Susan Rajan George vs State Of Kerala Rep. And Ors

The applicant, who is a resident of Nooranad Village living along with his family, owns 94 ares of dry land in Resurvey No.307/3, 307/7, 308/8, 307/10 and 307/20 in Block No.23 of Nooranad Village in Mavelikkara Taluk of Alappuzha District. The applicant is stated to be cultivating the said lands. The grievance of the applicant is that there is an indiscriminate excavation and mining of red earth/ gravel in the adjoining areas by respondent Nos.8 to 13 and by virtue of the said illegal mining, it is not only affecting the electrical lines and burial grounds but also may result land slides since the region happens to be hilly region. According to the applicant, the mining is done by the respondents without obtaining necessary permission from the authorities competent under the Kerala Minor Mineral (Concession) Rules and without obtaining Environmental Clearance (EC) under the EIA Notification, 2006. The lands are under the supervisory control of the 7th respondent Nooranad Grama Panchayat and according to the applicant, the 7th respondent, Grama Panchayat is in collusion with respondent Nos.8 to 13 for obtaining building permits in respect of smaller plots and the 8th respondent using the names of other respondents on binami, has been excavating the red earth/gravel in the guise of acting on building permits without any mining permission from Mining and Geology Department resulting in environmental disaster in the area. According to the applicant, the 8th respondent acts as agents of soil mafia and is using the names of other private respondents. The 8th respondent is in the habit of purchasing smaller plots in the name of respondent Nos.8 to 13 and obtain permit for construction of building from 7th respondent but proceed with the mining activity against Kerala Minor Mineral (Concession) Rules. The learned counsel appearing for the applicant would submit that the excavation which is going on illegally, is presently confined to Survey No.306, 307 part, 308 and 309.

The Tribunal in the order dated 21.04.2016 has directed Joint Inspection of the spot by 4th and 5th respondents without giving prior notice to other respondents. There was a further order dated 23.05.2016 directing that no one shall be permitted to excavate red earth either in the guise of obtaining building permits from the 7th respondent or otherwise. On the direction of this Tribunal, the 4th respondent, District Collector has filed a Memo on 08.08.2016 in which it is stated that the Department of Mining and Geology has permitted to extract ordinary earth in Survey No.309/4. The District Collector also states that the condition with which the permission granted was subject to the fact that maximum depth of removal of earth should not go beyond 2 m from the general ground level and according to the learned counsel appearing for the applicant, the 8th respondent has been violating the said condition and excavating the earth to a large extent.

It is also stated by the District Collector that the boundary has not been demarcated and the 8th respondent has extracted ordinary earth in Survey No.309/4 in violation of the conditions and there has been enormous complaints from the residents in the area. The District Collector in the said memo has also stated that the 8th respondent is carrying on activities in violation of the 2nd condition of the EC granted by SEIAA and extracted earth beyond 2 m depth. However, it is stated that at the time of inspection there was no extraction of earth and ordinary earth was extracted only in Resurvey No.309/4 which is in possession and enjoyment of the 8th respondent.

It is seen that SEIAA has granted EC to 8th respondent on 21.04.2014 for removal of ordinary earth from the land comprised in resurvey No.309/4 at Nooranad Village in Mavelikkara Taluk of Alappuzha District in which one of the conditions is that the maximum depth of removal of earth should not go beyond 2 m from the general ground level of the site and it should be prominently marked before initiating the work and the removal of earth should be restricted to 2 m above ground water table at the site. There is another condition that the removal of ordinary earth should be for agricultural purposes only. It appears that taking note of the violation of the conditions by 8th respondent, the SEIAA has issued show cause notice to 8th respondent on 21.10.2016. The said show cause notice was issued as per the order of this Tribunal dated 08.08.2016. The said show cause notice was followed by stop memo order on the same date viz., 21. 10.2016. It is stated by the counsel for the applicant that even after issue of show cause notice and stop memo, the 8th respondent illegally removed ordinary earth from Survey No.307, 308 and 309. It was in those circumstances, taking note of the statement made by the learned counsel appearing for the applicant that the 7th respondent has been in collusion with 8th respondent, we directed the 7th respondent to be present in the Tribunal. Accordingly, the 7th respondent viz.,the Secretary, Nooranad Panchayat was present in the Tribunal on 15.03.2017 and he also filed a reply. In the reply filed by the 7th respondent dated 15.03.2017, it is stated that Survey Nos.307, 308 and 309 in Block No.23 are in possession of about 70 people and allegations are that the Respondent Nos.8 to 13 are conspiring to excavate red earth in Survey Nos.307, 308 and 309 in the guise of obtaining building permits. It is the case of the 7th respondent that being Panchayat, it issues building permit as well as NOCs for construction of buildings under Kerala Panchayat Building Rules, 2011. Therefore, 7th respondent is not vested with any authority either to permit or regulate excavation of red earth. As per the Rules, the permit issued by the Panchayat for construction of building is valid for 3 years, and may be extended for a total period of 9 years.

