Kerala High Court
Rajan K vs The Additional District ... on 16 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 16TH DAY OF SEPTEMBER 2021/25TH BHADRA, 1943
WP(C) NO. 25602 OF 2020
PETITIONER:
RAJAN K,
AGED 45 YEARS,
S/O KANNAN,
RESIDING AT KANDATHIL HOUSE,
PARAVOOR, PANAPUZHA P O,
KANNUR-670306.
BY ADVS.
SRI.ALEX.M.SCARIA
SRI.A.J.RIYAS
SMT.SARITHA THOMAS
KUM.PAVAN ROSE JOHNSON
SMT.APARNA ANIL
RESPONDENTS:
1 THE ADDITIONAL DISTRICT MAGISTRATE (ADM)
KASARAGOD, VIDYANAGAR,
COURT COMPLEX,
STADIUM ROAD, KASARAGOD,
KERALA-671121.
2 THE DISTRICT POLICE CHIEF,
PARAKATTA, VIDYANAGAR-ULIYATHADKA ROAD,
KUDLU, KASARAGOD-671123.
SMT.SURYA BINOY, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.25602/2020
:2 :
[CR]
JUDGMENT
~~~~~~~~~
Dated this the 16th day of September, 2021
In this writ petition, the petitioner challenges
Ext.P10 to the extent it denies Explosive Licence as prayed for
in Ext.P4, seeks to quash Ext.P15 and to direct the
respondents to consider and dispose of Ext.P4 application in
accordance with law.
2. The Mining and Geology Department issued Ext.P1
Letter of Intent to the petitioner for conducting quarrying
operations for extraction of granite stones from 0.7762
Hectares of land in Bheemanadi Village of Vellarikundy Taluk
in Kasaragod District. Ext.P2 Environmental Clearance also
has been issued to the petitioner. The Pollution Control Board
has issued Ext.P3 Consent to Operate.
WP(C) No.25602/2020
3. To operate quarry, the petitioner requires Explosive
Licence and hence submitted Ext.P4 application for NOC from
the District Magistrate under Rule 113 of the Explosive Rules,
2008. No public hearing is required for issuing NOC in view of
Rule 103(3)(b). The 1st respondent-Additional District
Magistrate sought reports from various authorities.
4. The Senior Geologist gave Ext.P6 Reply stating
that the grant of NOC for issuing Explosive licence does not
fall under his jurisdiction. The Regional Fire Officer gave
Ext.P7 Report stating that NOC can be issued to the petitioner
subject to conditions. The Secretary to Grama Panchayat sent
Ext.P8 report stating that they have received a revised site
plan and that one George Kuthukkallingal has filed complaint
requesting not to issue NOC. After considering relevant
aspects, the Sub Collector sent Ext.P9 letter to the District
Collector recommending grant of NOC.
5. The District Police Chief, however, issued Ext.P10
letter to the effect that the proposed quarry may endanger the
vehicles, travellers and pedestrians using the Cheemeni-
WP(C) No.25602/2020
Odakolly PWD Road. In the Site Inspection Report at
Ext.P12, the Additional District Magistrate, Kasaragod
observed that the District Police Chief has reported that the
quarry will be a threat to vehicles/passengers/pedestrians
using the PWD Road, that it may affect the environment
adversely and that there is Maoist-Terrorist threat in
Chittarikkal Police Station area.
6. The Additional District Magistrate finally passed
Ext.P15 order rejecting the application for NOC for Explosive
licence on the ground that the proposed quarry will affect an
Anganwadi and the Ambedkar Colony, that the Cheemeni-
Odakolly PWD Road is precariously near to the site and that
there is Maoist-Terrorists threat in the area.
7. The 1st respondent filed a statement dated
26.02.2021 and resisted the writ petition. The 1 st respondent
stated as follows:
"It is further submitted that site inspection was
conducted on 06.03.2020. During the site inspection it
is observed that objection petitioner's house is 200
meters away from the proposed site and house of one
Sri. Ravi is seen 100 meters away from the proposed
WP(C) No.25602/2020
quarry. Moreover one Anganwadi and Ambedkar
colony consisting 50 families are situated 250 meters
away from the proposed site. Cheemeni - Odakolli
PWD road is passing south to the proposed quarry.
Based on the observations made it the site inspection,
a letter was sent to the State Environment Impact
Assessment Authority, Thiruvananthapuram requesting
to submit a detailed report on environmental impact.
