IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 WP(C).No. 15766 of 2011(U) -------------------------- PETITIONER(S): --------------- 1. MADHUSOODANAN PILLAI, S/O.KARUNAKARAN PILLAI, KARAKAT PUTHEN VEEDU, PUTHANAMBALAM.P.O., KOLLAM-691 553. 2. P.G.VIJAYAKUMAR, S/O.GOPALA PILLAI, PINNATTU VEEDU, PUTHANAMBALAM.P.O., KOLLAM-691 553. BY ADV. SRI.M.R.DHANIL RESPONDENT(S): --------------- 1. THE REVENUE DIVISIONAL OFFICER, KOLLAM-691 001. 2. THE TAHSILDAR, KUNNATHUR TALUK, KOLLAM-691 001. 3. THE VILLAGE OFFICER, KUNNATHUR, KOLLAM-691 001. GP SMT. M.J.RAJASREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15766 of 2011 APPENDIX EXHIBITS EXT.P1- A TRUE COPY OF THE QUARRYING PERMIT ISSUED BY THE GEOLOGIST, KOLLAM DATED 5.1.06 TO THE SECOND PETITIONER EXT.P2- A TRUE COPY OF THE QUARRYING PERMIT ISSUED BY THE GEOLOGIST, KOLLAM DATED 2.2.05 TO THE SECOND PETITIONER EXT.P3- A TRUE COPY OF THE PERMIT ISSUED BY THE GEOLOGIST, KOLLAM DATED 13.4.05 TO THE SECOND PETITIONER EXT.P4- A TRUE COPY OF THE PERMIT ISSUED BY THE GEOLOGIST, KOLLAM DATED 22.11.06 TO THE SECOND PETITIONER EXT.P5- A TRUE COPY OF THE PERMIT DATED 26.12.06 ISSUED BY THE GEOLOGIST, KOLLAM, TO THE SECOND PETITIONER EXT.P6- A TRUE COPY OF THE PERMIT DATED 2.2.07 ISSUED BY THE GEOLOGIST, KOLLAM, TO THE SECOND PETITIONER EXT.P7- A TRUE COPY OF THE QUARRYING PERMIT ISSUED BY THE GEOLOGIST, DATED 7.2.07 TO THE FIRST PETITIONER FOR REMOVING SAND EXT.P8- A TRUE COPY OF THE QUARRYING PERMIT ISSUED BY THE GEOLOGIST, DATED 22.12.03 TO THE FIRST PETITIONER FOR REMOVING CLAY EXT.P9- A TRUE COPY OF THE QUARRYING PERMIT DATED 24.8.05 ISSUED BY THE GEOLOGIST TO THE FIRST PETITIONER FOR REMOVING CLAY EXT.P10- A TRUE COPY OF THE PERMIT DATED 2.7.05 ISSUED BY THE GEOLOGIST, KOLLAM TO THE FIRST PETITIONER EXT.P11- A TRUE COPY OF THE PERMIT DATED 24.8.05 ISSUED BY THE GEOLOGIST KOLLAM TO THE FIRST PETITIONER EXT.P12- A TRUE COPY OF THE PERMIT DATED 18.4.05 ISSUED BY THE GEOLOGIST, KOLLAM TO THE FIRST PETITIONER EXT.P13- TRUE COPY OF THE CERTIFICATE ISSUED BY THE PCB DATED 2.6.09 ISSUED BY THE KUNNATHUR GRAMA PANCHAYATH TO THE FIRST PETITIONER EXT.P14- TRUE COPY OF THE RECEIPT DATED 6.6.01 ISSUED BY THE KUNNATHUR GRAMA PANCHAYAT TO THE FIRST PETITIONER EXT.P15- TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 7.2L08 ISSUED BY THE COMMERCIAL TAX OFFICER, KARUNAGAPPALLY TO THE FIRST PETITIONER UNDER THE KERALA VALUE ADDED TAX RULES, 2005 EXT.P16- TRUE COPY OF THE PERMISSION GRANTED BY THE REVENUE DIVISIONAL OFFICER, KOLLAM DATED 29.12.08 WP(C).No. 15766 of 2011 -2- EXT.P17- TRUE COPY OF THE PERMISSION GRANTED BY THE REVENUE DIVISIONAL OFFICER, KOLLAM DATED 17.10.08 EXT.P18- TRUE COPY OF THE ORDER DATED 3.6.11 PASSED BY THE SUB DIVISIONAL MAGISTRATE, KOLLAM (True Copy) P.A.To Judge P.R.RAMACHANDRA MENON, J ....................... W.P.(C).15766/2011 ....................... Dated this the 23rd day of June, 2011 JUDGMENT 1.Petitioners are challenging Ext.P18 order passed by the Sub Divisional Magistrate, Kollam, whereby the Brick manufacturing units run by the petitioners allegedly making use of the clay mined from the surrounding area adjoining the Kallada river, which has been banned by this Court as per the interim order dated 8.3.2007 in W.P.(C).7085/2007, have been ordered to be closed down. 2.The case of the petitioners as stated in paragraph 2 to 5 of the writ petition is that they are running the Brick manufacturing Units on the basis of all requisite licences and permits issued by the concerned authorities for many years, copies of which have been produced before this Court and marked as Exts.P1 to P12, besides the 'Consent to Operate' stated as issued by the Pollution Control Board vide Ext.P13. There is also a contention in paragraph 5 of the writ petition that the first respondent has granted permission to the petitioners to “remove” ordinary earth from the property lying in R.S.Nos.281/1 and 281/8, 9, 10,11,14,15 and 54 of W.P.(C).15766/11 2 Kunnathur Village, as borne by Ext.P16 and P17. It is stated that Ext.P18 order passed by the first respondent is contrary to the factual position and without any jurisdiction, portraying the said order as passed under Section 133 Cr.P.C. 3.Heard the learned Government Pleader as well. 4.It is brought to the notice of this Court that, pursuant to the complaint received by the RDO/first respondent, a personal inspection of the site was conducted on 11.5.2011 in the presence of the complainant (who brought to the notice of the concerned authority, as to the illegal clay mining) and also in the presence of concerned Village Officer and the counter petitioners therein, who happen to be the writ petitioners herein. The observations made by the first respondent in Ext.P18, which led to the order, are very much relevant and hence extracted below :- (i). The brick units are engaged in destructive clay mining from the surrounding flood plain areas of Kallada river which has been banned by Honourable HighCourt of Kerala vide order dated 8.3.2007. (ii). The clay mining operations are carried out W.P.(C).15766/11 3 at distances less than 50 m from the river bank, without any permits/licenses from any of the competent authorities violating the provisions of Protection of River Banks, Regulation of Removal of River Sand Act, 2001 and Kerala Minor Mineral Concession Rules, 1967. (iii). The natural course of the stream flowing towards Kallada river has been altered violating the provisions of Kerala Land Conservancy Act, 1957 and Kerala Panchayath Raj Act, 1994. (iv). The poramboke road in Sy.No.279/6 and the poramboke land in Sy.No.739 has been subject to wide spread encroachment and illegal clay mining questioning the Rules and Regulations ion force and also the Honourable High Court order. (v). The owner has already been noted in the revenue records as an illegal sand miner, even in the latest reports dated 23.4.11 of Village Officer-in-charge, Kunnathur who took part as a bidder in the sand auction conducted on that day. 5.When the matter came up for consideration before this Court, taking note of the fact that Ext.P18 order was passed with reference to the interim order granted by this Court in W.P. (C).7085/2007, the “Judges papers” in respect of the said writ W.P.(C).15766/11 4 petition were called for. It is seen that there is a clear observation in the order dated 29.3.2007 passed by the Court in I.A.4840/07 in W.P.(C).7085/2007 that the permits granted in respect of the persons concerned therein stood expired and no valid permissions were available. It has also been observed that no one can do any mining of clay or sand in Kunnathur Panchayat area and that if any application for mining permit is received by the Geologist, the same shall be processed having regard to the environmental impact of the proposed mining which shall be done in consultation with the Pollution Control Board. The petitioners herein happen to be the respondents '8' and '13' in the above proceedings. It is seen from Exts.P1 to P12 that the validity of all such permits/licences stated as possessed by the petitioners expired years ago, ie, in 2004, 2005, 2006 and 2007. No material has been produced before this Court to show that the petitioners have obtained requisite licence to pursue the clay mining activity. So also, this Court finds that there is absolutely no basis for the reliance sought to be placed on Exts.P16 and P17; whereby permission is stated as given (as pleaded in paragraph 5 of the W.P.(C).) “to remove” the ordinary earth from the property, in view of the vital W.P.(C).15766/11 5 discrepancies/contradictions discernible on the face of records. Ext.P16 pertains to the permission stated as given to “fill up” the pits in the property involved in R.S.Nos.281/1 and 281/8, 9, 10,11,14,15 and 54 of Kunnathur Village; whereas, the alleged activity stated as being pursued by the petitioners in respect of the properties recorded in Ext.P18 is obviously different. In other words, the activity stated as being pursued by the petitioners is diametrically opposite to each other, Ext.P16 being in respect of filling up of the pits, whereas the activity being confronted with as per Ext.P18 is regarding the illegal clay mining. 6.The consent stated as given vide Ext.P17 is in respect of the request of the 'first petitioner' for removing the earth from the property having an extent of 5 cents in R.S.No.288/7 which, of course, was granted subject to the specific conditions as stipulated therein. This however, is in no way related to the properties mentioned in Ext.P18, which is situated in different survey numbers. This Court finds that the petitioners have not approached this Court with clean hands, but for raising inconsistent and rather contradictory pleadings, seeking to interdict Ext.P18 order; that too, by producing documents W.P.(C).15766/11 6 which are not liable to be relied on. This Court finds that Ext.P18 order passed by the first respondent, giving effect to the order dated 29.3.2007 passed by this Court in I.A.4840/07 in W.P.(C).7085/2007 (wherein the petitioners herein were also parties being the respondents 8 and 13 respectively, and were also heard before passing the said order) is not assailable under any circumstances. No interference is warranted and the writ petition is dismissed with a total cost of Rs.10,000/- payable to the Kerala High Court Legal Services Committee; which shall be effected within four weeks; failing which, the Registry will be at liberty to issue necessary certificate in favour of the beneficiary, for realisation of the due amount. P.R.RAMACHANDRA MENON, Judge mrcs