IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 WP(C).No. 18846 of 2009(A) --------------------------------------- PETITIONER(S): --------------------- C.T. THOMAS, CHAZHICHERIL HOUSE, PERUMPAIKKADU P.O., KOTTAYAM. BY ADV. MR.GEORGE MECHERIL MR.JOBY JOSEPH RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR, COLLECTORATE P.O., KOTTAYAM DISTRICT. 2. THE TAHSILDAR, KOTTAYAM. 3. THE VILLAGE OFFICER, VIJAYAPURAM, KOTTAYAM DISTRICT. 4. THE GEOLOGIST, MINING AND GEOLOGY, DISTRICT OFFICE, COLLECTORATE P.O., KOTTAYAM - 2, KOTTAYAM DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER MR.P. NARAYANAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.N.RAVINDRAN,J. ---------------------------------------- W.P.(C) No.18846 of 2009 - A ---------------------------------------- Dated 22nd September, 2009 Judgment Heard Sri.V.C.James, the learned counsel appearing for the petitioner and Sri.P.Narayanan, the learned Government Pleader appearing for the respondents. 2. The petitioner states that he has entered into an agreement with Sri.M.P.Geevarghese, the owner of a parcel of land, 60 cents in extent, situated in Vijayapuram village of Kottayam taluk to mine sand from the said lands after obtaining the necessary permits/licences from the authorities. The petitioner submits that with a view to enable him to apply to the District Geologist for the issue of a permit under the Kerala Minor Mineral Concession Rules, 1967, he submitted an application before the Tahsildar, Kottayam to issue a sketch, site plan and possession certificate in respect of the said lands. The said request was declined and the decision declining the request was communicated to him by Ext.P3 letter dated 24.6.2009. Ext.P3 states that the District Collector, Kottayam has by Circular No.E10/50442/98 dated 15.12.2005 restrained the revenue authorities from issuing sketch and site plan for W.P.(C) No.18846/2009 -:2:- the purpose of mining of soil in Kottayam district and therefore, his request cannot be entertained. Ext.P3 is under challenge in this writ petition wherein the petitioner seeks a writ in the nature of mandamus commanding the respondents to issue a sketch, site plan and possession certificate in respect of the property described in Exts.P1 and P2 to the petitioner. 3. When this writ petition came up for hearing on 15.9.2009, the learned Government Pleader was requested to make available a copy of the circular dated 15.12.2005 referred to in Ext.P3 letter. Accordingly, a copy thereof was made available. “The District Collector, Kottayam has in the said circular stated that a large number of complaints have been received that due to indiscriminate mining of soil in Kottayam district, salinity in water has increased and that there is also shortage of water. He has also stated that the local authorities have also brought this fact to his notice and requested him to take emergent action in the matter. The District Collector has further stated that when the complaints were examined, it was found that due to indiscriminate mining of soil, the ecological balance has been upset. By the said circular, the District Collector has directed that as the Government is bound to protect the environment, until further orders, W.P.(C) No.18846/2009 -:3:- sketch and possession certificates should not be issued from the Revenue department since the Mining and Geology Department is insisting for sketch and possession certificate for granting of mining permits. The learned counsel appearing for the petitioner contends, relying on Ext.P5 judgment of a learned single Judge of this Court, that the District Collector has no power to direct that sketch and possession certificate should not be issued for the purpose of applying for a permit under the Kerala Minor Mineral Concession Rules, 1967. The learned counsel for the petitioner contends that the question whether a permit should be granted or not, arises only after an application for mining permit is submitted and that, as the Kerala Minor Mineral Rules,1967 has been amended, at that stage, the District Collector can decide whether a no objection certificate should be issued or not. The learned counsel for the petitioner submits that the direction issued by the District Collector to the revenue officials not to entertain applications for the issue of sketch and possession certificate for the purpose of applying for a mining permit cannot be sustained and that the District Collector cannot impose restrictions on mining activities in Kottayam district. I have considered the submissions made at the Bar by the learned counsel appearing for the petitioner. A learned single Judge of this W.P.(C) No.18846/2009 -:4:- Court has in Gokuldas v. Geologist (2009 (3) KLT 924) held that after the amendment to the Kerala Minor Mineral Concession Rules, 1967, the District Collector is competent and empowered to consider whether mining of sand from a particular property would cause damage to the ecology and that he can issue orders banning mining of sand from a particular area in a district or in the district as a whole. It was held that the source of such power can be traced to Article 21 of the Constitution even if such powers are not specifically conferred by the Rules for ensuring sustainable development. However, the learned single Judge held that a blanket ban order cannot be issued without any restriction regarding the time limit. In the light of the decision of the learned single Judge in Gokuldas v. Geologist (supra), reliance placed by the petitioner in Ext.P5 judgment is misconceived. After Ext.P5 judgment was delivered, sub-rule (5) was introduced in rule 5 in the Kerala Minor Mineral Concession Rules, 1967 stipulating that every application for quarrying permit shall be accompanied by a no objection certificate issued by the District Collector concerned. The said amendment came into force on 12.3.2009 when the notification was issued and published in the Official Gazette dated 18.3.2009. Therefore, after March, 2009, the District Collector can prevent issue of quarrying permits if he is of the opinion that it will affect the ecology of W.P.(C) No.18846/2009 -:5:- the locality where quarrying is sought to be conducted. I am therefore of the opinion that the challenge to Ext.P3 cannot be sustained. Further, as an Indian citizen, the petitioner has a fundamental duty under Article 51-A of the Constitution of India to protect and improve the natural environment including forests, lakes, rivers and wild life. The petitioner can have no fundamental right to carry on quarrying or mining operations, since it will have the effect of negating the fundamental duty cast on him. In my opinion, the petitioner’s fundamental duty will prevail over his fundamental right, if any, to engage in quarrying of sand. On that ground also, I am of the opinion that the petitioner cannot successfully assail Ext.P3. In the result, the writ petition fails and is dismissed. P.N.RAVINDRAN Judge vaa