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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 21ST DAY OF AUGUST 2012/30TH SRAVANA 1934
WP(C).No. 12150 of 2007 (S)
-------------------------------------
PETITIONER(S):
------------------------
MANIMALA RIVER PROTECTION COUNCIL,
REPRESENTED BY SECRETARY, GOPINATHA PILLAI
KOTTANGAL, KULATHUR, PATHANAMTHITTA.
BY ADV. SRI.T.M.ABDUL LATHEEF
RESPONDENT(S):
--------------------------
1. STATE OF KERALA, REPRESENTED BY
SECRETARY TO GOVERNMENT, FOREST DEPARTMENT
THIRUVANANTHAPURAM.
2. CHIEF CONSERVATOR OF FOREST,
THIRUVANANTHAPURAM.
3. DISTRICT OFFICER, ERUMELY.
4. DISTRICT FOREST OFFICER, RANNI.
5. DISTRICT COLLECTOR, PATHANAMTHITTA.
6. DISTRICT COLLECTOR, KOTTAYAM.
7. KERALA POLLUTION CONTROL BOARD,
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM.
8. DIRECTOR, MINING AND GEOLOGY DEPARTMENT,
THIRUVANANTHAPURAM.
9. KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS SECRETARY,
VYDHUTHY BHAVAN
THIRUVANANTHAPURAM.
DCS
WP(C).No. 12150 of 2007 (S)
10. KOTTANGAL GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, KOTTANGAL.
11. JOINT CHIEF CONTROLLER OF EXPLOSIVES,
CHENNAI.
12. AMU.T.GEORGE, VADAKKEMURIYIL HOUSE,
KOLABHAGAM.P.O., THADIYOOR.
R1 TO R6 & R8 BY ADV. SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADER
FOR FOREST DEPARTMENT
R7 BY ADV. SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD
BY SRI.M.K.CHANDRAMOHAN DAS, SC, POLLUTION CONTROL BOARD
BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB
BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB
BY SRI.JOSE J.MATHEIKEL, SC, KSEB
R10 BY ADV. SRI.T.S.JOHN
R12 BY ADVS. SRI.MATHAI M PAIKADAY(SR.)
SRI.SIBY MATHEW(SR.)
SRI. PHILIP J. VETTIKATTU
BY ADV. SRI.SIJU RAJAN
BY ADV. SRI.A.A.MOHAMMED NAZIR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.03.2012, ALONG WITH WPC. 8448/2008, WPC. 218/2009, THE COURT
ON 21.08.2012 DELIVERED THE FOLLOWING:
DCS
WP(C).No. 12150 of 2007 (S)
APPENDIX
PETITIONER(S) EXHIBITS :-
EXHIBIT-P1. COPY OF THE PICTURE AND NEWS ITEM APPEARED IN DESHABIMANI
DAILY DATED 5.4.2004
EXHIBIT-P2. COPY OF THE PHOTOGRAPH SHOWING THE ROCK FORMATION
EXHIBIT-P3. COPY OF THE PHOTOGRAPH SHOWING THE ROCK FORMATION
EXHIBIT-P4. COPY OF THE PHOTOGRAPH SHOWING THE ROCK FORMATION
EXHIBIT-P5. COPY OF THE PHOTOGRAPH SHOWING THE ROCK FORMATION
EXHIBIT-P6. COPY OF THE CONSENT NO. PCB/CE/176/2004 DATED 4.08.2006 OF THE
7TH RESPONDENT
EXHIBIT-P7. COPY OF THE LICENCE NO.E/SC/KL/22/575(E23624) DATED 12.08.2004 OF
THE 11TH RESPONDENT
EXHIBIT-P8. COPY OF THE ORDER NO.323/2004-05/5979/M3/04 DATED 18.8.2004 OF THE
8TH RESPONDENT
EXHIBIT-P9. COPY OF THE NEWS ITEM APPEARED IN THE HINDU DAILY DATED
1.3.2005
EXHIBIT-P10. COPY OF THE PETITION SUBMITTED BY THE FIRST PETITIONER
