Muhammed Ismail Makki v State of Kerala and others; Sasi T. Tharol v Panangad Grama Panchayat and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM C.R** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** ## **WP(C).No.26088 OF 2019(I)** ## **PETITIONER:** **MUHAMMED ISMAIL MAKKI AGED 48 YEARS ANAPPARAKKAL HOUSE, UNNIKULAM P.O, KOZHIKODE DISTRICT** **BY ADV. SRI.MANSOOR.B.H.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, INDUSTRIES (A) DEPARTMENT, GOVT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 DIRECTOR MINING AND GEOLOGY, OFFICE OF THE DIRECTOR, DEPARTMENT OF MINING AND GEOLOGY, THIRUVANANTHAPURAM 695 001** - **3 DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY, COLLECTORATE KOZHIKODE 673 001 REPRESENTED BY ITS CHAIRMAN/DISTRICT COLLECTOR** - **4 PANANGAD GRAMA PANCHAYATH, P.O PANANGAD, KOZHIKODE 673 612 REPRESENTED BY ITS SECRETARY** - **5 SECRETARY, PANANGAD GRAMA PANCHAYATH, P.O PANANGAD, KOZHIKODE 673 612** - **6 ADDL.R6. STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY, KERALA,** - **DIRECTORATE OF ENVIRONMENTAL AND CLIMATE CHANGE, K.S.R.T.C BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR, THIRUVANANTHAPURAM.695 001.** **WP(C).NoS.26088/2019 & 26233/2019** **2** **REPRESENTED BY ITS CHAIRMAN.** **IS SUO MOTU IMPLEADED AS PER ORDER DATED 15-102019 IN WP(C)** **R4-5 BY ADV. SRI.VINOD SINGH CHERIYAN R4-5 BY ADV. SRI.T.M.KHALID R4-5 BY ADV. SMT.K.P.SUSMITHA** **SRI.KANNAN-GP SRI.M.P. SREEKRISHNAN-SC SRI.V.S CHERIYAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2019, ALONG WITH WP(C).21179/2019(V), WP(C).26233/2019(D), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NoS.26088/2019 & 26233/2019** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** **WP(C).No.26233 OF 2019(D)** ## **PETITIONER:** **SASI T. THAROL, AMBALAKOTH HOUSE, MEDICAL COLELGE P.O., KOZHIKODE.** **BY ADVS. SRI.PHILIP J.VETTICKATTU SRI.G.HARIKRISHNAN (TRIPUNITHURA)** ## **RESPONDENTS:** |**1**|**THE SECRETARY,**| |---|---| ||**PANANGAD GRAMA PANCHAYAT,**| ||**PANANGAD P.O.,**| ||**KOZHIKODE-673 612.**| |**2**|**THE PANANGAD GRAMA PANCHAYAT,**| ||**PANANGAD P.O.,**| ||**KOZHIKODE-673 612,**| ||**REPRESENTED BY ITS SECRETARY.**| |**3**|**ADDL.R3. STATE OF KERALA**| ||**REPRESENTED BY THE SECRETARY**| ||**(INDUSTRIES DEPARTMENT ), SECRETARIAT,**| ||**THIRUVANANTHAPURAM**| |**4**|**ADDL.R4. DIRECTOR OF MINING,**| ||**OFFICE OF THE DIRECTOR,**| ||**DEPARTMENT OF MINING AND GEOLOGY,**| ||**THIRUVANANTHAPURAM**| ||**(ADDL. RESPONDENTS 3 AND 4 ARE SUO MOTU**| ||**IMPLEADED AS PER THE ORDER DATED 11.10.2019)**| ## **WP(C).NoS.26088/2019 & 26233/2019** **4** **5 ADDL.R5. STATE ENVIRONMENT IMPACT, ASSESSMENT AUTHORITY, KERALA, DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE, K.S.R.T.C., BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR, THIRUVANANTHAPURAM - 695001, REPRESENTED BY ITS CHAIRMAN. ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 15.10.2019 IN WP(C)** **R1-2 BY ADV. SRI.VINOD SINGH CHERIYAN R1-2 BY ADV. SRI.T.M.KHALID R1-2 BY ADV. SMT.K.P.SUSMITHA** **SRI.KANNAN-GP SRI.M.P. SREEKRISHNAN-SC SRI.V.S CHERIYAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2019, ALONG WITH WP(C).21179/2019(V), WP(C).26088/2019(I), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NoS.26088/2019 & 26233/2019** **5** **JUDGMENT C.R** The petitioners in these cases, which are being considered together, on account of the analogous circumstances and facts presented, claim to be the persons operating granite quarries, on the strength of all licences and consents-including necessary Environmental Clearance obtained from the competent Authority. 