IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 WP(C).No. 9015 of 2007(W) ------------------------- PETITIONER(S): --------------- MR. GOKUL DAS, AGED 45 YEARS, S/O. SUNDARAM, 'MOHINI', AZHOOR P.O., CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.JOBI JOSE KONDODY RESPONDENT(S): --------------- 1. THE GEOLOGIST, MINING AND GEOLOGY DISTRICT OFFICE, PATTOM PALACE P.O., KESAVADASAPURAM, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, REP. BY THE CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. ADDL. R3 IS IMPLEADED AS PER ORDER DT. 9-6-09 IN W.P.C.NO. 9015/2007. GOVERNMENT PLEADER FOR SMT. SUDHA DEVI FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. 9015/07. ---------------------------------------------------------- EXT.P1 TRUE COPY OF REGISTRATION CARD. EXT.P2 AWARD OF CONTRACT DT. 21-7-2006. EXT.P3 TRUE COPY OF SKETCH AND PLAN. EXT.P4 POSSESSION CERTIFICATE DT. 14-11-2006. EXT.P5 APPLICATION DT. 15-11-2006. EXT.P6 JUDGMENT IN W.P.C.NO. 21812/06 EXT.P7 PROCEEDINGS DT. 29-4-2004. EXT.P8 JUDGMENT IN W.P.C.21262/06. EXT.P9 RE EIPT DT. 22-12-2006. EXT.P10 COPY OF REJECTION ORDER. EXT.P11 ORDER DT. 22-7-2002. EXT.P12 COUNTER AFFIDAVIT DT. 5-2-2007. RESPONDENTS' EXHIBITS: --------------------------------------- EXT.R3(a) COPY OF S.R.O.NO. 256/09 DT. 18-3-09. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 9015 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 24th July, 2009. J U D G M E N T The petitioner claims to be a Government contractor. According to him, for the purpose of executing contracts for the Government, he needs large quantities of sand. He has large extent of property in Avanavancherry Village in Thiruvananthapuram District by the side of Vamanapuram river which has large deposits of sand, which can be used for construction of buildings, which is his avocation. He wanted to obtain a permit under the Kerala Minor Mineral Concession Rules for the purpose of mining sand from his property. He approached the 1st respondent. The 1st respondent refused to issue him an application for applying for licence. Aggrieved by the same, he approached this Court by filing W.P(C) No. 31262/2006, in which this Court directed the 1st respondent to issue an application form to the petitioner on his producing a copy of the judgment. There was also a direction to consider petitioner's application and to pass orders thereon in accordance with law. The petitioner filed an application for permit. By Ext. P10 order, his application was refused to be considered on the ground that there was a ban order issued by the District Collector, by which the District Collector had banned mining of sand in Thiruvananthapuram district. Alleging that Ext. P10 order amounts to violation of the judgment of this Court in W.P(C) No. 31262/2006, the petitioner filed Cont. Case (C) No. 125/2007 in which a counter affidavit was filed, producing the ban order of the District Collector. In view of that order, the contempt case was closed without prejudice to the right of the petitioner to challenge Ext. P10 and the order of the District Collector. The petitioner has produced the order of the District Collector as Ext. P11 in the writ petition. The petitioner is now challenging Exts.P10 and P11 orders seeking the following reliefs: W.P.C. No. 9015/2007 -: 2 :- “I. Call for the records relating to Ext. P10 and Ext. P11 and issue a writ of certiorari and quash the same. II. Issue a writ of mandamus directing the 1st respondent to issue quarrying permit to mine ordinary sand from 1.23 acres of his property comprised in Survey Nos. 73/3, 73/4, 73/4-1, 73/5 and 73/6 of Avanavancherry village if he eligible for the same under the Kerala Minor Mineral Concession Rules , 1967. III. Issue a writ of mandamus directing the 1st respondent not to go by the dictation of the 2nd respondent while he exercises his powers as competent authority under Kerala Minor Mineral Concession Rules, 1967. IV. Declare that the 2nd respondent has no powers to regulate mining of ordinary sand under the MKKC Rules, 1967 as stated by the Government in Ext. P 7.” 2. The contention of the petitioner is that the District Collector is not vested with any powers under the Kerala Minor Mineral Concession Rules to issue a ban order like Ext. P11. The powers of the District Collector to issue such orders are referable only to the Kerala Protection of River Banks and Regulation of Mining of Sand Act. As far as mining of ordinary sand is concerned, the same is regulated by the Kerala Minor Mineral Concession Rules, which do not contain any provisions empowering the District Collector to pass an order like Ext. P11, is the contention of the petitioner. The petitioner also relies on Ext. P7 order of the Principal Secretary to the Government, Industries Department, in which the Principal Secretary informed the District