BEFORE THE 10TH RESPONDENT DATED 24.02.2005
EXHIBIT-P11. COPY OF THE PETITION SUBMITTED BY THE 4TH PETITIONER
BEFORE THE FIRST RESPONDENT
EXHIBIT-P12. COPY OF THE ORDER G.O. (RT.) NO. 667/05/ID DATED 20.07.2005
EXHIBIT-P13. COPY OF THE REPORT APPEARED IN THE HINDU DAILY DATED
25.02.2005
EXHIBIT-P14. COPY OF THE SURVEY SKETCH SHOWING THE FOREST BOUNDARY
EXHIBIT-P17. COPY OF MINUTES BOOK
EXHIBIT-P18. COPY OF THE LETTER NO. T.A.(4) 1729/07 DATED 11.04.2007 OF THE
PRINCIPAL AGRICULTURAL OFFICER, PATHANMATHITTA
DCS
WP(C).No. 12150 of 2007 (S)
RESPONDENTS' EXHIBITS :-
EXHIBIT-R7(1). COPY OF THE 'CONSENT TO ESTABLISH' DATED 05.08.2004
EXHIBIT-R7(2). COPY OF THE 'CONSENT TO ESTABLISH' RENEWAL ORDER DATED
18.11.2006
EXHIBIT-R7(3). COPY OF THE 'CONSENT TO OPERATE' APPLICATION DATED 20.01.2007
EXHIBIT-R10(a). COPY OF THE JUDGMENT DT. 21.02.2005 IN W.P.(C).NO.3698 OF 2005 (M)
EXHIBIT-R12(a). COPY OF ROUGH SKETCH OF PROPERTY OWNED BY THE
PETITIONER IN SY. NOS. 443/1, 1-2 & 1-3
EXHIBIT-R12(b). COPY OF PROVISIONAL REGISTRATION ISSUED BY THE ASST.
DISTRICT INDUSTRIES, OFFICER, THIRUVALLA TO THE
PETITIONER
EXHIBIT-R12(c). COPY OF PROCEEDINGS NO. PCB/CE/PT/146/2004 DATED 05.08.2004 OF
THE KERALA STATE POLLUTION CONTROL BOARD
EXHIBIT-R12(d). COPY OF LICENSE NO. E/SC/KL/22.575(E.23624) ISSUED BY THE
DEPUTY CONTROLLER OF EXPLOSIVES
EXHIBIT-R12(e). COPY OF LETTER NO. CI-9136/04, DATED 10.09.2004 ISSUED BY THE
DISTRICT MEDICAL OFFICER, PATHANAMTHITTA
EXHIBIT-R12(f). COPY OF LETTER NO. A. E43/04, DATED 9.9.2004 ISSUED BY THE
INSPECTOR OF FACTORIES & BOILERS
EXHIBIT-R12(f)(1). COPY OF ENGLISH TRANSLATION OF EXT. R12(f)
EXHIBIT-R12(g). COPY OF ORDER NO. 323/2004-05/5079/M3/04 DATED 18.08.2004 ISSUED
BY THE DIRECTOR OF MINING & GEOLOGY
EXHIBIT-R12(h). COPY OF LETTER NO. A3-362/04 DATED 24.12.2004 ISSUED BY THE
RESPONDENT PANCHAYAT
EXHIBIT-R12(h)(1). COPY OF ENGLISH TRANSLATION OF EXT. R12(h)
EXHIBIT-R12(i). COPY OF LETTER DATED 25.1.2005 ISSUED BY THE RESPONDENT
PANCHAYAT
EXHIBIT-R12(i)(1). COPY OF ENGLISH TRANSLATION OF EXT. R12(i)
EXHIBIT-R12(j). COPY OF JUDGMENT DATED 21.02.2005 IN W.P.(C). NO. 3698/2005
PASSED BY THIS HON'BLE COURT
EXHIBIT-R12(k). COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENT
PANCHAYAT IN W.P.(C). NO.3698/2005
DCS
WP(C).No. 12150 of 2007 (S)
EXHIBIT-R12(l). COPY OF JUDGMENT DATED 07.03.2005 IN W.P.(C). NO. 7606/2005
PASSED BY THIS HON'BLE COURT
EXHIBIT-R12(m). COPY OF ORDER NO. GO(RT)67/05/ID, DATED 20.07.2005 ISSUED BY
THE GOVERNMENT OF KERALA
EXHIBIT-R12(n). COPY OF ORDER DATED 9.5.2005 PASSED BY THE RESPONDENT
PANCHAYAT
EXHIBIT-R12(n)(1). COPY OF ENGLISH TRANSLATION OF EXT. R12(n)
EXHIBIT-R12(o). COPY OF DECISION DATED 3.3.2005 IN W.P.(C). NO. 3698/2005 PASSED
BY THIS HONOURABLE COURT.
