IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD OCTOBER 2007 / 1ST KARTHIKA 1929 WP(C).No. 24627 of 2007(F) -------------------------- PETITIONER: ------------ THILAKAN, AGED 44 YEARS, S/O. KANDA, KOTTIKKAL HOUSE, MULANGU, THITTIPPAL, THRISSUR. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENTS: ------------- 1. THE CIRCLE INSPECTOR OF POLICE, CHERPU POLICE STATION,THRISSUR DT. 2. THE SUB INSPECTOR OF POLICE, CHERPU POLICE STATION,THRISSUR DT. 3. MADHUSOODANAN, S/O. PAPPAIKUTTY, CHERUSSERI WARRIAM, THAIKKATTUSSERI.P.O,THRISSUR . 4. RAMESAN, KUNNATHCHERALIYIL HOUSE, THAIKKATTUSSERY.P.O., THRISSUR. ADDL. RESPONDENT: 5. VALLACHIRA GRAMA PANCHAYAT, VALLACHIRA, THRISSUR, REPRESENTED BY SECRETARY. (ADDL.R5 IS IMPLEADED AS PER ORDER DATED 6.9.07 IN IA NO.11887/07} BY ADV. SRI.P.SANTHOSH (PODUVAL) - R3 SMT.R.RAJITHA GOVERNMENT PLEADER SRI.P.A.SALIM – R1 & R2 SRI.M.B.PRAJITH - R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2007, THE COURT ON THE 23.10.2007 DELIVERED THE FOLLOWING: APPENDIX (WPC NO.24627/2007) PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF AGREEMENT DATED 2.3.2007. EXT.P2 - TRUE COPY OF LETTER OF THE GEOLOGIST DATED 19.04.05. EXT.P3 - TRUE COPY OF REPRESENTATION FILED BY THE PETITIONER DATED 26.07.07. EXT.P4 - TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT DATED 23.12.1977. EXT.P5 - TRUE COPY OF THE ORDER IN W.P.(C) NO.34451/06 DATED 12.1.07. 3RD RESPONDENT'S EXTS. EXT.R3(a) SERIES – PHOTOGRAPHS SHOWING THE LIE OF CERTAIN AREAS WHICH HAVE BEEN SUBJECTED TO SUCH EXCAVATIONS. EXT.R3(b) - TRUE COPY OF DECISION DATED 4.12.2004 TAKEN BY THE VALLACHIRA GRAMA PANCHAYAT. EXT.R3(c) - TRUE COPY OF DECISION OF VALLACHIRA GRAMA PANCHAYAT DATED 5.12.2005. EXT.R3(d) – TRUE COPY OF MASS PETITION PREFERRED BEFORE THE REVENUE DIVISIONAL OFFICER, THRISSUR BY SEVERAL RESIDENTS OF WARD NO.1 OF VALLACHIRA PANCHAYAT INCLUDING THE 3RD RESPONDENT. 2ND RESPONDENT'S EXTS. ANNEXURE R2(a) – THE PANCHAYAT DECISION DATED 5.12.2005. /TRUE COPY/ K.BALAKRISHNAN NAIR & T.R.RAMACHANDRAN NAIR, JJ. ----------------------------------------- W.P.(C) NO. 24627 OF 2007-F ----------------------------------------- Dated 23rd October, 2007. JUDGMENT Balakrishnan Nair, J. Though, this is one of the run-of-the-mill police protection cases being filed every day before this Court, it throws up certain questions relating to environmental protection. The main point that arises for decision is whether the police should stand guard against the protesters when the petitioner removes ordinary earth from a plot of land in a remote village, on the strength of an agreement entered into by him with the owner of the property. 2. The brief facts of the case are the following: The petitioner makes a living by engaging in the business of supplying ordinary earth for land filling in connection with various developmental activities. M/s.Goodway Business Corporation Limited own a plot of land having an extent of 91 cents in Re-survey No.62/2 of Vallachira Village in Vallachira Grama Panchayat, Thrissur district. The said Corporation by Ext.P1 agreement, Wpc 24627/07 2 granted the right to cut and remove the trees standing in the said plot, to dismantle and take away the old building in the said property and also to remove the ordinary earth from the surface till the level of the said property reaches the road level, subject to payment of the amounts mentioned therein. On the strength of the agreement, the petitioner has already cut and removed the trees and dismantled the old building. When he started removing the upper soil, engaging workmen and using equipments like J.C.B., the people of the locality led by respondents 3 and 4 obstructed the same. The petitioner submits, ordinary earth does not come under the definition of minor mineral as per the notification issued under the Mines and Minerals (Regulation and Development) Act, 1957. In support of this submission, he relies on the communication issued by the Geologist of Ernakulam district to one Mr.K.K.Khaleel, a copy of which is produced as Ext.P2. Against the obstruction of the local people, the petitioner submits, he filed Ext.P3 representation dated 26.7.2007 before respondents 1 and 2, seeking police protection for removal of the ordinary earth from the aforementioned plot of land. When the police did not extend any helping hand, this writ petition is filed, seeking the following relief: “Issue a writ in the nature of mandamus commanding the respondents 1 and 2 to afford adequate and effective police protection to the petitioner for removing ordinary earth from Wpc 24627/07 3 Ext.P1 property in the event of any obstruction from respondents 3 and 4 and their men.” According to the petitioner, he has got every right to remove ordinary earth from the property mentioned in Ext.P1 agreement. In view of Ext.P2, the consent of the Geologist is not necessary for removal of ordinary earth. The inaction of the police to extend protection to him and his workmen, even after the receipt of Ext.P3 representation is illegal and arbitrary, it is submitted. 