IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 WP(C).No. 24894 of 2011(J) ---------------------------------------- PETITIONER(S): -------------------------- 1. SAINABA,W/O.MUHAMMED ALI,AGED 43, PUTHIYEDATH HOUSE, THAIKATTUKARA P.O,ALUVA. 2. SHAKEELA,W/O.MUHAMMED NAZIR, PUTHIYEDATH HOUSE, THAIKATTUKARA P.O,ALUVA. 3. RAMLA,W/O.SHAFEEQ, PUTHIYEDATH HOUSE, THAIKATTUKARA P.O,ALUVA. 4. FATHIMA JASMIN,W/O.ASHRAF, PUTHIYEDATH HOUSE, THAIKATTUKARA P.O,ALUVA. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT(S): --------------------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, ALUVA,PIN- 683 101. 2. THE CIRCLE INSPECTOR OF POLICE, PERUMBAVOOR,PIN- 683 542. 3. THE SUB INSPECTOR OF POLICE,PERUMBAVOOR, PIN- 683 542. 4. THE SENIOR GEOLOGIST DEPARTMENT OF MINING & GEOLOGY,DISTRICT OFFICE,ERNAKULAM, COCHIN-30. 5. VARGHESE,S/O.CHAKKAPPAN,KOLLALIL HOUSE, WEST VENGOLA P.O, PERUMBAVOOR,PIN -683 554. 2/- -2- WP(C).No. 24894 of 2011(J) 6. THOMAS,S/O.PILLAI,PARACKATT HOUSE, WEST VENGOLA P.O,PERUMBAVOOR ,PIN -683 554. 7. RAJAN,S/O.PAULOSE, PARACKATT HOUSE, WEST VENGOLA P.O,PERUMBAVOOR ,PIN -683 554. 8. SIVAN,S/O.SANKU, MANAYIL HOUSE, WEST VENGOLA P.O, PERUMBAVOOR ,PIN -683 554. 9. KUNJUNJU,S/O.PATHROSE, NEELANKAL HOUSE, WEST VENGOLA P.O, PERUMBAVOOR,PIN -683 554. 10. PETER,S/O.KURIAKOSE,NEELANKAL HOUSE, WEST VENGOLA P.O, PERUMBAVOOR,PIN- 683 554. *ADDL.R11 IMPLEADED *R11: VENGOLA GRAMA PANCHAYAT, REP.BY ITS SECRETARY * IS SUO MOTU IMPLEADED AS PER ORDER DATED 11/10/11 R1 TO R4 BY SR GOVERNMENT PLEADER SRI.M.K.ABOOBACKER R5 & R6,R8 BY ADV.SRI.JACOB MATHEW MANALIL SRI.P.M.BENZIR R7, R9 & R10 BY ADV. SRI.JAICE JACOB ADDL.R11 BY ADV.SRI.SIRAJ KAROLY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.24894/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1 TRUE COPY OF BUILDING PERMIT NO.A 23074/11 DATED 23/5/2011 OBTAINED BY THE PETITIONERS FROM VENGOLA GRAMA PANCHAYAT. EXHIBIT P2 TRUE COY OF CONSENT LETTER DATED 2/2/2011 IN FAVOUR OF M/S.COCHIN GRANITES. EXHIBIT P3 TRUE COPY OLF SKETCH PREPARED BY THE VILLAGE OFFICER EXHIBIT P4 TRUE COPY OF ORDER DATED 16/5/2011 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF CHALAN DATED 11/5/2011. EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED 23/8/2011 FILED BY THE PETITIONERS BEFORE THE IST RESPONDENT. RESPONDENTS' EXHIBITS : EXHIBIT R7(A) CIRCULAR NUMBER 78327/RC3/09/LSGD. EXHIBIT R7(B) CERTIFICATE NUMBER A 2/11265/11 DATED 5/9/11 ISSUED BY THE GRAMA PANCHAYAT, VENGOLA. EXHIBIT R7(C) MASS REPRESENTATION DATED 12/9/11. /TRUE COPY/ P.S.TO.JUDGE sts PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- WP(C).NO. 24894 of 2011 --------------------------------- Dated this the 8th day of November, 2011 JUDGMENT Pius C.Kuriakose ,J. Petitioners are the co-owners of 1 Hectare 23 Ares of property lying contiguous as a single block, comprised in Survey No. 99/4, 99/5 and 104/9 of Arakapady Village in Kunnathunad Taluk, which they have purchased in the year 2006. Ext. P1 is the Building Permit obtained from the Vengola Grama Panchayat (Additional Respondent No.11) for construction of a residential building in the said property. It is stated that, for construction of the building a Granite Rock situated in the property which occupies a sizable portion needs to be removed and the level of the portion covered by the rock needs to be brought to the ground level. It is further stated that the work of removal of the Granite Rock was entrusted with a firm, M/s. Cochin Granites, on the basis of Ext.P2 deed of consent executed . The said firm had applied and obtained Ext.P4 permit from the 4th respondent issued under the provisions of the Kerala Minor Mineral WP(C) .24894/2011 2 Concession Rules 1967 (hereinafter referred to as the 'Concession Rules' ). By virtue of Ext.P4, excavation is permitted from the area marked in Ext.P3 sketch prepared by the village officer. According to the petitioner, the excavation will be done only by using method of chemical blasting and no explosives will be used for such work. 2. Grievance voiced in this writ petition is that when the work of drilling holes started, the respondents 5 to 10 physically obstructed such works. Eventhough the petitioners filed a complaint before the 1st respondent, no effective steps were taken to remove the illegal obstruction and to afford protection. Hence this writ petition is filed seeking appropriate directions to respondents 1 to 3. 