2. The petitioners impugn the stop memos issued by the Panangad Grama Panchayat, as per which, they have been directed to stop the quarry operations solely for the reason that they have received certain complaints from neighboring property owners. The petitioners say that, going by a Full Bench Judgments of this Court in _**Tommy Thomas v. State of Kerala**_ [2019 (3) KLT 987], the Panchayat does not obtain any jurisdiction or competence to issue the stop memo and therefore, that these writ petitions be allowed. 3. When these matters were considered on 15.10.2015, I have directed the learned Government Pleader to obtain specific instructions as to whether the petitioners in these cases are in possession of all necessary licences and consents. The learned Government Pleader today affirms that the petitioners have obtained the Environmental Clearance and all other **WP(C).NoS.26088/2019 & 26233/2019** **6** necessary permissions and therefore that, normally, in law, they cannot be interdicted from operating their quarries. He then adds that, since the quarries are being operated within a distance of ten kilometers from the Malabar Wild Life Sanctuary, the competent Authorities have sought clarifications from the Wild Life Warden Civil Station, Kozhikode and that the same is awaited. He says that, however, as of now there is no interdiction from the competent Authorities against the operation of the quarries. 4. Sri.M.P.Sreekrishnan-learned Standing Counsel appearing for the State Environment Impact Assessment Authority, submits that Environmental Clearance has been issued by the erstwhile District Environment Impact Assessment Authority and therefore, that if anybody wants to challenge the same, they will have to approach the National Green Tribunal. He says that, as of now, since the petitioners appear to be operating under all valid consents and licences, including the Environmental Clearance, he does not have anything further to comment except that the official Authorities must ensure that all the terms of the Environmental Clearance are complied with by the petitioners without any violation. **WP(C).NoS.26088/2019 & 26233/2019** **7** 5. The learned Standing Counsel appearing for the Panchayat, vehemently submitted that even if the petitioners have all the licences and consents, the Panchayat has the competence to stop them from quarrying, if it is found that their activities cause unbearable pollution and nuisance to the neighboring property owners. He relies on Section 233A of Kerala Panchayat Raj Act in substantiation of this, but is unable to inform this Court, to the pointed question as whether any such investigation was done and any decision contrary to the petitioners' interest has been arrived at. She, however, submits since the complaints from the neighboring properties owners are still pending; and therefore prays that the sop memos, impugned in these writ petitions, may not be interdicted. She adds that the Grama Sabha attached to the Panchayat already passed a resolution to close down the activities of the petitioners and therefore, prays that this Court may not allow the petitioners to conduct quarrying operations any further. 6. Even when I hear the learned Standing Counsel for the Panchayat on the afore lines, the fact remains that going by the Full Bench judgment of this Court in _**Tommy Thomas**_ (supra) the contours of the power to be exercised by the **WP(C).NoS.26088/2019 & 26233/2019** ## **8** Panchayat in such matters are clearly delineated. They cannot unilaterally issue an order stopping legal activities, even when it is conceded that the petitioners have all the necessary licences, including the Environmental Clearance. A quarry owner is directed to obtain an Environmental Clearance, as is evident from the catena of judgments of the Hon’ble Supreme Court and of this Court, to ensure that their activities do not cause any