IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 WP(C).No. 6485 of 2009(E) ------------------------- PETITIONER(S): --------------- 1. AMBIKA PAPPU , AGED 42 YEARS, W/O.PAPPU, APPATHI HOUSE,KARUKUTTY PO MAMBRA, ERNAKULAM. 2. AYYAPPAN AGED 65 YEARS, S/O.RAMAN APPATHI HOUSE,KARUKUTTY PO. MAMBRA, ERNAKULAM. 3. RAJESH AGED 38 YEARS, S/O.KUTTAPPAN, NADUVATH HOUSE, KARUKUTTY PO,MAMBRA ,ERNAKULAM. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, ERNAKULAM 2. GEOLOGIST, DISTRICT MINING AND GEOLOGY OFFICE, CIVIL STATION, ERNAKULAM. 3. KERALA STATE POLLUTION CONTROL BOARD ERNAKULAM,REP.,BY ITS SECRETARY, PARAKKADAVU ALUVA TALUK, ERNAKULAM DISTRICT. 4. PARAKKADAVU GRAMA PANCHAYATH REP. BY ITS SECRETARY,PARAKKADAVU ALUVA TALUK, ERNAKULAM DISTRICT. 5. MUHAMMED IQBAL THEMALI PARAMBIL,MAMBRA PO, ERNAKULAM. ADV. SRI.S.GOPINATHAN FOR R4 SRI.JOHNSON ABRAHAM FOR R4 SRI.BABU JOSEPH KURUVATHAZHA FOR R5 SRI.K.I.SAGEER IBRAHIM FOR R5 GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1 AND 2 SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.6485/09 2 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PHOTOGRAPHS SHOWING THE DAMAGE CAUSES TO THE TILE ON A PARTICULAR DAY. P2 COPY OF THE COMPLAINT DT 7.10.2008 P3 COPY OF THE COMPLAINT DT 13.11.2008. P4 COPY OF THE INTERIM ORDER. P5 COPY OF THE REPORT FILED BY THE POLLUTION CONTROL BOARD. P6 COPY OF THE INTERIM ORDER DT 15.6.05. RESPONDENTS' EXHIBITS: ANNEXURE-R3(A) COPY OF THE CONSENT DT 4.6.2008 ANNEXURE-R3(B) COPY OF THE CIRCULAR DT 13.6.2007 ANNEXURE-R3(C) COPY OF THE LETTER DT 15.6.2009 // True Copy // P.A. To Judge P.N. RAVINDRAN, J. ``````````````````````````````````````````````````````` W.P.(C) No. 6485 of 2009 E ``````````````````````````````````````````````````````` Dated this the 17th day of February, 2010 J U D G M E N T The petitioners are residents of Parakkadavu Grama Panchayat. Their residential houses are situated near to a rock quarry conducted by the fifth respondent. The petitioners allege that the fifth respondent is running the quarry illegally, that there are residential houses situated within a distance of 50 metres from the quarry and that under Rule 29(1) of the Kerala Minor Mineral Concession Rules, 1967, quarrying operations cannot be conducted within 50 metres from any reservoir, tanks, canals, roads, bridges, other public works, residential buildings, etc. except under and in accordance with the previous permission of the State Government. The fifth respondent does not have such permission from the State Government, they contend. The petitioners also allege that the quarry run by the fifth respondent has a depth of more than 150 feet. The petitioners have also stated that due to the quarrying operations conducted by the fifth respondent, serious damage has been caused to their houses. WPC.6485/2009 : 2 : They have also stated that the water table in the wells of the locality has been fallen as a result of quarrying operations. On these and other grounds, the petitioners have approached this Court seeking the following reliefs:- “ (i) to issue a writ of mandamus or other appropriate writ or order directing respondents 1 to 4 to take appropriate steps and to ensure that the quarrying activities carried on by the fifth respondent in the above mentioned property is stopped forthwith. (ii) to issue a writ or order commanding the second respondent to cancel the permits issued to the fifth respondent for quarrying operations in his property. (iii) to issue an appropriate writ or order directing respondent No.1 to 4 to examine and assess the degradation and damage to the property of the petitioners and as well as to the environment and ground water resources caused by the quarrying and assess and recover from the fifth respondent, the financial requirement for its restoration. WPC.6485/2009 : 3 : (iv) to issue an appropriate writ or order, directing respondent No.4 to fill up the huge pits caused by quarrying beyond the permitted limit and recover the costs from the fifth respondent.” 2. The District Geologist, Ernakulam has filed a counter affidavit, contending that a quarrying permit was validly issued to the fifth respondent and that it is valid till 07-09-2009. It is also stated that there are no residential buildings, schools, roads or any other public structures located within 50 metres of the quarry. As regards the allegation that the depth of the quarry exceeds 150 feet, the District Geologist, Ernakulam has stated as follows: “ The depth of the quarry is subject to the provisions of sufficient benches and slopes at every 6 metres of vertical cuttings. The quarry in question is being operated on its safer quarry faces where the prescribed depth limit is not exceeded. During the personal inspection conducted by this respondent it is observed that no work is progressing on the vertical faces where the depth is exceeded by 6 metres.” The District Geologist, Ernakulam has also denied the allegation WPC.6485/2009 : 4 : that the quarrying operation conducted by the fifth respondent is without obtaining the required permit and without complying with the provisions of the Kerala Minor Mineral Concession Rules. 3. The learned standing counsel appearing for the Kerala State Pollution Control Board has filed a statement dated 18-06- 2009. Paragraphs 2, 3 and 4 thereof read as follows:- “ 2. It is submitted that the quarry is located in Parakkadavu Panchayat, Aluva Taluk, Ernakulam District owned by the fifth respondent. The quarry is functioning under valid consent of the Board up to 31-12-2009. A true copy of the consent is produced herewith and marked as Annexure-R3(a). 