Plot Buyer Doesn't Need Development Permit to Build House: Kerala HC Division Bench
To read judgment, pls click: https://drive.google.com/file/d/1guH1rCfasnZCbPSRsnmOfWMwfq5gcs7T/view?usp=sharing (PDF file that opens in Google Drive)
Showing posts with label Kerala. Show all posts
Showing posts with label Kerala. Show all posts
Friday, April 01, 2022
Tuesday, June 08, 2021
[READ JUDGMENT] COVID: Homeo doctors can prescribe adjuvant medicines, Rules Kerala HC
Homeopathy doctors can prescribe adjuvant medicines for COVID-19: Kerala HC
To read judgment, pls click: https://drive.google.com/file/d/1B4HAwh_0hZIFMfj2_5sSQWtdeUNRQfYo/view?usp=sharing
Friday, December 04, 2020
[READ JUDGMENT FREE] Paddy Land Converted Before 2017: Regularization Not Required for Building Permit, Says HC
Paddy Land Converted Before 2017: Regularization Not Required for Building Permit, Says HC
To read judgment, click on the link: https://drive.google.com/file/d/13XO1Cc4hVcrfKH6k7ZRsyZndrfKJpb7x/view?usp=sharing
Tuesday, November 17, 2020
Read Judgment Free - Kerala Plane Crash Judgment by Kerala High Court - CBI Probe Denied
The Kerala High Court has dismissed as premature a petition seeking a probe by a former Supreme Court or high court judge into the crash landing of Air India Express flight 1344 at Kozhikode Calicut International Airport (CCJ) on August 7th this year
To read judgment, click the link - Opens in Google Drive - https://drive.google.com/file/d/1v3RUqmyO2FC0jS9-lRRN0y7Unukp6wTC/view?usp=sharing
Saturday, April 25, 2020
Sprinklr: Order Copy - Kerala High Court
https://drive.google.com/file/d/1CrqMGMlsJwr_cLVch9jUl_rBz6pYuaJL/view?usp=drivesdk
Friday, October 13, 2017
JUDGMENT: Politics Has No Place in Campus, Students Can Be Expelled, Says Kerala HC
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939
Con.Case(C).No. 1597 of 2017 (S) IN WP(C).28239/2017
------------------------------------------------------
ARISING FROM THE ORDER IN WP(C) 28239/2017 DATED 25-08-2017
PETITIONER(S)/PETITIONER:
------------------------
M.E.S.PONNANI COLLEGE
P.O.PONNANI SOUTH, PIN - 679 586,
REPRESENTED BY ITS PRINCIPAL, DR. ABBAS T.P.
BY ADVS.SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SRI.K.M.FAISAL (KALAMASSERY)
SRI.P.U.VINOD KUMAR
SRI.MITHUN BABY JOHN
SMT.AMRIN FATHIMA
RESPONDENT(S)/RESPONDENTS 3 TO 5 IN THE W.P.(C):
------------------------------------------------
1. DEBASHISH KUMAR BEHRA
AGED ABOUT 40 YEARS, FATHER'S NAME NOT
KNOWN TO THE PETITIONER,
THE SUPERINTENDENT OF POLICE, MALAPPURAM.
2. SUNNY CHACKO, AGED ABOUT 52 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
CIRCLE INSPECTOR OF POLICE, PONNAI,
MALAPPURAM DISTRICT, PIN - 679 577.
3. NOUFAL. K, AGED ABOUT 30 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
THE SUB INSPECTOR OF POLICE,
PONNANI POLICE STATION,
MALAPPURAM DISTRICT, PIN - 679 577.
ADDL.4. STUDENTS' FEDERATION OF INDIA,
M.E.S PONNANI COLLEGE UNIT,
REPRESENTED BY ITS SECRETARY JISHNU K,
V SEM. COMPUTER SCIENCE,
AGED 20 YEARS, S/O.ACHUTHAN K,
KANAKKATHARAYIL HOUSE, KOORADA,
THRIKKANAPURAM PO., MALAPPURAM - 676 505.
(IMPLEADED VIDE ORDER DATED 3.10.2017 IN COC.1597/17)
R1-3 BY GOVERNMENT PLEADER
RADDL.4 BY ADV. SRI.GILBERT GEORGE CORREYA
RADDL.4 BY ADV. SRI.NISHIL.P.S.
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR
ADMISSION ON 10-10-2017, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
'CR'
Navaniti Prasad Singh, CJ
&
Raja Vijayaraghavan V, J
--------------------------------------------------------------
Cont. Case. No. 1597 of 2017
---------------------------------------------------------------
Dated this the 10th day of October, 2017
O R D E R
Navaniti Prasad Singh, CJ
Pursuant to notice issued, the additional fourth respondent
is personally present in the Court. He is about 20 years of age.
He is a Computer Science student of the college concerned and
is the Secretary of the SFI Union of the College. The first thing
which crosses our mind is whether he goes to the college to
indulge in politics or to study, a question which he and his
parents must consider, for we hold that in academic institutions,
politics or political activities cannot be permitted.
2. The next, we would like to observe is that political
activities like Dharna, hunger strikes and other practices like
Sathyagrah have no place in a constitutional democracy, much
less in academic institutions. Anyone indulging in the said
activities in an educational institution would make himself liable
to be expelled and/or rusticated. Educational Institutions are
meant for imparting education and not politics. By their political
ambition the political parties cannot hold to ransom the
educational institution or the right of the civilized students to
COC.1597/17
2
receive education. We would only remind ourselves of what
Dr. B.R. Ambedkar had said while introducing the Constitution for
its adoption to the Constituent Assembly on 25.11.1949:
"If we wish to maintain democracy not merely in form, but
also in fact, what must we do? The first thing in my
judgment we must do is to hold fast to constitutional
methods of achieving our social and economic objectives. It
means we must abandon the bloody methods of revolution.
It means that we must abandon the method of civil
disobedience, non-cooperation and satyagraha. When there
was no way left for constitutional methods of achieving
economic and social objectives, there was a great deal of
justification for unconstitutional methods. But where
constitutional methods are open, there can be no
justification for these unconstitutional methods. These
methods are nothing but the Grammar of Anarchy and the
sooner they are abandoned, the better for us."
3. Learned counsel for the additional fourth respondent
submits that students are on Dharna and hunger strike outside
the college. Learned counsel for the college with reference to the
photographs annexed as A2 shows and draws our attention to the
shed erected along the boundary of the college with a banner of a
political party with huge loudspeakers. Firstly, it is unauthorised
encroachment on public properties which should forthwith be
removed by the police. We would like to mention that the Police
is there to control the law and order and not to permit such
pickets to come up on public property. The right of law abiding
citizens to traverse along the footpath or on the roads cannot be
obstructed by any political parties for whatever cause it may
have.
COC.1597/17
3
4. Our attention is then drawn to the photographs on the
next page, which clearly shows the students sitting in Dharna
inside the college. We would again refer to what Dr. B.R.
Ambedkar said and noted above. If they have a legitimate
grievance, avenues for ventilating them are legally available.
There is students council, academic council and there are courts
including this Court where appropriate grievances can be raised.
Dharnas have no place which would only vitiate the academic
atmosphere. We cannot countenance such a thing.
5. We accordingly order that if any student is found to be
resorting to and/or enforcing Dharna, strike or disruption of
academic atmosphere of any college, the Principal or the
authorities of the institution would have a right to rusticate them,
for these are no means to ventilate their grievance. If called
upon by the college authorities, the police would be under an
obligation to assist the authorities in maintaining peace and quiet
and orderly conduct of academics in the college premises. It is
also made clear that all pickets, tents, stalls, set up in and
around the college campus or in its immediate vicinity for
facilitating Dharna, hunger strike etc., be forthwith removed by
the police and the area be maintained free of such Dharnas,
hunger strike or any such obstructions.
COC.1597/17
4
6. The very fact that people resort to Dharna/hunger strike
shows that they themselves are aware that their demands are not
legal or legitimate and they use these coercive methods to
achieve what they could not have achieved legally, for if it was
otherwise they ought to have peacefully come to court or move
the statutory forums for redressal of their grievances.
7. We would warn the additional fourth respondent and
caution him to concentrate on his studies rather than indulge in
politics in the college premises if he is so inclined, or he may
withdraw from the college to continue his political carrier, if he so
chooses. But the two cannot go together. The choice is his.
List this matter on 16.10.2017 for report from the police
with regard to compliance of our directions. The additional fourth
respondent should be present in the court on that day.
Sd/-
Navaniti Prasad Singh,
Chief Justice
Sd/-
Raja Vijayaraghavan V,
Judge
sou.10/10.
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939
Con.Case(C).No. 1597 of 2017 (S) IN WP(C).28239/2017
------------------------------------------------------
ARISING FROM THE ORDER IN WP(C) 28239/2017 DATED 25-08-2017
PETITIONER(S)/PETITIONER:
------------------------
M.E.S.PONNANI COLLEGE
P.O.PONNANI SOUTH, PIN - 679 586,
REPRESENTED BY ITS PRINCIPAL, DR. ABBAS T.P.
BY ADVS.SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SRI.K.M.FAISAL (KALAMASSERY)
SRI.P.U.VINOD KUMAR
SRI.MITHUN BABY JOHN
SMT.AMRIN FATHIMA
RESPONDENT(S)/RESPONDENTS 3 TO 5 IN THE W.P.(C):
------------------------------------------------
1. DEBASHISH KUMAR BEHRA
AGED ABOUT 40 YEARS, FATHER'S NAME NOT
KNOWN TO THE PETITIONER,
THE SUPERINTENDENT OF POLICE, MALAPPURAM.
2. SUNNY CHACKO, AGED ABOUT 52 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
CIRCLE INSPECTOR OF POLICE, PONNAI,
MALAPPURAM DISTRICT, PIN - 679 577.
3. NOUFAL. K, AGED ABOUT 30 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
THE SUB INSPECTOR OF POLICE,
PONNANI POLICE STATION,
MALAPPURAM DISTRICT, PIN - 679 577.
ADDL.4. STUDENTS' FEDERATION OF INDIA,
M.E.S PONNANI COLLEGE UNIT,
REPRESENTED BY ITS SECRETARY JISHNU K,
V SEM. COMPUTER SCIENCE,
AGED 20 YEARS, S/O.ACHUTHAN K,
KANAKKATHARAYIL HOUSE, KOORADA,
THRIKKANAPURAM PO., MALAPPURAM - 676 505.
(IMPLEADED VIDE ORDER DATED 3.10.2017 IN COC.1597/17)
R1-3 BY GOVERNMENT PLEADER
RADDL.4 BY ADV. SRI.GILBERT GEORGE CORREYA
RADDL.4 BY ADV. SRI.NISHIL.P.S.
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR
ADMISSION ON 10-10-2017, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
'CR'
Navaniti Prasad Singh, CJ
&
Raja Vijayaraghavan V, J
--------------------------------------------------------------
Cont. Case. No. 1597 of 2017
---------------------------------------------------------------
Dated this the 10th day of October, 2017
O R D E R
Navaniti Prasad Singh, CJ
Pursuant to notice issued, the additional fourth respondent
is personally present in the Court. He is about 20 years of age.
He is a Computer Science student of the college concerned and
is the Secretary of the SFI Union of the College. The first thing
which crosses our mind is whether he goes to the college to
indulge in politics or to study, a question which he and his
parents must consider, for we hold that in academic institutions,
politics or political activities cannot be permitted.
2. The next, we would like to observe is that political
activities like Dharna, hunger strikes and other practices like
Sathyagrah have no place in a constitutional democracy, much
less in academic institutions. Anyone indulging in the said
activities in an educational institution would make himself liable
to be expelled and/or rusticated. Educational Institutions are
meant for imparting education and not politics. By their political
ambition the political parties cannot hold to ransom the
educational institution or the right of the civilized students to
COC.1597/17
2
receive education. We would only remind ourselves of what
Dr. B.R. Ambedkar had said while introducing the Constitution for
its adoption to the Constituent Assembly on 25.11.1949:
"If we wish to maintain democracy not merely in form, but
also in fact, what must we do? The first thing in my
judgment we must do is to hold fast to constitutional
methods of achieving our social and economic objectives. It
means we must abandon the bloody methods of revolution.
It means that we must abandon the method of civil
disobedience, non-cooperation and satyagraha. When there
was no way left for constitutional methods of achieving
economic and social objectives, there was a great deal of
justification for unconstitutional methods. But where
constitutional methods are open, there can be no
justification for these unconstitutional methods. These
methods are nothing but the Grammar of Anarchy and the
sooner they are abandoned, the better for us."
3. Learned counsel for the additional fourth respondent
submits that students are on Dharna and hunger strike outside
the college. Learned counsel for the college with reference to the
photographs annexed as A2 shows and draws our attention to the
shed erected along the boundary of the college with a banner of a
political party with huge loudspeakers. Firstly, it is unauthorised
encroachment on public properties which should forthwith be
removed by the police. We would like to mention that the Police
is there to control the law and order and not to permit such
pickets to come up on public property. The right of law abiding
citizens to traverse along the footpath or on the roads cannot be
obstructed by any political parties for whatever cause it may
have.
COC.1597/17
3
4. Our attention is then drawn to the photographs on the
next page, which clearly shows the students sitting in Dharna
inside the college. We would again refer to what Dr. B.R.
Ambedkar said and noted above. If they have a legitimate
grievance, avenues for ventilating them are legally available.
