1. Since common issues are involved in these writ petitions, they were heard and disposed of by a common judgment.
W.P.(C)No.13906 of 2018
2. The above writ petition is filed seeking a direction commanding the 2nd respondent District Collector to issue a No Objection Certificate (NOC) to the petitioner in respect of 8.2 hectares of Government puramboke for quarrying operation, which is comprised in Sy.No.729, part of Vagamon Village, Peerumedu Taluk, Idukki District, on the request made as per Ext.P2 application. The petitioner has also sought for a direction not to grant NOC to the 5th respondent on the basis of Ext.P7 application submitted by the 5th respondent. The contention of the petitioner is that the petitioner submitted Ext.P1 application for the issuance of an NOC for quarrying lease in respect of 5 hectares of land. Later, Ext.P2 was submitted, wherein a request was made for the issuance NOC in respect of 10 hectares of land. By Ext.P3, a report was submitted by the 3rd respondent Tahsildar in favour of the petitioner. The grievance of the petitioner is that it is without looking into Ext.P2 application, which is for 10 hectares of land that Ext.P6 decision was taken to grant NOC, limiting to 5 hectares and in the meanwhile the 5th respondent filed an application before the 2nd respondent for the issuance of NOC as per Ext.P7 and it is in the said circumstances that the present writ petition has been filed seeking a direction commanding the 2nd respondent District Collector to issue NOC to the petitioner in respect of 8.2 Hectares of Government Purampoke for quarrying operation and also seeking stay of grant of NOC to the 5th respondent on the basis of Ext.P7 application.
W.P.(C)No.38933 of 2018
3. The above writ petition is filed by a permanent resident of Vagamon Village of Elappara, mainly seeking a direction to the 1st respondent to hear the petitioner while issuing Environmental Clearance Certificate to the 3rd respondent, who is the petitioner in W.P.(C)No.13906 of 2018. The essential contention raised by the petitioner is that Vagamon, being a tourist destination and the area includes 123 villages, which has been declared as ecologically fragile area under the Kasthuriragan report, if quarrying is permitted, will cause serious damage to the environment and ecology of the area. But a memo has been filed seeking permission to withdraw the said writ petition.
W.P.(C)No.40095 of 2018
4. The above writ petition has been filed by the 5th respondent in W.P.(C)No.13906 of 2018 challenging Ext.P6 NOC granted to the petitioner in W.P.(C)No.13906 of 2018, who is the 6th respondent in the present writ petition and for a further direction not to grant any lease of the property comprised in Sy.No.729 of Vagamon Village, without following the procedures contemplated under Law. The essential contention raised by the petitioner is that the 6th respondent has made Ext.P1 application for quarrying lease for 5 hectares of land comprised in Sy.No.729 of Vagamon Village. The petitioner would contend that the 3rd respondent never notified the said land as being available for lease, so as to get public notice regarding the grant of lease of property. Without doing so, the application was immediately processed, and when the petitioner came to know about the same, the petitioner also submitted Ext.P3 request in this regard for the issuance of NOC for granting quarrying lease. The petitioner submits that without considering any of the parameters and without calling for tender, Ext.P6 NOC has been granted in the name of the 6th respondent. It is in the said circumstances that the present writ petition has been filed.
W.P.(C)No.12096 of 2021
5. The above writ petition has been filed by the petitioner in W.P.(C)No.13906 of 2018 challenging Ext.P11, whereby the NOC granted to the petitioner as per Ext.P1 has been cancelled. The petitioner submits that Ext.P1 NOC has been granted after following all the procedures prescribed under the Rules and after obtaining all the requisite reports from the authorities concerned. The petitioner submits that based on the NOC granted, the petitioner has got all the clearances from all the authorities, including SEIAA. While so, by Ext.P11 order, Ext.P1 NOC granted to the petitioner has been cancelled, stating that the same has been issued without complying with the directions issued by the Government and the Land Revenue Commissioner in this regard.
