Writ Appeal No.397 of 2021, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR`** ## **`&`** ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, ``` ``` 1943 ``` ## **`WA NO. 397 OF 2021`** ``` AGAINST THE ORDER/JUDGMENT IN WP(C) 20840/2020 OF HIGH ``` ## **`COURT OF KERALA`** ## **`APPELLANTS/RESPONDENTS 4 TO 13:`** - **`1 SAJEEVAN, AGED 40 YEARS S/O KUNJIRAMAN, PALAYANKANDI, POILOOR P.O.KANNUR-670 693.`** - **`2 JINEESH M, S/O BALAN, MANATTIYIL HOUSE, POILOOR P.O.KANNUR-670 693.`** - **`3 M.P. SHAJI, MUTHANGACHALIL HOUSE, S/O GOVINDAN, POILOOR P.O.KANNUR-670 693.`** - **`4 RAJAN, ECHILATTU CHALIL HOUSE, S/O KANARAN, POILOOR P.O.KANNUR-670 693.`** - **`5 RATHEESHAN, THARASSIYIL HOUSE, S/O GIVINDANKUTTY, CENTRAL POILOOR, POILOOR P.O.KANNUR-670 693.`** - **`6 JIL JITH, S/O RAJAN, KARIYARICHALAIL HOUSE, POILOOR P.O.KANNUR-670 693.`** - **`7 AJAYAN, S/O GOVINDHAN, KARIYARICHALAIL HOUSE, POILOOR P.O.KANNUR-670 693.`** - **`8 CHEMBERI SURAN, S/O KUNJIRAMAN, UNDALEL HOUSE, POILOOR P.O.KANNUR-670 693.`** - **`9 M.R.VASU, S/O KUNJIRAMAN, KANNIPOYIL HOUSE, POILOOR P.O.KANNUR-670 693.`** - **`10 PAVITHRAN, KACHERI HOUSE, S/O KANNAN, KANNIPOYIL HOUSE, POILOOR P.O.KANNUR-670 693.`** Writ Appeal No.397 of 2021 ..2.. ## **`BY ADVS. M.P.ASHOK KUMAR SMT.BINDU SREEDHAR SHRI.ASIF N`** ## **`RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:`** - **`1 ANIYERI SATHYAN, AGED 52 YEARS S/O NARAYANAN, ANIYERINTAVIDA HOUSE, CHENDAYAD P.O.KANNUR DISTRICT-670 692.`** - **`2 STATE POLICE CHIEF, KRALA STATE POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA-695 010.`** - **`3 THE DISTRICT POLICE CHIEF, POST OFFICE, CIVIL STATION, KANNUR, KERALA-670 002.`** - **`4 THE STATION HOUSE OFFICER, KULAVALLOOR POLICE STATION, KULAVELLOOR, KERALA-670 693.`** ``` ADDL.R5 TO R7 IMPLEADED. ``` - **`5 THE ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT ENFINEER,KERALA WATER AUTHORITY, P.H.SECTION,PURAMERI,VADAKARA, KOZHIKODE-673 503.`** - **`6 THRIPPANGOTTOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THRIPPANGOTTOOR,KALLIKKANDY P.O., KANNUR-670 693.`** - **`7 THE VILLAGE OFFICER, THRIPPANGOTTOOR VILLAGE OFFICE, THALASSERY,KANNUR-670 676.`** ``` ARE SUO-MOTU IMPLEADED AS ADDL.RESPONDENTS R5,R6 AND R7 AS PER ORDER DATED 9/3/2021 IN WA 397/2021. ``` - **`BY ADV.SRI.ALEX.M.SCARIA GOVERNMENT PLEADER REKHA C. NAIR`** ## **`SRI.BENJAMIN C.PAUL,SC, KERALA WATER AUTHORITY (B/O)`** ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 03.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Writ Appeal No.397 of 2021 ..3.. **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal No.397 of 2021** **----------------------------------------------Dated this the 3[rd] day of December, 2021** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 09.02.2021 in W.P.(C) No.20840 of 2020. Appellants are respondents 4 to 13 in the writ petition. Parties and documents are referred to in this judgment, as they appear in the writ petition. 2. The petitioner is stated to be a person conducting a granite stone quarry within the limits of Thriprangottoor Grama Panchayat, after obtaining all the requisite permissions and licences required for the same, including the licence of the Panchayat in terms of the provisions of the Kerala Panchayat Raj Act, 1994 (the Act). The writ petition was instituted seeking directions to respondents 1 to 3 to provide effective and adequate protection to the Writ Appeal No.397 of 2021 ..4.. petitioner to run his quarry. It was alleged in the writ petition that respondents 4 to 13 are causing obstructions to the conduct of the quarry. 3. Respondents 4 to 13 contested the writ petition, contending that the petitioner has not obtained all the permissions and licences required for running the quarry. Among others, it was specifically contended by them that there exists two water tanks within one kilometre from the quarry and the petitioner is therefore, not entitled to run the quarry in the light of the provisions contained in the Kerala Irrigation and Water Conservation Act, 2003. 4. A statement has been filed on behalf of the State, pointing out that the petitioner is running the quarry after obtaining all the requisite permissions and licences and that the party respondents have caused obstructions to the activity of the petitioner. 