IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 31506 of 2008(A) -------------------------------------- PETITIONER(S): ---------------------- 1. N. SURESH, PULLUVETTAMPATHALIL HOUSE, VELLAVOOR.P.O, KANGAZHA, KANGAZHA. 2. P.H. ABDUL RAZAK, PULIVELIKUNNEL HOUSE, ERATH VADAKARA.P.O, MANIMALA, VELLAVOOR PANCHAYATH, VELLAVOOR. BY ADV. MR.BABU CHERUKARA MR.ANZAR BASHEER RESPONDENT(S): ------------------------- 1. THE SECRETARY, VELLAVOOR PANCHAYATH, MANIMALA, KOTTAYAM DISTRICT. 2. VELLAVOOR PANCHAYATH, MANIMALA, KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY. 3. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, KOTTAYAM-1. 4. DISTRICT MEDICAL OFFICER, KOTTAYAM 5. DY. CONTROLLER OF EXPLOSIVES, ERNAKULAM. 6. DISTRICT GEOLOGIST, KOTTAYAM, DISTRICT OFFICE, KOTTAYAM-686 001. 7. THE DISTRICT COLLECTOR, KOTTAYAM. 8. MR. THOMAS KANNAMTHANAM, KANNAMTHANAM HOUSE, MANIMALA. WP(C).No. 31506 of 2008(A) 9. MRS. THRESIAMMA THOMAS, KANNAMTHANAM HOUSE, MANIMALA, (CHAIRPERSON, GRAMASREE RURAL PROJECT CENTRE). R4, R6 & R7 BY GOVERNMENT PLEADER SMT.N. SUDHA DEVI R3 BY ADV. MR.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR R8 & R9 BY ADV. MR.K.GOPALAKRISHNA KURUP R1 & R2 BY ADV. MR.M.V.BOSE R5 BY ADV. MR.K.SANIL KUMAR, ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2009, ALONG WITH WPC NO. 33434 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31506 of 2008(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SURVEY SKETCH FOR THE PROPERTY LYING IN SY.NO.122/5 & 122/6 ISSUED UNDER R.I. ACT. EXT.P2: COPY OF THE REPRESENTATION FILED BY THE PETITIONERS AND OTHERS TO THE 1ST RESPONDENT DATED 10/12/2007. EXT.P3: COPY OF THE REPLY BY THE 1ST RESPONDENT DATED 10/01/2008. EXT.P4: COPY OF THE REPLY DATED 14/05/2008 BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXT.P5: COPY OF THE REPORT MADE BY THE TAHSILDAR CHANGANASSERRY TALUK TO THE DISTRICT COLLECTOR, KOTTAYAM DATED 03/11/2008. RESPONDENT'S EXHIBITS: EXT.R9(a): COPY OF THE COMPLAINT SUBMITTED BY THE 9TH RESPONDENT BEFORE THE SUPERINTENDENT OF POLICE, KOTTAYAM. EXT.R9(b): COPY OF THE CONSENT ISSUED BY THE 3RD RESPONDENT. EXT.R9(c): COPY OF THE REPORT OF THE 3RD RESPONDENT. EXT.R9(d): COPY OF THE CONSENT ISSUED BY THE 3RD RESPONDENT. EXT.R9(e): COPY OF THE PERMIT DATED 23/07/2008 ISSUED BY THE 4TH RESPONDENT. EXT.R9(f): COPY OF THE LETTER DATED 14/12/2007 ISSUED BY THE CHIEF CONTROLLER OF EXPLOSIVES. EXT.R9(g): COPY OF THE LETTER DATED 28/11/2007 ISSUED BY THE 5TH RESPONDENT. EXT.R9(h): COPY OF THE APPLICATION SUBMITTED BEFORE THE 5TH RESPONDENT. EXT.R9(i): COPY OF THE COVERING LETTER SUBMITTED ALONG WITH EXT.R9(h) DESCRIBING THE SUPPORTING DOCUMENTS. EXT.R9(j): COPY OF THE ORDER DATED 27/01/2009 IN I.A.NO.114/2009 IN O.S.NO.22/2009 OF THE MUNSIFF'S COURT, CHANGANCHERRY. EXT.R9(k): COPY OF THE REPORT OF THE TAHSILDAR DATED 15/02/2008. (P.T.O.) WP(C).No. 31506 of 2008(A) EXT.R9(l): COPY OF THE REPORT FILED BY THE ADVOCATE CFOMMISSIONER IN O.S. NO.22/2009 OF THE MUNSIFF'S COURT, CHANGANACHERRY. EXT.R9(m): COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 30/01/2009. EXT.R9(n): COPY OF THE LETTER DATED 05/02/2008 OF THE GEOLOGIST. EXT.R9(o): COPY OF THE APPLICATION DATED 10/02/2009. EXT.R9(p): COPY OF THE LETTER DATED 05/12/2008 BY THE RE-SURVEY SUPERINTENDENT, CHANGANACHERRY. //TRUE COPY// P.A. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C)s.31506/2008 & 33434/2007 -------------------- Dated this the 26th day of March, 2009 JUDGMENT District Superintended of Surveys and Land Records is directed to be impleaded as additional 10th respondent in W.P.(C).31506/2008 and additional 9th respondent in W.P.(C).33434/2007. 2. The issue arising for consideration in these two writ petitions are common and therefore, they have been heard together and are being disposed of by a common judgment. 3. I heard learned senior counsel, Mr.Achuthakurup and Mr.Babu Cherukara, for the petitioners, learned counsel for the licensee Mr.Gopalakrishna Kurup, learned counsel appearing for the Panchayat Mr.M.V.Bose, and learned Standing Counsel for the Pollution Control Board, Mr.Chandramohandas. I will refer to the facts in W.P.(C).31506/2008. W.P.(C).31506/08 & 33434/07 2 4. Petitioners who are the residents of Vellavoor Grama Panchayath are aggrieved by what they call as unauthorized conduct of granite quarry with a crusher unit by respondents 8 and 9 in the property in survey Nos.122/5 and 122/6 of Vellavoor village. It is contended that operation of the quarry causes pollution and considerable difficulties to the petitioners and other residents. The contention which was originally raised in W.P.