Kerala High Court
Kerala Panchayat Raj Act vs State Of Kerala
Author: Antony Dominic
Bench: Antony Dominic
Kerala Panchayat Raj Act, 1994 or not?.
2. The case putforth by the petitioners in W.P.(C)
No.24203 of 2008 and W.P.(C) No.25602 of 2008 is more or
less similar. The former one is filed by the Manager of the
School; whereas the latter has been filed by the Parent-
Teachers Association and two others. The learned counsel
for the petitioner School submitted that the reliefs prayed
for in the earlier O.P. are only confined to the challenge
raised against Exhibit P9 'consent to operate' given by the
Pollution Control Board.
3. With regard to the sequence of events, it is seen
that the fourth respondent in W.P.(C) No.24203 of 2008 and
W.P.(C) No.25602 of 2008 (hereinafter referred to as
"applicant" for the convenience of reference in all the three
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:3:-
cases) who is stated as the owner of the property in
Sy.No.1982 of Vellikulangara Village in Mukundapuram
Taluk, with intend to start a 'Crusher Unit' and a 'Quarry',
approached the statutory authorities for obtaining the
requisite NOC/Licence, reportedly after availing/arranging
necessary funds from different sources including Public
Sector Banks by way of loans and submitted an application
before the Pollution Control Board for 'consent to
establish' the Unit.
4. It is relevant to note at this juncture, that "three
level monitoring system" is contemplated under the
relevant provisions of the Environment (Protection) Act,
1986. Firstly, the concerned party will have to satisfy the
authority as to the "infrastructure" before getting the
"consent to establish" the Unit. After obtaining such
'consent to establish', the applicant has to comply with
the various conditions/requirements as stipulated by the
Pollution Control Board, after which alone will they be
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:4:-
issued the "consent to operate" the Unit. Even after
obtaining the "consent to operate" and on getting the
requisite sanction from the concerned Local authority, the
party has necessarily to satisfy the Pollution Control Board
that their activities are strictly in conformity with the norms
prescribed by the Pollution Control Board, failing which it is
for the Pollution Control Board, invoking such powers as
specified under statute, to bring them to the proper track
and on failure, it is very much open to cancel or revoke the
Licence already granted.
5. In the instant case, the applicant, on satisfying
the requisite elements, was given the 'consent to
establish' the Unit as borne by Exhibit R4(b) dated 16-11-
2006 issued by the Pollution Control Board. Subsequently,
taking note of the relevant facts and circumstances, the
Panchayath passed a resolution to give 'consent to
establish' the Unit as evident from Exhibit R4(c). When the
applicant was proceeding with further steps to establish the
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:5:-
Unit on the basis of Exhibits R4(b) and R4(c), the Pollution
Control Board intercepted the activities on the basis of
some complaints stated as obtained from different corners
including the petitioner's School and issued Exhibit R4(f)
proceedings dated 4-4-2007 directing to stop all the
construction activities with immediate effect.
6. While so, the applicant was granted the necessary
Licence by the authorities under the Explosive Rules, 1983
for possessing and using the explosives in connection with
the operation of the Quarry, as borne by Exhibit R4(d)
dated 16.4.2007. Various discussions, meetings and
negotiations followed and upon satisfying the Pollution
Control Board as to the true state of affairs, they withdrew
Exhibit R4(f) 'stop-memo' and vide Exhibit R4(g)
proceedings dated 16-5-2007 permitted the applicant to
proceed with the activities to 'establish the Unit' based on
Exhibit R4(b) consent, subject to some additional conditions
incorporated therein.
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:6:-
7. In the meanwhile, the Panchayath, taking note of
Exhibit R4(f) dated 4-4-2007 had issued a 'stop memo'
asking the applicant to keep all the construction activities in
abeyance vide Exhibit R4(h) proceedings dated 18-5-2007
based on the resolution taken in this regard on 15-5-2007.
But since Exhibit R4(f) 'stop-memo' issued by the Pollution
Control Board was already withdrawn vide Exhibit R4(g)
dated 16-5-2007, the applicant approached this Court by
filing W.P.(C) No.20026 of 2007 praying for a direction to
be issued to the Panchayath to act upon Exhibit R4(g) and
to permit them to complete the work. It was also pointed
out before this Court that, according to the applicant, they
had obtained all the requisite certificates such as NOC from
the Pollution Control Board, Additional District Magistrate,
Explosives Department, Geology Department etc. The
petitioner school also got impleaded in the above writ
petition as additional fifth respondent. After hearing all the
parties, this Court vide Exhibit R4(i) Judgment directed the
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:7:-
Panchayath to consider the matter and finalise the
proceedings as specified.
