Kerala High Court
K.V. Antony vs District Collector
Author: A.M. Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY,THE 10TH DAY OF SEPTEMBER 2013/19TH BHADRA, 1935
WP(C).No. 12942 of 2012 (P)
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PETITIONER(S):
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1. K.V. ANTONY, AGED 70 YEARS,
S/O. VAREETH, KALAN PARAMBIL HOUSE, MAMBRA,
KARUKUTTY.P.O.,ERNAKULAM DISTRICT.
2. K.T. DEVASSY,AGED 65 YEARS,
S/O. THOMAN, KAVALAKKATTU HOUSE, MAMBRA,
KARUKUTTY.P.O.,ERNAKULAM DISTRICT.
BY ADV. SRI.K.ABDUL JAWAD
RESPONDENT(S):
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1. DISTRICT COLLECTOR, ERNAKULAM,PIN-682 030
2. REVENUE DIVISIONAL OFFICER,
FORT KOCHI, ERNAKULAM DISTRICT.PIN-682 001
3. TAHASILDAR,ALUVA, ERNAKULAM DISTRICT.PIN-683 579
4. VILLAGE OFFICER,
PARAKKADAVU, ERNAKULAM DISTRICT.PIN-683 579
5. GEOLOGIST, DISTRICT OFFICE,
DEPARTMENT OF MINING AND GEOLOGY,
CIVIL STATION, KAKKANAD, KOCHI-682 030.
6. KERALA POLLUTION CONTROL BOARD,
REPRESENTED BY CHIEF ENVIRONMENT ENGINEER,
GANDHI NAGAR, KADAVANTHRA, KOCHI-682 030.
7. DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,
KENDRIYA BHAVAN, BLOCK C-2, 3RD FLOOR,
KAKKANAD.P.O., ERNAKULAM-682 037.
8. PARAKKADAVU GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, KURUMASSERI P.O.,
ALUVA TALUK, ERNAKULAM DISTRICT-683 579.
9. THOMAS.T.K.,S/O. KOCHU VARKEY,
THANDAPPILLY HOUSE, MAMBRA,KARUKUTTY.P.O.,
ERNAKULAM.PIN-683 576
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WP(C)NO.12942/2012
10. DEVASSY KUTTY K.T.,
S/O. THOMAN KUTTY, KAVALAKKADAN HOUSE, MAMBRA,
KARUKUTTY.P.O., ERNAKULAM.PIN-683 576
11. SIJO K.V.,
S/O. VAREETH, KALAN PARAMBAN HOUSE, MAMBRA,
KARUKUTTY.P.O., ERNAKULAM.PIN-683 576
12. BINU.P.K.,
S/O. KOCHAPPAN, PANIKKULAM HOUSE, MAMBRA,
KARUKUTTY.P.O., ERNAKULAM.PIN-683 576
*ADDL.R13 TO R17 IMPLEADED
*R13. JOSHY,S/O.JOSEPH, AGED 42 YEARS,
KALARAMPARAMPIL,MAMBRA, PARAKKADAVU PANCHAYATH,
KARUKUTTY POST,ERNAKULAM DISTRICT -683 576.
*R14. LIJO,S/O.ANTONY, AGED 35 YEARS,
PULLAN HOUSE, MAMBRA, PARAKKADAVU PANCHAYATH,
KARUKUTTY POST,ERNAKULAM DISTRICT -683 576.
*R15. VARGHESE, S/O.THOMAS, AGED 70 YEARS,
KAVALAKKATTU,MAMBRA,
PARAKKADAVU PANCHAYATH, KARUKUTTY POST,
ERNAKULAM DISTRICT -683 576.
*R16. MELVIN.K.DEVASSY,S/O.DEVASSY.K.E., AGED 30 YEARS,
KALARAMPARAMPIL, MAMBRA,
PARAKKADAVU PANCHAYATH, KARUKUTTY POST,
ERNAKULAM DISTRICT -683 576.
*R17. DIJU, S/O.DEVASSY, AGED 42 YEARS, VATTOLI,
POOVATHUSSERY, MAMBRA,PARAKKADAVU PANCHAYATH,
KARUKUTTY POST, ERNAKULAM DISTRICT -683 576.
*ADDL. R13 TO R17 ARE IMPLEADED AS PER ORDER DATED 07/11/12
IN IA.NO. 14907/12.
R1 TO R5 BY SR GOVERNMENT PLEADER SRI.RAMPRASAD UNNI.T.
R6 BY ADV. SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD
R9 TO R11 BY SRI.V.K.BEERAN,SENIOR ADVOCATE
ADV. SRI.V.P.REGHURAJ
ADDL R13 TO R17 BY ADV. SRI.T.B.HOOD
SMT.M.ISHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 10-09-2013,ALONG WITH WP(C)NO.17029/2013, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C)NO.12942/2012
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1 TRUE COPY OF THE PETITION DATED 17-1-2011 SUBMITTED BY ONE
VELAYUDHAN BEFORE THE 8TH RESPONDENT.