EXHIBIT-R12(o)(1). COPY OF ENGLISH TRANSLATION OF EXT. R12(o)
EXHIBIT-R12(p). COPY OF ORDER DATED 17.01.2007 ISSUED BY THE KERALA SATE
POLLUTION CONTROL BOARD
EXHIBIT-R12(q). COPY OF APPLICATION DATED 18.01.2007 SUBMITTED BY THE
PETITIONER BEFORE THE RESPONDENT
EXHIBIT-R12(q)(1). COPY OF ENGLISH TRANSLATION OF EXT. R12(q)
EXHIBIT-R12(r). COPY OF LETTER DATED 28.02.2007 ISSUED BY THE AGRICULTURAL
OFFICER, KRISHI BHAVAN, KOTTUNGAL TO THE RESPONDENT
PANCHAYATH
EXHIBIT-R12(r)(1). COPY OF ENGLISH TRANSLATION OF EXT. R12(r)
EXHIBIT-R12(s). COPY OF LETTER NO. TA(4)1729/07, DATED 11.04.2007 ISSUED BY THE
PRINCIPAL AGRICULTURAL OFFICER, PATHANAMTHITTA TO THE
10TH RESPONDENT PANCHAYAT
EXHIBIT-R12(s)(1). COPY OF ENGLISH TRANSLATION OF EXT. R12(s)
EXHIBIT-R12(t). COPY OF LICENSE ISSUED BY THE PANCHAYAT TO THIS
RESPONDENT
EXHIBIT-R12(t)(1). COPY OF ENGLISH TRANSLATION OF EXT. R12(t)
RESPONDENTS' ANNEXURES :-
ANNEXURE-R2(a). COPY OF LETTER DATED 1.2.2005
ANNEXURE-R2(b). COPY OF LETTER DATED 25.02.2005
DCS
WP(C).No. 12150 of 2007 (S)
ANNEXURE-A. COPY OF THE CIRCULAR DATED 15.03.2010 ISSUED BY THE LOCAL
SELF GOVERNMENT (RC) DEPARTMENT ALONG WITH THE
CHECKLIST
ANNEXURE-B. COPY OF G.O. (MS) NO. 239/2010/ID DATED 01.12.2010
ANNEXURE-C. COPY OF ANNUAL RETURN STATEMENT SUBMITTED BY THE LESSEE
DURING THE PERIOD 2007-08
ANNEXURE-D. COPY OF THE STATEMENT OF RETURN DURING THE PERIOD 2008-09
SUBMITTED BY M/S. AMITY ROCKS PRODUCTS PVT. LTD.
ANNEXURE-E. COPY OF THE STATEMENT OF RETURN DURING THE PERIOD 2009-10
SUBMITTED BY M/S. AMITY ROCKS PRODUCTS PVT. LTD.
ANNEXURE-F. COPY OF THE STATEMENT OF RETURN DURING THE PERIOD 2010-11
SUBMITTED BY M/S. AMITY ROCKS PRODUCTS PVT. LTD.
