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2018 DIGILAW 125 (KER)

P. D Jose, S/o. Devassy v. State Of Kerala

2018-02-06

A.K.JAYASANKARAN NAMBIAR

body2018
JUDGMENT: The petitioners in both these writ petitions are the same. As the issue involved in both these cases is the same, they are taken up together for consideration and disposed by this common judgment. 2. The petitioners are stated to be farmers, who are residing in the neighbourhood of the property of the 10th respondent in W.P. (C) No.32474 of 2015, and the 5th respondent in W.P.(C) No.22641 of 2017 (hereinafter referred to as 'quarry operator' for brevity). In W.P.(C) No.32474 of 2015, the petitioners seek a declaration that no quarrying operations can be carried on by the quarry operator on the land that was assigned to him in terms of the Kerala Land Assignment Act and Rules for agricultural purposes and for a direction to the official respondents of the State to take immediate and appropriate action to stop the alleged illegal quarrying by the 10th respondent on the aforementioned land. The averments in the writ petition would indicate that the petitioners challenge the quarrying operations carried on by the quarry operator on various grounds namely, (1) that the land on which the quarrying operations are carried on by the quarry operator, is land that was assigned to him in terms of the Kerala Land Assignment Act and Rules for agricultural purposes and inasmuch as the said quarry operator does not have the specific permission from the Government for carrying on the quarrying operations, the said activity in the assigned land is illegal, (2) It is stated that the quarry operator did not obtain any environmental clearance prior to commencing the quarrying operations, and therefore the operations are illegal in terms of the Environmental Protection Act and Rules (3) It is also the case of the petitioners that, although the quarry operator had obtained a D&O licence from the Panchayath in question, the D&O licence was not preceded by the requisite permission under Section 233 of the Panchayath Raj Act, (4) It is the case of the petitioners that the quarrying operations were carried on by the quarry operator without complying with the procedure under the Metaliferous Mines Regulation Act. W.P.(C) No.32474 of 2015 was admitted by this Court on 27.10.2015, and thereafter, by an interim order dated 08.09.2016, the undertaking of the quarry operator that he was not functioning the quarry, since he did not have any environmental clearance, was recorded and the official respondents of the State were directed to ensure that the quarry did not function without proper sanctions and environmental clearance. It would appear that, subsequent to the date of the interim order, the quarry operator did not operate the quarry, and took steps to apply for an environmental clearance. At that stage, the petitioners approached this Court through W.P.(C) No.22641 of 2017, wherein it is contended that the application submitted by the quarry operator for environmental clearance is liable to be rejected for the reason that the quarry itself is situated on land that was assigned to the quarry operator for agricultural purposes and therefore, cannot be used for quarrying purposes. A prayer is also sought for directing the authorities entrusted with the task of granting environmental clearance to consider the objections preferred by the petitioners pointing out various discrepancies in the application submitted by the quarry operator, before passing final orders on the application for environmental clearance. The said writ petition was admitted on 10.07.2017 and by an interim order of the same date, further proceedings pursuant to the application submitted by the quarry operator for environmental clearance was directed to be stayed for a period of one month. The said interim order was subsequently extended until further orders by an order dated 31.08.2017. Thus, as of today, while the quarry operator has stopped the quarrying activities in the land, the processing of the application submitted by the quarry operator for environmental clearance also stands stayed on account of the interim order passed by this Court. 3. A counter affidavit has been filed in both the writ petitions by the quarry operator, wherein the fact of the quarry operator having obtained the D&O licence from the respondent Panchayath is highlighted to indicate that the quarrying operations were begun after obtaining the necessary clearance from the statutory authorities. 