Ashok Bhushan, Actg. C.J.
1. The above four writ petitions praying for police protection had been heard together and are being decided by this common judgment.
2. First two writ petitions have been filed by petitioners who are owners of lorries which are hired by quarry owners for the purpose of transportation of rocks and other materials from the quarry site. Third and fourth writ petitions have been filed by the petitioners who themselves are quarry owners quarrying rocks and other materials which are being transported by lorries. The facts of W.P. (C) No. 8672 of 2014 are noted in detail, which shall be sufficient for deciding all these writ petitions.
3. W.P. (C) No. 8672 of 2014 has been filed by three petitioners who claimed to be members of All Kerala Lorry Owners Association. Second petitioner claims to be the President of the Association. The Association owns several lorries which have been hired by various people including the quarry owners situated in Mookkunnimala, Thiruvananthapuram. There are only two access roads to reach Mookkunnimala; they are Edakode-Mookkunnimala and Malayam-Mookkunnimala. Objections were raised, by the people residing nearby the quarries, against the operation of quarries as well as transportation of quarried materials by lorries. Respondents 4 to 6 in W.P. (C) No. 8672 of 2014 have raised protest with regard to the movement of lorries through the public road. Protest of respondents were both against the operation of quarries as well as plying of lorries on the two roads leading to quarries at Mookkunnimala. Petitioners submitted a compliant on 15.01.2014 to Sub Inspector of Nemom Police Station, Thiruvananthapuram alleging that lorries are not permitted to enter the quarry site, as the people has obstructed the path of the lorries. Effective police protection for lorries, for transporting through the above roads, was sought for in the complaint. Another complaint was submitted on 17.03.2014 before the Circle Inspector of Police. Petitioners, thereafter, filed W.P. (C) No. 8672 of 2014 praying for the following reliefs:
"i. Issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 to 3 to afford adequate and effective police protection to the plying of all lorries of the petitioners carrying goods through the Edakode-Mookkunnimala-Malayam road without any obstruction or any other illegal acts from respondents 4 to 6 or anybody acting under or through them.
ii. Issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 to 3 to afford adequate and effective police protection to the life of the drivers of petitioners'' lorries.
iii. Issue such other appropriate writ, order or direction that may be deemed to be just and equitable in the facts and circumstances of the case."
4. W.P. (C) No. 11729 of 2014 has been filed by the sole petitioner, Sri. N. Satheesh Kumar, who claims to be the owner of several lorries plying for quarries at Mookkunnimala through the above mentioned two roads. Alleging obstruction by respondents 4 to 7 in the said writ petition, a petition was submitted on 15.04.2014 to the Sub Inspector of Police. Petitioner thereafter filed the writ petition seeking a direction to respondents 1 to 3 to afford adequate and effective police protection for the plying of all the lorries of the petitioner carrying goods through the aforesaid roads.
5. W.P. (C) No. 14206 of 2014 has been filed by Southern Granite Industries, alleging that petitioners have been granted quarry lease dated 30.04.2010 consent to operate the unit by Pollution Control Board has also been referred to including the Panchayat license dated 04.04.2014. Petitioner company claims that they have engaged various lorries for transporting the materials quarried from the site. It is alleged that objectors including respondents 4 to 9 in the said writ petition have blocked the roads and stopped the vehicular movement. A Petition was also submitted by petitioner before Circle Inspector of Police on 27.05.2014. Petitioner filed the writ petition praying for the following reliefs:
"i. Issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 to 3 to afford adequate and effective police protection to the petitioner for the smooth conduct of its quarrying business including plying of all lorries carrying goods through the road leading towards petitioner''s quarrying site without any obstruction or any other illegal acts from respondents 4 to 9 or anybody acting under or through them.
ii. Issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 to 3 to afford adequate and effective police protection to the life of the drivers of Petitioner''s Lorries.
iii. Issue such other appropriate writ, order or direction that may be deemed to be just and equitable in the facts and circumstances of the case."
6. W.P. (C) No. 13617 of 2014 has been filed by another quarry owner who claims to have obtained necessary licenses for mining. It was alleged that people from Ward No. 20 of Pallichal Grama Panchayat have obstructed the vehicular traffic without any justification. Petitioner claims to have filed a complaint to Sub Inspector of Police. Thereafter he filed the writ petition seeking mandamus restraining the private respondents 5 to 8 from preventing free movement of vehicular traffic.