There is students council, academic council and there are courts
including this Court where appropriate grievances can be raised.
Dharnas have no place which would only vitiate the academic
atmosphere. We cannot countenance such a thing.
5. We accordingly order that if any student is found to be
resorting to and/or enforcing Dharna, strike or disruption of
academic atmosphere of any college, the Principal or the
authorities of the institution would have a right to rusticate them,
for these are no means to ventilate their grievance. If called
upon by the college authorities, the police would be under an
obligation to assist the authorities in maintaining peace and quiet
and orderly conduct of academics in the college premises. It is
also made clear that all pickets, tents, stalls, set up in and
around the college campus or in its immediate vicinity for
facilitating Dharna, hunger strike etc., be forthwith removed by
the police and the area be maintained free of such Dharnas,
hunger strike or any such obstructions.
COC.1597/17
4
6. The very fact that people resort to Dharna/hunger strike
shows that they themselves are aware that their demands are not
legal or legitimate and they use these coercive methods to
achieve what they could not have achieved legally, for if it was
otherwise they ought to have peacefully come to court or move
the statutory forums for redressal of their grievances.
7. We would warn the additional fourth respondent and
caution him to concentrate on his studies rather than indulge in
politics in the college premises if he is so inclined, or he may
withdraw from the college to continue his political carrier, if he so
chooses. But the two cannot go together. The choice is his.
List this matter on 16.10.2017 for report from the police
with regard to compliance of our directions. The additional fourth
respondent should be present in the court on that day.
Sd/-
Navaniti Prasad Singh,
Chief Justice
Sd/-
Raja Vijayaraghavan V,
Judge
sou.10/10.
Thursday, June 29, 2017
(READ JUDGMENT) Exemption for Building House in Paddy Land Only for Original Owner, Not Buyers of Land in Parcels: Kerala HC
| K.S.THANKACHAN Vs. THE DISTRICT COLLECTOR |
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939
WP(C).No. 3466 of 2017 (G)
---------------------------
PETITIONER(S):
-------------
K.S.THANKACHAN,
AGED 65 YEARS
S/O. SOURIYAR, JUDY NIVAS,
MITHRAKARI P.O., ALAPPUZHA - 689 595.
BY ADVS.SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
RESPONDENT(S):
--------------
1. THE DISTRICT COLLECTOR,
ALAPPUZHA - 688 001.
2. THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR &
CHAIRMAN OF THE DISTRICT LEVEL AUTHORIZED COMMITTEE,
ALAPPUZHA - 688 001.
3. THE VILLAGE OFFICER,
EDATHUA VILLAGE,
RAMANKARY P.O.,
ALAPPUZHA 689 595.
4. THE AGRICULTURAL OFFICER,
KRISHI BHAVAN,
RAMANKARY, ALAPPUZHA & CONVENER OF LOCAL LEVEL
MONITORING COMMITTEE OF EDATHUA VILLAGE,
OFFICE OF THE AGRICULTURAL OFFICER,
EDATHUA - 689 573, ALAPPUZHA DISTRICT.
5. THE PRINCIPAL AGRICULTURAL OFFICER,
PRINCIPAL AGRICULTURAL OFFICE, ALAPPUZHA - 688 001.
BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 06-06-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
msv/
WP(C).No. 3466 of 2017 (G)
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.52/2004 DATED 06-01-2014
OF AMBALAPUZHA S.R.O.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY,
RAMANKARY GRAMA PANCHAYATH DATED 18-03-2014.
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE
OFFICER, EDATHUA DATED 25-04-2014.
EXHIBIT P4 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER
BEFORE THE SUB COLLECTOR, ALAPUZHA DATED 18.11.2015.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 14.12.2015 OF THE
4TH RESPONDENT TO THE 2ND RESPONDENT WITH THE REPORT
OF THE LOCAL MONITORING COMMITTEE.
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE PRINCIPAL AGRICULTURAL
OFFICER, ALAPUZHA ISSUED ON BEHALF OF THE DISTRICT
LEVEL AUTHORIZED COMMITTEE DATED 11-11-2016.
RESPONDENT(S)' EXHIBITS
-----------------------
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
'C.R.'
K. VINOD CHANDRAN, J.
------------------------------------------
W.P.(C) No. 3466 of 2017 (G)
------------------------------------------
Dated: 06th June, 2017
J U D G M E N T
The petitioner is aggrieved with the fact that the
petitioner's application, before the Local Level
Monitoring Committee (LLMC) and the District Level
Authorised Committee (DLAC) for exemption for
constructing a homestead, was rejected.
2. The petitioner purchased the above land as
per Ext.P1 deed. The petitioner then applied for an
exemption under the Kerala Conservation of Paddy
Land and Wet Land Act, 2008 ('Paddy Land Act' for
short). The petitioner relied on the certificates at
Exts.P2 and P3, which evidence that the petitioner does
not have any land anywhere else in the locality for
W.P.(C) No. 3466/2017
-2-
constructing a residential house. The petitioner's
application before the LLMC, however, was not
considered favourably. The LLMC, by its minutes at
Ext.P5, found that the petitioner's family has a
residential house and, hence, refused to recommend the
proposal for exemption. The petitioner then approached
this Court with a writ petition. In the writ petition a
judgment was passed at Ext.P8.
3. The petitioner sought for a direction to the
DLAC to consider the recommendation. The DLAC, as
per sub section (8) of Section 9 of the Paddy Land Act,
could not have considered the matter without a
recommendation for exemption from the LLMC. In fact,
the specific condition under which the LLMC refused to
recommend exemption to the petitioner, was the fact of
his family owning another piece of land.
W.P.(C) No. 3466/2017
-3-
4. The petitioner's application was considered by
the DLAC and rejected, again, for reason of the
petitioner's son having a residence. There is an appeal
provided under sub section (6) of Section 9 of the Paddy
Land Act from Ext.P6 order to the District Collector,
which was not availed by the petitioner. The petitioner,
cites as a reason, the Contempt of Court case filed by
the petitioner, in which the order of the DLAC was
produced. The Contempt of Court case was closed on
25.01.2017. The petitioner again sought to challenge
the same before this Court by the above writ petition,
which was filed on 01.02.2017.
5. The petitioner relies on a decision of this
Court, reported in Joseph Thomas v. Agricultural
Officer, Alappuzha and others - 2015 (5) KHC 103.
A reading of the decision indicates that 'Family' as
W.P.(C) No. 3466/2017
-4-
referred under Section 9(8)(ii) of the Paddy Land Act
was found to be the family consisting of applicant, his
wife and children and it cannot be stretched to an
extent to include his father or grandfather. On facts the
present case can be distinguished. In the present case,
the father claims exemption and the rejection has been
on the ground that the family has another property. If
each member of the family is excluded according to the
person before Court, then, the statutory restriction
would be rendered ineffective and otiose.
6. It is also to be noticed that the purpose of
exemption is for building a residential house in a paddy
land held by the owner. The specific words employed in
Section 9 of the Paddy Land Act is '... considering the
applications for reclamation of paddy land for the
construction of residential building to the owner of
W.P.(C) No. 3466/2017
-5-
paddy land' (emphasis supplied). The intention is to
provide the cultivator/farmer/agriculturist with a
residence within his cultivable paddy land. Here, about
10 cents of paddy land was purchased by the petitioner
for the purpose of constructing a residential building,
that too, in 2014 after the implementation of the Kerala
Conservation of Paddyland and Wetland Act, 2008. It is
the said land which was sought to be exempted.
7. Such an exercise could lead to gross misuse,
since, then, large extents of paddy land could be cut up
into small properties and sold to different individuals,
who could then separately seek exemption. Different
members of a family could also claim exemption for
small tracts of land, out of a commonly held paddy land;
citing a desire to have an independent existence. That
would be defeating the very object of the enactment,
which has the preservation of paddy lands at its core.
W.P.(C) No. 3466/2017
-6-
This Court is not inclined to permit such exemption,
especially since both the LLMC and DLAC has declined
the claim and a contrary direction would go against the
clear statutory interdict.
The writ petition, hence, would stand dismissed.
No Costs.
Sd/-
K.VINOD CHANDRAN,
JUDGE
jjj 6/6/17
Tuesday, January 24, 2017
Speed Governor: Non-implementation of SC Order in Kerala Questioned at Kerala HC
IN THE HIGH COURT OF JUDICATURE, KERALA
Writ Petition.(Civil).No…3 9 9 4 6......of 2016
Major.M.G.C.Nair………………………………………….…….…………..Petitioner
Vs.
Union of India and others ........................................Respondent
S Y N O P S I S
Hon’ble High Court and Supreme Court of India issued directions for the installation of speed governors in public transport vehicles. The Central Motor Vehicles Rules, Rule 118 contemplated the installation of speed governors in heavy goods vehicle and passenger vehicles. Now the said rule is amended as per GSR 290(E), dated 15th April, 2015 making it mandatory for the installation of speed governors in all medium goods and medium passenger. Invoking the power given to the State Government for insisting speed governors on existing vehicles the Government of Kerala has issued Exhibit.P.3. But the Government of India exercising its powers under Sec. 110 (3) (a) has granted exemption from the said provisions till 31st January,2017 without any valid reasons. Therefore speed governors cannot be made mandatory. The result is that accidents are increasing causing deaths of many innocent. Every day in Kerala around eleven people die and 150 get injured in road accidents and if speed governor is installed at least some life could be saved.
Counsel for the Petitioner
P a g e | 2
IN THE HIGH COURT OF JUDICATURE, KERALA [SPECIAL ORIGINAL JURISDICTION] WRIT PETITION (CIVIL).No…3 9 9 4 6...of 2016 BETWEEN PETITIONER: Major M.G.C.Nair (Retired) , aged 80 years son of Late N.Govindan Nair, residing at Rajalakshmi Nivas, 129 BMRA, BalakrishnaMenon Road, Edapppally, Cochin-682024. AND RESPONDENTS: 1. Union of India, Ministry of Road Transport and High Ways, Represented by its Principal Secretary, Transport Bhawan,1, Parliament Street, New Delhi-110001 2. State of Kerala, represented by its Secretary, Motor Vehicles Department, Thiruvananthapuram- 3. The Transport Commissioner, Transport Commissionerate, 2nd Floor, Trans Towers, Vazhuthacaud, Thycaud P.O. Thiruvananthapuram-695014. All process to the petitioner be served on his counsel M/s. P.B.SAHASRANAMAN, T.S.HARIKUMAR, K.JAGADEESH, RAAJESH.S. SUBRAHMANIAN, Advocates, Sahasram Associates, Narayaneeyam Buildings, Chittoor Road, Cochin-682011. All process to the respondents be sent on their above addresses or on their advocates, if any engaged. WRIT PETITION FILED UNDER ARTICLE. 226 OF THE CONSTITUTION OF INDIA. Statement of Facts. The petitioner above named states as follows:-
1. The petitioner is a resident of Cochin Corporation. He has filed many public interest litigation before this Hon’ble Court and Hon’ble
P a g e | 3
Supreme Court of India so as to protect the life of the people from many of the evils. This Hon’ble Court had the occasion to deal with the issue of Bundhs, Hartals, Processions causing nuisance to the public, etc in the public interest litigation filed by this petitioner. It was year’s back he had supported the cause for compulsory singing of national anthem at schools. He has recently got himself impleaded in the writ petition filed to ban the burning of plastic and other waste which will adversely affect the health of the people and global warming and consequent climate change. Through this public interest litigation, this petitioner wanted to implement the installation of speed governors in all public transport vehicles wherein the public are being carried for hire and the speedy motor vehicles.
2. As per the road accident data compiled by the National Transportation Planning and Research Centre (NATPAC), Kerala has become the second most accident-prone State in the country after Maharashtra. Kerala stands third in India in terms of road accidents with 4,000 deaths and 40,000 injuries every year. The statistics kept by the Motor Vehicle Department of Kerala will show that 39014 motor vehicles accidents have taken place in the year 2015. The said statistics will show a growing trend in number of accidents. Last year 4196 persons have been killed and 43735 persons have been injured. Road accident was the third major cause of death and disability in Kerala. Every day in Kerala around eleven people die and 150 get injured in road accidents.
3. The main causes of the increasing death rates in the Road accident is the aggressive driving behavior of Heavy vehicle drivers especially Private Buses & Tipper Lorries and over speeding. It is to curtail over speeding Speed Governors (speed limiting device or speed limiting function) are directed to be installed in all public transport vehicles as per Rule 118 of the Central Motor Vehicles. {hereinafter referred
P a g e | 4
to as “the said Rule”) But the said Rule was not implemented. When the Private Bus Operators challenged the imposition of condition to install speed governor in the stage carriage permits issued it was challenged before this Hon’ble Court. This Hon’ble Court has affirmed the jurisdiction of the Regional Transport Authority in imposing such a condition of installation of speed governors in the permits, [Ernakulam District Private Bus Operators Association vs RTO. 1986 KLT 712.]. But the said Rule 118 of CMV Rules were not implemented for unknown reasons. Thus the necessity to have speed governors in such vehicles was affirmed by this Hon’ble Court as early as in 1986.
4. When the accidents increased this Hon’ble High Court in a public interest litigation directed the Government of Kerala to implement the said Rule 118 by insisting on the installation of speed governors in all public transport vehicles. (Radhakrishnan vs State of Kerala 2003 (1) KLT 383) The said decision was challenged by the State as well as by the operators before the Hon’ble Supreme Court of India. But the Hon’ble Supreme Court dismissed the same affirming the need to have speed governors in all such vehicles. [Rajasekharan vs Joseph. (2005)12 SCC 32]. Thus speed governors are a must for transport vehicles where the public are carried for hire. The Rule was at the relevant time made applicable to heavy goods and heavy passenger vehicles.