8. Pursuant to the above verdict, in spite of the
withdrawal of the stop-memo issued by the Pollution
Control Board, the Panchayath declined the request of the
applicant as per Exhibit R4(j) dated 6-10-2007. But later,
the Panchayath convened a meeting of the applicant and
people of the locality and as suggested by the Panchayath,
steps were taken to assess the damage caused, if any, to the
buildings in the locality; for which two separate Engineers
were deputed, one at the instance of the Panchayath and
other at the instance of the applicant, who submitted their
reports as Exhibit R4(k) and R4(l) respectively. It is the
stand of the applicant that, even though the damage was
not caused because of their activities, particularly when the
Units were yet to be operated, they decided to 'purchase
peace' and accordingly, the amounts shown as payable by
the Engineer/Loss assessor engaged at the instance of the
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:8:-
Panchayath were disbursed to the parties concerned,
against proper receipts like Exhibit R4(m). However, it is
pointed out by the learned counsel for the petitioner that
the petitioner school was never amenable to such course,
particularly since their grievance was against
establishment of the Crusher Unit/Quarry in the concerned
property, which otherwise was to affect the lives of the
Teachers, Staff and Students of the School; besides causing
further damage to the buildings.
9. After completing the works in setting up the Unit,
the applicant approached the Pollution Control Board for
"consent to operate" the Unit. Since the matter was being
delayed, the applicant approached this Court by filing W.P.
(C) No.10932 of 2008 for appropriate reliefs. After hearing
both the sides (including the Pollution Control Board and
the Panchayath), this Court disposed of the writ petition
vide Exhibit R4(n) Judgment dated 10-4-2008 directing the
Pollution Control Board to inspect the premises and on
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:9:-
satisfaction as to compliance with the conditions imposed,
and if there was no impediment for issuing the 'consent to
establish' (presumably a mistake as "consent to operate"
was the issue involved) to grant the 'consent to operate'
and directed the Panchayath to consider the application for
the requisite licence to be given by the Panchayath on the
basis of the above proceedings.
10. While so, the Additional District Magistrate
(A.D.M.), Thrissur issued a notice to the applicant asking to
show cause, why the NOC forwarded to the Controller of
Explosives shall not be withdrawn, instructing the applicant
to attend a meeting scheduled in this regard. The meeting
convened by the A.D.M. appears to be on the basis of a
complaint preferred by the petitioner. After hearing, the
A.D.M. passed Exhibit R4(o) dated 23-5-2008 wherein it was
observed that the request of the petitioners was to avoid
electric detonators and to reduce the capacity of the
Crusher to 500 tonnes. Taking note of the fact that the
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:10:-
Quarry was yet to be started, the parties were directed to
approach the Panchayath for further steps in this regard,
particularly in view of the proposed constitution of a
Monitoring Committee. However, the applicant chose to
challenge the said proceedings in W.P.(C) No.17782 of
2008. It is seen that the petitioner herein, though was not
originally impleaded as a respondent to the above
proceedings, later got impleaded as the additional third
respondent. During the course of hearing W.P.(C) No.17782
of 2008, it was brought to the notice of this Court that the
Pollution Control Board, after filing the writ petition, had
issued the necessary 'Consent to Operate' the Unit and
that the Panchayath was to finalise the matter, as already
directed by Exhibit R4(n). Accordingly, the said writ petition
was disposed of vide Exhibit R4(p) Judgment, directing the
Panchayath to consider the application preferred by the
applicant and to pass final orders thereon with notice to the
additional third respondent (petitioner herein) and others
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:11:-
within the time limit of four months as specified therein.
11. After the disposal of W.P.(C) No.17782 of 2008,
the petitioner approached this Court, by filing a review
petition in W.P.(C) No.10932 of 2008 stating that much
prejudice was caused to the petitioner for having passed the
said verdict without impleading her in the party array. After
hearing, this Court as per order dated 22-10-2008 observed
that the direction was only to consider the matter by the
Panchayath and further that the grievance as to the loss of
opportunity of hearing stood substantially redressed in view
of the Judgment dated 24-7-2008 in W.P.(C) No.17782 of
2008, whereby the Panchayath was directed to finalise the
proceedings only after hearing the petitioner as well.
Thereafter, the petitioner approached this Court by filing
W.P.(C) No.24203 of 2008 challenging the validity of Exhibit
P9 'Consent to Operate' the Unit issued by the Pollution
Control Board and obtained an interim order of stay,
pursuant to which the proceedings directed to be finalised
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:12:-
by the Panchayath are stated as kept in abeyance.
12. With regard to the challenge against Exhibit P9,
the main grievance of the petitioner is that her School is
situated very close to the applicant's Unit and that
operation of the Unit will cause much adverse consequences
by way of damage to the building and also in terms of
pollution, making the life of the teachers, students and local
public miserable. The petitioner also submits that the Unit
of the applicant is situated with much proximity to the
Forest area and that the sanction to operate the Unit will
definitely spoil the 'flora and fauna', adversely affecting the
wild life; particularly the forest being a 'Conservation
Reserve Tiger Forest'. The learned counsel for the
petitioner points out that the operation of the Unit will lead
to scarcity of drinking water in the locality and further that
it will be against the terms of the National Minor Mineral
Policy 1993; thus affecting the public at large as well.
