady, to fix its boundaries. Later, on 29.01.2014, the Taluk

surveyor concerned, measured and identified the property and

submitted a report in that regard along with a sketch. Again,

subsequent to a direction from the Additional District Magistrate, the

Taluk Surveyor measured and identified the property on 05.07.2014

and a report was submitted along with a different sketch showing the

property of Smt. Puthoor Amina, wherein quarrying was illegally

carried on then, and in the properties of nearby Adivasis as well as in

the unassigned revenue poramboke.

10. In the interregnum, subsequent to the findings of the Taluk

Surveyor dated 29.01.2014, the 2nd respondent has issued a direction

to the 5th respondent, on 15.02.2014, to assess the quantity of the

granite quarried from the property of Smt. Puthur Amina and to

recover the royalty, fine and also permitted the 9 th respondent to

temporarily operate the quarry, in the property in respect of which the

lease is granted.

11. Consequently, the 5th respondent has submitted a report

dated 23.07.2014 before the 2nd respondent stating that an amount of

Rs.1,09,320/- was recovered from the 9th respondent towards royalty

and fine and thereby, informed that a direction had been issued to the

9th respondent to demarcate the actual quarrying area (lease land).

Nevertheless, on the complaint that quarrying operations were

conducted by the 9th respondent by encroaching on the nearby adivasi

land, the proceedings of the 2 nd respondent dated 15.02.2014 was

reexamined and on 22.08.2014, the 2 nd respondent issued another

direction to stop the quarry and thereby, directed the 9 th respondent to

apply for permission as per the Kerala Land Conservancy Act, as the

minerals in the assigned land belong to the State.

12. Since there were complaints regarding the operation of the

quarry, the Tahsildar again issued a stop memo dated 10.12.2014,

which was assailed in W.P. (C) No. 33819/2014, as per which the 2 nd

respondent was directed to decide as to whether Environmental

Clearance is necessary to operate the quarry by the 9 th respondent on

the basis of the dictum laid down by this Court in W.P.(C) No. 31148 of

2014 and in W.A No. 1566 of 2014.

13. On 28.10.2015, the 4th respondent has submitted a report

No. G4-25042/15 to the 2nd respondent reporting that the boundaries

of the lease land could not be fixed with regard to the assigned lands,

due to the differences in the shapes, side measurements and names of

the neighboring properties mentioned in the Pattayam sketch and

those found on earth. Later, subsequent to the directions of this Court

in W.P. (C) No. 35962/15 dated 23.02.2016, Tahsildar and the Survey

Deputy Director visited the quarrying site on 18.03.2016 and

submitted a report to the 2 nd respondent on 22.03.2016. Thereafter, on

31.03.2016, the 2nd respondent issued a direction to the Tahsildar to

survey the quarry again with the help of the Deputy Director of Survey

in the presence of the 9th respondent and in the presence of the

complainant, Sri. Radhakrishnan, who had complained against the

operation of the quarry.

14. Later, in W.P. (C) No. 35962 of 2015, this Court has directed

to fix the boundaries of the leased property with the assistance of the

8th respondent on the basis of the Village records and to permit the

functioning of the quarry, if it is within the leased premises.

Accordingly, the Tahsildar, has intimated the 9 th respondent to clearly

demarcate the land in possession in survey No. 622/1A and to lay

stones at the bends on the basis of the document of the land and on

the basis of prior document and to intimate the same to him. Later, on

16.04.2016, the 9th respondent intimated the Tahsildar that he had

demarcated the land in his possession by laying stones at the bends

and submitted a sketch prepared by him on 07.05.2016.

15. The Tahsildar referred the sketch for the verification of the

Taluk Surveyor, who in turn, had submitted his report on 10.06.2016.

Thereupon, the 8th respondent also submitted a sketch before the 2nd

respondent through the Tahsildar, consequent to a direction issued

from the 2nd respondent dated 09.06.2016. However, the 2 nd

respondent has not accepted the sketch submitted by the 8th

respondent and reprimanded the Tahsildar for simply forwarding the

report of the 8th respondent on 22.06.2016 and expressed discontent

for submitting a sketch counter signed by the 8th respondent, but

prepared by the 9th respondent. The 2nd respondent, therefore,

issued a direction to the Tahsildar to survey the quarry based on the

sketch annexed to the Pattayams and to fix the boundaries and to

submit the survey sketch, endorsed by 8th respondent, Taluk Surveyor

and the Tahsildar.

16. Pursuant to the said direction, on 03.08.2016, the property

was again surveyed and it was reported to the 2nd respondent on

04.08.2016 by the Tahsildar that the quarry is in the leased area of

1.6795 hectares comprised in Sy.No.622/1A pt. Thereafter, on

21.11.2017, the 3rd respondent conducted a surprise inspection of the

quarry as part of the enquiry ordered by the 2nd respondent and

found that there are 4 houses immediately in the vicinity of the quarry

within 50 meters and directed the 8th respondent to submit a report

along with sketch. On 23.11.2017, the 8th respondent submitted a

report along with a location sketch showing that there are houses at

47 meters, 51 meters and 7 meters distance from the quarry of the 9 th

respondent.

