Tomy Abraham v. The Deputy Superintendent of Police and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938 WP(C).No. 29176 of 2016 (V) ---------------------------- PETITIONER(S): ------------------ TOMY ABRAHAM, AGED 54 YEARS, S/O. ABRAHAM, MANIMALETHU HOUSE, VECHOOCHIRA P.O., PATHANAMTHITTA DISTRICT. BY ADVS.SRI.P.DEEPAK SRI.JOBI JOSE KONDODY RESPONDENT(S): ------------------ 1. THE DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, THIRUVALLA P.O., PATHANAMTHITTA DISTRICT, PIN - 689 101. 2. THE CIRCLE INSPECTOR OF POLICE, VADASERIKKARA CIRCLE OFFICE, VADASERIKKARA P.O., PATHANAMTHITTA DISTRICT, PIN - 689 662. 3. THE SUB INSPECTOR OF POLICE, VECHOOCHIRA POLICE STATION, VECHOOCHIRA P.O., PATHANAMTHITTA DISTRICT - 686 511. 4. SEBASTIAN @ KUTTICHAN, MANIMALA HOUSE, CHEMBANOLI, VECHOOCHIRA P.O., PATHANAMTHITTA DISTRICT, PIN - 686 511. 5. JOGI, MANIMALA HOUSE, KOOTHATTUKULAM, VECHOOCHIRA P.O., PATHANAMTHITTA DISTRICT, PIN - 686 511. WP(C).No. 29176 of 2016 (V) : 2 : 6. CHACKO MATHEW @ SHAJI KOCHUVEETIL, PATHALIL HOUSE, MADANTHAMON, ATHKKAYAM P.O., PATHANAMTHITTA DISTRICT, PIN - 689 711. 7. ZACHARIAS CHERIAN @ SAJI, KOTTARATHIL HOUSE, VAKAMUKKU, VECHOOCHIRA P.O., PATHANAMTHITTA DISTRICT, PIN - 686 511. 8. MATHUKUTTY ABRAHAM, POOTHAKUZHIYIL HOUSE, CHEMBANOLI, VECHOOCHIRA P.O., PATHANAMTHITTA DISTRICT, PIN - 686 511. ## 9. PRINCE JOSE, UTHIRAKULATHU HOUSE, CHEMBANOLI, VECHOOCHIRA P.O., PATHANAMTHITTA DISTRICT, PIN - 686 511. 10. JOHNSON, EDATHARAYIL HOUSE, MADANTHAMON, ATHIKKAYAM P.O., PATHANAMTHITTA DISTRICT, PIN - 689 711. ## 11. PUSHPAN, CHIRAPARAMBIL HOUSE, KADUMEENCHIRA, ATHIKKAYAM P.O., PATHANAMTHITTA DISTRICT, PIN - 689 711. R4-R6 & R8-R11 BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) R4-R6 & R8-R11) BY ADV. SRI.A.R.DILEEP R4-R6 & R8-R11) BY ADV. SRI.MANU SEBASTIAN R4-R6 & R8-R11) BY ADV. SRI.P.J.JOE PAUL R1,R2,R3 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY R BY SRI. THAJUDEEN, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29176 of 2016 (V) : 3 : ## **APPENDIX** ## PETITIONER(S)' EXHIBITS: P1 A TRUE COPY OF THE QUARRYING LEASE DATED 06.9.2011 VALID UPTO 02.9.2021 FOR AN EXTENDT OF 2.2278 HECTARES OF LAND COMPRISED IN SURVEY NO. 783/23/1, 783/23/2 OF ATHIKAYAM VILLAGE IN RANNI TALUK OF PATHANAMTHITTA DISTRICT. P2 A TRUE COPY OF THE QUARRYING LEASE DATED 08.2.2010 VALID UPTO 07.2.2022 FOR AN EXTENT OF 2.1286 HEACTARES OF LAND COMPRISED IN SURVEY NO. 783/23/1, 783/23/2 OF ATHIKAYAM VILLAGE IN RANNI TALUK OF PATHANAMTHITTA DISTRICT. P3 A TRUE COPY OF THE FORM LE-3 LICENSE ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES ON 08.2.2000 WHICH WAS RENEWED AND EXTENDED UPTO 31.3.2018. P4 A TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BAORD ON 13.1.2014 VALID UP TO 30.6.2016. P5 A TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE - RENEWAL DATED 15.7.2016 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD STATING THAT EXHIBIT P4. P6 A TRUE COPY OF THE NO OBJECTION CERTIFIATE DATED 03.10.2013 ISSUED BY THE DISTRIT COLLECTOR TO THE PETITIONER. P7 A TRUE COPY OF THE ENVIORNMENTAL CLEARANCE ISSUED BY THE STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY TO THE PETITIONER DATED 23.12.2015. P8 A TRUE COPY OF THE JUDGMENT DATED 30.5.2016 PASSED BY THIS HONOURABLE COURT IN WPC NO. 13490/2016. P9 A TRUE COPY OF THE D & O LICENSE DATED 07.7.2016 ISSUED BY THE NARANAMOOZHI GRAMA PANCYAYAT TO THE PTITIONER VALID UPTO 31.3.2017. P10 A TRUE COPY OF THE PROCEEDINGS OF THE GEOLOGIST, PATHANAMTHITTA DATED 25.8.2016. P11 A TRUE COPY OF THE JUDGMENT DATED 17.8.2016 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BE COURT IN WPC NO. 23849/2016. P12 A TRUE COPY OF THE CERTIFICATE OF COMPETENCY OF THE PETITIONER'S MINES MANAGER DATED 25.2.2006. P13 A TRUE COPY OF THE NOTICE OF APPOINTMENT OF THE MINES MANAGER SUBMITTED BEFORE THE DIRECTOR GENERAL OF MINE SAFETY, DHANBAD DATED 19.1.2012. WP(C).No. 29176 of 2016 (V) : 4 : P14 A TRUE COPY OF THE COMPLAINT DATED 29.8.2016 FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT WITH COPIES TO RESPONDENTS 1 AND 2. P15 A TRUE COPY OF THE RECEIPT DATED 29.8.2016 ACKNOWLEDGING RECEIPT OF EXHIBIT P11 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER. P16: TRUE COPY OF THE ORDER NO.C3-3899/2014 DATED 17.12.2014 ISSUED BY THE SECRETARY, NARANAMMOOZHY GRAMA PANCHAYAT TO THE PETITIONER. ## RESPONDENT(S)' EXHIBITS: EXT.R6(a) : TRUE COPY OF THE REPORT DATED 20.05.2013 OF THE GEOLOGICAL SURVEY OF INDIA. EXT.R6(b) : TRUE COPY OF JUDGMENT DATED 03.01.2014 IN W.P.