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 11TH OCTOBER 2011 / 19TH ASWINA 1933 WP(C).No. 15533 of 2011(N) --------------------------------------- PETITIONER(S): ----------------------- P.P.ASHRAF, PALLIPARAMBIL HOUSE, PADAMUGHAL, KAKKANAD. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP RESPONDENT(S): --------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT IN THE DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM-682 030. 3. REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM DISTRICT-682 001. 4. TAHSILDAR, KANAYANOOR TALUK, ERNAKULAM-682 035. 5. GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI-30. 6. COMMISSIONER OF POLICE, KOCHI, ERNAKULAM DISTRICT-682 018. 7. THE SUB INSPECTOR OF POLICE, THRIKKAKKARA POLICE STATION, ERNAKULAM DISTRICT-682 028. tss W.P.(C) 15533/2011 8. THRIKKAKKARA MUNICIPALITY, THRIKKAKKARA, KAKKANAD P.O.-682 030, KOCHI REP. BY ITS SECRETARY. 9. YOUSUF, AKAMPURATHU, THENGODU P.O., KAKKANAD-682 021. 10. SAJU KIZHAKKEL, THENGODE P.O., KAKKANAD-682 021. 11. C.V.JOHNY, PARAKKANADACKAL, THENGODU P.O., KAKKANAD-682 021. 12. RAJU.M.N, MANCHERY HOUSE, THENGODU P.O., KAKKANAD-682 021. 13. GOPY, CHIRAKKAYATH, THENGODU P.O., KAKKANAD-682 021. *ADDL. R14 IMPLEADED. 14. ENVIRONMENTAL ENGINEER, POLLUTION CONTROL BOARD, DISTRICT OFFICE, ERNAKULAM. ADDL.R14 IS IMPLEADED AS PER ORDER DTD. 5.7.2011 IN 10682/11. R1 TO R7 BY GOVT. PLEADER SRI.T.K.VIPINDAS R9- 13 BY ADV. SRI.DEEPU THANKAN SRI.S.SHANAVAS KHAN R14 BY ADV.SRI. M. K. CHANDRAMOHANDAS SC PCB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss WP.(C) NO.15533/2011 APPENDIX PETITIONER'S EXHIBITS P1:_ COPY OF THE QUARRYING PERMIT NO.234/10-11/MM/GS/CRPS/DOE/192/E2/11 DTD. 17.1.2011 ISSUED BY THE 5TH RESPONDENT. P2:- COPY OF THE CONSENT PCB/DO2-EKM/ICO-QR-01/F/2011 DTD. 11.3.2011 ISSUED BY THE POLLUTION CONTROL BOARD. P3:- COPY OF THE LICENSE NO.E/SC/KL/22/1024 (E48804) DTD. 8.12.09 ISSUED BY THE JOINT CONTROLLER OF EXPLOSIVES. P4:- COPY OF THE LICENSE NO.EX/SP/1042 DTD. 25.9.06. P5:- COPY OF THE LICENSE ISSUED BY THE 8TH RESPONDENT FOR THE CONDUCT OF QUARRY. P6:- COPY OF THE PROHIBITORY ORDER NO.M-4061/10 DTD. 2.7.10. P7:- COPY OF THE NOTICE RECEIVED FROM SECRETARY, THRIKKAKKARA GRAMA PANCHAYAT. P8:- COPY OF THE REPORT SUBMTITED BY ASSISTANT ENGINEER, LSGD SECTION TO SECRETARY, THRIKKAKKARA GRAMA PANCHAYAT. P9:- COPY OF THE COMMUNICATION DTD. 22.9.2010 ISSIUED BY ASSISTANT ENGINEER, LSGD SECTION, THRIKKAKKARA. P10:- COPY OF THE COMMUNICATION NO.A2-14295/10 DTD. 23.9.2010. P11:- COPY OF THE ORDER NO.M.4061/10/K.DIS DTD. 11.1.2011 OF THE 4TH RESPONDENT. P12:- COPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICER, KAKKANAD, SHOWING THE LIE OF THE QUARRY AND THE DISTANCE TO THE NEAREST DWELLING HOUSES. P13:- COPY OF THE PETITION DTD. 21.4.2011 AND RECEIPT EVIDENCING ACKNOWLEDGEMENT OF THE SAME. P14:- COPY OF THE COMPLAINT DTD. 28.4.2011 SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT. P15:- COPY OF THE PHOTOGRAPH SHOWING THE PRESENT LIE OF THE PROPERTY. tss W.P.(C) NO.15533/2011 RESPONDENT'S EXHIBITS R11(a):- COPY OF THE PHOTOGRAPHS. R11(b):- COPY OF THE MASS PETITION SUBMITTED BEFORE THE 2ND RESPONDENT DTD 20.5.2011. R11(c):- COPY OF THE REPLY DTD. 30.5.2011. R14(a):- COPY OF THE CIRCULAR NO.PCB/TAC/WP/236/2006. R14(b):- COPY OF THE CIRCULAR NO.PCB/TAC/WP/236/2006 DTD. 10.6.08. R14(c):- COPY OF THE CONSENT TO OPERATE ISSUED ON 11.3.2011. TRUE COPY P.S. TO JUDGE tss PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------------------- W.P.(C).No.15533 of 2011 ------------------------------------------- Dated this the 11th day of October, 2011 J U D G M E N T ---------------------- Abdul Rehim, J. The petitioner is seeking direction for affording police protection to the lives of himself and his workers engaged in quarrying operations conducted in a property situated in Re- sy.No.150 of Block No.7 of Kakkanad village. Averments in the writ petition are to the effect that the petitioner was granted with Ext.P1 permit issued by the 5th respondent for quarrying granite stones from 0.1619 Hectares (40 cents) of land comprised in the above survey number. The Pollution Control Board had also issued consent for quarrying operations as per Ext.P2. The petitioner has got licence for possession of Explosives and for blasting operations in the quarry, as per Ext.P3 and P4. The 8th respondent Municipality had also issued licence for quarrying operations as per Ext.P5. 