ALOSIOUS M.A. and others v. District Collector, Ernakulam and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 15789 of 2008(D) -------------------------- PETITIONER(S): ---------------------- 1. ALOSIOUS M.A., S/O. ANNAMMA, AGED 38 YEARS, MUDIYIL HOUSE, MEMADANGU P.O., MUVATTUPUZHA. 2. JAMES JOSEPH, S/O. JOSEPH, AGED 52 YEARS, MANIYATTIL HOUSE, MEMADANGU P.O., MUVATTUPUZHA. 3. K.A. SIVAN, S/O. AZHAKAN, AGED 40 YEARS, KANJEMPURATHU HOUSE,MEMADANGU P.O., MUVATTUPUZHA. 4. SANISH VARGHESE, S/O. VARGHESE, THADATHIL HOUSE, MEMADANGU P.O., MUVATTUPUZHA. 5. BIJU JOHN, S/O. JOHN, AGED 28 YEARS, VELLARAMKUNNEL HOUSE, MEMADANGU P.O., MUVATTUPUZHA. BY ADV. SRI.JOHN JOSEPH(ROY) SRI.LAWRENCE D'CUNHA RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANADU. 2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. 3. THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, CIVIL STATION, KAKKANADU, ERNAKULAM. ## W.P.(C).NO.15789 OF 2008 D ## 4. THE TAHSILDAR, MUVATTUPUZHA TALUK OFFICE, MUVATTUPUZHA. 5. K.G. VELAYUDHAN, KOCHUVELIYIL HOUSE, MEMANGADU P.O.,MUVATTUPUZHA. 6. GEORGE. K. VALLAMATTOM ALIAS KUNJU, MANAGING DIRECTOR, VALLAMATTOM STONE AGRAGATES, MUVATTUPUZHA. ## 7. BABU KURIAKOSE, OLIKUNNEL HOUSE, MEMANGADU P.O., MUVATTUPUZHA. 8. BINOY K.K., KOTTAMATHIL HOUSE, MEMANGADU P.O.,MUVATTUPUZHA. ## 9. SHIBU JOHN, KAKKANATTU HOUSE, MENANGADU P.O., MUVATTUPUZHA. 10. THE VILLAGE OFFICER, ARAKUZHA VILLAGE OFFICE, ARAKUZHA P.O., MUVATTUPUZHA. 11. THE CIRCLE INSPECTOR OF POLICE, MUVATTUPUZHA. R1 TO R4 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMARAN. ADV. SRI.JOBI JOSE KONDODY FOR R5 & 7 SRI.JOHN NUMPELI (JUNIOR) FOR R9 SRI.T.RAJESH FOR R6 GOVERNMENT PLEADER FOR R1 TO 4,10 & 11 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010,ALONG WITH WPC NO. 8022 OF 2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN W.P.(C).NO.15789 OF 2008 D ## PETITIONERS' EXHIBITS: EXT.P1TRUE COPY OF THE REPRESENTATION DATED 8.11.2006 BEFORE THE 2ND RESPONDENT. EXT.P2TRUE COPY OF THE COMPLAINT DATED 18.8.2007 SUBMITTED BEFORE THE DISTRICT COLLECTOR. EXT.P3TRUE COPY OF THE REPRESENTATION DATED 29.9.07. EXT.P4TRUE COPY OF THE NOTICE DATED 3.12.07 FIXING THE DATE OF HEARING TO 19.12.07. EXT.P5TRUE COPY OF THE COMPLAINT DATED 17.4.2008 BEFORE THE 2ND RESPONDENT. EXT.P6TRUE COPY OF THE PAPER REPORT DATED 24.4.2008. EXT.P7TRUE COPY OF THE CERTIFICATE ISSUED FROM THE ARAKUZHA GRAMA PANCHAYATH. EXT.P8TRUE COPY OF THE REPORT DATED 13.01.2010. EXT.P9TRUE COPY OF THE REPORT DATED 13.01.2010 OF THE ARAKUZHA VILLAGE OFFICER. EXT.P10 TRUE COPY OF THE REPORT DATED 08/02/2010 OF THE ARAKUZHA VILLAGE OFFICER. ## RESPONDENTS' EXHIBITS: ANNEXURE R7(A) TRUE COPY OF THE RELEVANT PAGES OF THE CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD TO THE 7TH RESPONDENT DATED 18.11.2008. ANNEXURE R7(B) TRUE COPY OF THE CONSENT TO OPERATE DATED 20.11.2008 ISSUED BY THE POLLUTION CONTROL BOARD TO THE 5TH RESPONDENT. EXT.R7(C) TRUE COPY OF THE QUARRYING PERMIT DATED 28.10.2008 ISSUED BY THE 4TH RESPONDENT TO THE 7TH RESPONDENT. EXT.R7(D) TRUE COPY OF THE QUARRYING PERMIT DATED 17.10.2008 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT. EXT.R7(E) TRUE COPY OF THE AGREEMENT DATED 01.07.2008 ENTERED INTO BETWEEN 7TH RESPONDENT, THE 5TH RESPONDENT AND SRI. N.A. THOMAS. EXT.R7(F) TRUE COPY OF THE MINING MATE CERTIFICATE ISSUED UNDER THE MINES ACT, 1952 TO SRI. N.A. THOMAS, DATED 23.03.1990. EXT.R7(G) TRUE COPY OF THE ORDER DATED 03.07.2003 ISSUED BY THE DEPUTY CONTROLLER OF EXPLOSIVES, CHENNAI TO MR. N.A. THOMAS. EXT.R7(H) TRUE COPY OF THE QUARRYING LEASE EXECUTED BETWEEN MYSELF AND THE GOVERNMENT DATED 09.02.2009. ## W.P.(C).NO.15789 OF 2008 D EXT.R7(I) TRUE COPY OF THE LE-3 LICENCE ISSUED BY THE JOINT CHIEF CONTROLLER OF E3XPLOSIVES IN FAVOUR OF THE 7TH RESPONDENT DATED 03.06.2009. EXT.R7(J) TRUE COPY OF THE QUARRYING PERMIT ISSUED UNDER FORM U BY THE GEOLOGIST, ERNAKULAM TO THE 7TH RESPONDENT DATED 15.02.2010 VALID UP 14.02.2011. EXT.R7(K) TRUE COPY OF THE PANCHAYATH LICENCE ISSUED BY THE ARAKKUZHA GRAMA PANCHATH TO THE 7TH RESPONDENT UNDER SECTION 232 OF THE KERALA PANCHAYATH RAJ ACT DATED 20.05.2010. // TRUE COPY// PS TO JUDGE ## **K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ.** ## **--------------------------------------------------** ## **W.P(C). NOS.15789/2008 D & 8022 OF 2010 C** **--------------------------------------------------Dated this the 13[th] August, 2010** ## **JUDGMENT** ## **K.M. Joseph, J.