IMPORTANT POINTS
Non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Patanjali Sastri, J. observed:
"The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;"

JUDGMENT :

S.Manikumar, J.

Challenge in this Writ Appeal is to the judgment in W.P.(C) No.33938 of 2017 dated 28.11.2017, by which the writ court declined to quash Exhibit-P9 communication dated 05.08.2017 issued by the District Geologist, Department of Mining and Geology, Ernakulam, respondent No.1, who declined to grant permission and licence to establish a granite quarry.

2. Short facts leading to the appeal are that, appellant intended to operate a granite building stone quarry in the property having an extent of 1.8958 hectares in Sy.Nos.306/1A/185/10/12, 46, 47, 52, 78, 79, 80, 81, 82A of Kuttamangalam village, Kothamangalam taluk, Ernakulam district, after obtaining all the required licences and permits from the concerned authorities, including environmental clearance certificate and quarrying lease. He submitted an application dated 23.06.2017 to the District Geologist, Department of Mining and Geology, Ernakulam District, respondent No.1, who issued a communication dated 05.08.2017, by which the appellant/petitioner was informed that there is a water tank belonging to Kerala Water Authority, in short KWA, located within 110 meters from the site of appellant and, therefore, permission can be granted only on production of a No Objection Certificate from the KWA. Referring to Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003 and Rule 33 of the Kerala Minor Mineral Concession Rules, 2015, and on the facts and circumstances of the case, writ court by judgment dated 28.11.2017 dismissed W.P.(C) No.33938/2017 and sustained Exhibit-P9 communication.

3. Being aggrieved, instant writ appeal is filed on the grounds inter-alia that,-

(a) Writ court on a mistaken notion that prohibition under Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003 (hereinafter referred as Act for abbreviation) was applicable in case of water tank, dismissed the writ petition. Writ court failed to note that Section 40(2) of the Act applies only in cases of “any bridge, dam or any other work, structure or construction”. A Canal or a Water Tank does not, under any stretch of imagination, come within the ambit of a bridge, dam or check dam.

(b) Contention of the appellant that the writ court ought to have considered only the Kerala Minor Mineral Concession Rules, 2015, as regards the distance to be maintained from water tanks, reservoirs, canals etc., for mining and quarrying operations and not Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003, is not acceptable.

(c) Writ court ought to have considered that as per the Kerala Minor Mineral Concession Rules, 2015, only distance of 50 metres alone is required to be maintained from water tanks, reservoirs, canals etc. Admittedly, in the case on hand, water tank is situated more than 110 meters any from the boundary of the property proposed for quarry.

(d) Writ court dismissed the writ petition primarily on the ground of no objection certificate under Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003 was a pre-requisite for starting the quarrying unit in appellant’s property.

(e) Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003 states that “[2] Notwithstanding anything contained in any other law for the time being in force, no person shall, without the written permission of the Irrigation Officer, conduct mining or quarrying operation using explosives within a radius of one kilometer of any bridge, dam, check dam or any other work, structure or construction, owned, controlled or maintained by the government, a local authority or any other authority”.

(f) Thus, NOC is contemplated only when the activity is carried out within l KM of a bridge, dam, check dam or any other work, structure or construction. So the words ‘other work, structure or construction’ must essentially take its colour from the words ‘bridge, dam or check dam’ and by the principle of ejusdem generis, the words ‘other Work, structure or constructi