(C).33434/2007 was that the quarry and the crusher unit were being run without any licence from the statutory authorities. Going by the counter affidavit filed by the licensee, to which reference has been made by Mr.Gopalakrishna kurup, running of the quarry and crusher unit is seen to be licensed by the Pollution Control Board, the Explosives Department and the Geologist under the Kerala Minor Mineral Concession Rules. It is then contended that the property wherein the quarrying is done lies adjacent to the Manimala river and Rule 29(1)(i) of the Kerala Minor Mineral Concession Rules, 1967, prescribes that no quarrying shall be carried on W.P.(C).31506/08 & 33434/07 3 within 50 metres of any water body. The said Rule reads as follows:- “The lessee shall not carry on, or allow to be carried on any mining operations at any point within a distance of 75 metres from any railway line, except under and in accordance with written permission of the railway administration or from any bridge on National Highway or 50 metres from any reservoir, tanks, canals, roads bridges, other public works, residential buildings the boundary walls of places of worship, burial grounds or burning ghats, except under and in accordance with the previous permission of the State Government or the competent authority. The railway administration or the State Government or the competent authority may in granting such permission impose such conditions as may be found necessary. Provided that except in cases of sand no mining operations shall be carried on within 50 metres of any river bank.” W.P.(C).31506/08 & 33434/07 4 5. It is contended that this stipulation has not been kept in mind while granting permission in favour of the licensee and therefore, there is violation of the said Rule in the conduct of the quarry and crusher unit. 6. The contention taken up in this regard is refuted by the licensee. Learned counsel for the petitioners makes reference to Ext.P5 which is a report forwarded by the Tahsildar, Changanacherry, to the District Collector wherein it is pointed out that the quarrying is being done within 50 metres from the Manimala river. It is pointed out by the learned counsel for the licensee that the plan which is appended to Ext.P5 was prepared for the purpose of application for demarcation of the boundary submitted by the licensee and therefore, it cannot be used for the purpose of finding out whether the quarrying is within the prescribed area in terms of Rule 29(1)(i) of the Rules. He refers to the measurement recently undertaken by the Advocate Commissioner in the Suit filed against the conduct of the quarry as O.S.No.22/09 before W.P.(C).31506/08 & 33434/07 5 the Changanassery Munsiff Court. It is further contended that the competent authority under the Surveys and Boundaries Act has not conducted a proper measurement. 7. After hearing counsel on both sides and having perused the materials on record, I am of the view that the question as to whether the quarrying site is located within prescribed distance from a water Body in terms of Rule 29(1)(i) of the Rules, and also whether the quarrying is done by respondents 8 and 9 in W.P.(C).31506/2008 (respondents 6, 7 and 8 in W.P.(C).33434/2007), only in the permitted area requires verification by the District Superintended of Surveys and Land Records and he shall measure the distance from the Manimala river to the actual quarrying site, with notice to the petitioners in both the cases as also the licensees and the concerned Panchayat. Such measurement shall be conducted within two months from the date of receipt of a copy of this judgment. If on measurement, it is found that the quarrying site is within the distance of 50 metres of Manimala river, W.P.(C).31506/08 & 33434/07 6 then, steps shall be taken by the Geologist to restrict the quarrying operations. It is made clear that it would be open to the licensees to point out any other quarrying site beyond the distance of 50 metres of Manimala river and to seek permission to conduct the quarry by way of an application which shall be considered afresh by the competent authority, in accordance with law. Licensee shall be permitted to go ahead with the conduct of the quarry, if the distance from the quarrying site to the Manimala river is found in excess of 50 metres, subject to the licensee obtaining and possessing licence and permission from all statutory authorities concerned. Writ petitions are disposed of as above. V.GIRI, Judge mrcs