Kerala High Court
Basheer vs The District Collector on 6 July, 2015
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 20TH DAY OF DECEMBER 2016/29TH AGRAHAYANA, 1938
WP(C).No. 37039 of 2016 (D)
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PETITIONER(S) :
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1. BASHEER,
AGED 48 YEARS, S/O. MUHAMMED,
THEKKINKATTIL HOUSE, KALLIDUKKU,
PATTIKKAD P.O., THRISSUR DISTRICT.
2. KABEER,
AGED 44 YEARS, S/O. MUHAMMED,
THEKKINKATTIL HOUSE, THANIPPADAM P.O.,
CHUVANNAMANNU, THRISSUR DISTRICT.
3. SHANILAN,
AGED 44 YEARS, S/O. UNNIKRISHNAN,
KUNNATHUPARAMBIL HOUSE, THANIPPADAM P.O.,
CHUVANNAMANNU, THRISSUR DISTRICT.
BY ADVS. SRI.SANTHOSH P.PODUVAL
SMT.R.RAJITHA
SMT.VINAYA V.NAIR
RESPONDENT(S) :
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1. THE DISTRICT COLLECTOR,
THRISSUR-680 001.
2. THE JOINT CHIEF CONTROLLER OF EXPLOSIVE
140, MARSHALLS ROAD,
EGMORE, CHENNAI- 600 001.
3. ADDITIONAL DISTRICT MAGISTRATE,
THRISSUR-680 001.
4. THE GEOLOGIST,
DEPARTMENT OF MINING AND GEOLOGY,
DISTRICT OFFICE, THRISSUR-680 001.
5. THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL
BOARD, DISTRICT OFFICE, THRISSUR- 680 001.
..2/-
..2..
WP(C).No. 37039 of 2016 (D)
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6. NATIONAL HIGHWAY AUTHORITY OF INDIA,
REP. BY ITS PROJECT DIRECTOR,
IN CHARGE OF NH-47, THRISSUR
DISTRICT, KERALA-680 001.
7. M/S. THRISSUR EXPRESS WAY LTD.,
REP. BY ITS PROJECT DIRECTOR,
PANNIYANKARA, PALAKKAD-678 683.
8. THE SUB INSPECTOR OF POLICE,
PEECHI POLICE STATION,
THRISSUR DISTRICT-680 653.
R1,R3,R4 & R8 BY SR. GOVERNMENT PLEADER SRI. RENIL ANTO
R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
ADV. SRI.GIRISH KUMAR.V., CGC
R5 BY ADV. SRI. T.NAVEEN, S.C
R6 BY ADVS. SMT.I.SHEELA DEVI
SMT.REJI RAMACHANDRAN
SRI.THOMAS ANTONY
R7 BY ADVS. SRI.T.P.RAMACHANDRAN (THACHETH)
SRI.M.SREELAKSHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-12-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 37039 of 2016 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1: TRUE COPY OF PETITION DATED 06.07.2015 SUBMITTED BY
THE 1ST PETITIONER.
EXHIBIT P2: PHOTOGRAPHS SHOWING THE DAMAGE CAUSED TO THE HOUSE
OF THE 1ST THE PETITIONER.
EXHIBIT P3: PHOTOGRAPHS SHOWING THE DAMAGE CAUSED TO THE HOUSE
OF THE 3RD PETITIONER.
EXHIBIT P4: TRUE COPY OF MINUTES OF THE MEETING DATED 30.09.2016
HELD UNDER THE AUSPICES OF THE 2ND RESPONDENT.
EXHIBIT P5: TRUE COPY OF REPLY DATED 02.12.2016 RECEIVED UNDER
THE RIGHT TO INFORMATION ACT FROM THE 4TH RESPONDENT.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R7(A): TRUE COPY OF ORDER OF DISTRICT MAGISTRATE
TRICHUR DATED 07.12.2015.
EXHIBIT R7(B): TRUE COPY OF ORDER OF THE DISTRICT COLLECTOR,
PALGHAT DATED 14.07.2016.
EXHIBIT R7(C): TRUE COPY OF ORDER OF CONTROLLER OF EXPLOSIVES
DATED 18.12.2015.
EXHIBIT R7(D): TRUE COPY OF CERTIFICATE OF SRI. SUDEVAN
DATED 28.04.1995.
