IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9015 of 2007(W)
1. MR. GOKUL DAS, AGED 45 YEARS,
... Petitioner
Vs
1. THE GEOLOGIST,
... Respondent
2. THE DISTRICT COLLECTOR,
For Petitioner :SRI.JOBI JOSE KONDODY
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :24/07/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 9015 of 2007
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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 forW.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 theW.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 wereW.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 ofW.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. They shall be
exempted from obtaining quarrying permit or quarrying lease and
payment of royalty for removing of minor minerals. This
concession shall be limited to a quantity of mineral, the royalty for
which according to item No. 4 of scheduled 1 rate does not exceed
Rs. 5,000/-. For quantities exceeding this limit royalty at the
scheduled rates should be paid.”
According to the learned Government Pleader, in view of the said
amendment to the Rules, it cannot be contended by the petitioner
W.P.C. No. 9015/2007 -: 11 :-
that the District Collector does not have powers to issue an order like
Ext. P11. On these contentions, the learned Government Pleader
supports the impugned orders.
5. I have considered the contentions of the parties with the
anxiety the situation demands in view of the over-exploitation of
natural wealth perceived around us, degrading the environment,
which is a matter of grave concern.
6. It is true that by Ext. P6 judgment, I had held that under the
Kerala Minor Mineral Concession Rules, the District Collector does
not have powers to pass orders of ban of ordinary sand covered by the
Kerala Minor Mineral Concession Rules. However, after considering
the counter affidavit of the additional 3rd respondent in this case and
after hearing the enlightening arguments of the learned Government
Pleader, I have become wiser and am not inclined to follow that
judgment. Even otherwise, that judgment was rendered at a time
when Ext. R3(a) amendment was not in the statute book. In view of
Ext. R3(a) amendment to the Kerala Minor Mineral Concession Rules,
the finding in my said judgment cannot hold good any longer.
7. We are living at a time when indiscriminate and excessive
exploitation of natural wealth is threatening the very existence of
mankind. If such indiscriminate exploitation of natural wealth
continues unabated, the posterity will not have a habitable earth to
live in. It is often said that we are only trustees of the natural
resources of the earth and we have no right to meddle with the same
so as to make the earth inhabitable for future generations. It is with
this sentiment in mind that the Supreme Court and the High Courts,
including this Court, had vested the Government with powers to
safeguard the environment by invoking Article 21 of the Constitution
of India, wherever no specific powers are so conferred by statute.
The Supreme Court has in those judgments appointed expert
W.P.C. No. 9015/2007 -: 12 :-
committees to study the ecological impact of such excessive
exploitation of natural wealth and based on the report of such expert
committees issued orders regarding regulation of such exploitation
of natural wealth. It may not always be possible for the Court to
monitor such situations and therefore it is imperative that
appropriate officers should be invested with adequate powers to
monitor such situations by passing suitable orders whenever the
situation demands.
8. The lowering of the water table in many parts of the Kerala
State is of great concern for everybody. It has been proved by
scientific studies that the water table in the State is going down,
which would ultimately result in scarcity of water in the State in the
long run. The lowering of water table is one of the deleterious effects
of excessive sand mining. Not only that, excessive sand mining would
result in many other ecological imbalances, which is no longer an
unproven fact. In fact, the same has been recognised by the judicial
pronouncement in Soman’s case (supra). In that decision the
Division Bench has held that certain conditions in a quarrying permit
even if not authorised by law, are authorised by Article 21 of the
Constitution of India. In paragraph 13 thereof it has been held thus:
“13. In view of the above and other judgments, the principle
of sustainable development and the doctrines “polluter pays” and
“precautionary principle” are part of our environmental law, which
is built around Art. 21 of Constitution of India. The conditions
impugned in this writ petition are necessary to protect the
environment. If every land owner, driven by profit motive, is to dig
his land to win sand, no land except pits will be left for the future
generations. So, the petitioners should stop mining, when it
reaches the ground water level and immediately, all the pits should
be filled up, as provided in condition No. 16 which reads as follows:
“All excavations have to be immediately filled and reclaimed.”
The principle of sustainable development now being part of the
environmental jurisprudence, flowing from Art. 21 of theW.P.C. No. 9015/2007 -: 13 :-
Constitution of India, the State is bound to impose the impugned
conditions, while granting the permit. Even if such conditions are
omitted to be mentioned in the Kerala Minor Mineral Concession
Rules , still the State can impose them, in view of Art. 21 of the
Constitution of India. In other words, even if condition Nos. 2 and
15 are unauthorised by the Rules, they are authorised by Art. 21.
Accordingly, the challenge against condition Nos. 2 and 15 in Ext.
P1 is repelled.”
