P.D. JOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 Sec. 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. 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 Vs. 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.