2. It is pointed out that, during July 2010, the 3rd respondent issued prohibitory order restraining the quarrying operations, as per Ext.P6, on the basis that a public road abutting the quarry was damaged. It is evident from Ext.P9 that the petitioner had constructed retaining wall and repaired W.P.(C).15533/11 -2- damaged portion of the road, and on that basis the Assistant Engineer had recommended for restoring vehicular traffic. The 8th respondent had issued Ext.P10 restoring traffic through the road in question on the basis of such report and the 3rd respondent had withdrawn the prohibition imposed against conduct of the quarry subject to the conditions imposed in Ext.P11. But it is revealed that the respondents 9 to 13 have caused obstructions to the petitioner and his workers from starting the quarrying operations. It is stated that eventhough the petitioner submitted Ext.P13 and P14 complaints about the illegal obstructions, no steps were taken for removing such obstructions and for affording police protection. Hence this writ petition is filed. 3. Respondents 9 to 13 resisted the writ petition through counter affidavit filed contending that the petitioner is conducting blasting operations in flagrant violation of the conditions stipulated in the Mining Permit as well as in the consent granted by the Pollution Control Board. It is pointed out that the petitioner had failed to demarcate boundaries by providing fencing around the quarry and to put sign boards. It is further pointed out that in violation of the condition to keep depth of the quarry not exceeding 6 Metres, the petitioner had quarried granite upto 100 Mtrs deep and depth of the existing W.P.(C).15533/11 -3- quarry is highly dangerous. In spite of the condition prohibiting blasting operations within a distance of 100 Mtrs from any residence and within a distance of 60 Mtrs from the nearby road, the existing quarry is having only 1 Mtr distance from the Millumpadi - Manjeeri Panchayat road and that there are more than 10 houses situated within the prohibited area. It is alleged that the public road had collapsed into the quarry due to indiscriminate quarrying and in spite of specific directions the petitioner has not constructed any retaining wall to the height of 4 Mtrs on the boundary of the road. Ext.R11(a) series photographs are produced in order to indicate that there is apprehended danger. According to the said respondents, mass petitions were submitted by the nearby residents to the District Collector, and through Ext.R11(c) the Collector had informed that the objectors can approach him, if the petitioner is resuming the quarrying operations. 4. The Environmental Engineer of the State Pollution Control Board, District Office, Ernakulam was impleaded as Additional Respondent No.14. The Additional Respondent had filed a report dt. 16.7.2011 in which it is mentioned that, the enquiry conducted on the basis of application submitted by the petitioner for granting consent, revealed that the distance from the blasting point to the nearest residence is more than 100 Mtrs W.P.(C).15533/11 -4- and the distance from the Panchayat Road is 60 Mtrs. Since it is an existing quarry under operation, consent can be granted under the norms. Hence Ext.R14(b) consent was granted. 