IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WP(C).No. 22702 of 2007(S) ---------------------------------- PETITIONER(S): ---------------------- 1. K.K.SIVARAMAN, KOTTUKKAL HOUSE, VENGINISSERY, P.O.PARALAM, THRISSUR, PRESIDENT, AYKUNNU SANKARAMANGALAM DEVASWOM, VENGINISSERY PO, PARALAM, THRISSUR. 2. A.RAMASWAMY, AUTHORISED REPRESENTATIVE, NARAYANASHRAMA, TAPOVANAM, VENGINISSERY,P.O., PARALAM, THRISSUR. BY ADV. SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE SRI.PRABIN BABU RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT (LOCAL ADMINISTRATION DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THRISSUR. 3. THE REVENUE DIVISIONAL OFFICER, THRISSUR. 4. THE PARALAM GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PARALAM P.O., VENGINISSERI, THRISSUR DISTRICT. 5. THE SUPERINTENDENT OF POLICE, THRISSUR. ADV. SRI.B.SAJEEV KUMAR FOR R4 SRI.M.K.THANKAPPAN FOR R4 GOVERNMENT PLEADER SMT. K. MEERA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 22702/2007 s APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE PROCEEDINGS NO. A2. 1997/95 DT. 20/2/95 OF THE SDM, THRISSUR. EXT.P2. COPY OF THE JUDGMENT IN OP NO. 4628/97 DT. 10/11/99 OF THIS COURT. EXT.P3. COPORDER NO. D1. 14233/00 DT. 29/12/00, BY RDO. EXT.P4. COPY OF THE JUDGMENT DT. 1/09/2005 IN OP 23265/01 OF THIS COURT. EXT.P5. COPY OF THE COUNTER AFFIDAVIT DT. 14/11/2001 IN OP 23265/01 BY THE R4. EXT.P6. COPY OF THE ROUGH PLAN SHOWING THE TEMPLE AND ASHRAM PREMISES. EXT.P7A TO D: COPIES OF THE PHOTOGRAPHS SHOWING THE PANDAVAGIRI IYKKUNNU AREA. EXT.P8. COPY OF THE REPRESENTTION DT. 6/3/2007 BY SWAMY BHOOMANANDA THEERTHA TO THE R2. EXT.P9. COPY OF THE NEWS ITEM PUBLISHED IN THE MATHRUBHUMI DAILY DT. 3/3/07. EXT.P10.. COPY OF THE REPORT OF THE CHIEF GEOLOGIST, O/O. MINING AND GEOLOGY, THRISSUR DT. 28/5/2007. EXT.P11. COPY OF THE LETTER DT. 28/2/2007 SENT BY THE SECRETARY, GURUKULAM PUBLIC SCHOOL TO THE DIST. COLLECTOR, THRISSUR. RESPONDENTS' EXHIBITS : EXT.R1A. COPY OF THE ORDER U/S 133 CR PC DT.6/1/09 OF THE RDO, THRISSUR. EXT.R1B. COPY OF THE ORDER U/S. 142 CR. PC DT. 6/1/09 OF THE RDO, THRISSUR. / TRUE COPY / PS TO JUDGE. Tga Kurian Joseph, Ag.C.J. & Thottathil B.Radhakrishnan, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.C.22702 of 2007-S = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29th day of January, 2010. JUDGMENT Thottathil B.Radhakrishnan, J. 1.This writ petition is filed in public interest. The petitioners seek the following reliefs: “(i) to declare that the removal of mud and quarrying of laterite stone in and around the Aykunnu Pandavagiri area in Venginissery and Kodannur Villages in Paralam Panchayat in Thrissur District is liable to be stopped forthwith considering the environmental hazard caused by such mining and quarrying and that the respondents are liable to ensure that removal of earth and laterite stones from the area is stopped considering WPC22702/07 -: 2 :- the ecological hazards caused; (ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to take immediate and effective steps to stop all quarrying activity in and around the Aykunnu Pandavagiri Hills in Venginissery and Kodannur Villages in Paralam Panchayat in Thrissur District forthwith.” 2.On 18.12.2009, taking into consideration the report then available as Ext.P10, a detailed interim order was issued. The same is extracted hereunder: “Ext.P10 report which was available even before this writ petition was filed in May, 2007 itself had abundantly disclosed that immediate intervention was required to protect Pandavagiri Hills at Venginissery in Thrissur District. The Geologist had given a detailed report of the dangerous onslaughts on nature depriving large chunks of laterite, resulting in WPC22702/07 -: 3 :- environmental imbalance and affecting the lives of the common people. Inspite of that report which clearly showed that the existence of the hill is absolutely necessary for maintaining its biological and hydrological systems, soil excavation in the entire Aykkunnu area of Thrissur District went on. It was doubted whether anything would have happened in the real sense, though it could be pointed out that the executive had issued different orders. 