IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 33289 of 2009(E) -------------------------- PETITIONER(S): --------------- LORANCE JOSEPH, NAMBUDAKATH HOUSE, MOONNILAVU P.O., KOTTAYAM DISTRICT. BY ADV. 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. AJITH GEORGE, PEMPILAKUNNEL HOUSE, KALATHUKADAVU P.O., KOTTAYAM DISTRICT. 4. ALICE MATHEW, PARACKAL HOUSE, KALAKETTY, PINNAKKANADU, KOTTAYAM DISTRICT. 5. JAMES JOSEPH, PARACKAL HOUSE, KALATHUKADAVU P.O., KOTTAYAM DISTRICT. ADV. SRI.TOM JOSE (PADINJAREKARA) FOR R3,4&5 GP K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2010, ALONG WITH WPC NO. 25437 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33289 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 17.3.06 EXT.P2- PROCEEDINGS OF THE ADM DATED 5.1.08 EXT.P3- TRUE COPY OF THE PROCEEDINGS OF THE ADM DATED 15.2.08 EXT.P4- TRUE COPY OF THE COMPLAINT DATED 1.3.08 EXT.P5- TRUE COPY OF THE REPORT OF THE RDO DATED 8.4.08 EXT.P6- TRUE COPY OF THE JUDGMENT IN WP(C).19459 OF 2009 DATED 31.7.09 EXT.P7- TRUE COPY OF THE PROCEEDOINGS DATED 20.10.09 OF THE 2ND RESPONDENT EXT.P8- TRUE COPY OF THE ORDER DATED 4.11.09 OF THE 2ND RESPONDENT EXT.P9- TRUE COPY OF THE ORDER DATED 12.11.2009 PASSED BY THE 1ST RESPONDENT DISTRICT COLLECTOR EXT.P10- TRUE COPY OF THE AUTHORISATION FROM DIRECTOR GENERAL OF MINES SAFETY DATED 3.12.09 EXT.R3(a)- TRUE COPY OF THE LOCATION SKETCH OF THE QUARRY EXT.R3(b)- TRUE COPY OF THE REPORT DATED 16.7.09 OF THE DY.COLLECTOR (LR) EXT.R3(c)- TRUE COPY OF THE PETITIONER'S SIGNED STATEMENT DATED 30.3.09 MADE BEFORE THE SUB INSPECTOR OF POLICE, ERATTUPETTA EXT.R3(d)- TRUE COPY OF THE ORDER DATED 14.8.09 ISSUED BY THE DISTRICT COLLECTOR TO THE PETITIONER EXT.R3(e)- TRUE COPY OF THE PROHIBOTORY ORDER DATED 3.3.08 ISSUED BY THE DIRECTOR OF MINES SAFETY, CHENNAI REGION, CHENNAI EXT.R3(f)- TRUE COPY OF THE APPLICATION FORM DATED 16.2.06 SUBMITTED BY THE PETITIONER SEEKING PERMISSION TO ESTABLISH EXPLOSIVES MAGAZINE IN SY.NO.130/3 EXT.R3(g)- TRUE COPY OF THE OBJECTION DATED 17.9.09 FILED BY R3 BEFORE R2 EXT.R3(h)- TRUE COPY OF THE OBJECTION DATED 17.9.09 FILED BY R4 BEFORE R2 EXT.R3(i)- TRUE COPY OF THE COMPLAINT FILED BY THE 5TH RESPONDENT BEFORE R2 ON 25.8.09 POINTING OUT THE DAMAGE CAUSED BY UNAUTHORISED QUARRYING CONDUCTED BY THE PETITIONER EXT.R3(j)- TRUE COPY OF THE DETAILED COMPLAINT DATED 26.9.09 SUBMITTED BY R5 BEFORE THE DISTRICT COLLECTOR REGARDING THE UNAUTHORSED QUARRYING AND THE INACTION OF THE 2ND RESPONDENT TO TAKE ANY ACTION WP(C).No. 33289 of 2009 -2- EXT.R3(k)- TRUE COPY OF THE COMPLAINT DATED 6.11.09 FILED BY R3 BEFORE THE DISTRICT COLLECTOR (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C)s.33289 & 25437/2009 -------------------- Dated this the 6th day of April, 2010 JUDGMENT Petitioner in these writ petitions is the owner of a quarry. 2. Insofar as W.P.(C).33289/2009 is concerned, Ext.P3(f) is an application made by the petitioner for obtaining an NOC under provisions of the Explosives Rules. Accordingly, Ext.P1 NOC was issued to him. Based on that NOC, he was issued a licence in Form-22 of the Explosives Rules. 3. It is stated that thereafter respondents 3 and 4 filed complaints against the issuance of NOC which led to Ext.P2 order withdrawing the NOC, till the magazine established by the petitioner for storing explosives is shifted by a distance of 15 metres from the boundary of the 4th respondent's property. According to the petitioner, magazine was shifted and on reporting the said fact, by Ext.P3 order, the NOC was restored to him. W.P.(C)s.33289 & 25437/09 2 4. Again, the 3rd respondent represented the matter to the District Collector with allegations against the Additional District Magistrate who issued the NOC, which led to an order passed by the District Collector for an enquiry by the RDO. Accordingly, enquiry was conducted by the RDO and Ext.P5 report was submitted to the effect that nothing irregular was found on the part of the ADM. At that stage respondents 3 and 4 filed a writ petition before this Court as W.P.(C).12693/2008 for the disposal of Ext.P4 complaint that was pending before the District Collector. That writ petition was disposed of directing that final order be passed on Ext.P4 within two months. 5. Apparently, pursuant to the aforesaid orders, the District Collector passed order dated 8.6.2009 prohibiting the quarrying on the strength of the NOC issued by the ADM. The petitioner challenged the said order by filing W.P.(C).19459/2009 which was disposed of by Ext.P6 judgment. Taking note of the fact that order dated 8.6.2009 was passed without hearing all the parties, this Court directed the District Collector to reconsider the matter and pass fresh orders with notice to all concerned. Accordingly the matter was taken up before the ADM for reconsideration and W.P.