IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).No. 2282 of 2010(I) ------------------------------------- PETITIONER(S): ------------------------- PRASANNAN THOMAS, AGED 35 YEARS, S/O.THOMAS, PUTHIYEDATHU HOUSE, KOCHARA P.O., MANTHIPPARA, IDUKKI DISTRICT. BY ADV. MR.JOBI JOSE KONDODY RESPONDENT(S): ---------------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, KUIYILIMALA, PAINAVU, IDUKKI DISTRICT. 2. THE GEOLOGIST, MINING & GEOLOGY DISTRICT OFFICE, MINI CIVIL STATION, THODUPUZHA P.O., IDUKKI DISTRICT. R1 & R2 BY GOVERNMENT PLEADER MR. K.RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2282/2010 I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER DTD.3.8/09. P2: COPY OF THE APPLICATION FILED BEFORE THE 1ST RESPONDENT BY THE PETITIONER DTD. 03/08/2009. P3: COPY OF THE ORDER DTD. 04/08/2009 ISSUED BY THE TAHSILDAR, UDUMPUNCHOLA TO THE VILLAGE OFFICER, KARUNAPURAM. P4: COPY OF THE SKETCH AND PLAN PREPARED BY THE VILLAGE OFFICER, KARUNAPURAM. P5: COPY OFTHE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KARUNAPURAM DTD. 05/08/2009. P6: COPY OF THE LETTER DTD. 02/10/2009 ISSUED BY THE 1ST RESPONDENT TO THE TAHSILDAR, UDUMPUNCHOLA. P7: COPY OF THE COMMUNICATION DTD. 07/10/2009 ISSUED BY THE TAHSILDAR, UDUMPUNCHOLA TO THE 2ND RESPONDENT. P8: COPY OF THE COMMUNICATION DTD.21/10/2009 ISSUED BY THE 2ND RESPONDENT TO THE TAHSILDAR, UDUMPUNCHOLA. P9: COPY OF THE LETTER DTD. 01/12/2009 ISSUED BY THE 1ST RESPONDENT TO THE DEPUTY COLLECTOR (TRAINEE), TALUK OFFICE, UDUMPUNCHOLA. P10: COPY OFTHE NOTIFICATION DTD. 12/03/2009 IN SRO NO.256/2009 ISSUED BY THE INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA. P11: COPY OF THE ORDER DTD. 08/01/2010 ISSUED BY THE 1ST RESPONDENT THROUGH THE PETITIONER DTD. 08/01/2010. P12: COPY OF THE APPLICATION FILED BY THE PETITIONER DTD. 14/01/2010 BEFORE THE 1ST RESPONDENT UNDER THE RIGHT TO INFORMATION ACT. P13: COPY OF THE INSPECTION REPORT DTD. 07/01/2010 PREPARED BY THE DEPUTY COLLECTOR (TRAINEE) COLLECTORATE, IDUKKI. P14: COPY OF THE LETTER DTD. 06/01/2010 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE LITHOLOGICAL SUCCESSION OF SUCH AREA. R2(B): COPY OFTHE SUCCESSION OF THE DEPOSITORY SEQUENCE. /TRUE COPY/ Kss P.S.TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 2282 of 2010-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of March, 2010. JUDGMENT The petitioner is an applicant for obtaining a quarrying permit for mining sand from the property comprised in Sy. No15/8 (T.P.No.16025) of Karunapuram village in Udumpunchola Taluk of Idukki District. He is aggrieved by the denial of No Objection Certificate by the District Collector, as per Ext.P11. 2. The Kerala Minor Mineral Concession Rules as amended, provides for a No Objection Certificate from the District Collector as mandatory for issuance of a quarrying permit along with a bank guarantee for financial assurance for reclaiming the mine pit. When the petitioner submitted the application, he was directed to produce a No Objection Certificate from the second respondent Geologist as per Ext.P1. Ext.P2 is the application for grant of NOC. Due enquiries were conducted by the Village Officer and the Tahsildar after local visit also, which is evidenced by Exts.P3 and P4. The petitioner had complied with other formalities by way of possession certificate and sketch also. Exts.P6 to P8 are copies of the communications between the Tahsildar, Udumpunchola and the wpc 2282/2010 2 respondents with regard to the various details as to the availability of sand and other material aspects. The District Collector, in spite of the reports submitted by the various Revenue officials, directed the Deputy Collector (Trainee) as per Ext.P9, to furnish a report after visiting the spot. According to the petitioner, this itself was illegal in the light of the report of the Geologist as well as various other reports of the Revenue authorities. 3. Ext.P11 is attacked by the petitioner in this writ petition, on various grounds. Mainly what is pointed out in Ext.P11 is that if mining is permitted, that will affect the environment as well as availability of drinking water. 4. The second respondent has filed a counter affidavit, wherein in para 8 it is pointed out that the site inspection conducted by the said respondent revealed that there will not be any deterioration to the water availability of the area due to the extraction of ordinary sand from the said property since the applied land is a dry land lying well above the water table. 5. After obtaining a copy of the report of the Deputy Collector (Trainee), under the Right to Information Act, the petitioner has produced it as Ext.P13. Learned counsel for the petitioner submitted that the Deputy Collector (Trainee) was not at all an expert in the matter of furnishing any wpc 2282/2010 3 report with regard to the ecological or environmental problems and as to the availability of drinking water, etc. It is submitted that the same can only be done by experts in the field and herein, the Geologist who is an expert, submitted a detailed report to the District Collector, which was not considered. With regard to the findings contained in Ext.P13 report also, learned counsel for the petitioner submitted that there is no basis in the observation that there is every probability that well and tube well on eastern side of the property would dry down if the mining is permitted. It is submitted that the report of the Geologist is totally contrary to the same and the water level will not be affected to any extent . It is further pointed out that the minable quantity of sand is only available up to a depth of two meters and the petitioner has no intention to mine the land beyond two meters from the ground level and such a condition can be imposed by the competent authorities in the matter. 