Subran, Vijayanan and Vasudevan v. Elias, Babu, Johny, Kumaran C.K., Shaju and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932** ## **WP(C).No. 9928 of 2010(M)** **-------------------------------------** ## **PETITIONERS:** - **---------------------** **1. SUBRAN, AGED 40 YEARS, S/O.AYYAPPAN, CHAKKALAKAL HOUSE, PULIYANAM DESOM, PARAKKADAVU VILLAGE, ERNAKULAM DISTRICT.** **2. VIJAYAN, AGED 42 YEARS, S/O.VALLON, CHAKKALAKAL HOUSE, PULIYANOM DESOM, PARAKKADAVU VILLAGE, ERNAKULAM DISTRICT.** **3. VASUDEVAN, AGED 45 YEARS, S/O.MANIYAN, KUMBARATH HOUSE, PULIYANOM DESOM, PARAKKADAVU VILLAGE, ERNAKULAM DISTRICT.** **BY ADV. SRI.K.S.RAJEEV (ALUVA).** ## **RESPONDENTS:** ## **------------------------** **1. ELIAS, AGED 50 YEARS, S/O.VAREED, PATTAMMADI VEEDU, PULIYANAM, ERNAKULAM DISTRICT.** **2. BABU, AGED 44 YEARS, S/O.DEVASI, KACHAPILLY HOUSE, MAMBRA, ERNAKULAM DISTRICT.** **3. JOHNY, AGED 50 YEARS, S/O.YOHANNAN, PAINADATH HOUSE, PULIYANAM, ERNAKULAM DISTRICT.** **4. KUMMARAN.C.K, AGED 55 YEARS, S/O.KURUMBAN, CHAKKALAKKAL HOUSE, PULIYANAM, ERNAKULAM DISTRICT.** **5. SHAJU, AGED 40 YEARS, S/O.THOMAS, MALIAKKAL HOUSE, KARAYAMPARAMBU, ERNAKULAM DISTRICT.** **6. DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM.** **W.P.(C). NO.9928/2010-M:** **7. THE SECRETARY, PARAKKADAVU GRAMA PANCHAYATH, PARAKKADAVU, ERNAKULAM DISTRICT.** **8. CHIEF ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, KOCHI-20.** **9. SENIOR GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, CIVIL STATION, KAKKANAD, ERNAKULAM.** **10. JOINT CHIEF CONTROLLER OF EXPLOSIVES, D.C.C.E, ERNAKULAM.** **11. CHIEF CONTROLLER OF EXPLOSIVES,GOVT.OF INDIA, DEPARTMENT OF EXPLOSIVES, SASTRI BHAVAN, CHENNAI.** **12. CHIEF CONTROLLER OF EXPLOSIVES, GOVT.OF INDIA, MINISTRY OF COMMERCE AND INDUSTRY PETROLEUM AND EXPLOSIVES SAFETY ORGANISATION, KENDRIYA BHAVAN, BLOCK C-2, 3RD FLOOR, CSEZ P.O, KAKKANAD, ERNAKULAM.** ## **13. C.I OF POLICE, ANGAMALY POLICE STATION.** ***ADDL.R.14 IMPLEADED:** **14. PARISTHITHI SAMRAKSHANA JANAKEEYA SAMITHY, REG. NO. ER. 527/08, KARUKUTTY .P.O., ERNAKULAM DISTRICT, REP. BY ITS PATRON P.P. PHILIP.** ***ADDL.R.14 IMPLEADED AS PER ORDER DATED 25/06/2010 IN I.A. NO. 8403/2010.** **R1 TO R3 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADV.SRI.SAIGI JACOB PALATTY,** **R5 BY ADVS.SRI.K.V.SOHAN, SRI.M.J.PAULSON, R6, R9 & R13 BY GOVT. PLEADER SMT. N. SUDHA DEVI, R7 BY ADVS. SRI.S.GOPINATHAN, SRI.JOHNSON ABRAHAM, SRI.NELSON ABRAHAM, R8 BY SRI.M.K.CHANDRA MOHANDAS,S.C, R.10 TO R.12 BY SRI.K.SANIL KUMAR, ADDL.CGSC, ADDL.R.14 BY ADV. SRI. K. ABDUL JAWAD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/11/2010, ALONG WITH W.P.(C). NO. 20390 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.9928/2010-M:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE INFORMATION COLLECTED FROM THE PANCHAYAT UNDER THE RIGHT INFORMATION ACT DTD. 16/03/10.** **EXT.P.2: COPY OF THE STOP MEMO ISSUED TO THE RESPONDENTS 1 TO 5, DTD. 29/10/09.** **EXT.P.3: COPY OF THE EXPLOSIVES LICENCE ISSUED TO THE R.1. DTD. 06/04/09.** ## **EXT.P.4: COPY OF THE REPRESENTATION MADE TO THE C.I OF POLICE, ANGAMALY.** ## **EXT.P.5: COPY OF THE REPRESENTATION MADE TO THE SECRETARY, KUNNUKARA GRAMA PANCHAYATH.** **EXT.P.6: COPY OF THE REPRESENTATION MADE TO THE MINING AND GEOLOGY DEPARTMENT.** ## **EXT.P.7: COPY OF THE REPRESENTATION MADE TO EXPLOSIVES DEPARTMENT.** **EXT.P.8: COPY OF THE MONTHLY STATEMENT SUBMITTED BY THE R.1. TO THE MINING AND GEOLOGY DEPARTMENT.** ## **EXT.P.9: COPY OF THE DECISION OF PARAKKADAVU PANCHAYATH DTD. 14/06/10.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1.A: COPY OF THE LICENSE ISSUED BY THE R.10 JOINT CHIEF CONTROLLER OF EXPLOSIVES IN FAVOUR OF R.1.** ## **EXT.R1.B: COPY OF THE SHORT-FIRER'S CERTIFICATE ISSUED TO THE R.1.** ## **EXT.R1.C: COPY OF THE QUARRYING PERMIT ISSUED BY THE R.9 TO THE R.1.** **EXT.R1.D: COPY OF THE CERTIFICATE ISSUED FROM THE POLLUTION CONTROL BOARD.** **EXT.R1.E: COPY OF A LETTER ISSUED BY THE SECRETARY, PARAKKADAVU GRAMA PANCHAYATH.** ## **EXT.R1.F: COPY OF THE LETTER ISSUED BY THE R.7 PANCHAYATH.