W.P.(C)No.9102 of 2022
6. The above writ petition has been filed by the 5th respondent in W.P.(C)No.13906 of 2018, challenging Ext.P10 order issued by the 5th respondent District Collector, which was issued based on Ext.P1 common interim order passed by this Court, whereby the NOC granted to the 8th respondent was confirmed. The petitioner submits that the said issuance of NOC is without any transparency in dealing with public property and overlooking Ext.P11 Rules in this regard.
7. The contention of the learned counsel appearing for the petitioner in W.P.(C)No.12096 of 2021 is that he had applied for an NOC for conducting quarrying operation and as per Ext.P1, he has been granted the said NOC. Since all the clearances could not be obtained by the petitioner within the time granted in Ext.P1 NOC, extension of time was sought for and the 1st respondent District Collector as per Ext.P4 extended the time limit for submission of environmental clearance and for commencement of quarrying operation for a further period of one year. Going by Clause 21 of Ext.P1, quarrying operation should be started within a period of two years from 10.04.2018 and the same would expire on 10.04.2020 but by Ext.P4, the said period was extended for one year more. While so by Ext.P11 order, the 1st respondent District Collector cancelled Ext.P4 order. It is aggrieved by the same that the present writ petition has been filed.
8. A detailed statement has been filed in W.P.(C)No.12096 of 2021 by the 1st respondent supporting Ext.P11 order, mainly contending that relaxation was granted in the time limit for submission of environmental clearance whereby extending the time fixed as one year by one year more but in the case of the petitioner in Ext.P1 NOC, he was granted two years itself for submission of environmental clearance and without noticing the same, further one year period was granted as per Ext. P4 and it is in the said circumstance, noting the said anomaly that Ext.P11 was issued cancelling Ext.P4 order.
9. Whereas the contention of the petitioner in W.P.(C)No. 9102 of 2022 is that the NOC granted to the petitioner in W.P.(C) No. 12096 of 2021 is without following any transparent process and when Government land is leased out to private individuals, there shall be a public notice and the same cannot be gifted to any person without any transparent process. It is further submitted that the Government has issued Ext.P11 order dated 28.01.2021 stating the procedure for lease of Government land for mining purpose and specifically mandating that it shall be given only by e- auction. Having not done so, the NOC granted to the petitioner in W.P.(C)No.12096 of 2021 is liable to be interfered with.
10. Since WP(C)No.9102 of 2022 is filed challenging Ext.P10 no objection certificate issued in favour of the petitioner in WP(C)No. 12096 of 2021 and seeking a direction to the official respondents not to act upon the said no objection certificate and in WP(C)No. 40095 of 2018, Ext.P6 no objection certificate issued in favour of the petitioner in WP(C) No.12096 of 2021 is under challenge, I am of the view that before considering the validity of Ext.P11 order, challenged in WP(C) No.12096 of 2021, whereby the NOC granted was cancelled, this Court should consider the issue as to whether NOC granted to the petitioner in WP(C) No.12096 of 2021, is valid in law.
11. The learned counsel appearing for the petitioner in WP(C) No. 12096 of 2021, placing reliance on Section 14 of The Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as Act 1957) submits that the provisions of Section 5 to 13 of the Act 1957 shall not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals. Section 13 deals with power of Central Government to make Rules in respect of minerals, and Section 13(2)(c) empowers Central Government to make Rules regarding matters which may be considered when application in respect of the same land are received on the same day. Section 13(2)(d) empowers the Central Government to issue Rules in the matter of the terms, conditions and process of auction by competitive bidding and allotment in respect of coal or lignite. Section 15 deals with the power of State Governments to make Rules in respect of minor minerals. Section 15(1A)(c) mandates that the Rules could be framed regarding the matters which may be considered where applications in respect of the same land are received within the same day. The learned counsel for the petitioner also refers to Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as 'the Rules, 2015'), which has been issued based on the power granted as per Section 15 of the Act, 1957. Rule 27 of the Rules, 2015 deals with application for grant of quarrying lease and Rule 27(2)(d) mandates that a No Objection Certificate be issued by the revenue authorities in case of revenue puramboke lands. Section 31 deals with preferential right of certain persons, which provides that when two or more persons have applied for quarrying lease in respect of the same land, the applicant whose application was received earlier shall have preferential right for the grant of the lease over an applicant whose application was received later. Rule 31 of the Rules 2015 reads as follows:
“31. Preferential right of certain persons.--
(1) Where two or more persons have applied for quarrying lease in respect of the same land the applicant whose application was received earlier shall have preferential right for the grant of the lease over an applicant whose application was received later.