5. On 29.7.2011 when the matter came up for consideration, this court directed the 14th respondent to conduct a local inspection on 3.8.2011 in the presence of both parties and to file a detailed report. It was specifically directed to verify and report whether any quarrying is possible in strict compliance with the conditions incorporated in Ext.P2. A detailed report dt. 5.8.2011 was filed by the Additional 14th respondent, after conducting inspection. It is reported that the proposed area for quarrying is part of an existing quarry which is extended over 1 Acre of land and which has already been subjected to extensive quarrying, upto a depth of more than 50 Mtrs. It is further reported that no sign board as stipulated in Ext.P2 is displayed and further quarrying operation is not possible adhering to depth not exceeding 6 Mtrs, since the strata is having a depth of more than 50 Mtrs. it is also pointed out that the condition for putting up barrier of 3 Mtrs height with Tin Sheet at the periphery of the quarry adjoining to residential area has not been done. The tarring of the road, which is insisted upon, was also not complied with. It is also mentioned that the nearest residence is situated only at 60Mtrs. In the report it is W.P.(C).15533/11 -5- specifically pointed out that the quarrying operation is not possible in strict compliance with the consent issued to the petitioner. Hence it is stated that the Pollution Control Board is initiating steps to revoke Ext.P2 consent. 6. Petitioner filed objections to the above said report. On 24.8.2011 when the matter came up for consideration, standing counsel appearing for the Additional 14th respondent submitted that, certain mistakes have been crept in in the report already filed on 5.8.2011, and he sought permission for filing a further statement clarifying those mistakes. This court permitted the 14th respondent to file affidavit clarifying the mistakes. It was directed that the affidavit should disclose Door number of the nearest house and the name and address of the occupant. Eventhough the direction was to file an affidavit, only an additional report was filed by the senior Environmental Engineer. In the said report dt. 29.8.2011, it is mentioned that a further inspection was conducted at the premises on 27.8.2011. The name and address of the person who is residing at a distance of approximately 97 Mtrs is furnished. It is further stated that the public road is situated at a distance of approximately 60 Mtrs from the proposed quarry. It is clarified that the area to which sanction is given for quarrying, is the property lying adjacent to the existing quarry, situated in the very same survey number. W.P.(C).15533/11 -6- But it is further stated that the sign board showing the name and details is yet to be displayed and the preventive measure of providing barrier of 3 Mtrs height has not been provided on the periphery of the quarry. However, it is clarified that considering the fact that the quarry is an existing one, the distance limit from the nearby residence can be restricted to 50 Mtrs and that the quarrying operations can be permitted within the said distance. 7. During final hearing of the matter, we heard Sri. George Varghese Perumpallikuttiyil, learned counsel for the petitioner and Sri. Deepu Thankan, learned counsel for the party respondents 9 to 13. We also heard submissions of Sri. M.K. Chandramohandas, standing counsel appearing for the State Pollution Control Board. 8. Sum and substance of the contentions raised by learned counsel for petitioner is that, on a comparison of all the 3 reports submitted by the Pollution Control Board it is evident that there is no prohibition in conducting the quarrying operations, if there is no residence situated within a distance of 50 Mtrs. He points out that as per the latest report, the nearby residence is situated only at a distance of 97 Mtrs. Since it is specifically reported that the quarrying is proposed at an area beyond the existing quarry, there is no violation of stipulations with respect to depth. It is also pointed out that considering the W.P.(C).15533/11 -7- site of the proposed quarrying, there is sufficient distance from the public road and hence there is no violation of conditions stipulated. He assured before this court that the petitioner will strictly abide by all the conditions stipulated regarding putting up a sign board, tarring of approach road, providing of preventive measures on the periphery, etc. Limited relief sought for is to permit the petitioner to comply with those conditions in order to satisfy the Additional 14th respondent about the measures taken, before starting actual quarrying operations at the site. He seeks direction for affording protection for doing the needful to comply with the above said conditions. 