** **EXT.R1.F: COPY OF THE SHORT FIRER'S PERMIT ISSUED BY THE DEPARTMENT OF EXPLOSIVES.** **EXT.R1.G: AFFIDAVIT OF P.V. JOHNY.** ## **EXT.R.14.A: COPY OF THE REGISTRATION CERTIFICATE OF THE SAMITHY.** ## **EXT.R.14.B: COPY OF THE RELEVANT PAGE OF THE PROCEEDINGS OF THE GRAMA SABHA.** **EXT.R.14.C: COPY OF THE REPRESENTATION DTD. 22/08/2008 PREFERRED BY THE SAMITHY.** **EXT.R.14.D: COPY OF THE REPRESENTATION DTD. 10/09/2008 PREFERRED BY THE SAMITHY.** **W.P.(C). NO.9928/2010-M:** ## **EXT.R.14.E: COPY OF THE REPRESENTATION DTD. 23/03/2009 PREFERRED BY THE SAMITHY TO THE SECRETARY, PARAKKADAVU GRAMMA PANCHAYATH.** **EXT.R.14.F: COPY OF THE PAPER REPORT REPORTED IN MALAYALA MANORAMA ON 11TH NOVEMBER, 2009.** **EXT.R.14.G: COPY OF THE PAPER REPORT REPORTED IN MALAYALA MANORAMA ON 9TH DECEMBER, 2009.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 9928/2010-M & 20390/2010-W** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 1st day of November, 2010.** ## **JUDGMENT** In W.P.(C) No.9928/2010 the petitioners are residents of Puliyanam Village in Parakkadavu Panchayat. They have approached this Court seeking for a direction to the 7[th] respondent to act upon Ext.P2 stop memo and initiate criminal prosecution against respondents 1 to 5 for violation of stop memo. The further prayer is to direct respondents 10 and 11 to cancel the explosive licence issued to the first respondent on the ground of violations of the conditions of licence. Prayer No.C therein is to prohibit respondents 1 to 5 from operating the quarry/crusher in Survey No.162/3-2, 159/4 and 163/11 for ever. 2. In W.P.(C) No.20390/2010 the petitioner who is the first respondent in W.P.(C) No.9928/2010, is seeking for a direction to the Panchayat who is the respondent therein, to consider Ext.P2 application for licence. 3. The allegations in W.P.(C) NO.9928/2010 are the following: The houses of the petitioners are situated very close to the units of respondents 1 to 5. It is pointed out that the first petitioner's house is very close to the wpc 9928 & 20390 of 2010 2 units and it is situated 10 to 30 feet away from the units of respondents 1 to 3. The operation of units is causing heavy damage to the buildings. There is heavy vibration arising out of the use of explosives for breaking the block of rocks and the walls and foundation of the house got damaged which is even visible to a naked eye. The rubbles protruded from the explosion are thrown up to 200 meters away from the unit. Accordingly, it is contended that the petitioners and their family are living in fear of death at any time by fall of rubbles. 4. It is also averred in para 3 of the writ petition that the quarries are situated on the western and southern boundary of the petitioners' house. Because of the sound of explosion as well as the flying of small pieces of rubbles, they cannot rear any domestic animals, plant trees or cultivate their property. It is further pointed out that the quarries are being conducted in blatant violation of all the mandatory requirements prescribed under the prevailing statutes and even without obtaining licences. The further allegation is that there is violation of Section 235 of the Kerala Panchayat Raj Act. It is also pointed out that in spite of various conditions being incorporated in the licences, they are not following any one of the same. The allegations raised before the authorities resulted in issuing a wpc 9928 & 20390 of 2010 3 stop memo and violating the said stop memo, the quarries are being operated. 5. Thus, the sum and substance of the allegations in the writ petition is that quarries are being operated without any proper licence/permits from the various authorities concerned. Even in cases where licences have been issued, there is clear violation of the licence conditions. There is no monitoring of the quarries from time to time by any of the authorities concerned. The concern of the general public and that of the persons residing there, are not being addressed by any of the statutory authorities and quarry owners are having a free run, according to the learned counsel for the petitioners and learned counsel appearing for the additional 14[th] respondent. 