7. In W.P. (C) No. 8672 of 2014 a Division Bench of this Court on 01.04.2014 had passed an order, which is to the following effect:
"Petitioners are only owners of lorries. They say that they are engaged in plying vehicles which are meant for hire and for transport. The real problem is that there are different quarries in an area called Mookkunnimala and there are two access roads through which rubble mined out of these quarries can be moved out. Even the photographs produced by the petitioners show that the lorries may not be few in number. While the petitioners say that the quarry owners have agreed to rectify the PWD road, in the absence of the quarry owners on the array, it is not appropriate to decide on such a matter. The learned Government Pleader says that the ground reality is that the heavy movement of lorries tends to affect the PWD roads. That is a matter which the Government has to consider within its executive wisdom when it decides to give quarry permits. The District Collector and the Commissioner of Police can necessarily find out ways and means to regulate the movements of lorry traffic with least inconvenience to local public. Under such circumstances, it is directed that the learned Government Pleader will ensure that a reasonable solution to the problem is arrived at by the executive and police authorities and placed on record at the earliest. "
8. After the order of this Court dated 01.04.2014, the District Collector/District Magistrate visited the spot himself and met the objectors as well as the quarry owners. It is noticed that local people in the locality have demanded stoppage of entire mining operation in the area by stopping all vehicles used for quarrying purposes. The District Magistrate finding a serious law and order situation, passed an order on 30.04.2014. Following are the directions issued by District Magistrate:
"1) prohibit, thenceforth, the vehicles of all kind used for quarrying purpose, to the quarry site through Arikkadamukku-Edakkodu-Mukkunnimala road, in Pallichal Village of Neyyattinkara Taluk, Thiruvananthapuram District.
2) The order issued by the Tahsildar and Executive Magistrate, Neyyattinkara will continue to be in force until a competent Court finally decides the matter. Subject to partial relaxation of the said existing order thereto, it is ordered that the vehicles carrying drinking water, diesel to the generators for quarry sites and all essential commodities for subsistence of peoples in quarry sites, will be allowed to ply through the said road."
The order of District Magistrate dated 30.04.2014 was extended, until further orders, by order dated 15.05.2014.
9. We have heard Sri. K. Ramakumar, Senior Advocate and Sri. Bechu Kurian Thomas appearing for the petitioners, Sri. P.I. Davis, learned Government Pleader and learned counsel appearing for private respondents in the above writ petitions. We have also perused the records.
10. Learned counsel for the petitioners in support of the writ petition submitted that private respondents have no justification in physically obstructing the movement of lorries which are carrying the quarried material. It is submitted that quarry owners have all necessary licenses for quarrying rocks and other materials and private respondents have no justification to stop the vehicles carrying materials. It is submitted that it is open for the private respondents to raise their grievance before the competent authorities to take appropriate action, if any. However, they are not entitled to take law into their own hands. It is submitted that so far as repair of the road and managing vehicular movement are concerned, that is liability of District Administration and Police Administration. But, in spite of complaints having been submitted to the police authorities, as well as to the District authorities, no police protection has been provided to which petitioners were entitled. It is submitted that as far as the repairs of the roads are concerned, quarry owners themselves have decided to help the local authorities and District Administration for repair of the road. It is submitted that it is the State''s responsibility to ensure that lorries carrying materials from different quarries which are lawfully operating should be allowed a free passage without there being any obstruction from anyone. Petitioners pray for a direction to the police authorities to provide police protection for passing of the lorries carrying the quarry materials without any obstruction.
11. Learned counsel appearing for the private respondents, refuting the submission of the petitioner, submitted that carrying on quarry operation at Mookkunnimala is causing destruction of the hills. It is submitted that public protests have been raised against illegal activities demanding stoppage of quarrying at Mookkunnimala. It is submitted that objection has already been raised by Air Force authorities against the quarrying in the hills. It is submitted that due to quarrying operation, serious threats have been caused to the life and properties of the inhabitants. There is environmental pollution resulting in serious health problems. It is submitted that the land on the Mookkunnimala was assigned for rubber cultivation which is being misused for quarrying operation. It is further stated that quarrying operations in Mookkunnimala are being carried out without getting environmental clearance. Referring to the judgment of the Apex Court in
12. The Government Pleader has brought on record a report dated 24.06.2014 signed by District Collector and District Police Chief in W.P. (C) No. 8672 of 2014 in pursuance of order of this Court dated 01.04.2014 as quoted above. Government Pleader has also brought on record the orders issued by District Magistrate dated 30.04.2014 and 15.05.2014 by an affidavit filed in W.P. (C) No. 8672 of 2014. The detailed report filed by District Magistrate is also produced in W.P. (C) No. 8672 of 2014. The nature of dispute which has been raised in these writ petitions includes the objections and protest raised by the people residing in Mookkunnimala. The District Magistrate in his report has given the details of various quarries which were granted quarrying permits. Details of 16 quarrying leases given in Pallichal Village and details of quarrying permit granted in Pallichal Village numbering 20 have been given in the report. It is stated in the report that majority of the leases are still current, except lease mentioned at Sl. Nos. 1 and 11, whose leases have already come to an end. It is useful to refer to the findings of the District Collector. The District Collector has also mentioned about the impact of quarrying in Mookkunnimala. It is useful to re-produce the findings; A, B, C, D as well as the impact of quarrying in Mookkunnimala which is to the following effect:
"A. No doubt there is a massive impact leading to environmental degradation due to the large scale quarrying activities. The operations which are said to have started some 30 years ago using the traditional methods have now developed into a major industry with investments of multi-crore rupees and industrial level quarrying using heavy duty machineries and explosives. Several hundreds of locals are dependent on this.