EXT.P2 TRUE COPY OF THE WITHDRAWAL APPLICATION DATED 19-1-2011
SUBMITTD BY ONE VELAYUDHAN BEFORE THE 8TH RESPONDENT.
EXT.P3 TRUE COPY OF THE ORDER DATED 1-3-2011 CANCELLED THE
LICENCE ISSUED TO THE 9TH RESPONDENT.
EXT.P4 TRUE COPY OF THE PHOTOGRAPHS SHOWING PUMPING OF
POLLUTED WATER TO IRRIGATION CANAL.
EXT.P5 TRUE PHOTOGRAPHS SHOWING THE DAMAGES TO THE WALLS OF
THE RESIDENTIAL BUILDINGS OF THE 2ND PETITIONER.
EXT.P5(A) TRUE PHOTOGRAPHS SHOWING THE DAMAGES CAUSED TO THE 1ST
PETITIONERS HOUSE AND WELL.
EXT.P6 TRUE COPY OF THE AGREEMENT DATED 11-6-2009 EXECUTED
BETWEEN THE RESPONDENTS 9 TO 11 WITH 1ST PETITIONER.
EXT.P7 TRUE COPY OF THE AGREEMENTS DATED 10-5-2010 EXECUTED
BETWEEN THE RESPONDENTS 9 TO 11 WITH PETITIONERS.
EXT.P8 TRUE COPY OF THE COMPLAINT DT. 27-11-2011 PREFERRED BY THE
PETITIONERS TO THE CHIEF MINISTER.
EXT.P9 TRUE COPY OF THE COMPLAINT DATED 5-8-2011 PREFERRED BY THE
1ST PETITIONER BEFORE THE 8TH RESPONDENT
EXT.P10 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER
WITH OTHERS AND COPY TO THE RESPONDENTS 1,2 AND 8.
EXT.P11 TRUE COPY OF THE COMMUNICATION FROM THE CHIEF MINISTER'S
OFFICE, FORWARDED TO THE 1ST RESPONDENT FOR ACTION
EXT.P12 TRUE COPY OF THE REPORT TOGETHER WITH THE COVERING
LETTER DATED 25/7/12 ISSUED TO THE SON OF THE 2ND PETITIONER.
EXT.P13 TRUE COPY OF THE REPLY DATED 3/7/12 FROM THE PUBLIC
INFORMATION OFFICER, ERNAKULAM TO THE SON OF THE 2ND
PETITIONER.
EXT.P14 TRUE COPY OF THE REPLY DATED 21/1/2010 FROM THE 6TH
RESPONDENT TO SRI.M.M.MATHEW.
EXT.P15 TRUE COPY OF THE OFFICE MEMORANDUM DATED 18/5/2012 ISSUED
BY MINISTRY OF ENVIRONMENT AND FOREST (MOEF)
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EXT.P16 TRUE COPY OF THE APPLICATION DATED 25/10/2012 SUBMITTD BY
PETITIONERS ALONG WITH OTHER LOCAL RESIDENTS BEFORE THE
RESPONDENT NOS.5,6 AND 8.
RESPONDENTS' EXHIBITS :
EXT.R9(A) TRUE COPY OF THE CHELAN RECEIPT DATED 23/12/2011 SHOWING
THE PAYMENT OF RS.1,00,200/- AS ROYALTY
EXT.R9(B) TRUE COPY OF THE GEOLOGY PERMIT DATED 28/12/2011 ISSUED TO
THE 9TH RESPONDENT.
EXT.R9(C) TRUE COPY OF THE EXPLOSIVE LICENCE DATED 25/10/2006 ISSUED
TO THE 9TH RESPONDENT.
EXT.R9(D) TRUE COPY OF THE PANCHAYAT LICENCE DATED 17/4/2012 ISSUED
TO THE 9TH RESPONDENT.
EXT.R9(E) TRUE COPY OF THE CONSENT FROM POLLUTION CONTROL BOARD
DATED 25/4/2011
EXT.R9(F) TRUE COPY OF THE CERTIFICATE DATED 6/12/2010
EXT.R9(G) TRUE COPY OF THE ORDER DATED 9/7/2012 OF THE 3RD
RESPONDENT.
/TRUE COPY/
P.S.TO.JUDGE
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A.M. SHAFFIQUE,J.
