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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941
WP(C).No.25986 OF 2019(W)
PETITIONERS:
1 DIAMOND ACTION COUNCIL, MANEED, REPRESENTED BY ITS
JOINT CONVENOR K.G.MOHANAN, AGED 58 YEARS,
S/O.K.M.GOVINDAN,REVATHY BHAVAN,MANEED P.O-686 664.
2 MATHAI T.P., (DIAMOND ACTION COUNCIL ACTIVIST
MEMBER), S/O. PAILY, THEKKEDATHU HOUSE,
MANEED P. O., PIN - 686664.
3 KUMARAN T. V., AGED 63 YEARS, (DIAMOND ACTION COUNCIL
ACTIVIST MEMBER), S/O.VALLON, MURIKADAMATTATHIL
HOUSE, MANEED P.O. - 686 664.
SRI.GEORGIE SIMON
SRI.BASIL CHANDY VAVACHAN
RESPONDENTS:
1 M/S.DIAMOND AGGREGATES
MANEED P.O., MANEED VILLAGE, REP. BY
ITS MANAGING PARTNER
2 M. P. PRASAD, AGED 52 YEARS
MANAGING PARTNER, M/S DIAMOND AGGREGATES,
MANEED P.O., MANEED VILLAGE, PIN - 686664.
3 GEOLOGIST, DISTRICT OFFICE, MINING AND
GEOLOGY DEPARTMENT, CIVIL STATION, KAKKANAD,
COCHIN - 682 030.
4 THE SECRETARY, MANEED GRAMA PANCHAYATH,
MINI CIVIL STATION, GANDHI SQUARE, MANEED-686664.
5 THE CHAIRMAN, KERALA STATE POLLUTION CONTROL BOARD,
PATTOM P.O., THIRUVANANTHAPURAM - 695004.
6 STATE OF KERALA
REP. BY ITS CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
WP(C).25986/2019 & 26250/2019
2
SRI.DINESH R.SHENOY
SRI.EBIN MATHEW
SRI.SUNU P.JOHN
SRI.ANIL KUMAR
SRI.PAUL ABRAHAM VAKKANAL, GP, SRI.T.NAVEEN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.10.2019, ALONG WITH WP(C).26250/2019(E), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941
WP(C).No.26250 OF 2019(E)
PETITIONER:
DIAMOND AGGREGATES, MANEED P O, PIRAVAM - 682309,
REPRESENTED BY ITS MANAGING PARTNER, M.P.PRASAD, AGED
62, S/O. PURUSHAN, THIRUNILATH HOUSE, IRIMPANAM P.O.
- 682 309.
SRI.DINESH R.SHENOY
SRI.EBIN MATHEW
SRI.P.ROHIT PREMANANDAN SHENOY
SMT.PREETHU PRADEEP
RESPONDENTS:
1 MANEED GRAMA PANCHAYATH
MANEED P.O, 686664, REPRESENTED BY ITS
SECRETARY, ERNAKULAM DISTRICT.
2 THE STATION HOUSE OFFICER,
PIRAVAM POLICE STATION, PIRAVOM-686664,
ERNAKULAM DISTRICT.
3 M.K.SIVARAJAN, MATTATHIL HOUSE, MANEED P O,
PIN-686664, ERNAKULAM DISTRICT.
4 JOHNY, AGED 63, THAKIDIYIL HOUSE, MANEED P O,
PIN-686664, ERNAKULAM DISTRICT.
5 N.M. JOY, NEDIYANIKUZHIYIL HOUSE, MANEED P O,
PIN-686664, ERNAKULAM DISTRICT.
6 DIAMOND ACTION COUNCIL, MANEED, REPRESENTED BY ITS
CONVENOR K.G.MOHANAN, AGED 58 YEARS,
S/O.K.M.GOVINDAN,REVATHY BHAVAN,MANEED P.O-686 664.