17. As part of the enquiry ordered by the 2 nd respondent, the

third respondent, along with respondents 5 and 7 and other officials

concerned conducted a site inspection of the quarry site on

28.03.2018. As per Exhibits P3 and P4 reports submitted by

respondents 5 and 7, there were 4 houses within a distance of 17.0

metres from the quarry, which is within the prohibited degree of

distance.

18. After the site inspection, the 3rd respondent has

submitted Exhibit P5 depicting the progress of the enquiry on

04.04.2018 before the 2nd respondent, with the following findings:

1. The location sketch dated 25.11.2009, was prepared by the Village Assistant and was endorsed by the 8th respondent, without verifying the boundaries of the properties owned by the 9 th respondent, based on his title deeds and the relevant village records. It was based on the said sketch that the Geologist had granted quarrying lease. All statutory authorities including the District Survey Superintendent, had conducted subsequent surveys based on this location sketch.

2. An extent of 1.97 acres of Government land comprised in Re. Sy. No.239 (after re-survey the land held by the 9 th respondent in survey number 622/1A falls in this re-survey number) of block No. 45 of Vellamunda Village was illegally encroached by the 9 th respondent which is not demarcated nor included in the re-survey records, due to the lapse of the concerned officers.

3. The 9th respondent had been conducting quarrying operations outside the leased area, at least till 27.10.2015.

4. There are discrepancies in the survey sketches prepared by the Taluk surveyors on 29.01.2014, 05.07.2014, 18.05.2015 and 27.10.2015. The lease sketch prepared by the Village Officer on 25.11.2009 are not fully matching with the aforesaid sketches..

5. The boundaries of the leased area were changed from time to time to suit the convenience of the 9th respondent and it was without demarcating the leased area that the quarrying activities were being carried out by the 9th respondent till 12.04.16.

6. The quarrying activities were being carried out by the 9th respondent from 12.05.2010 till 09.08.2016, without mining plan and that the quantity of the granite quarried during the said period was not assessed.

7. There are 5 houses within 50 meters on the southern side of the quarry. In addition to this there are houses at a distance of 54 meters, 89 meters and another house which is under construction, at a distance of 89 meters.

8. The property cannot be identified and located in the leased area within the same boundaries, on the basis of the location sketch prepared by the Village Officer on 25.11.2009.

9. The mining plan was approved by the Geologist even when it was found that there are houses within the prohibitory distance and it is against the provisions of law.

10. If the mining is permitted to continue as such, then the neighboring Scheduled Tribe families should live in fear as there are chances of threat to their lives and properties.

19. After perusing Exhibit P5, the 2 nd respondent issued

Exhibit P6 order dated 09.05.2018 and thereby, directed the 5 th

respondent to verify as to whether the quarry is functioning within the

prohibitory distance and to take appropriate action in accordance with

law. The Tahsildar was directed to recover 1.97 acres of land, after

evicting the encroachment made therein and to take action regarding

the loss of minerals and trees situated in the assigned land in

accordance with law, including cancellation of Pattayams and to

complete the LRM works in respect of the land in which the quarry was

being operated, without violating the interim orders passed by this

Court in W.P.(C) No. 11615/2018 and W.P. (C) No. 11171/2018.

Proceedings pursuant to Exhibit P6 are underway and will be attained

to its logical conclusion, as contemplated under law. On 14.06.2018,

there was a landslide at Vellaramkunnu, 200 meters away from the

quarry conducted by the 9th respondent and the matter was reported

to the 3rd respondent by the 8th respondent on 16.06.2018.

20. On 16.06.2018, the 8th respondent reported to the 3rd

respondent that the massive explosions from the nearby two quarries

are causing landslides and if the quarries are permitted to function as

such, it will lead to further destruction, as the hills are very steep

around the said quarries. Thereupon, the 3rd respondent has submitted

a report to the 2nd respondent. Thereafter, on 03.08.2018, the 2 nd

respondent, being the Chairman of DDMA, temporarily prohibited the

functioning of the quarry, which according to the NCESS report, is

situated in the 'red zone' or 'high hazard zone', on the basis of the

report of Hazard Analyst and as detailed study is required prior to

granting permission for mining.

21. In fact, the 9th respondent was operating the quarry on the

strength of the orders granted by this Court in W.P.(C) No.11171/2018,

filed by the 9th respondent consequent to the inaction of the 7 th

respondent to issue D&O licence for the current year, subsequent to the

findings in the enquiry progress report. W.P(C) No.11615 of 2018 was

also filed by the 9th respondent against further proceedings based on

the enquiry progress report submitted by the 3rd respondent.

22. Since the quarry is situated on a very steep hill and also in a

'high hazard zone', according to the NCESS report, the use of explosives

and any quarrying activity in that area will trigger landslides as

happened during last monsoon. The life and properties of the nearby

adivasi families are in danger and therefore, the quarry shall not be

allowed to function in the high hazard zone, at least for the time being.

23. The 7th respondent has reported that the 9 th respondent has

an explosive licence issued by Chief Controller of Explosives, which is

valid till 31.03.2019. There are at present 5 houses within a perimeter

of 50 metres from the southern side of the lease land intended for

quarrying activities and their lives and properties are in danger.