3. A counter affidavit has been filed in both the writ petitions by the quarry operator, wherein the fact of the quarry operator having obtained the D&O licence from the respondent Panchayath is highlighted to indicate that the quarrying operations were begun after obtaining the necessary clearance from the statutory authorities. With regard to the quarrying activities that were carried on in the property prior to 18.05.2012, it is stated that the requirement of obtaining an environmental clearance certificate came in only with effect from 18.05.2012 and for the prior period, he had the necessary permissions from the statutory authorities for carrying out the quarrying activities. With regard to the specific contention pertaining to the land on which the quarrying operations was carried on, reliance is placed on Exts.R5(b), R5(c), R5(d), R5(e) and R5(f) judgments/interim orders/orders of this Court and the order of the Supreme Court to contend that very allegation that the land assigned for the purposes of rubber cultivation could not be used for quarrying of rock had been considered by this Court and also the Supreme Court in respect of the same land as is involved in the present writ petition and this Court had unequivocally permitted the quarry operator to carry on the quarrying operations in the said property. It is stated that inasmuch as this Court had already gone into the issue and decided the issue in favour of the quarry operator, the very same issue could not be agitated through a fresh writ petition albeit at the instance of another person. The judgment of the Supreme Court in the case in Thirumala Tirupati Devasthanams v. K.M. Krishnaiah [JT 1998 (2) SC 231] is relied upon to contend that the earlier judgments of this Court and the Supreme Court pertaining to the same land of the quarry operator would have evidentiary value in a subsequent litigation involving the same property. The judgment of this Court dated 06.11.2014 in W.P.(C) No.16054 of 2013 is also relied upon to contend that, in respect of the same property and the same quarry operator, this Court had already held that they were entitled to the quarrying permit issued by the Geologist, and that the said authorities had no right to interfere with the rights that had accrued to the quarry operator by virtue of the land assignment. The said judgment clarified that, if there was any violation of the conditions of the patta, it was for the authority who issued the patta to cancel the same, and without canceling the patta, the quarrying permits issued also could not have been be canceled. The said judgment is also relied upon to contend that, inasmuch as the quarry operator's right to conduct quarrying operations on the assigned land has already engaged the attention of this Court, and the quarry operator was permitted to carry on the operations, the issue of legality of the action of the quarry operator in carrying on such operations on assigned land cannot be gone into afresh in these proceedings. 4. The judgment of the Supreme Court in Thresiamma Jacob v. Geologist, Department of Mining and Geology [ 2013 (3) KLT 275 (SC)] is also relied upon to contend that the Supreme Court has declared that there is nothing in the law which declares that all mineral wealth and sub-soil rights vest in the State, and on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. The decision is relied upon essentially to contend that even in respect of assigned land, the ownership of the sub-soil is transferred to the quarry operator through the assignor, and even in the absence of any permit granted by the statutory authority, the rights in the sub-soil and minerals would accrue to the assignee of the land. It is further contended that clause (15) of the patta which deals with the reservation of rights in the Government is confined only to the reservation of a share of the rights over the land and nothing more. 5. With regard to the averments in the writ petition in W.P. (C) No.22641 of 2017, as regards the validity of the application for environmental clearance, it is stated that the application for environmental clearance was made before the statutory authorities solely for the purpose of complying with the legal requirements as a pre-condition for commencing quarrying activities. It is stated that the petitioners having chosen to challenge the quarrying activities of the quarry operator on the ground of not having an environmental clearance, ought not to have preferred a subsequent writ petition, interdicting further processing of an application for environmental clearance. It is stated that the petitioners having chosen to challenge the quarrying activities of the quarry operator on the ground of not having an environmental clearance, ought not to have preferred a subsequent writ petition, interdicting further processing of an application for environmental clearance. 6. I have heard the learned counsel for the petitioners in both these writ petitions, the learned counsel for quarry operators in both these writ petitions and also heard the learned Government Pleader for the official respondents of the State. 7. On a consideration of facts and circumstances of the case and the submissions made across the bar, I find that subsequent to the interim order passed in both the writ petitions, the situation today is that although the quarry operator had been engaged in quarrying operations on the strength of permits issued by the State Government in the past as also the statutory clearances obtained from the local authority, the quarrying operations were stopped on the undertaking of the quarry operator that he would not continue with the same without getting an environmental clearance from the statutory authority. When the application for environmental clearance was submitted before the authority, the same could not be proceeded with on account of the interdiction by this Court in W.P.