Collector that the power of the District Collector is restricted to cases of removal of river sand under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and that he has neither any power to regulate the removal of sand from private properties, nor to stay operation of permits issued by the Geologist to remove sand from private properties by invoking the provisions of the said Act. The petitioner would also submit that W.P.C. No. 9015/2007 -: 3 :- even assuming that the District Collector has such a power, that cannot be for issuing a blanket order banning sand mining without limitation of time. Therefore, according to the petitioner, the 1st respondent is bound to consider the application of the petitioner in accordance with the Kerala Minor Mineral Concession Rules and pass orders thereon as earlier directed by this Court in Ext. P8 judgment. 3. Originally, the 1st respondent filed a counter affidavit, in which he has submitted that without producing a no objection certificate from the District Collector, the application of the petitioner cannot be considered in view of the prohibitory order passed by the District Collector. When the matter came up for hearing on 9-6-2009, this Court felt that it is necessary to ascertain the views of the Government also in this regard. Accordingly, this Court suo motu impleaded the Chief Secretary to the Government as additional 3rd respondent in the writ petition and the additional 3rd respondent was directed to file a detailed counter affidavit in the matter. Pursuant thereto, a counter affidavit has been filed by the additional 3rd respondent. From the counter affidavit, I find that the Government has taken up the matter very seriously and considered the entire issue in depth. I deem it appropriate to extract the major portions of the counter affidavit, disregarding the virtue of brevity since the same would throw light on very many technical aspects of environmental degradation caused by indiscriminate sand mining. They have stated thus in their counter affidavit: “4. It is submitted that the District Collector is a competent authority to grant mineral concession up to a royalty of Rs. 10,000/- under the KMMC Rules as per notification No. 32010/L2/93/ID dated 22-6-1995 published as SRO 860/95. Rule 8(2)(c) stipulates that every quarrying permit granted under rule 4 shall be subject to restrictions of surface operations in any area prohibited by any authority. The District Collector is a competent authority to restrict the surface operation in any area under his jurisdiction for W.P.C. No. 9015/2007 -: 4 :- several reasons. Being a District Magistrate, he can impose the restrictions under the provisions of Criminal Procedure Code. Under Kerala Land Utilization Order also, the District Collector can deny permission for conversion of land to any other form. 5. In this case, the petitioner's land is a flood plain area which is ideal for agricultural purposes. Hence any conversion of that land necessarily needs a permission from the District Collector under KLU Order. The removal of sand from the area in dispute inevitably leads to deep pits and it is a conversion as envisaged under KLU Order. For that reason also, the NOC from the District Collector is very much necessary. 6. Section 13(2) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Act 18 of 2001) empowers the District Collector to notify the ban on sand removal from any river or river bank during any period if dredging of sand disturbs the biophysical environment system of the river. But the order of the ban shall not extend beyond a period of two weeks. Here the area applied for mining of ordinary sand by the petitioner is very close to the Vamanapuram River, and the above area comes within the biophysical environment system of the Vamanapuram River. The environment degradation occurred to a biophysical system can never be restored to its original state within a period of two weeks. It may take years to restore to the original State. Though the Act 18 of 2001 does not empower the District Collector to notify a ban for a longer period, the action of the District Collector is scientifically substantiated. Beginning with “Vellore Citizen's Welfare Forum Vs. Union of India”, the Hon'ble Supreme Court has explicitly recognized the precautionary principle as a principle of Indian Environmental law (AIR 1996 SC 2715) (1996 (5) SCC 647) 7. It is submitted that Kerala Minor Mineral Concession Rules, 1967 also confer the power on the District Collector to regulate the mining of ordinary sand. Recently the Kerala Minor Mineral Concession Rules 1967 have been amended. Sub rule 5 of Rule 5 of KMMC Rules, 1967 stipulates that every application for grant/renewal of quarrying permit in respect of minor minerals mentioned in item 2 of schedule-I appended to the above Rules for any type of