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IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, K. BABU, JJ.
K.T.Varghese, S/o. K.V.Thoman – Appellant
Versus
M.O.Paul, S/o. M.P.Ouseph – Respondent
WA NO. 644 of 2021
Decided on : 08-06-2021
Constitution of India, 1950 – Article 226 – Irrigation Act – section 40 – Kerala Minor Mineral Concession Rules, 1967 – Rule 29 – Mines and Minerals (Development and Regulation) Act, 1957 – section 4A, 4 to 13, 14 – Conduct of quarrying operations – Failure of lessee to operate quarry – Quarrying operations carried on by the 7th respondent were challenged by the appellants. – Single Judge rejected the challenge, against which this appeal is preferred. – Challenges raised in the writ petition were under three heads. – They were (i) the lease had lapsed on account of the failure of the lessee to operate the quarry within the time prescribed under the Rules, (ii) the conduct of quarrying operations without an environmental clearance certificate was impermissible, and (iii) written permission from the Kerala Water Authority, had not been obtained. – As mentioned above, by the impugned judgment, the learned Single Judge rejected all the aforesaid contentions, resulting in this appeal.
Finding of the court: As per section 40(2) of the Irrigation Act, written permission is required from the Irrigation Officer, if a person conducts mining or quarrying operations using explosives within a radius of 1 km from any bridge, dams, check dams or any other work, structure or construction owned, controlled and maintained by the Government, a local authority or any other authority. – Question as to whether a water tank belonging to the Kerala Water Authority would be covered under the Irrigation Act and whether the decision in Sobin's Case (supra) requires reconsideration in view of the nature and object of the irrigation Act being solely for irrigation purposes apart from the question as to the sanctity of the permission that can be granted by an irrigation officer when the tank is maintained by the water authority, are all matters on which court need not vex our mind in the instant case, as those will only be academic in the present case. – As rightly observed by the learned Single Judge, in the instant case, there is a total lack of pleadings in respect of the distance or the existence of the water tank from the area of lease. – Even though counsel for the appellants invited court attention to paragraph 3 of the writ petition, as well as ground D, to impress upon the availability of pleadings, court find that, except for bald and vague averments, the writ petition falls woefully short of the necessary pleadings to invite a finding on the said question, especially under Article 226 of the Constitution of India. – Court also bear in mind at this juncture, that, at the time of grant of the mining lease the Geologist had not directed the leaseholder to obtain written permission. – Distance of the alleged water tank from the lease area has not been specified and further no such objection has ever been raised by the Irrigation Officer also. – Court agree with single Judge that the averments in the writ petition are vague and insufficient to justify consideration of the contentions raised by the learned counsel based on section 40 of the Irrigation Act – If existence of a water tank as alleged, comes within the statutory prescription of section 40(2) of the Irrigation Act and the distance prescribed therein, as the law now prevails, the leaseholders are bound to obtain appropriate permissions from the officer concerned. – Since court affirm the finding of the Single Judge on this issue solely on the ground of absence of pleadings, the question relating to the requirement to obtain permission from the officer concerned is left open for consideration as and when the occasion arises in appropriate proceedings – Court find no merit in the above appeal
Result: Appeal Dismissed
JUDGMENT :
Bechu Kurian Thomas, J.
The quarrying operations carried on by the 7th respondent were challenged by the appellants. The learned Single Judge rejected the challenge, against which this appeal is preferred.
2. Challenges raised in the writ petition were under three heads. They were (i) the lease had lapsed on account of the failure of the lessee to operate the quarry within the time prescribed under the Rules, (ii) the conduct of quarrying operations without an environmental clearance certificate was impermissible, and (iii) written permission from the Kerala Water Authority, had not been obtained. As mentioned above, by the impugned judgment, the learned Single Judge rejected all the aforesaid contentions, resulting in this appeal.
3. It was pleaded in the writ petition as well as in this appeal that the 3rd appellant is an association formed to consolidate and strengthen the agitation against illegal mining and that the individual appellants are locals who are affected by the mining activities. It was stated that a lease was issued in favour of one Sri.Joemon Joseph in the year 2011 by ignoring the objections and objectionable structures within the vicinity. After the death of the original lessee, his wife-the 7th respondent obtained transfer of the lease into her name and thereafter obtained other licenses to conduct quarrying operations. It was also alleged that, albeit the presence of many residential houses, an irrigation canal, and a huge water tank of the Kerala Water Authority, located near the land, the quarrying lease was issued to the 7th respondent, illegally.
4. The counter affidavit of the 4th respondent-Geologist, pointed out that a movement permit was issued to the original lessee Sri.Jomon Joseph on 1-08-2013 for removing 20,000 metric tonnes of granite building stones and that the said person had operated the quarry in 2013. It was further stated that since the lease was issued in 2011, environmental clearance was required only at the stage of renewal. It was affirmed that all statutory distance criteria contemplated under the Rules were satisfied and that the water tank was also beyond the stipulated distance from the quarrying area. It was also mentioned that the mining plan submitted by the 7th respondent was approved on 06-03-2019, and that the movement permit was issued to the 7th respondent on 09-09-2020.
5. The 7th respondent in her counter-affidavit stated that originally the lease was issued to her husband on 22-12-2011 which was valid for 12 years and the same having been issued prior to 18-05-2012, environmental clearance certificate was not required. It was pleaded that the said issue was considered earlier by this Court in Ext.R7(a) judgment and it was thereafter that directions were given to consider the application for grant of license without insisting on the environmental clearance, pursuant to which license was issued. It was also pointed out that the mining operations had commenced in 2013 itself and hence the lease had not lapsed.
6. We heard Adv. Abdul Jawad K. for the appellants. We also heard the learned Government Pleader Adv. Surin George Ipe for respondents 1 to 5, Adv. Gopinadhan, the learned Standing Counsel for the 6th respondent and Adv. Babu S. Nair, for the 7th respondent. The contentions raised in the writ petition were repeated by the learned counsel for the appellant with added vigour and we shall deal with each of them, one by one.
(i) Lapse of lease:
7. The primary contention of the learned counsel for the appellants was that the lease had lapsed under section 4A(4) of the Mines and Minerals (Development and Regulation) Act, 1957, read with Rule 29(1)(g) of the Kerala Minor Mineral Concession Rules, 1967, due to the failure to commence mining operations within the time prescribed and that it had also lapsed due to discontinuance of mining operations for two years.
8. To appreciate the afore contentions, it is necessary to have a glance at the relevant provisions of law. S
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