IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 WP(C).No. 33452 of 2010(F) ---------------------------------------- PETITIONER(S): ------------------------ M/S. MALABAR SAND AND STONES PVT. LTD., UP 10/372, PARAPPA, P.O.KUTTAPARAMBA, ALAKODE, KANNUR, REP. BY ITS MANAGING DIRECTOR, HARIS CHERATTIADAN, S/O. KINAKOOL CHERIYA MEMI, AGED 43 YEARS, K.V.P.S.VILLA, PAISAI P.O., IRIKKUR, KANNUR-670 593. BY ADVS. SRI.K.RAJESH SUKUMARAN, SRI.K.V.SOHAN. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT OF POLICE, KANNUR. 3. THE CIRCLE INSPECTOR OF POLICE, ALAKODE, KANNUR DISTRICT. 4. THE SUB INSPECTOR OF POLICE, ALAKODE POLICE STATION, KANNUR DISTRICT. 5. TOMY JOSEPH, S/O. JOSEPH, AGED 38 YEARS, METTAYAIL HOUSE, PARAPPA, P.O.KOTTAPARAMBA, KANNUR-670 571. Kss ..2/- ..2.... WPC.NO.33452/2010 F 6. SANTHOSH, S/O. MATHEW, AGED 40 YEARS, THUMBASSERI HOUSE, PARAPPA, P.O.KOTTAPARAMBA, KANNUR-670 571. 7. SONY, S/O. MATHEW, AGED 32 YEARS, CHATHANIKUNNAL HOUSE, PARAPPA, P.O.KOTTAPARAMBA, KANNUR-670 571. 8. SUNNY, S/O. SEBASTIAN, AGED 30 YEARS, KANHIRATHINGAL HOUSE, PARAPPA, P.O.KOTTAPARAMBA, KANNUR-670 571. 9. DENNY, S/O. PHILIP, AGED 30 YEARS, MANNUEL HOUSE, PARAPPA, P.O.KOTTAPARAMBA, KANNUR-670 571. 10. ANDAPPAN, S/O. JOSEPH, AGED 34 YEARS, POOVATHIN MOTTIL HOUSE, PARAPPA, P.O.KOTTAPARAMBA, KANNUR-670 571. 11. JIJI JOSEPH, S/O.JOSEPH, AGED 32 YEARS, MUNNANAPALLI HOUSE, PARAPPA, P.O. KOTTAPARAMBA, KANNUR - 670 571. 12. BEES MON, S/O.JAMES, AGED 38 YEARS, PANNAKKAL KUZHI HOUSE, PARAPPA, P.O. KOTTAPARAMBA, KANNUR - 670 571. 13. JINDO, S/O.MATHEW, AGED 31 YEARS, MOOLICHALIL HOUSE, PARAPPA, P.O. KOTTAPARAMBA, KANNUR - 670 571. 14. SHAJI, S/O.CHACKO, AGED 35 YEARS, PATHIYIL HOUSE, PARAPPA, P.O. KOTTAPARAMBA, KANNUR - 670 571. R1 TO R4 BY GOVERNMENT PLEADER SRI. T.K.VIPINDAS R5 TO R7 & R9,10,11,13& 14 BY ADV. SRI.KALEESWARAM RAJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33452/2010 F APPENDIX PETITIONER'S EXHIBITS: P1: CERTIFICATE OF INCORPORATION ISSUED BY THE REGISTRAR OF COMPANIES. P2: LAND TAX RECEIPT FOR THE YEAR 2010. P3: LICENCE DTD. 20/04/2010 ISSUED BY UDAYAGIRI GRAMA PANCHAYATH. P4: LICENCE DTD. 01/06/2010 ISSUED BY THE MINING AND GEOLOGY DEPARTMENT, KANNUR. P5: COPY OF THE PLAINT IN O.S.407/2010 FILED BEFORE THE MUNSIFF COURT, TALIPARAMBA. P6: COPY OF THE COMPLAINT FILED BEFORE THE 3RD RESPONDENT. P7: COPY OF THE REPORT SUBMITTED BY THE DISTRICT MEDICAL OFFICER, KANNUR DTD. 15/11/2008. P8: COPY OF THE ORDER OF UDAYAGIRI GRAMA PANCHAYATH ALONG WITH THE RESOLUTION, DTD. 19/11/2008. P9: COPY OF THE ORDER OF HE SENIOR TOWN PLANNER, TRIVANDRUM DTD. 3/07/2009. P10: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICE, KANNUR, DTD. 21/1/2010. P11: COPY OF THE CONSENT TO ESTABLISH THE UNIT ISSUED BY THE KERALA POLLUTION CONTROL BOARD, DTD. 25/02/2010. P12: COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, ALAKKODE VILLAGE DTD. 8/10/2010. P13: COPY OF THE PROCEEDINGS OF THE ELECTRICAL INSPECTOR, KANNUR, DTD. 10/11/2010. P14: COPY OF THE LICENSE ISSUED BY THE DEPARTMENT OF FACTORIES AND BOILERS DTD. 23/12/2010. P15: COPY OF THE CONSENT OF INTEGRATED CLEARANCE TO OPERATE STONE CRUSHER UNIT ISSUED BY KERALA STATE POLLUTION CONTROL BOARD, DTD. 10/01/2011. Kss ..2/- ..2.... WPC.NO.33452/2010 F RESPONDENT'S EXHIBITS: R5(A): COPY OF THE ORDER DTD. 22/11/2010. R5(B): COPY OF THE PHOTOS. R5(C): COPY OF THE PERMIT NO.64/2010. R5(D): COPY OF THE PERMIT NO.65/2010. R5(E): COPY OF THE RELEVANT PAGES OF THE CIRCULAR DTD. 15/03/2010. R5(F): COPY OF ORDER DTD. 8/11/2010 IN WP(C) NO.33689/2010. R5(G): COPY OF THE LETTER DTD. 23/03/2010. R5(H): COPY OF THE LETTER DTD. 13/09/2010. R5(I): COPY OF THE NOTICE. /TRUE COPY/ P.S.TO JUDGE Kss R.BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(C) NO: 33452 OF 2010 F ----------------------------------------------------------- Dated this the 18th January, 2011. JUDGMENT Basant, J. Petitioner Malabar Sand and Stones Pvt. Ltd have come to this Court with this petition for issue of directions under Art.226 of the Constitution to respondents 1 to 4 to afford police protection for the petitioner for carrying on legal and permissible activity of running a stone crusher unit as permitted under Ext.P3 by the Udayagiri Grama Panchayat in accordance with law and to deter the unjustified objections and obstructions of respondents 5 to 14. 2. According to the petitioner, the petitioner had applied for establishing a stone crusher unit. It is true that the petitioner had contemplated the establishment of a quarrying unit. It is also true that to enable the petitioner to run the quarrying unit he had to obtain and he had applied for explosive licence also. The petitioner accepts that at the moment the explosive licence has not been obtained. The quarrying operation cannot be undertaken because of certain legal WPC 33452/2010 2 obstacles including restraint orders by the civil court. But, according to the petitioner there is absolutely no legal impediment against establishment of a crusher unit as permitted by the Panchayat under Ext.P3. According to the petitioner all other requisite licences/permissions for operating the stone crusher unit have already been obtained. But respondents 5 to 14 are illegally obstructing to the establishment of the stone crusher unit. 3. This writ petition was admitted. Notice was ordered to all the respondents. All the respondents have been served. Respondents 5,6,7,9,10,11,13 and 14 have entered appearance through Adv. Kaleeswaram Raj. Respondents 1 to 4 are represented by the learned Govt. Pleader. 