Lyla Small Scale Industries v. Kerala State Electricity Board, The Chief Engineer (Transmission), North Kerala State Electricity Board Ltd, and The Geologist Mining and Geology Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** ## **WP(C).No. 31638 of 2018** ## **PETITIONER:** **LYLA SMALL SCALE INDUSTRIES CP-11/283 A NADIRA MANZIL,N.I.T.CAMPUS P.O., KOZHIKODE DISTRICT, PIN-673 601 REPRESENTED BY IT MANAGING PARTNER K.H.ABBAS AGED 62 YEARS, S/O K. HYDER MOOPAN.** **BY ADV. SRI.S.K.SAJU** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN -695 001** - **2 THE CHIEF ENGINEER (TRANSMISSION) NORTH KERALA STATE ELECTRICITY BOARD LTD NALLALAM.P.O., KOZHIKODE,PIN-673027.** - **3 THE GEOLOGIST MINING AND GEOLOGY DEPARTMENT, CIVIL STATION,KOZHIKODE PIN-673020.** - **BY ADV. SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE ELECTRICITY BOARD LIMITED BY SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 31638 of 2018** **2** ## **JUDGMENT** The petitioner, which is a partnership firm having registration as Small Scale Industrial Unit, as evidenced by Ext.P2 certificate of registration dated 03.12.1986, had entered into Ext.P3 lease agreement dated 20.03.1982 with the State in respect of 0.30 hectare of land in Re-survey No.21/2D1 in Chathamangalam Village for extracting minor minerals (granite) for a period of 12 years commencing from 20.03.1982 to 19.03.1994. Thereafter, the petitioner entered into Ext.P4 lease agreement dated 06.07.1994 in respect of the aforesaid land for the period from 06.07.1994 to 05.07.2006. While so, in the year 2000, the 1[st] respondent Kerala State Electricity Board proposed to draw 110KV electric line adjacent to the land covered by Ext.P4 lease agreement. Feeling aggrieved by the same, the petitioner approached this Court in O.P.No.36265 of 2000 and obtained Ext.P5 interim order of stay dated 01.01.2001. According to the petitioner, in the said original petition this Court directed **WP(C).No. 31638 of 2018** **3** the District Magistrate, Kozhikode to consider the matter and pass appropriate orders on the objections made by the petitioner against drawal of 110KV transmission line through the property in question. The order passed by the District Magistrate overruling the objection of the petitioner against drawal of 110KV transmission line was under challenge before this Court in O.P.No.39027 of 2001. Before the learned Single Judge, the petitioner contended that its suggestion for alternate route was not properly considered by the District Magistrate. The said original petition ended in dismissal by Ext.P6 judgment dated 04.01.2002. Paragraph 2 of the said judgment reads thus; _“2. I heard the petitioner and the Standing Counsel for the Electricity Board. Two sketches are produced and marked as Exts.P17 and P18. I find the objection is against passing of the 11 K.V. line over petitioner's quarry where blasting of rock and crushing of the same is carried on. The District Magistrate has considered every objection raised and has passed a proper order. Besides this, I am of the view that electrical lines especially, high_ **WP(C).No. 31638 of 2018** **4** _voltage lines should be drawn over infertile and uninhabitable land and also through quarries and other areas where there is no human habitation. What is to be avoided is residential areas and fertile land belonging to small holders to prevent loss to such people Technically, there can be no objection in the petitioner's continuing the quarry operation and the Electricity Board has not raised any objection. Obviously the cable are maintained at sufficient height to permit quarry operations without any hindrance or risk. The petitioner also has no case that they cannot carry on the work in the quarry. Therefore, I find no merit in the O.P. Dismissed.”_ ## 2. Feeling aggrieved, the petitioner filed W.A.No.610 of 2002, which was dismissed by Ext.P7 judgment dated 02.04.2002. Ext.P7 judgment reads thus; _“The order passed by the learned Single Judge appears to be justified in the circumstances of the case._ _We do not see what objection can be taken to the order on the part of the appellant. Learned counsel for the Electricity Board states that it is willing to abide by the order of the learned Single Judge, and that the High Tension Line will be drawn maintaining the clearance as prescribed in the Rules._ **WP(C).No. 31638 of 2018** **5** _In these circumstances, we see no reason to interfere. The Writ Appeal is dismissed.”