EXHIBIT R7(E): TRUE COPY OF CERTIFICATE OF HARIGOVIND SINGH
DATED 17.06.2006 ISSUED BY THE JOINT CHIEF
CONTROLLER OF EXPLOSIVES.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
*CR*
K. VINOD CHANDRAN, J.
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W.P.(C) No.37039 of 2016- D
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Dated this the 20th day of December, 2016
J U D G M E N T
The petitioners are aggrieved with the blasting operations carried on for the purpose of the construction of a National Highway, which according to the petitioners, causes damage to the residences near to the work-site. The petitioners also contend that their residences are within 50 meters from the blasting site; which is within the prohibited distance of 100 meters, as prescribed by the Kerala State Pollution Control Board (PCB), for quarries. The objection is with respect to the quarrying operations carried on without the necessary sanctions and permits as also the refusal to comply with the minimum safety standards insisted upon by the 2 W.P.(C) No.37039 of 2016- D various enactments. The grievance is also of the large-scale blasting done with electronic detonators, without notice and frequently too, shaking the very foundations of the residences of the petitioners, causing untold misery to their life and damage to property.
2. The learned Counsel for the 7th respondent, who is the contractor has produced permissions and sanctions acquired from the various authorities. Ext.R7(a) is the proceedings of the Additional District Magistrate, Thrissur, granting permission to carry on the drilling and blasting works for the six-lane work of Wadakkanchery - Thrissur NH 47, on certain conditions stipulated. Ext.R7(b) is the proceedings of the District Collector, Palakkad which is specifically pointed out to contend that the District Collector had made inquiries with all the departments and permitted the carrying on of operations by the 7th respondent. Specific reference is made to 3 W.P.(C) No.37039 of 2016- D paragraph 3, wherein the Geologist, Palakkad has also been called upon to report any objection, which obviously has not been raised. In such circumstance, the NOC's, by the revenue and administrative head, of both the Districts, where the work is now progressing are deemed to have been issued on the consent of all departments within the respective districts. Ext.R7(c) is the explosives licence issued by the Controller of Explosives and Ext.R7(d)&(e) are the Short-firer's permit/certificate, to individuals said to be in the employment of the 7th respondent, who allegedly carry on the blasting operations.
3. The National Highway Authority also appears through Counsel and submits that the blasting operations are permitted as per the "Specifications for Road and Bridge Works issued by the Ministry of Shipping, Road, Transport and Highways"(Specifications of MOSRT&H), which stipulation is 4 W.P.(C) No.37039 of 2016- D found under the heading 302. 'Blasting Operations'. The agreement entered into with the 7th respondent contractor permits such blasting operations to be carried on with the necessary consent and sanctions as required under the various enactments, is the contention raised. The PCB has also submitted that, though for quarrying and mining, a consent to establish and operate issued from the PCB, is mandatory, the same is not required for purposes other than quarry operations. The learned Counsel for the 7th respondent would also stress on the fact that if there is an interdiction made of the blasting operations, then there would be stoppage of the National Highway work, which would definitely not be in the national interest. It is also pointed out that the petitioners are persons, who had been granted compensation in 2013, when works were carried out in the very same site. As of now, it is also submitted that a Committee has been formed headed by 5 W.P.(C) No.37039 of 2016- D the Additional District Magistrate and it is under supervision of that Committee, the operations are being carried on.
4. At the outset it is to be emphasised that the fact that the petitioners had obtained compensation once would not deter them from raising a further claim, on damage being caused subsequently due only for reason of the continuing work of the contractor. This Court has to look at whether the work carried on is with the requisite sanctions and permits, when again, a complaint is raised. Even when there are available all requisite sanctions, then too this Court would have to ensure that the citizens rights and properties are not put to peril merely on assertions made of national interest and overall development as in the case of a national highway widening; especially when the thrust now is on sustainable development.
5. Condition No. 2, in Exhibit R7 (a) & (b) is to be 6 W.P.(C) No.37039 of 2016- D immediately noticed, which speaks of a permission from the Geologist to be obtained as per the Kerala Minor Mineral Concession Rules, 2015 (for brevity KMMC Rules), if mining is found necessary. Though a mine or quarry, as such, is not carried on by the respondents, for the purposes of the road work carried on, effectively the land is quarried and the subsoil and minerals are removed. The terrain being rocky, blasting operations are also carried out and despite the work being for the purpose of widening the National Highway, essentially it is a mining operation as defined under the Mines Act,1952 and the Mines and Mineral (Development and Regulation) Act, 1957 (for short MMDR Act).
