Santo Joseph and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936** ## **WP(C).No. 9230 of 2014 (C)** **--------------------------------------** **PETITIONERS:** - **-------------------** **1. SANTO JOSEPH, KUNUMPURATH HOUSE, KATHALIKKADU P.O., PIRALIMATTOM, ERNAKULAM DISTRICT.** **2. SAJI. A.S. ASARIMATTEL HOUSE, KATHALIKKADU P.O., PIRALIMATTOM ERNAKULAM DISTRICT.** **3. ANILKUMAR K** - **PUTHENPURAYIL HOUSE, KATHALIKKADU P.O., PIRALIMATTOM ERNAKULAM DISTRICT.** ## **BY ADV. SRI.GEORGEKUTTY MATHEW** **RESPONDENTS:** **-----------------------** **1. SATATE OF KERALA, REPRESENTED BY ITS SECRETARY DEPARTMENT OF LOCAL SELF GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695007.** ## **2. THOMAS JOSEPH** **MANAYANICKAL HOUSE, VENGALLUR P.O., THODUPUZHA IDUKKI DISTRICT, PIN - 685 584.** **3. MANJALLUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, VAZHAKKULAM P.O. ERNAKULAM DISTRICT, PIN - 686 670.** **4. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTUTIONS, VANCHIYOOR, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY.** **R1 & 4 BY GOVERNMENT PLEADER SRI.ABHIJITH LESLIE R2 BY ADVS. DR.K.P.SATHEESAN (SR.)** **SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN** **R3 BY ADV. SRI.MANUEL THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-07-2014 THE COURT ON 14-08-2014, THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 9230 of 2014 (C)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** ## **EXHIBIT P1 : A TRUE COPY OF THE DECISION NO.II DATED 30.10.2013 OF THE 3RD RESPONDENT PANCHAYATH** **EXHIBIT P2 : A TRUE COPY OF THE ORDER DATED 21.03.2014 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS** **EXHIBIT P3 : THE TRUE COPY OF THE REGULATION NO.164 OF THE METALIFEROUS MINES REGULATIONS** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **EXHIBIT R2(A): COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR MUVATTUPUZHA DATED 16/11/10** **EXHIBIT R2(B): COPY OF THE SKETCH GIVEN BY THE TAHSILDAR, MUVATTUPUZHA EXHIBIT R2(C): COPY OF THE QUARRYING PERMIT GIVEN BY THE GIOLOGIST DEPARTMENT OF MINING AND GEOLIGY DISTRICT OFFICE, ERNAKULAM DATED 26/6/13** **EXHIBIT R2(D): COPY OF THE CONSENT TO OPERATE THE QURRY GIVEN BY THE KERALA STATE POLLLUTION CONTROL BOARD DATED 5/1/13** **EXHIBIT R2(E): COPY OF THE ORDER NO.B1-421/2011 DATED 25/4/12 ISSUED BY THE SECRETARY, MANJALLOOR GRAMA PANCHAYATH EXHIBIT R2(F): COPY OF THE LICENSE ISSUED BY THE MANJALLOOR GRAMA PANCHAYATH DATED 28/9/13** **EXHIBIT R2(G): COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM IN APPEAL NO.1151/2013 DATED 22/2/14. EXHIBIT R3(A): COPY OF WRITTEN STATEMENT FILED BY THE 3RD RESPONDENT MANJALLOOR GRAMA PANCHAYATH IN APPEAL NO.40/2014 BEFORE THE LOCAL SELF GOVERNMENT INSTITUTIONS TRIVANDRUM.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------W.P.(C) No.9230 of 2014 --------------------------------------------Dated this the 14[th] day of August, 2014 ## **JUDGMENT** Under challenge in this writ petition is Ext.P2 order passed by the Tribunal for Local Self Government Institutions in Appeal No.40 of 2014 which was filed by the second respondent challenging Ext.P1 decision of the respondent Panchayat deciding to stop the running of granite quarry. 2. The second respondent applied for a permit under Section 233 of the Panchayat Raj Act before the third respondent Panchayat for establishing a granite quarry in 1.70 hectres of Government land (Baren land) comprised in Sy.No.79/1/5/1 of Manjalloor Village in Muvattupuzha Taluk. The Executive Committee of the Panchayat as per Resolution No.IV(2) dated 19.4.2012 granted installation permit. WPC No.9230 of 2014 2 3. Alleging that the proceedings of the Panchayat was illegal, the petitioners filed Appeal No.1151/2013 before the Tribunal for Local Self Government challenging the aforesaid resolution. 4. Certain local inhabitants raised a protest against the permission to conduct the quarry and requested the Panchayat to prohibit the quarry. Therefore, the Panchayat took Ext.P1 decision directing the second respondent to stop the functioning of the quarry. This decision was challenged by the second respondent in Appeal No.40 of 2014. Appeal No.1151 of 2013 filed by the petitioners were dismissed for default as there was no appearance when the case was called and the appeal filed by the second respondent was disposed of on 21.3.2014 by Ext.P2 order by which the Tribunal set aside Ext.P1. It is with this background, the petitioners have come up before this Court. 5. The second respondent filed a counter affidavit contending that he has taken possession of WPC No.9230 of 2014 3 the land belonging to the Government as per release deed for a period of 10 years from 16.11.2010 and after taking the property on lease, he had obtained Ext.R2(c) permit from the Department of Mining and Geology and Ext.R2(d) consent from the Kerala State Pollution Control Board. Thereafter the second respondent applied for D&O license before the respondent Panchayat who granted permission for installation of 400 HP machineries for running the quarry as per Ext.R2(e). He has also obtained license for running the quarry as per Ext.R2(f). According to the second respondent, the Panchayat issued a stop memo to him on extraneous reasons which was challenged by him before the Tribunal for Local Self Government which resulted in the impugned order. 6. The second respondent would further contend that even though the petitioners filed Appeal No.1151 of 2013 before the Tribunal challenging the license already issued to him, they WPC No.9230 of 2014 4 did not appear before the Tribunal pursuing the matter. Therefore it was dismissed for default. He would further contend that the petitioners themselves admit that they are residing within a radius of 300 metres from the site of the quarry and the second respondent has sufficient shelters near the quarrying area and appropriate and suitable steps were taken before blasting. They would further contend that the petitioners have their own residential buildings at a distance of 200 metres which can be very well used as their shelter. It is also alleged that the writ petition is vitiated by _mala fides_ and ill motives. Therefore, he prayed for a dismissal of the writ petition. 7. The third respondent Panchayat filed a separate counter affidavit where in they admit that the second respondent had obtained requisite permit from the authorities concerned. According to them, the respondent Panchayat was convinced that there are no residential buildings within 100 WPC No.9230 of 2014 5 metres of quarrying site and there exists no risk to life or property of neighbors residing there and ultimately, the installation permit was issued. They would contend that thereafter a stop memo was issued on the basis of the protest by the local residents. According to them, the Panchayat being a local body is bound to protect the interest of the local public around the quarry as regards their health and welfare. Therefore, they justified Ext.P1 decision. 8. Arguments have been heard. 9. Admittedly, the second respondent had obtained a lease in respect of the property in dispute from the Government for a period of 10 years from 16.4.2010. Evidently, the second respondent had obtained requisite permit from the Mining and Geology Department and Kerala State Pollution Control Board. The granting of a permit to the second respondent by the respondent Panchayat was objected to by the petitioners on the WPC No.9230 of 2014 6 ground that they are residing within the dangerous zone of 300 metres from the site of the quarry. 10. According to the petitioners, Regulation No.164 of Metaliferous Mines Regulations is to be followed in granite quarries. The same is produced as Ext.P3 in this case. Regulation No.164 mandates that the blasting in the quarries can be done only after ensuring that all the persons in the dangerous zone of 300 metres have taken safe shelter. According to the second respondent, the residential houses of the petitioners are at a distance of 200 metrs. According to the petitioners, the Tribunal had passed Ext.P2 order without considering these facts. 11. However, in the counter affidavit filed by the third respondent Panchayat, it is averred that the Secretary of the Panchayat had inspected the site and having convinced that there are no residential buildings within 100 metres of quarrying site and there exists no risk to life or property of WPC No.9230 of 2014 7 neighbors residing there, submitted his report under Section 233(3) of the Kerala Panchayat Raj Act before the Panchayat Committee. It was on the basis of the same, permits and certificates were issued by the statutory authorities. 12. The learned counsel for the petitioners would further argue that the learned Tribunal in Ext.P2 order has relied on the decision of this Court in _**Action Council**_ v _**Benny Abraham**_ (2001(2) KLT 690) which was overruled by the Supreme Court in _**Action Council**_ v _**Benny Abraham**_ (2002(2) KLT 278). The finding of this Court was that while dealing matters under Sections 232 and 233 of the Kerala Panchayat Raj Act 1994, if an entrepreneur produced sufficient positive certification from the competent authorities, the Panchayat/President is liable to act on the same and issue permission unless bound by valid reasons. As rightly pointed out by the learned counsel the same was overruled by the Supreme Court holding that the Panchayat WPC No.9230 of 2014 8 was fully justified in refusing to grant license to the entrepreneur. However, it is crucial to note that in order to take a contrary decision, the Panchayat should have valid reasons. What is stated in Ext.P1 is that some local inhabitants have complained against the operation of the quarry on the ground that the same would disturb the distribution of electricity and drinking water to that area and it would be a threat to the life and properties of the local inhabitants. This is not true, according to the report of the Secretary of the Panchayat on the basis of which permission was already granted. 13. The Apex Court in _**Deepak Kumar**_ v _**State of Haryana and Ors.**_ (AIR 2012 SC 1386) has highlighted the necessity of obtaining clearance from the Environmental Impact Assessment Authority in such cases, as it is necessary to ascertain whether the functioning of a quarry would endanger the environment ultimately affecting the flora and fauna of the locality. Though the second WPC No.9230 of 2014 9 respondent had obtained clearance from all other authorities concerned, there is nothing on record to show that the second respondent has obtained clearance from the Kerala State Environmental Impact Assessment Authority in this matter. 14. As the second respondent has obtained requisite licenses from the authorities, this Court is of the view that Ext.P2 can be allowed to stand subject to clearance from the Kerala State Environmental Impact Assessment Authority. 15. Though the petitioners have taken a further contention that the appeal filed by the second respondent was not in time, it appears from record that such a contention was not taken by the petitioners before the learned Tribunal for Local Self Government. 16. On a consideration of the entire materials now placed on record, this writ petition is disposed of upholding Ext.P2 order subject to the clearance for the Kerala State Environmental Impact WPC No.9230 of 2014 10 Assessment Authority which shall be obtained by the second respondent within a period of two months from the date of receipt of a copy of this judgment. On production of the same by the second respondent before the third respondent authority, the respondent Panchayat shall permit the second respondent to proceed with the quarrying operations. **Sd/-A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy P.S.TO JUDGE