MARY VARKEY v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934** ## **WP(C).No. 29512 of 2011 (L)** **---------------------------------------** ## **PETITIONER(S):** **----------------------MARY VARKEY, ELAMBASSERIL ELACKAD VILLAGE, VAYALA P.O., KOTTAYAM.** **BY ADVS.SRI.SHAJI THOMAS SRI.N.NAGARESH SRI.BINU PAUL SRI.T.V.VINU SRI.SHINE MATHEWS(VADAKKEKARA) SRI.ARUN CHANDY** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA** - **REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001.** **2. DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O THIRUVANANTHAPURAM-695 004.** ## **3. SENIOR GEOLOGIST,** - **MINING AND GEOLOGY DEPARTMENT, DISTRICT OFFICE KOTTAYAM-686 001.** **4. DIRECTOR OF MINES SAFETY,** - **D.G.M.S., BANGALORE REGION, NO.5 IST FLOOR, 17TH MAIN, 100 FEET ROAD 4TH `B' BLOCK, KORMANGALA, BANGALORE-560 034.** **5. DISTRICT COLLECTOR, KOTTAYAM-686 001.** **6. REVENUE DIVISIONAL OFFICER, PALA, KOTTAYAM-686 575.** ## **7. TAHSILDAR,** - **MEENACHIL TALUK, PALA, KOTTAYAM-686 575.** **8. ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD KOTTAYAM-686 001.** ## **DCS** **WP(C).No. 29512 of 2011 (L)** ## **9. KADAPLAMATTOM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KADAPLAMATTOM P.O. KOTTAYAM-686 571.** **10. DISTRICT MEDICAL OFFICER, KOTTAYAM-686 001.** **11. SUB INSPECTOR OF POLICE, MARANGATTUPALLY POLICE STATION, KOTTAYAM-686 635.** **12. A.J.WALSTON, ELAMBASSERIL HOUSE, VAYALA P.O., KADAPLAMATTOM KOTTAYAM-686 587.** ## **13. SUNNY JOSEPH,** - **ELAMBASSERIL HOUSE, THAVALAKUZHY BHAGOM, KANAKARY P.O. KOTTAYAM-686 632.** *** ADDL. R14 IS IMPLEADED** ## **14. THE DIRECTOR** **THE CENTER FOR EARTH SCIENCE STUDIES POST BOX.NO.7250, AKKULAM THIRUVANANTHAPURAM - 695 031.** ***ADDL. R14 IS IMPLEADED AS PER ORDER DATED 25/06/2012 IN IA 8568/2012.** **R1 & R2 BY GOVERNMENT PLEADER SMT. ROSE MICHAEL R4 BY ADV. SRI.GEORGE JOSEPH, CGC BY SRI. P. PARAMESWARAN NAIR, ASST. SOLICITOR GENERAL R8 BY ADVS. SRI.M.K.CHANDRAMOHAN DAS, SC, POLLUTION CONTROL BOARD SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD R9 BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.P.CHELLAPPAN SRI.E.N.HARI SRI.VIMAL K.CHARLES SMT.A.T.RENJU R12 BY ADVS. SRI.P.BABU KUMAR SRI.P.YADHU KUMAR R13 BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2013 ALONG WITH WPC. 14641/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** **WP(C).No. 29512 of 2011 (L)** **APPENDIX** ## **PETITIONER(S) EXHIBITS :-** **EXHIBIT P1- COPY OF THE LOCATION SKETCH RELATING TO SY.NO.569/8 OBTAINED FROM THE STATE INFORMATION OFFICER, MEENACHIL, PALA.** **EXHIBIT P2- COPY OF THE LOCATION SKETCH RELATING TO SY.NO.569/6. EXHIBIT P3- PHOTOGRAPH SHOWING THE LIE OF THE PROPERTY OF PETITIONER AND THE QUARRY OWNED BY THE RESPONDENT 12 & 13. EXHIBIT P3(A)- PHOTOGRAPH SHOWING THE LIE OF THE PROPERTY OF PETITIONER AND THE QUARRY OWNED BY THE RESPONDENT 12 & 13. EXHIBIT P4- COPY OF THE PERMIT NO.44/GBS/CRPS/2011-12/1045/DOY/2011 DATED 27.7.2011 ISSUED BY THE SENIOR GEOLOGIST TO THE 12TH RESPONDENT FOR SY.NO.596/8. EXHIBIT P5- COPY OF THE PERMIT NO.43/GBS/CRPS/2011-12/1302/DOY/2011 DATED 27.7.2011 ISSUED BY THE SENIOR GEOLOGIST TO THE 12TH RESPONDENT FOR SY.NO.596/8. EXHIBIT P6- COPY OF THE PERMIT NO.129/GBS/CRPS/2010-11/1511/DOY/2010 DATED 22.9.2010 ISSUED BY THE SENIOR GEOLOGIST TO THE 13TH RESPONDENT FOR SY.NO.596/6. EXHIBIT P7- COPY OF THE RTI APPLICATION DATED 17.9.2011. EXHIBIT P8- COPY OF THE REPLY DATED 20.10.2011 GIVEN BY THE 3RD RESPONDENT. EXHIBIT P9- COPY OF THE REPORT DATED 21.7.2011 OF THE TAHSILDAR SENT TO THE DISTRICT COLLECTOR. EXHIBIT P10- COPY OF THE CONSENT NO.PCB/KTM/ICO/R1/72/09 DATED 6.7.2009 ISSUED BY THE 8TH RESPONDENT TO THE RESPONDENTS 12 & 13. EXHIBIT P11- COPY OF THE CONSENT NO.PCB/KTM/ICO/R1/73/09 DATED 6.7.2009 ISSUED BY THE 8TH RESPONDENT TO THE RESPONDENTS 12 & 13. EXHIBIT P12- PHOTOGRAPH DEPICTING THE PIT SO FORMED ON ACCOUNT OF EXTRACTION OF GRANITE FROM BOTTOM THE QUARRY. EXHIBIT P13- PHOTOGRAPH DEPICTING THE SURFACE SOIL AND EARTH BEING REMOVED FROM THE ADJACENT LAND FOR THE PURPOSE OF QUARRYING GRANITE LYING BENEATH THE EARTH.