6. By Section 4 of the MMDR Act, any person undertaking reconnaissance, prospecting or mining operation in any area shall do so only with the reconnaissance permit, a prospecting license or a mining lease granted under the Act 7 W.P.(C) No.37039 of 2016- D and the Rules made there under. Section 15 of the MMDR Act confers power on the State Government to make Rules with respect to the grant of quarry leases/mining leases and other mineral concessions, invoking which the KMMC Rules has been framed. It is also pertinent that Section 14 of the MMDR Act as it earlier stood excluded Sections 4 to 13 from application to minor minerals and the same was amended with effect from 1986 by excluding only Sections 5 to 13. Hence Section 4 would be applicable even for minor minerals and admittedly the 7th respondent has not approached the District Geologist for a mining permit. Presumably the omission was only by reason of Rule 106 of the KMMC Rules, which exempted the obligation to obtain a quarrying permit or quarrying lease, when quarrying of minor minerals is made from Government owned lands by the public authorities as long as the work is done under their direct supervision. Rule 106 of the KMMC 8 W.P.(C) No.37039 of 2016- D Rules was held to be ultra vires in W.P.(C) No.16763 of 2016 by judgment dated 07.12.2016.
7. As to the applicability of the Mines Act, a learned Single Judge of this Court in Rajmohan Nair V. State of Kerala 1997 (1) ILR 268 held that The Mines Act, 1952 and the MMDR Act are complementary enactments and that one does not exclude the other. Therein the respondent, whose quarry was objected to as being conducted illegally, contented that the activity carried on by him did not involve underground excavation and hence cannot be brought under the Mines Act, as a mine. Relying on AIR 1976 SC 1393 (Bhagwan Dass V State of Uttar Pradesh and others )& AIR 1979 SC 1669 (Sri Tarkeshwar Sio Thaku Jiu V Dar Dass Dey & Co. and others) it was held held that despite no activities being carried on underground, the quarry carried on by the contesting respondent would be an 'open cast working' as defined under 9 W.P.(C) No.37039 of 2016- D the Mines Act.
8. Bhagwan Dass held that the Act of 1957 and the Rules of 1963 (UP State rules) "shows that minerals need not be subterranean and that mining operations cover every operation undertaken for the purpose of 'winning' any mineral. 'Winning' does not imply a hazardous or perilous activity. The word simply means 'extracting a mineral'' and is used to generally indicate any activity by which a mineral is secured. 'Extracting' in turn, means drawing out or obtaining. A tooth is 'extracted', as much as is fruit juice and as much as a mineral. Only, that the effort varies from tooth to tooth from fruit or fruit and from mineral to mineral." (sic-paragraph13). Tarkeshwar Sio Thakur Jiu held so: "It is true that in the definition of 'mine' the term 'excavation' in the ordinary sense, means 'hole' 'hollow' or 'cavity' made by digging out. But the word 'any' prefixed to 'excavation' in the context of the phrase 10 W.P.(C) No.37039 of 2016- D 'for the purpose of searching for or obtaining mineral' gives it a much more extensive connotation, so that every 'excavation' be it in the shape of an open-cast cavity or a subterranean tunneling, will fall within the definition of 'mine'. Similarly, it is not a requirement of the definition of 'mining operation' that the activity for winning the mineral must necessarily be an underground activity. The essence of 'mining operations' is that it must be an activity for winning a mineral, whether on the surface or beneath the surface of earth."(sic-paragraph 15)
9. Section 3 of the Mines Act was also referred, to find that the exclusion provided therein would not apply since the respondent was using explosives for the purpose of "extraction of rock pieces from the granite hill-rock." This is precisely the work carried on herein too; the only distinction being that it is carried on for the purpose of road widening. Section 3 of the Mines Act as it now exists is relevant and is extracted here- 11 W.P.(C) No.37039 of 2016- D under:
3. Act not to apply in certain cases:- (1) The provisions of this Act, except those contained in sections 7, 8,9, 40, 45 and 46 shall not apply to--
(a) any mine or part thereof in which excavation is being made for prospecting purposes only and not for the purpose of obtaining minerals for use or sale:
Provided that-
(i) not more than twenty persons are employed on any one day in connection with any such excavation;
(ii) the depth of the excavation measured from its highest to its lowest point nowhere exceeds six metres or, in the case of an excavation for coal, fifteen 12 W.P.(C) No.37039 of 2016- D metres; and
(iii) no part of such excavation extends below superjacent ground; or
(b) any mine engaged in the extraction of Kankar, murrum, laterite, boulder, gravel, shingle, ordinary sand (excluding moulding sand, glass sand and other mineral sands), ordinary clay (excluding kaolin, china clay, white clay or fire clay), building stone, slate, road metal earth, fullers earth, marl, chalk and lime stone:
Provided that-
(i) the workings do not extend below superjacent ground; or
(ii) where it is an open cast working-
(a) the depth of the excavation measured 13 W.P.(C) No.37039 of 2016- D from its highest to its lowest point nowhere exceeds six metres;
(b) the number of persons employed on any one day does not exceed fifty; and
(c) explosives are not used in connection with the excavation.
