IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 17646 of 2008(A) --------------------------------------- PETITIONER: ------------------- CHANDRAN, S/O.KUTTAN, "PUNARTHAM", T.C.NO.8/1950-A, ILLIPODE, THIRUMALA P.O., THIRUVANANTHAPURAM. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV. MR.S.SUJIN. RESPONDENTS: ------------------------ 1. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. THE GEOLOGIST, MINING AND GEOLOGY DISTRICT OFFICE, THIRUVANANTHAPURAM. 3. THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF MINING AND GEOLOGY, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 6. ASWANIKUMAR, S/O.SIVASANKARAN NAIR, PANCHAMI HOUSE, MLA ROAD, MALAYAM, PALLICHAL, THIRUVANANTHAPURAM. R1 TO R5 BY GOVT. PLEADER SMT. SMITHA SUKUMAR, R6 BY ADVS MR.G.P.SHINOD, MR.RAM MOHAN.G, MR.MANU V, MR.PUNCHAKKARI T.RAVEENDRAN NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17646/2008-A: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPORT OF THE GEOLOGISTS DTD. 20/09/2005 SUBMITTED TO THE R.3. EXT.P.2: COPY OF THE PERMIT ISSUED TO THE PETITIONER ON 05/04/2006. EXT.P.3: COPY OF THE ORDER DTD. 24/02/2007 ISSUED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. EXT.P.4: COPY OF THE ORDER DTD. 18/09/2007 IN W.P.(C).NO.31262/2005 OF THIS HONOURABLE COURT. EXT.P.5: COPY OF THE ORDER NO. 883/07-08/9270/M2/07 DTD. 08/03/2008 ISSUED BY THE R.4. EXT.P.6: COPY OF THE LIST OF QUARRY OWNERS, WHO IS USING JACK HAMMERS. EXT.P.7: COPY OF THE RULE, KERALA MINOR MINERAL CONCESSION 2ND AMENDMENT RULES, 2007. RESPONDENTS' EXHIBIT: EXT.R4.A: COPY OF THE ORDER NO. B14.80961/2005 DTD. 29/12/2005 OF THE R.1. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 17646 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 12th June, 2009. J U D G M E N T The petitioner obtained a quarrying permit from the 2nd respondent for quarrying granite stones from a quarry in Sy. No. 44/3 of Pallichal village, Neyyattinkara Taluk, Thiruvananthapuram District. On a complaint by the 6th respondent, the Revenue Divisional Officer, Thiruvananthapuram passed an order allowing the petitioner to conduct the quarrying after considering the report submitted by the Geology Department. The 6th respondent challenged that order by filing W.P(C) No. 31262/2005. In that writ petition, this Court passed an order on 18-9-2007 directing the Director of Mining and Geology, Thiruvananthapuram to consider whether the petitioner can conduct the quarry. The Director of Mining and Geology, after hearing all parties concerned, passed Ext. P5 order, whereby the petitioner was prohibited from using jack hammer in the quarry but at the same time permitting the petitioner to use other conventional methods of quarrying. The petitioner is challenging Ext. P5 order. 2. The petitioner's contention is that before granting permit, the Geologist had inspected the site and submitted Ext. P1 report, in which the Geologist had specifically stated that the use of jack hammer is not prohibited in quarries. The Geologist also stated in the report that there is no other impediment in granting permit to the petitioner. Therefore, the restriction now imposed is clearly an unreasonable restriction is the stand of the petitioner. The petitioner also raises a contention of discrimination on the ground that the persons mentioned in Ext. P6 have been permitted to use jack hammer for quarrying in the locality. The petitioner also points out that there is no statutory provision which prohibits the use of jack hammer in quarries. He also refers Rule 8(1)(e) of the Kerala Minor Mineral Concession Rules, whereby it is stipulated that a quarrying W.P.C. No. 17646/08 -: 2 :- permit holder shall have the right for the purpose of the quarrying to use any mechanical device including jack hammer and pump. (Rule 8 (1)(e) has been introduced by amendment as per G.O() 2/2008 in Minor Mineral Concession Rules by S.R.O. No. 270/2008 dated 2-1- 2008). The petitioner therefore submits that the restriction imposed on the petitioner for the use of jack hammer is clearly unreasonable and unsustainable. 3. The learned Government Pleader, on the strength of a counter affidavit filed on behalf of the 4th respondent, opposes the prayers. According to the learned Government Pleader, even prior to Ext. P5 order pursuant to an interim order of this Court in W.P(C) No. 31262/2005, the District Collector had passed Ext. R1(a) order, whereby the use of jack hammer in quarries in Sy. No.44/3 of Pallichal Village has been prohibited. That order is still in force, is the contention raised by the learned Government Pleader. 4. Learned counsel for the petitioner points out that Ext. R4(a) has been passed pursuant to an interim order dated 1-12-2005 and it is thereafter that this Court directed the Director of Mining and Geology to pass orders, which resulted in Ext. P5. 5. I have considered the rival contentions in detail. 6. The power of the Geology Department to impose restrictions in the matter of quarrying has been upheld by this Court in Soman v. Geologist, 2004 (3) KLT 577. In view of that decision, the power of the Director of Mining and Geology to impose such restrictions on quarrying permit holders cannot now be disputed by the petitioner. The District Collector as well as the Director of Mining and Geology have considered every aspect of the matter and found that in view of the peculiar circumstances prevailing in the particular property, it is necessary to impose restriction in the use of jack hammer. That is in W.P.C. No. 17646/08 -: 3 :- the interest of the safety of the public. I am not inclined to interfere with the same exercising my powers under Article 226 of the Constitution of India. I am also not convinced by the contention of the petitioners that others mentioned in Ext. P6 have been permitted to use hack hammer in the locality. The petitioner has not produced any piece of evidence in support of that contention. Therefore, I am unable to countenance the contention of discrimination raised by the petitioner also. In any event, the petitioner can still do the quarrying using rotary drill and air compressor as has been permitted by the District Collector to another quarrying operator as per Ext. P3 order dated 24-2-2007. In the above circumstances, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India and accordingly the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/