6. What is envisaged by the rules is a No Objection Certificate from the Revenue authorities and the Explanatory Note in Ext.P10 shows that such a certificate is introduced to avoid a confrontation between the Revenue and Mining and Geology Department in the light of the Minor Mineral Concession Rules, 1967 and the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. What is sought for herein, is wpc 2282/2010 4 a mining permit for mining ordinary sand from the property in question. The counter affidavit filed by the second respondent gives the salient features with regard to the property and other aspects of the ordinary sand available in the area. It is revealed from the counter affidavit that the second respondent inspected the area on the basis of the request made by the Tahsildar, Udumpunchola as per letter dated 7.10.2009 in the light of the application submitted by the petitioner. He found that the applied area is a dry land situated about one meter above the level of the private road, running north-south as well as adjoining the boundary of the private road. The area falls as a part of the Highland plateau and is characterised by the presence of a sedimentary sequence composed of a mixture of sand-silt-clay in a variety of proportions. The adjoining properties of the applied land has witnessed removal of ordinary sand under the quarrying permissions issued by the second respondent. Reference is made to a detailed reply dated 7.1.2010 which details the geology of the area and the inference also. The important inference is that the regional evaluation revealed that the applied area is not in the category of wetland and winning of this mineral would not cause any damage to the environment. In para 5 the second respondent has detailed the geological factors on the formation of ordinary sand in Idukki District, which is geologically a stable terrain. It is mentioned that the wpc 2282/2010 5 ordinary sand deposit of Karunapuram, Chakkupallom, Chellarkovil, Anakkara, Puttadi, Cumbummettu, Nettithozhu regions are formed under the category of “palaeo-deposit” which is formed as a result of extensive rainfall received by the highland plateau during the Holocene Epoch (the time sequence representing last 10000 years). There is a further averment that many of the ordinary sand formations (including the petitioner's applied property) in the Highland plateau are lying well above the regional water table. Finally, in para 9 it is stated further that “the regional succession of the area revealed that the maximum thickness of the sand-silt-clay combination sequence is about 2m below the overburden under which the hard crystalline rock body exists. The removal of ordinary sand from such dry lands will not affect adversely the ecological balance of the area.” 7. It is therefore clear that the report of the expert like the second respondent has not been considered by the District Collector while refusing the NOC, as per Ext.P11. It was merely based on a report made by the Deputy Collector (Trainee) as per Ext.P13, by visiting the site and prepared without the assistance of any experts in the field. 8. In the light of the averments in the counter affidavit of the second respondent and the submission made by the petitioner in the affidavit, that permission can be granted limiting the mining area to 2 meters as the wpc 2282/2010 6 quantity of sand is only available upto a dept of 2 meters, the matter will be reconsidered by the District Collector. For another reason also, Ext.P11 cannot be supported, as the observation that the mining will affect the ecology and availability of drinking water, is not supported by any expert opinion. Learned counsel for the petitioner then submitted that with regard to the aspect pointed out in Ext.P13 about the possible impact on the availability of drinking water, the District Collector may be directed to get a report from the Ground Water Department in the matter. The availability of drinking water is a matter which can be verified through the experts of the Ground Water Department and the first respondent will get a proper report with the help of the officials of the said department. 9. Therefore, Ext.P11 is quashed. The matter will be reconsidered by the first respondent in accordance with the above findings and an appropriate decision with regard to the grant of NOC will be taken after considering the report of the Geologist and other reports and after hearing the petitioner, within one month from the date of production of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) wpc 2282/2010 7 kav/