(2) The Government or the competent authority may, for special reasons to be recorded grant a quarrying lease to an applicant whose application was received later in preference to an applicant whose application was received earlier.”
Based on the above said rules, the learned counsel for the petitioner in W.P.(C)No.12096 of 2021 would submit that he has applied first for grant of NOC by the District Collector, for making an application for quarrying lease and admittedly, the petitioner in W.P.(C)No.9102 of 2022 has applied only later. Therefore, it is contended that going by Rule 31, the petitioner in W.P. (C)No.12096 of 2021 will have a preferential right, as his application was received earlier. The learned counsel appearing for the petitioner would further submit that there is no other mandate in the Rule regarding the grant of NOC and for applying for quarrying lease. It is further submitted that procedures for the grant of lease of Government puramboke land by auction came into force only as per Ext.P11 Government Order dated 28.01.2021, produced in W.P.(C)No.9102 of 2022, whereby guidelines was formulated for the grant of NOC for quarrying minerals from Government land, providing for a bidding process for grant of such NOC. The petitioner would submit that the said procedure as per Ext.P11, came much after the application was submitted by the petitioner, inasmuch as Ext.P1 NOC was granted on 10.04.2018, and the provisions of Ext.P11 cannot be applied to the case of the petitioner.
12. It is true that going by the Rules, 2015, especially Rule 31, when two or more persons have applied for a quarrying lease in respect of the same land, the applicant whose application was received earlier shall have a preferential right. No other procedure have been prescribed in the Rules, 2015. The District Collector while issuing Ext.P1 NOC to the petitioner in W.P. (C)No.12096 of 2021, admittedly, was dealing with the Government property for which there should be a transparent procedure to be followed. Here is a case where the petitioner pointed out certain land in a particular area, and sought for a grant of NOC. Petitioner has applied for grant of NOC which is earlier in time. Though preferential right was claimed by the petitioner relying on Rule 31 of the Rules, 2015, I am of the view that an applicant can have a preferential right only when a notification has been issued by the Government / District Collector calling for application for grant of NOC and the applicants pursuant to the said notification apply for the same and the applicant who has submitted the application first will get a preferential right for consideration of the application for grant of NOC for quarrying lease. If such a preferential right is granted to a person like the petitioner claiming seniority in the matter of submission of application, which was admittedly done without any notification calling for such application, definitely it will defeat the interest of other applicants who would have applied for the same. This is a case where no notification is issued and therefore there is no public notice regarding the intention of the Government to grant Government land on lease for quarrying purpose, without which the public or other intending persons who has interest in quarrying granite from the Government land could apply. In such circumstances, only for the reason that petitioner has submitted the application first, cannot claim the benefit of Rule 31 of the Rules 2015 and the contention in this regard cannot be accepted.
13. While granting NOC for quarrying in Government land, the 1st respondent District Collector was dealing with grant of Government largesse and the Government is not free like an ordinary individual, in selecting the recipients for its largesse and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion and if the Government do so, it will lead to discrimination and violates Article 14 of the Constitution of India. The Apex Court in Ramana Dayaram Shetty v. International Airport Authority of India & Ors. [(1979) 3 SCC 489] considered the constitutional obligations on the State when it takes action in exercise of its statutory or executive power and also considered as to whether the State is entitled to deal with its property in any manner it likes or award a contract to any person of its choice, without any constitutional limitations upon it and held in paragraph 11 as follows:
“11. Today the Government, in a welfare State is the regulator and dispenser of special services and provider of a large number of benefits, including jobs contracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufierers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Government and local authorities. Licences are required before one can engage in many kinds of businesses or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and controls hundreds of acres of public land valuable for mining, and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confining / structuring and checking Government discretion in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Professor Reich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733,
"that Government action be based on standards that are not arbitrary or unauthorised."
The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual”.