ANNEXURE-G. COPY OF THE QUARRYING LEASE DATED 13.09.2004 EXECUTED BY
THE LESSEE
ANNEXURE-H. COPY OF THE QUARRYING LEASE DATED 19.12.2005
ANNEXURE-I. COPY OF THE INSPECTION REPORT DATED 12.04.2007 BY THE
ASSISTANT GEOLOGIST, PATHANAMTHITTA
ANNEXURE-J. COPY OF THE INSPECTION REPORT DATED 13.06.2008 BY THE
ASSISTANT GEOLOGIST, PATHANAMTHITTA
ANNEXURE-K. COPY OF THE INSPECTION REPORT DATED 25.03.2009 BY THE
GEOLOGIST, PATHANAMTHITTA
ANNEXURE-L. COPY OF THE INSPECTION REPORT DATED 25.03.2010 BY THE
ASSISTANT GEOLOGIST, PATHANAMTHITTA
//TRUE COPY//
P.A. TO JUDGE
DCS
Thottathil B.Radhakrishnan
&
C.T.Ravikumar, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = WP(C)Nos.12150 of 2007-S, 8448 of 2008-S & 218 of 2009-A = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 21st day of August, 2012.
Judgment Thottathil B.Radhakrishnan, J.
1.The first among the captioned matters is filed by the Manimala River Protection Council. The other two are filed by different inhabitants around the area where a granite quarry and metal crushing unit of the private respondents situates.
2.A quarrying lease was granted to Sri.Anu T.George, Vadakkummuriyil Granites, Chunkappara for extraction of granite building stone from an area of 0.5755 ha. from Avolimala in Sy.No.446/1, 2 of Kottangal Village in Mallappally Taluk in Pathanamthitta District for a period of 10 years as per Proceedings dated 18.8.2004 of Director of Mining & Geology. That will expire on 12.9.2014. WPC12150/97 & con.cases -: 2 :- Subsequently, another lease was also granted to him for extraction of granite building stone from an area of 8.7663 ha. in Sy.Nos.436/1, 443/1, 1- 3, 446/3, 3-1, 4, 447/1, 1-2, 1-3 and 448/2 of the same village as per Proceedings dated 2.12.2005 of the Director of Mining & Geology. That lease will expire on 18.12.2017. Anu T. George transferred the leasehold right to M/s.Amity Rock Products Pvt. Ltd., Chunkappara on 10.6.2008 and got that transfer registered as per the Kerala Minor Mineral Concession Rules. As per the conditions of lease dated 18.8.2004, the lessee can extract 5000 MT of granite from the quarry in an year. As per the lease dated 2.12.2005, the lessee can extract 25000 MT in an year. Thus, the lessee can extract 30000 MT of granite from the two leasehold areas in an year. Anu T. George started quarrying operations during the 1st of April, 2007 and continued till 31.5.2008. He exercised option of compounding under Rule 48P of the Concession Rules during that period. Amity Rock Products Pvt. Ltd. also WPC12150/97 & con.cases -: 3 :- followed the same pattern of operation. To exclude any controversy on the facts, these statements are taken out from the affidavit sworn to on 16th February, 2012 by the Geologist, Mining & Geology Department, District Office, Pathanamthitta in WP(C).No.12150 of 2007. The said affidavit discloses that Anu T.G eorge had recorded extraction of 8452 MT from 1.4.2007 to 31.5.2008 and Amity Rock Products Pvt. Ltd. has recorded extraction of 39300 MT, 77928 MT and 119463 MT respectively for the years 2008-2009, 2009-2010, 2010-2011.