(C)s.33289 & 25437/09 3 notice was issued to the parties to appear before the ADM. Objections were filed and among other documents, Exts.R3(b) report submitted by the Deputy Collector (LR) and R3(d) order passed by the District Collector to restore the land in Survey No.130/7 were produced by the 3rd respondent before the ADM. 6. ADM finally passed Ext.P7 order dated 20.10.2009. By this order, the ADM reinstated the NOC and Ext.P8 is the consequential proceedings issued by the ADM. 7. Subsequently on 12.11.2009, the District Collector issued Ext.P9 order. In Ext.P9 it is stated that aggrieved by Ext.P8 order passed by the ADM, petitions were filed by respondents 3 to 5 requesting to stay the order of ADM and to stop functioning of the quarry as it will cause damage to their life and property. It is stated that in order to find out whether the contentions are genuine, necessary enquiry, hearing and site inspection are to be conducted and for this, sufficient time is required. On this basis, it was ordered that the petitioner shall not conduct quarrying operations on the basis of Ext.P8 order and he was directed to maintain status quo till the disposal of the matter. It is on W.P.(C)s.33289 & 25437/09 4 receipt of Ext.P9 order challenging the said order, this writ petition has been filed. 8. The contention raised by the learned counsel for the petitioner is that this Court having found in Ext.P6 judgment that the NOC has been issued under the Explosives Rules 1983, the District Collector has no power to issue an order in the nature of Ext.P9. It is also contended that even if it is assumed that the District Collector has the power to issue the order, that power has to be exercised in the manner as provided only in Rule 115 of the Explosives Rules, 2008 and that none of the grounds available in Rule 115 are not made out in Ext.P9. 9. On the other hand, learned Government Pleader and the learned counsel appearing for respondents 3 to 5 contradicted the submission made by the learned counsel for the petitioner. According to the learned counsel for the party respondents, pursuant to Ext.P6 judgment, when notice of hearing was issued, Exts.R3(g), (h) and (i) were filed by respondents 3 to 5. It is stated that they had also produced several documents including Exts.R3(b) and R3(d) and that ignoring all the materials W.P.(C)s.33289 & 25437/09 5 available, ADM passed Exts.P7 and P8. According to them, aggrieved by Exts.P7 and P8, they moved the District Collector and the District Collector, being satisfied of the genuineness of the complaint, interfered in the matter exercising the power under Rule 115 of the Explosives Rules, 2008. On this basis, learned Government Pleader and the learned counsel for the party respondents sought to sustain Ext.P9. 10. In this case, the only issue that arises for consideration is regarding the sustainability of Ext.P9, the order passed by the District Collector requiring the petitioner not to continue quarrying operations and to maintain status quo until the enquiry is completed. The first contention that the District Collector is incompetent to issue such an order, has been raised on the basis that Ext.P1 NOC was issued under the Explosives Rules, 1983 and that under 1983 Rules, no such power has been conferred on the District Collector. Learned counsel sought to rely on paragraph 11 of Ext.P6 judgment in support of his contention. However, as is evident from paragraph 11 of Ext.P6 judgment itself, this Court has held that Ext.P1 NOC issued to the petitioner was long prior to the introduction of W.P.(C)s.33289 & 25437/09 6 2008 Rules and that when NOC is restored, the same will be governed by the 1983 Rules also. By this, this Court did not intend or mean that irrespective of the fact that 2008 Rules had replaced 1983 Rules, parties will be governed by 1983 Rules for all time to come. Necessarily, once the NOC is restored and as 2008 Rules had come into force, future conduct of the licence will have to be governed by 2008 Rules. If that be so, Rule 115 of the Rules confers power on the authority who issued NOC, as also the District Magistrate or the State Government. Necessarily the contention raised by the learned counsel for the petitioner that the District Collector has no power to issue Ext.P9 is only to be rejected. 11. The second contention raised is that Ext.P9 does not disclose any of the grounds mentioned in Rule 115 of the 2008 Rules. Rule 115(1) provides the grounds on which an NOC may be cancelled by the authority issuing the same or any authority superior to such authority, Rule 115(1) reads as follows - Rule 115(1) - No objection certificate granted under rule 103, may be cancelled by the authority W.P.