Shajimon E.N. v. District Collector, et al.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **WP(C).No.32040 OF 2019(D)** ## **PETITIONER:** **SHAJIMON E.N., AGED 53 YEARS S/O. K. NARAYANAN, EZHUKANDAYIL HOUSE, VAIKOM P O, KOTTAYAM DISTRICT.** **BY ADV. SRI.JOBI JOSE KONDODY** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, COLLECTORATE, COLLECTORATE P O, KOTTAYAM-686002.** - **2 THE ADDITIONAL DISTRICT MAGISTRATE, KOTTAYAM, OFFICE OF THE ADDITIONAL DISTRICT MAGISTRATE, CIVIL STATION, COLLECTORATE P O, KOTTAYAM-686002.** - **3 THE DISTRICT POLICE CHIEF, DISTRICT POLICE OFFICE, CIVIL STATION, COLLECTORATE P O, KOTTAYAM-686002.** - **4 THE DEPUTY SUPERINTENDENT OF POLICE(SPECIAL BRANCH) DISTRICT POLICE OFFICE, CIVIL STATION, COLLECTORATE P O, KOTTAYAM-686002.** - **5 THE TAHSILDAR, MEENACHIL TALUK OFFICE, MINI CIVIL STATION, PALA-RAMAPURAM ROAD, PALA, KOTTAYAM-686575.** - **6 THE VILLAGE OFFICER, VELIYANNOOR VILLAGE OFFICE, VELIYANOOR P O, KOTTAYAM-686634.** - **7 THE VELIYANNOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, VELIYANNOOR GRAMA PANCHAYATH OFFICE, VELIYANNOOR P O, KOTTAYAM -686634.** **WP(C).No.32040 OF 2019(D)** **2** **8 THE SECRETARY, VELIYANNOOR GRAMA PANCAYAYATH, VELIYANNOOR GRAMA PANCHAYATH OFFICE, VELIYANNOOR P O, KOTTAYAM -686634.** **R1-4 BY GOVERNMENT PLEADER R7-8 BY ADV. SRI.K.S.ARUN KUMAR R7-8 BY ADV. SRI.JUSTINE JACOB** ## **SR GP SRI RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.32040 OF 2019(D)** **3** ## **JUDGMENT** The petitioner is an aspirant to set up a quarry and holder of a Environmental Clearance from the Sate Environmental Impact Assessment Authority has impugned order Ext.P16 issued by the Additional District Magistrate, refusing to grant No Objection Certificate for Explosive licence and Ext.P17 issued by the Secretary of the Panchayath refusing to grant D & O Licence under Section 233 and building permit under Kerala Panchayath Building Rules 2019. 2. Sri.Joby Jose, Kondody, learned counsel appearing on behalf of the petitioner submits that Ext.P16 order _ex facie_ not sustainable in the eyes of law and this is not in consonance with the provisions of Rule 103 of Explosive Rules 2008. It is solely based upon the communication only on the complaint of the Panchayath, that the residents of the Panchayath do not wish to allow the setting up of the quarry. As far as the other orders Exts.P17 and P18 are concerned they are also not sustainable in the eyes of law as the power to refuse licence under sub-section 3 of Section 233 of the Kerala **WP(C).No.32040 OF 2019(D)** **4** Panchayath Raj Act, 1994 has been omitted by an amendment attributed by the legislature vide amendment dated 07.04.2018. The counter of the 2[nd] respondent, attempting to justify the order cannot also have any foundation for the strict principles of natural justice in hearing the public, the aggrieved party and as well as the petitioner, the applicant, have not been complied with. Particularly when the mere hurdle of starting quarry with the Environmental Clearance which the petitioners possess. Sri.Rajasekaharan Nair, senior learned Government Pleader, reports the impugned order that the area is not only conducive for setting up the quarry, but is also prone to land slides. There was quarry in that area which was stopped due to the public protest. No doubt the Regional officer, Fire and rescue Department submitted a favourable report in the case of the applicant for carrying out the activity of quarrying of the mining building stones, but the Additional District Magistrate refused to give NOC for LE-3 licence. There is no limitation of responsibility of the District collector to make an enquiry in a specific manner Thus the question of hearing at this stage was not at all necessary as there is no **WP(C).No.32040 OF 2019(D)** **5** prevalence in the Act or Rules consisting of personal hearing. It has also drawn the attention of this Court to the memo, an affidavit of the Deputy Superintendent of police, District Special Branch Kottayam, the 4[th] respondent expressing that the nearby residents had expressed the concern that in case the quarry or licence granted they will organize agitation and it may entail into law and order problems. 3. Mr. K.S.Arunkumar, learned Standing Counsel appearing for Panchayath submits that suppose, the order Exts.P17 and P18 refusing to grant the permission under Section 233 and 134 of the Kerala Panchayath Building Rules on the premise that the Additional District Magistrate had refused to grant the No Objection Certificate under the Explosive Rules. 4. Heard the learned counsel for the parties, noticing the respective stands as well as the provisions of law particularly Rule 103 which is extracted herein below: “103. Procedure to be observed for issue of no objection certificate and for grant of licence.- (1) The applicant desiring to obtain a licence from the Chief Controller or **WP(C).No.32040 OF 2019(D)** **6** Controller, shall apply to the District Magistrate or the Director-General of Mines Safety with copies of the site plan showing the location of the premises proposed to be licensed for issue of a certificate to the effect that there is no objection to the applicant receiving licence for the site proposed. ## (2) xxx (3) The District magistrate on receipt of application referred in sub-rule (1), shall make verification of the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other verifications or enquiries as may be specifically required by the licensing authority to be carried out, if any, and on any other matter as deemed necessary. (a)For verification of the interest of public, the District Magistrate shall forthwith cause a notice to be published calling upon the public to submit objections, if any, with reasons thereof, within a period of one month from the date of publication of the notice and specifying the date, time and place for consideration of objections by him. Where the site of the proposed premises lies within 1.5 kilometers of the limits of the jurisdiction of any town planning municipal authority or port or air port of satellite or space craft launching station or similar establishments of national importance, the District Magistrate shall cause the notice to be served to such authority or establishment. The day of hearing for consideration of objections shall be fixed as early as possible, after the expiration of the period of one month from the date of publication of notice. On receipt of objection, the District Magistrate shall call the person or persons raising objection and also the applicant, giving not less than seven clear days before the day fixed for hearing **WP(C).No.32040 OF 2019(D)** **7** for consideration of the objection. On the day fixed for the hearing or any day to which such hearing may be adjourned from time to time, the District Magistrate shall hear any objection relating to the purpose of no objection certificate and shall make such enquiry, as he may deem necessary to assess justification of such objection.” 5. I am of the prima facie view that it is a fit case where the matter which is required to be revisited at the level of the Additional District Magistrate as the order Ext.P16 is not in conformity of the aforementioned provisions. Though this court should have called the explanation of the Additional District Magistrate in supporting the impugned order by averring that there is no provision of granting of personal hearing, but I am afraid that is a misreading of the provisions extracted above, but I am afraid to do so as the plain and simple language of the aforementioned rules it is discernible that it is the hearing of the public and as well as the applicant has to be accorded. The aforementioned view of mine is reiterated from the finding rendered by the learned Single Bench of this Court in _**Joy Joseph v. District Collector**_ [2016 (3) KLT 514]. According to the impugned order Ext.P16 is set aside matter is remitted to the District Collector or the **WP(C).No.32040 OF 2019(D)** **8** Additional District Magistrate to start a fresh proceedings in respect of consideration of the prayer in the application for issuance of No Objection Certificate specific Rules strictly as per the provisions of Rule 103 and as well as the observation of this Court. 