It is the case of the 7th respondent that being the Panchayat, issuing Building Permits and NOCs, it will be difficult to monitor as to whether the conditions with which the permits were issued, are being complied with or not. The 7th respondent also issues 'Development permit' which relates to change of nature of land. However, taking note of the fact that 'Development Permit' is being misused, the 7th respondent has not issued any 'Development Permit' to anyone from April, 2015. It is submitted that 'red earth' has been declared as 'minor mineral' and permit has to be issued only by the designated authorities under the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 and Panchayat is not the competent authority. The 7th respondent further states that as per the order of the Hon'ble High Court of Kerala in W.P.No.19829 of 2012 removal of 'red earth' does not amount to 'development of land' . The 7th respondent has also referred to Rule 14 (2) of the Kerala Minor Mineral (Concession) Rules, 2015 which contemplates that no quarrying permit is required for ordinary earth for construction of building less than 300 M2 if there is a valid permission for construction of building. It is also stated that respondents have approached the 7th respondent and they have rejected the said proposal. It is further stated that by virtue of Notification of MoEF & CC dated 15.01.2016, EC is required even in respect of area less than 5 hec. but the EC is to be conferred by DEIAA.

In W.P.No.16763 of 2016, the Hon'ble High Court of Kerala while striking down the Rule No.14(2) of the Kerala Minor Mineral (Concession) Rules, has observed that quarrying permit is mandatory. Therefore, the legal position as enshrined after the Judgement of the Hon'ble High Court of Kerala is that building permit alone is not sufficient for any person unless he gets permits for quarry under Kerala Minor Mineral (Concession) Rules apart from EC from the Competent Authority.

On going through the contents of the reply filed by the 7th respondent, it is clear that 8th respondent has been carrying on illegal activity of mining by violating the conditions stipulated in the EC granted by SEIAA and based on the violation, SEIAA has also issued 'stop memo' and accordingly as on date the respondent Nos.8 to 13 are not carrying on any activity. It is clear that the permits are not issued by 7th respondent as on date and no activity is being carried out by respondent Nos.7 to 13.

In these circumstances, we are of the considered view that stringent condition should be imposed by way of directions not only by the 7th respondent but also the authorities under the Minor and Mineral (Concession) Rules so as to ensure that illegal mining does not take place in the guise of obtaining building permit. Accordingly, we dispose of the application with the following directions:

The 7th respondent, Nooranad Grama Panchayat while issuing building permit, must ensure that if any building permit is issued to any person including respondent Nos.8 to 13 they strictly follow various conditions prescribed in the permissions issued.

Respondent Nos.2 to 4 must ensure that quarrying permit issued by them under the Minor Mineral (Concession) Rules are not misused.

Respondent No.8 to 13 shall not quarry red earth /ordinary earth/ gravel/ sand in the guise of the building permit issued by 7th respondent.

The Respondents must ensure that the Judgement of the Supreme Court in Deepak Kumar case and the Judgement in the case of All Kerala River Protection Counsil, Aluva as explained by the Hon'ble Division Bench of the Kerala High Court in 2015 2 KLD 78, are followed wherein it is clearly stated that EC is required.

With the above direction, the application stands closed. There shall be no order as to cost.