SRI.SUNU P.JOHN, sc
SRI.GEORGIE SIMON
SRI.GEORGIE SIMON
SRI.PAUL ABRAHAM VAKKANAL, GP,
SRI.T.NAVEEN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.10.2019, ALONG WITH WP(C).25986/2019(W), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).25986/2019 & 26250/2019
4
JUDGMENT
These two writ petitions require to be heard together since the essential factual circumstances and attributes presented in them are connected with each other and the reliefs to be granted in one will certainly affect and modulate the reliefs to be granted in the other.
2. W.P(C) No.25986/2019 has been filed by an association of persons who call themselves "Diamond Action Council", Maneed and two of their members, alleging that the quarrying and stone crushing operations being carried on by the first respondent - "M/s.Diamond Aggregates" is causing depredation to nature and poses severe threat to human lives and safety in the area and therefore, prays that the Secretary of the fourth respondent - Maneed Grama Panchayat be directed to take immediate action to stop such activities. The petitioners submit that they have approached the Village Officer through Ext.P3; the Secretary of the Panchayat through Ext.P4; the District Collector, Ernakulam through Ext.P6 and the Pollution Control Board through Ext.P7 against the alleged illegal activities of M/s.Diamond Aggregates but allege that no action has been WP(C).25986/2019 & 26250/2019 5 taken on these representations until now. They, therefore, pray that the respondents be directed to immediately take action to close down the quarry and the stone crusher.
3. While so, it appears that the Maneed Grama Panchayat, presumably on account of the complaints preferred by the petitioners in W.P(C) No.25986/2019 and others, issued a stop memo to M/s.Diamond Aggregates asking them to stop their quarrying activities and the said communication has been challenged by them by filing W.P.(C) No.26250/2019. In the said writ petition, the stop memo issued by the Maneed Grama Panchayat has been produced as Ext.P9 and M/s.Diamond Aggregates say that this has been issued without competence and without any jurisdiction. They, therefore, pray that Ext.P9 in this writ petition be set aside.
4. I have heard Sri.Dinesh R.Shenoy, the learned counsel appearing for M/s.Diamond Aggregates - petitioners in W.P.(C) No.26250/2019; Sri.Georgie Simon, the learned counsel appearing for the petitioners in W.P(C) No.25986/2019; Sri.T.Naveen, the learned standing counsel appearing for the Kerala State Pollution Control Board in both cases; Sri.Sunu P.John, the learned standing counsel for Maneed Grama WP(C).25986/2019 & 26250/2019 6 Panchayat in both cases and the learned Government Pleader appearing for the official respondents in both cases.
5. From the afore narrated facts, it becomes evident that while the petitioners in W.P(C) No.25986/2019 (who will hereinafter be called the 'Action Council') allege that M/s.Diamond Aggregates are operating their quarry and stone crusher illegally; the latter asserts, with equal vehemence that these allegations are completely wrong, since they have all the necessary consents, permissions and licences - including the necessary Environmental Clearance - issued by the competent Authorities.
6. While the Action Council has foundationalised their allegations on certain incidents and events which they have mentioned in the writ petition; M/s.Diamond Aggregates submits that these events and incidents do not have any connection with their activities, since they are operating under strictly controlled atmosphere and as per the stipulations and mandate of the various consents that they have obtained.
7. In fact, Sri.Dinesh Shenoy, the learned counsel appearing for M/s.Diamond Aggregates submits that there is not even a whisper of an allegation by the Action Council in WP(C).25986/2019 & 26250/2019 7 their writ petition that his client has violated the terms of any of the consents, or that any complaints have been preferred with respect to such violations before any competent Authorities. He adds that his client is willing to submit to any enquiry or investigation that this Court may deem fit to order and that they will co-operate with any such enquiry, since they are confident that their activities are well within the parameters of law and guided implicitly by the terms and conditions of the permissions granted to them.
8. When I consider the pleadings available on record in W.P(C) No.25986/2019, the Action Council, in paragraph 3 thereof, has stated as under:
"It is submitted that the quarries are situated in a residential area and the operations are causing nuisance and hardships to the petitioners and other residence. The outburst of explosives and its sounds are intolerable to human brain. The explosions are done by using many electrical dynamites at a time. The petitioners' house walls were broken and damaged and the damages are so visible. Since explosions are made by using electrical dynamites, there are severe vibrations to the earth during the blasting, which resulted in causing cracks to the houses of the petitioners and other people in the locality.
In the explosion pieces of stones are fallen on the roofs of the petitioners' house and courtyards and in their properties. Operations of the quarries are against the provisions of Air (Prevention and Control of Pollution) Act and Noise Pollution Rules. Due to the blasting, water tank of the nearby government school was severely damaged and became useless. Blasting operations are conducted WP(C).25986/2019 & 26250/2019 8 by unskilled workers and is dangerous to people. The respondents have restarted blasting operations and crusher unit on 22.06.2018. Due to the negligence of the respondents, a lady worker in the crusher unit was died on 01.08.2017 and the Piravom police has registered a case as accidental death due to the undue influence of the respondents. As against the illegal acts of the respondents, petitioners and other local people filed complaints before the revenue authorities and they are not ready to consider the complaints. Petitioners have filed complaints before the RDO, Muvattupuzha, District Collector, Ernakulam Pollution Control Board, Mining and Geology Wing, and Maneed Grama Panchayat. But they are no taking any action. Hence the suit is filed. The petitioners have every right to live peacefully in the locality without any fear, threat to life to person and property. The nearly proximities of the quarry is surrounded by many scheduled caste colonies such as Rajeev Gandhi colony, Murukidamattom colony, Keezhethukuzhi colony in which Murukidamattom and Keezhethukuzhi colonies are settlement colonies and Rajeev Gandhi colony is a Panchayat colony have lots of backward schedule caste, tribes are living which have to protected or taken care (sic)."
9. Without meaning to say that any of these allegations are true or otherwise, it is clear that many of the assertions mentioned above are based on possibilities and apprehensions rather than specific instances, especially because the Action Council and the other petitioners seem to be under the impression that the conduct of the quarry and the stone crusher by M/s.Diamond Aggregates causes deleterious consequences to the locality and the nature.
WP(C).25986/2019 & 26250/2019 9
10. Though I do not intend to cast any aspersion on the bona fides of the Action Council, it is equally true that M/s.Diamond Aggregates are operating under specific licences, consents and permissions granted by the concerned Authorities and therefore, unless they are able to point out instances of violation or unless they are able to establish that such consents, permissions and licence have been obtained by M/s.Diamond Aggregates illegally or unlawfully, I am afraid that an omnibus prayer as sought for by the Action Council in W.P(C) No.25986/2019 - to shut down the quarry - is not possible or prudent for this Court, while it acts under Article 226 of the Constitution of India.
11. That apart, the allegations and counter allegations of the parties are essentially in the realm of factual disputations, into which this Court cannot delve into while exercising writ jurisdiction and I am of the firm view that the Action Council or any other person who has any legitimate grievance against M/s.Diamond Aggregates must approach the competent Authorities in terms of law, rather than seeking a blanket order as has been prayed for by them.
12. The learned Government Pleader, sensing my mind as WP(C).25986/2019 & 26250/2019 10 afore, submitted that M/s.Diamond Aggregates have all licences, consents and permissions as are required to operate their quarry and stone crusher and that the competent officials, including the Geologist will keep a close eye on their operations to ensure that public safety is maintained at all time and that disasters are averted on account of any such activity. He says that the concerned Geologist can always be approached by the Action Council or any other person, if they have any complaint and that in such event, it will be properly taken note of and necessary action taken without any authority.
13. Sri.T.Naveen, the learned standing counsel for the Pollution Control Board, also affirms that as of now, no complaints have been preferred before them by any person and that the Board's officers are always willing and ready to react to any such complaints in terms of law as is required.
