IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 5759 of 2009(L) -------------------------------- PETITIONER(S): ------------------ RAJENDRAN AGED 54, S/O NARAYANAN, R/AT N.R.BHAVANAM, KOTHAPURAM, WEST KALLADA VILLAE, KUNNATHOOR TALUK, KOLLAM. BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SMT.M.S.KIRAN SMT.T.S.MAYA (THIYADIL) RESPONDENT(S): -------------------- 1. KERALA STATE REPRESENTED BY PRINCIPAL SECRETARY, INDUSTRIAL DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR, MINING AND GEOLOGY DIRECTORATE, THIRUVANANTHAPURAM. 3. GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, KOLLAM DT. 4. VILLAGE OFFICER, WEST KALLADA, KOLLAM DT. GOVERNMENT PLEADER SRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009,THE COURT ON 07/04/2009 DELIVERED THE FOLLOWING: WPC NO.5759/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: THE LETTER ISSUED BY THE CHIEF EXECUTIVE B.F.F.D.A DT 1.2.2005. EXT.P2: THE REPORT SUBMITTED BY 4TH RESPONDENT DTD 20.1.2007. EXT.P3: THE ORDER OF RDO KOLLAM DT 12.3.2007. EXT.P4: THE ORDER OF THE HON'BLE HIGH COURT IN WPC O.14740/07. EXT.P5: THE ORDER ISSUED BY THE 3RD RESPONDENT DT 31.12.2007. EXT.P6: THE SHOW CAUSE NOTICE ISSUED BY THE 3RD RESPONDENT DT 3.1.2008. EXT.P7: THE REPORT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE RESPONDENT DT 18.2.2008. EXT.P8: THE DIRECTION ISSUED BY 1ST RESPONDENT TO THE 2ND RESPONDENT DTD 11.4.2008. EXT.P9: THE DIRECTION ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DTD 3.5.2008. EXT.P10: PERMIT ISSUED BY THE 3RD RESPONDENT DT 20.5.2008. EXT.P11: PETITION FILED BY THE PETITIONER BEFORE THE ADM DTD 31.1.2009. EXT.P12: PERMIT ISSUED BY THE 3RD RESPONDNET DT.9.2.2009. EXT.P13: RECEIPTS OF ROYALTY AMOUNT ISSUED TO THE PETITIONER DTD 9.2.2009. EXT.P14: NOTICE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DTD 13.2.2009. EXT.P15: INJUNCTION ORDER ISSUED BY THE 4TH RESPONDENT TO THE PETITIOENR DTD 13.2.2009. EXT.P16: PHOTOGRAPHS OF THE DISPUTED PROPERTY. EXT.P17: REVENUE RECOVERY NOTICES RECEIVED BY THE PETITIONER FROM DIFFERENT BANKS. WPC NO.5759/09 -2- EXT.P18: PASS ISSUED BY THE 3RD RESPONDENT TO ONE BASHEER DTD 6.2.2009. EXT.P19: THE PERMISSION ISSUED BY THE MINOR IRRIGATION DEPARTMENT DTD 18.12.2006 AND 16.1.2009. EXT.P20: THE COPY OF PASS NO.40 ISSUED BY THE 3RD RESPONDENT DISBURSED BY THE PETITIONER ON 12.3.2009. EXT.P21p: THE COPY OF PASS NO.44 ISSUED BY THE 3RD RESPONDENT DISBURSED BY THE PETITIONER ON 13.3.2009. EXTS.OF R3 EXT.R3(a): TRUE COPY OF THE G.O(RT) NO.1019/08/ID DTD 5.9.2008. EXT.R3(b): TRUE COPY OF THE REPORT OF THE FISHERIES DEPUTY DIRECTOR, KOLLAM BEARING NO.H.724/09 DTD 13.2.2009. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ================ W.P.(C) NO. 5759 OF 2009 (L) ===================== Dated this the 7th day of April, 2009 J U D G M E N T The prayers sought in this writ petition are mainly to quash Exts.P14 and P15 orders of respondents 3 and 4 and to allow the petitioner to remove clay on the basis of Ext.P12 permit issued by the 3rd respondent. 2. Briefly stated, the facts of the case are that, according to the petitioner, he purchased 67.46 ares of property comprised in Sy.No.430/1-2 and 430/1-3 of West Kallada Village of Kunnathoor Taluk in Kollam District for the purpose of prawn farming. It is stated that the first attempt was a loss and he therefore wanted to start fish farming also. For this purpose, he had to construct a pond removing the clay as recommended by the Chief Executive of the Brackish Water Fish Farmer's Development Agency, Kollam. 