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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, J.
Muhammad Bappu @ Muhammad S/o Unnimamu – Petitioner
Versus
The Senior Geologist District Office, Department of Mining and Geology – Respondent
WP (C) No. 6526 of 2020
Decided On : 12-03-2020
Environment (Protection) Act, 1986;; The Kerala Minor Mineral Concession Rules, 2015- Rule 14(2)- The total plinth area is less than the threshold limit of 20,000 sq. m. then environmental clearance is not required- The activity of excavation, which is only incidental to the main activity of building construction, cannot be said to be an activity which would predominantly fall within the realm of commercial mining of minor minerals as conceived in the Kerala Minor Mineral Concession Rules, 2015.
Statement of facts:
The petitioner has secured Ext.P1 building permit issued by Kozhikode Municipal Corporation for constructing a commercial building having a total plinth area of 15184.3 sq. m. -Extension of environmental clearance-For carrying out the building construction activities in pursuance to the building permit, the petitioner has to excavate the soil. Further that, Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 stipulates that notwithstanding anything contained in sub-rule (1) thereof, no quarrying permit is required under those Rules for extraction of ordinary earth in connection with construction of residential buildings including flats or commercial buildings having a plinth area of 300 sq. m. if the owner of the land has obtained a prior valid permit for construction of the such building from the Local Self Government authorities concerned-In W.P. (C) No. 4323/2020, this Court has directed that since the total plinth area covered by Ext.P1 building permit in this case does not exceed the threshold limit of 20,000/- sq. m. the petitioner does not require the environmental clearance for carrying out the building construction activities as well as the incidental earth excavation activities- Now, the 1st respondent, District Geologist has issued the impugned Ext.P6 proceedings dated 24.02.2020 directing that the petitioner should necessarily produce no objection certificate (NOC) from the PWD authorities as well as the nearby land owners, who have properties within 50 metres from the building site.
Finding of the court:
The 1st respondent-Geologist can certainly impose restrictions, if he finds it necessary, that the earth excavation work should be carried out by the petitioner in such a manner so as not to cause any danger or damage to the nearby property owners as well as to the adjoining PWD road. For that purpose, the 1st respondent-Geologist will be at liberty to insist that the earth excavation work may be supervised by a competent Engineer of the Public Works Department or the Local Self Government Department like the Assistant Executive Engineer (Civil) or Assistant Executive Engineer (Civil) to ensure that the excavation work is carried out by the petitioner carefully and without causing any damage or danger to the PWD road or to the nearby property owners.
Result: W.P. (C) will stand disposed of.
JUDGMENT :
ALEXANDER THOMAS, J.
1. The case set up in the W.P. (C) is as follows:
That the petitioner and his son together has been issued with Exhibit P1 building permit. On the bona-fide belief that the petitioner requires Environmental Clearance for the removal of ordinary earth for the construction of the building for which Exhibit P1 building permit was issued, the petitioner applied for the same and obtained Exhibit P3 Environmental Clearnace. Since the validity of Exhibit P3 expired on 15.11.2019, the petitioner made an application for extension of Environmental clearance. The petitioner also submitted Exhibit P4 application before the 1st respondent for quarrying permit to excavate ordinary earth for the construction of the building under Rule 14 of Kerala Minor Mineral Concession Rules, 2015. However, the 1st respondent is insisting for Environmental Clearance from the State Environment Impact Assessment Authority for granting quarrying permit which is not necessary in light of decision in Sivaraman's case 2020 (1) KLT 375. The petitioner filed W.P. (C) No. 4323 of 2020 before this Court for a direction to the 1st respondent to issue quarrying permit without insisting for environmental clearance. This Court by Exhibit P5 judgment dated 18.2.2020 directed the 1st respondent to consider Exhibit P4 without insisting for environmental clearance. However, the 1st respondent as per Exhibit P6 rejected the application on the ground that there are buildings and PWD Road within 50 metres of the property and hence consent of the adjacent land owners and PWD is necessary.
The petitioner would contend that the insistence in the impugned Ext.P6 order issued by the 1st respondent District Geologist that the petitioner should necessarily produce consent of the neighbouring land owners, who have properties within 50 metres of the petitioner's building site is illegal and arbitrary etc.
2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P. (C) with the following prayers:
“(i) Declare that the permit under Rule 14 of Kerala Minor Mineral Concession Rules, 2015 for the purpose of construction of building has to be issued without insisting the conditions stipulated in Form N.
(ii) Call for the records leading to Exhibit P6 and quash Exhibit P6 by issue of a writ of certiorari, or other writ order or direction.
(iii) Issue a writ of mandamus or other writ, order or direction compelling the 1st respondent to issue quarrying permit in pursuance of Exhibit P4 application for construction of building in connection with Exhibit P1 building permit under Rule 14 of Kerala Minor Mineral Concession Rules, 2015 without insisting any conditions.
(iv) Issue such other writ order or direction as may be necessary in the interest of justice.”
3. Heard Sri. S. Sreekumar, learned senior counsel instructed by Sri. P. Martin Jose, learned counsel appearing for the petitioner and Sri. Jestin Mathew, learned Government Pleader appearing for the respondents.
4. In the instant case, it is common ground that the petitioner has secured Ext.P1 building permit issued by Kozhikode Municipal Corporation for constructing a commercial building having a total plinth area of 15184.3 sq. m. According to the petitioner, by way of abundant caution, he had obtained Ext.P3 environmental clearance dated 16.05.2019 issued by the Kerala State Environment Impact Assessment Authority under the provisions of the notifications issued under the Environment (Protection) Act, 1986. But due to various delays, the petitioner could not complete the construction and the validity period of Ext.P3 environment clearance has now expired on 15.11.2019 and though not necessary the petitioner has made an application for extension of environmental clearance. It is well settled now by rulings of this Court including that rendered by the Divisional Bench of this Court in District Geologist vs. Sivaraman, 2020 (1) KLT 375 (DB), where the total plinth area of bui
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