lands should be accompanied by a No Objection Certificate from the District Collector concerned. A true copy of the SRO 256/2009 published in extra-ordinary Gazette No. 610 Vol. LIV dated 18-3-09 is produced herewith and marked as Ext. R3(a). Thus it can be seen that it is mandatory to produce the no objection certificate issued by the District Collector concerned while applying for grant of quarrying permit in respect of ordinary sand. Another provision included by the same notification is Sub Rule (6) of Rule 5 which stipulates that application for the grant/renewal of quarrying permits in respect of minor minerals of item 2 of Schedule-I shall be accompanied by a financial assurance in the W.P.C. No. 9015/2007 -: 5 :- form of bank guarantee from any nationalized/schedule bank at the rate fixed by PWD for the proposed area. 8. The Mines and Minerals (Development and Regulations) Act 1957 defines minor mineral as building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may by notification in the Official Gazette, declare to be a minor mineral. There is nothing termed as “Karamanal”. There is only one sand ie. ordinary sand which covers both the river sand and sand seen in the flood plain area and Paleo Channels. It is also pertinent to submit that sand is not available in any other parts of the land than flood plains and Paleo Channels. 9. The petitioner is bound to submit the survey map of the area vide sub rule (2) of Rule 5 of KMMC Rules. Instead, the petitioner provided a location sketch, that too without having any distance measurements. From the location sketch it appears that the area applied for, is very close to the Vamanapuram River. The petitioner himself admits that the area applied for is a paleo deposit of ordinary sand. Technically, petitioner's land can be designated as flood plain area. 10. This Hon'ble Court in Soman Vs. Geologist (2004 3 KLT 577) reiterated that the principle of sustainable development and the doctrines of “precautionary principle” and 'pollute pays' Principle are part of our environmental law which is built around Article 21 of the Constitution of India. This Hon'ble Court also held that the conditions and restrictions imposed in the quarrying permit were very much necessary to protect our environment. The above judgment was a common judgment delivered in a number of writ petitions. 11. It is submitted that one of the petitioners therein preferred Writ Appeal 1693/04 against the above judgment in Soman Vs. Geologist. Since the issue was related to the protection of environment and Ecology, the Government wanted the Department of Mining and Geology to conduct a thorough study in the matter. The Senior Geologist, Thiruvananthapuram was deputed to conduct a study in “environmental appraisal of flood plain mining sites in Vaikom and Kottayam Taluk,” in 2005. The Senior Geologist submitted the exhaustive report based on which a detailed counter affidavit had been filed on behalf of the Government in the Writ Appeal. Subsequently the above Writ Appeal was withdrawn by the appellant with liberty to file appeal before the appropriate forum. 12. It is submitted that since some of the technical aspects regarding mining of sand are to be mentioned in this case also, the findings of the Senior Geologist are very much relevant to be narrated. Paleo Channels are the older river courses which were W.P.C. No. 9015/2007 -: 6 :- buried due to sedimentation. They belong to the past riverine environment which are today found in the form of geomorphic signature in a location representing drainage, streams, rivers, which were flowing either ephemeral or perennial during the past time and now stand either buried or lost and shifted due to Tectonic, geomorphic as well as anthropogenic activities and climatic vicissitudes. Paleo channels are source of ground water, in general of good quality and they were possible locates for rain water harvesting. 13. Flood plains on the other hand are depositional and erosional areas adjacent to rivers where active channel spills during flood events (bank full events) Flood plain are formed either by lateral accretion or vertical accretion. The main functions of the flood plain in supporting ecology are the following. i) Sediment storage ii) Flood water storage/Peak flow moderation iii) Ground water Re-charge iv) Channel stability/Erosion prevention v) Water quality vi) Habitat 14. For getting more profit, gravel miners commonly choose to excavate large, deep pits adjacent to active river channels. These pits have the potential to significantly change the physical and ecological function for the flood plain. Depending on the geologic and geomorphic setting, flood plain mining can cause serious environmental consequences, in the long run. Mining of sand changes the physical characteristics of the river basin, disturbs the closely linked flora and fauna, alters the local hydrology, soil structure as well as socio economic conditions of the basin in general. One of the long term impacts of flood plain mining is the drainage avulsion. River avulsion is a global phenomenon due to flood plain mining. It is reported in (Washington Division of Geology and Earth Resources Open file Report 2004-8, 270 P) that flood plain mining in Yakima River severely disrupted river channels and riparian communities. 15. The sand in the flood plain area are good acuifers. Acquifer means the stratum which holds water for a very long time. The destruction of acquifers lead to acute shortage of water in the area. Hence indiscriminate mining of sand from flood plain areas and Paleo channels are to be controlled in a stringent manner. One of the adverse effects of sand mining is the lowering of water table. This is the reason for drying up of wells in the neighbourhood of W.P.C. No. 9015/2007 -: 7 :- mining areas. When sand is extracted at an exorbitant rate several times higher than the rate at which it is deposited, the major portion of the rain water is wasted because the water can not be stored on the flood plains and even in the riverbed. 16. The extraction of sand from flood plain is a massive geomorphic alteration of river form and process in the state of Kerala. Sand and gravel are removed from channels and flood plain at rates exceeding the rates of deposition by the river flow. Vast areas of flood plain are being transformed from agricultural to open-water pits mostly without hydrologically or ecologically based planning or design. The reclamation/restoration of the pits have to be done by environmentally benign materials. The pits shall not be filled by using toxic materials, non-biodegradable wastes etc. otherwise, the filling material will contaminate the ground water. 17. Stream channel instability and severe changes in morphology are a particular concern near flood plain mines. Stream migration across flood plain is a gradual change that typically occurs slowly. However, the potential for sudden channel shifts or brading during major flood events increases considerably where flood plain mining has removed riparian vegetation and lowered the flood plain. 18. Land is an important resource as it supports majority of the human activities. Also land is a finite resource and its importance is further on increase with the increase in the human population and human activities. Since decades man has been trying to bring more and more land area in his use for various activities. Land is degraded where mining activities are carried out. The sand mining creates open-pits which change the land scenario unless the land reclamation measures are adopted. The main impacts of sand mining on land environment are the following: i) complete deforestation in and around mining site ii) gross modification of topography iii) loss of top soil and sub soil iv) reduction in agriculture areas v) shifting of habitats vi) beheading of acquifers vii) damage to surface water resources viii) water logging W.P.C. No. 9015/2007 -: 8 :- 19. The united nations Environment Programme (UNEP) has formulated a programme for “Capacity building” for the people in the developing nations. It emphasize the need for equipping the people to address the environmental issues and to protect the environment by formulating precautionary measures-UNEP mainly project the following facts in their programme. 20. The three pillers of sustainable development – social progress, economic growth and environmental protection are inextricably linked. Each depends on the others to support a sustainable future for humankind. Over the past three decades, understanding of the role of the environment in our future and its fragility under the growing pressure from human activity, has grown immensely. Yet the environment is still by no means an equal partner in the development debate. Long term environmental considerations are still subjugated to the short term demands of economic growth and social progress. What is too frequently over looked is how today's apparent socio-economic advances can become tomorrow's disasters when their environmental impact is not taken into account. Increased climate variability, the growing global water crisis, the diminishing productivity of our soils etc. are just few examples of how the environment on which we all depend is coming under unprecedented strain. 21. In Soman Vs. Geologist this Hon'ble Court laid emphasis on the principle of sustainable development and the doctrines of “polluter pays” and “precautionary principle” as laid down by he Supreme Court in a series of decisions. 22. It is submitted that when an attempt was made to divert flow of a river for augmenting facilities at a motel, it was held by the Hon'ble Supreme Court that the State and its instrumentalities as trustees have a duty to protect and preserve natural resources. 23. It is submitted that the Centre for Earth Science Studies (CESS) and Centre for Water Resources Development and Management (CWRDM) have been conducting studies regarding the impact of sand mining in the rivers of the State. This Hon'ble Court also had directed on previous occasions to conduct such studies for permitting extraction of sand from Kadavu in the rivers. CESS has conducted studies in the rivers of South and Central Kerala and the reports are alarming. Offsite and on-site impact of sand mining has been described in the report of CESS. The above reports also point towards the serious repercussion caused on the environment and eco system by the excessive mining of sand. It is submitted that the study conducted by CESS in 1999 in the Greater Kochi Region revealed that at the then prevailing rate of sand mining the estimated river sand resources of this region would be exhausted within a decade lowering the river channel further by about 4-5 mtr. from the bed level at that time. W.P.C. No. 9015/2007 -: 9 :- In view of what is stated above, it is very much necessary that there should be some restrictions on the sand mining in order to protect the bio physical environment system of the state. Hence it is submitted that the Government and the District Collector who is the administrative head of the District are empowered to impost stringent conditions and even ban on sand mining whenever it is necessary. Hence, it is submitted that the above writ petition is devoid of any merit and the same is liable to be dismissed.” 4. The learned Government Pleader brought to my attention the fact that of late, courts have repeatedly stressed the necessity to protect the environment by imposing appropriate restrictions on the indiscriminate over-exploitation of natural resources, which would seriously harm the ecology and the environment and to encourage the necessity to have sustainable development. She has taken me through the earliest decision of the Supreme Court on the subject, namely, Rural Litigation and Entitlement Kendra v. State of U.P, AIR 1988 SC 2187. She also takes me through the subsequent decision of the Supreme Court in Velloore Citizens' Welfare Forum v. Union of India & others, AIR 1996 SC 2715. The learned Government Pleader points out that those sentiments expressed by the Supreme Court have been echoed by this Court also in the decision of Soman v. Geologist, 2004 (3) KLT 577. Therefore, according to the learned Government Pleader, it is the bounden duty of the Government to protect the environment by appropriately regulating the exploitation of natural wealth to preserve the earth as a habitable place for posterity. In that view, according to the learned Government Pleader, the District Collector, as the executive head of the district and the competent officer of the Government in the District, should be invested with sufficient powers to regulate the exploitation of the natural wealth, which would include mining of sand as well. She also points out that the Kerala Minor Mineral Concession Rules also contain appropriate provisions which indicate W.P.C. No. 9015/2007 -: 10 :- such a power with the District Collector. She refers to Ext. R3(a) amendment to the Kerala Minor Mineral Concession Rules effected by the Government as per the Kerala Minor Mineral Concession (Amendment) Rules, 2009 wherein, the following amendment has been made to the said Rules: “2. Amendment of the rules:- In the Kerala Minor Mineral Concession Rules, 1967-- (i) after sub-rule (4) of rule 5, the following sentence shall be inserted, namely-- “(5) Every application for grant/renewal of quarrying permit in respect of minor minerals, mentioned in item 2 of Schedule I appended to these rules for any type of lands should be accompanied by a no objection certificate from the District Collector concerned. (6) Every application for grant/renewal of quarrying permit in respect of minor minerals of item 2 of Schedule I, appended to these rules shall be accompanied by a financial assurance in the form of Bank guarantee from any nationalized/scheduled bank at the rate fixed by Public Works Department for the proposed area.” (ii) For clause (1) of Rule 57 the following rule shall be substituted, namely:- “In case of levelling of ground for construction of residential building, creation of play ground for public purpose, construction of canals, wells, roads or for agricultural and such other purposes where extraction of minor mineral is inevitable, the State Government may grant special permit on terms and conditions, that it may specify, other than those prescribed in these rules on the basis of an application by interested parties along with a sworn affidavit in this regard in stamp paper worth Rs.50.