6. As regards the impugned orders Exts.P17 and P18 concerned, _prima facie_ they are not sustainable in view of the fact that power to refuse has been taken away from the domain of the Secretary in view of amendment dated 07.04.2018. At the behest the Grama Panchayth could have granted the permission subject to certain limitation and conditions like clearance and all the permissions from the other statutory Authorities including the No Objection Certificate from the area. The aforementioned view of this court is also derived from the judgment of this Court in _**Tommy Thomas v. State of Kerala**_ [2019 (3) KLT]. Accordingly order Exts.P17 and P18 are also set aside on the short ground. It is made clear that anything observed herein would not be construed and expression of opinion on consideration of the merits of the **WP(C).No.32040 OF 2019(D)** **9** application submitted by petitioner for obtaining the necessary permissions like the No objection certificate under Explosive Rules, provision under Section 233 and 134 of the Kerala Panchayath Building Rules. Let this exercise by the ADM be undertaken within a period of two months in accordance with law after affording an opportunity of hearing. This writ petition stands disposed of with the aforementioned terms. **Sd/-** nak **AMIT RAWAL JUDGE** **WP(C).No.32040 OF 2019(D)** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE ENVIRONMENTAL**| |---|---| ||**CLEARANCE DATED 23.04.2016 GRANTED BY**| ||**THE SEIAA, KERALA TO THE PETITIONER.**| |**EXHIBIT P2**|**A TRUE COPY OF THE CONSENT TO OPERATE**| ||**DATED 19.10.2016 ISSUED BY THE KERALA**| ||**STATE POLLUTION CONTROL BOARD TO THE**| ||**PETITIONER.**| |**EXHIBIT P3**|**A TRUE COPY OF THE INTEGRATED CONSENT TO**| ||**OPERATE-RENEWAL ISSUED BY THE KERALA**| ||**STATE POLLUTION CONTROL BOARD TO THE**| ||**PETITIONER DATED 30.07.2019 VALID UPTO**| ||**22.04.2021.**| |**EXHIBIT P4**|**A TRUE COPY OF THE MINUTES OF THE**| ||**PANCHAYAT COMMITTEE MEETING OF THE**| ||**SEVENTH RESPONDENT DATED 20.07.2016.**| |**EXHIBIT P5**|**A TRUE COPY OF THE ORDER DATED**| ||**29.11.2016 PASSED BY THE SECOND**| ||**RESPONDENT REJECTING THE APPLICATION FOR**| ||**NO OBJECTION CERTIFICATE FILED BY THE**| ||**PETITIONER IN ORDER TO OBTAIN A FORM LE-**| ||**3 LICENSE UNDER THE EXPLOSIVE RULES,**| ||**2008 FROM THE JOINT CHIEF CONTROLLER OF**| ||**EXPLOSIVES, SOUTH CIRCLE, CHNNAI.**| |**EXHIBIT P6**|**A TRUE COPY OF THE JUDGMENT DATED**| ||**31.05.2019 IN WP(C) NO.1695 OF 2017**| ||**PASSED BY THE LEARNED SINGLE JUDGE OF**| ||**THE HONOURABLE COURT.**| |**EXHIBIT P7**|**A TRUE COPY OF THE FORM AE-12**| ||**APPLICATION DATED 24.06.2019 SUBMITTED**| ||**BY THE PETITIONER BEFORE THE SECOND**| ||**RESPONDENT.**| |**EXHIBIT P8**|**A TRUE COPY OF THE FTTO LICENSE**| ||**APPLICATION DATED 28.10.2019 SUBMITTED**| ||**BY THE PETITIONER BEFORE THE EIGHTH**| ||**RESPONDENT FOR STARTING THE QUARRY IN**| ||**THE AREA COVERED VIDE EXHIBIT P5.**| **WP(C).No.32040 OF 2019(D)** **11** |**EXHIBIT P9**|**A TRUE COPY OF THE ONLINE APPLICATION**| |---|---| ||**DATED 25.10.2019 SUBMITTED BY THE**| ||**PETITIONER FOR BUILDING PERMIT FOR**| ||**ERECTION OF MAGAZINE BEFORE THE SEVENTH**| ||**RESPONDENT.**| |**EXHIBIT P10**|**A TRUE COPY OF THE REPORT DATED**| ||**26.07.2019 FILED BY THE FOURTH**| ||**RESPONDENT BEFORE THE THIRD RESPONDENT.**| |**EXHIBIT P11**|**A TRUE COPY OF THE REPORT DATED**| ||**17.08.2019 OF THE THIRD RESPONDENT FILED**| ||**BEFORE THE FIRST RESPONDENT.**| |**EXHIBIT P12**|**A TRUE COPY OF THE REPORT DATED**| ||**02.07.2019 OF THE SIXTH RESPONDENT**| ||**SUBMITTED BEFORE THE FIFTH RESPONDENT.**| |**EXHIBIT P13**|**A TRUE COPY OF THE REPORT DATED**| ||**08.07.2019 OF THE FIFTH RESPONDENT**| ||**SUBMITTED BEFORE THE FIRST RESPONDENT.**| |**EXHIBIT P14**|**A TRUE COPY OF THE REPORT OF THE EIGHTH**| ||**RESPONDENT DATED 02.08.2019 SUBMITTED**| ||**BEFORE THE FIRST RESPONDENT.**| |**EXHIBIT P15**|**A TRUE COPY OF THE NO OBJECTION**| ||**CERTIFICATE DATED 26.07.2019 ISSUED BY**| ||**THE REGIONAL FIRE OFFICER, KOTTAYAM**| ||**RECOMMENDING ERECTION OF EXPLOSIVE**| ||**MAGAZINE IN THE PROPERTY COVERED BY**| ||**EXHIBIT P1.**| |**EXHIBIT P16**|**A TRUE COPY OF THE ORDER DATED**| ||**18.10.2019 ISSUED BY THE SECOND**| ||**RESPONDENT REFUSING THE GRANT OF NO**| ||**OBJECTION CERTIFICATE UNDER RULE 103(3)**| ||**OF THE EXPLOSIVES RULES, 2008 FOR**| ||**ERECTION OF EXPLOSIVE MAGAZINE IN THE**| ||**PROPERTY COVERED VIDE EXHIBIT P1.**| |**EXHIBIT P17**|**A TRUE COPY OF THE ORDER DATE 4.11.2019**| ||**ISSUED BY THE EIGHT RESPONDENT**| ||**INTIMATING THE PETITIONER INTIMATING THE**| ||**PETITIONER THAT THIS FTTO LICENSE**| ||**APPLICATION VIDE EXHIBIT P8 CANNOT BE**| ||**CONSIDERED.**| **12** ## **WP(C).No.32040 OF 2019(D)** **EXHIBIT P18 A TRUE COPY OF THE ORDER DATED 05.10.2019 ISSUED BY THE EIGHTH RESPONDENT STATING THAT EXHIBIT P9 APPLICATION FOR BUILDING PERMIT FOR ERECTION OF EXPLOSIVE MAGAZINE CANNOT BE PROCEEDED WITH.** //TRUE COPY// P.A TO JUDGE