3. In the counter affidavit of respondents 7,9 and 10 it is contended that, the intention of the petitioners is not for excavating the Rock, but the petitioners are attempting to have quarrying operations in the property. It is stated that the area is thickly populated having so many residential buildings and a public road existing in the vicinity. Any blasting operations in the area would be disastrous to the life and property of the WP(C) .24894/2011 3 respondents and other people living nearby, is the contention . It is also contended that, even though in Ext.P4 permits only the usage of chemicals, the petitioners are attempting to use explosives and to conduct quarrying operations. Further it is contended that drilling of holes is not conducted in the demarcated area and the quarrying is proposed close to the public road, which is being used by students going to the nearby school. Contentions are to the effect that, the petitioners are attempting to have quarrying operations without obtaining necessary permits and licences. Further contention is that, no mining operations without getting licence from the Panchayat, NOC from the Pollution Control Board, and permission under the Explosives Act, can be permitted. Ext.R7(a) is a circular issued by the State Government prescribing procedure with respect to obtaining requisite licences and permits for quarrying operations. It is contended that merely because a permit is obtained from the Mining and Geology Department, the petitioner could not conduct quarrying operations, without obtaining other requisite permissions and licence as stipulated in Ext.R7(a). It is also contended that the petitioners have not taken any precautionary WP(C) .24894/2011 4 as measures as stipulated in Ext.P4, before starting the blasting operations. It is also stated that the people in the locality have submitted Ext.R7(c) representation before various authorities, requesting to take action for stoppage of the illegal activity. 4. In a separate counter affidavit filed by respondents 5,6, and 8, almost identical contentions are taken. Additionally it is contended that the drilling of the rock will cause serious pollution problem in the area due to spreading of rock dust. It is stated that levelling of the area may require quarrying more than 4 years and massive drilling and the resultant air and sound pollution will make life of the respondents miserable. It is contended that rock is spreaded to an area of more than 2.5 Acres and it is at a height of more that 50 Feet. According to the said respondents the property can be levelled only by massive quarrying, which cannot be permitted in such a populated area. It is also contended that usage of chemicals for the quarrying operations will create environmental problems, including pollution of drinking water sources. However, it is conceded that those respondents are not creating any physical obstructions as alleged or indulging in any illegal activity. WP(C) .24894/2011 5 5. Sri. P. Viswanathan, learned counsel appearing for the petitioners contended that the apprehension expressed by the party respondents are totally without any basis. It is submitted that in the vast area of 1 Hectare and 23 Ares. (3 Acres and 3.93 Cents) the petitioners are intending to construct 4 separate residential buildings. It is submitted that the rock in question is situated only in a small portion, that too at a distance of more that 50 Meters away from the public road. According to him, the blasting upto the ground level may take hardly about 3 months. It is also argued that the rock in question is not a hard rock, but it is only a mild variety viz. “Mattykallu”. He also contended that, since the petitioners are not intending any quarrying by using explosives for any purpose of trade or business, no other permit or licence is required. Standing counsel appearing for Additional 11th respondent (Grama Panchayat) had pointed out certain provisions in the Kerala Panchayat Building Rules 2011 (hereinafter referred to as Building Rules) as well as in Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trade and Factories ) Rules 1996 (hereinafter referred to as Licencing rules) . WP(C) .24894/2011 6 6. For a better appreciation of the factual situation, we directed the petitioners as well as the Grama Panchayat to produce photographs of the property containing the rock. The Standing Counsel had produced 5 Nos. photographs marked as Ext.R11(a) series. Learned counsel for the petitioners also produced 5 Nos. photographs for our perusal. From the photographs produced, we are convinced that the location of the rock in question is almost at the middle of the property and the same is situated at a considerable distance from the public road. The rock in question is only having an average height of about 5 to 10 feet from the ground level. 