DISTRICT GEOLOGIST AND ORS. Vs. SIVARAMAN

JUDGEMENT

(1.) Since the issues agitated are identical in both these writ appeals and since the appellants in both the cases are the State Government and its officials in the Department of Mining and Geology, both the writ appeals are considered together and disposed of through this common judgment.

(2.) W.A. No.215/2018 arises out of the judgment in W.P (C) No.32834/2017. The respondent herein approached this court seeking to quash a proceedings issued by the 1st appellant, rejecting his application seeking permission to remove the ordinary sand, for the purpose of construction of a building, for which he had obtained Ext.P1 building permit. When the applications filed by him seeking for issuance of quarrying permit and transit passes were not considered by the 1st appellant, he approached this court on an earlier occasion in a writ petition, W.P (C) No.13289/2017. Through judgment dtd. 11/4/2017, this court directed the 1st appellant to consider and to pass orders on those applications, after hearing the writ petitioner, within three weeks, taking into consideration of the notifications issued by the Ministry of Forest, Environment and Climatic Changes, Government of India, dtd. 15/1/2016 and 19/12/2016. Consequent to the said judgment, the 1st appellant conducted personal hearing and a site inspection. He became convinced that there is no sand stored in the property. On the other hand, the writ petitioner submitted that, removal of sand to the extent of 10 feet depth is necessary for the construction. The 1st appellant rejected the application on the finding that, for allowing the applications the writ petitioner had to produce an 'Environmental Clearance Certificate' from the authority concerned, and also consent letters obtained from the neighbouring residents. It is the said order of the 1st appellant, produced as Ext.P13, was under challenge in the writ petition.

(3.) The learned Single Judge found that an activity of mining for the purpose of construction of building, is regulated under provisions of the Environment Protection Act and the Rules made thereunder, as well as under the Mines and Minerals (Development and Regulation) Act and the Rules made thereunder. It was noted that, through a Notification published by the Government of India, dtd. 14/9/2006 it is made clear that in projects involving building and construction upto an extent of 20,000 M2, it is not required to get prior environment clearance. By extracting provisions contained in Appendix IX (mistakenly noted as XI in the judgment) to the said notification, it was found that, the activity of digging of foundation for building, is exempted from the requirement of getting prior environmental clearance. Learned Single Judge found that, under Rule 14 (2) of the Kerala Minor Mineral Concession Rules, 2015 (for short 'KMMC Rules') quarrying permit is not required for extraction of ordinary earth in connection with construction of any residential building, including flats or commercial buildings, having plinth area upto 300 M2, if a valid permit for the construction is obtained from the local self government authority. Therefore it was found that, in case of buildings having plinth area upto 300M2 , no mining permit is required for the purpose of excavation in connection with foundation of the building, so long as the person holds a valid permit from the local authority. It was further found that, such persons need not obtain any 'Environmental Clearance Certificate' in view of the Notification of the Central Government, which grants exemption in that regard. Taking note of the facts involved, learned Single Judge found that, the writ petitioner possess Ext.P1 building permit and the proposed construction is having only a plinth area of 5336.48 M2. Therefore it was found that the writ petitioner is exempted from the requirement of obtaining prior environmental clearance. It was also found that, nevertheless he has to obtain a mining permit as a pre-condition for commencement of the mining activities. It is only after he commences such activities he can approach the Geologist for getting the transit passes required for transport of the sand excavated. On that basis, the 1st appellant herein was directed to consider and to pass appropriate orders on the application for the mining permit, after verifying as to whether the mining activity proposed is only for construction of foundation of the building, to be constructed in terms of the building permit. The application was directed to be disposed of within a period of two weeks from the date of receipt of a copy of the judgment. It was further directed that, after issuance of the mining permit and after excavation of the foundation, the 1st appellant shall once again visit the premises and shall consider the application for transit passes for the purpose of transporting the mined earth outside to the premises. The same was directed to be done within three weeks from the date of the application. It was specifically directed that, for complying with the above directions, the 1st appellant shall not insist upon any 'Environmental Clearance Certificate' to be produced by the writ petitioner.