2. When this matter was taken up on 4th December, 2009, it was submitted by the learned Senior Government Pleader that the District Collector had issued proceedings banning quarrying of laterite and removal of earth from the area in question. This was done sometime in the year 2007. Therefore, we wanted to ascertain as to whether the said ban was enforced, through the appropriate police machinery of the State. If such orders are not and could not be enforced, there is no meaning in passing such orders which would remain merely on papers. This is never the intention or the dictate of the Constitution and the laws. Therefore, the Bench issued WPC22702/07 -: 4 :- orders on 4th December, 2009 noticing that the ultimate issue would be as to whether the prohibition order issued by the District Collector was enforced, in terms of the constitutional mandates, and whether the special squad stated to have been constituted pursuant to the order of the District Collector had done anything worth credence, for maintaining vigil. The District Collector was required to place on record a detailed report in the matter. 3. A report has been placed on record on behalf of the District Collector. That report, submitted on 15.12.2009, states that on 8.1.2009, the Sub Divisional Magistrate, Thrissur had issued Ext.R1(b) as injunction to provide against imminent danger pending enquiry. 4. Now let us see how the aforesaid orders were enforced. The report dated 15.12.2009 filed by the Additional District Magistrate, Thrissur on behalf of the second respondent would show that the executive, including the police machinery, had not at all been able to carry out the enforcement of the prohibitory orders. It is stated in that report that mining is WPC22702/07 -: 5 :- done mostly on holidays and during night. We hope that the entire district administration and the entire police force are not given weekly offs in one go, to leave the Nation unguarded at week ends, on holidays and during nights. We further are, of the firm view that the police are there to work on duty round the clock, especially during the time when more security is required. Night patrolling is not something that is not unheard of. In paragraph 4 of the report, it is stated that when the squad visits the area during day time there will not be any untoward incident and most of the miscreants are active during the late hours of night and most of them even buy the lands for the above purpose. This explanation is wholly the wail of a cat over a mouse which it had never decided to catch. The report further proceeds to state that there are stray cases of litigations also. The Additional Tahsildar has given a detailed report stating that mining is done in an unauthorised manner and even on 5.3.2009, the Additional Tahsildar had recommended for immediate action. What has ultimately WPC22702/07 -: 6 :- happened thereafter? Exts.R1(a) and R1 (b) orders have been issued invoking the police powers of the executive under the Code of Criminal Procedure. Not a single person is seen to have been arrested, nor any case booked for violation of the prohibitory orders. No case is registered even under the Kerala Police Act. No cognizable offence is even reported by the police and no First Information Report is registered. 5. All that paragraph 8 of the report states is that certain vehicles have been seized for unauthorised transportation of sand and those vehicles were released after imposing fine. 6. Apart from the fact that the fine imposed is paltry, we would like to caution that laterite is not sand and removal of sand which is governed by different legislations and different set of rules is no camouflage under which the removal of laterite governed by the law relating to minor minerals could be pushed off. No part of laterite could have been removed other than in accordance with the terms of the law relating to Minor Mineral WPC22702/07 -: 7 :- Concession Rules. The Kerala Minor Mineral Concession Rules would stare at the officers if they were to believe that laterite is sand. 7. In the commercial parlance, three types of sand are dealt with in Kerala. They are river sand, M sand or metal sand and imported sand which is sand coming from outside the State of Kerala. What is casually referred to as sand, being the material loosely available on surface, is not used for any purpose other than to walk on. 8. With the aforesaid, we now turn to the report further, to find only that night patrolling and surprise vehicle inspections are stated to be conducted to check the unauthorised sand transportation. However, the fact remains that inspite of the clear directions issued on 4.12.2009, not a single case of police having registered a crime is stated in the report. What was the purpose of night patrolling and what was the purpose of surprise vehicle inspection? If the purposes in accordance with the law have not been fulfilled, it has also to be necessarily inferred that, WPC22702/07 -: 8 :- unlawful could have been the hidden agenda behind any such inspection or patrolling. This Court is constrained to make this observation in the light of the fact that as of now the learned Government Pleader has placed on record the minutes of a meeting which was held in the chambers of the Revenue Divisional Officer, Thrissur on 17.12.2009. This Bench is happy to note that the earlier order has woken up some of the sleeping executives from a most mishandled situation. 