5. When the 2nd and 3rd respondents started implementing the insistence for speed governors the Tipper lorry operators have challenged the GO(P) No. 5/2006/Tran. dated 13-1-2006 issued by the 2nd respondent notifying that all Tipper Lorries shall be fitted, by the operators of such vehicles, with a speed governor (speed controlling device) conforming to the standard AIS:018, as amended from time to time, in such a manner that the Speed Governor can be sealed with an official seal of the State Transport Authority or the
P a g e | 5
Regional Transport Authority, in such a way that it cannot be removed or tampered with, without the seal being broken. The said notification has come into force on 13-1-2006. It was affirmed by this Hon’ble High Court. The said judgment was reported as Sukumaran E.S. vs State of Kerala, AIR 2006 Kerala 250.
6. There after certain stage carriage operators used to get permits from the nearby Karnataka State so as to circumvent the judgment of this Hon’ble Court. The Karnataka State Government was also lethargic in implementing the provisions of the said Rule. In public interest litigation the Karnataka High Court has directed to implement the insistence of speed governors in all public vehicles where people are carried for hire. The said judgment is reported as Y.N.Nanjappa vs State of Karnataka. AIR 2008 Kant 199.
7. The maxi cab operators approached the Hon’ble Karnataka High Court alleging that they shall be exempted from installing the speed governors. But the High Court refused to interfere with the said order which mandates the installation of speed governors. The said judgment is reported as Raghupathy Bhat and ors vs State of Karnataka. AIR 2008 Kar 203.
8. Thus it is the settled law that speed governors must be installed in all public transport vehicles where the people are carried for hire. Such a direction was issued in public interest so as to protect their life guaranteed under Art. 21 of the Constitution of India.
9. Now the said Rule 118 was amended as per GSR 290(E), dated 15th April, 2015 making it mandatory for the installation of speed governors in all transport vehicles which are notified by the Central Government under sub-section (4) of Section 41 of the Motor Vehicles Act, 1989. For medium goods and medium passenger vehicles it is mandatory from 1st October, 2015. For old vehicles the
P a g e | 6
time has been granted time up to 31st March, 2016. A true copy of notification issued by the 1st respondent ,GSR 290(E) , dated 15th April, 2015, published the Gazette of India, Extraordinary, No.233, dated 15th April, 2015, referred to above is produced herewith and marked as Exhibit.P.1.
10. Exhibit.P.1 notification stipulates that on or before 1st October, 2015 the State Government was bound to issue a notification to insist for the categories of transport vehicles registered prior to the 1st October, 2015, which are not already fitted with speed governors and are not covered under the first proviso to sub-rule 1 that such transport vehicles shall be equipped or fitted by the operators of those vehicles on or before 1st April, 2016 with a speed governor having a maximum pre-set speed of 80 kms/hour or such lower speed specified by the State from time to time. The 2nd respondent by G.O.(P) No. 59/2016/Tran, dated 27-10-2016 has notified that every transport vehicle notified by the 1st respondent under sub-section (4) of section 41 of the Motor Vehicles Act, 1988 , except two wheelers, three wheelers, quadricycles and four wheeled and used for carriage of passengers and their luggage, with seating capacity not exceeding eight passengers in addition to driver seat (M1 Category) and not exceeding 3500 kgs gross vehicle weight, fire tenders, ambulances, police vehicles, verified by a testing agency specified in rule 126 to have maximum rated speed of not more than 80 km/hr that are manufactured before 1st October, 2015 shall be equipped or fitted with a speed governor having a maximum pre-set speed of 80 kms per hour conforming to the prescribed standards. A true photostat copy of the said G.O. (P) No. 59/2016/Tran, dated 27-10-2016 issued by the 2nd respondent is produced herewith and marked as Exhibit.P.2.
11. Thus the 2nd respondent has started the implementation of the installation of speed governors in all public transport vehicles as
P a g e | 7
directed by this Hon’ble Court in its letter and spirit. Now in view of the Amendment made to the said Rule the 2nd respondent also issued a notification as required by the amendment for the same. But the 1st respondent has issued orders exempting the said vehicles notified by the State Government up to 31st January, 2017 from installation of speed governors. A true photostat copy of the said S.O. 3604(E), dated 1-12-2016 issued by the 1st respondent is produced herewith and marked as Exhibit.P.3.
12. It is not for the first time the 1st respondent is exempting the said vehicles from installation. By order dated 22nd April, 2016 the time limit was extended by 31st July, 2016. Again by order dated 1st August, 2016 the time was extended by 31st October, 2016. A true photostat copy of the said order No. 1472(E), dated 22-04-2016 issued by the 1st respondent is produced herewith and marked as Exhibit.P.4. A true photostat copy of the said order No. 2574(E), dated 01-08-2016 issued by the 1st respondent is produced herewith and marked as Exhibit.P.5.
13. It is respectfully submitted that now by granting exemption to the vehicles wherein the public are carried for hire the 1st respondent has forced the 2nd respondent in implementing the directions of this Hon’ble Court. The Hon’ble Supreme Court as well as this Hon’ble Court has issued directions to install speed governors in all public vehicles taking into consideration all aspects and it is rightly implemented by the Kerala Government. The 1st respondent has not taken into consideration the above judgments which have protect the life of the people while issuing Exhibits. P.3 to P.5. No proper reason has been given by the 1st respondent for granting exemption. It is the settled proposition of law that enactment of law and tolerating infringement is equivalent to not enacting the law at all. The non-implementation of Exhibit.P.1 amendment within the prescribed time has caused loss of life of many. Frequent road
P a g e | 8
accidents are common and the main reason is the non-implementation of speed controlling devices in transport vehicles. It is respectfully submitted that nowadays many of the two wheelers, which are having more speed are causing accidents and are a threat to the life of the people. Their speed is also to be controlled by suitable amendments to the said Rule.
14. The Central Government is playing with the life of the people of Kerala without any valid reason. The life of the petitioner who rides in motor cycle is in threat. Any time a speedy vehicle may hit him in violation of the said Rule 118. Therefore in these circumstances this petitioner has no other remedy than to invoke this Court's extraordinary jurisdiction under Article.226 of the Constitution of India on the following among other grounds:
G R O U N D S
A. Exhibits.P.3 to P.5 orders are issued without any valid reason. The said orders are arbitrary and contrary to the directions issued by this Hon’ble Court and Supreme Court of India.
B. The power to grant exemption under Sec. 110 (3) (a) of the Motor Vehicles Act , 1988 cannot be used to circumvent the directions issued by Courts. By way of executive orders the judgment rendered by the Hon’ble Court cannot be violated.
C. The time limit prescribed for the implementation of Rule 118 of the CMV Rules has lapsed on 1st April, 2016. But certain officers working under the 1st respondent are illegally helping the operators who do not want to abide law and who have lost the case.
D. The first respondent is personally bound to compensate the victims of motor accidents that may cause on account of the non-
P a g e | 9
implementation of Rule 118 of the CMV Rules. The said loss should be recovered from the officers who have issued Exhibits P.4 to P.6.
E. To impose suitable restrictions so as to control the speed of motor vehicles which are capable of driving at higher speed and recklessly.
For the reasons set out above and in the affidavit filed herewith the petitioner prays that the following:
R E L I E F S
i. To issue a writ, direction or order in the nature of certiorari calling for the records leading to Exhibit.P.3 and quash the same;
ii. To issue a writ, direction or order declaring that the power to grant exemption under Sec. 110 of the Motor Vehicles Act, 1988 cannot be used to restrain the installation of speed governors which is done as directed the Hon’ble High Court and Supreme Court;
iii. Such other relief’s which this Hon'ble Court deems fit and necessary in the circumstances of the case for the implementation of Rule 118 of the Central Motor Vehicle Rules, 1989 as amended on 15th April, 2015, Exhibit.P.2;
iv. To issue a writ, direction or order in the nature of mandamus commanding the respondents to take appropriate steps to curtail the high speed of motor vehicles which ply through the roads of Kerala state.
Writ Petition.(Civil).No…3 9 9 4 6......of 2016
Major.M.G.C.Nair………………………………………….…….…………..Petitioner
Vs.
Union of India and others ........................................Respondent
S Y N O P S I S
Hon’ble High Court and Supreme Court of India issued directions for the installation of speed governors in public transport vehicles. The Central Motor Vehicles Rules, Rule 118 contemplated the installation of speed governors in heavy goods vehicle and passenger vehicles. Now the said rule is amended as per GSR 290(E), dated 15th April, 2015 making it mandatory for the installation of speed governors in all medium goods and medium passenger. Invoking the power given to the State Government for insisting speed governors on existing vehicles the Government of Kerala has issued Exhibit.P.3. But the Government of India exercising its powers under Sec. 110 (3) (a) has granted exemption from the said provisions till 31st January,2017 without any valid reasons. Therefore speed governors cannot be made mandatory. The result is that accidents are increasing causing deaths of many innocent. Every day in Kerala around eleven people die and 150 get injured in road accidents and if speed governor is installed at least some life could be saved.
Counsel for the Petitioner
P a g e | 2
IN THE HIGH COURT OF JUDICATURE, KERALA [SPECIAL ORIGINAL JURISDICTION] WRIT PETITION (CIVIL).No…3 9 9 4 6...of 2016 BETWEEN PETITIONER: Major M.G.C.Nair (Retired) , aged 80 years son of Late N.Govindan Nair, residing at Rajalakshmi Nivas, 129 BMRA, BalakrishnaMenon Road, Edapppally, Cochin-682024. AND RESPONDENTS: 1. Union of India, Ministry of Road Transport and High Ways, Represented by its Principal Secretary, Transport Bhawan,1, Parliament Street, New Delhi-110001 2. State of Kerala, represented by its Secretary, Motor Vehicles Department, Thiruvananthapuram- 3. The Transport Commissioner, Transport Commissionerate, 2nd Floor, Trans Towers, Vazhuthacaud, Thycaud P.O. Thiruvananthapuram-695014. All process to the petitioner be served on his counsel M/s. P.B.SAHASRANAMAN, T.S.HARIKUMAR, K.JAGADEESH, RAAJESH.S. SUBRAHMANIAN, Advocates, Sahasram Associates, Narayaneeyam Buildings, Chittoor Road, Cochin-682011. All process to the respondents be sent on their above addresses or on their advocates, if any engaged. WRIT PETITION FILED UNDER ARTICLE. 226 OF THE CONSTITUTION OF INDIA. Statement of Facts. The petitioner above named states as follows:-
1. The petitioner is a resident of Cochin Corporation. He has filed many public interest litigation before this Hon’ble Court and Hon’ble
P a g e | 3
Supreme Court of India so as to protect the life of the people from many of the evils. This Hon’ble Court had the occasion to deal with the issue of Bundhs, Hartals, Processions causing nuisance to the public, etc in the public interest litigation filed by this petitioner. It was year’s back he had supported the cause for compulsory singing of national anthem at schools. He has recently got himself impleaded in the writ petition filed to ban the burning of plastic and other waste which will adversely affect the health of the people and global warming and consequent climate change. Through this public interest litigation, this petitioner wanted to implement the installation of speed governors in all public transport vehicles wherein the public are being carried for hire and the speedy motor vehicles.
2. As per the road accident data compiled by the National Transportation Planning and Research Centre (NATPAC), Kerala has become the second most accident-prone State in the country after Maharashtra. Kerala stands third in India in terms of road accidents with 4,000 deaths and 40,000 injuries every year. The statistics kept by the Motor Vehicle Department of Kerala will show that 39014 motor vehicles accidents have taken place in the year 2015. The said statistics will show a growing trend in number of accidents. Last year 4196 persons have been killed and 43735 persons have been injured. Road accident was the third major cause of death and disability in Kerala. Every day in Kerala around eleven people die and 150 get injured in road accidents.
3. The main causes of the increasing death rates in the Road accident is the aggressive driving behavior of Heavy vehicle drivers especially Private Buses & Tipper Lorries and over speeding. It is to curtail over speeding Speed Governors (speed limiting device or speed limiting function) are directed to be installed in all public transport vehicles as per Rule 118 of the Central Motor Vehicles. {hereinafter referred
P a g e | 4
to as “the said Rule”) But the said Rule was not implemented. When the Private Bus Operators challenged the imposition of condition to install speed governor in the stage carriage permits issued it was challenged before this Hon’ble Court. This Hon’ble Court has affirmed the jurisdiction of the Regional Transport Authority in imposing such a condition of installation of speed governors in the permits, [Ernakulam District Private Bus Operators Association vs RTO. 1986 KLT 712.]. But the said Rule 118 of CMV Rules were not implemented for unknown reasons. Thus the necessity to have speed governors in such vehicles was affirmed by this Hon’ble Court as early as in 1986.
4. When the accidents increased this Hon’ble High Court in a public interest litigation directed the Government of Kerala to implement the said Rule 118 by insisting on the installation of speed governors in all public transport vehicles. (Radhakrishnan vs State of Kerala 2003 (1) KLT 383) The said decision was challenged by the State as well as by the operators before the Hon’ble Supreme Court of India. But the Hon’ble Supreme Court dismissed the same affirming the need to have speed governors in all such vehicles. [Rajasekharan vs Joseph. (2005)12 SCC 32]. Thus speed governors are a must for transport vehicles where the public are carried for hire. The Rule was at the relevant time made applicable to heavy goods and heavy passenger vehicles.
5. When the 2nd and 3rd respondents started implementing the insistence for speed governors the Tipper lorry operators have challenged the GO(P) No. 5/2006/Tran. dated 13-1-2006 issued by the 2nd respondent notifying that all Tipper Lorries shall be fitted, by the operators of such vehicles, with a speed governor (speed controlling device) conforming to the standard AIS:018, as amended from time to time, in such a manner that the Speed Governor can be sealed with an official seal of the State Transport Authority or the
P a g e | 5
Regional Transport Authority, in such a way that it cannot be removed or tampered with, without the seal being broken. The said notification has come into force on 13-1-2006. It was affirmed by this Hon’ble High Court. The said judgment was reported as Sukumaran E.S. vs State of Kerala, AIR 2006 Kerala 250.
6. There after certain stage carriage operators used to get permits from the nearby Karnataka State so as to circumvent the judgment of this Hon’ble Court. The Karnataka State Government was also lethargic in implementing the provisions of the said Rule. In public interest litigation the Karnataka High Court has directed to implement the insistence of speed governors in all public vehicles where people are carried for hire. The said judgment is reported as Y.N.Nanjappa vs State of Karnataka. AIR 2008 Kant 199.
7. The maxi cab operators approached the Hon’ble Karnataka High Court alleging that they shall be exempted from installing the speed governors. But the High Court refused to interfere with the said order which mandates the installation of speed governors. The said judgment is reported as Raghupathy Bhat and ors vs State of Karnataka. AIR 2008 Kar 203.
8. Thus it is the settled law that speed governors must be installed in all public transport vehicles where the people are carried for hire. Such a direction was issued in public interest so as to protect their life guaranteed under Art. 21 of the Constitution of India.
9. Now the said Rule 118 was amended as per GSR 290(E), dated 15th April, 2015 making it mandatory for the installation of speed governors in all transport vehicles which are notified by the Central Government under sub-section (4) of Section 41 of the Motor Vehicles Act, 1989. For medium goods and medium passenger vehicles it is mandatory from 1st October, 2015. For old vehicles the
P a g e | 6
time has been granted time up to 31st March, 2016. A true copy of notification issued by the 1st respondent ,GSR 290(E) , dated 15th April, 2015, published the Gazette of India, Extraordinary, No.233, dated 15th April, 2015, referred to above is produced herewith and marked as Exhibit.P.1.
10. Exhibit.P.1 notification stipulates that on or before 1st October, 2015 the State Government was bound to issue a notification to insist for the categories of transport vehicles registered prior to the 1st October, 2015, which are not already fitted with speed governors and are not covered under the first proviso to sub-rule 1 that such transport vehicles shall be equipped or fitted by the operators of those vehicles on or before 1st April, 2016 with a speed governor having a maximum pre-set speed of 80 kms/hour or such lower speed specified by the State from time to time. The 2nd respondent by G.O.(P) No. 59/2016/Tran, dated 27-10-2016 has notified that every transport vehicle notified by the 1st respondent under sub-section (4) of section 41 of the Motor Vehicles Act, 1988 , except two wheelers, three wheelers, quadricycles and four wheeled and used for carriage of passengers and their luggage, with seating capacity not exceeding eight passengers in addition to driver seat (M1 Category) and not exceeding 3500 kgs gross vehicle weight, fire tenders, ambulances, police vehicles, verified by a testing agency specified in rule 126 to have maximum rated speed of not more than 80 km/hr that are manufactured before 1st October, 2015 shall be equipped or fitted with a speed governor having a maximum pre-set speed of 80 kms per hour conforming to the prescribed standards. A true photostat copy of the said G.O. (P) No. 59/2016/Tran, dated 27-10-2016 issued by the 2nd respondent is produced herewith and marked as Exhibit.P.2.
11. Thus the 2nd respondent has started the implementation of the installation of speed governors in all public transport vehicles as
P a g e | 7
directed by this Hon’ble Court in its letter and spirit. Now in view of the Amendment made to the said Rule the 2nd respondent also issued a notification as required by the amendment for the same. But the 1st respondent has issued orders exempting the said vehicles notified by the State Government up to 31st January, 2017 from installation of speed governors. A true photostat copy of the said S.O. 3604(E), dated 1-12-2016 issued by the 1st respondent is produced herewith and marked as Exhibit.P.3.
12. It is not for the first time the 1st respondent is exempting the said vehicles from installation. By order dated 22nd April, 2016 the time limit was extended by 31st July, 2016. Again by order dated 1st August, 2016 the time was extended by 31st October, 2016. A true photostat copy of the said order No. 1472(E), dated 22-04-2016 issued by the 1st respondent is produced herewith and marked as Exhibit.P.4. A true photostat copy of the said order No. 2574(E), dated 01-08-2016 issued by the 1st respondent is produced herewith and marked as Exhibit.P.5.
13. It is respectfully submitted that now by granting exemption to the vehicles wherein the public are carried for hire the 1st respondent has forced the 2nd respondent in implementing the directions of this Hon’ble Court. The Hon’ble Supreme Court as well as this Hon’ble Court has issued directions to install speed governors in all public vehicles taking into consideration all aspects and it is rightly implemented by the Kerala Government. The 1st respondent has not taken into consideration the above judgments which have protect the life of the people while issuing Exhibits. P.3 to P.5. No proper reason has been given by the 1st respondent for granting exemption. It is the settled proposition of law that enactment of law and tolerating infringement is equivalent to not enacting the law at all. The non-implementation of Exhibit.P.1 amendment within the prescribed time has caused loss of life of many. Frequent road
P a g e | 8
accidents are common and the main reason is the non-implementation of speed controlling devices in transport vehicles. It is respectfully submitted that nowadays many of the two wheelers, which are having more speed are causing accidents and are a threat to the life of the people. Their speed is also to be controlled by suitable amendments to the said Rule.
14. The Central Government is playing with the life of the people of Kerala without any valid reason. The life of the petitioner who rides in motor cycle is in threat. Any time a speedy vehicle may hit him in violation of the said Rule 118. Therefore in these circumstances this petitioner has no other remedy than to invoke this Court's extraordinary jurisdiction under Article.226 of the Constitution of India on the following among other grounds:
G R O U N D S
A. Exhibits.P.3 to P.5 orders are issued without any valid reason. The said orders are arbitrary and contrary to the directions issued by this Hon’ble Court and Supreme Court of India.
B. The power to grant exemption under Sec. 110 (3) (a) of the Motor Vehicles Act , 1988 cannot be used to circumvent the directions issued by Courts. By way of executive orders the judgment rendered by the Hon’ble Court cannot be violated.
C. The time limit prescribed for the implementation of Rule 118 of the CMV Rules has lapsed on 1st April, 2016. But certain officers working under the 1st respondent are illegally helping the operators who do not want to abide law and who have lost the case.
D. The first respondent is personally bound to compensate the victims of motor accidents that may cause on account of the non-
P a g e | 9
implementation of Rule 118 of the CMV Rules. The said loss should be recovered from the officers who have issued Exhibits P.4 to P.6.
E. To impose suitable restrictions so as to control the speed of motor vehicles which are capable of driving at higher speed and recklessly.
For the reasons set out above and in the affidavit filed herewith the petitioner prays that the following:
R E L I E F S
i. To issue a writ, direction or order in the nature of certiorari calling for the records leading to Exhibit.P.3 and quash the same;
ii. To issue a writ, direction or order declaring that the power to grant exemption under Sec. 110 of the Motor Vehicles Act, 1988 cannot be used to restrain the installation of speed governors which is done as directed the Hon’ble High Court and Supreme Court;
iii. Such other relief’s which this Hon'ble Court deems fit and necessary in the circumstances of the case for the implementation of Rule 118 of the Central Motor Vehicle Rules, 1989 as amended on 15th April, 2015, Exhibit.P.2;
iv. To issue a writ, direction or order in the nature of mandamus commanding the respondents to take appropriate steps to curtail the high speed of motor vehicles which ply through the roads of Kerala state.
Saturday, January 21, 2017
[Read Judgment] Post Graduate Diploma in Management (PGDM) and Post Graduate Diploma in Business Management (PGDBM) Are One and Same: Kerala HC
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 19382017
WA.No. 46 of 2017 () IN WP(C).28538/2016
------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 28538/2016 DATED 24-11-2016
----------
APPELLANT(S)/1ST RESPONDENT IN THE WPC :-
--------------------------------------
THE ASSISTANT GENERAL MANAGER, CANARA BANK,
RECRUITMENT CELL, HUMAN RESOURCE WING,
HEAD OFFICE, JEEWAN PRAKASH BUILDING,
113/1 JC ROAD, BANGALORE - 560 002.
BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH MENON
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
RESPONDENT(S)/PETITIONER, 2ND AND 3RD RESPONDETNS, ADDL.4TH
RESPONDENTS IN THE WPC :-
------------------------------------------------------------
1. HARIDEV.S, S/O.SAHADEVAN, VALIYAKULANGARA,
CMC - 20, CHERTHALA, POST CHERTHALA,
PIN : 688 524, ALAPPUZHA DISTRICT.
2. CHAIRMAN,
INSTITUTE OF BANKING PERSONNEL SELECTION,
IBPS HOUSE, NEAR THAKUR POLYTECHNIC, 90 FEET,
DP ROAD, OFF. WESTERN EXPRESS HIGHWAY, P.B.NO.8587,
KANDIVALI (E), MUMBAI - 400 101, INDIA.
3. UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF FINANCE, NORTH BLOCK,
CENTRAL SECRETARIAT, NEW DELHI - 110 011.
4. RAJAGIRI BUSINESS SCHOOL
RAJAGIRIVALLEY P.O., KAKKANAD, KOCHI.
BY SRI.T.ASAFALI
BY SRI.K.R.RAJKUMAR, ADDL.CGSC
BY SRI.TONY GEORGE KANNANTHANAM
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11-01-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MOHAN M. SHANTANAGOUDAR, CJ
&
ANIL K. NARENDRAN, J.
---------------------------------------------------
W.A. No.46 of 2017
----------------------------------
Dated this the 11th day of January 2017
J U D G M E N T
Mohan M. Shantanagoudar, CJ
The judgment dated 24.11.2016 passed in W.P.(C) No.28538
of 2016 is the subject matter of this appeal.
The only question to be decided in this appeal is as to
whether the Post Graduate Diploma in Business Management
(PGDBM) is equivalent to Post Graduate Diploma in Management
(PGDM).
2. The 2nd respondent published Ext.P6 notification for the
online examination for the Common Recruitment Process for
Recruitment of Specialist Officers in Participating Organisations
for various posts including I.T.Officer, Agricultural Field Officer,
Rajbhasha Adhikari, Law Officer, Marketing Officer etc. The
Participating Organisations are nationalised Banks, including
Canara Bank, Syndicate Bank, Bank of Baroda, Bank of India,
Andhra Bank etc. The qualifications prescribed for the post of
Marketing Officer (Scale-I) is Graduation plus Full Time 2 years
PGDBA/PGDBM with specialisation in Marketing, etc.
W.A. No.46 of 2017
-: 2 :-
The 1st respondent has obtained PGDM from the 4th
respondent, Rajagiri Business School and the same is approved by
the All India Council for Technical Education (AICTE), Government
of India, as is clear from Ext.P2 certificate produced in the writ
petition. Armed with the said certificate, he has applied for the
post of Marketing Officer in Canara Bank. Though his candidature
was provisionally allowed for the post of Marketing Officer (Scale-
I) in Canara Bank, the same came to be cancelled subsequently as
per Ext.P10 dated 29.6.2016. The said order was questioned by
the 1st respondent before this Court in the aforesaid writ petition,
which was allowed by the impugned judgment.
3. Learned counsel appearing for the appellant Bank
submits that 'PGDBM' is different from 'PGDM' obtained by the 1st
respondent and therefore, since there is no declaration of
equivalence between the two Post Graduate Degrees, it is not open
for the 1st respondent to apply for the said post. Hence, the
Canara Bank is justified in passing Ext.P10 order cancelling the
provisional allotment.
4. The said submission is opposed by the learned counsel
for the 1st respondent, who draws attention of this Court to
Ext.P16 issued by the AICTE. He argued in support of the
W.A. No.46 of 2017
-: 3 :-
judgment of the learned Single Judge. It is also submitted that
since the other Banks, which are also parties to the common
recruitment process, including Syndicate Bank, Bank of Baroda,
etc. have accepted 'PGDM' degree for the concerned post, there is
no reason as to why the Canara Bank made excuses in not
accepting the candidates having 'PGDM' qualification.
Ext.P16 resolves the dispute fully. Ext.P16 dated
10.8.2016 is a certificate issued by the AICTE, which clarifies that
the 'PGDBM' approved by the AICTE till 2006-'07 was renamed as
'PGDM' in 2007-'08, on the basis of recommendations of All India
Board of Management Studies. Thus, it is clear that the very
course, 'PGDBM' is renamed as 'PGDM' in 2007-'08. Since the 1st
respondent has obtained the said degree after 2008, the
nomenclature of his degree is 'PGDM', that is; Post Graduate
Degree in Management.
5. Since Ext.P16 makes it amply clear that 'PGDBM' is
nothing but 'PGDM' from 2007 onwards, the learned Single Judge
is justified in setting aside Ext.P10 order passed by the appellant
Bank, cancelling the allotment given to the 1st respondent.
