IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 WP(C).No. 19459 of 2009(B) -------------------------- PETITIONER(S): ------------------ LORANCE JOSEPH, NAMBUDAKATH HOUSE, MOONNILAVU P.O., KOTTAYAM DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.ABRAHAM GEORGE JACOB RESPONDENT(S): ------------------ 1. THE DISTRICT COLLECTOR, COLLECTORATE, COLLECTORATE P.O., KOTTAYAM-686 002. 2. THE ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE P.O., KOTTAYAM-686 002. 3. THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, PETROLEUM AND EXPLOSIVES SAFETY ORGANISATION(PESO) (FORMERLY DEPARTMENT OF EXPLOSIVES), C2, IIIRD FLOOR, KENDRIYA BHAVAN, OPP. CESZ, KAKKANAD, KOCHI-682 037. 4. AJITH GEORGE, PEMPILAKUNNEL HOUSE, KALATHUKADAVU P.O., KOTTAYAM DISTRICT. 5. ALICE MATHEW, PURACKAL HOUSE, CHEMMALAMATTOM P.O., KOTTAYAM DISTRICT. ADV. SRI.TOM JOSE (PADINJAREKARA) FOR R4&5 SRI.SELVIN ABRAHAM FOR R4 SRI.K.SANIL KUMAR, ADDL.CGSC FOR R3 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R3 GOVT.PLEADER SRI.K.S.MOHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.19459/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE NO OBJECTION CERTIFICATE DT 17.3.2006. EXT.P2: PROCEEDINGS OF THE ADDITIONAL DISTRICT MAGISTRATE DATED 5.1.2008. EXT.P3: TRUE COPY OF THE LETTER DT 10.1.2008 INTIMATING APPROVAL FOR SHIFTING THE MAGAZINE. EXT.P4: TRUE COPY OF THE REPORT ISSUED BY THE TAHSILDAR MEENACHIL TALUK DT 14.1.2008. EXT.P5: TRUE COPY OF THE MEMO DT 20.2.2008 ISSUED BY 3RD RESPONDENT DEPUTY CHIEF CONTROLLER OF EXPLOSIVES. EXT.P6: TRUE COPY OF THE PROCEEDINGS OF THE ADDITIONAL DISTRICT MAGISTRATE DT 15.2.2008 REINSTATING THE NOC. EXT.P7: TRUE COPY OF THE COMPLAINT DATED 1.3.2008 FILED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT DISTRICT COLLECTOR. EXT.P8: TRUE COPY OF THE REPORT OF THE RDO DT 8.4.2008. EXT.P9: TRUE COPY OF THE EXTRACT OF THE DECISION TAKEN BY THE DISTRICT COLLECTOR ON EXT.P7 DT 16.8.2008. EXT.P10: TRUE COPY OF THE LETTER DT 3.3.2008 ISSUED BY THE DIRECTOR OF MINES SAFETY, CHENNAI REGION. EXT.P11: TRUE COPY OF THE JUDGMENT DT 1.4.2009 PASSED IN WPC 12693/2008. EXT.P12: TRUE COPY OF THE AUTHORIZATION FROM DIRECTORATE GENERAL OF MINES SAFETY DT 29.4.2009. EXT.P13: TRUE COPY OF THE STATEMENT DT 7.4.2009 FILED BY THE PETITIONER HEREIN BEFORE THE 1ST RESPONDENT. EXT.P14: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DT 8.6.2009. EXT.P15: TRUE COPY OF THE LETTER DT 24.2.2009 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES. EXT.P16: TRUE COPY OF A NOTICE DT 19.6.2006 ISSUED BY THE 5TH RESPONDENT TO THE LOCAL PANCHAYAT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 19459 OF 2009 (B) ===================== Dated this the 31st day of July, 2009 J U D G M E N T The prayer sought in this writ petition is to quash Ext.P14, an order passed by the 1st respondent on Ext.P7 representation filed by the 4th respondent. By this order, Ext.P6 has been cancelled and the 2nd respondent is directed to hear respondents 4 and 5 and decide the matter afresh. It is also ordered that the petitioner should comply with the provisions of the Explosives Act, 1884 and the Explosives Rules, 2008. In this writ petition, impugning the validity of Ext.P14, although several contentions are raised, submissions made by the petitioner were only on the legality of the aforesaid directions. 2. Briefly stated, facts of the case are that Ext.P1 dated 17/3/2006 is a no objection certificate issued in favour of the petitioner, for setting up an explosive magazine in the property in Sy.No.130/1 in Block No.52 of Moonnilavu Village in Meenachal Taluk and for conducting rock blasting in Sy.No.130/6 of Block No.52 in the same village. From the mining permit that is issued on 7/2/2007, a copy of which was made available by the counsel WPC 19459/09 :2 : for respondents 4 and 5 would show that the area of land in Sy.No.130/6 is 5.4 Ares and therefore the blasting as certified in the NOC has to be confined to this area. It is stated that once Ext.P1 was issued, objections were raised by respondents 4 and 5, who live in the neighbourhood and referring to the objections filed by them, the 2nd respondent passed Ext.P2 order dated 5/1/2008, the relevant portion of which reads as under: Notices were issued to the petitioners and the NOC holder and were heard on 4/12/2007. The main objection by the petitioners is the