5. The learned Single Judge took the view that in the light of Ext.P9 circular issued by the Government prescribing the procedure to be followed for licensing quarries, once the local authority grants licence in terms of the provisions contained in the Act for running a quarry, it is Writ Appeal No.397 of 2021 ..5.. presumed that the party has secured all other permissions and licences for the same. In the light of the said circular, in so far as the petitioner has obtained the licence in terms of the Act for running the quarry, the learned Single Judge held that there is no justification on the part of the party respondents in causing obstruction to the activity undertaken by him. The writ petition, in the circumstances, was disposed of directing the petitioner to approach the police officials, if any obstruction is caused by the party respondents to the quarrying activity undertaken by him, and directing the police officials to afford protection to the life and property of the petitioner and his employees to enable them to conduct the quarrying activity in accordance with the terms of Exts.P1 to P5 permissions and licences obtained by the petitioner. Respondents 4 to 13 are aggrieved by the said decision of the learned Single Judge and hence, this appeal. 6. Heard the learned counsel for the appellants. 7. The learned counsel for the appellants contended that the local authority has issued licence to the petitioner without insisting the petitioner to obtain all other permissions and licences required for running the quarry. It was Writ Appeal No.397 of 2021 ..6.. pointed out by the learned counsel that under Section 40 of the Kerala Irrigation and Water Conservation Act, 2003, no quarrying activity can be undertaken within one kilometre from any water tank, and in so far as there exist water tanks within one kilometre from the quarry of the petitioner, the activity undertaken by the petitioner is a prohibited one. To bring home the said point, the learned counsel has relied on the decision of this court in **Sobin v. District Geologist** , 2020(1) KLT 79. According to the learned counsel, the learned Single Judge, in the circumstances, ought not have granted the protection sought for by the petitioner. 8. Ext.P9 is the circular issued by the Government pursuant to the direction issued by this court for evolving a simplified procedure for grant of licence to quarries for which permissions and licences from multiple Government Departments and authorities are required to be obtained. In Ext.P9, the Government took the view that the Local Self Government Institutions which have a grass root presence in all localities of the State shall be designated as the terminal nodal point for ensuring compliance of all the statutes prior to the grant of licence in terms of the provisions of the Act for Writ Appeal No.397 of 2021 ..7.. operating the quarry. In the said circular, it is directed that only after the applicant is able to make available the permissions and licences included in the check list shown in the circular, the Panchayat shall issue licence to the quarry under the Act. In other words, in the light of Ext.P9 circular, it is the duty of the Panchayat to ensure that an applicant for licence for conducting a quarry has obtained all other permissions and licences required for the same. In the light of the said circular, if a licence is issued by the Panchayat in terms of the Act for the purpose of running a quarry, it can be presumed that the party concerned has obtained all other permissions and licences required for the same. In other words, if a licence is issued by the Panchayat for running a quarry to a person who has not secured all the permissions and licences required for the same, the licence issued to him under the Act would be illegal. Ext.P9 is a circular issued as early as on 15.03.2010 and is still in force. The party respondents do not have a case that Ext.P9 circular is bad in law. If that be so, insofar as the petitioner has secured the licence under the Act to run the quarry referred to in the writ petition without securing all other permissions and licences required for the same, the licence Writ Appeal No.397 of 2021 ..8.. issued by the Panchayat to him is illegal. If the licence issued by the Panchayat is illegal, it is for the party respondents to challenge the said licence in accordance with law. Admittedly, the party respondents have not challenged the licence issued to the petitioner in accordance with law. The party respondents cannot collaterally challenge the licence obtained by the petitioner in a writ petition filed by the petitioner. In other words, so long as the petitioner has secured the licence issued