14. Interestingly, Sri.Sunu P.John, the learned standing counsel for the Panchayat, submits that his client has taken a decision in principle to shut down all quarries within their territory and that they have, therefore, intimated the Action Council through their communication dated 03.10.2018, a copy of which has been produced on record as Ext.P5 in W.P(C) WP(C).25986/2019 & 26250/2019 11 No.25986/2019, to approach the Geologist appropriately so as to take necessary action against M/s.Diamond Aggregates. He says, therefore, that no further orders may be issued against his client, adding that Ext.P9 stop memo in W.P.(C) No.26250/2019 has been issued taking note of the complaints of the residents of the locality including the Action Council.
15. As I have already indicated above, when M/s.Diamond Aggregates are in possession of all licences and consents as are required in law, it would not be possible for this Court to intervene in their activities as long as it is done legally. However, the most pertinent question is whether they are doing so in compliance of law and whether the official Authorities are vigilant in their approach to ensure that no untoward incidents or violations of law are allowed to take place.
16. That said, it is also equally pertinent that the Action Council or any other have not yet approached either the Geologist or the other competent Authorities against M/s.Diamond Aggregates complaining violation of the conditions of the consents and permissions obtained by them and I am certain that they are at liberty to do so, if they feel it necessary, based on the factual scenario available in the area in WP(C).25986/2019 & 26250/2019 12 question.
17. In the afore circumstances and since I cannot find Ext.P9 in W.P.(C) No.26250/2019 to have been issued by the Panchayat after following due procedure and since it appears to be the product of unsubstantiated complaints made by certain persons, I order these writ petitions and set aside the said stop memo; however, leaving liberty to the Action Council and to the other petitioners in W.P(C) No.25986/2019 to approach the competent Authority, including the concerned Geologist, with any complaint that they may choose to make; in which event, all such Authorities will be obligated in law to act quickly and to ensure that M/s.Diamond Aggregates are acting within the confines of the conditions of the various consents, permissions and licence obtained by them and that their activities do not create any nuisance to the residents of the area.
18. I also leave liberty to the petitioners in W.P(C) No.25986/2019 to challenge any of the consents, licences and permissions obtained by M/s.Diamond Aggregates in terms of law before the competent Forum, including this Court; for which purpose, I leave all their contentions open and clarify WP(C).25986/2019 & 26250/2019 13 that none of my observations in this judgment will trammel them in doing so.
After I dictated this judgment, Sri.Dinesh Shenoy submitted that pending this lis, the Panchayat has again issued Ext.P10 stop memo and prays that the same be also set aside. It goes without saying that since I have set aside Ext.P9, the consequential Ext.P10 order in W.P.(C) No.26250/2019 will also stand quashed.
Sd/- DEVAN RAMACHANDRAN
stu JUDGE
WP(C).25986/2019 & 26250/2019
14
APPENDIX OF WP(C) 25986/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 REPRESENTATION BEFORE THE SECRETARY, GRAMA
PANCHAYATH, MANEED TO STOP THE ILLEGAL MINING BY THE RESPONDENTS ON 7/9/2018.
EXHIBIT P2 THE ACKNOWLEDGMENT RECEIPT FROM MANEED GRAMA PANCHAYATH DATED 07.09.2018.
EXHIBIT P3 MASS APPLICATION PREFERRED BEFORE MANEED VILLAGE OFFICER.
EXHIBIT P4 REPRESENTATION BEFORE THE MANEED GRAMA PANCHAYATH SECRETARY STATING THAT HIS HOUSE IS SUCCUMBING TO SERIOUS DAMAGES IN FURTHER AND WARRANTED THE SECRETARY TO CORRECT THE SAME WITHIN 30 DAYS DATED 03.09.2019.
EXHIBIT P5 REPLY OR DIRECTION BY SECRETARY, MANEED GRAMA PANCHAYATH ON 03.10.2018.
EXHIBIT P6 MASS APPLICATION PREFERRED BY ACTION COUNCIL ALONG WITH THE LOCAL ACTIVISTS BEFORE DISTRICT COLLECTOR ON 02.07.2018.
EXHIBIT P7 STATEMENT OF GRIEVANCES BY POLLUTION CONTROL BOARD, KERALA STATE.
EXHIBIT P8 COMPLAINT BEFORE THE CHAIRMAN, HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM BY THE 2ND PETITIONER.
EXHIBIT P9 FURTHER PROCEEDINGS FOR THE CONSIDERATION AND HEARING BEFORE HUMAN RIGHTS COMMISSION ON 02.05.2019.
EXHIBIT P10 REPORT SUBMITTED BY KERALA STATE POLLUTION BOARD BEFORE THE HUMAN RIGHTS COMMISSION DATED 23.11.2018.
EXHIBIT P11 REPORT SUBMITTED BY SECRETARY, GRAMA PANCHAYATH MANEED BEFORE KERALA HUMAN RIGHTS COMMISSION DATED 05.09.2018.
WP(C).25986/2019 & 26250/2019 15 EXHIBIT P12 THE ADVOCATE COMMISSION FOR LOCAL INVESTIGATION ISSUED BY ADV. KURUVILA K. K. DATED 14.9.2018 IN O.S.414/2018.
EXHIBIT P13 ORDER IN I.A.2460/18 OF HON'BLE MUNSIFF COURT, MUVATTUPUZHA.
EXHIBIT P14 TRUE COPY OF THE DIRECTION ISSUED BY SECRETARY
GRAMA PANCHAYATH DATED 28.09.2019
EXHIBIT P15 ORIGINAL OF NEWS PAPER REPORT IN MALAYALA
MANORAMA DATED 29.09.2019
RESPONDENTS' EXHIBITS : NIL
//TRUE COPY//
P.A TO JUDGE.
WP(C).25986/2019 & 26250/2019
16
APPENDIX OF WP(C) 26250/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF ENVIRONMENTAL CLEARANCE
NO.31/2018 DATED 12.04.2018 ISSUED BY THE DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY (DEIAA) ERNAKULAM.
EXHIBIT P2 TRUE PHOTOCOPY OF INTEGRATED CONSENT TO OPERATE-
RENEWAL ISSUED BY THE POLLUTION CONTROL BOARD DATED 17.04.2018.
EXHIBIT P3 TRUE PHOTOCOPY OF EXPLOSIVES LICENSE DATED 23.04.2018 ISSUED BY DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM.
EXHIBIT P4 TRUE PHOTOCOPY OF BLASTERS CERTIFICATE DATED 7.7.1987 ISSUED BY DIRECTOR OF MINES SAFETY, CHENNAI REGION, EXHIBIT P5 TRUE PHOTOCOPY OF QUARRYING PERMIT DATED 19.07.2019 BY THE ISSUING AUTHORITY, DEPT. OF MINING AND GEOLOGY.
EXHIBIT P6 TRUE PHOTOCOPY OF D AND O LICENSE DATED 6.07.2019 ISSUED BY THE FIRST RESPONDENT.
EXHIBIT P7 TRUE PHOTOCOPY OF THE ORDER DATED 15.11.2018 IN IA 2460/2018 IN OS 414/2018, MUNSIFF COURT, MUVATTUPUZHA.
EXHIBIT P8 TRUE PHOTOCOPY OF JUDGMENT DATED 5.7.2018 IN WP(C) NO.22056/2018, HIGH COURT OF KERALA. EXHIBIT P9 TRUE PHOTOCOPY OF STOP MEMO DATED 28.09.2019 ISSUED BY THE FIRST RESPONDENT.
EXHIBIT P10 TRUE COPY OF ORDER DATED 5/10/2019 (WRONGLY SHOWN AS 5/10/2018) ISSUED BY THE FIRST RESPONDENT.
RESPONDENTS' EXHIBITS : NIL
//TRUE COPY//
P.A TO JUDGE.
WP(C).25986/2019 & 26250/2019
17