Danish Joseph v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021/24TH AGRAHAYANA, 1943** **WP(C) NO. 27347 OF 2020** ## **PETITIONER:** DANISH JOSEPH AGED 27 YEARS KANATHUMPARAMBIL HOUSE, PIRALIMATTAM, KADALIKAD P.O., MUVATTUPUZHA, PIN-686670. BY ADV GEORGEKUTTY MATHEW ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE LAND REVENUE COMMISSIONER, OFFICE OF LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM. 3 DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM-682030. 4 THE MANJALLOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MANAJALLOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-686671. 5 THOMAS JOSEPH, MANAYANIKKAL HOUSE, KUMARAMANGALAM, VENGALLOOR P.O., THODUPUZHA, IDUKKI DISTRICT-685584. BY ADVS. R1 TO R3 BY SRI B.S.SYAMANTHAK, GOVERNMENT PLEADER R4 BY SRI.G.BHAGAVAT SINGH R5 BY SRI.C.R.SYAMKUMAR SHRI.KELU BHAGAVAT ## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 15.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)27347/2020** 2 ## **T.R. RAVI, J.** ## **--------------------------------------------** W.P.(C)No.27347 of 2020 -------------------------------------------Dated this the 15[th] day of December, 2021 ## **JUDGMENT** The writ petition has been filed seeking to quash Ext.P7 whereby the 3[rd] respondent has issued a no objection certificate to the 5[th] respondent under Section 27(d) of the Kerala Minor Mineral Concession Rules, 2015. The contention of the petitioner is that the order has been issued without specifying the condition regarding the existence of residential houses within 50 metres. It is also stated that the order does not say about the nearest residential house. It is also submitted that the area where the 5[th] respondent intends to do quarrying does not have 100 metre clearance from the Village road and that the petitioner's house is within the radius of 100 metres from every point of the land where the quarrying is proposed to be done. It is further stated that there are 20 residential houses within the dangerous zone of 300 metres from every point of the quarry. Another contention taken is that on 31.1.2020 the Commissioner, Land Revenue had issued Ext.P8 wherein it is stated that when NOC is issued for quarrying purposes in Government puramboke, the orders issued for **WP(C)27347/2020** 3 providing a uniform guideline throughout the State and the procedures prescribed, have to be considered. It is stated that Ext.P7 says that the earlier NOC granted on 29.12.2006 is upheld after rejecting all the objections taken against the same and that the NOC is revived for a period of 5 years from the date of the order. The writ petitioner contends that there can be no such revival. It is stated that the NOC granted earlier was to expire on 28.12.2021 and the 5[th] respondent has not submitted any request for renewal. Reference is made to paragraph 3 of Ext.P3 judgment which says that there will be a direction to the District Collector to keep the NOC dated 29.12.2016 in abeyance and take a decision after considering the report of site inspection dated 23.11.2017 submitted by the Revenue Divisional Officer and after hearing the petitioner and the 5[th] respondent. 2. Head Shri George Mathew for the petitioner, Sri B.S.Syamanthak, Government Pleader for respondents 1 to 3, Sri Bhagavat Singh for the 4[th] respondent and Sri C.R.Syamkumar for the 5[th] respondent. 3. Sri Syamkumar, counsel appearing for the 5[th] respondent submitted that the no objection initially granted as per Ext.P1 on 29.12.2016 was challenged by the petitioner's father. **WP(C)27347/2020** 4 The no objection certificate was kept in abeyance during the pendency of the writ petition which was disposed of only on 29.1.2019 as per Ext.P13 judgment. As such, it is a case where the 5[th] respondent could not put to use the NOC granted as per Ext.P1. The counsel points out that regarding the contentions taken in Ext.P4, the parties were heard by the District Collector and it is thereafter that Exhibit P7 order has been issued. It can be seen from Ext.P7 that on site inspection no water streams as alleged in the complaint were present in the area and no lands vested with the Panchayat were also noticed. It can be seen that the Revenue Divisional Officer had reported that the access road to the quarry from Kadalikkadavu to Kavana road belonging to the Panchayat had only a width of 3 metres and it is not possible to ply heavy vehicles through the side road. The suggestion of the Revenue Divisional Officer was that the NOC can be granted if an alternate road is suggested. The Collector has considered the fact that the 5[th] respondent had purchased a private land for providing road access having 8 metres width to the site and that the Panchayat Road is not put to use for the transportation purposes. Regarding the complaints that are of technical nature, which have to be addressed through the Pollution Control Board and the **WP(C)27347/2020** 5 Department of Mining and Geology, Ext.P7 specifically says that the District Collector is not the competent authority to address such technical issues while granting the NOC. In Ext.R5(b) minutes of the District Level Expert Appraisal Committee (DEAC), Ernakulam District, the 1[st] respondent's proposal for quarrying was considered by the authorities and it was decided to recommend the proposal for grant of environmental clearance. The District Collector has specifically noticed in Ext.P7 that any environmental issues at the time of mining is to be raised by the complainants before the State Environmental Impact Assessment Authority(SEIAA). 4. The Government Pleader has filed a statement on behalf of the 3[rd] respondent which also says that the complaints regarding the aspects relating to environment have to be addressed by the SEIAA and not the District Collector. The Government Pleader has also pointed out that there are no houses within the permitted area and as long as there is a fresh road access, the concern regarding user of the Panchayat road does not arise. The counsel for the petitioner pointed out that the report after inquiry is seen dated 20.7.2015 and that the order of the District Collector was on 2.6.2020 and possibilities of construction of residential houses in **WP(C)27347/2020** 6 the interregnum cannot be ruled out. The counsel for the petitioner also relied on the judgment of this court in **Ajitha Joshy v State of Kerala** reported in **[2020 (5) KLT 707]** . In the said case, the learned Single Judge while considering the prayer for a direction to grant NOC held that since the grant of an NOC has been reserved in the Government as a privilege, nobody can claim a right for grant of that privilege. In that context, it was observed that public interest is also a relevant factor while considering grant of NOC. 5. The counsel for the Panchayat submitted that the District Collector had not heard the Panchayat while issuing Ext.P7 even though the area vested with the Panchayat. However, the counsel for the Panchayat does not have a case that the area where the quarrying is permitted belongs to the Panchayat. The contention is only regarding the use of the Panchayat road. 6. Having considered the contentions of the petitioner and the respondents, I am of the opinion that the petitioner is not prejudiced in any manner by the grant of the NOC. His apprehension regarding the environmental impact is a matter which has to be considered at the subsequent stages of the process of the application for quarrying when the matter is examined by the SEIAA. The District Collector has passed Ext.P7 **WP(C)27347/2020** 7 order on the basis of the directions contained in Ext.P6 judgment. The contention that there can be no revival of the NOC also does not hold good, since it is a case where the NOC earlier granted was not even processed subsequently and have been kept in abeyance almost through the period of 5 years for which it was originally granted. In the result, the writ petition fails and is dismissed. However the dismissal of this writ petition is without prejudice to the contentions raised by the petitioner regarding the environmental aspects pointed out, which he is free to raise before the appropriate authorities at the appropriate stage of consideration of the 5[th] respondent's application for grant of quarrying permit. Sd/- **T.R. RAVI JUDGE** dsn **WP(C)27347/2020** 8 ## **APPENDIX OF WP(C) 27347/2020** PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE NOC DATED 29/12/2016 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P2 TRUE COPY OF THE REPORT DATED 23/11/2017 OF RDO, MUVATTUPUZHA. - EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 29/01/2019 IN WPC NO.11632/2016. - EXHIBIT P4 TRUE COPY OF THE WRITTEN SUBMISSION FILED BEFORE THE 3RD RESPONDENT. - EXHIBIT P5 TRUE COPY OF PROCEEDINGS DT.12.6.2019 OBTAINED UNDER THE RTI ACT. - EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 10/12/2019 IN WPC NO.27065/2019. - EXHIBIT P7 TRUE COPY OF THE ORDER DATED 02/06/2020 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P8 TRUE COPY OF THE DIRECTION DATED 31/01/2020 ISSUED BY THE 2ND RESPONDENT TO ALL DISTRICT COLLECTORS.