3.The Senior Geologist of the District Office, Department of Mining & Geology, Kollam had sworn to a counter affidavit dated 25.11.2010 stating that the leases were granted in accordance with the Concession Rules and lessee has the licences described in paragraph 3 of that counter affidavit to conduct quarrying operations. Consent with validity till 30.6.2012 to operate the granite quarry is issued under the Water WPC12150/97 & con.cases -: 4 :- (Prevention and Control of Pollution) Act, 1977. Panchayat licence dated 7.4.2009 is granted by the Kottangal Grama Panchayat. Explosive licence with validity till 31.3.2012 is granted by the Joint Controller of Explosives, Chennai as per the provisions of the Explosives Act. The firm has appointed a qualified person holding Manager's IInd Class Certificate of Competency to manage open cast workings. It is also stated in that counter affidavit that on inspection on 9.11.2009, it was found that the averred quarrying operations are being done in accordance with the provisions of the Concession Rules, maintaining proper benches/step cuttings as per the Concession Rules. The said counter affidavit proceeds to state that Rule 29(i) of the Concession Rules provides for distance of 75 metres from certain landmarks, however that, there is no statutory provision prohibiting mining/quarrying operations near to forests and that there is no provision in the Concession Rules barring quarrying operations near to WPC12150/97 & con.cases -: 5 :- forests.
4.When WP(C)Nos.8448 of 2008 and 218 of 2009 were considered by the Bench on 6.10.2009, it was noted that the issue involved relates to whether the quarry and crusher unit being run by Amity Rock Products Pvt. Ltd. at Chungappara within the limits of Kottangal Grama Panchayat are causing any environmental pollution posing threat to the local inhabitants. The Bench dissuading itself from making any elaborate reference to the various allegations and counter allegations recorded that the issue has been kept alive because apparently there has been some resentment among a section of the people of the locality. Noticing that the imbroglio can be given a quietus if a committee of experts is asked to look into the entire aspects of the functioning of the above two units, the Bench accepted the suggestion of the learned Additional Advocate General that a committee could be constituted as suggested by him. Accordingly, a committee was WPC12150/97 & con.cases -: 6 :- constituted with the Chairman of the Biodiversity Board or a nominee proposed by him, Conservator of Forests, Kollam, Environmental Engineer, Kollam and District Geologist, Kollam. The Conservator of Forests, Kollam was to be the Convenor of the Committee. That Committee submitted report dated 15.12.2009, the original of which is along with the paper book in WP(C). No.218 of 2009. During course of arguments before us, that report including the procedure adopted by the Committee and also the contents drew criticism at the hands of the operator; the learned senior counsel appearing for them arguing that it is essentially a one-man report and contains only the particular views of the then Chairman of the Kerala State Biodiversity Board. Suffice for us to say that the said report is signed by all the Members of the Committee and the summary of it is that the study clearly shows that the quarry and crusher unit cause and continue to cause damage to the birds and wildlife in the forests lying close to the site, WPC12150/97 & con.cases -: 7 :- affect the plants and health of people living around, hamper the natural springs and, irrevocably damage the ecology of the area, especially the micro water system.
5.When the three writ petitions came up together for consideration on 10th March, 2011, the aforesaid order dated 6.10.2009 and the report of the Committee were noted. Without stating anything about the contents and findings in that regard, the Bench noticed that the statements therein require clear expression of opinion touching the facts mentioned in that report. With the materials on record, the Bench was of the view that the Executive has to first speak on the issue before any judicial intervention in that regard. It is apposite to quote the following from that order:
"3. Government means, the institution of governance, meaning thereby an establishment with cohesive application of minds by various limbs WPC12150/97 & con.cases -: 8 :- of the executive governance. The Mining and Geology Department, the Environment Department, the Forest Department and other relevant and attendant departments cannot stand on different pedestals and ask the judiciary to resolve the disputes between them.
4. We, therefore, direct the
Chief Secretary to the State of
Kerala, to place an affidavit before this court after convening an immediate conference of the relevant officials from all necessary departments, touching the contents of the aforesaid report and place the comprehensive view of the executive before this court..........."
