Geetha Raveendran v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 27TH DAY OF JULY 2020 / 5TH SRAVANA, 1942** ## **WP(C).No.14452 OF 2020(F)** ## **PETITIONER:** **GEETHA RAVEENDRAN AGED 54 YEARS S/O.LATE RAVEENDRAN, RESIDING AT KUMBALAMPOIKAYIL HOUSE, THEKKUMTHOPPIL, VELIYANNUR VILLAGE, POOVAKULAM KARA, KARAMALA P.O., KOTTAYAM DSITRICT-686 662.** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI SRI.J.PRAKASH C.VADAKKAN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DISTRICT COLLECTOR, KOTTAYAM, CIVIL STATION, COLLECTORATE P.O., KOTTAYAM DISTRICT-686 001.** - **3 THE ADDITIONAL DISTRICT MAGISTRATE, KOTTAYAM, CIVIL STATION, COLLECTORATE P.O., KOTTAYAM DISTRICT-686 001.** - **4 THE EXECUTIVE ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, KOTTAYAM-686 001.** - **5 THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, COLLECTORATE P.O., KOTTAYAM-686 001.** - **6 THE VELIYANNUR GRAMA PANCHAYAT, VELIYANNUR P.O., KOTTAYAM DISTRICT-686 662, REPRESENTED BY ITS SECRETARY.** W.P(C) No.14452 of 2020 2 **7 THE VILLAGE OFFICER, VELIYANNUR, VELIYANNUR P.O., KOTTAYAM DISTRICT-686 662.** **8 SHAJIMON.E.N. EZHUKANDATHIL HOUSE, NADUVILE PADINJARE MURI, VAIKAM P.O., KOTTAYAM DSITRICT-686 141.** **R6 BY ADV. SRI.K.S.ARUN KUMAR R6 BY ADV. SRI.JUSTINE JACOB R8 BY ADV. SRI.JOBI JOSE KONDODY** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.14452 of 2020 3 ## **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C) No.14452 of 2020** **===========================** Dated this the 27[th] day of July, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows : _1. “Issue a writ of mandamus or any other appropriate writ, direction or order directing the third respondent not to permit the 8th respondent to carry out mining operations in the property situated in Survey Nos.53/1, 53/1-1, 53/1-2, 53/1-3, 53/1-4, 53/1-5 and 53/1-6, all of Veliyannur Village as it will be in infringement of the fundamental right of the petitioner guaranteed to her under Article 21 of the Constitution of India, so as to secure the ends of justice._ _2. Issue a writ of mandamus or any other appropriate writ, direction or order directing the third respondent to consider the Exhibit P4 Resolution passed by the 6th respondent Grama Panchayat, the Exhibit P7 representation now pending before the third respondent and also the Exhibit P8 report of the Tahsildar, Meenachil while considering the application for explosives licence filed by the 8th respondent, so as to secure the ends of justice._ ## _And_ _3. Such other relief’s as this Hon’ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Sri.T.Madhu, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondent Nos.1 to 3, 5 & 6, Sri.T.Naveen, learned Standing Counsel for the Kerala State Pollution Control Board appearing for the 4[th] respondent, Sri.K.S.Arunkumar, learned Advocate appearing for the 6[th] respondent (Veliyannur Grama Panchayat) and Sri.Jobi Jose W.P(C) No.14452 of 2020 4 Kondotty, learned Advocate appearing for the 8[th] respondent. 3. The petitioner is aggrieved by the proposed consideration of the application submitted by the contesting respondent No.8 before the 3[rd] respondent-Additional District Magistrate for grant of No Objection Certificate for issuance of explosive license for the conduct of the proposed quarry of the 8[th] respondent. 4. The case of the petitioner is that the petitioner has got properties within a distance of about 70 Meters from the proposed quarry sought to be established by the 8[th] respondent and that carrying out explosive activities for running of the quarry would cause serious third time danger to life and property, etc. The petitioner has submitted Ext.P-7 representation dated 12.07.2019 before the 2[nd] respondent-District Collector/District Magistrate against the proposed grant of NOC in favour of the 8[th] respondent. The petitioner would point out that Ext.P-6 dated August, 2019 and Ext.P-8 dated 26.12.2019 are enquiry reports in the matter furnished by the 7[th] respondent-Village Officer, Veliyannur and the Tahsildar, Meenachil, etc. 5. Sri.Joby Jose Kondotty, learned counsel appearing for the 8[th] respondent submits that earlier the request of the said party for grant of NOC to secure explosive