(C) No.22641 of 2017. The last mentioned interdiction by this Court was based on the contention of the petitioners that, an application for environmental clearance could not be considered when the clearance was sought in respect of quarrying activities on lands that had been assigned for agricultural purposes. Reliance was placed by the learned counsel for the petitioners on the judgment dated 13.08.2009 in W.P.(C) No.9605 of 2008 as affirmed by the Division Bench of this Court in W.A. No.1908 of 2009 (judgment dated 25.08.2009) as also the order dated 22.01.2010 of the Supreme Court dismissing the SLP that was preferred against the Division Bench judgment. The contention based on the said judgment is that, quarrying operations cannot be permitted on lands that were assigned for specific purposes such as rubber cultivation or agricultural purposes, and the permit obtained by a quarry operator cannot be seen as a permission for using the assigned land for any other purposes. The contention based on the said judgment is that, quarrying operations cannot be permitted on lands that were assigned for specific purposes such as rubber cultivation or agricultural purposes, and the permit obtained by a quarry operator cannot be seen as a permission for using the assigned land for any other purposes. It is seen that the aforesaid judgments came up for consideration before this Court in W.P.(C) No.20532 of 2010 and connected cases, and by the judgment reported in Omana v. Anil Kumar [ 2017(2) KLT 481 ], this Court had taken a different view in respect of assigned land which was the subject matter of quarrying leases granted in terms of the Kerala Minor Mineral Concession Rules. While distinguishing the findings of the Division Bench of this Court referred to above, it was held as follows at Paragraphs 20 and 21 in Omana's case (supra) “20. It is not in dispute in these cases that the land was validly assigned to the predecessors in interest of the present landowners. The only issue to be considered is whether the use of the land for quarrying activities could be seen as a violation of the conditions of the assignment, leading to a cancellation of the assignment itself. It can be seen from a perusal of the relevant clauses of the order of assignment extracted above that clause 5 contemplates a cancellation of the Registry only for contravention of conditions 1 to 3 in the order of assignment or the conditions specified in the Patta. Condition 1 of the Patta reads as follows: “1. The assignee shall not use the land or suffer it to be used except for the purposes for which it is assigned” 21. If one views the assignment as solely for the purposes of rubber cultivation, perhaps it could be contended that the use of the assigned land for any other purpose, including quarrying activities, would entail a cancellation of the Registry. One cannot, however, ignore clause 13 of the order of assignment that expressly reserves to the Government its existing and customary rights, including its rights in mines and quarries subjacent to the land. In my view, this express reservation, by the Government, of its rights in mines and quarries, enables the Government to grant leases and permits for exploitation of minerals subjacent to the land, the ownership of which vests with the Government. In my view, this express reservation, by the Government, of its rights in mines and quarries, enables the Government to grant leases and permits for exploitation of minerals subjacent to the land, the ownership of which vests with the Government. Through the grant of quarrying leases, therefore, the Government must be seen as exercising its sovereign rights over the minerals subjacent to the assigned land, a right that it had reserved to itself while assigning the land in question. It is also relevant to note that the quarrying leases in the instant cases were all signed for and on behalf of the Governor of the State and are, therefore, Government Contracts that satisfy the requirements of Article 299 of the Constitution of India. In the decision of this court in W.P.(C).No.9605/2008, the learned single judge did not have to consider the effect, of the grant of a quarrying lease, on the assignment of land. The said case involved the grant of a quarrying permit by the Geologist, based on a possession certificate issued by the Village Officer, and the court found that the mere obtaining of a quarrying permit did not imply that a permission had been obtained from the Government to undertake quarrying activities by ignoring the specific conditions of assignment. In my view the facts in the instant cases are clearly distinguishable and further, in view of the Government having exercised its executive power while granting the quarrying leases, the quarrying activities cannot be seen as violative of the conditions governing the assignment of the lands in question. For the same reasons, I also do not find merit in the contention advanced on behalf of the State Government that the quarrying leases obtained by the leaseholders are liable to be cancelled on the ground that they were obtained without a proper disclosure of the nature of the lands in respect of which the leases were applied for and obtained, and the restrictive covenants that applied to the said land. The Government having exercised its executive power while granting quarrying leases, pursuant to an express reservation of the power at the time of assignment of the lands, cannot be heard to say that it was not aware of the basic purpose for which the lands were assigned. Thus, I answer issues (ii) and (iii) in the negative and in favour of the quarrying leaseholders.” 