B. The road between Arikkada-Edakkode-Mookkunnimala is thickly populated. Most of the stretches are narrow to accommodate two tipper lorries going in the opposite directions. A small culvert known as ''Channel Palam'' over an irrigation canal is too narrow to permit one way traffic. The absence of a walk way on the sides of the culvert, without any barricade on the sides, creates a life threatening situation. In several locations, especially like the one near Jaihind Grandhashala, where the road is steep, the exhaust emissions from fully loaded lorries are blown directly into the households, creating major health problems to the inhabitants. The underground pipelines are broken at several places in the road due to the overweight lorries. In short, the small road cannot accommodate these many lorry traffic and this is one of the major points for dispute.
C. The quarry owners have hired wells, which are dug near the low lying valley of Mookkunnimala near the pond of Kavil Devi Temple and pumps water to the M-Sand plants. This can lead to an ecological disaster as in the case of Plachimada, in the near future itself. The groundwater level will be depleted which will dry out many wells and the plantations uphill.
D. The Government has sanctioned Rs. 87 lakhs under MLA scheme for the repair of roads with proper drains and walkway. In the project, the underground pipelines are also to be replaced. The quarry owners are willing to contribute additionally to the project, but the protesters apprehended that this will further increase the lorry traffic and making their lives more difficult. They are not willing to allow the road construction till an amicable settlement is reached-in this case, stopping of all quarrying operations in the area."
Impact of Quarrying in Mookkunnimala:
Like any project that exploits natural resources, the quarrying at Mookkunnimala also has a great adverse impact on the environment. The Mining and Geological department like elsewhere has not properly assessed the quantity of rocks quarried, since their tools for quantitative assessment are unscientific. This naturally has reduced the revenue due to Government. On the other hand, the availability of the M-sand i.e. the pulverized rock, has impacted in a positive way to bring down the price of river sand in the market. The building industry of Thiruvananthapuram city heavily depend on the rock and sand from Mookkunnimala and stoppage of the quarrying operations will lead to rise in price of these building materials and loss of livelihood of several families dependent on the quarries and construction industry. Such stoppage may also lead to large scale quarrying in other places where the same issues as in Mookkunnimala may come up sooner or later. The quarry owners have invested several crores of rupees on the strength of permits issued by the various departments of the Government in the past. There are also indirect labourers depending on the activities as lorry drivers, loading and unloading workers, building workers etc not only in the area, but also in the city and other parts of the district. As long as the building industry depends on these natural resources, there will be great demand for these materials to be extracted from one place or the other and again results in violations of laws and resultant corruption.
As stated earlier the exploitation of natural resources is having great impact on the environment. It is reported that the apprehensions of the protesting groups and those who wish to see prevention of environmental degradation are genuine. Considering these, there is a requirement of a scientific method of quarrying to be implemented which will not threaten the environment on a larger scale and at the same time, without endangering life and property of the local people. In short, an independent study of a competent team of experts can only come out with a solution to the burning at Mookkunnimala.
13. In his report the District Collector has also mentioned about two options to solve the issue which were to the following effect:
"1. To close down all the quarries in the Mookkunnimala area permanently, without looking into the impact on the construction industry, the investment made by the promoters on the basis of valid permits issued by different agencies and the livelihood of the hundreds of local people in ward number 2 and those indirect labors in the construction Industry.
2. Or alternately, to permit quarrying after taking necessary safeguards on the basis of a study by the competent agency, so that the ecological damage is minimised and the life of the local population living by side of the Arikkada Jn. to Mookkunnimala is unaffected."