W.A. No.46 of 2017
-: 4 :-
Hence, no interference is called for. The appeal fails
and the same stands dismissed. The appellant Bank shall comply
with the judgment of the learned Single Judge within one month
from the date of receipt of a copy of this judgment.
Sd/-
MOHAN M. SHANTANAGOUDAR
CHIEF JUSTICE
Sd/-
ANIL K. NARENDRAN
JUDGE
//TRUE COPY//
P.A. TO JUDGE
Jvt/11.1.2017
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 19382017
WA.No. 46 of 2017 () IN WP(C).28538/2016
------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 28538/2016 DATED 24-11-2016
----------
APPELLANT(S)/1ST RESPONDENT IN THE WPC :-
--------------------------------------
THE ASSISTANT GENERAL MANAGER, CANARA BANK,
RECRUITMENT CELL, HUMAN RESOURCE WING,
HEAD OFFICE, JEEWAN PRAKASH BUILDING,
113/1 JC ROAD, BANGALORE - 560 002.
BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH MENON
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
RESPONDENT(S)/PETITIONER, 2ND AND 3RD RESPONDETNS, ADDL.4TH
RESPONDENTS IN THE WPC :-
------------------------------------------------------------
1. HARIDEV.S, S/O.SAHADEVAN, VALIYAKULANGARA,
CMC - 20, CHERTHALA, POST CHERTHALA,
PIN : 688 524, ALAPPUZHA DISTRICT.
2. CHAIRMAN,
INSTITUTE OF BANKING PERSONNEL SELECTION,
IBPS HOUSE, NEAR THAKUR POLYTECHNIC, 90 FEET,
DP ROAD, OFF. WESTERN EXPRESS HIGHWAY, P.B.NO.8587,
KANDIVALI (E), MUMBAI - 400 101, INDIA.
3. UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF FINANCE, NORTH BLOCK,
CENTRAL SECRETARIAT, NEW DELHI - 110 011.
4. RAJAGIRI BUSINESS SCHOOL
RAJAGIRIVALLEY P.O., KAKKANAD, KOCHI.
BY SRI.T.ASAFALI
BY SRI.K.R.RAJKUMAR, ADDL.CGSC
BY SRI.TONY GEORGE KANNANTHANAM
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11-01-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MOHAN M. SHANTANAGOUDAR, CJ
&
ANIL K. NARENDRAN, J.
---------------------------------------------------
W.A. No.46 of 2017
----------------------------------
Dated this the 11th day of January 2017
J U D G M E N T
Mohan M. Shantanagoudar, CJ
The judgment dated 24.11.2016 passed in W.P.(C) No.28538
of 2016 is the subject matter of this appeal.
The only question to be decided in this appeal is as to
whether the Post Graduate Diploma in Business Management
(PGDBM) is equivalent to Post Graduate Diploma in Management
(PGDM).
2. The 2nd respondent published Ext.P6 notification for the
online examination for the Common Recruitment Process for
Recruitment of Specialist Officers in Participating Organisations
for various posts including I.T.Officer, Agricultural Field Officer,
Rajbhasha Adhikari, Law Officer, Marketing Officer etc. The
Participating Organisations are nationalised Banks, including
Canara Bank, Syndicate Bank, Bank of Baroda, Bank of India,
Andhra Bank etc. The qualifications prescribed for the post of
Marketing Officer (Scale-I) is Graduation plus Full Time 2 years
PGDBA/PGDBM with specialisation in Marketing, etc.
W.A. No.46 of 2017
-: 2 :-
The 1st respondent has obtained PGDM from the 4th
respondent, Rajagiri Business School and the same is approved by
the All India Council for Technical Education (AICTE), Government
of India, as is clear from Ext.P2 certificate produced in the writ
petition. Armed with the said certificate, he has applied for the
post of Marketing Officer in Canara Bank. Though his candidature
was provisionally allowed for the post of Marketing Officer (Scale-
I) in Canara Bank, the same came to be cancelled subsequently as
per Ext.P10 dated 29.6.2016. The said order was questioned by
the 1st respondent before this Court in the aforesaid writ petition,
which was allowed by the impugned judgment.
3. Learned counsel appearing for the appellant Bank
submits that 'PGDBM' is different from 'PGDM' obtained by the 1st
respondent and therefore, since there is no declaration of
equivalence between the two Post Graduate Degrees, it is not open
for the 1st respondent to apply for the said post. Hence, the
Canara Bank is justified in passing Ext.P10 order cancelling the
provisional allotment.
4. The said submission is opposed by the learned counsel
for the 1st respondent, who draws attention of this Court to
Ext.P16 issued by the AICTE. He argued in support of the
W.A. No.46 of 2017
-: 3 :-
judgment of the learned Single Judge. It is also submitted that
since the other Banks, which are also parties to the common
recruitment process, including Syndicate Bank, Bank of Baroda,
etc. have accepted 'PGDM' degree for the concerned post, there is
no reason as to why the Canara Bank made excuses in not
accepting the candidates having 'PGDM' qualification.
Ext.P16 resolves the dispute fully. Ext.P16 dated
10.8.2016 is a certificate issued by the AICTE, which clarifies that
the 'PGDBM' approved by the AICTE till 2006-'07 was renamed as
'PGDM' in 2007-'08, on the basis of recommendations of All India
Board of Management Studies. Thus, it is clear that the very
course, 'PGDBM' is renamed as 'PGDM' in 2007-'08. Since the 1st
respondent has obtained the said degree after 2008, the
nomenclature of his degree is 'PGDM', that is; Post Graduate
Degree in Management.
5. Since Ext.P16 makes it amply clear that 'PGDBM' is
nothing but 'PGDM' from 2007 onwards, the learned Single Judge
is justified in setting aside Ext.P10 order passed by the appellant
Bank, cancelling the allotment given to the 1st respondent.
W.A. No.46 of 2017
-: 4 :-
Hence, no interference is called for. The appeal fails
and the same stands dismissed. The appellant Bank shall comply
with the judgment of the learned Single Judge within one month
from the date of receipt of a copy of this judgment.
Sd/-
MOHAN M. SHANTANAGOUDAR
CHIEF JUSTICE
Sd/-
ANIL K. NARENDRAN
JUDGE
//TRUE COPY//
P.A. TO JUDGE
Jvt/11.1.2017
Wednesday, January 18, 2017
Mining Permit and PCB Clearance Needed for Blasting Boulders for NH Widening: Kerala HC [Read Judgment]
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 20TH DAY OF DECEMBER 2016/29TH AGRAHAYANA, 1938
WP(C).No. 37039 of 2016 (D)
------------------------------------------
PETITIONER(S) :
--------------------------
1. BASHEER,
AGED 48 YEARS, S/O. MUHAMMED,
THEKKINKATTIL HOUSE, KALLIDUKKU,
PATTIKKAD P.O., THRISSUR DISTRICT.
2. KABEER,
AGED 44 YEARS, S/O. MUHAMMED,
THEKKINKATTIL HOUSE, THANIPPADAM P.O.,
CHUVANNAMANNU, THRISSUR DISTRICT.
3. SHANILAN,
AGED 44 YEARS, S/O. UNNIKRISHNAN,
KUNNATHUPARAMBIL HOUSE, THANIPPADAM P.O.,
CHUVANNAMANNU, THRISSUR DISTRICT.
BY ADVS. SRI.SANTHOSH P.PODUVAL
SMT.R.RAJITHA
SMT.VINAYA V.NAIR
RESPONDENT(S) :
-----------------------------
1. THE DISTRICT COLLECTOR,
THRISSUR-680 001.
2. THE JOINT CHIEF CONTROLLER OF EXPLOSIVE
140, MARSHALLS ROAD,
EGMORE, CHENNAI- 600 001.
3. ADDITIONAL DISTRICT MAGISTRATE,
THRISSUR-680 001.
4. THE GEOLOGIST,
DEPARTMENT OF MINING AND GEOLOGY,
DISTRICT OFFICE, THRISSUR-680 001.
5. THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL
BOARD, DISTRICT OFFICE, THRISSUR- 680 001.
..2/-
..2..
WP(C).No. 37039 of 2016 (D)
------------------------------------------
6. NATIONAL HIGHWAY AUTHORITY OF INDIA,
REP. BY ITS PROJECT DIRECTOR,
IN CHARGE OF NH-47, THRISSUR
DISTRICT, KERALA-680 001.
7. M/S. THRISSUR EXPRESS WAY LTD.,
REP. BY ITS PROJECT DIRECTOR,
PANNIYANKARA, PALAKKAD-678 683.
8. THE SUB INSPECTOR OF POLICE,
PEECHI POLICE STATION,
THRISSUR DISTRICT-680 653.
R1,R3,R4 & R8 BY SR. GOVERNMENT PLEADER SRI. RENIL ANTO
R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
ADV. SRI.GIRISH KUMAR.V., CGC
R5 BY ADV. SRI. T.NAVEEN, S.C
R6 BY ADVS. SMT.I.SHEELA DEVI
SMT.REJI RAMACHANDRAN
SRI.THOMAS ANTONY
R7 BY ADVS. SRI.T.P.RAMACHANDRAN (THACHETH)
SRI.M.SREELAKSHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-12-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 37039 of 2016 (D)
------------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1: TRUE COPY OF PETITION DATED 06.07.2015 SUBMITTED BY
THE 1ST PETITIONER.
EXHIBIT P2: PHOTOGRAPHS SHOWING THE DAMAGE CAUSED TO THE HOUSE
OF THE 1ST THE PETITIONER.
EXHIBIT P3: PHOTOGRAPHS SHOWING THE DAMAGE CAUSED TO THE HOUSE
OF THE 3RD PETITIONER.
EXHIBIT P4: TRUE COPY OF MINUTES OF THE MEETING DATED 30.09.2016
HELD UNDER THE AUSPICES OF THE 2ND RESPONDENT.
EXHIBIT P5: TRUE COPY OF REPLY DATED 02.12.2016 RECEIVED UNDER
THE RIGHT TO INFORMATION ACT FROM THE 4TH RESPONDENT.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R7(A): TRUE COPY OF ORDER OF DISTRICT MAGISTRATE
TRICHUR DATED 07.12.2015.
EXHIBIT R7(B): TRUE COPY OF ORDER OF THE DISTRICT COLLECTOR,
PALGHAT DATED 14.07.2016.
EXHIBIT R7(C): TRUE COPY OF ORDER OF CONTROLLER OF EXPLOSIVES
DATED 18.12.2015.
EXHIBIT R7(D): TRUE COPY OF CERTIFICATE OF SRI. SUDEVAN
DATED 28.04.1995.
EXHIBIT R7(E): TRUE COPY OF CERTIFICATE OF HARIGOVIND SINGH
DATED 17.06.2006 ISSUED BY THE JOINT CHIEF
CONTROLLER OF EXPLOSIVES.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
*CR*
K. VINOD CHANDRAN, J.
=====================
W.P.(C) No.37039 of 2016- D
======================
Dated this the 20th day of December, 2016
J U D G M E N T
The petitioners are aggrieved with the blasting
operations carried on for the purpose of the construction of a
National Highway, which according to the petitioners, causes
damage to the residences near to the work-site. The
petitioners also contend that their residences are within 50
meters from the blasting site; which is within the prohibited
distance of 100 meters, as prescribed by the Kerala State
Pollution Control Board (PCB), for quarries. The objection is
with respect to the quarrying operations carried on without the
necessary sanctions and permits as also the refusal to comply
with the minimum safety standards insisted upon by the
2
W.P.(C) No.37039 of 2016- D
various enactments. The grievance is also of the large-scale
blasting done with electronic detonators, without notice and
frequently too, shaking the very foundations of the residences
of the petitioners, causing untold misery to their life and
damage to property.
2. The learned Counsel for the 7th respondent, who
is the contractor has produced permissions and sanctions
acquired from the various authorities. Ext.R7(a) is the
proceedings of the Additional District Magistrate, Thrissur,
granting permission to carry on the drilling and blasting works
for the six-lane work of Wadakkanchery - Thrissur NH 47, on
certain conditions stipulated. Ext.R7(b) is the proceedings of
the District Collector, Palakkad which is specifically pointed out
to contend that the District Collector had made inquiries with
all the departments and permitted the carrying on of
operations by the 7th respondent. Specific reference is made to
3
W.P.(C) No.37039 of 2016- D
paragraph 3, wherein the Geologist, Palakkad has also been
called upon to report any objection, which obviously has not
been raised. In such circumstance, the NOC's, by the revenue
and administrative head, of both the Districts, where the work
is now progressing are deemed to have been issued on the
consent of all departments within the respective districts.
Ext.R7(c) is the explosives licence issued by the Controller of
Explosives and Ext.R7(d)&(e) are the Short-firer's
permit/certificate, to individuals said to be in the employment
of the 7th respondent, who allegedly carry on the blasting
operations.