_ 3. Thereafter, the Assistant Executive Engineer of the Kerala State Electricity Board issued Ext.P8 letter dated 29.11.2001 addressed to the District Collector stating that they have no objection in the petitioner carrying out blasting operation beyond 50 meters from the tower footing. 4. After the expiry of Ext.P4 lease agreement, the petitioner entered into Ext.P9 lease agreement dated 17.04.2006 for a period of 12 years from 03.05.2006 to 02.05.2018 in respect of 0.2024 hectare of land in Resurvey No.21/2D1 of Chathamangalam Village. After the expiry of Ext.P9 lease agreement, the petitioner applied for quarrying permit for an extent of 0.3625 hectares of land in Re-Survey No.21/2D1 of Chathamangalam Village. All the documents including survey sketch issued by the Village Officer were produced before the 3[rd] respondent along with Ext.P10 application dated 11.06.2018. The 3[rd] respondent, after verification, **WP(C).No. 31638 of 2018** **6** required the petitioner to produce No Objection Certificate from the Kerala State Electricity Board, since a tower line is passing within 100 meters from the mining area. The said fact was intimated to the petitioner vide Ext.P11 letter dated 18.06.2018 of the 3[rd] respondent. 5. On receipt of Ext.P11, the petitioner submitted Ext.P12 application dated 12.07.2018 before the 2[nd] respondent for getting No Objection Certificate. The 2[nd] respondent conducted an inspection on 06.09.2018 and informed the petitioner that they will not issue No Objection Certificate, since tower line is passing within 100 meters. Now, the petitioner is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to issue No Objection Certificate to the petitioner, by limiting the distance as minimum 50 meters from the 110 KV transmission line and to direct the 3[rd] respondent to consider and pass appropriate orders in Ext.P10 application, within a time **WP(C).No. 31638 of 2018** **7** frame to be fixed by this Court. 6. On 27.09.2018, when this writ petition came up for admission, the learned Standing Counsel for the Kerala State Electricity Board was directed to file counter affidavit. 7. A statement has been filed on behalf of respondents 1 and 2. Paragraphs 4 to 8 of the said statement read thus; _“4. The Assistant Executive Engineer, Line Maintenance Sub Division, KSEB Ltd Nallalam had inspected the premises of the petitioner on 6-9-2018 and found that stone blasting activities are being done within a distance of 50 meters from the tower foot and the 110 KV electric line alignment and NOC cannot be granted against the petitioners quarry and the petitioner have even transgressed the limit of 50 meters which was existing earlier._ _5. This quarry is located between location 16 and 17 of the 110KV Double Circuit Kunnamangalam Agastiamuzhy feeder. This feeder is the only 110 KV source of the Agastiamuzhy 110KV substation. Any damage to the tower or line due to the blasting activity would seriously affect a vast area of power supply including domestic and industrial consumers._ _6. The Central Electricity Authority (CEA) Regulation_ **WP(C).No. 31638 of 2018** **8** _2010 clause 65(2) states that No blasting for any purpose shall be done within 300 meter from the boundary of a substation or from the electric supply lines of voltage exceeding 650V or tower structure thereof without the written permission of the owner of such substation or electric supply line or tower structure and in case of mining lease hold area, without permission the inspector of Mines”._ _7. On the basis of this regulation 65(2) of CEA the KSEB had issued a guide line for sanctioning the operation of quarries vide order no.B.O(FB) No.1136/2012/M(T&GO),T3/Quarry operations/12-13 dt.Thiruvananthapuram 5-6-2012. The said order provides that NOC shall be obtained for operation of quarries at a distance of minimum 100 meters from the alignment of transmission lines._ _8. In the case on hand the distance between the quarry and the transmission line is less than 50 meters and as such NOC for blasting cannot be granted.”_ 8. Heard the learned counsel for the petitioner, the learned Standing Counsel for Kerala State Electricity Board representing respondents 1 and 2 and also the learned Senior Government Pleader appearing for the 3[rd] respondent. 9. The sole issue that arises for consideration in this **WP(C).No. 31638 of 2018** **9** writ petition is as to whether the petitioner is entitled for a writ of mandamus commanding respondents 1 and 2 to issue No Objection Certificate so as to enable the petitioner to carry out blasting operations by limiting the distance as 50 meters from the 110KV transmission line of the Kerala State Electricity Board. 