under the Act, it will have to be presumed that he has secured all other requisite permissions and licences. We take this view also for the reason that in a writ petition instituted under Article 226 of the Constitution seeking a writ of mandamus to the police to provide aid and protection to the petitioner, this court is expected and required to consider only the question as to whether there is any failure of duty on the part of the police, for the authority of the court to grant relief in such matters is coterminous with the failure of duty on the part of the police. As such, in a matter of this nature, this Court cannot examine the legality or otherwise of a quarrying activity undertaken by a person, merely for the reason that the party respondents contend that the person concerned has not Writ Appeal No.397 of 2021 ..9.. secured all the permissions and licences required for the same. In the said view of the matter, insofar as it was established that the activity undertaken by the petitioner was obstructed by the party respondents, the learned Single Judge was justified in granting police aid to the petitioner. The writ appeal is therefore, dismissed. It is, however, made clear that this judgment will not preclude the party respondents from challenging the licence granted to the petitioner in accordance with law. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** ds 30.11.2021 Writ Appeal No.397 of 2021 ..10.. ## **`APPENDIX OF WA 397/2021`** - **`RESPONDENT ANNEXURE Annexure R1(a) TRUE COPY OF THE GOOGLE EARTH MAP SHOWING THE DISTANCE FROM MY QUARRY TO THE TANK AS PER PHOTOGRAPH`** - **`Annexure R1(b) TRUE COPY OF THE LETTER DATED 02.02.2021 THE SECRETARY TO GRAMA PANCHAYATH HAS INFORMED THAT THE LAND WHEREIN MY QUARRY LOCATED IS NOT INCLUDED IN ANY DATA BANK AND ITS IS NOT COVERED BY ANY WET LAND PROJECT`** - **`Annexure R1( c) TRUE COPY OF THE GOOGLE EARTH GEO COORDINATE LOCATION MAP WITH THE CALCUATION`** - **`Annexure R1(d) TRUE COPY OF THE PHOTOGRAPHS OF THE SO CALLED STREAM WHICH IS AN IDATHONDU BETWEEN ADJACENT PROPERTIES AND BEING USED AS STORM WATER DISCHARGE FROM PROPERTIES DURING RAINY SEASON`** - **`Annexure R1(e) THE PHOTOGRAPHS SHOWING THE DAMAGED VEHICLES BY TEARING THE TYRES OF THE LORRIES BURNING OF EXCAVATORS KEPT BY MU LOCAL SUPPORTER IN HIS PLACE AND DAMAGED BY POURING SALT INTO ENGINE AND CUTTING OF CABLES OF EXCAVATOR WHICH WAS PLACED IN THIS QUARRY ETC`** - **`Annexure R1(f) TRUE COPY OF THE POSTER PUBLISHED BY THE LOCAL PEOPLE UNDER THE LEADERSHIP OF THE L.D.F. AGAINST THE ILLEGAL STRIKE IN MAY QUARRY`** - **`Annexure R1(g) TRUE COPY OF THE F.I.R DATED 16.02.2021 IN CRIME NO.21/2021 OF KOLAVALLOOR POLICE STATION`** - **`Annexure R1(h) TRUE COPY OF THE F.I.R DATED 18.02.2021 IN CRIME NO.23/2021 OF KOLAVALLOOR POLICE STATION`** - **`Annexure R1(i) TRUE COPY OF THE F.I.R DATED 18.02.2021 IN CRIME NO.24/2021 OF KOLAVALLOOR POLICE STATION`** - **`Annexure R1(J) TRUE COPY OF THE F.I.R DATED 19.02.2021 IN CRIME NO.26/2021 OF KOLAVALLOOR POLICE STATION`** Writ Appeal No.397 of 2021 ..11.. ``` Annexure R1(k)TRUE COPY OF THE COMPLAINT FILED BY ME ON 16.02.201 BEFORE THE KOLAVALLOR POLICE SHO Annexure R1(l)TRUE COPY OF THE F.I.R DATED 04.03.2021 IN CRIME NO. 51/2021 OF KOLAVALLOOR POLICE STATION Annexure R1(m)TRUE COPY OF THE F.I.R DATED 05.03.2021 IN CRIME NO. 52/2021 OF KOLAVALLOOR POLICE STATION Annexure R1(n)TRUE COPY OF THE F.I.R DATED 17.03.2021 IN CRIME NO. 83/2021 OF KOLAVALLOOR POLICE STATION Annexure R1(o)TRUE COPY OF THE F.I.R DATED 18.03.2021 IN CRIME NO. 86/2021 OF KOLAVALLOOR POLICE STATION Annexure R6(a)A TRUE PHOTOCOPY OF THE INSPECTION REPORT DATED 25.03.2021 FILED BY THE 6TH RESPONDENT Annexure R6(b)A TRUE PHOTOCOPY OF THE MINUTES OF THE COMMITTEE OF THE 6TH RESPONDENT HELD ON 19.03.2021 Annexure R1(p)TRUE PHOTOGRAPHS OF SUCH MATERIAL DAMAGED VEHICLES AND THE MATERIAL REMOVED FROM THE VEHICLES Annexure R1(q)TRUE COPY OF THE COMPLAINT DATED 11.09.2021 BEFORE THE POLICE ALONG WITH THE RECEIPT Annexure R1(r)TRUE COPY OF THE COMPLAINT LODGED BY THE TIPPER LORRY DRIVER NAMED SRI.SHAJI T.M. DATED 08.09.2021 BEFORE THE STATION HOUSE OFFICER, KOLAVALLOR POLICE STATION ALONG WITH RECEIPT ``` ``` Annexure R1(s)TRUE COPY OF THE COMPLAINT LODGED BY SRO.RAJEEVAN M DATED 05.10.2021 BEFORE THE STATION HOUSE OFFICER, KOLAVALLOOR POLICE STATION ALONG WITH THE RECEIPT THERETO BEARING NO.135605/2021 ``` ``` Annexure R1(t) ``` ``` TRUE COPY OF THE NEWS PAPER REPORT DATED 11.09.2021 PUBLISHED IN MADYAMAM DAILY ```