3. The National Highway Authority also appears
through Counsel and submits that the blasting operations are
permitted as per the "Specifications for Road and Bridge
Works issued by the Ministry of Shipping, Road, Transport and
Highways"(Specifications of MOSRT&H), which stipulation is
4
W.P.(C) No.37039 of 2016- D
found under the heading 302. 'Blasting Operations'. The
agreement entered into with the 7th respondent contractor
permits such blasting operations to be carried on with the
necessary consent and sanctions as required under the various
enactments, is the contention raised. The PCB has also
submitted that, though for quarrying and mining, a consent to
establish and operate issued from the PCB, is mandatory, the
same is not required for purposes other than quarry
operations. The learned Counsel for the 7th respondent would
also stress on the fact that if there is an interdiction made of
the blasting operations, then there would be stoppage of the
National Highway work, which would definitely not be in the
national interest. It is also pointed out that the petitioners are
persons, who had been granted compensation in 2013, when
works were carried out in the very same site. As of now, it is
also submitted that a Committee has been formed headed by
5
W.P.(C) No.37039 of 2016- D
the Additional District Magistrate and it is under supervision of
that Committee, the operations are being carried on.
4. At the outset it is to be emphasised that the fact
that the petitioners had obtained compensation once would
not deter them from raising a further claim, on damage being
caused subsequently due only for reason of the continuing
work of the contractor. This Court has to look at whether the
work carried on is with the requisite sanctions and permits,
when again, a complaint is raised. Even when there are
available all requisite sanctions, then too this Court would
have to ensure that the citizens rights and properties are not
put to peril merely on assertions made of national interest and
overall development as in the case of a national highway
widening; especially when the thrust now is on sustainable
development.
5. Condition No. 2, in Exhibit R7 (a) & (b) is to be
6
W.P.(C) No.37039 of 2016- D
immediately noticed, which speaks of a permission from the
Geologist to be obtained as per the Kerala Minor Mineral
Concession Rules, 2015 (for brevity KMMC Rules), if mining is
found necessary. Though a mine or quarry, as such, is not
carried on by the respondents, for the purposes of the road
work carried on, effectively the land is quarried and the subsoil
and minerals are removed. The terrain being rocky, blasting
operations are also carried out and despite the work being for
the purpose of widening the National Highway, essentially it is
a mining operation as defined under the Mines Act,1952 and
the Mines and Mineral (Development and Regulation) Act,
1957 (for short MMDR Act).
6. By Section 4 of the MMDR Act, any person
undertaking reconnaissance, prospecting or mining operation
in any area shall do so only with the reconnaissance permit, a
prospecting license or a mining lease granted under the Act
7
W.P.(C) No.37039 of 2016- D
and the Rules made there under. Section 15 of the MMDR Act
confers power on the State Government to make Rules with
respect to the grant of quarry leases/mining leases and other
mineral concessions, invoking which the KMMC Rules has been
framed. It is also pertinent that Section 14 of the MMDR Act as
it earlier stood excluded Sections 4 to 13 from application to
minor minerals and the same was amended with effect from
1986 by excluding only Sections 5 to 13. Hence Section 4
would be applicable even for minor minerals and admittedly
the 7th respondent has not approached the District Geologist
for a mining permit. Presumably the omission was only by
reason of Rule 106 of the KMMC Rules, which exempted the
obligation to obtain a quarrying permit or quarrying lease,
when quarrying of minor minerals is made from Government
owned lands by the public authorities as long as the work is
done under their direct supervision. Rule 106 of the KMMC
8
W.P.(C) No.37039 of 2016- D
Rules was held to be ultra vires in W.P.(C) No.16763 of 2016
by judgment dated 07.12.2016.
7. As to the applicability of the Mines Act, a learned
Single Judge of this Court in Rajmohan Nair V. State of
Kerala 1997 (1) ILR 268 held that The Mines Act, 1952 and the
MMDR Act are complementary enactments and that one does
not exclude the other. Therein the respondent, whose quarry
was objected to as being conducted illegally, contented that
the activity carried on by him did not involve underground
excavation and hence cannot be brought under the Mines Act,
as a mine. Relying on AIR 1976 SC 1393 (Bhagwan Dass V
State of Uttar Pradesh and others )& AIR 1979 SC 1669 (Sri
Tarkeshwar Sio Thaku Jiu V Dar Dass Dey & Co. and
others) it was held held that despite no activities being carried
on underground, the quarry carried on by the contesting
respondent would be an 'open cast working' as defined under
9
W.P.(C) No.37039 of 2016- D
the Mines Act.
8. Bhagwan Dass held that the Act of 1957 and the
Rules of 1963 (UP State rules) "shows that minerals need not
be subterranean and that mining operations cover every
operation undertaken for the purpose of 'winning' any mineral.
'Winning' does not imply a hazardous or perilous activity. The
word simply means 'extracting a mineral'' and is used to
generally indicate any activity by which a mineral is secured.
'Extracting' in turn, means drawing out or obtaining. A tooth is
'extracted', as much as is fruit juice and as much as a mineral.
Only, that the effort varies from tooth to tooth from fruit or
fruit and from mineral to mineral." (sic-paragraph13).
Tarkeshwar Sio Thakur Jiu held so: "It is true that in the
definition of 'mine' the term 'excavation' in the ordinary sense,
means 'hole' 'hollow' or 'cavity' made by digging out. But the
word 'any' prefixed to 'excavation' in the context of the phrase
10
W.P.(C) No.37039 of 2016- D
'for the purpose of searching for or obtaining mineral' gives it
a much more extensive connotation, so that every 'excavation'
be it in the shape of an open-cast cavity or a subterranean
tunneling, will fall within the definition of 'mine'. Similarly, it is
not a requirement of the definition of 'mining operation' that
the activity for winning the mineral must necessarily be an
underground activity. The essence of 'mining operations' is
that it must be an activity for winning a mineral, whether on
the surface or beneath the surface of earth."(sic-paragraph 15)
9. Section 3 of the Mines Act was also referred, to find
that the exclusion provided therein would not apply since the
respondent was using explosives for the purpose of "extraction
of rock pieces from the granite hill-rock." This is precisely the
work carried on herein too; the only distinction being that it is
carried on for the purpose of road widening. Section 3 of the
Mines Act as it now exists is relevant and is extracted here-
11
W.P.(C) No.37039 of 2016- D
under:
3. Act not to apply in certain cases:- (1) The
provisions of this Act, except those contained in
sections 7, 8,9, 40, 45 and 46 shall not apply to--
(a) any mine or part thereof in which
excavation is being made for prospecting
purposes only and not for the purpose of
obtaining minerals for use or sale:
Provided that-
(i) not more than twenty persons are
employed on any one day in
connection with any such excavation;
(ii) the depth of the excavation measured
from its highest to its lowest point
nowhere exceeds six metres or, in the
case of an excavation for coal, fifteen
12
W.P.(C) No.37039 of 2016- D
metres; and
(iii) no part of such excavation extends
below superjacent ground; or
(b) any mine engaged in the extraction of Kankar,
murrum, laterite, boulder, gravel, shingle,
ordinary sand (excluding moulding sand,
glass sand and other mineral sands), ordinary
clay (excluding kaolin, china clay, white clay
or fire clay), building stone, slate, road metal
earth, fullers earth, marl, chalk and lime
stone:
Provided that-
(i) the workings do not extend below
superjacent ground; or
(ii) where it is an open cast working-
(a) the depth of the excavation measured
13
W.P.(C) No.37039 of 2016- D
from its highest to its lowest point
nowhere exceeds six metres;
(b) the number of persons employed on
any one day does not exceed fifty; and
(c) explosives are not used in connection
with the excavation.
2. Notwithstanding anything contained in sub-
section (1), the Central Government may, if it
is satisfied that, having regard to the
circumstances obtaining in relation to a mine
or part thereof or group or class of mines, it
is necessary or desirable so to do, by
notification in the Official Gazette, declare
that any of th provisions of this Act, not set
out in sub-section (1), shall apply to any such
mine or part thereof or group or class of
14
W.P.(C) No.37039 of 2016- D
mines or any class of persons employed
therein.
(3) Without prejudice to the provisions contained
in sub-section (2), if at any time any of the
conditions specified in the proviso to clause
(a) or clause (b) of sub-section (1) is not
fulfilled in relation to any mine referred to in
that sub-section, the provisions of this Act
not set out in sub-section (1), shall become
immediately applicable, and it shall be the
duty of the owner, agent or manager of the
mine to inform the prescribed authority in the
prescribed manner and within the prescribed
time about the non-fulfilment."
10. The existence of any of the conditions in clause (a),
(b) or (c) would at once attract the provisions of the Mines Act,
15
W.P.(C) No.37039 of 2016- D
as has been held in AIR 1987 SC 1253 (Joint Director of
Mines Safety V M/s. Tandur and Nayandgi Stone Quarries
(P) Ltd.). The legislative intent so declared, as manifested by
the scheme of the Mines Act, though found to be primarily, to
ensure the safety of the workmen; there is no escaping from
the fact that the requirements there under would have to be
satisfied. It is also a given fact that none have examined the
depth of the excavation from the highest to the lowest point
and in any event the use of explosives is admitted.
11. When the Mines Act is applicable then the
Metalliferous Mines Regulations, 1961(Regulations for short)
would be applicable and the short-firers license produced at
Exhibits R7(d)&(e) would be insufficient to carry out the
blasting in a Mine as defined under the Mines Act, as is
specified in both the certificates. Rule 144 of the Explosives
Rules, 1983, by its proviso provides for a short-firer employed
16
W.P.(C) No.37039 of 2016- D
in a Mine to have the qualifications prescribed in the
regulations framed under the Act. Regulation160(2) requires a
blaster to be the holder of a Manager's, Foreman's, Mate's or
Blaster's Certificate. The other provisions of the Regulations
would also have to be complied with as has been dilated upon
in Rajmohan Nair. It has also been held in Rajmohan Nair
that a license issued in Form 23 of the Explosives Rules, would
not be sufficient to carry on blasting in a Mine coming within
the purview of the Mines Act, and a license; under Form 22, the
issuance of which has more stringent conditions as seen from
Rule 156 of the Explosives Rules, would be necessary.
12. Further the 'Specifications of MOSRT&H' under
Heading No.302 'Blasting Operations' under general
conditions prescribe so:
"Blasting shall be carried out in a manner that
completes the excavation to the lines indicated
17
W.P.(C) No.37039 of 2016- D
in drawings, with the least disturbance to
adjacent material. It shall be done only with the
written permission of the Engineer. All the
statutory laws, regulations, rules, etc:, pertaining
to the acquisition,, transport, storage, handling
and the use of explosives shall be strictly
followed."
Hence the contractor is obliged to follow all applicable laws
with respect to blasting and also has to ensure no damage to
the adjacent residences too.
13. Further this Court cannot shut its eyes to the
grievances ventilated by the petitioners as to their property
being endangered and the constant hazardous harassment to
which they are put to, by reason of the indiscriminate blasting
carried on without any caution for or care of the safety
standards. National development is of prime concern, but it
18
W.P.(C) No.37039 of 2016- D
cannot be advanced flouting the standards prescribed by the
various enactments and putting to peril the life and property
of the citizens. The arguments advanced by the contractor to
urge the expediency with which the work has to be completed,
is of no consequence when compared with the wide spread
damages alleged and the pollution caused. It is also, not as if
there are no alternative measures to remove the boulders and
rock-formations, to lay the road; which could be done
manually, but would be more time consuming and strenuous.
14. There should also be an expert opinion taken as
to the extent and capacity of blasting permitted, considering
the proximity of the residences and the time and frequency to
which it has to be limited. The complaint raised by the
petitioners is with respect to the large scale damage caused to
the residences of the petitioners as also the pollution
occasioned. The damage caused to the buildings is by reason
19
W.P.(C) No.37039 of 2016- D
of the blast induced ground vibrations, the intensity of which
would depend upon the quantity of explosives used, an
assessment of which has not been undertaken by the district
administration; by itself or through an expert agency. There is
also air pollution caused by the generation of air pressure and
noise, on the actual blasting, as also the debris thrown into the
atmosphere when the rock formations are turned into rubble.
The activity hence is also one coming within the ambit of The
Environment (Protection) Act, 1986 and The Environment
(Protection) Rules, 1986 (referred to as EP Act and EP Rules).
The standards prescribed by the PCB hence becomes
applicable and without a consent to operate there can be no
operations of blasting carried on which effectively is deemed
to be a "Mine" as defined under the Mines Act and quarrying of
minor mineral is carried on under the MMDR Act. The
hazardous effect of blasting carried on has to be assessed and
20
W.P.(C) No.37039 of 2016- D
the pollution occasioned too, has to be contained.
15. The fourth proviso to Rule 10, under Chapter II,
dealing with grant of quarrying permits and the fifth proviso to
Rule 40 of Chapter V, dealing with grant of quarrying leases, as
available in KMMC Rules prohibits use of explosives within a
distance as specified by the PCB. Hence the 7th respondent
would also be obliged to carry out the blasting work only with
a consent to operate from the PCB. The understanding of the
PCB that the requirements would not be applicable to such
road widening work is obviously wrong and contrary to the
statutory provisions. In such circumstance, the 7th respondent
would have to necessarily obtain a mining permit under the
KMMC Rules and a Consent to Operate from the PCB so as to
carry on the blasting works.
16. It is also to be verified whether the 7th
respondent would have to obtain an Environmental Clearance
21
W.P.(C) No.37039 of 2016- D
under the Environmental Impact Assessment Notification No.
2006 (SO 1533E) dated 14.09.2006 issued by the Ministry of
Environment and Forests and Climate Change; by S.O No. 141
(E) dtd. 15.01.2016. The EIA notification of 2006 provides by
paragraph 2, for Environmental Clearance for projects or
activities coming under Category 'A' in the Schedule, from the
Central Government in the Ministry of Environment, Forests
and Climate Change (MoEF&CC) and the State Environment
Impact Assessment Authority for matters falling under
Category B. The Schedule at serial number 7(f) includes
Highways, the 'Expansion of National Highways greater than
100 kilometers involving additional right of way or land
acquisition greater than 40 m on existing alignments and 60 m
on realignments or bypasses' as Category 'A'. The District
Geologist, who is approached for a permit under the KMMC
Rules shall verify whether the work undertaken by the 7th
22
W.P.(C) No.37039 of 2016- D
respondent is one requiring EC as provided in the EIA
notification.
17. The District administration also would have to
conduct a study by an expert agency, or the PCB as to the
depth and number of holes, their diameter, the quantity of
explosive charge used, the influence it has on the impact of the
blasts and so on and so forth to regulate the magnitude of the
ground vibrations and ensure that no damage is caused to the
'adjacent material' including buildings as has been specified in
the Specifications of MOSRT&H; if at all it is permitted as per
the specifications issued by the PCB as made applicable by the
KMMC Rules.
18. The 7th respondent would be entitled to
approach the appropriate authorities and continue with the
work after getting the requisite sanctions. However till such
time the permits are issued, the 7th respondent will be
23
W.P.(C) No.37039 of 2016- D
restrained from carrying out blasting operations, for the
purpose of the work carried on in the National Highway. The
District administration will ensure that no blasting operations
are carried out till the requisite sanctions and permits, as
discussed herein above, are obtained.
The writ petition would stand allowed. No costs.
Sd/-
K. VINOD CHANDRAN,
JUDGE
SB/20/12//2016 //true copy//
P.A to Judge
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 20TH DAY OF DECEMBER 2016/29TH AGRAHAYANA, 1938
WP(C).No. 37039 of 2016 (D)
------------------------------------------
PETITIONER(S) :
--------------------------
1. BASHEER,
AGED 48 YEARS, S/O. MUHAMMED,
THEKKINKATTIL HOUSE, KALLIDUKKU,
PATTIKKAD P.O., THRISSUR DISTRICT.
2. KABEER,
AGED 44 YEARS, S/O. MUHAMMED,
THEKKINKATTIL HOUSE, THANIPPADAM P.O.,
CHUVANNAMANNU, THRISSUR DISTRICT.
3. SHANILAN,
AGED 44 YEARS, S/O. UNNIKRISHNAN,
KUNNATHUPARAMBIL HOUSE, THANIPPADAM P.O.,
CHUVANNAMANNU, THRISSUR DISTRICT.
BY ADVS. SRI.SANTHOSH P.PODUVAL
SMT.R.RAJITHA
SMT.VINAYA V.NAIR
RESPONDENT(S) :
-----------------------------
1. THE DISTRICT COLLECTOR,
THRISSUR-680 001.
2. THE JOINT CHIEF CONTROLLER OF EXPLOSIVE
140, MARSHALLS ROAD,
EGMORE, CHENNAI- 600 001.
3. ADDITIONAL DISTRICT MAGISTRATE,
THRISSUR-680 001.
4. THE GEOLOGIST,
DEPARTMENT OF MINING AND GEOLOGY,
DISTRICT OFFICE, THRISSUR-680 001.
5. THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL
BOARD, DISTRICT OFFICE, THRISSUR- 680 001.
..2/-
..2..
WP(C).No. 37039 of 2016 (D)
------------------------------------------
6. NATIONAL HIGHWAY AUTHORITY OF INDIA,
REP. BY ITS PROJECT DIRECTOR,
IN CHARGE OF NH-47, THRISSUR
DISTRICT, KERALA-680 001.
7. M/S. THRISSUR EXPRESS WAY LTD.,
REP. BY ITS PROJECT DIRECTOR,
PANNIYANKARA, PALAKKAD-678 683.
8. THE SUB INSPECTOR OF POLICE,
PEECHI POLICE STATION,
THRISSUR DISTRICT-680 653.
R1,R3,R4 & R8 BY SR. GOVERNMENT PLEADER SRI. RENIL ANTO
R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
ADV. SRI.GIRISH KUMAR.V., CGC
R5 BY ADV. SRI. T.NAVEEN, S.C
R6 BY ADVS. SMT.I.SHEELA DEVI
SMT.REJI RAMACHANDRAN
SRI.THOMAS ANTONY
R7 BY ADVS. SRI.T.P.RAMACHANDRAN (THACHETH)
SRI.M.SREELAKSHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-12-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 37039 of 2016 (D)
------------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1: TRUE COPY OF PETITION DATED 06.07.2015 SUBMITTED BY
THE 1ST PETITIONER.
EXHIBIT P2: PHOTOGRAPHS SHOWING THE DAMAGE CAUSED TO THE HOUSE
OF THE 1ST THE PETITIONER.
EXHIBIT P3: PHOTOGRAPHS SHOWING THE DAMAGE CAUSED TO THE HOUSE
OF THE 3RD PETITIONER.
EXHIBIT P4: TRUE COPY OF MINUTES OF THE MEETING DATED 30.09.2016
HELD UNDER THE AUSPICES OF THE 2ND RESPONDENT.
EXHIBIT P5: TRUE COPY OF REPLY DATED 02.12.2016 RECEIVED UNDER
THE RIGHT TO INFORMATION ACT FROM THE 4TH RESPONDENT.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R7(A): TRUE COPY OF ORDER OF DISTRICT MAGISTRATE
TRICHUR DATED 07.12.2015.
EXHIBIT R7(B): TRUE COPY OF ORDER OF THE DISTRICT COLLECTOR,
PALGHAT DATED 14.07.2016.
EXHIBIT R7(C): TRUE COPY OF ORDER OF CONTROLLER OF EXPLOSIVES
DATED 18.12.2015.
EXHIBIT R7(D): TRUE COPY OF CERTIFICATE OF SRI. SUDEVAN
DATED 28.04.1995.
EXHIBIT R7(E): TRUE COPY OF CERTIFICATE OF HARIGOVIND SINGH
DATED 17.06.2006 ISSUED BY THE JOINT CHIEF
CONTROLLER OF EXPLOSIVES.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
*CR*
K. VINOD CHANDRAN, J.
=====================
W.P.(C) No.37039 of 2016- D
======================
Dated this the 20th day of December, 2016
J U D G M E N T
The petitioners are aggrieved with the blasting
operations carried on for the purpose of the construction of a
National Highway, which according to the petitioners, causes
damage to the residences near to the work-site. The
petitioners also contend that their residences are within 50
meters from the blasting site; which is within the prohibited
distance of 100 meters, as prescribed by the Kerala State
Pollution Control Board (PCB), for quarries. The objection is
with respect to the quarrying operations carried on without the
necessary sanctions and permits as also the refusal to comply
with the minimum safety standards insisted upon by the
2
W.P.(C) No.37039 of 2016- D
various enactments. The grievance is also of the large-scale
blasting done with electronic detonators, without notice and
frequently too, shaking the very foundations of the residences
of the petitioners, causing untold misery to their life and
damage to property.
2. The learned Counsel for the 7th respondent, who
is the contractor has produced permissions and sanctions
acquired from the various authorities. Ext.R7(a) is the
proceedings of the Additional District Magistrate, Thrissur,
granting permission to carry on the drilling and blasting works
for the six-lane work of Wadakkanchery - Thrissur NH 47, on
certain conditions stipulated. Ext.R7(b) is the proceedings of
the District Collector, Palakkad which is specifically pointed out
to contend that the District Collector had made inquiries with
all the departments and permitted the carrying on of
operations by the 7th respondent. Specific reference is made to
3
W.P.(C) No.37039 of 2016- D
paragraph 3, wherein the Geologist, Palakkad has also been
called upon to report any objection, which obviously has not
been raised. In such circumstance, the NOC's, by the revenue
and administrative head, of both the Districts, where the work
is now progressing are deemed to have been issued on the
consent of all departments within the respective districts.
Ext.R7(c) is the explosives licence issued by the Controller of
Explosives and Ext.R7(d)&(e) are the Short-firer's
permit/certificate, to individuals said to be in the employment
of the 7th respondent, who allegedly carry on the blasting
operations.
3. The National Highway Authority also appears
through Counsel and submits that the blasting operations are
permitted as per the "Specifications for Road and Bridge
Works issued by the Ministry of Shipping, Road, Transport and
Highways"(Specifications of MOSRT&H), which stipulation is
4
W.P.(C) No.37039 of 2016- D
found under the heading 302. 'Blasting Operations'. The
agreement entered into with the 7th respondent contractor
permits such blasting operations to be carried on with the
necessary consent and sanctions as required under the various
enactments, is the contention raised. The PCB has also
submitted that, though for quarrying and mining, a consent to
establish and operate issued from the PCB, is mandatory, the
same is not required for purposes other than quarry
operations. The learned Counsel for the 7th respondent would
also stress on the fact that if there is an interdiction made of
the blasting operations, then there would be stoppage of the
National Highway work, which would definitely not be in the
national interest. It is also pointed out that the petitioners are
persons, who had been granted compensation in 2013, when
works were carried out in the very same site. As of now, it is
also submitted that a Committee has been formed headed by
5
W.P.(C) No.37039 of 2016- D
the Additional District Magistrate and it is under supervision of
that Committee, the operations are being carried on.
4. At the outset it is to be emphasised that the fact
that the petitioners had obtained compensation once would
not deter them from raising a further claim, on damage being
caused subsequently due only for reason of the continuing
work of the contractor. This Court has to look at whether the
work carried on is with the requisite sanctions and permits,
when again, a complaint is raised. Even when there are
available all requisite sanctions, then too this Court would
have to ensure that the citizens rights and properties are not
put to peril merely on assertions made of national interest and
overall development as in the case of a national highway
widening; especially when the thrust now is on sustainable
development.
5. Condition No. 2, in Exhibit R7 (a) & (b) is to be
6
W.P.(C) No.37039 of 2016- D
immediately noticed, which speaks of a permission from the
Geologist to be obtained as per the Kerala Minor Mineral
Concession Rules, 2015 (for brevity KMMC Rules), if mining is
found necessary. Though a mine or quarry, as such, is not
carried on by the respondents, for the purposes of the road
work carried on, effectively the land is quarried and the subsoil
and minerals are removed. The terrain being rocky, blasting
operations are also carried out and despite the work being for
the purpose of widening the National Highway, essentially it is
a mining operation as defined under the Mines Act,1952 and
the Mines and Mineral (Development and Regulation) Act,
1957 (for short MMDR Act).
6. By Section 4 of the MMDR Act, any person
undertaking reconnaissance, prospecting or mining operation
in any area shall do so only with the reconnaissance permit, a
prospecting license or a mining lease granted under the Act
7
W.P.(C) No.37039 of 2016- D
and the Rules made there under. Section 15 of the MMDR Act
confers power on the State Government to make Rules with
respect to the grant of quarry leases/mining leases and other
mineral concessions, invoking which the KMMC Rules has been
framed. It is also pertinent that Section 14 of the MMDR Act as
it earlier stood excluded Sections 4 to 13 from application to
minor minerals and the same was amended with effect from
1986 by excluding only Sections 5 to 13. Hence Section 4
would be applicable even for minor minerals and admittedly
the 7th respondent has not approached the District Geologist
for a mining permit. Presumably the omission was only by
reason of Rule 106 of the KMMC Rules, which exempted the
obligation to obtain a quarrying permit or quarrying lease,
when quarrying of minor minerals is made from Government
owned lands by the public authorities as long as the work is
done under their direct supervision. Rule 106 of the KMMC
8
W.P.(C) No.37039 of 2016- D
Rules was held to be ultra vires in W.P.(C) No.16763 of 2016
by judgment dated 07.12.2016.
7. As to the applicability of the Mines Act, a learned
Single Judge of this Court in Rajmohan Nair V. State of
Kerala 1997 (1) ILR 268 held that The Mines Act, 1952 and the
MMDR Act are complementary enactments and that one does
not exclude the other. Therein the respondent, whose quarry
was objected to as being conducted illegally, contented that
the activity carried on by him did not involve underground
excavation and hence cannot be brought under the Mines Act,
as a mine. Relying on AIR 1976 SC 1393 (Bhagwan Dass V
State of Uttar Pradesh and others )& AIR 1979 SC 1669 (Sri
Tarkeshwar Sio Thaku Jiu V Dar Dass Dey & Co. and
others) it was held held that despite no activities being carried
on underground, the quarry carried on by the contesting
respondent would be an 'open cast working' as defined under
9
W.P.(C) No.37039 of 2016- D
the Mines Act.
8. Bhagwan Dass held that the Act of 1957 and the
Rules of 1963 (UP State rules) "shows that minerals need not
be subterranean and that mining operations cover every
operation undertaken for the purpose of 'winning' any mineral.
'Winning' does not imply a hazardous or perilous activity. The
word simply means 'extracting a mineral'' and is used to
generally indicate any activity by which a mineral is secured.
'Extracting' in turn, means drawing out or obtaining. A tooth is
'extracted', as much as is fruit juice and as much as a mineral.
Only, that the effort varies from tooth to tooth from fruit or
fruit and from mineral to mineral." (sic-paragraph13).