10. Clause 65(2) of the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 provides that no blasting for any purpose shall be done within 300 meter from the boundary of a substation or from the electric supply lines of voltage exceeding 650V or tower structure thereof, without the written permission of the owner of such substation or electric supply lines or tower structures and in case of mining lease hold area, without the permission of the inspector of Mines. Based on Regulation 65(2) of the said Regulations, the 1[st] respondent has issued order No.B.O(FB) No.1136/2012/M(T&GO), T3/Quarry operations/12-13 dated 05.06.2012. The said order **WP(C).No. 31638 of 2018** **10** provides that NOC shall be obtained for operation of quarries at a distance of minimum 100 meters from the alignment of transmission lines. 11. Admittedly, in the instant case, the distance between the quarrying site and the transmission line is less than 100 meters and as such, grant of No Objection Certificate by Kerala State Electricity Board will be contrary to the mandate of the statutory provisions. In the statement, respondents 1 and 2 have also pointed out that the distance between the quarrying site and the transmission line is less than 50 meters and as such, No Objection Certificate for blasting cannot be granted. 12. Placing reliance on Exts.P6 and P7 judgments of this Court, the learned counsel for the petitioner would contend that the petitioner is entitled for No Objection Certificate as sought for and the respondents are estopped from contending that such certificate cannot be granted when the distance is less than 100 meters. As can be seen from Exts.P6 and P7 judgments, those **WP(C).No. 31638 of 2018** **11** judgments were rendered while the petitioner was having quarrying operations on the strength of Ext.P4 quarrying lease in respect of 0.30 hectare of land in Re-survey No.21/2D1 in Chathamangalam Village. Ext.P10 application made by the petitioner for quarrying permit is in respect of 0.3625 hectares of land in Re-survey No.21/2D1 of Chathamangalam Village. 13. Moreover, it is well settled by the judgment of the Apex Court in _**Santosh Kumar & Others v. Central Warehousing Corporation and Another [(1986) 2 SCC 343]**_ that what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of this Court under Article 226 of the Constitution of India is not meant to avoid or circumvent the processes of the law and the provisions of the statute. 14. In view of the law laid down by the Apex Court in the decision referred to supra, this Court in exercise of the writ jurisdiction under Article 226 of the Constitution **WP(C).No. 31638 of 2018** **12** of India cannot direct an authority to act contrary to the mandate of the statutory provisions. When the request made by the petitioner is to have quarrying operations at a place within the prohibited distance, respondents 1 and 2 cannot be directed to grant No Objection Certificate to the petitioner contrary to the statutory mandate. Therefore, the petitioner is not entitled for the reliefs sought for in this writ petition. In the result, this writ petition fails and the same is accordingly dismissed. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/30/3 **WP(C).No. 31638 of 2018** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PARTNERSHIP DEED DATED 26.5.2000.** - **EXHIBIT P2 SMALL SCALE INDUSTRIAL UNIT REGISTRATION CERTIFICATE DATED 3.12.1986.** - **EXHIBIT P3 TRUE COPY OF THE LEASE DEED BEARING NO.324/1982 DATED 20.03.1982 OF SRO CHATHAMANGALAM.** - **EXHIBIT P4 TRUE COPY OF THE LEASE DEED NO.1195/1995 DATED 6.7.1994 OF SRO CHATHAMANGALAM.** - **EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 1.01.2001 IN OP NO.36265/2000** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 4.1.2002 IN O.P.NO.39027/2001.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 2.4.2002 IN W.A.NO.610/2002.** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 29.11.2001.** - **EXHIBIT P9 TRUE COPY OF THE LEASE DEED DATED 17.4.2006 WITH TRANSLATION.** - **EXHIBIT P10 TRUE COPY OF THE APPLICATION DATED 11.6.2018 ALONG WITH SKETCH.** - **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 18.6.2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER WITH TRANSLATION.** - **EXHIBIT P12 TRUE COPY OF THE APPLICATION DATED 12.7.2018 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.**