2. Notwithstanding anything contained in sub-
section (1), the Central Government may, if it is satisfied that, having regard to the circumstances obtaining in relation to a mine or part thereof or group or class of mines, it is necessary or desirable so to do, by notification in the Official Gazette, declare that any of th provisions of this Act, not set out in sub-section (1), shall apply to any such mine or part thereof or group or class of 14 W.P.(C) No.37039 of 2016- D mines or any class of persons employed therein.
(3) Without prejudice to the provisions contained in sub-section (2), if at any time any of the conditions specified in the proviso to clause
(a) or clause (b) of sub-section (1) is not fulfilled in relation to any mine referred to in that sub-section, the provisions of this Act not set out in sub-section (1), shall become immediately applicable, and it shall be the duty of the owner, agent or manager of the mine to inform the prescribed authority in the prescribed manner and within the prescribed time about the non-fulfilment."
10. The existence of any of the conditions in clause (a),
(b) or (c) would at once attract the provisions of the Mines Act, 15 W.P.(C) No.37039 of 2016- D as has been held in AIR 1987 SC 1253 (Joint Director of Mines Safety V M/s. Tandur and Nayandgi Stone Quarries (P) Ltd.). The legislative intent so declared, as manifested by the scheme of the Mines Act, though found to be primarily, to ensure the safety of the workmen; there is no escaping from the fact that the requirements there under would have to be satisfied. It is also a given fact that none have examined the depth of the excavation from the highest to the lowest point and in any event the use of explosives is admitted.
11. When the Mines Act is applicable then the Metalliferous Mines Regulations, 1961(Regulations for short) would be applicable and the short-firers license produced at Exhibits R7(d)&(e) would be insufficient to carry out the blasting in a Mine as defined under the Mines Act, as is specified in both the certificates. Rule 144 of the Explosives Rules, 1983, by its proviso provides for a short-firer employed 16 W.P.(C) No.37039 of 2016- D in a Mine to have the qualifications prescribed in the regulations framed under the Act. Regulation160(2) requires a blaster to be the holder of a Manager's, Foreman's, Mate's or Blaster's Certificate. The other provisions of the Regulations would also have to be complied with as has been dilated upon in Rajmohan Nair. It has also been held in Rajmohan Nair that a license issued in Form 23 of the Explosives Rules, would not be sufficient to carry on blasting in a Mine coming within the purview of the Mines Act, and a license; under Form 22, the issuance of which has more stringent conditions as seen from Rule 156 of the Explosives Rules, would be necessary.
12. Further the 'Specifications of MOSRT&H' under Heading No.302 'Blasting Operations' under general conditions prescribe so:
"Blasting shall be carried out in a manner that completes the excavation to the lines indicated 17 W.P.(C) No.37039 of 2016- D in drawings, with the least disturbance to adjacent material. It shall be done only with the written permission of the Engineer. All the statutory laws, regulations, rules, etc:, pertaining to the acquisition,, transport, storage, handling and the use of explosives shall be strictly followed."
Hence the contractor is obliged to follow all applicable laws with respect to blasting and also has to ensure no damage to the adjacent residences too.