existence of the explosive magazine close to their property. They submitted that portion of their property is rendered useless due to the condition No.20 of the licence in Form 22 issued to Sri.Lorance Joseph. The respondent (the licence holder) agreed to shift the magazine from the present location but submitted that the present location of the magazine is approved by various authorities including the Department of Explosives and can be changed only by getting concurrence of the authorities. In the above circumstances, the No Objection Certificate issued from this office as per reference 1st cited is withdrawn till the magazine is shifted by a distance of 15 meters from the boundary of the 2nd petitioner's property. (emphasis supplied) 3. This order would show that Ext.P1 NOC was withdrawn till the magazine is shifted by a distance of 15 metres from the boundary of the 5th respondent. Based on Ext.P2, the 3rd WPC 19459/09 :3 : respondent issued Ext.P3, approving the shifting of the magazines to a distance of 15 meters from the boundary of the 5th respondent. It is ordered that once the magazine is installed at the new location, the matter should be informed to the 3rd respondent. Ext.P4 dated 14.1.2008 is a report submitted by the Tahsildar to the District Collector reporting that in compliance with Exts.P2 and P3, the magazine has been shifted. Ext.P4(2) is a plan attached to Ext.P4, which however show that the site of the quarry is situated in Sy.No.130/6 and 130/3 and is having an area of 22.27 Ares as against 5.4 Ares shown in the mining permit dated 7/2/2007 mentioned above. The 3rd respondent also issued Ext.P5 to the Joint Chief Controller of Explosives for amending the licence issued to the petitioner based on the developments that took place following Exts.P1 to P4. 4. It is stated that in the meanwhile, Sri.E.P.Rajan, the Tahsildar, who submitted Ext.P4 report to the District Collector, got promoted as the Additional District Magistrate. Immediately on assumption of office, Sri.E.P.Rajan issued Ext.P6 referring to his own report and also the letters of the 3rd respondent. Ext.P6 to the extent it is relevant, reads as under: WPC 19459/09 :4 : The Deputy Chief Controller of Explosives as per the reference 6th cited has reported that the subject magazine was inspected by an officer from that office on 19/1/2008 and observed that the magazine was shifted to a distance of 15 meters from the boundary of the property of the licensee with that of the petitioner, Smt.Alice Mathew. The objection by the petitioners is the existence of the explosive magazine closer to their property and it is corrected by the respondent by shifting the magazine to a distance of 15 meters with permission by the Deputy Chief Controller of Explosives as mentioned above. In the above circumstances, the No Objection Certificate issued on 17/3/2006 the order 4/1/2008 is sustained forthwith. Sri.Lorance Joseph is allowed to conduct quarrying only from the sanctioned area approved by the Controller of Explosives observing the conditions of Form 22 licence and without causing any harm to the property of the petitioners/nearby residents. (emphasis supplied) 5. Evidently, by this proceedings, on account of the shifting of the magazines, Ext.P1 NOC that was issued to the petitioner for conducting rock blasting, has been revived. Aggrieved by Ext.P6, the 4th respondent filed Ext.P7 complaint before the District Collector alleging various irregularities on the part of Sri.E.P.Rajan, who submitted Ext.P4 report and issued Ext.P6 proceedings referred to above. On receipt of Ext.P7, the District Collector called for a report from the Revenue Divisional Officer, Pala and thereupon the RDO, Pala submitted Ext.P8 report dated 8/4/2008 confirming that Sri.E.P.Rajan did not commit any irregularity in issuing Ext.P6. WPC 19459/09 :5 : 6. While matters stood thus, the 4th respondent filed WP(C) No.12693/08 before this Court, which was disposed of by Ext.P11 judgment dated 01/04/2009, directing the District Collector to urgently consider Ext.P7 referred to above, with notice to the 4th respondent and the petitioner herein. Accordingly, the District Collector heard the parties on 20/5/2009 and 26/5/09 and issued Ext.P14 order dated 8/6/2009. In Ext.P14 order, the District Collector held that while passing Ext.P6 order dated 15/2/2008, respondents 