(C) NO. 17594/2013. EXT.R6(c) : TRUE COPY OF LICENCE NO.C3-2812/12 DATED 30.03.2013 ISSUED BY SECRETARY, NARANAMOOZHI GRAMA PANCHAYATH. EXT.R6(d) : TRUE COPY OF RESOLUTION DATED 13.06.2013 OF NARANAMOOZHY PANCHAYATH. EXT.R6(e) : TRUE COPY OF ORDER DATED 09.05.2014 IN APPEAL NO.670/2013. EXT.R6(f) : TRUE COPY JUDGMENT DATED 09.01.2015 IN W.P.(C) NO. 17985/14 OF THIS HONOURABLE COURT. EXT.R(g) : TRUE COPY OF COMMUNICATION DATED 03.04.2014 OF SECRETARY, NARANAMOOZHY GRAMA PANCHAYATH. EXT.R6(h) : TRUE COPIES OF NEWS REPORTS REGARDING ILLEGAL QUARRYING IN CHEMBANMUDIMALA. EXT.R6(i) : TRUE COPY OF JUDGMENT DATED 30.10.2015 IN W.P.(C) NO.21897/2015. EXT.R6(j) : TRUE COPY OFNOTICE DATED 03.09.2016 OF DISTRICT COLLECTOR, PATHANAMTHITTA. EXT.R6(K) : TRUE COPY OF LICENCE APPLICATION MADE BY THE PETITIONER FOR THE YEAR 2016-17. EXT.R6(I) : TRUE COPY OF COMMUNICATION NO.C3-3805/2014 DATED 23.12.2014 OF SECRETARY NARANAMOOZHY PANCHAYAT TO THE WRIT PETITIONER. /True Copy/ P.A to Judge. rv **ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ------------------------------------------W.P.(C) No. 29176 of 2016 -----------------------------------------Dated this the 5[th] day of January, 2017.** ## **JUDGMENT** ## Dama Seshadri Naidu,J. The petitioner holds a quarrying lease to mine and extract building stones in Survey Nos. 781/23/1 and 781/23/2 of Athikayam Village in Ranni Taluk of Pathanamthitta District. He seeks police protection: the petitioner complains that respondents 4 to 11 living in the vicinity have been obstructing what is said to be the petitioner's legitimate mining activities. 2. As is evident from the record, the petitioner holds Exts.P1 and P2 quarrying leases valid upto 02.09.2021 and 07.02.2022 respectively. The petitioner has also got Ext.P3 Form LE-3 licence under the Explosives Rules, 2008. Initially, the petitioner obtained Ext.P4 consent to operate from 13.01.2014 to 30.06.2016 and later had that consent renewed through Ext.P5 till 30.06.2019. The petitioner specifically states that in the light of the judgments rendered by this Court in _**All Kerala River Protection Council v. State of Kerala**_[1] and _**Nature Lovers Forum v. State of Kerala**_[2] as well as the Apex Court judgment in _Deepak Kumar'_ s case, he was not required > 1 2015(2) KLT 78 > 2 2016(1 KLT 75 W.P.(C) No. 29176/2016 : 2 : to get any environmental clearance. Given the Grama Panchayath's insistence and also as a matter of abundant caution, he obtained Ext.P7 environmental clearance as well. The petitioner, in the course of time, obtained Ext.P9 D & O licence for the year 2016-2017 which is a renewal of the licence he had earlier. Further, Ext.P10 is the permit granted by the Geologist concerned to transport the material so far mined by the petitioner. 3. The learned counsel for the petitioner contends that despite all the valid permissions the petitioner has, he has still been obstructed by the contesting respondents, who have no manner of right. In elaboration of his submissions, the learned counsel would contend that there is another quarry situated at about 5 kms away from the petitioner's unit. Given the mining activity undertaken by the said quarrying operator, in the past there was a land slide. Because of that land slide, the people in the vicinity has started agitating about the mining activities in the entire region. 4. Specific is the learned counsel's contention that the petitioner's quarry is situated far away and it has not caused, nor does it have the potential of causing in future, any land slide because the petitioner has been taking all precautions legally required. The W.P.(C) No. 29176/2016 : 3 : learned counsel has also contended that, on more than one occasion, the petitioner was compelled to approach this Court, as well as the other adjudicatory Tribunals, ventilating his grievance concerning the Grama Panchayath's repeated refusal to grant D & O licence. The respondents being parties to some of those proceedings have contested the petitioner's claim to have the mining lease. But they could not succeed. The learned counsel in this regard has brought to our notice some of the proceedings undertaken by the respondents, including _**Jacob George v. Tomy Abraham**_[3] and also W.A. No. 2265 of 2016, both of which stood dismissed. Eventually, the learned counsel urged this Court to direct respondents 1 to 3 to grant police protection, so that the petitioner could carry on his legitimate mining activity. 5. _Per contra_ , the learned counsel for the contesting respondents has submitted that the contesting respondents live at the foot of the hillock where the petitioner has been carrying on his mining operations. He has further submitted that they have never physically obstructed; on the other hand, they are only peacefully protesting before the Grama Panchayath, apart from pursuing their legal remedies. According to him, the petitioner got the D & O licence from 3 2016(4) KLT 422 W.P.(C) No. 29176/2016 : 4 : the Grama Panchayath only very recently. But before his getting the valid permissions, since 2010, the petitioner continued his illegal quarrying activities and mined materials running into thousands of tonnes. Confining to the facts of the case, the learned counsel has, however, submitted that the D & O licence granted by the Grama Panchayath in Ext.P9 suffers from a patent illegality. In elaboration, he has submitted that Ext.R6 (k) application filed by the petitioner for obtaining the D & O licence has column No. 10, which requires the petitioner to provide the details about the previous licence, if any. Though the earlier licence was cancelled in 2013, in Ext.R6(k) the petitioner provided the information as if it were a mere renewal of the licence granted earlier. It is, according to the learned counsel, a patent illegality. 6. In further elaboration of his submissions, the learned counsel has also submitted that the contesting respondents have already laid challenge against Ext.P9 D & O licence before the Tribunal for Local Self Government Institutions. In the end, the learned counsel has submitted that given the challenge laid by the contesting respondents before the Tribunal and given the fact that the matter is _sub judice_ , — — any direction by this Court at this juncture be it police protection W.P.(C) No. 29176/2016 : 5 : would adversely affect the respondents' interest. Accordingly, he seeks the dismissal of the writ petition. 7. Heard the learned counsel for the petitioner, the learned counsel for the contesting respondents, and the learned Senior Government Pleader, apart from perusing the record. 8. Indeed, the matter has already undergone many rounds of litigation. The learned counsel for the contesting respondents has spent much energy in trying to impress upon the Court that the petitioner earlier had acted illegally and conducted his quarrying operations. The fact, nevertheless, remains that on more than one occasion the petitioner approached this Court and had obtained favourable orders. From the record, it is evident that the petitioner has all conceivable permissions, including one from the Environmental Agency. The apprehensions expressed by the respondents apart, we cannot forget the fact that once a person is armed with the necessary permits and licences, and once it cannot be established that he has committed any illegality, it is incumbent that he be allowed to carry on his trade, which is a facet of Article 19(1) of the Constitution of India. Granted that the respondents have already filed an appeal before the Tribunal questioning the D & O licence granted by the Grama W.P.(C) No. 29176/2016 : 6 : Panchayath, it seems so far they have not succeeded in getting any orders of interdiction. Therefore, we do not see any statutory impediment against the petitioner. Mere apprehension, however genuine or justified it may be, it cannot affect the run of the rule of Law. In those circumstances, we dispose of the writ petition observing that if there is any law and order problem arising in the vicinity where the petitioner is carrying on his mining operations, respondents 1 to 3 shall afford the necessary police protection. It is, however, made clear that the arrangement thus being made now is subject to the proceedings said to be pending before the learned Tribunal. No order on costs. sd/- **ANTONY DOMINIC, JUDGE.** sd/- **DAMA SESHADRI NAIDU, JUDGE.** Rv W.P.(C) No. 29176/2016 : 7 :