Kerala High Court
Ottappalam Granites (P) Ltd vs The District Collector/Magistrate on 15 September, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 15TH DAY OF SEPTEMBER 2022/24TH BHADRA, 1944
WP(C) NO. 5009 OF 2021
PETITIONER:
OTTAPPALAM GRANITES (P) LTD.,
VI/751, KALLENS SHOPPING CENTRE,
PUKATTUPADY, EDATHALA P.O,
ERNAKULAM - 683561,
REPRESENTED BY ITS DIRECTOR MR.FINIX VARGHESE.
BY ADVS.
SRI.DENU JOSEPH
SRI.BIBIN BABU
RESPONDENTS:
1 THE DISTRICT COLLECTOR/MAGISTRATE,
PALAKKAD DISTRICT,
COLLECTORATE, PALAKKAD - 678001.
2 ADDITIONAL DISTRICT MAGISTRATE,
PALAKKAD DISTRICT,
COLLECTORATE, PALAKKAD - 678001.
3 THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,
C-2, IIIRD FLOOR, KENDRIYA BHAVAN,
C.S.E.Z. POST, KAKKANAD, KOCHI - 682037.
4 LAKKIDY PERUR GRAMA PANCHAYATH,
MANGALAM P.O, OTTAPALAM,
PALAKKAD DISTRICT - 679301,
REPRESENTED BY ITS SECRETARY.
5 SURESH BABU,
M.P. HOUSE, MULANJOOR POST,
OTTAPALAM,
PALAKKAD DISTRICT - 679511.
W.P.(C) No.5009/2021
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6 VIJAYA GOVINDAN,
MULLAPULLYMADOM, MULANJOOR POST,
OTTAPPALAM, PALAKKAD DISTRICT - 679511.
7 NARAYANAN T.,
THOTTATHIL HOUSE,
MULANJOOR POST,
OTTAPALAM,
PALAKKAD DISTRICT - 679511.
BY ADVS.
SRI.R.SREEHARI
SRI.P.JAYARAM
SRI.K.R.SANTHOSH KUMAR
SRI.MANU S., ASG OF INDIA
SMT.SURYA BINOY, SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 15.09.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.5009/2021
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N. NAGARESH, J.
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W.P.(C) No.5009 of 2021
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Dated this the 15th day of September, 2022
JUDGMENT
~~~~~~~~~ Petitioner is a Company engaged in granite quarrying business. The petitioner holds 5.7 Hectares of property in Lakkidy Perur-1 Village of Palakkad District. The petitioner seeks to set aside Ext.P8 order of the 2 nd respondent-Additional District Magistrate rejecting the application submitted by the petitioner for NOC to obtain Explosives Licence.
2. In the year 2015, the petitioner, with an intention to apply for a quarrying lease, approached the 1 st respondent-District Collector seeking NOC under Rule 102 of the Explosives Rules, 2008 for establishing a Magazine for storage of explosives. The application was rejected. The W.P.(C) No.5009/2021 :4: petitioner did not pursue the said application since the application was submitted without prior approval under Rule 101 of the Explosives Rules.
3. The petitioner later obtained Ext.P1 approval from the 3rd respondent-Deputy Chief Controller of Explosives for the proposed possession for use of explosives from a Magazine. Ext.P1 approval was on condition that the petitioner shall submit NOC and endorsed plan. The petitioner thereafter submitted Ext.P2 application to the 1 st respondent for grant of NOC under Rule 113 of the Explosives Rules,2008.
4. The 1st respondent sent Ext.P3 letter to the Secretary to the 4th respondent-Panchayat asking whether the Panchayat has any objection in issuing NOC. The Secretary informed the 1st respondent that the Council on 31.03.2017 had decided not to give NOC and that the Council meeting scheduled to be held on 27.06.2018, will again consider the issue.
W.P.(C) No.5009/2021:5:
5. Thereafter, the 1st respondent issued Ext.P6 letter requiring the petitioner to produce Letter of Intent from the Geology Department and Environmental Clearance Certificate. The petitioner submitted Ext.P7 explanation pointing out that those documents are not necessary at this stage as the application is only for NOC for Explosives Licence.
