At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE AMIT RAWAL
For the Petitioner: P.K. Suresh Kumar, Sr. Advocate, K.P. Sudheer, Anjali Menon, Advocates. For the Respondents: R1-R4, S. Kannan, Government Pleader, R5, Georgekutty Mathew, Advocate.
1. The challenge in the present writ petition is Ext.P9 notice issued by the 4th respondent, whereby the Divisional Forest Officer suo motu restrained from carrying out the minining/quarrying activity purportedly on a land belonging to forest stating that a No Objection Certificate has to be obtained from the Forest Department, where mining is done in a land lying close to forest area.2. Sri.P.K.Suresh Kumar, learned Senior Counsel assisted by Sri. K.P.Sudheer, learned Counsel submitted that by virtue of Ext.P1 lease deed petitioner was given permission to carry out the mining for a period of 12 years with effect from 28.5.2015. For carrying out the aforementioned activity, Ext.P3 permission from the Ministry of Environment and Forests and permission from other authorities as per Exts.P4 to P7 has been taken. As per Ext.P8 the Grama Panchayat has also granted NOC. Based on the above documents and permits petitioner has been running the quarry.3. Learned Counsel for the petitioner submits that Rule 40 (1) (i) of the Kerala Minor Mineral Concession Rules had earlier prescribed for a no objection certificate from the competent authority if the quarrying operation is to be done within 50 meters of a forest land and that Rule has been amended. So it is only in cases where the mining is near a National Park or a Wild Life Sanctuary a permission is required. Immediately on receipt of Ext.P9, another stop memo was issued by the Geologist on account of an enquiry ordered by him. Challenging the same, petitioner submitted a representation before the Minister for Forests, as per Ext.P10. Along with Ext.P10 the petitioner submitted a reply obtained under the Right to Information Act of another Divisional Officer stating that there was no need of any NOC from the forest authorities. The land in question is already assigned in the year 1980 as evident from Annexure R3 (b) and R3(c) accompanied by an affidavit of 3rd respondent.4. Per contra, learned Government Pleader submitted that it would be the domain of the Government to take decision with regard to the location of the quarry and permission to be obtained from the Government, and not from the Divisional Forest Officer in view of Ext.R3(b) and R3 (c).5. Having heard respective Counsel across the Bar, I am of the view that Prima facie, Ext.P9 is not sustainable under law, in view of Exts.R3 (b) and R3 (c).6. Learned Counsel for the petitioner submits that a representation would be submitted before the Government seeking for a direction as to whether the permission of the Divisional Forest Officer is required for continue the mining activity in an assigned land in view of Exts.R3 (b) and R3(c).Accordingly, I quash Ext.P9 and there will be a further direction to the 1st
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respondent, ie. Department of Industries, to consider the position as to whether petitioner can be permitted to carry out the mining activity in an assigned land and also consider any violation thereof under Regulation 164 of Metalferous Regulation,1961 or not.The writ petition is disposed of accordingly.