14. From the submissions raised by learned counsel for the parties and the materials on record, the main issue which has arisen in these writ petitions is the issue of carrying on mining operation in the Mookkunnimala. The petitioners submit that since the transportation of quarried material is on the basis of valid mining leases and permits, no obstruction can be made, whereas the private respondents and protesters as noted in the report of the District Magistrate had claimed that all mining operations in the Mookkunnimala should be stopped which has endangered the ecology of the hill. The transportation of the mineral is directly linked with the quarrying operation. Obstruction to the transportation of the mineral by vehicle is essentially an objection and protest against the mining operation in the area.
15. In the last few decades great concern has been shown both by international community as well as the Governments towards environmental issues. Several legislations have been enacted by different States as well as the Central Government to combat with the increasing environmental pollution. The Environment (Protection) Act, 1986 has been enacted by the Parliament with the object of protecting the environment and natural resources. The Apex Court, in
"6. Rivers, Forests, Minerals and such other resources constitute a nation''s natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation. It is recognised by Parliament. Parliament has declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals. It has enacted the Mines and Minerals (Regulation and Development) Act, 1957. "
16. A Division Bench of Allahabad High Court, in
"13. The Apex Court recently in
"103. First, few general observations, Minerals-like rivers and forests-are a valuable natural resource, Minerals constitute our national wealth and are vital raw-material for infrastructure, capital goods and basic industries. The conservation, preservation and intelligent utilization of minerals are not only need of the day but are also very important in the interest of mankind and succeeding generations. Management of minerals should be in a way that helps in country''s economic development and which also leaves for future generations to conserve and develop the natural resources of the nation in the best possible way. For proper development of economy and industry, the exploitation of natural resources cannot be permitted indiscriminately; rather nation''s natural wealth has to be used judiciously so that it may not be exhausted within a few years."
14. The natural resources are not only for present generation which is living on the earth rather it is for all future generation. The concern regarding environment degradation is being continuously shown by natural scientists, international organisations and human right activists.
15. The Apex Court in Deepak Kumar''s case (supra) noticed continuous degradation of environment and need to provide a regulatory measure for checking adverse environmental impact of the mining activities. It was noticed by the Apex Court that there was an attempt to flout the notification dated 14/9/2006 by breaking the homogeneous areas into pieces of less than five hectares. The Apex Court noticed that although the mining of major minerals typically undergo environmental impact assessment and environmental clearance procedure, but due attention has not been given to environmental aspects of mining of mineral minerals."
17. Under the Environment (Protection) Act, 1986 for mining in an area of more than 5 Hectares vide notification, dated 14.09.2006, issued in exercise of powers under Section 3 of the Act as well as sub-rule 3 of Rule 5 of the Rules, 1986, a restriction of obtaining prior Environmental clearance on new projects and activities has been provided for. The leases of more than 5 Hectares were covered by schedule to the notification. Thus, for mining leases of lands which have an area of 5 Hectares or more, it was necessary to obtain environmental clearance. In Deepak Kumar''s case(supra) the aforesaid provisions were noticed and it was noted that the provisions of the notification dated 14.09.2006 are attempted to be flouted by breaking homogeneous area into pieces of less than 5 hectares. By the judgment dated 27.02.2012 in Deepak Kumar''s case(supra), the Apex Court issued a direction that even for mining lease of less than 5 hectares area, environmental clearance is required. It is useful to quote paragraph 29 of the judgment, which is to the following effect:
"We, in the meanwhile, order that leases of minor minerals including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from MoEF. Ordered accordingly."
After the judgment of Deepak Kumar''s case(supra) no mining leases can be issued, granted or renewed even for an area less than 5 hectares, without getting environmental clearance from MoEF.
18. Before us in so far as obtaining mining lease after 27.02.2012, even for less than 5 hectares area, no one has doubted the said requirement. The submission which has been pressed before us by the learned counsel for the petitioners is that the judgment of Deepak Kumar''s case(supra) is not applicable with regard to the mining leases which were granted prior to 27.02.2012. It is submitted that the judgment of Deepak Kumar''s case(supra) shall have only prospective operation and it shall not be applicable to the leases which were granted prior to 27.02.2012. On the contrary, learned counsel for private respondents have submitted that even for lease which were obtained prior to Deepak Kumar''s case(supra), environmental clearance has to be obtained. Although the issue as to whether even for mining lease granted prior to Deepak Kumar''s case(supra), i.e. before 27.02.2012, environmental clearance has to be obtained or not, has been raised before us but in view of the following two reasons, we do not proceed to take up the issue in these writ petitions. Firstly, in these writ petitions, State of Kerala is not a party which is a necessary party to have a say on the issue. Secondly, the Notification dated 14.09.2006 has been issued by the Central Government in exercise of powers under the Environment (Protection) Act, 1986 and under the said Notification it is the State Environment Impact Assessment Authority(Kerala) which is entitled to process and grant notification. The State Environment Impact Assessment Authority is also not a party to the writ petition.