(C)s.33289 & 25437/09 7 issuing the same or authority superior to it, if such authority is satisfied, that - (a). the licensee has ceased to have any right for the lawful possession over the licensed premises; (b). the licensee is convicted and sentenced for any criminal offence or ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974), a bond for keeping peace for good behaviour; (c). the cancellation of no objection certificate is absolutely necessary for public peace and safety: 12. It is the settled position of law that an executive order issued by an authority has to survive a fail on the reasons stated in the said order and reasons to sustain an executive order cannot be supplied through affidavits. Applying the law thus laid down by the Apex Court in Mohinder Singh v. Chief Election Commr. (AIR 1978 SC 851), the question to be seen is whether any of the three grounds mentioned in Rule 115 is disclosed in Ext.P9. Ext.P9 to the extent relevant, reads as follows - W.P.(C)s.33289 & 25437/09 8 “Aggrieved by the order of Additional District Magistrate dated 4.11.2009 petitions were filed by Sri.Ajith George, Pempilakunnel, Kalathukkadavu, Smt Alice Mathew, Parackal, Pinnakkanadu, Kalaketty, Sri.James Joseph, Parackal Kalathukkadavu against this order, requesting to stay the order of the Additional District Magistrate and to stop the functioning of the quarry as it will causes damages to their life and property. In order to find out whether the contentions raised by the petitioners are genuine necessary enquiries, hearing and site inspection to be conducted and for this sufficient time is required. In this circumstances it is hereby ordered not to conduct the operation and activities on the basis of the disputed order No.H4 – 33698/09 dated 4.11.2009 and to maintain statusquo till the disposal of the matter by the District Collector. This order is to be implemented with immediate effect.” 13. A reading of the aforementioned portion of Ext.P9 shows that the District Collector has only stated that aggrieved by W.P.(C)s.33289 & 25437/09 9 Ext.P8 order of the ADM, petitions have been filed requesting to stay the order and to stop the functioning of the quarry as it will cause damage to the life and property of the complainants. This order does not disclose that the District Collector has applied his mind was even prima facie satisfied that any of the grounds in Rule 115 have been made out by the complainants. Although it is true that by Ext.P9, petitioner has been required only to maintain status quo till the disposal of the matter by the District Collector, power under Rule 115 can be invoked by the District Collector only when he is, at least, satisfied that the grounds available in the Rule have been made out by the complainants. On the other hand Ext.P9 has been issued in a mechanical manner without any application of mind. Therefore, within the limitations of Rule 115, Ext.P9 cannot be sustained. Ext.P9 has therefore, to be quashed and I do so. 14. However, it is made clear that this order will not stand in the way of the District Collector invoking his powers under Rule 115, if on the materials available, the District Collector is satisfied that the grounds specified in Rule 115 have been made out by the complainants. Therefore with that liberty, quashing W.P.(C)s.33289 & 25437/09 10 Ext.P9, W.P.(C). 33289/2009 is disposed of. 15. Insofar as W.P.(C).25437/2009 is concerned, the challenge in the writ petition is against Ext.P3. Ext.P3 is an order passed by the District Collector informing the petitioner that on inspection it was found that the petitioner has quarried in Survey No.130/7 of Moonnilavu Village and that the area unauthorisedly quarried by the petitioner should be restored. It is challenging this order the writ petition is filed. 16. Specific case of the petitioner is that this order was passed by the District Collector without issuing any notice to him. Nothing has been placed on record to disprove his contention. In view of this specific and uncontroverted complaint, I am satisfied that Ext.P3 has been issued in violation of principles of natural justice. 17. Therefore, this writ petition is disposed of directing that Ext.P3 will be treated as a notice and it will be open to the petitioner to file his objection to Ext.P3 before the District Collector within three weeks from today. It is directed that if the W.P.(C)s.33289 & 25437/09 11 petitioner files his reply to Ext.P3 within the aforesaid period, notice will be issued to him, he will be heard and fresh orders will be passed in the matter. In the meanwhile the interim order passed by this Court on 8.9.2009 and extended thereafter, will remain in force. ANTONY DOMINIC, Judge mrcs