3. It is submitted that the site was inspected by the Board Officers on 28-04- 2009. The nearby residences are beyond 50 metres. There are about 8 residences within 100 metres. The quarrying operations commenced before 13-06- 2007. The excavation work of the quarry is almost completed. 4. It is submitted that the quarrying operations have been brought under the purview of the Board with effect WPC.6485/2009 : 5 : from 13-06-2007 as per the directions of this Hon'ble Court. A Committee was constituted by the Board consisting of representatives of other Statutory Authorities viz. Mining and Geology and Explosives for formulating specific norms. As no other control measures for reducing pollution from quarry operations are feasible, distance norms were finalized by the Committee As per the norms, there should be a minimum distance of 100 metres from the boundary of the quarrying operations area to the nearest resident for new quarries (established after 13-06-2007) and 50 metres for existing quarries(established before 13- 06-2007). Detailed Circular with respect to the siting norms and sound and dust level limits are prescribed. A true copy of the Circular describing the norms is produced herewith and marked as Annexure-R3(b). As per the norms for quarrying operations, Standards are specified for sound and dust caused at a distance of 1 metre from the boundary. In view of the Public Complaints, directions have been issued to the fifth respondent WPC.6485/2009 : 6 : to limit the blasting operations, so as to reduce the nuisance to the petitioners. A true copy of the direction is produced herewith and marked as Annexure-R3(c). The vibrations, damage of the building, flying of rocks as alleged in the petition are beyond the Board's scope of control.” 4. The fourth respondent, the local authority, within whose territorial limits the fifth respondent is conducting the quarry, has filed a counter affidavit, wherein it is specifically pleaded that the depth of the quarry from the ground level is about 25 metres and that the fifth respondent has not applied for a permit and licence from the local authority. The relevant averments in paragraph 3 of the counter affidavit filed by the fourth respondent read as follows:- “ It is submitted that the fifth respondent is conducting quarry in Mambra Kara of Parakkadavu village which is within the jurisdiction of this Grama Panchayat. On receipt of notice in this Writ Petition, the Secretary of Parakkadavu Grama Panchayat personally inspected and conducted an enquiry about the quarry. In front of the quarry, there is a Board showing the license WPC.6485/2009 : 7 : number issued to the quarry by the Mining and Geology Department. Eastern side of the quarry is a part of hill having a height of about 25 metre above ground level and the western side of the quarry starts from ground level with about 25 metre depth. The average total depth of quarry from ground level is about 25 metre. It is submitted that the fifth respondent has not obtained permit and license from the Parakkadavu Grama Panchayat and has not submitted any application for license to the Panchayat.” The Secretary of the fourth respondent Panchayat has also submitted in paragraph 3 that there are ten residential houses situated within a distance of 100 metres from the quarry, that the first petitioner's house is situated about 85 metres away from the quarry and that glass panes of the windows of her house were seen broken. As regards the second petitioner, it is submitted that the second petitioner's house is situated about 88 metres away from the quarry and that the tiles of his house are broken. It is also stated that at the time of inspection by the officers of the Panchayat, the neighbouring residents complained that no warning WPC.6485/2009 : 8 : signal is given before using explosives and that no precautionary measures are taken to protect the lives and properties of neighbours and to prevent danger to pedestrians and students passing along the public road and that there are no safe guards or caution signals provided in the quarry. 5. The fifth respondent has filed a counter affidavit contending that the quarry has been in operation for the past several years and that he is conducting the quarry since 2005. He has also stated that he is conducting the quarrying operations in accordance with the procedures established by law, after securing all statutorily required licenses/clearances, including the consent to operate the quarry issued by the Kerala State Pollution Control Board which, the fifth respondent claims, is valid till 31-12-2009. 6. I heard Sri.K.Abdul Jawad, the learned counsel appearing for the petitioners, Smt.T.B.Remani, the learned Government Pleader appearing for respondents 1 and 2, Sri.M.K.Chandramohan Das, the learned standing counsel appearing for the Kerala State Pollution Control Board, Sri.S.Gopinathan, the learned counsel appearing for the fourth WPC.6485/2009 : 9 : respondent and Sri.K.I.Sageer Ibrahim, the learned counsel appearing on behalf of the fifth respondent. I have also considered the pleadings and the materials on record. It is evident from the statement filed on behalf of the Kerala State Pollution Control Board that Annexure-R3(a) consent to operate the quarry in question was granted for the first time only on 04-06-2008. It is evident from Annexure-R3(b) Circular produced along with the statement filed by the third respondent that in respect of new quarries after 13-06-2007, the minimum distance from the boundary of the quarry to residential buildings, places of worship, public buildings and public roads having vehicular traffic, river or lake, railway line, bridges, etc. shall be 100 metres. The third respondent has stated that there are eight residential houses situated within 100 metres of the quarry in question. This statement is also supported by the fourth respondent Panchayat. The fourth respondent has also submitted that the fifth respondent does not possess any permit or licence issued by the fourth respondent and that the fifth respondent has also not applied for any such permit/licence. It is also evident from the counter WPC.6485/2009 : 10 : affidavit filed by the fourth respondent that the depth of the quarry is approximately 25 metres. 7. The pleadings and the materials on record disclose that the fifth respondent is conducting quarrying operations without obtaining a licence from the local authority and that the quarry is located within 100 metres from the nearby residential houses. It is also evident from the pleadings that the quarry has a depth of approximately 25 metres. A Division Bench of this Court has in Gem Granites Vs. Deputy Superintendent of Police [2008 (1) KLT 937] held that quarrying operations cannot be conducted otherwise than in accordance with a licence issued by the local authority under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996. It was held that if a dangerous or offensive trade takes place at a mine or a quarry, permit or licence for the same is required, notwithstanding the licence granted under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder and that the licence/permission granted under one Act is not a substitute for the licence/permission under another Act. In WPC.6485/2009 : 11 : the light of the authoritative pronouncement of this Court in Gem Granites Vs. Deputy Superintendent of Police, the fifth respondent who does not possess any permit/licence issued by the fourth respondent under the provisions of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996, cannot operate the quarry. 8. In Rule 8(1) of the Kerala Minor Mineral Concession Rules, 1967, it was prescribed that the depth of the pit to be used for quarrying shall not exceed 20 feet. The said provision was deleted by SRO No.270 of 2008. A learned Single Judge of this Court has in Gokuldas Vs. Geologist [2009 (3) KLT 924], after noticing the fact that Rule 8(1) of the Kerala Minor Mineral Concession Rules, 1967 has been deleted, removing the limitation on the depth of the pit to be used for quarrying, held that notwithstanding the deletion of the Rule, all Geologists in the State of Kerala shall impose a condition while granting quarrying permits restricting the depth of the pit to be used for quarrying as 20 feet below the surface. The learned Judge held in paragraph 10 of the aforesaid decision as follows:- WPC.6485/2009 : 12 : “ 10. It is brought to my notice that formerly under R.8 of the Kerala Minor Mineral Concession Rules, the depth of the pit to be used for quarrying below the surface was not to exceed 20 feet. That condition has been deleted from the Rules now by amendment by S.R.O.270/2008. I am surprised that when courts are trying their best to protect ecology by persuading the Government to bring in more regulatory measures, the Government has deleted the regulatory measures by altogether excluding the depth to which mining can be undertaken. If that is permitted, then it would have more deleterious effects on the ecology. Although this Court cannot interfere with the legislative powers of the State, I take this occasion to express my anguish over such relaxation of conditions, which has originally been incorporated with the object of protecting the ecology, insofar as, to my mind, the same does not make any perceivable sense. I am of opinion that the Government will do well to re- consider the matter and re-introduce the said condition also, which would only go WPC.6485/2009 : 13 : to further protect the ecology of our State. I am of further opinion that such a condition should be incorporated in all quarrying permits deriving support from Soman's case(supra). Therefore, I direct all the Geologists in the State that quarrying permits issued under the Kerala Minor Mineral Concession Rules shall contain a condition restricting the depth of the pit to be used for quarrying below the surface to 20 feet and the additional 3rd respondent shall issue appropriate instructions to all Geologists in the State accordingly. The necessity of such a condition is well perceivable from the counter affidavit of the 3rd respondent itself.” 9. In the instant case, the fifth respondent is conducting quarrying operations in a pit, the depth of which exceeds 20 feet. The quarrying permit issued to the fifth respondent was valid till 07-09-2009. The decision of this Court in Gokuldas Vs. Geologist (supra) was rendered on 24-07-2009. Therefore, in the light of the directions issued by this Court in paragraph 10 of the aforesaid decision, no Geologist in the State of Kerala can issue a quarrying WPC.6485/2009 : 14 : permit to conduct quarrying operations below a depth of 20 feet. In such circumstances, on that ground also, the fifth respondent is liable to be interdicted from operating the quarry. In the result, I allow this writ petition and direct respondents 1 to 4 to forthwith close down the quarry conducted by the fifth respondent in Parakkadavu Grama Panchayat. Sd/- (P.N. RAVINDRAN, JUDGE) aks // True Copy // P.A. To Judge