IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 WP(C).No. 21465 of 2010(G) --------------------------------------- PETITIONER(S): ----------------------- K.SASIDHARAN,AGED 48, S/O.KALYANIKUTTY AMMA, KARAYIL HOUSE, P.O DESAMANGALAM, THRISSUR- 639 532. BY ADVS. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SRI.A.M.FASEENA RESPONDENT(S): -------------------------- 1. DISTRICT COLLECTOR, THRISSUR, PIN 680 001. 2. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD,DISTRICT OFFICE, POONKUNNAM P.O, THRISSUR-680 002. 3. THE GEOLOGIST, DISTRICT OFFICE, THRISSUR-680 001. 4. DESAMANGALAM GRAMA PANCHAYATH, DESAMANGALAM PO, THRISSUR, REPRESENTED BY ITS SECRETARY, PIN 679 532. 5. M.D.BABY, B.P.ASSOCIATES, MADAPPILLY HOUSE, KIZHAKKAMBALAM P.O,ERNAKULAM, PIN 683 562. R1 & R3 BY GOVERNMENT PLEADER SMT.K.R.DEEPA R2 BY ADV. SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOARD R4 BY ADV. SRI.P.C.SASIDHARAN R5 BY ADV.SRI.K.RADHA KRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/10/10, THE COURT ON 29/03/2011 DELIVERED THE FOLLOWING: sts P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.21465 of 2010 ----------------------------------------- Dated this the 29th March, 2011 JUDGMENT The prayer in this writ petition filed by a resident of Desamangalam Grama Panchayat is to quash Ext.P2 No Objection Certificate issued by the District Collector, Thrissur and Ext.P4 Consent issued by the Kerala State Pollution Control Board to the 5th respondent to establish a quarry. The petitioner has also prayed that the Center for Earth Science and Studies, Trivandrum or any other competent agency may be directed to assess the damage caused by the 5th respondent to the environment. The brief facts of the case are as follows. 2. The 5th respondent herein submitted an application dated 11.5.2004 to the District Collector, Thrissur for the grant of a No Objection Certificate under rule 155 of the Explosives Rules, 1983. The said application was rejected by order passed on 1.3.2007. The 5th respondent thereupon filed W.P(C)No.16137 of 2007 in this Court. That writ petition was disposed of reserving liberty with the 5th respondent to challenge the order rejecting his W.P(C) NO.21465/2010 -:2:- application in appeal before the Land Revenue Commissioner. The 5th respondent thereupon filed an appeal before the Land Revenue Commissioner under rule 169(4) of the Explosives Rules. By Ext.P1 order passed on 16.10.2007 after notice to and hearing the 5th respondent, the Desamangalam Grama Panchayat and the Janakeeya Karma Samithi, Desamangalam, represented by its Secretary, the Land Revenue Commissioner allowed the appeal and directed the District Collector, Thrissur to issue the No Objection Certificate subject to the safety measures proposed by the Center for Earth Science and Studies, hereinafter referred to as the “CESS” for short. The Land Revenue Commissioner also directed the District Collector to set up a Local Monitoring Committee to ensure that the licensee continues to comply with the conditions under which the No Objection Certificate is issued. The District Collector, Thrissur thereafter issued Ext.P2 No Objection Certificate in order to enable the 5th respondent to get an explosives licence under the Explosives Act, 1983 and the rules framed thereunder. As directed by the Land Revenue Commissioner in Ext.P1 order, the District Collector also constituted a Local Monitoring Committee consisting of the W.P(C) NO.21465/2010 -:3:- Assistant Geologist, Thrissur, the member representing the Ward where the quarry is situated and the Village Officer, Desamangalam Village, by Ext.P3 order dated 28.11.2007. Even earlier on 2.6.2004 the Kerala State Pollution Control Board had issued Ext.P4 consent to the 5th respondent to establish a stone crusher unit subject to the terms and conditions stipulated therein. The grant of the No Objection Certificate to the 5th respondent was the subject matter of challenge in W.P(C) No.27403 of 2005, W.P(C)No.20230 of 2006 and W.P(C)No.6623 of 2008. By Ext.R5(a) judgment delivered on 30.5.2008 the writ petitions were dismissed upholding the grant of the No Objection Certificate. One among the petitioners therein filed W.A.No.1489 of 2008 and the said appeal was dismissed by Ext.R5(b) judgment delivered on 16.7.2008. Thereupon the 5th respondent commenced the quarrying operations. Later, the petitioner sent Ext.P5 representation dated 25.8.2009 to the District Collector, Thrissur alleging that the 5th respondent is conducting quarrying operations in violation of the conditions stipulated in the No Objection Certificate and that the Local Monitoring Committee constituted by the District Collector has not taken any action. In W.P(C) NO.21465/2010 -:4:- that petition the petitioner also requested the District Collector to conduct a surprise inspection and to prevent further quarrying. This writ petition is filed contending that the 5th respondent is running the quarry in an area which is prone to seismic activity and that the continued functioning of the quarry will cause serious environmental imbalance thereby causing danger to the public. The petitioner also contends that the 5th respondent does not have a licence to run the quarry and the Local Monitoring Committee has not so far inspected the quarry and submitted a report. On these grounds the petitioner also challenges the No Objection Certificate issued by the District Collector and the consent to conduct quarrying operations issued by the Kerala State Pollution Control Board. 3. The 5th respondent has filed a counter affidavit contending that the challenge to the No Objection Certificate at the instance of other residents of the locality was repelled by this Court in Exts.R5(a) and R5(b) judgments, that the Kerala State Pollution Control Board has issued a consent to operate the quarry, that the said consent to operate the quarry [Ext.R5(c)] is valid upto 30.6.2012 and that it also holds a licence issued by the W.P(C) NO.21465/2010 -:5:- Thrissur District Industrial Single Window Clearance Board to run the quarry besides other statutory licences and clearances. It is contended that the functioning of the quarry will not cause any environmental problems and that the 5th respondent is conducting the quarrying operations strictly adhering to the terms and conditions stipulated in the No Objection Certificate. 4. The second respondent, the Environmental Engineer, Kerala State Pollution Control Board, Thrissur has filed a counter affidavit dated 9.9.2010 wherein it is stated that the 5th respondent has obtained consent to operate the quarry, that the quarry is surrounded on all sides by a rubber plantation, that the petitioner's residence is more than 200 metres from the east face of the quarry and that the sound level at a radial distance of 100 metres from the blasting face of the quarry was 51.8 dB(A) and that the permissible sound level is 55 dB(A). The second respondent also stated that there was no dust pollution during the time of inspection. It is also stated that the usual practice is to conduct three blastings in a day and that no quarrying is conducted between 6 p.m. and 6 a.m. 5. I heard Sri.P.K.Ibrahim, learned counsel appearing W.P(C) NO.21465/2010 -:6:- for the petitioner, Smt.K.R.Deepa, learned Government Pleader appearing for respondents 1 and 2, Sri.M.K.Chandramohan Das, learned standing counsel appearing for the Kerala State Pollution Control Board, Sri.P.C.Sasidharan, learned standing counsel appearing for Desamangalam Grama Panchayat and Sri.V.Chithambaresh , learned Senior Advocate appearing for the 5th respondent. I have also gone through the pleadings and the materials on record. It is evident from Ext.R5(a) and R5(b) judgments of the Court that the challenge to Ext.P2 No Objection Certificate granted by the District Collector, Thrissur to the 5th respondent was repelled by this Court. Though the petitioner is not a party to Exts.R5(a) and R5(b) judgments, in view of the findings and observations therein, the petitioner cannot successfully challenge Ext.P2. This Court has in Ext.R5(a) judgment held that the blasting of rock with low intensity explosives will not trigger an earthquake. Such an observation was made relying on the observations and findings recorded by the Land Revenue Commissioner in Ext.P1 order, which in turn was passed on the basis of the recommendations of the CESS. This Court had in Ext.R5(a) judgment also considered the effect W.P(C) NO.21465/2010 -:7:- which the quarrying operations will have in the locality. It was held that as the quarrying operations are being conducted in a large tract of land, the apprehension expressed by the petitioners in the writ petitions is misplaced and without any basis. The judgment of the learned single Judge was upheld by the Division Bench in appeal. The Division Bench noticed that the CESS had only stressed the need for monitoring the operations. In the light of the binding decisions of this Court evidenced by Exts.R5(a) and R5(b) I am of the opinion that the petitioner cannot successfully challenge Ext.P2 No Objection Certificate. 6. I shall now deal with the challenge to Ext.P4. Ext.P4, as noticed above, is the consent granted by the Kerala State Pollution Control Board to establish a quarry. Consent to operate the quarry was granted on 4.7.2009 and it is valid upto 30.6.2012. The petitioner has however, not chosen to challenge the said consent to operate issued by the Kerala State Pollution Control Board. In such circumstances as the 5th respondent has established a quarry and the Kerala State Pollution Control Board has given consent to the 5th respondent to operate the quarry, I am of the opinion that at this distance of time the petitioner W.P(C) NO.21465/2010 -:8:- cannot successfully challenge Ext.P4. 7. Then the only question is whether the petitioner is entitled to the second relief prayed for, namely for an order directing the CESS or any other competent authority to assess the damage done by the 5th respondent to the environment. Apart from vaguely alleging that the quarrying operations conducted by the 5th respondent have caused serious environmental imbalance and that the 5th respondent has also violated the terms and stipulations in the consent order issued by the Kerala State Pollution Control Board, the licence granted by the Director of Mining and Geology, the terms and conditions of the No Objection Certificate issued by the District Collector and the explosives licence issued under the Explosives Rules, 1983 the petitioner has not given any details regarding the damage caused to the environment on account of the quarrying operations. Apart from stating that the area is prone to seismic activity and therefore the 5th respondent should not be allowed to conduct quarrying operations, the petitioner has not produced any cogent material to show that the activity being carried on by the 5th respondent is detrimental to public interest. The Land Revenue Commissioner W.P(C) NO.21465/2010 -:9:- has in Ext.P1 order stated as follows:- “This case was posted for hearing on 12/09/2007. This is an appeal filed under Rule 169 of the Explosives Rules 1983 against the objection of the District authority to the issuance of a license under Rule 155 of the Explosives Rules. The district authority is expected to conduct an enquiry into the application for grant of licence under the Explosives rules and report to the licensing authority whether he/she has any objection to the applicant receiving a license at the site propose. If the district authority refused to grant the No Objection Certificate as required under Rule 156 he/she shall record in writing the reason for the refusal. Rules does not stipulate what the basis of the decision regarding the grant of No Objection Certificate should be. But since the No Objection Certificate is a necessary condition for issue of licences under section 6(b) (Rule 155) it may be assumed that the district authority is expected to rule out all the conditions stipulated in section 6-C of the Act under which the licensing authority is expected to refuse licence. Among the grounds for refusing to grant a licence is: “where the licensing authority deems it necessary for the security of W.P(C) NO.21465/2010 -:10:- the public peace or for public safety to refuse to grant such licence”. The district authority has ruled that the area is the epicentre of the earthquake in Central Kerala. The CESS has expressed the opinion that a controlled quarrying could be one of the reasons for the tremors. So, the people in the locality have serious apprehensions about functioning of the quarry. This is also reflected in the stiff opposition of the Grama Panchayat. Moreover quarrying could be a threat to the nearby water tank from which drinking water supplied to the entire Panchayat. The contention of the district authority does not appear to be borne out by the records. The CESS has not stated that the area is the epicentre of the Earthquakes Zone. It has said that the area is volnerable to earthquakes and that stress accumulation is likely to be on an East West fault, coinciding with the Bharathapuzha River. The micro tremors, which occurs in the region where the quarry is proposed does not have any significant effect on engineering structures but can be disturbing to the local population. The Earth tremors which will be caused if the amount of explosive used is high and if the hole in which it is detonated is deep, is quite W.P(C) NO.21465/2010 -:11:- different from the tectonic earthquakes which is apprehended by the local population. To generate a micro tremor of 0.5 on the Richter scale explosion of 5.6 kg. of TNT will be needed. Normal quarry uses only 150 grams of explosives and that too at depth of 1.5 metres. Therefore, the contention of the counter petitioners that quarrying can lead to earthquakes is not borne out by scientific evidence. (emphasis supplied) In order to reduce the environmental impact CESS has also submitted a set of recommendations. The report also makes clear that the nearby water tank or the dam (engineering structures in the report) is unlikely to be affected. Therefore, the ground taken by the district authority for refusal to issue the No Objection Certificate does not constitute a sufficient ground to threaten the security of public peace or of public safety. However there is apprehension among the local population that uncontrolled quarrying by the licensee will lead to severe environmental impact. This has to be kept in mind while considering the request for grant of No Objection Certificate. In view of the facts discussed above the proceedings No.C6-21446/04/K.dis. dated W.P(C) NO.21465/2010 -:12:- 01.03.2007 of the District Collector, Thrissur is set aside. The District Collector shall issue the No Objection Certificate subject to the safety measures proposed by the CESS. The District Collector will also set up a local monitoring Committee to ensure that the licensee continues to comply with the conditions under which the No Objection Certificate has been issued.” The said report was accepted by this Court in Ext.R5(a) judgment to hold that blasting of rock with low intensity explosives will not trigger an earthquake. By the said judgment this Court also held that the quarrying operations will not cause any threat to the water tanks situated nearby or the neighbouring residents for the reason that the nearest house is 310 metres away from the crusher unit. The apprehension entertained by the persons who had objected to the grant of a No Objection Certificate has also been taken note of by the Land Revenue Commissioner, who had directed that a Local Monitoring Committee shall be set up to ensure that the licensee complies with the terms and conditions stipulated in the No Objection Certificate. In such circumstances in the absence of any cogent material to establish the allegation W.P(C) NO.21465/2010 -:13:- that the quarrying operation conducted by the 5th respondent has resulted in serious environmental imbalance, I am of the opinion that the petitioner is not entitled to any relief in the writ petition. 8. The District Collector has by Ext.P3 order constituted a Local Monitoring Committee to monitor whether the quarry is being run in compliance with the conditions stipulated in the No Objection Certificate. The petitioner has positively averred in the writ petition that the Local Monitoring Committee has not so far conducted an inspection. The counter affidavit filed by the 5th respondent is also totally silent as regards this aspect. The 5th respondent has however stated that he has no objection in the Local Monitoring Committee constituted as per Ext.P3 order inspecting the unit periodically. It is evident from the materials presently on record that though a Local Monitoring Committee has been constituted by the District Collector as per Ext.P3 order dated 28.11.2007 the Local Monitoring Committee has not periodically inspected the petitioner's quarry. In such circumstances even while declining to grant the reliefs prayed for in the writ petition, I am of the opinion that the Local Monitoring Committee constituted by the District Collector as per Ext.P3 order W.P(C) NO.21465/2010 -:14:- dated 28.11.2007 should conduct periodical inspections of the quarry run by the 5th respondent every month and ensure that the 5th respondent is running the quarry in strict adherence to the terms and conditions of the No Objection Certificate. The District Collector, Thrissur shall take necessary steps to ensure that this direction is complied with and the Local Monitoring Committee inspects the quarry once a month and submits periodical reports to him. Subject to the above observation the writ petition is dismissed. No costs. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.21465 of 2010 ---------------------------- JUDGMENT 29th March, 2011