3. The 2nd respondent police officer has filed a statement, stating that the removal of earth is obstructed by the general public. The respondents 3 and 4, who are the owners of the nearby properties, are also among them. The Panchayat has taken a decision at its meeting held on 5.12.2005, to prevent illegal removal of earth. The resolution passed by it has been forwarded to the 2nd respondent also. The copy of that resolution received from the Panchayat is produced as Annexure-R2(a). The translation of Annexure-R2(a) reads as follows: “Vallachira Grama Panchayat Decision No.271/2005 of the ordinary meeting held on 5.12.2005: Several complaints have been received that as a result of unauthorised removal of earth, functioning of granite quarries, removal of soil from agricultural land and mining of sand in Wpc 24627/07 4 Vallachira Grama Panchayat area, the utility of agricultural land, availability of drinking water and the safety of the residential buildings have been adversely affected. The meeting of the Panchayat discussed in detail the above situation and to ensure the safety of the public, existence of agricultural land and availability of water, decided to prohibit unauthorised removal of earth, blasting of rocks and removal of sand from agricultural land. For the above activities, permission should be obtained in accordance with law from the Revenue Divisional Officer, the District Officer of Mining and Geology and Vallachira Grama Panchayat and resolved to request the Thrissur Revenue Divisional Officer, the Thrissur District Collector and the C.I of Police, Cherpu, to take necessary steps to prevent unauthorised removal of earth, blasting of rocks and mining of sand from agricultural land.” 4. The 3rd respondent, who is one of the members of the local public, has filed a counter affidavit, denying all the allegations against him and the public that they are threatening and causing physical obstruction to the petitioner and his workers. He points out that on the strength of agreements similar to Ext.P1, large-scale excavation of land is taking place in Vallachira Panchayat, which even goes down up to a depth of 10 feet below the ground level. The 3rd respondent has produced Ext.R3(a) series photographs, showing the degradation of land as a result of removal of earth. It is further submitted that since the upper crust of the soil is removed, rain water retention is considerably reduced and there is drinking water scarcity in the area. The ground water is depleted. The wells and ponds have dried up. The local residents have voiced their concern and they Wpc 24627/07 5 seek banning the removal of earth. Based on the protest, the Panchayat on 4.12.2004 passed a resolution to prohibit removal of earth from its area. The copy of that resolution is Ext.R3(b). Again, based on the complaints of the public, the Panchayat has taken a decision on 5.12.2005, as evident from Ext.R3(c) resolution. Ext.R3(c) and Annexure-R2(a) are one and the same. The 3rd respondent also submitted that a mass petition has been preferred by the residents of Ward No.I of Vallachira Grama Panchayat, including him before the Revenue Divisional Officer, Thrissur, complaining about the indiscriminate removal of earth. Ext.R3(d) is the mass petition. So, he prays for dismissal of the writ petition. 6. The 5th respondent Grama Panchayat has filed a counter affidavit, in which it is submitted that there are wide-spread complaints regarding removal of ordinary earth and sand illegally. So, the Panchayat has prohibited such activities. The excavation is sought to be made without the permission of the Panchayat. As a result of the unauthorised excavation of sand, there is acute scarcity of drinking water in the area, it is submitted. 7. The petitioner has filed a reply affidavit, in answer to the averments in the counter affidavit filed by the 3rd respondent. According to the petitioner, Ext.R3(c) resolution is unsustainable in law. For removal of ordinary earth, no licence from the Panchayat is necessary. He has also Wpc 24627/07 6 produced Ext.P4 notification issued by the Government, which would show that ordinary earth is not a minor mineral. He also relies on Ext.P5 judgment of a single Judge of this Court, which permits excavation of sand from an agricultural land, subject to certain conditions stipulated therein. 8. We heard the learned counsel on both sides. Mr.V.M.Krishnakumar, learned counsel for the petitioner contended that the petitioner has got every right to remove the ordinary earth. For removing the same, no permission is required from the Panchayat or from the Geologist. So, when there is any obstruction from the part of the public, the police are bound to extend protection to the petitioner. In support of his submission, the learned counsel relied on the decision of the learned single Judge of this Court in Sivadas v. Geologist, Mining and Geology Department [2003(2) KLT 312]. 9. The learned counsel for the 3rd respondent Mr. Santhosh P.Poduval submitted that the people of the locality have the right to have clean environment in their village. Their right in this regard is protected by their right to life, guaranteed under Article 21 of the Constitution of India. He pointed out that the indiscriminate mining of ordinary earth is causing environmental degradation in the area. Further, similar activities of Wpc 24627/07 7 removal of ordinary sand etc., have affected the availability of drinking water also in the area. He also relied on the decision of this Court in Soman v. Geologist [2004(3) KLT 577]. He submitted that the said decision has been upheld by the Division Bench of this Court in Biju Chacko v. Deputy Director, Mining and Geology [2005(2) KLT SN 16, Case No.18]. Mr.M.B.Prajith, learned counsel appearing for the 5th respondent Panchayat and Mr.P.A.Salim, learned Government Pleader also supported the stand of the 3rd respondent and opposed the prayer of the petitioner for police protection. 10. From the materials produced in this writ petition, including Ext.R3(a) series photographs and the resolutions of the Panchayat, it is clear that large-scale mining of ordinary earth etc., is taking place in the Panchayat area and the people have started protesting against the same in public. So, the Panchayat, which represents the people of the locality, has woken up and passed Exts.R3(b) and R3(c) resolutions. Therefore, it can be safely presumed that the large-scale removal of earth has already taken its toll, which is manifested in the form of drinking water scarcity. 11. The point that arises for decision is whether this Constitutional Court should direct the police to help the petitioner to assert his private Wpc 24627/07 8 right, ignoring the protest of the public and the Grama Panchayat. The petitioner may be right when he contends that there is no law prohibiting removal of ordinary earth. So, he does not require any clearance from the Panchayat or from the Geologist for removal of the same, provided the land in question was not one used for cultivating food crops and therefore, not covered by the provisions of the Kerala Land Utilisation Order, 1967. The definition of food crops includes paddy, vegetables, tapioca, pepper, banana, plantain etc. Let us assume that the petitioner's land is not covered by the provisions of the K.L.U. Order, though there is no pleading in the writ petition on this aspect. If the petitioner is conceded freedom to remove the upper crust of the soil in the property covered by Ext.P1, the same freedom must be conceded to every land owner in the Panchayat. If every one exercises that right, the result will be that the entire land in the Panchayat not covered by the K.L.U. Order, can be excavated and converted into huge pits with impunity. We feel that this Court should not turn a blind eye to such a probable eventuality. The people of the Panchayat have the right to have a decent environment, which is part of their fundamental right under Article 21 of the Constitution of India. No one can be conceded any unfettered freedom to excavate and degrade the land owned by him. It will have repercussions on the neighbouring land and its owners and the Wpc 24627/07 9 eco-system of the area in general. No man can claim absolute right to indulge in activities resulting in environmental degradation in the land owned by him. In this context, we feel that it will be appropriate to refer to some of the decisions of the Hon'ble Supreme Court concerning environmental protection. 12. The Apex Court in State of Tamil Nadu v. Hind Stone [(1981)2 SCC 205] observed as follows: “6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation.” Again the Apex Court in Sachidanand Pandey v. State of W.B. [(1987)2 SCC 295) held as follows: “3. Today society's interaction with nature is so extensive that the environmental question has assumed proportions affecting all humanity. Industrialisation, urbanisation, explosion of population, over-exploitation of resources, depletion of traditional sources of energy and raw materials and the search for new sources of energy and raw materials, the disruption of natural ecological balances, the destruction of a multitude of animal and plant species for economic reasons and sometimes for no good reason at all are factors which have contributed to environmental deterioration. While the scientific and technological progress of man has invested him with immense power over nature, it has also resulted in the unthinking use of the power, encroaching Wpc 24627/07 10 endlessly on nature. If man is able to transform deserts into oases, he is also leaving behind deserts in the place of oases. In the last century, a great German materialist philosopher warned mankind: Let us not, however, flatter ourselves over much on account of our human victories over nature. For each such victory nature takes its revenge on us. Each victory, it is true, in the first place brings about the results we expected, but in the second and third places, it has quite different, unforeseen effects which only too often cancel the first.” (Emphasis supplied) The Apex Court in M.C.Mehta v. Kamal Nath [(1997)1 SCC 388] has quoted with approval the words of David B.Hunter on finiteness of natural resources in his article published in Harward Environmental Law Review Vol.12(1988) Page 311, which read as follows: “Another major ecological tenet is that the world is finite. The earth can support only so many people and only so much human activity before limits are reached. This lesson was driven home by the oil crisis of the 1970s as well as by the pesticide scare of the 1960s. The current deterioration of the ozone layer is another vivid example of the complex, unpredictable and potentially catastrophic effects posed by our disregard of the environmental limits to economic growth. The absolute finiteness of the environment, when coupled with human dependency on the environment, leads to the unquestionable result that human activities will at some point to be constrained. Human activity finds in the natural work its external limits. In short, the environment imposes constraints on our freedom; these constraints are not the product of value choices but of the scientific imperative of the environment's limitations. Reliance on improving technology can delay temporarily, but not forever, the inevitable constraints. There is a limit to the Wpc 24627/07 11 capacity of the environment to service.... growth, both in providing raw materials and in assimilating by-product wastes due to consumption. The largesse of technology can only postpone or disguise the inevitable.” 13. The concept of sustainable development is now part of our environmental law, in view of various decisions of the Apex Court. The competing claims of the present generation for development and also the claims of future generations to inherit a healthy environment have to be balanced. While exploiting the resources, the capacity of the environment to repair and replace, has also to be taken note of. If a tree is cut and removed, for another tree to grow to the same size, it may take several years. If a bucket of soil is removed, to generate the same, the earth may take a few hundred years. The same is the case of other natural resources also. The length of time only varies. The revenge of mother earth has started displaying in the form of earth quakes, tsunamies, unusually wild cyclonic storms etc. Therefore, it is high time that we think of putting a stop to the defiling and degrading of mother earth. 14. One of the leading decisions of the Apex Court dealing with sustainable development and related principles is in Vellore Citizens' Welfare Forum v. Union of India [(1996)5 SCC 647]. The relevant portion of the said decision reads as follows: Wpc 24627/07 12 “10. The traditional concept that development and ecology are opposed to each other is no longer acceptable. 'Sustainable Development' is the answer. In the international sphere, 'Sustainable Development' as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987, the concept was given a definite shape by the World Commission on Environment and Development in its report called 'Our Common Future'. The Commission was chaired by the then Prime Minister of Norway, Ms. G.H.Brundtland and as such the report is popularly known as 'Brundtland Report'. In 1991 the Word Conservation Union, United Nations Environment Programme and Worldwide Fund for Nature, jointly came out with a document called 'Caring for the Earth', which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio, which saw the largest gathering of world leaders ever in the history—deliberating and chalking out a blueprint for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio, 'Sustainable Development' has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. 'Sustainable Development' as defined by the Brundtland Report means 'Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.' We have no hesitation in holding that 'Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists. Wpc 24627/07 13 11. Some of the salient principles of 'Sustainable Development' as culled out from Brandtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Co-operate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that 'The Precautionary Principle' and 'The Polluter Pays Principle' are essential features of 'Sustainable Development'. The 'Precautionary Principle' in the context of the municipal law—means: (i) Environmental measures – by the State Government and the statutory authorities – must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The 'onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign. 12. 'The Polluter Pays Principle' has been held to be a sound principle by this Court in Indian Council for Enviro- Legal Action v. Union of India [(1996)3 SCC 212]. The Court observed (SCC p.246, para 65). '........ we are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country.' The Court ruled that: (SCC p.246, para 65): ',,,,,,,, once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on.' Wpc 24627/07 14 Consequently the polluting industries are 'absolutely' liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measure to remove sludge and other pollutants lying in the affected area. The 'Polluter Pays Principle' as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution, but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of 'Sustainable Development' and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. 13. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Art.21 of the Constitution of India guarantees protection of life and personal liberty. Arts.47, 48A and 51A(g) of the Constitution are as under: '47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health:-- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48A. Protection and improvement of environment and safeguarding of forests and wildlife:--The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. 51A(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.' Apart from the constitutional mandate to protect and improve Wpc 24627/07 15 the environment there are plenty of post-independence legislations on the subject but more relevant enactments for our purpose are: (1) The Water (Prevention and Control of Pollution) Act, 1974 (The Water Act), The Air (Prevention and Control of Pollution) Act, 1981 (The Air Act) and The Environment (Protection) Act,1986 (The Environment Act). The Water Act provides for the constitution of the Central Pollution Control Board by the Central Government and the constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. It also provides for restrictions on outlets and discharge