** ## **DCS** ## **WP(C).No. 29512 of 2011 (L)** **EXHIBIT P14- PHOTOGRAPH DEPICTING THE SURFACE SOIL AND EARTH BEING REMOVED FROM THE ADJACENT LAND FOR THE PURPOSE OF QUARRYING GRANITE LYING BENEATH THE EARTH.** **EXHIBIT P15- PHOTOGRAPH SHOWING THE DEMOLITION OF A HILL AREA AND THE REMOVAL OF EARTH BY USING JCB AND BUILDOZER.** **EXHIBIT P16- COPY OF THE REPRESENTATION DATED 27.8.2011 SUBMITTED TO 3RD RESPONDENT.** **RESPONDENTS' EXHIBITS :-** ## **EXHIBIT R1(a)- COPY OF THE NOTICE DATED 30.05.2012 ISSUED BY THE 9TH RESPONDENT-PANCHAYAT** **EXHIBIT R4-(A)- COPY OF THE LETTER NO. BLR/ORDER/22(3)/STONE/KERALA/2152, DATED 24.10.2011 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT R4-(B)- COPY OF THE LETTER NO. BLR/ORDER/22(3)/STONE/KERALA/2161, DATED 24.10.2011 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT R12-(A)- COPY OF THE AGREEMENT WITH THE 12TH RESPONDENT ALONG WITH 8 OTHER INHABITANTS OF THE LOCALITY DATED 27.03.2006** - **EXHIBIT R12-(B)- COPY OF THE PROCEEDINGS OF THE 6TH RESPONDENT DATED 7.10.2011** - **EXHIBIT R12-(C)- COPY OF THE FIR NO. 187/11 IN MARANGATTUPALLY POLICE STATION DATED 14.08.2011** - **EXHIBIT R12-(D)- COPY OF THE ORDER ISSUED BY THE DIRECTOR OF MINE SAFETY DATED 3.10.2012** - **EXHIBIT R12-(E)- COPY OF THE STOP MEMO ISSUED BY THE PANCHAYAT DATED 17.02.2012** - **EXHIBIT R12-(F)- COPY OF THE NOC ISSUED BY DIRECTOR OF MINE SAFETY DATED 16.05.2012** - **EXHIBIT R12-(G)- COPY OF THE PERMISSION GRANTED BY THE DIRECTOR OF MINE SAFETY DATED 25.01.2012** - **EXHIBIT R12-(H)- COPY OF THE ORDER IN W.P.(C). NO. 29512/11 OF THIS HON'BLE COURT DATED 8.2.2012** **EXHIBIT R12-(I)- COPY OF THE DRAFT DATED 23.05.2012** **EXHIBIT R12-(J)- COPY OF THE MEMO ISSUED BY SECRETARY KADAPLAMATTAM GRAMA PANCHAYAT DATED 30.05.2012** ## **DCS** **WP(C).No. 29512 of 2011 (L)** **EXHIBIT R12-(K)- COPY OF THE MEMO ISSUED BY SECRETARY KADAPLAMATTAM GRAMA PANCHAYAT DATED 30.05.2012** **EXHIBIT R12-(L)- COPY OF THE MEMO ISSUED BY SECRETARY, KADAPLAMATTAM GRAMA PANCHAYAT DATED 17.02.2012** **EXHIBIT R12-(M)- COPY OF THE NOC ISSUED BY THE DISTRICT MEDICAL OFFICER DATED 18.03.2009** **EXHIBIT R12-(N)- COPY OF THE QUARRYING PERMIT ISSUED BY SENIOR GEOLOGIST DATED 27.07.2011** **EXHIBIT R12-(O)- COPY OF THE LE-3 LICENSE ISSUED BY THE JOINT CHIEF CONTROLLER OF EXPLOSIVES, SOUTH CIRCLE CHENNAI DATED 13.04.1999** **EXHIBIT R12-(P)- COPY OF THE NOC GRANTED BY DIRECTOR MINE SAFETY DATED 16.05.2012** **EXHIBIT R12-(Q)- COPY OF THE CONSENT ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 6.7.2009** **EXHIBIT R12-(R)- COPY OF THE PERMISSION TO APPOINT MANAGER ISSUED BY THE MINE SAFETY, BANGALORE DATED 13.3.2011** **EXHIBIT R12-(S)- COPY OF THE SURVEY SKETCH DATED 02.02.2012** **EXHIBIT R12-(T)- COPY OF THE NOC ISSUED BY THE MINE SAFETY, BANGALORE DATED 15.05.2009** **EXHIBIT R13-(a)- COPY OF THE QUARRYING PERMIT DATED 23.09.2011 ISSUED BY THE SENIOR GEOLOGIST, KOTTAYAM. EXHIBIT R13-(b)- COPY OF THE REPORT DATED 18.03.2009 OF THE D.M.O. KOTTAYAM** **EXHIBIT R13-(c)- COPY OF THE LOCATION SKETCH** ## **/TRUE COPY/** **P.A. TO JUDGE** **DCS** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P. (C) NO. 29512/2011 & 14641/2012** **----------------------------------------** Dated this the 07[th] day of February, 2013 ## **JUDGMENT** Since common issues arises for consideration in the above cases they are decided together. Parties are referred as shown in W.P.