Therefore, it is imperative that appropriate powers are vested with
the Government and their officers to effectively curb this menace,
which would result in ecological imbalances in the State. This is
particularly so in case of mining of sand from properties nearer to the
rivers. While granting permits for mining sand in properties near
rivers, even if the property is beyond the distance limit prescribed in
the Kerala Protection of River Banks and Regulation of Removal of
Sand Act, 2001, there is a real likelihood of danger of unscrupulous
persons misusing the permit to cause irreversible damage to the river
beds. The necessity for appropriate regulatory control has been
succinctly explained in the counter affidavit, with scientific backing,
with which nobody can quarrel. Therefore, in every respect,
appropriate regulatory powers should be vested with the authorities
concerned. The District Collector is the Executive Head of the
District. By the Kerala Minor Mineral Concession (Amendment)
Rules, the District Collector has a say in the matter of issue of mining
permits, insofar as the Geologist can issue permits only if the
applicant for permit produces a no objection certificate from the
District Collector. This power has been vested with the District
Collector, since persons, after having obtained permits under the
Kerala Minor Mineral Concession Rules are misusing the same for
mining river sand. If such powers have not been specifically conferred
on the Collector under the Rules such powers have to be read into the
Rules. When in the matter of mining of river sand, the District
W.P.C. No. 9015/2007 -: 14 :-
Collector is vested with powers of imposition of ban, there is no
discernible reason as to why those powers should not be extended to
ordinary sand also in the interests of ecology and environment
invoking Article 21 of the Constitution of India. Therefore, I am of
opinion that District Collector is certainly an authority who is
competent and empowered to consider the question as to whether
mining of sand from a particular property would cause damage to the
ecology and therefore the District Collector can certainly issue orders
regarding banning of mining of sand in particular areas in a district or
in the district as a whole. The source of such power can be traced to
Article 21 of the Constitution of India, even if such powers are not
specifically conferred by the Rules, for ensuring sustainable
development.
9. However, I am of opinion that the District Collector cannot
issue a blanket ban order without any restriction regarding time limit.
The District Collector can impose ban only for a specified period at a
time and should review the situation from time to time. If the
situation warrants, period of the ban can be extended for further
specified periods. If on review, the District Collector finds that on
strict regulatory conditions, mining can be permitted the District
Collector can lift the ban on such regulatory conditions. That being
so, Ext. P11 order insofar as it does not restrict the ban to any
specified period cannot be supported by law.
10. It is brought to my notice that formerly under Rule 8 of the
Kerala Minor Mineral Concession Rules, the depth of the pit to be
used for quarrying below the surface was not to exceed 20 feet. That
condition has been deleted from the Rules now by amendment by SRO
270/2008. I am surprised that when courts are trying their best to
protect ecology by persuading the Government to bring in more
regulatory measures, the Government has deleted the regulatory
W.P.C. No. 9015/2007 -: 15 :-
measures by altogether excluding the depth to which mining can be
undertaken. If that is permitted, then it would have more deleterious
effects on the ecology. Although this Court cannot interfere with the
legislative powers of the State, I take this occasion to express my
anguish over such relaxation of conditions, which has originally been
incorporated with the object of protecting the ecology, insofar as, to
my mind, the same does not make any perceivable sense. I am of
opinion that the Government will do well to re-consider the matter
and re-introduce the said condition also, which would only go to
further protect the ecology of our State. I am of further opinion that
such a condition should be incorporated in all quarrying permits
deriving support from Soman’s case (supra). Therefore, I direct all
the Geologists in the State that quarrying permits issued under the
Kerala Minor Mineral Concession Rules shall contain a condition
restricting the depth of the pit to be used for quarrying below the
surface to 20 feet and the additional 3rd respondent shall issue
appropriate instructions to all Geologists in the State accordingly.
The necessity of such a condition is well perceivable from the counter
affidavit of the 3rd respondent itself.
11. Taking into account all the above facts and circumstances,
I dispose of this writ petition with the following further directions in
addition to the general findings and directions contained
hereinbefore:
12. The 2nd respondent shall make a review of the situation
prevailing in areas covered by Ext. P11 and consider whether it is
necessary to continue the ban on mining of sand in those areas.
Thereafter, the 2nd respondent shall issue fresh orders. If the District
Collector finds it necessary to continue the ban, that shall be for a
specific period and the necessity to continue the same shall be
reviewed from time to time. While doing so, the District Collector
W.P.C. No. 9015/2007 -: 16 :-
shall consult the expert authorities like the Geologist to come to a
reasonable conclusion in the matter. It would also be open to the
District Collector to constitute an expert committee as in the case of
the Kerala Protection of River Banks and Regulation of Removal of
Sand Act and seek their opinion in the matter. If the District Collector
finds that presently mining can be permitted, the Geologist shall
consider Ext. P5 application submitted by the petitioner and pass
appropriate orders thereon, but, of course, after the petitioner
complying with the conditions now prescribed by the Kerala Minor
Mineral Concession (Amendment) Rules, 2009.
13. I am also of the opinion that the Government should
constitute an expert committee in the lines of the District
Development Committee prescribed by the Kerala Protection of River
Banks and Regulation of Removal of Sand Act, 2001 so as to consider
the question of regulating mining of ordinary sand in specified areas.
Such a committee shall be constituted for Thiruvananthapuram and
that committee should consider the question as to whether on a long
term basis there should be an appropriate regulation regarding
mining of sand. The Government would also do well to incorporate
appropriate amendments in the Kerala Minor Mineral Concession
Rules in line with the Kerala Protection of River Banks and
Regulation of Removal of Sand Act, 2001 in regard to appointment of
committees to consider regulation of mining of ordinary sand.
14. Before parting with the case, I wish to record my
appreciation of the efforts put in by the learned Government Pleader
appearing in this case, Smt. N.Sudhadevi, in assisting the Court, by
conducting research and seeing that an appropriate counter affidavit
W.P.C. No. 9015/2007 -: 17 :-
is placed on record and relevant data is supplied for rendering this
judgment.
The writ petition is disposed of as above.
S. Siri Jagan, Judge.
Tds/