3. It is stated that after completing all formalities, with great difficulty, on 20/5/2008, the 3rd respondent issued Ext.P10 permit allowing the petitioner to remove 500 MT of clay within 10 days. It is stated that 100 lorry passes were issued, out of which, WPC 5759/09 :2 : nearly 65 were not used and were returned to the 3rd respondent. Thus, the contention of the petitioner is that he could not remove the entire quantity permitted to be removed. It is stated that thereafter he filed another application for a permit and based on Ext.P11 directions issued by the District Collector, the 3rd respondent issued Ext.P12 pass dated 9/2/2009 permitting the petitioner to remove 1000 MT of clay within 15 days. According to the petitioner soon after he started the work, on 13/2/2009, the 3rd and 4th respondents came to the spot and prevented him from continuing the work. It is stated that by the time out of 200 lorry passes which were issued to the petitioner, he could use only 47 of them and the balance were forcefully taken from him. Thereafter, the 3rd respondent issued Ext.P14 stop memo and the 4th respondent issued Ext.P15 restraint order preventing removal of the balance quantity. It is in these circumstances, alleging that he was prevented from removing the quantity of clay permitted to be removed, that this writ petition was filed. 4. Counter affidavit has been filed by the 3rd respondent. It is stated that the area in question is an ecologically sensitive location and is sandwiched between Sasthamcotta Kayal, WPC 5759/09 :3 : Ashtamudi kayal and Kallada River and also forms part of Ramzar wet land eco-system of international importance, declared by the Government of India. It is stated that the petitioner sought permit for mining upto a depth of 1 metre as required by the Fisheries Department and that as per Ext.P10 permit, petitioner was permitted to mine 500 MT of clay and on the strength of Ext.P12, petitioner was permitted to mine 1000 MT of clay. It is stated that he was mining the area using heavy machineries and due to the wide spread protest from the public and the request made by the peoples representative of the area, a joint inspection was conducted by the Revenue, Fisheries and Geology Departments on 13/2/2009 and in the inspection which was conducted in the presence of the petitioner and others concerned, all were unanimous that the petitioner had extracted clay in excess of the quantity that was permitted by Exts.P10 and P12. According to the respondents, taking advantage of Ext.P10, petitioner had mined in an area of 3.64 ares at an average depth of 1.8 metres and the total quantity mined was estimated to be 1310 MT which was 810 MT beyond the quantity specified in Ext.P10. It is also stated that taking advantage of Ext.P12, permitting mining of 1000 MT, the WPC 5759/09 :4 : petitioner mined in an area of 5.53 ares at an average depth of 1.8 metres and extracted 1991 MT which is 991 MT in excess of the permitted quantity. 5. Thus, according to the respondents, as against 1500 MT permitted by Exts.P10 and P11, petitioner had mined 3301 MT, which is 1801 MT in excess of the permitted quantity. It is stated that on the inspection condcuted by the Revenue, Fisheries and the Geology Department, Ext.R3(b) report was submitted by the Deputy Director, Fisheries opining as follows; 1. 3 metre deep mine pit formed due to the extraction of brick clay was not suggested by the Fisheries Department and is against the condition for making of pond for pisciculture use. 2. Minor irrigation canal area was reclaimed for making the road for transportation of brick clay which has obstructed the free flow of water from the paddy field to the Ashtamudi Kayal. 3. The petitioner has not obtained consent from the Aqua Culture Authority. 6. The respondents would therefore say the indiscriminate extraction of brick clay on commercial basis done by the petitioner will deteriorate the environment and ecology of this very sensitive area and it was for the aforesaid reasons that they issued Exts. WPC 5759/09 :5 : P14 and P15. 