6.Thereupon, the Chief Secretary to the Government of Kerala filed an affidavit dated 2nd April, 2011. That affidavit is a candid admission that there is differential emphasis in the views of the different departments regarding the impact of the mining operations on the environment. There WPC12150/97 & con.cases -: 9 :- is a clear cleavage of opinion noted by the Chief Secretary. The issues raised by the different departments and in particular, the Biodiversity Board, pointing out the provisions of the Metalliferous Mines Regulations, 1961 and the Environment Policy, 2009 of the Government of Kerala where quarrying is not permitted in hillocks, appear to have gained the attention of the Chief Secretary. The Revenue Department had also reported to the Chief Secretary that the unit concerned is holding land in excess of the ceiling area under the provisions of the Kerala Land Reforms Act and that notice is being issued to the company in that regard. The Forest Department has indicated that quarrying operations have to be restricted to a minimum distance of 100 metres from the boundary of the forest. A reading of that affidavit appears to disclose that the anxiety of the Executive to ensure availability of materials for the construction sector has apparently overtaken the more fundamental requirement to provide adequate WPC12150/97 & con.cases -: 10 :- checks and balances to ensure that the environmental impact of such operation is so minimized that it conforms to the required benchmarks to sustain the ecological balance vis- a-vis the need for resources. The petitioners in WP(C).No.218 of 2009 have along with I.A.No.2667 of 2010 produced different precedents of the Hon'ble Supreme Court of India and of this Court containing the repeated statements as to law regarding such matters. We are not making elaborate reference to the legal issues in that regard, having regard to the nature of the directions that we will issue in these cases.
7.During the course of hearing before this Court thereafter, the effect of earlier judgments in favour of the operator was canvassed by its learned senior counsel as precluding any issue in that regard being raised by the petitioners. The learned counsel for the petitioners strongly relying on the aforesaid report of the Expert Committee, argued that the cause of action for WPC12150/97 & con.cases -: 11 :- the earlier writ petitions and the result of those matters have no bearing on the issues that arise on the facts which disclose a continuing wrong to the public and the nature.
8.In so far as the Mines and Minerals (Development and Regulation) Act, 1957 and the Environment (Protection) Act, 1986 are concerned, by now the law is well settled that quarrying and mining of minor minerals have to be done only by ensuring that there is no damage to the eco system. This has to be done with proper environmental impact assessment. In Deepak Kumar v. State of Haryana [(2012) 4 SCC 629], Their Lordships after considering the views of the Ministry of Environment and Forest made particular reference to the constitution of a Core Group by the MoEF to look into the environmental aspects associated with mining of minor minerals. MoEF's attention got thus focused to the need to look into the environmental aspects associated with mining of minor minerals. The terms of reference to the WPC12150/97 & con.cases -: 12 :- Core Group dealt with matters not falling under the environmental impact assessment notification of 1994. The Ministry of Mines, Government of India has sent communication dated 16.5.2011 called "Environmental Aspects of Quarrying and of Minor Minerals-Evolving of Model Guidelines" along with a draft model guidelines. Their Lordships, taking the view that all the State Governments/Union Territories have to give due weight to those recommendations, noticed that the Model Rules of 2010 issued by the Ministry of Mines are very vital from the environmental, ecological and biodiversity point of view. The State Governments were therefore to frame proper rules in accordance with the recommendations under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. By that judgment, all the States, Union Territories, MoEF and the Ministry of Mines are required to give effect to the recommendations made by MoEF in its Report of March 2010 and the model guidelines framed by the Ministry of Mines, within a period WPC12150/97 & con.cases -: 13 :- of six months from 27.12.2010, the date of the said order of the Hon'ble Supreme Court. The Central Government was also directed to take steps to bring into force the Minor Minerals Conservation and Development Rules, 2010 at the earliest and the State Governments and the Union Territories were to take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Government of India. In the meanwhile, it was ordered that leases of minor minerals, including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from MoEF. That direction was issued by Their Lordships obviously on the premise that the recommendations of MoEF included that the minimum size of mine lease should be five hectares [see paragraph 4.2 of the MoEF's recommendation, WPC12150/97 & con.cases -: 14 :- quoted at page 636 of the judgment - Deepak Kumar (supra)].