6. Heard learned Senior Counsel for the petitioner in W.P.(C) No.20390/2010, learned counsel for the petitioners in W.P.(C) No.9928/2010, learned Standing Counsel appearing for the Pollution Control Board, learned Govt. Pleader appearing of the official respondents, learned counsel appearing for respondents 1 to 3 in W.P.(C) No.9928/2010, learned Counsel appearing for the Panchayat and learned counsel appearing for the additional 14[th] respondent in W.P.(C) No.9928/2010. wpc 9928 & 20390 of 2010 4 7. Initially the 6[th] respondent had filed a counter affidavit stating various aspects. The counter affidavit is sought to be withdrawn by filing I.A. No.14809/2010. A fresh counter affidavit has been filed by the 6[th] respondent on 22.10.2010 substituting the earlier counter affidavit. 8. In the said counter affidavit, the various details with regard to the functioning of the quarries, have been explained in paragraphs 3 to 7. The averments in the said counter affidavit reveals the following aspects. Respondents 1 and 3 have been conducting quarry jointly in private land in Sy. No.162/3 & 4 of Block IV in Parakkadavu Village of Aluva Taluk in a property having an extent of 01.11.74 hectares. The quarry run by the second respondent is in private land in Sy. No.161 of Block IV of Parakkadavu Village, Aluva Taluk having an extent of 0.40.08 hectares. The quarry conducted by the 4[th] respondent is in private land in Sy. No.159/1 & 4 of Block No.IV, Parakkadavu Village of Aluva Taluk having an extent of 0.22.26 hectares. The 5[th] respondent is conducting in 0.48.58 hectares of private land in Sy. No.162/3 & 8 of Block No.IV of Parakkadavu Village, Aluva Taluk. The approximate depth of quarries have been detailed as follows: wpc 9928 & 20390 of 2010 5 “R1 & R3's quarry - 35 meters deep R2's quarry - 40 meters deep R4's quarry - 25 meters deep R5's quarry - 25 meters deep” Paragraph 4 contains the distance of petitioners' residence and the quarries which is extracted below: “R1 & R3's quarry - 150 meters R2's quarry - 30 meters R4's quarry - 27 meters R5's quarry - 130 meters” The distance of each quarry to important public places are also given. The quarry of respondents 1 and 3 is only of a distance of 1.5 meter from public way. 9. The next question is with regard to the licenses which the quarry owners were possessing. As far as the first respondent is concerned, it is stated that he has licence No.E/SC/KL/22/754 (E3984) which is valid upto 31.3.2014. It is stated to be the explosive licence. It is pointed out that person working in the first respondent's quarry as blaster, is not technically qualified. He possesses only short-fire certificate. The first respondent has consent of Kerala State Pollution Control Board which is valid till 31.12.2012. The Mining and Geology Department issued mining wpc 9928 & 20390 of 2010 6 permit for 40 ares out of the total extent of 1.1174 hectares. The said permit was valid upto 8.9.2010. The first respondent has no valid licence/permit from the concerned Grama Panchayat under the Kerala Panchayat Raj Act. The third respondent has no licence in his name and is conducting quarry with the first respondent. The second respondent failed to produce any of the licenses before the concerned Tahsildar who enquired for the same. Accordingly, it is presumed that the second respondent has no valid licence for rock extraction. The 4[th] respondent possessed mining permit for 5 acres of land in Sy. No.159/1 which expired on 12.10.2009. He possess no other licenses required for quarry operation. The Mining and Geology Department issued mining permit for 12.40 ares out of the total extent of 48.58 ares, in R.S. No.162/3-1 to the 5[th] respondent. The permit was valid up to 4.10.2009. The fifth respondent has consent of Pollution Control Board which is valid till 31.12.2011. He does not have remaining licenses