7. A reply affidavit has been filed by the petitioner and an additional affidavit also has been filed. 8. The only issue that arises for consideration is whether the petitioner has made out a case for interference with Exts.P14 and P15. Admittedly, Exts.P10 and P12 permits issued authorised the petitioner to remove only 500 MT and 1000 MT of clay. 9. According to the respondents, taking advantage of the permits, petitioner removed a total quantity of 3301 MT, which is 1801 MT in excess of the quantity permitted. If as stated by the respondents, the petitioner has removed excess quantity using heavy machineries, that obviously will affect the eco system and respondents cannot be faulted for issuing the restraint orders. While the respondents make these assertions, which is also seen corroborated by Ext.R3(b) report of the Deputy Director of Fisheries, no material whatsoever to sustain the plea that he has not removed the quantity mentioned in the counter affidavit has been produced by the petitioner. 10. On the other hand, the contention raised was that Ext.P12 permit was issued on 9/2/2009 authorising him to remove WPC 5759/09 :6 : 1000 MT within 15 days and that Ext.P14 stop memo was issued on 13/2/2009. It is stated that in the meanwhile, he had only three days to work and that it was impossible to remove such a huge quantity during the three days. Though this argument would appear to be attractive at the first blush, the petitioner has not produced any material to substantiate this contention. 11. I should also remind myself that according to the respondents, the petitioner has removed large quantities of clay using heavy machineries and during the period, there was wide public protest and it was therefore that joint inspection was necessitated, which led to the impugned proceedings. Therefore, in the absence of any material to sustain the plea of the petitioner, I cannot accept the contention that he has not removed the quantity as alleged by the respondents. 12. Yet another contention that was urged by the counsel for the petitioner was that it was impossible to have removed such huge quantity from such small areas mentioned in the counter affidavit. In fact, here again, there was dearth of materials on the side of both parties. However, the learned Government Pleader, thereafter made available a communication dated 31/3/2009 WPC 5759/09 :7 : issued by the Geologist explaining the method by which they have quantified the quantity allegedly removed by the petitioner in excess of what was permitted in Exts.P10 and P12 permits. The quantification done is as follows: 1. Permit No.9/08-09/DOQ/MM/BC/S2/2608/07 dt 20.5.08. Quantity permitted : 500 MT Area mined : 3.64 Ares=364m2 Average depth of mining : 1.8M Specific Gravity : 2 Quantity extracted : 364m2 x 1.8m x 2= 1310 MT So quantity of excess Extraction : 1310-500= 810 MT ===== 2. Permit No.21/08-09/DOQ/MM/BC/S2/2762/08 dt 9.2.09. Quantity permitted : 1000 MT Area mined : 5.53 Ares=553m2 Average depth of mining : 1.8M Specific Gravity : 2 Quantity extracted : 553m2 x 1.8m x 2= 1991 MT So quantity of excess Extraction : 1991-1000= 991 MT ===== So total quantity of illicit extraction from the averred area using : 810 + 991 = 1801 MT the 2 permits ===== 13. In the light of the above materials and in the absence of any material produced by the petitioner to prove the materials WPC 5759/09 :8 : produced by the respondents to be incorrect, I am not in a position to accept the case of the petitioner. As a necessary consequence, the impugned orders are liable to be upheld and I do so. Writ petition fails and is therefore dismissed. ANTONY DOMINIC, JUDGE Rp