9.The aforesaid analysis of the fact situation and the efficacy of the Rules now in force would show the bargaining capacity of the local inhabitants of an area and the nature by herself, including the flora and fauna is comparably feeble when pitched against the commercial interest, including under the cover of developmental needs. We say so because, even from the counter affidavit of the Chief Secretary, no anxiety is reflected to ensure the protection and preservation of the environmental scenario and to recoup any loss to the ecological balance. The doctrines of sustainable development, including by operation and employment of the principles like polluter pay and the precautionary principle cannot be operated in the vacuum by the Executive merely being guided by the so-called developmental needs. The statutory rules, though have a backing of the primary legislations, are WPC12150/97 & con.cases -: 15 :- made principally on the basis of such advice, which have with the passage of time, demonstrated themselves to be counter productive to sustainable development and preservation of the environment and ecological balance. Under such circumstances, also taking note of the different materials placed on record along with I.A.No.2667 of 2010 in WP(C).No.218 of 2009, we are of the view that there has to be an audit of the environmental impact of the quarry and the metal crusher unit of the establishment concerned, namely, Amity Rock Products Pvt. Ltd. This is all the more so because, the operations under the leasehold right and by virtue of the quarrying licences are near the forests, however near or far it may be. We cannot forget, as noted by the Chief Secretary in his affidavit dated 2.4.2011, that locating land for mining away from both human settlement and forest boundaries is a difficult task. Therefore, though minerals and raw materials are required for construction sector, a meaningful balance has to be struck. WPC12150/97 & con.cases -: 16 :- Otherwise, there may not be anything to be left behind by this generation for those who are yet earnestly expected as the generations to come.
10.Contextually, we also deem it appropriate to point out that the provision in the Rules for paying royalty at compounded rates does not appeal. We say so because, unlike in the realm of tax, duties etc. the payment of consolidated royalty as now provided in the Concession Rules would be counter productive to the avowed efforts to manage the environment, maintaining the ecological balance and providing for sustainable development. The Rules as they stand clearly show that there would be no regulation by the statutory authorities on the quantity of rubble that will be removed by recourse to such payment of royalty. This would, obviously, lead to indiscreet quarrying. As already noted above, even according to the Chief Secretary, there is dearth of space in the State of Kerala and if excavated areas are available at random, that WPC12150/97 & con.cases -: 17 :- would be dangerous. It is not out of place to recall the good number of incidents where vehicles or people have fallen into such death traps. The geo-physical challenges to the terrains even at the onset of the monsoon would, obviously, have to be treated as an eye opener, subject of course to appropriate advice in that regard by scientists dealing with earth science, water management, forests etc. The effect and impact of mining activity on the environmental scenario is a matter on which there has to be a clear audit to prevent mishaps and calamities of larger order. As noticed by the Apex Court in Deepak Kumar (supra), though there may be need for building and construction materials, that is no excuse to override the larger need to sustain the environment. The principles of law stated in Deepak Kumar (supra) making reference to sand mining equally apply to all minor minerals since the law laid down therein, in its crux, is that the laws relating to minor minerals would apply to sand also.
WPC12150/97 & con.cases -: 18 :- In the aforesaid circumstances, while we approve the views of the Chief Secretary in paragraph 10 of his affidavit dated 2.4.2011 and direct that strict obedience in compliance to those suggestions shall be immediately obtained, it is further ordered that renewal of any among the permits/licences/consents of the operator Amity Rock Products Pvt. Ltd. in the site in question shall be done only after a complete audit by the departments which are found to be relevant by the Ministry of Environment and Forests in the Government of India. The writ petitions ordered accordingly.
Thottathil B.Radhakrishnan, Judge.
C.T.Ravikumar, Judge.
Sha/200812