8. Thus, I answer issues (ii) and (iii) in the negative and in favour of the quarrying leaseholders.” 8. In the instant case, I find that the quarry operator has been conducting the quarry operations in the past on lands that were assigned to him for agricultural purposes, and the patta that was issued to the quarry operator specifies the use to which the land can be put to, although, by a separate clause, a right is also reserved in the Government to exploit the minerals in the sub-soil. The issue as to whether the quarrying permit would amount to a permission granted by the Government under the Kerala Land Assignment Act and Rules for using the land for purposes other than for the purposes mentioned in Rule 4 of the Land Assignment Rules, was answered in the negative by this Court in the earlier round of litigation which culminated with the dismissal of the SLP preferred by the quarry operator. The case of lands covered by quarrying leases have been stated to be different in the judgment of this Court in Omana's case (supra). Thus, in respect of assigned lands, where the quarrying operations are being carried on on the strength of a quarrying permit, the judgment dated 13.08.2009 in W.P.(C) No.9605 of 2008 as affirmed by the Division Bench of this Court in W.A. No.1908 of 2009 dated 25.08.2009 and the order dated 22.01.2010 of the Supreme Court dismissing the SLP, would prevent this Court from holding that a mere permit obtained under the Kerala Minor Mineral Concession Rules will enable a quarry operator to carry on quarrying operations on land that was assigned for agricultural purposes. For the same reason, this Court cannot permit the statutory authorities entrusted with the task of considering the application for environmental clearance, to proceed with a consideration of the application submitted by the quarry operator for environmental clearance, without the quarry operator first obtaining a permission from the State Government, either by way of a quarrying lease or by way of an executive order traceable to the powers of the Government under Rule 24 of the Kerala Land Assignment Rules. As regards the contentions of the quarry operator, based on the judgment of the Supreme Court in Thressiamma Jacobs Case (Supra), I am of the view that the observations in the said judgment have to be read in the light of the factual situation in that case where the lands in question were situated in the erstwhile Malabar Area of the State and therefore there was no statutory vesting of sub-soil rights in the State Government. The position obtaining in the esrtwhile Travancore Area of the State, where the land of the quarry operator is situated, is admittedly different. 9. I am, therefore, of the view that these writ petitions can be disposed of by directing the 4th respondent, the District Level Environment Impact Assessment Authority to proceed with any fresh application submitted by the quarry operator for environmental clearance, only in the event of the said application clearly indicating that the quarry operator has the permission from the Government, either in the form of a quarrying lease or in the form of an executive order traceable to the powers vested by the Government under Rule 24 of the Kerala Land Assignment Rules. The quarry operator is at liberty to approach the State Government for a quarrying lease or the necessary executive orders as aforesaid. 10. I make it clear that in that event, the 4th respondent, District Level Environment Impact Assessment Authority proceeds to consider an application submitted by the quarry operator, it shall also look into the jurisdictional aspects that govern the consideration of such an application, in accordance with the notifications and circulars issued by the Ministry of Environment and Forests (MoEF) under the Environmental Protection Act and Rules. The petitioners herein shall also be heard while considering the application for environmental clearance if any, submitted by the quarry operator. I make it clear that I have not gone into the other issues raised by the petitioners, with regard to the legality of the quarrying operations conducted by the petitioners in the past, since that is an issue that would have to be considered by the 4th respondent while considering any application for environment clearance preferred by the quarry operator. The writ petitions are disposed as above.