(underline supplied)
A similar issue was considered by the Apex Court in Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir Through Vigilance Organization & Anr. [(1980) 4 SCC 1], wherein in paragraphs 14 and 15, the Court held as follows:
“14. Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. Such considerations may be that some Directive Principle is sought to be advanced or implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people deserving it or that the person who has ofiered a higher consideration is not otherwise fit to be given the contract or the property. We have referred to these considerations only illustratively, for there may be an infinite variety of considerations which may have to be taken into account by the Government in formulating its policies and it is on a total evaluation of various considerations which have weighed with the Government in taking a particular action, that the Court would have to decide whether the action of the Govt. is reasonable and in public interest. But one basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest because, as we said above, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and therefore the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law. It is imperative in a democracy governed by the rule of law that governmental action must be kept within the limits of the law and if there is any transgression, the Court must be ready to condemn it. It is a matter of historical experience that there is a tendency in every government to assume more and more powers and since it is not an uncommon phenomenon in some countries that the legislative check is getting diluted, it is left to the Court as the only other reviewing authority under the Constitution to be increasingly vigilant to ensure observance with the rule of law and in this task, the court must not flinch or falter. It may be pointed out that this ground of invalidity, namely, that the governmental action is unreasonable or lacking in the quality of public interest, is difierent from that of mala fides though it may, in a given case, furnish evidence of mala fides.
15. The second limitation on the discretion of the Government in grant of largess is in regard to the persons to whom such largesse may be granted. It is now well settled as a result of the decision of this Court in Ramana D. Shetty v. International Airport Authority of India, (AIR 1979 SC 1628) (supra) that the Government is not free, like an ordinary individual, in selecting the recipients for its largesse and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion. The law is now well established that the Government need not deal with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure. Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with some standard or norm which is not arbitrary, irrational or irrelevant. The governmental action must not be arbitrary or capricious, but must be based on some principle which meet the test of reason and relevance. This rule was enunciated by the Court as a rule of administrative law and it was also validated by the Court as an emanation flowing directly from the doctrine of equality embodied in Art.14. The Court referred to the activist magnitude of Art.14 as evolved in E. P. Royappa v. State of Tamil Nadu (AIR 1974 SC 555) (supra) and Maneka Gandhi's case (AIR 1978 SC 597) (supra) and observed that it must follow "as a necessary corollary from the principle of equality enshrined in Art.14 that though the State is entitled to refuse to enter into relationship with anyone, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principle which meets the test of reasonableness and non discrimination and any departure from such standard or principle would be invalid unless it can be supported or justified on some rational and non discriminatory ground". This decision has reafiirmed the principle of reasonableness and non arbitrariness in governmental action which lies at the core of our entire constitutional scheme and structure.'
(underline supplied)
In the light of the above, the 1st respondent, District Collector, while issuing NOC for conducting quarry in Government puramboke land, should have devised a proper procedure giving public notice regarding the intention of the Government to permit quarrying operation in Government puramboke land. In the present case, without following any such procedure, NOC has been granted on the mere asking, which is absolutely arbitrary and unjust and a clear violation of the principles enumerated by the Apex Court in the above-quoted judgments. It is in the said circumstance that Ext.P11 Government Order dated 28.01.2021 produced in WP(C)No.9102 of 2022 was issued, whereby guidelines was formulated for the grant of NOC for quarrying minerals from the Government land, providing for a bidding process for the grant of NOC. Therefore, I am of the opinion that the NOC granted in favour of the petitioner in WP(C)No.12096 of 2021 being one issued without following any procedure, is liable to be set aside and the same is accordingly set aside. Consequently, I uphold Ext.P11 order in WP(C)No.12096 of 2021 since I have already found that the grant of NOC itself was without following any procedures. It is also made clear that the petitioner in WP(C)No.13906 of 2018 also cannot act on Ext.P9 NOC granted in his favour since the same was also issued without following any procedures as stated above, and the same is also set aside.