4. Learned Govt. Pleader on behalf of respondents 1 to 4 submits that respondents 1 to 4 shall afford the requisite protection for the petitioner to run the crusher unit provided the same is run strictly in accordance with law and provided this Court directs grant of police protection to the petitioner. 5. The party respondents raise very serious objections. The first contention is that permission has been sought and granted to run a composite activity of quarrying and crushing. WPC 33452/2010 3 For quarrying explosive licence has to be obtained. Without and before getting the explosive licence and without and before getting permit for quarrying the petitioner cannot be permitted to establish the stone crusher unit alone. That would not be undertaking the activity in accordance with the directions of the Panchayat. 6. We have considered the first objection. In the light of Ext.P3 we are afraid this contention cannot be accepted. Separate licence has been taken for running a stone crusher unit using 310 H.P electric motor. The requisite licence fees has also been paid. In these circumstances the contention that the activity cannot be split into three – i.e (i) using explosive substances; (ii) quarrying and (iii) operating the stone crusher, does not appear to be valid. If the stone crusher can be run in accordance with the permit issued by the Panchayat and in compliance with other requisite formalities we find no merit in the contention that want of a permit under the Explosives Act or want of a permit for quarrying is sufficient reason not to permit the petitioner to undertake the stone crusher activity. 7. The learned counsel for the party respondents contends that without obtaining the explosive licence and without WPC 33452/2010 4 securing the permit for quarrying the activity of stone crushing cannot be run at all. If protection is granted for running the stone crushing activity illegal blasting using explosives shall take place and illegal quarrying without requisite permission shall take place, contends the learned counsel for the party respondents. 8. Learned counsel for the petitioner counters these contentions by undertaking that without and before getting the requisite orders of the civil courts and without and before getting the requisite legal permissions/licences/permits to undertake blasting operations with the use of explosives and for quarrying, no such activity shall be undertaken. Learned counsel for the petitioner has a further contention that the civil courts do not have jurisdiction to issue any orders of restraint. That contention will of course have to be urged before the appropriate authorities and the orders passed by the civil courts will have to be vacated. We however accept the unconditional undertaking of the petitioner through his counsel that the activity of blasting using explosives and the activity of quarrying shall not be undertaken without and before getting all the requisite permissions/licences/permits and without and before WPC 33452/2010 5 vacating orders of the civil court proscribing such activity. 9. How will the stone crusher be worked then? Learned counsel for the petitioner submits that the raw materials for crushing shall be brought to the scene in accordance with law and such articles brought alone shall be used as raw material for the stone crusher. Though we take note of the contention of the party respondents that such operation of the stone crusher would be difficult and impossible, we find no reason not to accept the undertaking and afford police protection to the petitioner for the running of the stone crusher unit subject to the rider that raw materials brought to the stone crusher in accordance with law after complying with all requisite formalities shall alone be used as raw material for running the stone crusher. The learned Govt. Pleader on behalf of respondents 1 to 4 undertake that necessary police protection shall be granted if the above undertaking is strictly followed and observed by the petitioner. 10. This writ petition is in these circumstances allowed in part to the above extent. Police protection shall be afforded to the petitioner to establish and work the stone crusher unit under Ext.P3 subject to the condition that raw materials for the crusher WPC 33452/2010 6 shall b e brought to stone crusher in accordance with law in due compliance with all relevant laws and on the undertaking that blasting with explosives and quarrying shall not be done at the or near the site. We do however make it clear that if requisite permission etc are obtained for undertaking the work of blasting rocks with due permission from the authorities and after the orders of the civil courts are vacated, the petitioner shall be at liberty to undertake such activity and this judgment will not stand against the same. We further make it clear that if while working the stone crusher there is any threat to environment it shall be open to the party respondents or concerned officials to complain about such violation and seek appropriate orders from courts/authorities. Police protection shall be afforded only if the conditions are complied with strictly. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 33452/2010 7