6. Thereafter, the 2nd respondent has issued Ext.P8 order dated 16.11.2020 rejecting the application for NOC. The 2nd respondent has rejected the application on the ground that local residents have strongly opposed establishment of quarry and that local residents have expressed apprehension that if quarrying is permitted, it will adversely affect agricultural activities and life and property of residents in the valley. Ext.P8 further stated that the petitioner has not produced any documents to controvert the anxiety and hence it has to be held that the public interest is not protected as mandated by Rule 103(3) of the Explosives Rules, 2008.
W.P.(C) No.5009/2021:6:
7. The counsel for the petitioner argued that under Rule 103(3) of the Explosives Rules, the District Magistrate has to verify antecedents of the applicant, lawful possession of the site, genuineness of the purpose and interest of the general public. Rule 103(3)(a) contemplates a public notice to be published inviting public to raise their objection. The 2 nd respondent cannot take a decision based on the reports of Police and Revenue authorities. Ext.P8 has been passed without any materials to support the decision.
8. The 2nd respondent defended the writ petitioner filing counter affidavit. The 2 nd respondent stated that several complaints have been received against the proposed quarry. Reports of the District Police Chief and Tahsildar also indicated that there are serious objections. The Panchayat has decided not to permit the Quarry. The petitioner has not obtained Environmental Clearance or Letter of Intent from competent authorities. The petitioner has not been able to disprove the findings in Ext.P8. Hence, the writ petition is liable to be dismissed.
W.P.(C) No.5009/2021:7:
9. The Assistant Solicitor General of India representing the 3rd respondent submitted that Ext.P1 approval has been granted to the petitioner under the Explosives Rules subject to certain conditions and one of the conditions is obtaining of NOC. If the petitioner obtains NOC and satisfies all other conditions stipulated in Ext.P1, their application for licence for possession for use of Explosives from the propose Magazine can be considered.
10. Respondents 6 and 7 also opposed the writ petition. It is submitted that the magazine sought to be established by the petitioner is for storage of large amount of explosives. The storage would create irreversible environmental hazards in the locality. The petitioner is trying to establish a crusher unit also. The inhabitants around are mostly farmers, who depend for their livelihood on agriculture, mainly, double crop paddy cultivation. The establishment of magazine would result in threats of erosion of lands and destruction to agriculture. It will also destroy the perennial sources of water.
W.P.(C) No.5009/2021:8:
11. The magazine is proposed to be established on a higher terrain. The distance requirements are not met. There is a temple within a radius of 300 meters of the proposed magazine. There is a large temple pond with an extent of around 50 Cents. It is a perennial water source and water body. The establishment of the magazine on the hill side would disrupt the drinking water source. The huge explosions undertaken would induce landslides and catastrophes involving human lives.
12. Establishment of magazine would thwart the normal living of the people. The local and other authorities are acting without responsibility to take care of the concerns of the people. The petitioner is rich and powerful and has tremendous influence over authorities. The petitioner was able to obtain permits and consents from the authorities by undue influence. Such permits do not reflect the ground realities. Ext.P8 order is only to be legally maintained, contended respondents 6 and 7.
W.P.(C) No.5009/2021:9:
13. I have heard the learned counsel for the petitioner, the learned Senior Government Pleader representing respondents 1 and 2, the learned Assistant Solicitor General of India representing the 3rd respondent, the learned counsel for the 4th respondent-Panchayat and the learned counsel for respondents 6 and 7.
14. The petitioner proposes to start quarrying work in the land possessed by the Company. The proposed quarrying would require use of explosives and an Explosives Magazine will have to be constructed, which requires Explosives Licence. The Competent Authority has granted approval for construction, as per Ext.P1, on condition that the petitioner shall obtain NOC from the District Authority.
15. Rule 103 of the Explosives Rules provides that the District Magistrate on receipt of application referred in sub- rule (1), shall make verification of the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other verifications or enquiries as may be specifically required by the licensing W.P.(C) No.5009/2021 : 10 : authority to be carried out, if any, and on any other matter as deemed necessary.
16. The Rule also lays down the procedural requirements for verification of the interest of the public. The District Magistrate has to cause a notice to be published calling upon the public to submit objections. The Rule explains the mode in which such objections are to be considered.
17. Ext.P8 proceedings would show that the 2 nd respondent has rejected the application of the petitioner solely based on the apprehensions expressed by certain persons and authorities. The 2 nd respondent has not made any enquiries as to the genuineness or sustainability of such objections. On the other hand, the 2 nd respondent in Ext.P8 has stated that the petitioner has failed to disprove the apprehensions expressed by the objectors. This Court has held in Joy Joseph v. District Collector, Kannur and others [2016 (3) KLT 514] that application for grant of NOC cannot be rejected merely for the reason that there are W.P.(C) No.5009/2021 : 11 : objections against the grant.
18. In Ext.P8, the 2nd respondent has further stated that the petitioner has not produced Environmental Clearance or Letter of Intent from competent authorities. It is to be noted that what the petitioner has applied for is an NOC for obtaining Explosives Licence for construction of an Explosives Magazine. Starting of quarrying operations would require Letter of Intent from Geology Department, Environmental Clearance and a number of other statutory licences/clearances/permits from competent authorities, which can be given/issued only after due enquiries and verifications. Environmental impact and threat to public life or property etc. are issues to be considered by the competent statutory authorities at the appropriate stage. The 2 nd respondent, for the purpose of issuing NOC under the Explosives Rules, cannot insist production of those documents.
For all the afore reasons, Ext.P8 cannot stand the scrutiny of law. Ext.P8 order of the 2 nd respondent is W.P.(C) No.5009/2021 : 12 : therefore set aside. The 2nd respondent is directed to reconsider Ext.P2 application submitted by the petitioner and pass appropriate orders thereon expeditiously, in accordance with law.
Sd/-
N. NAGARESH, JUDGE aks/13.09.2022 W.P.(C) No.5009/2021 : 13 : APPENDIX OF WP(C) 5009/2021 PETITIONER'S EXHIBITS:
EXHIBIT P1 THE COPY OF THE PRIOR APPROVAL DATED 05.07.2016 ALONG WITH THE PLAN ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2 THE COPY OF THE APPLICATION DATED 08.07.2016 WITH FROM DE-1 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P3 THE COPY OF THE LETTER NO.D3-
2016/47242/9(4) DATED NIL ISSUED BY
THE 1ST RESPONDENT TO THE 4TH
RESPONDENT.
EXHIBIT P4 THE COPY OF THE LETTER DATED
20.06.2018 ISSUED BY THE 4TH
RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P5 THE COPY OF THE JUDGMENT DATED
29.06.2020 IN WRIT PETITION NO.
12873/2020.
EXHIBIT P6 THE COPY OF THE NOTICE DATED
13.10.2020 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P7 THE COPY OF THE REPLY LETTER DATED
27.10.2020 ISSUED BY THE PETITIONER.
EXHIBIT P8 THE COPY OF THE ORDER DATED 16.11.2020
PASSED BY THE 2ND RESPONDENT.
EXHIBIT P9 THE COPY OF THE OBJECTION DATED
25.06.2018 RAISED BY RESPONDENTS 5 TO
7.
RESPONDENT'S EXHIBITS:
Exhibit R1(a) True copy of the report of the
District Police Chief bearing No. D-
4/74258/2016/P dated 04.11.2016
Exhibit R1(b) True copy of the report of the
Tahsildar bearing No. D1-
2016/10131/9/400 dated 23-01-2017
Exhibit R1(c) True copy of the report bearing even
No. Dated 23-04-2018
W.P.(C) No.5009/2021
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Exhibit R1(d) True copy of the letter of the
Panchayat dated 12-04-2017
Exhibit R1(e) True copy of the letter of Panchayat
dated 23-07-2020
Exhibit R1(f) True copy the resolution bearing
No.17/1 taken at the meeting dated 27-
06-2018 of the 4th respondent
Panchayat.
SR