detriment to the environment, nature and as also to the people living around it; and as long as the petitioners are in possession of such a valid clearance, it will not be possible for the Panchayat to unilaterally maintain that, notwithstanding it, their activities cause severe pollution or such other. Their remedy, therefore, is certainly to approach the State Environment Impact Assessment Authority, making their grievances known to them, so that the said Authority can then make a Post Environmental Clearance Monitoring appropriately and then find out whether the concerns of the Panchayat are valid or otherwise. Without doing so, the Panchayat cannot issue a stop memo and then seek that the quarrying activities be stopped, merely on the basis of certain unsubstantiated complaints preferred by other persons. In the afore circumstances. I allow these writ petitions and **WP(C).NoS.26088/2019 & 26233/2019** **9** set aside Ext.P6 in W.P.(C).No.26233/2019 and Ext.P5 in W.P. (C).No.26088/2019, which are the stop memos impugned; however, leaving full liberty to the Panchayat to approach the State Environment Impact Assessment Authority as also the other appropriate Authorities against the petitioners' quarry, in which event, the said Authorities will consider such complaints in terms of law and finalize the proceedings without any delay. Needless to say, if the Panchayat makes any complaint before the State Environment Impact Assessment Authority, the files with respect to the Environmental Clearance obtained by the petitioners shall be transferred by the erstwhile Office of the District Environmental Impact Assessment Authority to the State Environment Impact Assessment Authority without any delay and the official respondents will ensure that this is properly done. **Sd/-** ## **DEVAN RAMACHANDRAN** nak **JUDGE** **WP(C).NoS.26088/2019 & 26233/2019** **10** ## **APPENDIX OF WP(C) 26088/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE QUARRYING LEASE DATED 7/4/2018 BEARING NO. 17/201819/2683/M3/2017 DMG ISSUED BY THE SECOND RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 22/2/2018 BEARING NO. 35/2018 ISSUED BY THE THIRD RESPONDENT** **EXHIBIT P3** **TRUE COPY OF THE CONSENT TO OPERATE DATED 5/3/2018 BEARING FILE NO. PCB/KKD/DO-1885/2011 ISSUED BY THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD** **EXHIBIT P4 TRUE COPY OF THE LICENSE NO. B4/9860/454/2017-18** **EXHIBIT P5** **COPY OF THE STOP MEMO DATED 25/9/2019 BEARING NO B5-6304/19 ISSUED BY THE FIFTH RESPONDENT** **EXHIBIT P6** **COPY OF THE OBJECTION DATED 30/9/2019 AND ITS ACKNOWLEDGMENT RECEIPT** ## **WP(C).NoS.26088/2019 & 26233/2019** **11** ## **APPENDIX OF WP(C) 26233/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE QUARRYING PERMIT ISSUED BY THE DEPARTMENT OF MINING AND GEOLOGY, KOZHIKODE DATED 06.06.2019.** **EXHIBIT P2 TRUE COPY OF LICENSE ISSUED BY THE 1ST RESPONDENT FOR THE PERIOD 21.02.2019 TO 31.03.2021.** - **EXHIBIT P3 TRUE COPY OF RELEVANT PAGES OF ENVIRONMENTAL CLEARANCE ISSUED BY THE COMPETENT AUTHORITY FORMED UNDER THE ENVIRONMENT IMPACT ASSESSMENT NOTIFICATION, 2006 DATED 13.06.2018.** **EXHIBIT P4 TRUE COPY CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DISTRICT OFFICE, KOZHIKODE DATED 12.09.2018 AND VALID UP TO 13.06.2023. EXHIBIT P5 TRUE COPY EXPLOSIVE LICENSE DATED 08.11.2018 TO POSSESS AND USE EXPLOSIVES FROM MAGAZINE WITH RESPECT TO THE QUARRY ISSUED BY THE PETROLEUM AND EXPLOSIVES SAFETY ORGANIZATION (PESO).** **EXHIBIT P6 TRUE COPY OF ORDER DATED 25.09.2019 ISSUED BY THE 1ST RESPONDENT DIRECTING TO STOP QUARRY. EXHIBIT P7 TRUE COPY OBJECTION TO EXT.P6 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P8 TRUE COPY OF RECEIPT SHOWING ACCEPTANCE OF EXT.P7 BY THE 1ST RESPONDENT.** //TRUE COPY// P.A TO JUDGE