14. Yet another aspect to be noted is that the application for issuance of NOC is sought for conducting quarrying operation in Government puramboke land comprised in Survey No. 729, which is in Vagamon Village, Peerumade Taluk, Idukki District. Vagamon is a peaceful hill station located in the Western Ghats at an altitude of about 1,100 meters above sea level. Because of its height, the area has a cool and pleasant climate throughout the year. It is known for its rolling green meadows, rocky hills, valleys, and misty atmosphere, which have earned it the nickname “Scotland of Asia.” The region receives heavy monsoon rains and supports rich biodiversity and plantations. Over time, Vagamon has developed into a well-known tourist destination due to its natural beauty. It has also received international recognition, including being featured by National Geographic Traveler as one of the must-visit places in India.
15. The Apex Court in M.C. Mehta v. Kamal Nath and Others[(1997) 1 SCC 388] has held that common properties such as rivers, seashore, forests and the air are held by Government in trusteeship for the free and unimpeded use of the general public, importing the Doctrine of Public Trust as follows:-
“24. The ancient Roman Empire developed a legal theory known as the “Doctrine of the Public Trust”. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about “the environment” bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullious) or by every one in common (res communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the efiect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan — proponent of the Modern Public Trust Doctrine — in an erudite article “Public Trust Doctrine in Natural Resource Law : Efiective Judicial Intervention”, Michigan Law Review, Vol. 68, Part 1 p. 473, has given the historical background of the Public Trust Doctrine as under:
“The source of modern public trust law is found in a concept that received much attention in Roman and English law — the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized. First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties — such as the seashore, highways, and running water — ‘perpetual use was dedicated to the public’, it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government.”
25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:
“Three types of restrictions on governmental authority are often thought to be imposed by the public trust : first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses.”
26. The American law on the subject is primarily based on the decision of the United States Supreme Court in Illinois Central Railroad Co. v. People of the State of Illinois [146 US 387 : 36 L Ed 1018 (1892)] . In the year 1869 the Illinois Legislature made a substantial grant of submerged lands — a mile strip along the shores of Lake Michigan extending one mile out from the shoreline — to the Illinois Central Railroad. In 1873, the Legislature changed its mind and repealed the 1869 grant. The State of Illinois sued to quit title. The Court while accepting the stand of the State of Illinois held that the title of the State in the land in dispute was a title difierent in character from that which the State held in lands intended for sale. It was difierent from the title which the United States held in public lands which were open to pre- emption and sale. It was a title held in trust — for the people of the State that they may enjoy the navigation of the water, carry on commerce over them and have liberty of fishing therein free from obstruction or interference of private parties. The abdication of the general control of the State over lands in dispute was not consistent with the exercise of the trust which required the Government of the State to preserve such waters for the use of the public. According to Professor Sax the Court in Illinois Central [146 US 387 : 36 L Ed 1018 (1892)] “articulated a principle that has become the central substantive thought in public trust litigation. When a State holds a resource which is available for the free use of the general public, a court will look with considerable scepticism upon any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject public uses to the self-interest of private parties”.
xxx xxx xxx
32. We may at this stage refer to the judgment of the Supreme Court of California in National Audubon Society v. Superior Court of Alpine County [33 Cal 3d 419] . The case is popularly known as “the Mono Lake case”. Mono Lake is the second largest lake in California. The lake is saline. It contains no fish but supports a large population of brine shrimp which feed vast numbers of nesting and migrating birds. Islands in the lake protect a large breeding colony of California gulls, and the lake itself serves as a haven on the migration route for thousands of birds. Towers and spires of tura (sic) on the north and south shores are matters of geological interest and a tourist attraction. In 1940, the Division of Water Resources granted the Department of Water and Power of the City of Los Angeles a permit to appropriate virtually the entire flow of 4 of the 5 streams flowing into the lake. As a result of these diversions, the level of the lake dropped, the surface area diminished, the gulls were abandoning the lake and the scenic beauty and the ecological values of Mono Lake were imperilled. The plaintifis environmentalist — using the public trust doctrine — filed a law suit against Los Angeles Water Diversions. The case eventually came to the California Supreme Court, on a Federal Trial Judge's request for clarification of the State's public trust doctrine. The Court explained the concept of public trust doctrine in the following words:
“‘By the law of nature these things are common to mankind — the air, running water, the sea and consequently the shores of the sea.’ (Institutes of Justinian 2.1.1) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns ‘all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people”.