9. Sri. Deepu Thankan, per contra, contended that the 2nd and 3rd reports filed by the 14th respondent are highly contradictory. It is pointed out that in spite of specific directions the 14th respondent was reluctant to file an affidavit swearing to the facts prevailing. The apprehended danger is explained in an apparently appealing manner for our consideration. Sri. Chandramohandas explained the circumstances under which the deviations occurred in the 3rd report submitted by the 14th respondent. 10. Considering the rival contentions we are of the opinion that the petitioner can be permitted to conduct quarrying operations only if he satisfies all the stipulations W.P.(C).15533/11 -8- contained in the consent granted by the State Pollution Control Board, and also those conditions contained in the Explosive licence and Mining Permit. But we do not find any reasons to prohibit the petitioner from taking any steps for providing adequate precautionary measures as suggested by the authorities. We notice in the 3rd report of the Additional 14th respondent about specific instances of non-compliance of the conditions stipulated. However, there is no justification in restraining the petitioner from complying with those conditions incorporated in Ext.P1 and P2. In our opinion, the respondents 9 to 13 have no manner of right to obstruct works if any undertaken by the petitioner for providing the protective measures as stipulated in Ext.P1 and P2, without starting the actual quarrying operations. But in view of the reports submitted, we are convinced that the quarrying operations can be permitted only after the concerned authorities becoming fully satisfied that there is proper and strict compliance of the conditions and that no danger or health hazard is caused to the neighbouring residents or the public at large. Therefore we propose to dispose of the writ petition on the following terms. 11. The respondents 6 and 7 are directed to ensure that the petitioner or workers engaged by him are not prevented in any manner from completing the works necessary for compliance W.P.(C).15533/11 -9- of the conditions stipulated in Ext.P1 and P2 permit and consent. On completion of such works the petitioner will be at liberty to make requests to respondents 5 and 14 to conduct further inspections and to issue proceedings in writing endorsing satisfaction of the precautionary measures taken and compliance of the conditions stipulated. If any such request is received by respondents 5 and 14, they shall conduct inspection with notice to the petitioner as well as to any one among respondents 9 to 13, and on the basis of such inspection a decision has to be taken and intimated to the petitioner. 12. It is made clear that the petitioner will be entitled to start quarrying operations only on getting such permissions as stated above. We further make it clear that we have not expressed any opinion regarding suitability of the site for conducting quarrying operations or regarding merits of the allegations of danger or nuisance apprehended by respondents 9 to 13 or anybody else. The above direction is issued only on the premise that the petitioner could not be prevented from carrying out the quarrying operations if all statutory authorities concerned have permitted such operations. We also leave open all the remedies available to the party respondents or any other persons having any grievance against such statutory permissions to take appropriate steps to challenge those permissions, and W.P.(C).15533/11 -10- further leave open remedies under common law if any available to the parties to restrain the quarrying operations on the basis of any danger or nuisance. 13. Needless to say that if the petitioner get all the clearances as directed above, the respondents 6 and 7 shall afford adequate protection for the quarrying operations from not being obstructed by respondents 9 to 13 or anybody claiming under them, as long as the petitioner holds all the requisite permissions, consents and licences in currency. PIUS C. KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb