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High Court of KeralaSingle JudgeWrit petition dismissed by this Court.

Roslind John v. State of Kerala and District Geologist, Department of Mining and Geology

Case / Petition Number:W.P.(C.) No. 32554 of 2017 (T)
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. B. Suresh Kumar
Judgment Date
2017-10-25
Court Decision / Holding
There is no merit in the writ petition and the same is dismissed.
Final Disposition
Writ petition dismissed by this Court.

Parties to the Case

Appellants / Petitioners

  • Roslind John

Respondents

  • State of Kerala
  • The District Geologist, Department of Mining and Geology, Ernakulam District

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. P. M. Ziraj

Counsels for Respondents

  • • Sri. S. Kannan (Government Pleader)

Case Synopsis & Summary

Roslind John, the petitioner, runs a granite quarry operating under Ext.P2 lease. She asserts that she holds all requisite licences and permissions to conduct quarrying at the site and challenges Ext.P10, a stop notice dated 03.10.2017 issued by the District Geologist directing cessation of quarrying because a residential building lies within 50 metres of the quarry. The petition contends that Rule 40(1)(i) of the Kerala Minor Mineral Concession Rules, 2015 prohibiting quarrying within 50 metres of a residential building is not absolute, and that the owner of the affected building (Ext.P9) has no objection to continued quarrying. The State counters that the rule is a public-interest restriction enacted under the Mines and Minerals (Development and Regulation) Act, 1957, and cannot be overridden by the affidavit of an affected party. The petitioner relies on a textual clause in Rule 40(1)(i) allowing exceptions with prior permission for certain items, but the court interprets this to mean that the restriction is broadly public in nature and not waivable. In articulating the interpretation, the court cites Krishnan Lal v. State of Jammu and Kashmir and Maxwell’s Interpretation of Statutes to emphasize that statutory restrictions framed in public interest cannot be defeated by private consent. Ultimately, the writ petition is dismissed as devoid of merits, reinforcing the public-interest character of the 50-metre prohibition.

Provisions of Law Cited

Mines and Minerals (Development and Regulation) Act, 1957, Section 15(1)Kerala Minor Mineral Concession Rules, 2015, Rule 40(1)(i)

Legal Doctrines & Maxims

  • Statutory stipulations made in public interest cannot be waived by affidavit or consent of the affected person
  • Public interest considerations override private consent when statutory restrictions exist

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Rule 40(1)(i) of the Kerala Minor Mineral Concession Rules, 2015, which prohibits quarrying within 50 metres of a residential building, is not an absolute bar. Ext.P9, an affidavit from the owner of the nearby residential building, states no objection to quarrying, suggesting that the petitioner could continue operations with the owner’s consent. The applicant argues that the clause 'except with the previous permission of the authorities concerned or the Government or competent authority' should be read in a manner that permits exemptions in light of building-owner consent, and that the public-interest stance of the rule does not preclude such consent-based waivers. The applicant also relies on the statutory framework under MMDR Act, arguing that the rules should accommodate reasonable exceptions.

Contentions of Respondents

The respondents emphasize that Rule 40(1)(i) constitutes a protective, public-interest limitation designed to safeguard residential areas. They contend that waiving such protections by private consent would undermine the statutory objective of the rule, which is framed under Section 15(1) of the MMDR Act. They argue that the words permitting prior permission do not extend to waivers by affected residents, and that the public-interest nature of the restriction cannot be circumvented by affidavit. The court is urged to uphold the restriction as an essential regulatory safeguard for public welfare and environmental concerns, and to dismiss the petition as lacking merit.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Krishnan Lal v. State of Jammu and Kashmir(1994) 4 SCC 422PositiveThe judgment relies on Krishnan Lal to support the proposition that statutory stipulations framed in public interest cannot be waived by an affected person’s affidavit or consent.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939** ## **WP(C).No. 32554 of 2017 (T)** **----------------------------** **PETITIONER: ------------------ROSLIND JOHN, W/O. LATE V. P. JOHN, AGED 66 YEARS, VADASSERY HOUSE, PACHALAM P.O, VADUTHALA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.P.M.ZIRAJ** **RESPONDENT(S):** |**--------------**|| |---|---| |**1.**|**STATE OF KERALA,**| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES**| ||**DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2.**|**THE DISTRICT GEOLOGIST,**| ||**DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, KAKKANAD,**| ||**ERNAKULAM DISTRICT-682030.**| **BY SPL GOVERNMENT PLEADER SRI. S. KANNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 32554 of 2017 (T)** **----------------------------** ## **APPENDIX** ## **------------------** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** - **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 8.3.2006 ISSUED BY DIRECTOR OF MINING AND GEOLOGY, THIRUVANANTHAPURAM.** - **EXHIBIT P2 TRUE COPY OF THE QUARRYING LEASE DATED 22.3.2006 EXECUTED BETWEEN THE FIRST RESPONDENT AND SECOND RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE-RENEWAL DATED 20.1.2016 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P4 TRUE COPY OF THE CONSENT VARIATION ORDER DATED 28.9.2016 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P5 TRUE COPY OF THE LICENSE DATED 11.5.2017 ISSUED BY THE THRIKKAKARA MUNICIPALITY.** - **EXHIBIT P6 TRUE COPY OF THE EXPLOSIVE LICENSE DATED 26.11.2014 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM.** - **EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED 29.8.2017 IN WPC NO.18036 OF 2017.** - **EXHIBIT P8 TRUE COPY OF THE CERTIFICATE DATED 28.9.2017 ISSUED BY THE VILLAGE OFFICER, VAZHAKKALA.** - **EXHIBIT P9 TRUE COPY OF THE AFFIDAVIT DATED 3.10.2017 SWORN BY PRASANTH A.** - **EXHIBIT P10 TRUE COPY OF THE STOP MEMO DATED 3.10.2017 ISSUED BY THE SECOND RESPONDENT.** |**RESPONDENT(S)' EXHIBITS**|**NIL**| |---|---| |**---------------------------------------**|| ||**/TRUE COPY/**| ||**PA TO JUDGE**| **sdr/-** ## **C.R.** ## **P.B.SURESH KUMAR, J.** ## **==================** ## **W.P.(C.) No.32554 of 2017** ## **---------------------------------------------Dated this the 25[th] day of October, 2017** ## **JUDGMENT** Petitioner is operating a granite quarry on the strength of Ext.P2 quarrying lease. It is stated by the petitioner that she possesses all the requisite licences and permissions to carry out quarrying operations at the site covered by Ext.P2 quarrying lease. On 03.10.2017, the petitioner was issued Ext.P10 notice by the second respondent by which she was asked to stop the quarrying activities at the site referred to above. It is recited in Ext.P10 notice that the direction contained therein is issued since there exists a residential building within 50 meters from the site of the quarry. Ext.P10 notice is under challenge in the writ petition. **2** **W.P.(C.) No.32554 of 2017** 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. 3. The fact that Rule 40(1)(i) of the Kerala Minor Mineral Concession Rules, 2015 ('the Rules') prohibits lessees under quarrying leases from conducting carrying operations within 50 meters from residential buildings is not disputed by the petitioner. The contention of the petitioner, on the other hand, is that the owner of the building referred to in Ext.P10 notice has no objection in the petitioner carrying on the quarrying operations at the site. Ext.P9 affidavit of the owner of the residential building referred to above is relied on by the petitioner in support of her case that the owner of the residential building has no objection against the quarrying operations. 4. The Rules have been framed by the Government in exercise of the powers conferred by subsection (1) of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 ('the Act'). Sub- **3** **W.P.(C.) No.32554 of 2017** section (1) of Section 15 of the Act confers power on the State Government to make rules for regulating, among others, grant of quarry leases in respect of minor minerals and for purposes connected therewith. Rule 40(1)(i) of the Rules reads thus: 40. Conditions of quarrying lease.—(1) Every quarrying lease shall be subject to the following conditions and/or any other conditions that may be imposed by the competent authority and such conditions shall be incorporated in every quarrying lease deed,— **==> picture [100 x 17] intentionally omitted <==** **==> picture [143 x 46] intentionally omitted <==** **==> picture [100 x 13] intentionally omitted <==** (i) in cases where explosives are not used for quarrying, the lessee shall not carry on or allowed to be carried on any quarrying operations at or to any points within a distance of 75 metres from any railway line except with the previous written permission of the railway administration concerned and any bridge on National Highway or 50 metres from any reservoir, tanks, canals, rivers, bridges, public roads, other public works, residential buildings, the boundary walls of places of worship, burial grounds, burning ghats or any Government protected monuments or forest lands except with the previous permission of the authorities concerned or the Government or competent authority: Provided that the railway administration or the State Government or any other authority in this behalf may in granting such permission impose such other conditions as may be found proper and necessary: **4** **W.P.(C.) No.32554 of 2017** Provided further that in cases where explosives are used for quarrying, the lessee shall not carry on or allowed to be carried on any quarrying operations at or to any points within a distance of 100 metres from any railway line, bridges, reservoirs, tanks, residential buildings, Government protected monuments, canals, rivers, public roads having vehicular traffic, any other public works or the boundary walls of places of worship or 50 metres from any burial grounds or burning ghats or forest lands; Having regard to the provisions contained in the Act and the Rules, it is beyond dispute that the stipulations contained in Rule 40(1)(i) of the Rules that there shall not be any quarrying operations within 50 meters from residential buildings is a stipulation made in public interest. In so far as the stipulation aforesaid is one made in public interest, according to me, the petitioner cannot get over the said stipulation on the basis of the affidavit obtained from the affected person, for, the affected person cannot waive the benefit of such statutory stipulations made in public interest. Relying on a passage from Maxwell on 'The Interpretation of Statutes', the Apex Court has held so in **Krishnan Lal v. State of Jammu and Kashmir** [(1994)4 SCC 422]. **5** **W.P.(C.) No.32554 of 2017** 5. The learned counsel for the petitioner, relying on the expression 'except with the previous permission of the authorities concerned or the Government or competent authority' contained in Rule 40(1)(i) submits that the stipulation contained therein is not an absolute one and that therefore, the affected persons are entitled to waive the protection of the rule. I am unable to accept the aforesaid contention of the petitioner also. It is seen that Rule 40 (1) (i) imposes restrictions in the matter of conducting quarrying operations within the distances specified therein from railway lines, bridges on National Highway, reservoirs, tanks, canals, rivers, bridges, public roads, other public works, residential buildings, places of worship, burial grounds, burning ghats, national parks and wild life sanctuaries. As regards the restriction imposed therein in respect of railway lines, there is no difficulty in coming to the conclusion that the same is not absolute, as the rule permits relaxation with the previous written permission of **6** **W.P.(C.) No.32554 of 2017** the railway administration. It is seen that the expression 'except with the previous permission of the authorities concerned or the Government or competent authority' is used in the context of the remaining matters contained in the rule. Going by the words used in the expression aforesaid, in the absence of any mention in the expression about the persons residing in the residential buildings, I am of the view that the same would apply only to the places and objects referred to in the rule which are controlled by the Government, Governmental bodies and statutory authorities. There is, therefore, no merit in the writ petition and the same is, accordingly, dismissed. SKS **sd/P.B. SURESH KUMAR, JUDGE**