The Court explained the purpose of the public trust as under:
“The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways. As we observed in Marks v. Whitney [6 Cal 3d 251] , ‘[public trust easements (were) traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the State, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. We went on, however, to hold that the traditional triad of uses — navigation, commerce and fishing — did not limit the public interest in the trustres. In language of special importance to the present setting, we stated that ‘[t]he public uses to which tidelands are subject are sufiiciently flexible to encompass changing public needs. In administering the trust the State is not burdened with an outmoded classification favouring one mode of utilization over another. There is a growing public recognition that one of the important public uses of the tidelands — a use encompassed within the tidelands trust — is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favourably afiect the scenery and climate of the area.’
Mono Lake is a navigable waterway. It supports a small local industry which harvests brine shrimp for sale as fish food, which endeavour probably qualifies the lake as a ‘fishery’ under the traditional public trust cases. The principal values plaintifis seek to protect, however, are recreational and ecological — the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Under Marks v. Whitney [6 Cal 3d 251] , it is clear that protection of these values is among the purposes of the public trust.”
The Court summed up the powers of the State as trustee in the following words:
“Thus, the public trust is more than an afiirmation of State power to use public property for public purposes. It is an afiirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust….”
The Supreme Court of California, inter alia, reached the following conclusion: “The State has an afiirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. Just as the history of this State shows that appropriation may be necessary for efiicient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust interests. (See Johnson, 14 U.C. Davis L. Rev. 233, 256-57/; Robie, Some Reflections on Environmental Considerations in Water Rights Administration, 2 Ecology L.Q. 695, 710-711 (1972); Comment, 33 Hastings L.J. 653, 654.) As a matter of practical necessity the State may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the State must bear in mind its duty as trustee to consider the efiect of the taking on the public trust (see United Plainsmen v. N.D. State Water Cons. Comm'n [247 NW 2d 457 (ND 1976)] at pp. 462-463, and to preserve, so far as consistent with the public interest, the uses protected by the trust.”
The Court finally came to the conclusion that the plaintifis could rely on the public trust doctrine in seeking reconsideration of the allocation of the waters of the Mono basin.
xxx xxx xxx
34. Our legal system — based on English common law — includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.”
(Underline supplied)
The Apex Court in M.C.Mehta v. Union of India and Others [(2004) 12 SCC 118] has considered the rival claims of right to enjoyment of pollution free water and air are guaranteed by the Constitution and the need for development activity and held that a balance has to be struck between development and protection of the environment and in case of doubt, environmental concern takes precedence over economic interest. Paragraphs 45, 46, 47 and 48 of the above said judgment are extracted below:
“45. The natural sources of air, water and soil cannot be utilized if the utilization results in irreversible damage to environments. There has been accelerated degradation of environment primarily on account of lack of efiective enforcement of environmental laws and non-compliance of the statutory norms. This Court has repeatedly said that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to of enjoyment of pollution-free water and air for full enjoyment of life. (See Subhash Kumar v. State of Bihar[AIR 1991 SC 420].
46. Further, by Forty-second Constitutional Amendment, Article 48-A was inserted in the Constitution in Part IV stipulating that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Article 51A, inter alia, provides that it shall be the duty of every citizen of India to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creatures. Article 47 which provides that it shall be the duty of the State to raise the level of nutrition and the standard of living and to improve public health is also relevant in this connection. The most vital necessities, namely, air, water and soil, having regard to right of life under Article 21 cannot be permitted to be misused and polluted so as to reduce the quality of life of others. Having regard to the right of the community at large it is permissible to encourage the participation of Amicus Curiae, the appointment of experts and the appointments of monitory committees. The approach of the Court has to be liberal towards ensuring social justice and protection of human rights. In M.C. Mehta v. Union of India[(1987) 4 SCC 463], this Court held that life, public health and ecology has priority over unemployment and loss of revenue. The definition of 'sustainable development' which Brundtland gave more than 3 decades back still holds good. The phrase covers the development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. In Narmada Bachao Andolan v. Union of India & Ors.[(2000) 10 SCC 664], this Court observed that sustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's " test. [See Chairman Barton : The Status of the Precautionary Principle in Australia : (Vol. 22) (1998) (Harv. Envtt. Law Review, p. 509 at p.549-A) as in AP Pollution Control Board vs. Prof.M.V. Nayudu (Retd) & Ors [(1999) 2 SCC 718].
47. The mining operation is hazardous in nature. It impairs ecology and people's right of natural resources. The entire process of setting up and functioning of mining operation require utmost good faith and honesty on the part of the intending entrepreneur. For carrying on any mining activity close to township which has tendency to degrade environment and are likely to efiect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that public and all those concerned including authorities may decide whether the permission can at all be granted for carrying on mining activity. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by such entrepreneurs. When questioned, the regulatory authorities have to show that the said authorities acted in the manner enjoined upon them. Where the regulatory authorities, either connive or act negligently by not taking prompt action to prevent, avoid or control the damage to environment, natural resources and peoples' life, health and property, the principles of accountability for restoration and compensation have to be applied.
48. Development and the protection of environments are not enemies. If without degrading the environment or minimising adverse efiects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, in that eventuality, the development has to go on because one cannot lose sight of the need for development of industries, irrigation resources and power projects etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. We may note that to stall fast the depletion of forest, series of orders have been passed by this Court in T.N. Godavarman's case regulating the felling of trees in all the forests in the country. Principle 15 of Rio Conference of 1992 relating to the applicability of precautionary principle which stipulates that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing efiective measures to prevent environmental degradation is also required to be kept in view. In such matters, many a times, the option to be adopted is not very easy or in a straight jacket. If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be irreparable damage to economic interest. In case of doubt, however, protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment.”
(Underline supplied)
The Apex Court in the judgment cited Supra has also held that the harm to the environment could be prevented even on a reasonable suspicion and it is always not necessary that there should be direct evidence of harm to the environment.
16. Since Vagamon is a land of pristine beauty and a hot spot for biodiversity and is a major tourist destination of the country, a specific query was put to the Government to explain the stand of the Government in such matters, the learned Government Pleader has come up with instructions from the Government, which has been produced along with a memo dated 25.11.2025, wherein the Government in the Revenue Department has considered the matter and has called for a report from the land revenue commissioner and it was reported that as per the vigilance report of the Central Vigilance Zone Deputy Collector, submitted as per No.976/V2/IDY/2020 dated 01.01.2021, if quarrying is done in the said area, there will be a threat to the life and property of the local people, agriculture, and domestic animals affecting the environmental stability of the region and it will also pose a threat to the transportation through Kaichundi- Upputhara road and Kaichundi-Kottamala Road and it is reported that the Government in the Revenue Department endorses the above report and since the Vagamon area is a tourist hotspot, the opinion of the Environment Department and Tourism Department is also necessary and their remarks is also obtained. True copy of the communication dated 03.11.2025 produced along with memo is extracted below:
“GOVERNMENT OF KERALA
Revenue (PA) Department
03-11-2025,Thiruvananthapuram
No. PA1/36/2025-REV
Phone: 0471 251 8103
E-mail: revehuepa8103@gmail.com
From
Secretary to Government
To
Advocate General Kerala,
Ernakulam
Sir,
Sub: Revenue Department- WP(C) No. 9102/2022 filed by Karuvakunnel Enterprises before the Hon'ble High Court of Kerala- Government view forwarding- reg
Ref: 1..WP(C) No. 9102/2022 filed by Karuvakunnel Enterprises before the Hon'ble High Court of Kerala
2. Letter no. H4-WPC No. 9102/2022 dated 27.10.2025 from AG Ofiice.
3. letter no. LR/2134/2025-LR(K3) dt 1.11.2025, of the Land Revenue Commissioner.
Inviting attention to the reference cited, | am to inform you the following instructions in respect of the WP(C) No. 9102/2022 filed by Karuvakunnel Enterprises before the Hon'ble High Court.
The petitioner, Karuvakunnel Enterprise, represented by its Managing Partner, Paul Mathew, filed this petition with a prayer to quash the NOC given to Sri, Anish Abraham, for obtaining a quarrying lease for an extent of 4.990 hectares of puramboke land comprised in survey no. 729/pt of Vagamon village in Peermade Taluk by District Collector, Idukki.
Since the Hon'ble Court has expressed serious apprehension in respect of the granting of NOC /Permissions to conduct quarrying operations in Vagamon and Munnar area, which are admittedly tourism hot spots of Kerala and the Government's view on this matter has been called for by the Hon'ble Court, Government have examined the matter in detail through the Land Revenue Commissioner.
The Land Revenue Commissioner has reported that as per the vigilance report of the Central Zone Vigilance Deputy Collector submitted vide No. 976/V2/IDY/2020 dated 01.01.2021, if quarrying is done in the said area, there will be a threat to the life and property of the local people, agriculture, and domestic animals, afiecting the environmental stability of the region. It also poses a threat to the transportation through Kaichundi-Upputhara Road and Kaichundi-Kottamala Road.
Therefore, Government in Revenue Dept is also endorse the above report. Further it is also to inform that since the Vagamon area is a tourist hotspot, the opinion of the Environment Department and Tourism Department also seems necessary in the matter. Therefore after obtaining their remarks detailed instructions will be furnished separately.
In the circumstances, based on the above details, | am directed to request you to take necessary steps to defend the case properly for and on behalf of the Government, hearing.”
(Underline supplied)
The learned Government pleader has also produced copy of the report submitted by the Director, Department of Tourism, Kerala, wherein it is reported as follows:
“Kind attention is invited. With reference to the WP(C)No.9102/20222/H4 filed by Karuvakkunnel Enterprises the following instructions regrading the stand of Government in permitting mining operations in the Vagamon area- a major tourism hotspots of Kerala are detailed below,
Vagamon is a popular tourist destination in Idukki District of Kerala. Mining in this area causes serious threat to the local ecosystem and tourism industry as detailed below,
Environmental Destruction: Mining can lead to deforestation, soil erosion, and water pollution, causing irreversible damage to the fragile ecosystem of Vagamon. The destruction of natural habitats can also lead to the loss of biodiversity, including endemic and rare plant species.
Threat to tourism: Mining will destroy the natural beauty of Vagamon and deter tourists from visiting the area. The bald hills, meadows, and waterfalls of the area are major attractions that are at risk of being irreversibly damaged by mining activities.
Impact on the local community: Mining will also afiect the local community, potentially displacing residents and disrupting their livelihoods. It will also have a significant impact on the tourism industry, which provides employment opportunities to the locals.
Need for Conservation: In order to protect the ecosystem and tourism industry of Vagamon, it is essential to adopt sustainable practices and conservation measures.
Therefore, it is requested that no further mining be allowed in the Vagamon area, which contributes greatly to the tourism sector of Kerala.”
(Underline supplied)
17. From the above, it is without any doubt that the stand of the Government is that if quarrying is done in the said area there will be a threat to the life and property of the local people, agriculture, and domestic animals affecting the environmental stability of the region and that the Government in the Revenue Department endorses the report of the Land Revenue Commissioner in this regard. The Government, taking note of the fact that Vagamon area is a tourist hotspot, the opinion of the Environment Department and Tourism Department, were also called for and the Tourism Department has submitted a report, which is extracted above, requesting that no further mining be allowed in the Vagamon area, which contributes greatly to the tourism sector of Kerala.
In light of the above facts and circumstances, there will be a further direction to the Government (respondents 1 and 2 in WP(C)No.40095 of 2018) to finalise the proceedings for issuing appropriate order banning any kind of quarrying operation in Vagamon area, in the light of the proceedings dated 03.11.2025 produced along with a memo dated 25.11.2025. Necessary orders in this regard shall be issued by the Government by respondents 1 and 2 in WP(C)No.40095 of 2018 without any delay, at any rate within an outer limit of four months from the date of receipt of copy of the judgment. Till a decision is taken as directed above, the respondents 1 to 5 in WP(C)No.40095 of 2018 shall see that no further permission for mining shall be granted in Vagamon area.
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