The State Environmental Impact Assessing Authority
reported that they have no jurisdiction for issuing
Environmental Clearance Certification. The District
Magistrate the Additional Magistrate are the authority
for issuing No Objection Certificate for Explosive
Licence. It was requested with the State Environment
Impact Assessment Authority, Thiruvananthapuram for
reporting environmental impact for considering the
application. NOC cannot be issued without proper
enquiry. In case the NOC is issued without properly
assessing the environment impact and the Law and
Order situations it will effect the life and safety of public
and the loss the Government may suffer might be far
bigger. The first and foremost consideration is for the
safety of the citizens both physical and environmental
which cannot be compromised on any ground.
It is submitted that all necessary procedure were
followed before issuing refusing order of refusing NOC
in this case. There is no unlawful action taken by the
1st respondent in the process. The Additional District
Magistrate has passed the order after careful
examination and elaborate consideration of the report
and connected record placed by the enquiry officers
and conducting site inspection applying in mind and
fully satisfied on it. The Additional District Magistrate
has acted in accordance with law. The Additional
District Magistrate strictly followed all the procedure
before denying NOC to the Explosive licence to the
petitioner. As the best interest of safety and security of
public is priority over issuing a NOC to the Explosive
license. The NOC refusing order issued is fair just and
in accordance with law."
WP(C) No.25602/2020
8. The learned counsel for the petitioner argued that it
is the duty of the Police to give protection from Maoist-
Terrorist threats to the citizens. Such presumed Maoist threat
cannot be a reason to deny NOC for Explosive Licence as the
petitioner has a fundamental right to carry on an avocation.
The reference to Police is intended to ascertain the
antecedents of the applicant/petitioner and not to report on
general law and order problems, which the Police is bound to
resolve themselves. The 1 st respondent has, in fact, made a
rowing enquiry with the intention of declining NOC. The public
road is not within the prohibited distance, contended the
learned counsel for the petitioner. There are other quarries
within the jurisdiction of the Chittarikkal Police Station. The
petitioner is therefore subjected to discrimination, argued the
counsel for the petitioner.
9. Heard the learned counsel for the petitioner and
the learned Senior Government Pleader representing the
respondents.
WP(C) No.25602/2020
10. The NOC for Explosive Licence has been declined
to the petitioner based on Ext.P10 report of the District Police
Chief, as per Ext.P15 order. The reasons for declining the
NOC as stated in Ext.P15 are:
a. The proposed site for the magazine will badly affect
the Anganwadi and Ambedkar Colony;
b. Cheemeni-Odakolly PWD road is precariously near
to the site and is passing through southern side of
the proposed quarry;
c. There is Maoist-Terrorist threat within the limits of
Chittarikkal Police Station;
d. Environmental issues in the locality and adjacent
places.
The Procedure to be observed for issue of No Objection
Certificate and for grant of licence, is contained in Rule 103 of
the Explosives Rules.
11. Rule 103 of the Explosive Rules, 2008 reads as
follows:
WP(C) No.25602/2020
"103. Procedure to be observed for issue of no
objection certificate and for grant of licence --
(1) The applicant desiring to obtain a licence from
the Chief Controller or Controller, shall apply to the District
Magistrate or the Director General of Mines Safety with
copies of the site plan showing the location of the premises
proposed to be licensed for issue of a certificate to the
effect that there is no objection to the applicant receiving
licence for the site proposed.
(2) The District Magistrate shall be the authority to
issue the certificate referred to in sub-rule (1) if the area of
the proposed site does not come under the Indian Mines
Act, 1952 (35 of 1952) and the Director General of Mines
Safety shall be such authority if the area of the proposed
site is for ANFO, Liquid Oxygen Explosives or SME and
comes under the Indian Mines Act, 1952.
(3) 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 authority to be carried out, if any,
and on any other matter as deemed necessary.
(a) For verification of the interest of public, the
District Magistrate shall forthwith cause a notice to be
published calling upon the public to submit objections, if
any, with reasons thereof, within a period of one month
from the date of publication of the notice and specifying
the date, time and place for consideration of objections by
him. Where the site of the proposed premises lies within
1.5 kilometers of the limits of the jurisdiction of any town
planning municipal authority or port or air port or satellite
or space craft launching station or similar establishments
of national importance, the District Magistrate shall cause
the notice to be served to such authority or establishment.
The day of hearing for consideration of objections shall be
fixed as early as possible, after the expiration of the period
of one month from the date of publication of notice. On
receipt of objection, the District Magistrate shall call the
person or persons raising objection and also the applicant,
giving not less than seven clear days before the day fixed
WP(C) No.25602/2020
for hearing for consideration of the objection. On the day
fixed for the hearing or any day to which such hearing may
be adjourned from time to time, the District Magistrate
shall hear any objection relating to the purpose of no
objection certificate and shall make such enquiry, as he
may deem necessary to assess justification of such
objection.
(b) If the quantity of explosives does not exceed one
hundred kilograms or in case of ANFO or Liquid Oxygen
Explosives or SME or transport of explosives in a road
van, the notice for public for objection as stated in clause
(a) shall not be necessary.
(4) The Director General of Mines Safety, on receipt
of application referred to in sub-rule (1), shall make
verification of lawful possession of the site, genuineness of
the purpose, any other verifications or enquiries as may be
specifically required by the licensing authority to be carried
out, if any, and on any other matter as deemed necessary.
(5) The authority referred to in sub-rule (3) or sub-
rule (4) shall complete the enquiry within a period of three
months and such authority shall after being satisfied, grant
no objection certificate along with site plan duly signed and
sealed by such authority.
(6) If the authority referred to in sub-rule (3) or sub-
rule (4) objects to the grant of the no objection certificate
on any of the grounds relating to the purpose of no
objection certificate, no licence shall be granted by the
licensing authority except with the sanction of the Central
Government.
(7) The authority referred to in sub-rule (3) or sub-
rule (4) shall grant the no objection certificate in the format
specified in Part 2 of Schedule V or convey his refusal for
granting no objection certificate with reasons thereof in
writing to the applicant as expeditiously as possible but not
later than six months from the date of receipt of application
from the applicant.
(8) No licence for manufacture of explosives other
than Liquid Oxygen Explosives shall be granted or
renewed to a person for his factory or mine not covered
under the Factories Act, 1948 (63 of 1948) or the Mines
Act,1952 (35 of 1957), as the case may be, unless he
executes a bond in Form CE-3 indemnifying person injured
or dependants of deceased workers in the event of an
accident in the factory or mine for an amount of Rs.10,000
WP(C) No.25602/2020
for factories manufacturing up to 15 kilograms of
gunpowder or fireworks at any one time, an amount of
Rs.25,000 for factories manufacturing up to 200 kilograms
of gunpowder or fire works at any one time and Rs.50,000
in every other case in respect of factory or mines."
Sub-rule (3) of Rule 103 deals with the mode of processing
the applications for NOC by District Magistrates. The District
Magistrate while processing application for NOC under Rule
103 has to verify:
1. Antecedents of the applicant.
2. Lawful possession of the Site.
3. Genuineness of the purpose.
4. Interest of public.
5. Any other verification/enquiry specifically
required by the Licensing Authority.
6. Any other matter as deemed necessary.
Sub-rule (3) further proceeds to provide that for verification of
the interest of the public, the District Magistrate shall forthwith
cause a notice to be published. Sub-rule (b) to Rule 103(3)
grants an exemption from such publication, if the quantity of
explosives does not exceed 100 Kg. or in case of ANFO or
WP(C) No.25602/2020
Liquid Oxygen Explosives or SME or transport of explosives in
a road van.
12. Examining the rejection of NOC as per Ext.P15, the
reason of "Environmental issues in the locality and adjacent
places" cannot be sustained because the District Environment
Impact Assessment Authority, which is an expert body on
environmental issues, has granted Environmental Clearance
to the project of the petitioner. When a competent expert
body like the District Environment Impact Assessment
Authority has cleared the project after assessing the adverse
environmental impact of the project, it will not be open to the
Additional District Magistrate to take a contrary view, unless
there are compelling reasons which render the Clearance
given by such Authority legally unacceptable.
13. However, all the other reasons given by the
Additional District Magistrate, namely, the proposed site for
the magazine will badly affect the Anganwadi and Ambedkar
Colony; the Cheemeni-Odakolly PWD Road is precariously
near to the site and is passing through southern side of the
WP(C) No.25602/2020
proposed quarry; and the Maoist-Terrorist threat within the
limits of Chittarikkal Police Station, are good and sufficient
reasons for the District Magistrate to decline NOC. The
Additional District Magistrate, after causing site inspection,
has found that the Cheemeni-Odakolly PWD Road is passing
precariously through the southern side of the site and a quarry
will be a grave threat to the Vehicles, Passengers and
Pedestrians passing through the road.
14. The presence of Maoist-Terrorists and the
perceived threat posed by terrorists within the Chittarikkal
Police station is also a very relevant factor in the context of
public interest. When an Anganwadi and Ambedkar Colony
are nearby, maintaining an Explosive Magazine in the area
would be inviting a disaster in a Maoist-prone area. Security
of individual is a basic human right and the protection of
individual is a fundamental obligation of the State in view of
Article 21 of the Constitution of India. The State has an
obligation to ensure the human rights of citizens by taking
positive measures to protect them against the threat of
WP(C) No.25602/2020
terrorist acts. Counter terrorism measures taken by the State
therefore should be viewed in the context of protection of
Human Rights and right to life guaranteed under Article 21.
15. The counsel for the petitioner would contend that
there are other quarries functioning in the area. It is not
known whether such quarries were sanctioned prior to or
subsequent to the Maoist-terrorist threat perception.
Therefore, this Court is not inclined to interfere with the
decision contained in Ext.P15 on that ground.
16. The counsel for the petitioner further contended
that the Additional District Magistrate ought not to have relied
on public complaints against the proposed quarry since public
hearing is not warranted under Rule 103(3)(b) when the
quantity of explosives does not exceed 100 Kg. or in case of
ANFO or Liquid Oxygen Explosives or SME or transport of
explosives in a road van. The fact that Rule 103(3)(b) of the
Explosive Rules, 2008 has dispensed with public notice and
hearing, would not oust the power of the authority to examine
public complaints received against the grant of NOC. For the
WP(C) No.25602/2020
said reason also, this Court do not find any illegality in the
action of the Additional Magistrate in adverting to such
complaints in EXt.P15 proceedings.
For all the aforementioned reasons, this Court
does not find any reason to interfere with Ext.P10 or Ext.P15
proceedings. The writ petition therefore fails and is hence
dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/15.09.2021
WP(C) No.25602/2020
APPENDIX OF WP(C) 25602/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER OF INTENT
DATED 15/02/2018 BEARING NO
DOK/4432/M/2017 FROM THE SENIOR
GEOLOGIST, KASARGOD UNDER THE KERALA
MINOR MINERAL CONCESSION RULES, 2016.
EXHIBIT P2 TRUE COPY OF THE ENVIRONMENTAL
CLEARANCE DATED 31.07.2018 BEARING
NO.A/4005/18/DEIAA.
EXHIBIT P3 TRUE COPY OF THE CONSENT ISSUED BY THE
POLLUTION CONTROL BOARD BEARING NO
PCK.KSRD/ICO/2596/2017 DATED
04.11.2013.
EXHIBIT P4 TRUE COPY OF THE APPLICATION FILED BY
THE PETITIONER DATED 07/03/2018 ISSUED
BY THE DISTRICT COLLECTOR, KASARGOD.
EXHIBIT P5 TRUE COPY OF THE REVISED LOCATION PLAN
SUBMITTED TO THE ADDITIONAL DISTRICT
MAGISTRATE.
EXHIBIT P6 TRUE COPY OF THE REPORT DATED
05/06/2018 BEARING NO. DOK/1460/M/2018
ISSUED BY THE SENIOR GEOLOGIST,
KASARGOD TO THE DISTRICT COLLECTOR,
KASARGOD.
EXHIBIT P7 TRUE COPY OF THE NOC BEARING NO E-
3657/2018 DATED 30.08.2018 ISSUED BY
THE REGIONAL FIRE OFFICER, KOZHIKODE.
EXHIBIT P8 TRUE COPY OF THE REPORT DATED 10/10/20
BEARING NO JC 3/1947/2018 SUBMITTED BY
THE SECRETARY OF THE WEST ELERI GRAMA
PANCHAYATH.
EXHIBIT P9 TRUE COPY OF THE REPORT DATED
06.03.2018 BEARING NO. E 8690/2018
ISSUED BY THE SUB COLLECTOR,
KANHANGAD.
EXHIBIT P10 TRUE COPY OF THE REPORT DATED
09.07.2018 BEARING NO.D4-20835/2018/G.
WP(C) No.25602/2020
EXHIBIT P11 TRUE COPY OF THE LETTER DATED
15/01/2010 BEARING NO. DOK/54/M/2020
ISSUED BY THE DISTRICT GEOLOGIST,
KASARGOD TO DISTRICT COLLECTOR,
KARARAGOD.
EXHIBIT P12 TRUE COPY OF THE PHYSICAL VERIFICATION
REPORT DATED 06.03.2020 AND SIGNED ON
09.03.2020 BEARING NO DCK
SGD/4254/2018/D5 ISSUED TO THE
ADDITIONAL DISTRICT MAGISTRATE.
EXHIBIT P13 TRUE COPY OF THE LETTER DATED
18/03/2020 BEARING NO.D5/4254/2018 BY
THE ADDITIONAL DISTRICT MAGISTRATE TO
THE SEIAA.
EXHIBIT P14 TRUE COPY OF THE LETTER DATED
07/09/2020 BEARING
NO.1815/A2/2020/SEIAA
EXHIBIT P15 TRUE COPY OF THE PROCEEDINGS DATED
23/09/2020 BEARING NO.
K.Dis/DCK/SGD/4252/2018-D5 WAS ISSUED
BY THE 1ST RESPONDENT REFUSING NOC TO
THE PETITIONER.
EXHIBIT P16 TRUE COPY OF THE EXACT LOCATION OF THE
SURVEY MAP SIGNED BY THE REVENUE
AUTHORITY AND APPROVED BY THE
COMPETENT AUTHORITY.
SR