4 and 5 were not heard by the 2nd respondent and therefore he cancelled Ext.P6. Proceeding further, he directed the 2nd respondent to hear respondents 4 and 5 in compliance with the principles of natural justice and fairness, and take a fresh decision in the matter of grant of NOC. 7. Proceeding further, the District Collector also held that the petitioner should comply with the procedures as laid down in the Explosives Act and the Explosives Rules, 2008. Although there are several findings in Ext.P14 about the alleged unauthorised quarrying that the petitioner has undertaken, these issues are not relevant for the disposal of this writ petition and therefore, I am not called upon to pronounce on the same. WPC 19459/09 :6 : 8. As already stated, the first grievance of the petitioner is regarding the direction contained in Ext.P14 requiring that the respondents 4 and 5 should be heard by the 2nd respondent. As far as this direction of the District Collector is concerned, learned senior counsel for the petitioner referred me to Rule 157 of the Explosives Rules 1983 and contended that the Rule does not provide for an opportunity of hearing to any of the parties. However, as rightly contended by the respondents, a reading of the Rule shows that before the grant of a certificate to the effect that there is no objection for receiving the licence, the authority is required to conduct an “enquiry” into the application and it is only thereafter that the certificate can be granted. The enquiry to be conducted has to be with notice to the affected parties, which in this case are respondents 4 and 5. That apart, the blasting area mentioned in the mining permit is much less than what is indicated in Ext.P4(2) sketch and in Ext.P14, the District Collector has also found that in Ext.P4 report, certain structures were omitted to be noted. Only if notice is issued, can the respondents 4 and 5 point out these inconsistencies to the 2nd respondent. For this reason also, the direction in Ext.P14 to issue notice to respondents 4 and 5 WPC 19459/09 :7 : is perfectly justified. Therefore, I am not persuaded to hold that the District Collector has committed an illegality in directing that the respondents 4 and 5 shall be heard by the 2nd respondent and this contention raised by the petitioner is only to be rejected and I do so. 9. The other issue to be considered is the correctness of the direction that the petitioner shall comply with the Explosives Rules, 2008. According to the learned senior counsel for the petitioner, by Ext.P2, NOC was withdrawn till the magazine is shifted by a distance of 15 meters from the boundary of the 5th respondent. It is stated that Ext.P2 discloses only a temporary suspension of the NOC and if and when the magazine is shifted as ordered in Ext.P2, it will result in the resurrection of Ext.P1, and if so, the Rule which was prevailing at the time when Ext.P1 NOC was issued has to govern the parties. According to the counsel, in that view of the matter, the direction in Ext.P14 that the requirements of the 2008 Rule should be complied with, is illegal. 10. On the other hand, counsel for respondents 4 and 5 contended that the ADM is to decide the matter afresh and therefore, the Rule prevailing at the time when the decision is taken WPC 19459/09 :8 : is what is relevant. Therefore, he contended that the parties will be governed by the 2008 Rules as held by the District Collector in Ext.P14. 11. A reading of Ext.P2 referred to earlier shows that, by this order, the NOC issued was withdrawn till the shifting of the magazine. This order has not been challenged by anybody and therefore has attained finality. If that be so, once the magazine is shifted, it certainly results in the resurrection of Ext.P1 NOC. That NOC was granted long prior to 2008 when the new Rules were introduced. If that be so, the direction in Ext.P14 that the 2008 Rules which came into force only on 31/12/2008 will govern the parties cannot be sustained. Therefore, the writ petition is disposed of directing the 2nd respondent to decide the matter as directed in Ext.P14 with notice to the petitioner, the 4th respondent and the 5th respondent and in the light of the observations made herein above. This shall be done, as expeditiously as possible, at any rate within six weeks of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp