Paul Das vs State Of Kerala
2022 Latest Caselaw 1331 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR.JUSTICE N.NAGARESH
         TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
                         WP(C) NO. 28539 OF 2021
PETITIONERS:


     1       PAUL DAS,AGED 73 YEARS
             S/O. LATE M.J. THOMAS, MULLOOR HOUSE, CHERUVALLY P.O.,
             KOTTAYAM-686544.
     2       ELIZABETH,AGED 39 YEARS
             W/O. BIJO BABU, PAYINGOTTU, POOVATHOLY P.O., MANIMALA,
             KOTTAYAM-686544.
             BY ADV K.C.VINCENT


RESPONDENTS:


     1       STATE OF KERALA,
             REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
             THIRUVANANTHAPURAM-695001.
     2       THE SECRETARY TO THE GOVERNMENT,
             DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA, SECRETARIAT,
             THIRUVANANTHAPURAM-695001.
     3       THE ADDITIONAL DISTRICT MAGISTRATE,
             COLLECTORATE, KOTTAYAM-686002.
     4       THE GEOLOGIST,
             OFFICE OF THE DISTRICT GEOLOGIST, KOTTAYAM-686002.
     5       THE VILLAGE OFFICER,
             VELLAVOOR VILLAGE, KOTTAYAM-686541.
     6       THE VELLAVOOR GRAMA PANCHAYATH,
             MANIMALA P.O., KOTTAYAM-686544.
     7       INDIAN OIL CORPORATION LIMITED,
             REPRESENTED BY ITS DEPUTY GENERAL MANAGER,
             THIRUVANANTHAPURAM DIVISIONAL OFFICE, GROUND FLOOR,
             PREMIER PARK, VALLAKKADAVU P.O., THIRUVANANTHAPURAM-
             695008.
     8       DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERRAKULAM
             SUB REGIONAL OFFICE, C-2, IIND FLOOR
             CGO COMPLEX, KAKKANAD, ERNAKULAM - 682030
 WP(C) NO. 28539 OF 2021             2




             IS IMPLEADED AS ADDITIONAL R8 AS PER ORDER DATED
             23.12.2021 IN I.A.NO.1 OF 2021 OF WPC 28539/2021

            BY ADVS.
            M.GOPIKRISHNAN NAMBIAR
            K.JOHN MATHAI
            JOSON MANAVALAN
            KURYAN THOMAS
            PAULOSE C. ABRAHAM, RAJA KANNAN

            SRI.APPU P S, GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 28539 OF 2021               3




                            JUDGMENT

Dated this the 1st day of February, 2022

The 2nd petitioner is the franchise of the 7th respondent-

India Oil Corporation Ltd., to start a Retail Fuel Outlet at

Mulloor, Manimala on Punaloor-Muvattupuzha State Highway,

in a property owned by the 1st petitioner.

2. As part of the establishment of Fuel Outlet, the 7th

respondent-IOCL sought No Objection Certificate (NOC) from

the District Authorities, under Rule 144 of the Petroleum Rules,

2002 (hereinafter referred to as the Rules, 2002). The District

Collector granted NOC under the Rules, 2002.

3. While so, the Village Officer issued Ext.P12 notice to

the effect that for removal of earth in the proposed site, granite

will also have to be removed for which explosives will have to be

used. Therefore, the 1st petitioner was directed to get

licence/permission from the Explosives Department. Aggrieved

by Ext.P12 notice of the Village Officer, the petitioners have filed

this writ petition.

4. The Deputy Chief Controller of Explosives,

Ernakulam, was impleaded as additional 8th respondent. The

additional 8th respondent took a stand that for removal of granite

in connection with construction of a building for Fuel Outlet, an

Explosives Licence or prior approval from the Controller of

Explosives is not required. It falls under the jurisdiction of the

District Magistrate to grant permission for removal of granite for

the purpose of construction of the Fuel Station.

5. The Geologist filed a statement in the writ petition.

According to the Geologist, as per the Kerala Minor Mineral

Concession Rules, 2015, quarrying permit is not required.