9. The aforesaid minutes, amongst other things, record the clear fact that the officials including the Revenue Divisional Officer, Additional Tahsildar, Geologist, Secretary of the Paralam Grama Panchayat, Junior Superintendent of Taluk Office, Thrissur, Sub Inspector of Police, Cherpu Police Station,etc. candidly admit that unauthorised excavation is still going on. The Secretary of the Peralam Grama Panchayat, even on that date, had stated that they had issued prohibitory orders against illegal excavation of earth from that area. This is nothing but an admission of the Panchayat that excavation activity is WPC22702/07 -: 9 :- being continued even without the permission of the Panchayat. Obviously, it must be that excavation is going on even without the permission of the Geologist. 10. Mere holding of meetings, collecting statistics and ultimately meetings for review and calling for further materials does not solve the concrete problem. As of now, we are satisfied that the ground reality is much worse than what prompted the petitioners to move this Court way back on 30th May, 2007 by instituting this writ petition. 11. Learned senior counsel for the petitioners has also requested the Bench to consider the news item reported in Mathrubhoomi Nagaram, Thrissur Edition, dated 17th December, 2009 which has a very bold heading in page 3 “Aykkunnil Veendum Mannukolla”. The report is in Malayalam. The report has been read and explained to the Bench. The Judge accompanying the Chief Justice has also read the report. The Bench has also seen the photographs. If nature could be battered, it could not be done better than what is disclosed by the photographs. WPC22702/07 -: 10 :- 12. The report of the Additional District Magistrate, the Minutes (Ext.R2(a)) and the newspaper report show the situation where immediate intervention of the Constitutional Court is required in public interest to ensure that needful is done to preserve the ecological and environmental situation and to prevent the onslaughts by unauthorised miscreants who should immediately be brought to face the consequences of law. 13. For the aforesaid reasons, there will be an interim order directing that no mining activity, be it of laterite or any other material, shall be carried out in any part of Aykkunnu area in Thrissur District until further orders. This shall be strictly enforced by the District Collector, Revenue Divisional Officer, Geologist and all other executive officers and subordinate staff of the State Government. The Superintendent of Police, Thrissur District and all police officers under his command are directed to see that this order is scrupulously enforced and anyone seen offending it is brought to book forthwith. It is further ordered that if WPC22702/07 -: 11 :- the District Collector and the District Superintendent of Police feels that the powers under their command are insufficient to handle the situation, immediate report shall be given to the Secretary to the Government of Kerala, Home Department who will ensure that additional police force, even from the reserved cadre, is made available forthwith to ensure that this order is complied with without any fail.” 3.Following that, the second respondent has filed a report through the Deputy Collector. In the light of the contents of that report, the learned senior counsel appearing for the petitioners states that the remedies available to the extent possible have been taken and that all that is required is to issue directions regarding the future management of the situation. 4.The learned counsel for the panchayat submits that panchayat will take all necessary steps to WPC22702/07 -: 12 :- ensure that there is no illegal activity in the areas in question. Under such circumstances, we record the said report dated 19.1.2010. It is ordered that the said report will stand appended to this judgment. It is further ordered that the official respondents will ensure that all needful steps are taken to secure the situation obtained now, as reported. We make it clear that in the event of any lapse on the part of any of the officers, they shall be made personally liable for the loss caused to the Revenue, apart from other consequences. The writ petition is ordered accordingly. Kurian Joseph, Ag. Chief Justice Thottathil B.Radhakrishnan, Sha/2901 Judge.