24. It was found during the joint inspection conducted on

28.03.2018 that there are four houses within a distance of 17.0 metres

from the lease land boundary. The matter was reported to the 2 nd

respondent on 04.04.2018, as well. According to the 3rd respondent,

the quarry is situated in a 'high hazard zone' according to the NCESS

report. The use of explosives and any quarrying activity in that area will

trigger landslides. The said aspect has been fortified by the two

landslides that occurred close to the quarry during this heavy monsoon.

DDMA has, in fact, acted upon the report of the third respondent and

has now stopped the functioning of the quarry until a detailed study is

done by Ext.R3(a) order dated 03.08.2018.

25. On this day, when the matter came up for further hearing, Sri.

S. Kannan, learned Senior Government Pleader, submitted that

pursuant to the inspection, the Chairperson of the District Disaster

Management Authority, Wayanad has issued a proceedings dated

03.08.2018 temporarily prohibiting the functioning of the quarry

owned by the 9th respondent pending study report from the Hazard

Analyst on the ground that the quarry was functioning in the high

hazard zone. He further submitted that Hazard Analyst, DDMA, as per

his report dated 01.04.2021 has reported that the subject quarry falls

under the 'High Hazard Zone' (red zone) of the Landslide Zonation

map prepared by KSDMA, and accordingly orders have been issued

under the provisions of the Disaster Management Act, 2005 by the

Chairman of the Disaster Management Authority and the District

Collector, Wayanad that there shall not be any quarrying activity in the

red zone.

As much as the orders have already been issued by the competent

authority under the Disaster Management Act not to do quarrying

activities at the subject site, no further directions are required to be

issued with reference to prayer No.1. In respect of other prayers to

take steps to recover 1.97 acres of land comprised in Re-survey No.

239 of Vellamunda Village in Mananthavady Taluk in Wayanad District

from the possession of the 9th respondent, the issues are left open and

it is for the District Collector, Wayanad or any other competent

authority under the respective statutes to examine and take

appropriate action in accordance with law.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv




                      APPENDIX OF WP(C) 27100/2018

PETITIONER EXHIBITS

EXHIBIT P1               A TRUE COPY OF THE ORDER NO.65/2010-

2011/3006/M3/2010 DATED 26.04.2010 GRANTED BY THE DIRECTOR OF MINING AND GEOLOGY TO THE 9TH RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE LEASE DEED DATED 12.05.2010 EXECUTED BETWEEN THE 6TH RESPONDENT AND THE 9TH RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE SITE INSPECTION REPORT DATED 28.03.2018 PREPARED BY THE GEOLOGIST WITH ITS TRANSLATION.

EXHIBIT P4 A TRUE COPY OF THE LETTER NO.A4-754/2018 SUBMITTED BY THE SECRETARY OF VELLAMUNDA PANHAYATH BEFORE THE SUB COLLECTOR, MANANTHAVADY, WITH ITS TRANSLATION.

EXHIBIT P5 A TRUE COPY OF THE LETTER AND THE REPORT DATED 04.04.2018 SUBM,ITTED BY SUB COLLECTOR, MANANTHAVADY BEFORE THE DISTRICT COLLECTOR, WITH ITS TRANSLATION.

EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 09.05.2018 ISSUED BY THE DISTRICT COLLECTOR TO THE GEOLOGIST AND OTHERS WITH ITS TRANSLATION.

EXHIBIT P7 A TRUE COPY OF THE RELEVANT EXTRACT OF THE NEWS REPORT REGARDING THE LANDSLIDE PUBLISHED IN MATHRUBHOOMI DAILY DATED 15.06.2018 WITH ITS TRANSLATION.

EXHIBIT P8 A TRUE COPY OF THE LETTER NO.M-6431/17(1) DATED 21.06.2018, SUBMITTED BY THE SUB COLLECTOR MANANTHAVADY BEFORE THE DISTRICT COLLECTOR WITH ITS TRANSLATION.

RESPONDENTS' EXHIBITS:

EXT.R5(a): TRUE COPY OF THE SITE INSPECTION REPORT DATED 08.05.2018 ALONG WITH ITS ENGLISH TRANSLATION.

EXT.R5(b): TRUE COPY OF THE COMMUNICATION DATED 18.05.2018 ISSUED BY 5TH RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION.

EXT.R5(c): TRUE COPY OF THE COMMUNICATION DATED 18.05.2018 ISSUED BY THE 5TH RESPONDENT TO THE SECRETARY, VELLAMUNDA GRAMA PANCHAYAT.

EXT.R5(d): TRUE COPY OF THE ORDER DATED 03.08.2018 ISSUED BY THE CHAIRMAN OF THE DISTRICT DISASTER MANAGEMENT AUTHORITY ALONG WITH ITS ENGISH TRANSLATION.

EXT.R3(a): TRUE COPY OF THE ORDER DATED 03.08.2018 ALONG WITH ITS ENGLISH TRANSLATION.

/True Copy/

PS To Judge.

rv