license was rejected by the 3[rd] respondent-District Magistrate on the ground that it has been opposed by the 6[th] respondent- W.P(C) No.14452 of 2020 5 panchayat and by certain residents. That the petitioner had then approached this Court by filing W.P(C) No.32040/2019 in which this Court has quashed the said rejection order passed by the respondent-Additional District Magistrate and has rendered Ext.R8(d) judgment dated 05.02.2020 in W.P(C) No.32040/2019, whereby the impugned rejection order has been quashed by this Court and the matter has been remitted to the respondent-Additional District Magistrate, for fresh consideration and decision, after considering all relevant inputs and after hearing the 8[th] respondent herein as well as any objectors thereto, etc. Ext.R8(d) judgment dated 05.02.2020 rendered by this Court in W.P(C) No.32040/2019 reads as follows : “ The petitioner is an aspirant to set up a quarry and holder of a Environmental Clearance from the Sate Environmental Impact Assessment Authority has impugned order Ext.P16 issued by the Additional District Magistrate, refusing to grant No Objection Certificate for Explosive licence and Ext.P17 issued by the Secretary of the Panchayath refusing to grant D & O Licence under Section 233 and building permit under Kerala Panchayath Building Rules 2019. 2. Sri.Joby Jose, Kondody, learned counsel appearing on behalf of the petitioner submits that Ext.P16 order _ex facie_ not sustainable in the eyes of law and this is not in consonance with the provisions of Rule 103 of Explosive Rules 2008. It is solely based upon the communication only on the complaint of the Panchayath, that the residents of the Panchayath do not wish to allow the setting up of the quarry. As far as the other orders Exts.P17 and P18 are concerned they are also not sustainable in the eyes of law as the power to refuse licence under sub-section 3 of Section 233 of the Kerala Panchayath Raj Act, 1994 has been omitted by an amendment attributed by the legislature vide amendment dated 07.04.2018. The counter of the 2[nd] respondent, W.P(C) No.14452 of 2020 6 attempting to justify the order cannot also have any foundation for the strict principles of natural justice in hearing the public, the aggrieved party and as well as the petitioner, the applicant, have not been complied with. Particularly when the mere hurdle of starting quarry with the Environmental Clearance which the petitioners possess. Sri.Rajasekaharan Nair, senior learned Government Pleader, reports the impugned order that the area is not only conducive for setting up the quarry, but is also prone to land slides. There was quarry in that area which was stopped due to the public protest. No doubt the Regional officer, Fire and rescue Department submitted a favourable report in the case of the applicant for carrying out the activity of quarrying of the mining building stones, but the Additional District Magistrate refused to give NOC for LE-3 licence. There is no limitation of responsibility of the District collector to make an enquiry in a specific manner Thus the question of hearing at this stage was not at all necessary as there is no prevalence in the Act or Rules consisting of personal hearing. It has also drawn the attention of this Court to the memo, an affidavit of the Deputy Superintendent of police, District Special Branch Kottayam, the 4[th] respondent expressing that the nearby residents had expressed the concern that in case the quarry or licence granted they will organize agitation and it may entail into law and order problems. 3. Mr. K.S.Arunkumar, learned Standing Counsel appearing for Panchayath submits that suppose, the order Exts.P17 and P18 refusing to grant the permission under Section 233 and 134 of the Kerala Panchayath Building Rules on the premise that the Additional District Magistrate had refused to grant the No Objection Certificate under the Explosive Rules. 4. Heard the learned counsel for the parties, noticing the respective stands as well as the provisions of law particularly Rule 103 which is extracted herein below: “103. Procedure to be observed for issue of no objection certificate and for grant of licence.- (1) The applicant desiring to obtain a licence from the Chief Controller or Controller, shall apply to the District Magistrate or the Director-General of Mines Safety with copies of the site plan showing the location of the premises proposed to be licensed for issue of a certificate to the effect that there is no objection to the applicant receiving licence for the site proposed. (2) xxx (3) The District magistrate on receipt of application referred in sub-rule (1), shall make verification of the antecedents of the W.P(C) No.14452 of 2020 7 applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other verifications or enquiries as may be specifically required by the licensing authority to be carried out, if any, and on any other matter as deemed necessary. (a)For verification of the interest of public, the District Magistrate shall forthwith cause a notice to be published calling upon the public to submit objections, if any, with reasons thereof, within a period of one month from the date of publication of the notice and specifying the date, time and place for consideration of objections by him. Where the site of the proposed premises lies within 1.5 kilometers of the limits of the jurisdiction of any town planning municipal authority or port or air port of satellite or space craft launching station or similar establishments of national importance, the District Magistrate shall cause the notice to be served to such authority or establishment. The day of hearing for consideration of objections shall be fixed as early as possible, after the expiration of the period of one month from the date of publication of notice. On receipt of objection, the District Magistrate shall call the person or persons raising objection and also the applicant, giving not less than seven clear days before the day fixed for hearing for consideration of the objection. On the day fixed for the hearing or any day to which such hearing may be adjourned from time to time, the District Magistrate shall hear any objection relating to the purpose of no objection certificate and shall make such enquiry, as he may deem necessary to assess justification of such objection.” 5. I am of the prima facie view that it is a fit case where the matter which is required to be revisited at the level of the Additional District Magistrate as the order Ext.P16 is not in conformity of the aforementioned provisions. Though this court should have called the explanation of the Additional District Magistrate in supporting the impugned order by averring that there is no provision of granting of personal hearing, but I am afraid that is a misreading of the provisions extracted above, but I am afraid to do so as the plain and simple language of the aforementioned rules it is discernible that it is the hearing of the public and as well as the applicant has to be accorded. The aforementioned view of mine is reiterated from the finding rendered by the learned Single Bench of this Court in _**Joy Joseph v. District Collector**_ [2016 (3) KLT 514]. According to the impugned order Ext.P16 is set aside matter is remitted to the District Collector or the Additional District Magistrate to start a fresh proceedings in respect of consideration of the prayer in the application for issuance of No Objection Certificate specific Rules strictly as per the provisions of Rule 103 and as well as the observation of this Court. W.P(C) No.14452 of 2020 8 6. As regards the impugned orders Exts.P17 and P18 concerned, _prima facie_ they are not sustainable in view of the fact that power to refuse has been taken away from the domain of the Secretary in view of amendment dated 07.04.2018. At the behest the Grama Panchayth could have granted the permission subject to certain limitation and conditions like clearance and all the permissions from the other statutory Authorities including the No Objection Certificate from the area. The aforementioned view of this court is also derived from the judgment of this Court in _**Tommy Thomas v. State of Kerala**_ [2019 (3) KLT]. Accordingly order Exts.P17 and P18 are also set aside on the short ground. It is made clear that anything observed herein would not be construed and expression of opinion on consideration of the merits of the application submitted by petitioner for obtaining the necessary permissions like the No objection certificate under Explosive Rules, provision under Section 233 and 134 of the Kerala Panchayath Building Rules. Let this exercise by the ADM be undertaken within a period of two months in accordance with law after affording an opportunity of hearing. This writ petition stands disposed of with the aforementioned terms.” It appears that the petitioner herein was not a party in the said proceedings. So the matter is covered by the directions and orders already issued by this Court in Ext.R-8(d) judgment dated 05.02.2020 in W.P(C) No.32040/2019. 6. Accordingly, it is ordered that the competent authority to decide the grant of NOC to secure explosive license is the District Magistrate/Additional District Magistrate concerned, as the petitioner has filed Ext.P-7 objections before the 2[nd] respondent-District Collector, it may be ensured by the 2[nd] respondent that Ext.P-7 objections are transferred to the 3[rd] respondentAdditional District Magistrate for the latter’s consideration. If there is any delay in that regard, the 3[rd] respondent will treat copy of Ext.P-7 produced along with W.P(C) No.14452 of 2020 9 this W.P(C) and the written objections of the petitioner herein and may consider the merits of the same. While considering the objections of other persons concerned as well as the submissions of the respondent, etc., the matters are so considered in compliance with Ext.R-8(d) judgment in W.P(C) No.32040/2019. 7. The 3[rd] respondent-Additional District Magistrate will afford reasonable opportunity of being heard to the petitioner as well through his authorized representative/counsel, if any and all the other parties concerned should also be heard as already ordered in R-8(d) judgment and a considered decision may be taken by the 3[rd] respondent on the issue relating to grant of NOC in the matter, without any further delay. No other directions and orders are required, as the matter is already covered by Ext.R-8(d) judgment. 8. The petitioner will produce certified copy of this judgment along with copy of the Memorandum of this W.P(C) with all the exhibits before the 3[rd] respondent-Additional District Magistrate, Kottayam, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.14452 of 2020 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE BASIC TAX RECEIPT OF THE ABOVE PROPERTIES ISSUED BY THE 7TH RESPONDENT DATED 17.02.2020.** **EXHIBIT P2 THE TRUE COPY OF THE PROCEEDINGS DATED 30.11.2016 OF THE THIRD RESPONDENT.** **EXHIBIT P3 THE TRUE COPY OF THE PROCEEDINGS DATED 30.10.2019 OF THE FITH RESPONDENT.** **EXHIBIT P4 THE TRUE COPY OF THE RESOLUTION DATED 24.07.2019 PASSED BY THE 6TH RESPONDENT.** **EXHIBIT P5 THE TRUE COPY OF THE REPRESENTATION DATED 11.07.2019 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** **EXHIBIT P6 THE TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE VILLAGE OFFICER, VELIYANNUR TO THE REVENUE DIVISIONAL OFFICER, PALA DATED AUGUST 2019. EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION DATED 12.07.2019 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXHIBIT P8 THE REPORT SUBMITTED BY THE TAHSILDAR, MEENACHIL TO THE SECOND RESPONDENT DATED 26.12.2019.** **EXHIBIT P8(A) A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 23.04.2016 GRANTED BY THE SEIAA, KERALA TO THE 8TH RESPONDENT EXHIBIT P8(B) A TRUE COPY OF THE CONSENT TO OPERATE DATED 19.10.2016 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE 8TH RESPONDENT** **EXHIBIT P8(C) A TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE - RENEWAL ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE 8TH RESPONDENT DATED 03.07.2019 VALID UPTO 22.04.2021** W.P(C) No.14452 of 2020 11 **EXHIBIT P8(D) A TRUE COPY OF THE JUDGMENT DATED 05.02.2020 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HONOURABLE COURT IN W.P(C)NO.32040 OF 2019 EXHIBIT P8(E) A TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN SMT.VILASINI THANKAPPAN AND MR.K.R.RAVI (LATE HUSBAND OF THE PETITIONER) WITH THE MANAGING PARTNER OF M/S.ELSA GRANITES DATED 21.09.2004** **EXHIBIT P8(F) PHOTOGRAPH SHOWING THE HOUSE OF THE PETITIONER, THE ABANDONED QUARRY COVERED VIDE EXHIBIT R8(E)AND THE PROPOSED QUARRY OF THE PETITIONER COVERED VIDE EXHIBIT P1**