7. We heard counsel appearing for all parties including Sri.Jacob Mathew Manalil who argued for some of the contesting respondents. Stiff opposition is raised against granting of police protection for the works as permitted under Ext.P4. One of the main contention is that, apart from Ext.P4 permit the petitioner is at an obligation to get licence from the Grama Panchayat as required under Section 232 of the Kerala Panchayat Raj Act read with the Licencing Rules. It is also contended that permit ought to have been need be obtained under the Building Rules for WP(C) .24894/2011 7 development of the land, even if it is for construction of the building. According to the party respondents, without obtaining all the requisite permits and licences, any excavation if permitted will amount to an illegal activity, for which police protection cannot be afforded. 8. While considering the rival contentions and legal questions raised, we notice the terms of Ext.P4 permit. In para 2 of Ext.P4 it is stated as follows:- “A detailed inspection was carried out in this area on 10.3.2011 by this office. There is a public road and residential buildings surrounded this proposed area. The intention of the applicant is to only level the high ground in order to construct a building and not to develop this work into a quarry. Also he wants to utilise for his own and also sell the marketable part of stone produced while levelling the ground. It is also understood from the inspection that the hard rock has to be removed from the proposed area for any kind construction activity. For this blasting operation is essential. In order to remove the rocks by conducting blasting operations a distance clearance of 50m has to be provided from public structures and buildings as WP(C) .24894/2011 8 stipulated under the provisions under kerala Minor Mineral Concession Rules 1967. Accordingly the revised sketch prepared by the Village Officer has been submitted by the applicant.” It is evident from the terms of Ext.P4 that the permit is not granted for any commercial activity of quarrying for the purpose of any trade or business. It is specifically mentioned that the permit is not to develop the work into quarrying, but it is intended only to remove the hard rock from the proposed area for levelling of the ground. We further notice that the blasting is permitted only confined to the area marked in the sketch, that too only beyond 50 meters away from the public road. From the conditions stipulated in Ext.P4 it is evident that what is permitted is only chemical blasting with expert supervision and the quarrying could not be done below the ground level. It is pertinent to note that the permit granted is valid only upto 15.5.2012. Further, the permit had incorporated various conditions and it is mentioned that if any violations are noticed by the competent authority or any person duly authorised in this behalf, the permit is liable to be suspended or cancelled . WP(C) .24894/2011 9 9. From the facts as narrated above, we have no hesitation to hold that, what is permitted through Ext.P4 is not any quarrying operation for trade or commercial activity. But the permit is only for removal of a rock for the purpose of levelling the land, for enabling construction of a building therein. 10. Question arises as to whether any further licence or permission is required for conducting the works as permitted under Ext.P4. Section 232 of the Panchayat Raj Act prohibits that no place in the Panchayat area shall be used for any purpose specified in the Rules which in the opinion of the Government are likely to be offensive or dangerous to human life or property, without a licence issued by the Secretary and except in accordance with the conditions specified in such licence. Which are the purposes in the opinion of the Government are likely to be offensive and dangerous to human life, health or property are specified in the first schedule appended to the Licensing Rules. Cutting, storing or selling of Granite is an item included in the schedule to the Licensing Rules, which according to the Government are likely to be offensive or dangerous to human life or health or property. But Rule 9 of the Licensing Rules provides WP(C) .24894/2011 10 an exemption that no licence is necessary for collecting and processing any material specified in the schedule if it is for domestic purposes and is in such measures as may be fixed by the Panchayat from time to time. As observed above, it is clearly evident from Ext.P4 that the blasting of the rock is permitted only for the purpose of removing the rock and for levelling the land to the ground level for enabling construction. On the other hand it is evident that no permit is granted for any quarrying operations using any explosives for the purpose of any trade or commerce. Considering the facts and circumstances and also in the interest of justice, we find sufficient reasons to hold that the activity permitted under Ext.P4 is purely for domestic purposes and hence no licence is necessary for processing of the rock in question as contemplated under Rule 9 of the Licensing Rules. Learned Standing Counsel pointed out that Rule 9 empowers the Panchayat to fix measure with respect to the quantity of the material from time to time, in order to come any activity within the purview of Rule 9. We find that no counter affidavit was filed by the Additional Respondent No.11 nor any contention is made to the effect that such a quantity has been fixed by the WP(C) .24894/2011 11 Panchayat and that blasting and removal of the rock in question as permitted under Ext.P4 will exceed such quantity. Hence we hold that the petitioner is not under obligation to get licence under Section 232 read with the provisions of the Licensing Rules for the activity of the removal of the rock as permitted under Ext. P4. 11. With respect to the contention that the petitioner is under obligation to take development permit, we take note of Rule 10 and 11 of the Building Rules. Nobody has got as a case that Ext.P1 building permit was issued without approval of the site or approval of the plan submitted. Rule 12 insist that the permit is necessary where excavation of a depth of more than 1.5 meters is involved. But it is pointed out by the learned counsel for the petitioners that Rule 12(1) will be applicable only if the depth of cutting is more than the horizontal distance of such cutting from the plot boundary. According to the petitioners the rock in question is situated almost on the middle of the property at a distance of more than 50 meters from the plot boundary and the height of the rock to be removed is only around 5 to 10 feet. Hence the provisions of the Rule 12 with WP(C) .24894/2011 12 respect to any permission for development is not applicable in the case at hand, is the submission. We find force in the contention, considering the factual aspects. However, we notice that nobody has challenged the building permit obtained by the petitioners under Ext.P1 on any ground that it suffers from any deficiency of site approval or any non-obtainment of development permit. Therefore we find no reason to restrain the petitioners from carrying out the operation as permitted under Ext.P4, on the ground that the petitioners have failed to obtain development permit from the Grama Panchayat. 12. Apart from the above findings we take note of the fact that Ext.P4 permit was issued under the provisions of the Kerala Minor Mineral Concession Rules 1967. Chapter VIII of the said Rule deals with appeal and review against any decision or order made by any competent authority under the said Rules. The party respondents herein or anybody claiming under them have not chosen to challenge the permit granted by resorting to any of provisions contained under Chapter VIII. Further we notice that under Rule 48N of the Concession Rules various authorities are empowered to conduct inspections and verifications with WP(C) .24894/2011 13 respect to adherence of the conditions incorporated in the permit. Therefor we do not find any material to presume that the petitioners will conduct any illegal activity beyond the scope of Ext.P4 permit, and to deny grant of police protection on the basis of any such apprehensions. 13. Under the above mentioned circumstances we direct respondents 1 to 3 to take effective steps to remove obstructions if any caused to the petitioners in carrying out the work of blasting and removal of the rock situated in the property in question, strictly in accordance with the condition stipulated in Ext.P4. If any intimation is received regarding threat to the life of the petitioners or management and staff of M/s. Cochin Granites with whom such work is entrusted, effective steps shall be taken to afford protection. 14. We make it clear that the above direction is given subject to the condition that Ext.P4 permit remains in currency and that no competent authority under the Kerala Minor Mineral Concession Rules 1967 have either suspended or cancelled the permit or issued any stoppage of the work. 15. We further direct the 4th respondent to conduct WP(C) .24894/2011 14 periodical, weekly inspections at the site, either by himself or through any authorised person on that behalf, in order to ensure that the petitioners are doing the blasting and removal of the rock strictly in accordance with the terms of Ext.P4 and to ensure that no explosives are used or no quarrying operation in the nature of any trade or business activities carried on. PIUS C. KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE pmn/