** These Writ Petitions being connected, they are disposed of by a common Judgment. ## **W.P.(C).NO.15789 OF 2008 D** The prayers in the Writ Petition are as follows: _“(i) Issue a writ of mandamus or any other writ, order or direction to respondents 1 to 4 to ensure that no illegal quarrying is conducted by respondents 5 to 9 at Udumpunchira Rock in Memadangu Village._ _(ii) Issue a writ of prohibition or such other writ, prohibiting all sorts of quarrying at Udumpunchira Government Rock, endangering the life and property of the petitioners and their family members._ _**WPC.15789/08D & 8022/10 C**_ _**2**_ _(iii) Issue a writ of mandamus directing the 3[rd] respondent to quantify the Rock quarried from the disputed rock at Udumpanchira and to recover the Royalty due to the Government from respondents 5 to 9 and from their assets._ _(iv) Issue a writ, directing the 11[th] respondent to ensure that no quarrying is done at Udumpumchira without proper licence and permissions from Statutory Authority.”_ W.P.(C).No.8022 of 2010 C is filed by respondents 6 and 8 in W.P.(C). No.15789/2008 D. Therein, the prayer is as follows: _“Issue a writ of mandamus compelling respondents 1 to 3 to afford adequate protection to the quarrying conducted by the petitioners in Sy.Nos.893/1 and 893/1A/1 of Arakuzha village.”_ ## W.P.(C).NO.15789/2008 D 2. The brief allegations with which the petitioners have approached this Court are as follows: Petitioners are agriculturists and residents of Arakuzha Village of Muvattupuzha Taluk. Petitioner are residing very _**WPC.15789/08D & 8022/10 C**_ _**3**_ near to a vast Government tharisu rock in Memadangu Kara in Arakuzha Village. A public road starting from Memadangu Church Junction to Thottakara is passing through the western boundary of the above rock and hundreds of school children and public are using the road. It is stated that respondents 5 to 9 are conducting quarry in the said rock, to the knowledge of the petitioners, without any licence, permit and authority of the Government in collusion with the Officers who are obtaining weekly unlawful gratification from the quarry operators. Petitioners submitted various representations and complaints. Learned counsel for the petitioners points out that stones are flying and landing in the residential houses of the people in the locality. 3. A newspaper report also is produced. Counter Affidavits are filed to which a Reply Affidavit also is filed. 4. Learned counsel for the petitioners would reiterate his contentions. He would further contend that as on the date of the _**WPC.15789/08D & 8022/10 C**_ _**4**_ filing of the Writ Petition, the party respondents were not possessed of all the lawful permits which are required in law. Learned counsel for the party respondents would, on the other hand, contend that there is no merit in the case of the petitioner. Learned counsel for the petitioner would then submit that after the filing of the Writ Petition, the party respondents have managed to obtain permissions, except the licence under the Explosives Act. To this, learned counsel for respondents 5 and 7 would submit as follows: He would submit that the quarry being run by the 5th respondent was taken over by the 8[th] respondent. As far as the 7[th] respondent is concerned, he has also obtained requisite licence under the Explosives Act which has been originally issued as a Form 22 licence. As of now, licence is being issued as LE-3. He has also got, according to him, mines mate licence for carrying out the blasting operation. Learned counsel for respondents 6 and 8 who are the petitioners in the other Writ _**WPC.15789/08D & 8022/10 C**_ _**5**_ Petition would also submit that respondents 6 and 8 have also got all the licences including which was formerly being issued in form 22. They are produced as Exts.P20 and P22. 5. Learned counsel for the petitioner would then point out the decision of this Court in Rajmohan Nair and Others v. State of Kerala and Others (ILR 1997 (1) Kerla 268). Therein, a learned Single Judge of this Court held as follows: _“In the light of the above provisions, it is clear that the shot firer who has been engaged by the 10[th] respondent is not a competent person to conduct blasting operations in the quarry in question. Ext.R10(u) licence authorises him only to conduct blasting operations using explosives in areas other than mines coming under the purview of the Indian Mines Act, 1952. The limited authorisation granted as per Ext.R10(u) licence issued under the Explosives Act and Rules may not qualify him to act as a shot firer coming under the purview of the Indian Mines Act, 1952. Only a person who is a `Blaster' as defined under rule 2(6) of the Metalliferous Mines Regulations, 1961 will_ _**6**_ _**WPC.15789/08D & 8022/10 C**_ _be competent to use explosives in an area coming within the purview of the Mines Act for blasting purposes.”