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:13:-
13. With regard to the magnitude of challenge the
subject matter in the present writ petitions is rather to be
confined to the relative rights and liabilities between the
petitioner and that of the applicant. In other words, the
larger questions involving public interest are not supposed
to be dealt with by this Court, not being a "Public Interest
Litigation". Whether the applicant is entitled to obtain
Exhibit P9 'consent to operate' issued by the Pollution
Control Board; whether infringement of any statutory
prescription is brought to light or whether the conditions
prescribed by the statutory authorities are simply thrown to
wind by the applicant/beneficiary etc. are the questions to
be considered while examining the scope of Exhibit P9. But
then, there is an effective alternative remedy for the
petitioner to have it challenged by way of Appeal as
provided under the Statute - as pointed out by the Pollution
Control Board in their counter affidavit. Such 'fact
adjudication' can only be on the basis of the evidence to be
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:14:-
adduced; which is not possible in a writ petition filed before
this Court invoking the discretionary jurisdiction under
Article 226 of the Constitution of India.
14. Another reason for declining interference in W.P.
(C) No.24203 of 2008 and W.P.(C) No.32992 of 2008 is that
the prohibited distance is only 50 to 100 metres (as the case
may be) as discernible from Exhibits R3(a) and R3(b)
Circulars issued by the Pollution Control Board. It is stated
that Exhibit R3(c) is the Report submitted by the Chief
Environmental Engineer, where the distance between the
petitioner's school and the Unit is shown as 629 metres. It
has been stated by the Chief Environmental Engineer in
Exhibit R3(c) that, it cannot be said that damages have
occurred to the building of the petitioner's school because
of the operation of the Unit of the applicant, in view of the
distance noted above; simultaneously adding that, for the
very same reason, no damage could be caused to the
"Kozhimuttapara" as alleged by the petitioner. The
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:15:-
petitioner has not chosen to challenge Exhibits R3(a) and
(b) Circulars issued by the Pollution Control Board or the
observations made by the Chief Environmental Engineer as
reported in Exhibit R3(c).
15. Yet another aspect pointed out by the senior
counsel for the applicant is that, according to the applicant,
W.P.(C) No.24203 of 2008 can only be regarded as "suit in
disguise" for damages, in so far as the actual intent and
desire of the petitioner would be explicitly clear from
paragraph 4 of the reply affidavit dated 13-9-2008 filed by
the petitioner and also from prayer 'g' of the amended writ
petition, which are extracted below for convenience of
reference:-
Paragraph 4:- If so, fourth respondent can't start
operation of even the Crusher before an approved
authority finds out the actual damage incurred to
petitioner due to fourth respondent, and till fourth
respondent pays it to petitioner".
"g. To prohibit 4th respondent from operating their
quarry/crusher till an expert authority appointed by
Government decides the loss suffered by petitioner due to
the blasting done by 4th respondent and till that amount is
paid by the 4th respondent."
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:16:-
As submitted by the applicant, since the
operation/production is yet to be started, for want of
necessary licence to be issued by the Panchayat, the
apprehension of the petitioner as to the damage likely to be
caused, if permission to operate is given is rather pre-
mature; which is more so when the petitioner is very much
entitled to pursue the remedy before the statutory
authorities, if any violation of the prescribed conditions,
norms, orders or circulars is noticed. On such an event, it is
for the petitioner to substantiate the damage as well, if any
caused because of the activities conducted by the applicant
and as to the extent of damages payable by pursing
appropriate remedies before the appropriate Forum/Civil
Court.
16. With regard to the challenge raised in W.P.(C)
No.32992 of 2008 against Ext.P9 Quarry licence given to
the applicant by the authority under the Explosives Act and
Rules, the petitioner has raised serious attack for non-
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:17:-
compliance of the relevant rules including Rule 156(4). The
main contention of the petitioner is that the licence was
sought for and proceedings were pursued in respect of a
different property (having Sy.No.'1892') whereas the No
Objection Certificate issued by the Additional District
Magistrate and Ext.P9 licence issued by the statutory
authority were in respect of the property comprised in
Sy.No.'1982'. The learned counsel for the petitioner submits
that the application submitted by the applicant in Form 5,
the subsequent proceedings in Form 17/Form 18, the site
plan and paper publication of the notice contemplated
under Rule 156 (4) etc. are pertaining to the property
comprised in Sy.No.1892 and not with regard to the
property in Sy.No.1982 - as shown in Ext.P9 licence. The
learned counsel submits that since the application, site plan
and other relevant proceedings are defective, there is no
valid application; no valid site plan and hence, there cannot
be any valid licence as well.
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:18:-
17. As against the contentions raised by the
petitioner, it is submitted by the applicant (6th respondent in
W.P.(C) No.32992 of 2008) that the case put forth by the
petitioner, trying to capitalize the mistake in Survey
Number, does not hold any water at all. So also is the
position with regard to the wild allegations of malpractices
in the office of the departmental authorities and as to the
collusion with the applicant in this regard. With regard to
the notice in respect of the Survey Number as 1892 and
subsequently in giving NOC leading to Ext.P9 licence
showing the actual Sy.No. as 1982, learned Senior Counsel
appearing for the applicant submits that there was no
dispute with the identity of the property concerned till filing
of the present Writ Petition; that absolutely no prejudice
has been caused to the petitioner in this regard; that the
allegations and apprehension as to the damage caused or
likely to be caused on operating the Unit of the applicant
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:19:-
are thoroughly wrong and misconceived; that the petitioner
had in fact participated in the meeting convened by the
Additional District Magistrate, as evident from Ext.R4(j)
(Ext.R4(o) in W.P.(C) No. 24203 of 2008) and above all that
Ext.P9 licence having been granted only in respect of a
'small quantity' of 75 Kgs of explosives, compliance with
Rule 157 alone is sufficient, since Rule 156 is not at all
attracted.
3
18. Referring to Exts.P18(a) and (b) proceedings (the
request and application in Form No.5 submitted by the
applicant) wherein the survey number has been wrongly
shown as '1892' it is pointed by the learned counsel for the
petitioner that the wrong citation of the survey number has
got serious impact with regard to the notice contemplated
under Rule 156(4) and as to the rights of the interested
parties to prefer objections. Since the proceedings were
finalised by the Addl. District Magistrate leading to
issuance of the No Objection Certificate without giving
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:20:-
proper notice (as the paper publication did not advert to the
correct survey number as '1982' but for wrongly describing
the survey number as 1892), the petitioner contends that all
consequential proceedings including Ext.P9 licence granted
by the licensing authority are liable to be set aside.
19. The description of the property mentioning it as
under Survey No.'1892' and the scope of notice as
contemplated under Rule 156 (4) have to be considered in a
wider perspective. The first question to be considered is
whether the mistake in the survey number will make the
notice issued under Rule 156(4) null and void. Secondly,
whether the said mistake in the survey number as contained
in the notice published has adversely affected the rights and
interests of the petitioner and thirdly, whether the licensing
authority, before granting Ext.P9 licence, had clear idea as
to the scope and ambit of the licence which was about to be
issued pursuant to the application and NOC forwarded to
him along with the relevant records.
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:21:-
20. If Rule 157 is to be applied, which deals with the
procedure to be followed for grant of Form 22 licence to
possess "small quantity" of explosives for "own use", the
procedure is entirely different and the various stipulations
or pre-conditions imposed under Rule 156 are given a go-
bye, by virtue of the 'non-obstante clause' contained in the
said rule. For the purpose of convenience of reference,
both the above rules are extracted below:-
Rule 156(4):
"Upon receipt of the said application the district
authority shall forthwith cause notice to be
published of such application and of the time and
place at which he will be prepared to hear it, and
calling upon any person objecting to the
establishment of the factory or magazine or store
house on the proposed site to give notice of such
objection to him and to the applicant of not less
than seven clear days before the day fixed for
hearing the application together with his name,
address and calling and a short statement of the
grounds of his objections. The day of hearing the
application shall be a day following as soon as
practicable, after the expiration of the period of
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:22:-
one month referred to in sub-rule((6)."
Rule 157:-
"Procedure to be followed for grant of a
licence in Form 22 to possess small quantity
of explosives for own use.- Notwithstanding
anything contained in sub-rule(3) to (7) of Rule
156, where the licensing authority is the Chief
Controller or a Controller and where the quantity
of explosives proposed to be possessed for own use
under a licence in Form 22 does not exceed 100
Kgs., the applicant may apply to the district
authority together with an application in Form 5,
statement in Form 17 and the necessary plans for
the grant of a certificate to the effect that there is
no objection to the applicant receiving a licence for
the site proposed and the district authority shall, if
he sees no objection after conducting enquiries as
required under these rules, grant, such certificate
to the applicant who may forward it to the licensing
authority together with his application."
21. Rule 157 can be applied only if the quantity of
explosives proposed to be possessed for own use does not
exceed 100 Kgs. In the instance case, Ext.P18 (a) and (b)
applications show the details of explosives as given under:
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:23:-
1. Gelatin 100 Kgs.
2. E. Detonator 10,000 Nos.
3. O. Detonator 10,000 Nos.
4. Safety Fuse 2,000 Mtrs.
5. Anfo 500 Kg.
If all the above materials are liable to be treated as
explosives, it would take the proceedings outside the
purview of Rule 157. The contention of the applicant (as
supported by the statutory/departmental authorities) is that
the licence having been issued only for a much lesser
quantity, bringing it within the purview of Rule 157, the
mistake in survey number and the defect in the publication
of notice are not of much significance. The learned Senior
Counsel for the applicant also points out that the provision
only says that the total quantity of explosives shall not be in
excess of 100 Kgs and that detonators are not explosives in
view of the definition of the term 'detonator' given under
Rule 2(7) of the Rules.
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:24:-
22. Rule 2(7) of the Rules defines the term 'detonator'
as follows:
Rule 2(7):-
"detonator" means a small tube of aluminium or copper
or other materials approved by the Chief Controller -
(a) one end of which is closed and the other-
(i) left open for the insertion of safety fuse for
the purpose of initiating explosion within
the tube; or
(ii) fitted with wires or other device for that
purpose and sealed;
(b) which is loaded with a charge of initiating
explosives, the charge being so designed as to
produce an explosion that would communicate to
other tube similarly constructed and charged;"
It is true that the term 'explosive' is not defined in the
Rules. Going by the definition of the term 'detonator', it is
difficult to ascertain whether it is an explosive or not.
Referring to the purport intent and usage of detonator, the
learned Senior counsel for the applicant submits that, it will
become an explosive, only when it is 'loaded'. This court
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:25:-
finds it difficult to agree with the said proposition since the
term 'explosive' has been clearly defined under section 4(d)
of the Act, which includes 'detonator' (without any
distinction whether loaded or otherwise.) Section 4(d) of the
Act is extracted below:
"Section 4(d): "Explosive" means gunpowder,
nitroglycerine, nitroglycol, gun-cotton, di-nitro-
toluene, tri-nitro-toluene, picric acid, di-nitro-
phenol, tri-nitro-resorcinol (styphnic acid), cyclo-
trimethylene-tri-nitramine, penta-erythritol-
tetranitrate, tetryl, nitro-guanidine, lead azide, lead
styphynate, fulminate of mercury or any other
metal, diazo-di-nitrophenol, coloured fires or any
other substance whether a single chemical
compound or a mixture of substances, whether
solid or liquid or gaseous used or manufactured
with a view to produce a practical effect by
explosion or pyrotechnic effect; and includes fog
signals, fireworks, fuses, rockets, percussion-caps,
detonators, cartridges, ammunition of all
descriptions and every adaptation or preparation of
an explosive as defined in this clause;"
23. While considering the applicability of the
mandatory requirements under Rule 156(4) and as to the
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:26:-
legally reckonable infringement of the vested rights or
interests of the parties, it is very much necessary to look
into the contents of Ext. P9 licence as well. Undisputedly,
the licence granted is only for a total extent of 75 Kgs of
explosives. The material shown as 'Anfo' (500 Kgs.) in
Ext.P18(a) and (b) applications has been left out by the
licensing authority. So also, the two different types of
'detonators' (10000 Nos. each) as claimed in the
applications has been considered together and only a total
number of 10,000/- 'detonators' has been licenced to be
stored/possessed; granting permission to have 2000 mtrs of
'Safety fuse'. That apart, the 2nd and 3rd respondents who
are the concerned authorities under the Act and Rules have
also filed a counter affidavit before this Court, stating in
paragraph Nos. 3 and 4 that the licence granted to the
applicant is only in respect of 75 Kgs. of 'high explosives
and accessories' which will not come within the purview of
the Rule 156 of the Rules and that compliance with Rule
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:27:-
157 alone is enough. From the above, it is clear that the
concerned authorities had taken a conscious decision while
granting the licence and that the same was not granted just
on the basis of the entries as given in the
application/recommendation/NOC. This court does not find
any reason to doubt the intellectual expertise of the
competent authorities in this regard, merely for the
mistake in the survey number pointed out by the petitioner.
24. With regard to the alleged rights of the petitioner
and other interested parties as to the loss of opportunity for
hearing in view of the mistake in the survey Number, the
crucial question to be considered is whether any prejudice
has been caused to them in this regard. As pointed out by
the learned senior counsel for the applicant, the identity of
the property was never in dispute. It is not a case where
the proceedings were finalised behind the back of
everybody; on the other hand, the 'consent to establish'
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:28:-
the Unit was granted by the Pollution Control Board way
back in 2006. Subsequently, at the instance of the
petitioner, the Pollution Control Board had given a 'stop-
memo' directing to stop all construction works, followed by
a similar 'stop memo' issued by the Panchayath. Thereafter,
the Pollution Control Board, as per the proceedings dated
16.05.2007 had withdrawn the stop memo, permitting the
applicant to effect the construction, finally leading to the
'Consent to Operate', as borne by Ext.P9 licence in W.P.
(C) No.24203 of 2008. Various complaints, inspections,
reports etc., were subjected to analysis before the different
authorities at different points of time in respect of the
establishment and operation of the Quarry and Crusher
Unit in the particular property of the applicant situated in
Sy.No.1982 of Vellikulangara village of Mukundapuram
Taluk, though it was wrongly mentioned as 1892
somewhere. That apart, pursuant to the complaint filed by
the petitioner herself before the Addl. District Magistrate,
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:29:-
the NOC given by the said authority earlier was sought to
be re-considered and accordingly, a notice was issued to the
applicant (which was the subject matter of challenge in
W.P.(C) 17782 OF 2008). The outcome of the said meeting
is evident from Ext. R4(j) in W.P.(C)32992 of 2008 (Ext.R4
(o) in W.P.(C) 24203 of 2008). It is revealed from the said
proceedings that the petitioner had also participated in the
above meeting with regard to the issuance of NOC for
obtaining the explosives licence under the Act/Rules. The
submission of the petitioner before the Addl. District
Magistrate on the date of hearing scheduled on
21.05.2008, was more confined to avoid electric detonators
and to reduce the capacity of the Crusher to 500 tonnes.
The petitioner having admittedly participated in the above
proceedings pertaining to issuance of NOC, is not justified
to take a 'u-turn' and say that the mistake in the survey
number (as given in the paper publication) has resulted in
loss of opportunity for hearing and in raising proper
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:30:-
objections before the concerned authorities.
25. Learned counsel for the petitioner, referring to
Ext.P41 counter affidavit filed by the Addl. District
Magistrate in W.P.(C) No. 17782 of 2008, submits that the
very same authority who had issued the NOC for securing
the Explosive licence by the applicant had conceded before
this Court that the NOC required to be cancelled in view of
the complaints received from different corners. The
circumstances, which led to issuance of the NOC have been
explained by the Addl. District Magistrate in the counter
affidavit filed in W.P.(C) 32992 of 2008, (which has been
clarified in Exhibit 41 counter affidavit as well), thus
showing that there is no contradiction at all, submits the
learned Senior Government Pleader.
26. The learned counsel for the petitioner submits,
with reference to the information obtained from the office
of the Deputy Superintendent of Police, the office of the Fire
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:31:-
and Rescue Department and RDO, that the said authorities
have not issued any NOC in connection with the issuance of
licence to the applicant. The learned senior Government
Pleader made available the relevant files containing the
entire proceedings for perusal of this court. The file
discloses that NOC was issued from the office of the
Superintendent of Police, Thrissur by way of Proceedings
No.D2(B) 45431/06 R, stated as received in the collectorate
on 07.11.2006. Similarly NOC bearing No.A.28-4919/06
dated 10.10.2006 has been issued from the office of the
Asst. Divisional Officer, Fire and Rescue Service, Thrissur to
the District Collector, Thrissur. In the former certificate,
the survey number of the property belonging to the
applicant whose particulars have been given thereunder
has not been mentioned, whereas in the latter certificate,
the survey number has been mentioned as '1892' as given in
the site plan.
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:32:-
27. In the report/NOC bearing No.C.36464 /06/K.Dis
dated 31.10.2006 issued by the Tahsildar of Mukundapuram
Taluk, the survey number has been correctly mentioned as
'1982'. So also, in the permit issued by the concerned
Geologist and in the Mahazar dated 16.10.2006 attached to
the location sketch prepared by the Village Officer, the
survey number has been correctly mentioned as '1982'.
The files including those produced by the Pollution Control
Board contain copies of the relevant records produced by
the applicant such as title deeds, possession certificate,
basic tax receipts etc, all of which show that the property
was comprised in Sy.No.'1982'. It is pointed out by the
learned Standing Counsel for the Pollution Control Board
and also by the Senior Government Pleader that the
concerned application has to be accompanied with copies of
all the relevant documents as prescribed and all such
documents including title deed, possession certificate and
basic tax receipt etc revealed the particulars of the actual
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:33:-
property owned, possessed and enjoyed by the applicant
and that there was absolutely no reason to doubt the
identity of the property involved herein. Viewed in the
above circumstances, the point with regard to the
prejudice, if any caused to the petitioner, stands answered
in the negative.
28. The learned counsel for the petitioner further
referred to the violation of Rule 156(5) of the Explosives
Rules stating that no notice whatsoever was issued by the
concerned authority before finalising the proceedings, to
the Town Planning/Municipal authority, which otherwise
would have enabled the Panchayath to bring the correct
position to the notice of the said authority so as to have had
the licence denied. Rule 156(5) of the Explosives Rules is
extracted below:-
Rule 156(5):-
"Where the site of the proposed factory of magazine
lies within 1.5 km. of the limits of the jurisdiction of any
town planning municipal authority or port authority, the
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:34:-
applicant shall prepare, for service on such authority a
notice of the application and of the said day of hearing."
The above sub-rule '5' says, where the site of the proposed
factory or magazine lies within 1.5 km. of the limits of the
jurisdiction of the "town planning municipal authority or
port authority", the applicant shall prepare, for service on
such authority a notice of the application and of the said
day of hearing. This Rule obviously does not say that notice
has to be issued by the licencing authority under the
Explosives Rules to all Local Authorities in whose
jurisdiction the Unit is sought to be established. On the
other hand, it specifically denotes service of notice to the
"town planning municipal authority or port authority"
situated within a radius of 1.5 kms. Since existence of any
Town Planning Municipal Authority or Port Authority within
a radius of 1.5 kms. is not established, the above sub-rule is
not at all attracted to the present case.
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:35:-
29. The learned counsel for the petitioner, referring
to the term "own use" as it appears under Rule 157 of the
Rules submits that the benefit of Rule 157 will be available
only if the 'small quantity' of the explosives not exceeding
100 kgs. is subjected to "own use" and further when the
end product obtained by using the said explosives is also
put to "own use/domestic purpose" of the applicant. In the
instant case, the learned counsel for the petitioner submits
that applicant has conceded in the counter affidavit that
they have already entered into a contract with another
person for the supply of granite rubbles for the construction
of N.H.47. The learned counsel for the petitioner submits
that the end product is subjected to a "commercial use" i.e.
for sale and not for the domestic/personal use and hence
there is violation of the Rule. Even on a plain reading of the
said Rule, it is absolutely not possible to arrive at any such
inference in so far as the Rule only envisages a simplified
procedure, if the 'small quantity' of explosives is required
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:36:-
for the "own use" of the applicant. The term "own use"
qualifies the term 'explosives' and not the 'end product'. The
explosives procured adopting a simplified procedure
invoking Rule 157 are not liable to be diverted to any other
channel than as envisaged therein. In the instant case, the
petitioner does not have a case that the explosive is for a
different use than for being used in the Quarry/Crusher Unit
of the applicant. In so far as the limited quantity of the
explosives procured under the licence stated as issued
under Rule 157 is put to 'own use' by the applicant, the
challenge raised by the petitioner referring to the sale of
the 'end product' is devoid of any merit.
30. Referring to the different interlocutory
applications, also seeking to implead the Centre for Earth
Science Studies (additional sixth respondent) the learned
counsel for the petitioner submits that no licence could have
been granted without conducting an 'Environmental Impact
Study' by the Centre for Earth Science Studies the
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:37:-
additional sixth respondent. This Court as per interim order
dated 3-11-2008 had directed the Pollution Control Board to
file a statement as to whether, in terms of the notification
issued by the Government of India in exercise of the powers
under the Environment (Protection) Act, 1986 an
'Environmental Impact Assessment' was necessary before
consent is granted for the establishment of the
Quarry/Crusher Unit in the nature of the one, which is
proposed to be set up by the applicant. Accordingly, the
Pollution Control Board filed a statement/report dated
12.11.2008 stating that as per the existing Rules,
'Environmental Impact Assessment Study' was not required
for setting up the project and that the details of Project or
Activities requiring prior environmental clearance are
indicated in the schedule of the Notification of the Ministry
of Environment and Forests dated 14-9-2006. It is made
clear therein that such study is generally carried out before
setting up of the project and that too, for the projects and
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:38:-
activities mentioned under the schedule. A copy of the
relevant notification and schedule have also been produced
by the Pollution Control Board as Exhibits R3(a) and R3(b)
along with the said report, which shows that the contention
of the petitioner is wrong and misconceived.
31. The learned senior counsel for the applicant
submits that no specific plea of malafides has been raised or
established in the above proceedings. The files produced by
the learned senior Government Pleader and also by the
Standing Counsel for the Pollution Control Board do not
reveal any adverse entry or proceedings whereby it could
be gathered that there was any attempt from the part of the
applicant to mislead the authorities concerned by
describing the Survey number wrongly as '1892' (in the
place of 1982); especially when copies of all the supporting
documents including the Title Deed, the Tax Receipt, NOC
issued by the Tahsildar, Permit issued by the Geology
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:39:-
Department, etc. produced along with the application
revealed the correct survey number as '1982'. The learned
counsel also referred to the power of the licencing authority
to sustain, cancel or revoke the licence, if the same has
been obtained by suppression of any material fact or in
dubious manner. The learned counsel for the petitioner also
relies on such power conferred on the licencing authority
under Section 6E(3)(c) of the Act and submits that the
petitioner has already preferred Exhibit P26 dated 22-8-
2008 before the Deputy Controller of Explosives, Kakkanad
and Exhibit P27 dated 31-8-2008, before the Joint Chief
Controller of Explosives, Egmore, Chennai in this regard. It
is for the petitioner to pursue the matter before the said
authorities, if found fit and proper for redressal of the
grievance, if any.
32. The learned counsel for the petitioner submits
that the impugned consent granted to operate the
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:40:-
Quarry/Crusher Unit interferes with the right of the
petitioner to establish and run educational institutions
guaranteed under Article 19(1)(g) and 30(1) of the
Constitution of India; besides infringement of Article 21. But
enjoyment of such rights can only be with due regard to
similar/constitutional rights and liberties available to other
citizen as well. In so far as the acts and deeds of the
'Applicant' is in conformity with the relevant provisions of
law and in tune with the terms and conditions of the
Licence, it is not assailable under any circumstance. The
learned counsel further submits that the petitioner has got
some other contentions as well, brought out through
different interlocutory applications filed in these writ
petitions. The averments and allegations in the interlocutory
applications do not form part of the pleadings raised in the
writ petitions. Reliefs sought for in the writ petitions are
based on the specific grounds raised in the writ petitions
and not on the contents of the affidavits filed in support of
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:41:-
the interlocutory applications. Such aspects, if any, are not
liable to be looked into, in so far as they are not chosen to
be incorporated in the writ petition, by amending the same.
33. While contending that the petitioner did not know
about the proceedings for issuance of the NOC by the
Additional District Magistrate in view of the mistake in
Survey number, shown in the public notice/paper
publication as '1892' in the place of '1982'. The petitioner
has also a strange contention that the publication was
effected by the concerned authority in the 'Mathrubhoomi'
while the authorities very well knew that Nuns subscribe to
'Malayala Manorama' and not 'Mathrubhhoomi'. This court
does not intend to make any comment or opinion with
regard to the above submission as it does not deserve to be
dealt with for effective adjudication of this case. Specific
reference is made to paragraph 32 of the W.P.(C) No.32992
of 2008 in this regard, which is extracted below:-
W.P.(C) Nos.24203, 25602
& 32992 of 2008 -:42:-
"Copy of Form 22 Licence issued and Form 17
Statement filed by fifth respondent are produced herewith
and marked as Exhibits P9 and P10 respectively. Copy of
notice issued under rule 156(4) is produced herewith and
marked as Exhibit P11. Exhibit P11 was received on
1.11.2008 and it was entrusted with petitioner's counsel
for appropriate action. Since Exhibit P11 was misplaced by
petitioner's counsel only now when he went through it he
noticed the difference in the survey number and informed
petitioner and this is the reason for filing this case now."
In view of the above categorical admission made by the
petitioner, it is difficult to hold that the matter has been
pursued on the basis of any genuine grievance as to
violation of the rights or opportunities of the petitioner,
but as a matter of exploratory/experimental litigation.
In the above facts and circumstances, no
interference is called for in all these three writ petitions and
they are dismissed accordingly.
P.R.RAMACHANDRA MENON,
JUDGE.
skr
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8609 of 2009(U)
1. FOUZIYA RAHIMAN, AGED 14,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE SECRETARY
... Respondent
2. THE REGIONAL PASSPORT OFFICER,
For Petitioner :SRI.K.A.SHAMSUDEEN
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :27/03/2009
O R D E R
ANTONY DOMINIC, J.
================ W.P.(C) NO. 8609 OF 2009 (U) ===================== Dated this the 27th day of March, 2009 J U D G M E N T The prayer sought in this writ petition is to direct the respondents to accept Exts.P4 and P4(a) application, along with the documents produced and to issue passport to the petitioner incorporating necessary corrections sought for by her.
2. Petitioner submits that she is the holder of Indian Passport No.F4551952. She was earlier married to one Sri.Abdul Rasheed, Pokkakkillath House, Ariyannur, Trichur District, who divorced her by pronouncing Talaq on 20/1/2007. This averment is sought to be supported by referring to Ext.P7 letter dated 20/1/2007. The passport issued to her incorporated the name of Sri.Abdul Rasheed as her spouse. Subsequently on divorce, the petitioner got remarried as is seen from Exts.P1 and P2 to one Sri.Abdul Rahiman of Chalakkudy. Later on she submitted Exts.P4 and P4(a) applications to the 2nd respondent requesting for making corrections in her passport by incorporating the name of her husband. That was refused to be accepted stating that if the petitioner desires to have change of name, she should produce WPC 8609/09 :2 : divorce order passed by a Court of law. It is in these circumstances, the writ petition is filed.
3. As is seen from Ext.P7 referred to above, on the basis of the personal law that is applicable to the petitioner, she has been divorced and on that basis she got remarried also. These facts are duly supported by the documents produced by the petitioner. If that be so, I see no justification for the 2nd respondent's refusal to accept Exts.P4 and P4(a), by which the petitioner sought corrections to be carried out in her passport.
4. In view of the above, I direct that it will be open to the petitioner to submit the originals of Exts.P4 and P4(a) before the 2nd respondent, in which case, the 2nd respondent shall accept the same and pass orders in the light of the observations herein above contained. It is directed that once the petitioner files an application as above, orders in the matter shall be passed, as expeditiously as possible, at any rate within 3 weeks of production of a copy of this judgment.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE Rp