13. Further this Court cannot shut its eyes to the grievances ventilated by the petitioners as to their property being endangered and the constant hazardous harassment to which they are put to, by reason of the indiscriminate blasting carried on without any caution for or care of the safety standards. National development is of prime concern, but it 18 W.P.(C) No.37039 of 2016- D cannot be advanced flouting the standards prescribed by the various enactments and putting to peril the life and property of the citizens. The arguments advanced by the contractor to urge the expediency with which the work has to be completed, is of no consequence when compared with the wide spread damages alleged and the pollution caused. It is also, not as if there are no alternative measures to remove the boulders and rock-formations, to lay the road; which could be done manually, but would be more time consuming and strenuous.
14. There should also be an expert opinion taken as to the extent and capacity of blasting permitted, considering the proximity of the residences and the time and frequency to which it has to be limited. The complaint raised by the petitioners is with respect to the large scale damage caused to the residences of the petitioners as also the pollution occasioned. The damage caused to the buildings is by reason 19 W.P.(C) No.37039 of 2016- D of the blast induced ground vibrations, the intensity of which would depend upon the quantity of explosives used, an assessment of which has not been undertaken by the district administration; by itself or through an expert agency. There is also air pollution caused by the generation of air pressure and noise, on the actual blasting, as also the debris thrown into the atmosphere when the rock formations are turned into rubble. The activity hence is also one coming within the ambit of The Environment (Protection) Act, 1986 and The Environment (Protection) Rules, 1986 (referred to as EP Act and EP Rules). The standards prescribed by the PCB hence becomes applicable and without a consent to operate there can be no operations of blasting carried on which effectively is deemed to be a "Mine" as defined under the Mines Act and quarrying of minor mineral is carried on under the MMDR Act. The hazardous effect of blasting carried on has to be assessed and 20 W.P.(C) No.37039 of 2016- D the pollution occasioned too, has to be contained.
15. The fourth proviso to Rule 10, under Chapter II, dealing with grant of quarrying permits and the fifth proviso to Rule 40 of Chapter V, dealing with grant of quarrying leases, as available in KMMC Rules prohibits use of explosives within a distance as specified by the PCB. Hence the 7th respondent would also be obliged to carry out the blasting work only with a consent to operate from the PCB. The understanding of the PCB that the requirements would not be applicable to such road widening work is obviously wrong and contrary to the statutory provisions. In such circumstance, the 7th respondent would have to necessarily obtain a mining permit under the KMMC Rules and a Consent to Operate from the PCB so as to carry on the blasting works.
16. It is also to be verified whether the 7th respondent would have to obtain an Environmental Clearance 21 W.P.(C) No.37039 of 2016- D under the Environmental Impact Assessment Notification No. 2006 (SO 1533E) dated 14.09.2006 issued by the Ministry of Environment and Forests and Climate Change; by S.O No. 141 (E) dtd. 15.01.2016. The EIA notification of 2006 provides by paragraph 2, for Environmental Clearance for projects or activities coming under Category 'A' in the Schedule, from the Central Government in the Ministry of Environment, Forests and Climate Change (MoEF&CC) and the State Environment Impact Assessment Authority for matters falling under Category B. The Schedule at serial number 7(f) includes Highways, the 'Expansion of National Highways greater than 100 kilometers involving additional right of way or land acquisition greater than 40 m on existing alignments and 60 m on realignments or bypasses' as Category 'A'. The District Geologist, who is approached for a permit under the KMMC Rules shall verify whether the work undertaken by the 7th 22 W.P.(C) No.37039 of 2016- D respondent is one requiring EC as provided in the EIA notification.
17. The District administration also would have to conduct a study by an expert agency, or the PCB as to the depth and number of holes, their diameter, the quantity of explosive charge used, the influence it has on the impact of the blasts and so on and so forth to regulate the magnitude of the ground vibrations and ensure that no damage is caused to the 'adjacent material' including buildings as has been specified in the Specifications of MOSRT&H; if at all it is permitted as per the specifications issued by the PCB as made applicable by the KMMC Rules.
18. The 7th respondent would be entitled to approach the appropriate authorities and continue with the work after getting the requisite sanctions. However till such time the permits are issued, the 7th respondent will be 23 W.P.(C) No.37039 of 2016- D restrained from carrying out blasting operations, for the purpose of the work carried on in the National Highway. The District administration will ensure that no blasting operations are carried out till the requisite sanctions and permits, as discussed herein above, are obtained.
The writ petition would stand allowed. No costs.
Sd/-
K. VINOD CHANDRAN,
JUDGE
SB/20/12//2016 //true copy//
P.A to Judge