(C). No. 29512/2011. 2. In W.P.(C). No. 29512/2011 the petitioner, a neighbour of a quarry owner has sought for a direction to the 3[rd] respondent to take immediate steps to cancel the quarry permit granted in favour of respondents 12 and 13 and also to prevent them from removing the surface earth from their land in large quantities for quarrying the Granite under cover of Ext. P4 to Ext. P6 permits. 3. The complaint of the petitioner is that she is residing in a property situated in Resurvey No. 571/2 in Block No. 12 of Elakkad Village and she owns a property in Sy. No. 569/2 which is adjacent to the property owned by the 12[th] and 13[th] respondents where they were operating quarry unit. It is her case that on W.P. (C) NO. 29512/2011 & 14641/2012 **2** account of indiscriminate quarrying from areas which are not permitted under the various licenses issued, it so happened that the depth of the common boundary of the property of the petitioner and that of the respondents 12 and 13 is about 45 meters which according to her is against the norms prescribed for quarrying as available under the Kerala Minor Mineral Concession Rules, 1967 and also the Metalliferous Mines Regulations, 1961. 4. W.P.(C) No. 14641/2012 is filed by the 12[th] respondent of W.P.(C).No. 29512/2011 complaining that despite having all the necessary license/permission from various authorities and also having a valid license from the Local Authority upto 31.03.2012, a stop memo was issued by the Local Authority on 17.02.2012 as Ext. P10 and further they have issued Ext. P12 and P13 on 30.05.2012 taking a stand that his request for continuing the quarrying operations can be considered only after considering the objections of Smt. Mary Varkey, petitioner in W. P.(C) No. 29512/2011. Hence the 12[th] respondent has sought for directions challenging Ext. P12 and P13 and also for a declaration that the mining can be conducted only with necessary W.P. (C) NO. 29512/2011 & 14641/2012 **3** permit issued by the Mines Safety Department of Government of India and the Mining and Geology Department. The 12[th] respondent in his writ petition has impleaded several quarry owners and has sought for the relief to initiate prosecution against the Secretary of the Panchayath for issuing illegal license to other party respondents. 5. As matters stand now the following factual circumstances are not in dispute:- (i) By Ext. P5 order dated 24.10.2011, the Director of Mines Safety had informed the petitioner that he had violated Regulation 34(7) r.w. Reg. 39, 106(1)&(2)(a) and 164(1B)(a) r.w.Reg. 160(1) of the Metalliferous Mines Regulations, 1961. The requirements was, absence of Manager and statutory officials, that against the permitted height of 6 meters, quarrying was being manually done with a face height varying from 6m to 40m with almost vertical face having loose masses dangerously hanging at a number of places endangering safety of the persons deployed at the bottom of high faces and within the Danger Zone of 300m of the quarry, that there are number of structures in the **4** W.P. (C) NO. 29512/2011 & 14641/2012 nearby locality, that no record of blasting is maintained and there is no competent person for blasting. In the result, the said authority directed that the work of quarry shall not be resumed till the defects as mentioned in the said order are rectified to the satisfaction of the Director and the order is vacated. (ii) Ext. P6 “No Objection” is issued by the Director of Mines Safety in favour of 12[th] respondent to take up the rectification work provided they complied with requirements as mentioned in the said letter, which reads as under: - (i) As proposed by you vide letter No. nil dated 09.02.2012 Mining Mate/a Blaster Certificate holder under the Metalliferous Mines Regulations, 1961 shall be appointed before starting the rectification work and he shall personally supervise drilling, charging and blasting operations in the quarry under over all guidance of the Manager. (ii) Your attention is invited towards the provisions of Regulation 164(1B)(a) of the Metalliferous Mines Regulations, 1961, wherein it is required that “No Blasting in the quarry shall be done when the distance of any structure, not belonging to the owner is less than 50m , unless permitted in writing by this Directorate”. (iii) The rectification work shall be started from top and shall gradually move downwards with proper height & width of benches. **5** W.P. (C) NO. 29512/2011 & 14641/2012 (iii) Ext. P2 is the quarrying permit granted by the Senior Geologist on 27.07.2011 in respect of property having an extent of 12.24 ares in Survey No. 569/8. The said permit was valid for a period of one year from the date of issue. Ext. P27 is an application filed for renewal of the said permit. On 17.02.2012 the Panchayath issued a stop memo. (iv) On 31.03.2012 the period of license from Panchayath expired. (v) On 30.05.2012 letters were issued by the Panchayath calling upon the 12[th] respondent for a hearing along with the petitioner in W.P.(C). No. 29512/2011. (vi) The 12[th] respondent files Revision Petition No. 107/2012 before the Tribunal for Local Self Government Institutions challenging the stop memo Ext. P12 and P13. 6. These undisputed facts disclose that as matters stand now the 12[th] respondent has a “No Objection” from the Director of Mines Safety to carry out rectification work in terms with Ext. P6 order. He doesn't have a license from the Geology Department nor does he have the permission from the Local Authority. **6** W.P. (C) NO. 29512/2011 & 14641/2012 7. In so far as he is not conducting any mining operations as matter stand today as far as the grievance of the petitioner in W.P.(C). No. 29512/2011 is concerned, the same is substantially taken care of. 8. But what remains to be considered is whether the 12[th] respondent should be permitted to carry on the rectification works as contemplated in Ext. P6. The contention of the petitioner in W.P.(C). No.29512/2011 is that already the vertical height of the quarry in the boundary of the petitioner is about 40 meters and therefore the fact remains that violation had been done by the 12[th] respondent and there is no question of any rectification work to be carried on in that area as suggested in Ext. P6 and the 12[th] respondent is trying to continue quarrying operations in the areas which are not permitted by the Geology Department under the Minor Mineral Concession Rules. But it is relevant to note that the 12[th] respondent is now faced with a situation that he does not have a valid mining license nor does he have a permissions from the Local Authority. Unless he has such permission he will not be in a position to carry out any blasting W.P. (C) NO. 29512/2011 & 14641/2012 **7** operations or quarrying work as envisaged in Ext. P6 itself. Therefore the question as to whether the 12[th] respondent should be permitted to carry out the rectification work and in what manner can be considered only after he obtains appropriate mining permission from the Geologist and also permission from the Local Authority. 