for the operation of quarry. It is also pointed out in para 6 that the first respondent, even though has licence valid upto 31.3.2014, which permits him to possess for the use nitrate mixture 25 Kg. safety fuse 1500 meters and detonators 3000 Nos. in an explosive magazine situated in Sy. No.299/2 of Parakkadavu Village, Aluva Taluk, he has already extracted around 35m wpc 9928 & 20390 of 2010 7 deep into the quarry. It is further pointed out that the Police department, Deputy Director of Panchayats, Geologist and the Senior Environmental Engineer, Kerala State Pollution Control Board were directed to take immediate action to stop operation of quarries which lacks any of the licences. 10. It is further pointed out that based on the directions issued by this Court in W.P.(C) No.30848/2009, the Government have issued directions as per Circular No.78327/RC/3/09/LSGD dated 15.3.2010 for regulation of quarries and co-relation among various departments regulating quarrying operation. As per the said circular, the LSGI concerned is designated as the nodal point for ensuring the availability of all licenses required. It is further pointed out in para 8 of the counter affidavit that the quarry of respondents 1 and 3 is just at a distance of 1.5 meter from the Puliyanam - Kattuchira - Mambra road and the quarry is at least 35 meter deep. 11. It is evident from the counter affidavit that at present all the quarries are remaining closed. It is also mentioned that the District Collector has directed all concerned departments to ensure closure of all quarries in the District which lacks any of the following licences; viz. wpc 9928 & 20390 of 2010 8 consent of Kerala State Pollution Control Board, permit/licence from concerned Local Self Government body, licence under Explosives Act and Rules to possess and use explosives, Mining permit from Geologist and Technically qualified Blastman/Mate for blasting. With regard to item No.3, viz. licence under the Explosives Act, the first respondent possesses the same. 12. Therefore, the scenario that is emerging now is that all the quarries have stopped functioning. It is contended by the learned counsel for the petitioners that in the light of the factual possession as revealed from the counter affidavit, viz. with regard to the depth of quarry; as regards the distance from residential houses and the road in that area, there cannot be any issuance of licenses by various authorities for operating quarries further. It is their case that the authorities have not bestowed their attention timely to the menace and only because of the pendency of the writ petition and due to the various directions issued by this Court, presently the respondents have come up with a counter affidavit which, to a large extent, concerns the allegations raised in the writ petition. 13. Learned counsel for respondents 1 to 3 submitted that they have already stopped functioning of the quarry. Learned counsel further submits wpc 9928 & 20390 of 2010 9 that the report said to have been prepared by the Tahsildar with regard to the depth of quarry, may not be fully correct. He has other properties wherein no quarries are functioning and therefore he can seek licence for operating quarry in other properties, so that a suitable area which is unobjectionable to everybody can be found out. I am not finally pronouncing anything on the said aspect since it is up to the District Collector, Geologist, Pollution Control Board, Deputy Controller of Explosives and Mines Safety Commissioner who are empowered with the issuance of licences/permits for operating quarries, to consider such matters at the appropriate time, that too on proper applications made. 14. Except respondents 1 and 3, no other respondents have sought for renewal of licenses, going by the pleadings in this case. If any of the other respondents are operating quarries without permit or consent from the Pollution Control Board or the Panchayat concerned and from other statutory authorities, the District Collector will take appropriate action to see that the functioning of all the quarries are stopped. 