19. As noted above, the petitioners in these writ petitions have mainly prayed for police protection for plying of lorries carrying goods through two roads as mentioned above. As noted above, after the orders of this Court dated 01.04.2014 in W.P. (C) No. 8672 of 2014 the District Magistrate, after considering the dispute, has issued an order on 30.04.2014, prohibiting the plying of vehicles of all kinds used for quarrying purpose in exercise of the power under Section 80 of the Kerala Police Act, 2011. As noted above, that order was extended by the District Magistrate on 15.05.2014 until further orders. There is nothing on record nor any submission has been made that said orders have been withdrawn by the District Magistrate. In view of the said restraint order, no direction can be issued to provide police protection to the petitioners by the District Administration. It is also to be noted that in none of the writ petitions there is any challenge to the said order dated 30.04.2014 as extended by order dated 15.05.2014.
20. Sri. Rama Kumar, learned Senior Advocate appearing for the petitioner has vehemently submitted that even if the private respondents have any grievance regarding plying of lorries or quarrying operation, they are not entitled to take law in their hand and create physical obstructions. It is submitted that their remedy was to represent to competent authority to take action, if any. We find sufficient force in the above submissions. No one has right to create physical obstruction in the vehicular movement on public road. Further the objectors objecting running of quarries have to take legal recourse as permissible in law. The objectors have no right to create physical obstructions.
21. However, as noted above, the main dispute between the parties is regarding carrying on the quarrying operation in Mookkunnimala hills. The District Magistrate, while considering the request to relax the order dated 30.04.2014 as extended by order dated 15.05.2014, is required to consider the environmental aspect also. The District Magistrate, in his report dated 24.06.2014 as noted above, has found that quarrying in Mookkunnimala has great adverse impact on the environment. The consequence of the notification dated 14.09.2006 and requirement of obtaining environmental clearance as per the provisions of the Notification are also to be looked into. It is also useful to note that in one of the writ petitions, i.e. W.P. (C) No. 11729 of 2014, the private respondents have brought on record a letter dated 17.05.2014 of the State Environment Impact Assessment Authority(Kerala), by which the District Collector, Thiruvananthapuram has directed that functioning of certain quarries/crushers to be stopped.
22. It is useful to quote the last two paragraphs of the letter dated 17.05.2014 which are to the following effect:
"Hence it is ordered that the functioning of all the quarries/crushers should be IMMEDIATELY STOPPED in the above said area where entry for inspection was denied for Government officials. Your are requested to ensure compliance of it in view of the references cited especially of the orders of the Hon. Supreme Court of India and Hon. NGT.
Further vide G.O. Cited for above, the authority granting the final sanction will be personally responsible for ensuring Environmental Clearance in all cases where such clearance is required. Hence you are also requested to take necessary action, under Section 19 r/w Section 15 of E(P) Act, 1986 in exercise of powers vested with you under E(P) Act, 2006, against the concern, who have, if ever, issued any license/permit finally without ensuring Environmental Clearance(s) and also report the matter to this office."
23. The plying of lorries carrying out the quarried material being directly linked with quarry operation on the strength of mining lease as claimed by quarry owners, the District Administration before taking steps for permitting the plying of lorries have necessarily examine as to whether the quarries from where the lorries are loading material are authorised to quarry the said materials.
In view of the forgoing discussions ends of justice will be served by disposing all the writ petitions in the following manner:
1) The prayer of the petitioners for police protection for plying of lorries carrying materials from the quarry at Mookkunnimala cannot be granted in view of the order of District Collector dated 30.04.2014 as extended by order dated 15.05.2014 at this instant.
2) The District Collector, before modifying the restraint order dated 30.04.2014 as extended by order dated 15.05.2014, shall examine as to whether the quarry owners, for carrying the mining operations, have obtained or liable to obtain environmental clearance certificate as required by notification dated 14.09.2006 issued in exercise of powers under sub-section (2) of Clause (1) of Section 3 of Environment (Protection) Act, 1986 read with Clause 3 of Sub Rule 3 of Rule 5 of Environment (Protection) Rules, 1986.
3) The petitioner shall be entitled to make a request to the Police authorities for police protection for plying the lorries carrying quarried materials only after a decision is taken by the Collector permitting the respective quarry owners to carry on the mining operations.