_ 6. It is in answer to the said contention that the learned counsel for respondents 6 and 8 would contend that the said requirement is also satisfied in the case of respondents 6 and 8 having regard to Exts.P23, P24 and P25. 7. Having heard the learned counsel for the parties, we are of the view that the learned counsel for the petitioners in W.P. (C).No.15789/2008 may not be justified in maintaining as of now that the party respondents are not possessed of lawful permits. Then the learned counsel for the petitioners would point out the Report of the Village Officer. He would submit that there are various safeguards indicated. He submits that those safeguards may be directed to be incorporated and followed by the party respondents, if this Court is inclined to allow it to function. Per contra, learned counsel for respondents 6 & 8 would point out the decisions Exts.P13 and P14. They _**WPC.15789/08D & 8022/10 C**_ _**7**_ would submit that they are prepared to abide strictly by the terms of Exts.P13 and P14. They would also point out that they have obtained the consent to operate from the Pollution Control Board and there are various safeguards and they will necessarily abide by the conditions of all lawful authorities. They would further point out that the petitioners are residing far away and the closest residence is located 130 metres away from the quarry. They would also submit that they will strictly adhere to the requirement as to time, that is to say, they would submit that the quarry will be operated only from 6 AM to 6 PM. It is further pointed out that the safeguards suggested by the Village Officer that they should put up a net may not be practical for them. 8. In such circumstances, we feel that we can dispose of W.P.(C).No.15789 of 2008 D recording the submissions of the learned counsel for respondents 6 and 8 that they will abide by the terms of Exts.P13 and P14 and all other conditions imposed _**WPC.15789/08D & 8022/10 C**_ _**8**_ on them under various licences, permissions, consent issued by the various authorities including the Pollution Control Board. We further direct that in case there is any violation of the same by the party respondents, it is open to the petitioners to bring it to the notice of the concerned authorities who shall look into the same and if the complaint is found to be genuine, take appropriate action in accordance with law. Respondents 5 to 8 can necessarily carry on quarrying only as long as they are possessed of valid licences and permissions as required in law. 9. A decision in W.P.(C).NO.8022 OF 2010 appears to be consequent upon our findings in W.P.(C).No.15789/2008. The fifth respondent in the same, is one of the petitioners in W.P.(C). No.15789/2008. We have already found that respondents 6 and 8 in W.P.(C) No. 15789/08 who are the petitioners in W.P.(C). No.8022/2010 are possessed of all the valid permissions required in law. Of course, learned counsel for the party respondents would point out that an earlier Writ Petition was filed and that was withdrawn upon knowing that the petitioners _**WPC.15789/08D & 8022/10 C**_ _**9**_ will not be getting any orders. According to the petitioners, on the other hand, it was withdrawn only on the ground that mediators had intervened and it was agreed that if the petitioners withdrew the complaint, they will not obstruct. Petitioners have a further case that an ultimatum has been given by the respondents that the petitioners will have to close down the unit by 10.3.2010. A Reply Affidavit has not been filed. But, in paragraph 16 of the Counter Affidavit, the respondents would take the stand that the respondents have never obstructed and are not obstructing, but they may agitate peacefully. We record the submission of the learned counsel for respondents 4 to 7 and dispose of the Writ Petition. The Writ Petition is disposed of as above. Sd/= **K.M. JOSEPH, JUDGE** **Sd/= M.L. JOSEPH FRANCIS, kbk. JUDGE //True Copy//** ## **PS to Judge**