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W.P.(C) NOS. 12942 OF 2012 &
17029 OF 2013
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Dated this the 10th day of September 2013
JUDGMENT
In W.P.C.No.17029/2013, the petitioner challenges Ext.P7 and Ext.P9. Ext.P7 is the stop memo issued by the Geologist directing the petitioner to stop quarrying activities in an extent of 1.0699 hectares of land in Survey No.168/3,4,5 of Parakkadavu village, Aluva Taluk permitted as per licence Ext.P1 dated 2.1.2013. In Ext.P7 reference is made to the order dated 7/6/2013 in Contempt Case No.284/2013. The petitioner was called upon to explain as to why further operations in the quarry should not be permitted and as to why the quarrying permit should not be cancelled. He was also called upon to submit approval from the Director General of Mines Safety for further operation of WPC 12942/2012 & 17029/2013 2 the quarry as per Regulation 106 of the Metalliferous Mines Regulations, 1961. Pursuant to the above, the petitioner submitted Ext.P8 explanation, inter alia, contending that he had obtained all necessary permits/licences from the competent authorities and also contended that the petitioner has no connection whatsoever in the Contempt Case and the quarrying operation should not be stopped on account of the said factual situation. Pursuant to Ext.P8, Ext.P9 order was issued by Geologist inter alia stating that the explanation offered by the petitioner was not satisfactory and if the permit conditions have been violated further, the petitioner will be permanently restrained from operating the quarry. It is the contention of the petitioner that the Geologist had issued Exts.P7 and P9 to satisfy the interest of respondents 2 and 3 and to avoid contempt proceedings. According to the petitioner, there are about 10 other quarries in the said Panchayat and stop memo had been issued to all such quarrying operators which has no basis at WPC 12942/2012 & 17029/2013 3 all. During the pendency of the writ petition, the petitioner had produced Ext.P13 Government order, where restrictions have been imposed for permitting the quarry operations below 20 feet. This order is dated 14.6.2013. According to the petitioner, he is ready and willing to comply with the directions issued in Ext.P13.
2. W.P.C. No. 12942/2012 is filed by respondents 2 and 3 in W.P.(C) No.17029/2013. It is alleged that they are neighbouring land owners and functioning of the quarry is causing severe pollution and damages to the property of the said petitioners. They also complains that large scale pollution has been caused on account of the functioning of the quarry and therefore the quarrying operation is to be stopped. Reference is also made the report submitted by the Revenue Divisional Officer to the District Collector inter alia indicating that the quarrying is being run violating the permit conditions. Ext.R2(a) is the report of the Assistant Collector(U/T) and Ext.R2(b) is the WPC 12942/2012 & 17029/2013 4 stop memo issued by the Tahsildar & Executive Magistrate, Aluva wherein also it is stated that violation in respect of permit conditions had been notified. The petitioner had taken out a commission and the commission report is produced before this court.
3. Having regard to the aforesaid factual situation, the first point to be considered is whether the order passed by the first respondent is without any basis at all. On a perusal of Ext.P7, it could be seen that it is only a show cause notice. But the reasons for issuing show cause notice are not specifically mentioned. The petitioner has a case that if the petitioner had violated any of the conditions in the permit, it should have been definitely brought to the notice of the petitioner. No such attempt has been made. However, the petitioner was called upon to submit approval from the Director General of Mines Safety for further operations in the quarry in terms of the Regulation 106 of the Metalliferous Mines Regulations, 1961. Though an WPC 12942/2012 & 17029/2013 5 objection was filed, the petitioner could not produce any such records and nothing is stated in the objection regarding the same. While passing Ext.P9 order other than stating that the petitioner has violated the conditions, no specific order has been issued by the Geologist pointing out conditions of the permit which has been violated and what was the statutory requirement the petitioner had failed to comply, to continue quarrying operation. In the event of any violation of permit conditions, the first respondent was duty bound to mention in the impugned order the reason for such cancellation specifically taking note of the conditions that had been violated and non-compliance of statutory provisions, if any. It is not in dispute that the petitioner will be able to conduct the quarrying in the event of the petitioner complies with all statutory requirements which inter alia includes the consent of the Pollution Control Board to avoid any form of pollution. The impugned order, Ext.P9 does not contain any such details. The party respondents WPC 12942/2012 & 17029/2013 6 have a contention that pollution is being caused in the neighbouring locality and that the entire land had been excavated and quarried and there is nothing left to be quarried. Even though specific reference is made by the party respondents to the commissioner's report in order to indicate that there is nothing left for conducting quarrying in the said unit, this is a matter to be considered by the first respondent while considering the question as to whether the permit is to be cancelled or not. Under these circumstances and having regard to the contentions raised by the petitioner as well as party respondents, I am of the view that these writ petitions can be disposed of as under:
1) In W.P.(C) No.17029/2013 Ext.P9 is set aside and there will be a direction to the first respondent to reconsider the entire matter after hearing the petitioner as well as respondents 2 and 3 and to pass a speaking order clearly indicating the nature of violations if any in the WPC 12942/2012 & 17029/2013 7 matter relating to the conduct of quarrying operations by the petitioner.
2) The above directions shall be complied within a period of one month from the date of receipt of a copy of this judgment and until such time status quo shall be maintained.
3) In view of the directions issued in W.P.(C) No.17029/2013, no separate orders are passed in W.P.(C) No. 12942/2012 and the same is disposed leaving open all the contentions to be raised before the first respondent.
Sd/-
A.M. SHAFFIQUE,JUDGE ks.
True copy P.S.to Judge WPC 12942/2012 & 17029/2013 8