15. What remains is the plea raised by the learned Senior Counsel for the petitioner in W.P.(C) No.20390/2010 that the petitioner has filed an appropriate application before the Panchayat for issuance of licence. Strong wpc 9928 & 20390 of 2010 10 objections have been filed by the petitioners and additional 14[th] respondents in W.P.(C) No.9928/2010 for considering the application of the said quarry operator for issuance of a further licence. It is pointed out that in the light of the fact that the existing quarry is 35 meters in depth and the distance from the road is only 1.5 meter, there cannot be issuance of any further licence in that regard. 16. Herein, my attention has been invited to a decision of this Court in **Gokuldas v. Geologist** (2009 (3) KLT 924) wherein this Court, after referring to Rule 8 of the Kerala Minor Mineral Concession Rules, 1967, has directed to put a condition restricting the depth of the pit to be used for quarrying below the surface to 20 feet. 17. Learned counsel for the Panchayat also highlighted certain facts with regard to the operation of the quarries as shown in the counter affidavit including depth and distance from residential houses and from roads, etc. 18. Since the entire issue has to be considered by the authorities concerned, it is up to them to consider the depth of the quarries, while considering any application. Further, if any permit is applied for by respondents 1 and 3 to operate any quarry, in S. No. 162/3 & 4 of Block IV wpc 9928 & 20390 of 2010 11 of Parakkadavu Village, a joint inspection will be conducted by a team including the District Collector or any other senior officer of the Revenue Department deputed by the District Collector along with the Geologist concerned, officers of the Pollution Control Board and the Panchayat who will inspect the quarry which was being conducted by respondents 1 and 3 to find out whether quarrying can be permitted in that location. If any further application is moved by respondents 1 and 3 to conduct quarry in that part or in any other part of the property in question, then the objection of the petitioners as well as additional 14[th] respondent with regard to the distance to residential houses, to the nearby roads and the possibility of environmental and ecological impact will be assessed after due inspection by the team and then only any application for licence/permit will be considered. Hence, I am not finally pronouncing on the issue. So far the first respondent has not sought for a permit to conduct quarry in any different area than the area which is described above, in which he was conducting quarry. Even though learned counsel for respondents 1 and 3 objected to the Samithy of the additional 14[th] respondent with regard to the inspection, etc., it is explained by learned counsel for additional 14[th] respondent that the members of the Samithy have properties in the nearby wpc 9928 & 20390 of 2010 12 areas and are also concerned with the functioning of the quarries. Since the petitioners are allowed to raise objections, the additional 14[th] respondent can also raise whatever objections in the matter. 19. Any further issuance of licences/permits by various authorities will be done only after the authorities deal with the matter as directed above and are satisfied with the conditions for issuing any permit/licence for conducting quarry. Due notice will be issued to all parties herein before taking any decision. The appropriate action will be finalised within a period of six weeks from the date of receipt of a copy of this judgment. If respondents 1 and 3 or any other quarry owners have already committed violation of permits/licences or statutory rules, it is up to the authorities concerned to initiate appropriate action as enjoined by law and this judgment will not stand in the way of the the authorities taking action in the matter. The writ petitions are disposed of as above. No costs. ## **(T.R. Ramachandran Nair, Judge.)** **kav/**