IMPORTANT POINTS
The Government of Kerala has framed the Kerala Minor Minerals Concession Rules, 2015 and Rule 14(1) specifically envisaging that a quarrying unit cannot be permitted to function if the quarrying site is situated within 50 metres from the public roads. The Parliament has envisaged that the power to frame rules to regulate the activities of mining of minor minerals is entrusted with the State Governments concerned and for the exercise of the said power, Government of Kerala has framed the abovesaid Kerala Minor Mineral Concession Rules, 2015 and therein the statute regulates the said activity of the quarrying and Rule 14(1) of the KMMC Rules provides that quarrying activity cannot be permitted to quarrying sites, which is within 50 metres distance from the public roads. When the primary law places such a restriction regarding minimum distance to be maintained as between the quarrying site and the public roads, the said statutory provision should be seen as the primary provision, which has to be relied on.

JUDGMENT :

The case set up in the above W.P.(C.) is as follows :

That the petitioner had been conducting quarrying operations in Sy.No.147/2A2 and 149/sB1 of Thazehkkad Village, Kozhikode Taluk, which falls within the erstwhile Mukkom Grama Panchayat since the year 2010 onwards. The quarry was originally established in the year 2005. the Mukkom Grama Panchayat has been renewing the license from time to time till 2016. In the year 2016, in the light of the settled law by this Hon'ble Court vide [2016(1) KLT 75], that Environmental clearance is necessary for conducting quarrying operations even on the basis of Permits, the Geologist stopped issuing permits to the petitioner. In the meanwhile, the Mukkom Grama Panchayat was constituted as a Municipality by November, 2016. In the meanwhile, the petitioner had obtained necessary Environmental Clearance, Letter of intent from the Mining & Geology Department of quarrying lease, Explosive License, Consent to operate from the Pollution Control Board etc. The petitioner had approached the 1st respondent for the grant of license. The application submitted by the petitioner for the period 2017-2018 and for the subsequent year were rejected earlier, which result in filing of W.P.(C.) No.4112/2018 and W.P.(C.) No.13134/2018, which were disposed of by this Court vide a common judgment viz Ext.P10. Vide Ext.P10, this Court directed the 1st respondent to consider the application afresh. However, the 1st respondent rejected the same for the very same reason for which the earlier applications were rejected (Ext.P11). The 1st respondent has referred to Rule 18 of Kerala Municipality (Licensing to Dangerous and Offensive Trades & Other Trades & Factories) rules, 2011 (hereinafter be referred to as Rules 2011 for brevity) for rejecting the application submitted by the petitioner for a license. However, Rule 18 does not apply to quarrying unit. Hence, the impugned order is absolutely illegal in so far as quarrying unit is concerned.

2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers.

1. “Issue a Declaration declaring that Rule 18 of the Rules, 2011 does not apply to granite quarries.

2. Issue a declaration declaring that Rule 18(1)(iv) and (v) is ultravires, to Article 19(1)(g) and 21 of the Constitution of India and unworkable and irrational.

3. Issue a writ of certiorari, or any other appropriate order, writ or direction quashing Ext.P11.

4. Issue a writ of Mandamus or any other appropriate order, writ or direction directing the respondents to grant license to the petitioner for conducting quarrying operations by allowing Ext.P8 application and

5. To grant such other reliefs as this Hon'ble Court may deem just and fit in the circumstances of the case.”

3. Heard Sri. Philp J.Vettickattu, learned counsel appearing for the petitioner, Sri.Suresh Kumar Kodoth, learned counsel appearing for the respondents-Mukkom Municipality and Sri.M.P.Sreekrishnan, learned standing counsel appearing for Kerala State Environment Impact Assessment Authority, additional respondent No.3.

4. The order under challenge in this case is Ext.P11 proceedings dated 25.7.2018 passed by the 1st respondent Secretary of the Mukkom Municipality, whereby the application submitted by the petitioner for grant of license to conduct the quarry has been rejected on the ground that the proposed site of the quarry is within the distance of 125 metres from the public road, viz, Mukkom-Thamarassery road and therefore, if license is granted to the quarry will amount to violation of the provisions contained in the Kerala Municipality (Licensing to Dangerous and Offensive Trades & Other Trades & Factories)Rules, 2011 (in short 'Municipal Rules, 2011'). It is pointed out that the said Municipal Rules, 2011 does not permit quarrying operations within 500 metres from the National Highways and State Highways.

5. From the pleadings and materials on record, it is seen that the p