However, the Geologist stated that proposal of the petitioners

to quarry granite building stone by using explosives for

quarrying operation without securing permissions form the

Explosive Department is not proper. The land in question is

located near the State Highway and the use of explosives for

excavation of granite stone cannot be approved. The Geologist

stated that the petitioners have other option for excavation of

granite building stone, either using chemical blasting or cutting

of the hard rock. Therefore, the request of the petitioners to

use explosive for blasting of granite building stone cannot be

accepted.

6. I have heard the learned counsel for the petitioners,

the learned Government Pleader representing respondents 1

to 5, the learned counsel representing the 6 th respondent-

Grama Panchayat, the learned Standing Counsel representing

the 7th respondent and the learned Assistant Solicitor General

of India representing the additional 8th respondent.

7. Perusing the pleadings in the writ petition, it is

evident that the 2nd petitioner wants to establish a Fuel Retail

Outlet and has secured necessary licences and permits

including an NOC issued by the District Collector under Rule

144 of the Petroleum Rules, 2002. While the project was in

progress, the Village Officer has directed the 1 st petitioner not

to remove the granite stone from the site for the purpose of

construction without obtaining licence from the Explosives

Department. The additional 8th respondent, who is the Deputy

Chief Controller of Explosives, has categorically stated that for

removal of granite for the purpose of construction of the Fuel

Retail Outlet at the site in question, no prior licence or approval

from the Explosives Department is required.

8. According to the Geologist, since the proposed site

is adjacent to a Highway, removal of granite using explosives

cannot be permitted. The petitioners have to resort to other

methods for removing granite by chemical blasting or by cutting

the hard rock.

9. This Court is of the considered view that the

permission for removal of granite from the site is a matter to be

considered and decided by the 3 rd respondent-Additional

District Magistrate. It is for the 3rd respondent to grant or refuse

permission to use explosives for removal of granite. In the

circumstances, this Court is of the view that it will be proper, if

the petitioners are permitted to approach the 3 rd respondent for

permission to use explosives for removal of granite from the

site of the Fuel Station.

Accordingly, the writ petition is disposed of permitting the

petitioners to approach the 3 rd respondent seeking permission

for use of explosives for removal of granite from the site of the

proposed Fuel Station. If the petitioners make an application in

that regard, the 3rd respondent will take a decision thereon,

within a period of one month. It is made clear that Ext.P12

notice issued by the Village Officer will be subject to the

decision that is to be taken by the 3rd respondent.

sd/-

N.NAGARESH JUDGE hmh

APPENDIX OF WP(C) 28539/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE COMMUNICATION DATED 10/03/2019 ISSUED BY THE 7TH RESPONDENT. Exhibit P2 TRUE COPY OF THE TAX RECEIPT DATED 16/04/2021 RELATING TO RE-SURVEY NO.

326/8 HAVING AN EXTENT OF 43.39 ARES.

Exhibit P3 TRUE COPY OF THE PROCEEDINGS DATE 24/08/2021 ISSUED BY THE 3RD RESPONDENT. Exhibit P3(A) TRUE COPY OF NO OBJECTION CERTIFICATE DATED 26/08/2021 ISSUED BY THE 3RD RESPONDENT.

Exhibit P4 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 7/10/2020.

Exhibit P5 TRUE COPY OF THE PROCEEDINGS DATED 24/08/2020 ISSUED BY THE DISTRICT TOWN PLANNER.

Exhibit P6 TRUE COPY OF THE BUILDING PERMIT DATED 07/09/2021.

Exhibit P7 TRUE COPY OF THE CERTIFICATE ISSUED BY THE REGIONAL FIRE OFFICER, KOTTAYAM DATED 01/10/2019.

Exhibit P8 TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED BY THE ENVIRONMENT ENGINEER, DISTRICT OFFICE, KOTTAYAM.

Exhibit P9 TRUE COPY OF THE CHALLAN DATED 14/09/2021 SHOWING REMITTANCE OF ROYALTY.

Exhibit P10 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT GEOLOGIST DATED 26/11/2021.

Exhibit P11 TRUE COPY OF THE REPRESENTATION DATED 03/12/2021.

Exhibit P12 TRUE COPY OF THE NOTICE DATED 04/12/2021 ISSUED BY THE 5TH RESPONDENT.

RESPONDENT'S EXHIBITS             NIL