9. While considering the claim of the 12[th] respondent challenging Ext. P12 and P13, it could be seen that he had already filed Revision Petition No. 107/2012 before the Tribunal for Local Self Government Institutions and in that view of the matter it may not be possible for this Court to consider the validity of Ext. P12 and P13 at this point of time. 10. That apart unless the 12[th] respondent has a valid quarrying permit from the Geology Department in terms with Kerala Minor Mineral Concession Rules, 1967 it may not be possible even for the Local Authority to issue any permission. 11. A reference is made by the learned counsel for the Panchayath and the petitioner in W.P.(C). NO. 29512/2011 to a judgment of the Supreme Court in **Action Council v. Benny** W.P. (C) NO. 29512/2011 & 14641/2012 **8** **Abraham [2002 (2) KLT 228(SC)]** wherein the Supreme Court while setting aside the judgment of this Court observed that while granting permission under Rule 6 and 12 of the Kerala Panchayats (Licensing of Dangerous & Offensive Trade & Factories) Rules, 1996 which is the power vested in the Panchayath under Section 232 of the Panchayat Raj Act, though all authorities have issued “No Objection Certificate” it is for the Panchayath to consider whether the license has to be granted or not. 12. But the fact remains that this was a permission which was already granted by the Panchayath and substantial quarrying operation had been carried out. Now the authorities have opened their mind and had come to a conclusion that there had been violations as pointed out in Ext. P5. Therefore the 12[th] respondent can operate the quarry only after i) getting the permit from the Geologist ii) license from the Local Authority and that too only for the limited purpose for carrying of the operations as envisaged in Ext. P6. **9** W.P. (C) NO. 29512/2011 & 14641/2012 13. But as matters stand now as I have already indicated the 12[th] respondent does not have any such permissions and until he is able to obtain such permissions, this court cannot issue the directions as prayed for. 14. In regard to the complaint of the 12[th] respondent that the other quarry owners are operating without valid licenses or permission from competent authorities, it is submitted by the learned counsel for the Panchayath that the authorities have already verified the matter and on the basis of the records submitted, necessary action had been taken by the Panchayath and orders had been issued in that regard. Therefore I do not think that the 12[th] respondent has locus standi to challenge the grant of permits to other quarry owners. 15. As far as the 12[th] respondent is concerned in so far as his remedy lies in obtaining license/permissions from the appropriate authority as stated above I do not think a direction as sought for can be granted. In the result, W.P.(C). No. 29512/2011 is disposed of reserving the right of the petitioner to approach this Court in the W.P. (C) NO. 29512/2011 & 14641/2012 **10** event the 12[th] respondent starts quarrying operations after obtaining necessary licenses, and violates any provision of law. W.P.(C) No. 14641/2012 is dismissed reserving the right of the petitioner to start quarrying operation only after obtaining necessary license/permission from the competent authorities and after disposal of the Revision Petition No. 107/2012 pending before the Tribunal for Local Self Government Institutions. Sd/- **A.M. SHAFFIQUE JUDGE** **DCS**