Tarkeshwar Sio Thakur Jiu held so: "It is true that in the
definition of 'mine' the term 'excavation' in the ordinary sense,
means 'hole' 'hollow' or 'cavity' made by digging out. But the
word 'any' prefixed to 'excavation' in the context of the phrase
10
W.P.(C) No.37039 of 2016- D
'for the purpose of searching for or obtaining mineral' gives it
a much more extensive connotation, so that every 'excavation'
be it in the shape of an open-cast cavity or a subterranean
tunneling, will fall within the definition of 'mine'. Similarly, it is
not a requirement of the definition of 'mining operation' that
the activity for winning the mineral must necessarily be an
underground activity. The essence of 'mining operations' is
that it must be an activity for winning a mineral, whether on
the surface or beneath the surface of earth."(sic-paragraph 15)
9. Section 3 of the Mines Act was also referred, to find
that the exclusion provided therein would not apply since the
respondent was using explosives for the purpose of "extraction
of rock pieces from the granite hill-rock." This is precisely the
work carried on herein too; the only distinction being that it is
carried on for the purpose of road widening. Section 3 of the
Mines Act as it now exists is relevant and is extracted here-
11
W.P.(C) No.37039 of 2016- D
under:
3. Act not to apply in certain cases:- (1) The
provisions of this Act, except those contained in
sections 7, 8,9, 40, 45 and 46 shall not apply to--
(a) any mine or part thereof in which
excavation is being made for prospecting
purposes only and not for the purpose of
obtaining minerals for use or sale:
Provided that-
(i) not more than twenty persons are
employed on any one day in
connection with any such excavation;
(ii) the depth of the excavation measured
from its highest to its lowest point
nowhere exceeds six metres or, in the
case of an excavation for coal, fifteen
12
W.P.(C) No.37039 of 2016- D
metres; and
(iii) no part of such excavation extends
below superjacent ground; or
(b) any mine engaged in the extraction of Kankar,
murrum, laterite, boulder, gravel, shingle,
ordinary sand (excluding moulding sand,
glass sand and other mineral sands), ordinary
clay (excluding kaolin, china clay, white clay
or fire clay), building stone, slate, road metal
earth, fullers earth, marl, chalk and lime
stone:
Provided that-
(i) the workings do not extend below
superjacent ground; or
(ii) where it is an open cast working-
(a) the depth of the excavation measured
13
W.P.(C) No.37039 of 2016- D
from its highest to its lowest point
nowhere exceeds six metres;
(b) the number of persons employed on
any one day does not exceed fifty; and
(c) explosives are not used in connection
with the excavation.
2. Notwithstanding anything contained in sub-
section (1), the Central Government may, if it
is satisfied that, having regard to the
circumstances obtaining in relation to a mine
or part thereof or group or class of mines, it
is necessary or desirable so to do, by
notification in the Official Gazette, declare
that any of th provisions of this Act, not set
out in sub-section (1), shall apply to any such
mine or part thereof or group or class of
14
W.P.(C) No.37039 of 2016- D
mines or any class of persons employed
therein.
(3) Without prejudice to the provisions contained
in sub-section (2), if at any time any of the
conditions specified in the proviso to clause
(a) or clause (b) of sub-section (1) is not
fulfilled in relation to any mine referred to in
that sub-section, the provisions of this Act
not set out in sub-section (1), shall become
immediately applicable, and it shall be the
duty of the owner, agent or manager of the
mine to inform the prescribed authority in the
prescribed manner and within the prescribed
time about the non-fulfilment."
10. The existence of any of the conditions in clause (a),
(b) or (c) would at once attract the provisions of the Mines Act,
15
W.P.(C) No.37039 of 2016- D
as has been held in AIR 1987 SC 1253 (Joint Director of
Mines Safety V M/s. Tandur and Nayandgi Stone Quarries
(P) Ltd.). The legislative intent so declared, as manifested by
the scheme of the Mines Act, though found to be primarily, to
ensure the safety of the workmen; there is no escaping from
the fact that the requirements there under would have to be
satisfied. It is also a given fact that none have examined the
depth of the excavation from the highest to the lowest point
and in any event the use of explosives is admitted.
11. When the Mines Act is applicable then the
Metalliferous Mines Regulations, 1961(Regulations for short)
would be applicable and the short-firers license produced at
Exhibits R7(d)&(e) would be insufficient to carry out the
blasting in a Mine as defined under the Mines Act, as is
specified in both the certificates. Rule 144 of the Explosives
Rules, 1983, by its proviso provides for a short-firer employed
16
W.P.(C) No.37039 of 2016- D
in a Mine to have the qualifications prescribed in the
regulations framed under the Act. Regulation160(2) requires a
blaster to be the holder of a Manager's, Foreman's, Mate's or
Blaster's Certificate. The other provisions of the Regulations
would also have to be complied with as has been dilated upon
in Rajmohan Nair. It has also been held in Rajmohan Nair
that a license issued in Form 23 of the Explosives Rules, would
not be sufficient to carry on blasting in a Mine coming within
the purview of the Mines Act, and a license; under Form 22, the
issuance of which has more stringent conditions as seen from
Rule 156 of the Explosives Rules, would be necessary.
12. Further the 'Specifications of MOSRT&H' under
Heading No.302 'Blasting Operations' under general
conditions prescribe so:
"Blasting shall be carried out in a manner that
completes the excavation to the lines indicated
17
W.P.(C) No.37039 of 2016- D
in drawings, with the least disturbance to
adjacent material. It shall be done only with the
written permission of the Engineer. All the
statutory laws, regulations, rules, etc:, pertaining
to the acquisition,, transport, storage, handling
and the use of explosives shall be strictly
followed."
Hence the contractor is obliged to follow all applicable laws
with respect to blasting and also has to ensure no damage to
the adjacent residences too.
13. Further this Court cannot shut its eyes to the
grievances ventilated by the petitioners as to their property
being endangered and the constant hazardous harassment to
which they are put to, by reason of the indiscriminate blasting
carried on without any caution for or care of the safety
standards. National development is of prime concern, but it
18
W.P.(C) No.37039 of 2016- D
cannot be advanced flouting the standards prescribed by the
various enactments and putting to peril the life and property
of the citizens. The arguments advanced by the contractor to
urge the expediency with which the work has to be completed,
is of no consequence when compared with the wide spread
damages alleged and the pollution caused. It is also, not as if
there are no alternative measures to remove the boulders and
rock-formations, to lay the road; which could be done
manually, but would be more time consuming and strenuous.
14. There should also be an expert opinion taken as
to the extent and capacity of blasting permitted, considering
the proximity of the residences and the time and frequency to
which it has to be limited. The complaint raised by the
petitioners is with respect to the large scale damage caused to
the residences of the petitioners as also the pollution
occasioned. The damage caused to the buildings is by reason
19
W.P.(C) No.37039 of 2016- D
of the blast induced ground vibrations, the intensity of which
would depend upon the quantity of explosives used, an
assessment of which has not been undertaken by the district
administration; by itself or through an expert agency. There is
also air pollution caused by the generation of air pressure and
noise, on the actual blasting, as also the debris thrown into the
atmosphere when the rock formations are turned into rubble.
The activity hence is also one coming within the ambit of The
Environment (Protection) Act, 1986 and The Environment
(Protection) Rules, 1986 (referred to as EP Act and EP Rules).
The standards prescribed by the PCB hence becomes
applicable and without a consent to operate there can be no
operations of blasting carried on which effectively is deemed
to be a "Mine" as defined under the Mines Act and quarrying of
minor mineral is carried on under the MMDR Act. The
hazardous effect of blasting carried on has to be assessed and
20
W.P.(C) No.37039 of 2016- D
the pollution occasioned too, has to be contained.
15. The fourth proviso to Rule 10, under Chapter II,
dealing with grant of quarrying permits and the fifth proviso to
Rule 40 of Chapter V, dealing with grant of quarrying leases, as
available in KMMC Rules prohibits use of explosives within a
distance as specified by the PCB. Hence the 7th respondent
would also be obliged to carry out the blasting work only with
a consent to operate from the PCB. The understanding of the
PCB that the requirements would not be applicable to such
road widening work is obviously wrong and contrary to the
statutory provisions. In such circumstance, the 7th respondent
would have to necessarily obtain a mining permit under the
KMMC Rules and a Consent to Operate from the PCB so as to
carry on the blasting works.
16. It is also to be verified whether the 7th
respondent would have to obtain an Environmental Clearance
21
W.P.(C) No.37039 of 2016- D
under the Environmental Impact Assessment Notification No.
2006 (SO 1533E) dated 14.09.2006 issued by the Ministry of
Environment and Forests and Climate Change; by S.O No. 141
(E) dtd. 15.01.2016. The EIA notification of 2006 provides by
paragraph 2, for Environmental Clearance for projects or
activities coming under Category 'A' in the Schedule, from the
Central Government in the Ministry of Environment, Forests
and Climate Change (MoEF&CC) and the State Environment
Impact Assessment Authority for matters falling under
Category B. The Schedule at serial number 7(f) includes
Highways, the 'Expansion of National Highways greater than
100 kilometers involving additional right of way or land
acquisition greater than 40 m on existing alignments and 60 m
on realignments or bypasses' as Category 'A'. The District
Geologist, who is approached for a permit under the KMMC
Rules shall verify whether the work undertaken by the 7th
22
W.P.(C) No.37039 of 2016- D
respondent is one requiring EC as provided in the EIA
notification.
17. The District administration also would have to
conduct a study by an expert agency, or the PCB as to the
depth and number of holes, their diameter, the quantity of
explosive charge used, the influence it has on the impact of the
blasts and so on and so forth to regulate the magnitude of the
ground vibrations and ensure that no damage is caused to the
'adjacent material' including buildings as has been specified in
the Specifications of MOSRT&H; if at all it is permitted as per
the specifications issued by the PCB as made applicable by the
KMMC Rules.
18. The 7th respondent would be entitled to
approach the appropriate authorities and continue with the
work after getting the requisite sanctions. However till such
time the permits are issued, the 7th respondent will be
23
W.P.(C) No.37039 of 2016- D
restrained from carrying out blasting operations, for the
purpose of the work carried on in the National Highway. The
District administration will ensure that no blasting operations
are carried out till the requisite sanctions and permits, as
discussed herein above, are obtained.
The writ petition would stand allowed. No costs.
Sd/-
K. VINOD CHANDRAN,
JUDGE
SB/20/12//2016 //true copy//
P.A to Judge
Thursday, January 12, 2017
BS-IV Must for Registering New Buses and Trucks in Kerala: Kerala High Court [Read Judgment]
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938
WP(C).No. 18028 of 2016 (C)
----------------------------
PETITIONER :
-----------------------
AUTOBAHN TRUCKING,
AUTOBAHN TRUCKING CORPORATION PVT. LTD.,
VIII/4248, NH 47, NEAR ATHANI JUNCTION,
NEDUMBASSERY P.O., KOCHI-683 585,
REPRESENTED BY ITS CHIEF OPERATING OFFICER.
BY ADV. SRI.V.KRISHNA MENON
RESPONDENTS:
--------------------------
1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF TRANSPORT,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM-1.
2. TRANSPORT COMMISSIONER,
TRANSPORT COMMISSIONERATE,
KERALAM, TRANS TOWERS,
THIRUVANANTHAPURAM-695 001.
BY SPL.GOVERNMENT PLEADER SRI.P.SANTHOSH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 22-11-2016, ALONG WITH WPC.NO. 20015/2016 AND CONNECTED
CASES, THE COURT ON 08-12-2016 DELIVERED THE FOLLOWING:
sts
WP(C).No. 18028 of 2016 (C)
------------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
---------------------------------------
P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE CENTRAL
GOVERNMENT.
P2 TRUE COPY OF THE CIRCULAR DATED 22-3-2016 ISSUED BY THE SECOND
RESPONDENT.
P3 TRUE COPY OF THE CIRCULAR DATED 29-4-2016 ISSUED BY THE SECOND
RESPONDENT.
RESPONDENT(S)' EXHIBITS: NIL
-----------------------------------------
/TRUE COPY/
P.A.TO JUDGE
sts
C.R.
P.B.SURESH KUMAR, J.
--------------------------------------------
WP.(C).Nos.18028, 20015, 24158, 24206, 25256
25477, 25478, 25629, 25646 & 26433 of 2016.
---------------------------------------------------------------
Dated this the 8th day of December, 2016
J U D G M E N T
The issue raised for consideration in this batch
of writ petitions is one and the same, and as such, they
are disposed of by this common judgment. The documents
referred to in this judgment are the documents produced
by the petitioner in WP.(C).No.18028 of 2016.
2. The petitioners are concerns/firms/
companies engaged in the trade of automobiles as
dealers of manufacturers. Mass Emission Standards to
regulate the output of air pollutants from internal
combustion engines of automobiles are set by the Central
Pollution Control Board and the same are implemented
WP.(C).No.18028 of 2016 & con. cases
: 2 :
place by place in the country by the Central Government by
amending the appropriate provision in the Central Motor
Vehicles Rules ('the Rules') framed under the Motor Vehicles
Act, 1988 ('the Act'). Sub Rule 15(a) of Rule 115 provides
that Bharat Stage IV Mass Emission Standards ('BS-IV
Standards') shall come into force in thirteen cities specified
therein in respect of four wheeled vehicles manufactured on
or after 1.4.2010, except the four wheeled transport vehicles
plying on inter-State Permits or National Permits or All India
Tourist Permits, within the jurisdiction of the cities
mentioned therein. Later, by virtue of the subsequent
amendments introduced in the form of provisos to sub rule
15(a) of Rule 115 of the Rules, BS-IV Standards have been
implemented in other cities/States also from the dates
mentioned in the said provisos. Ext.P1 is the latest
amendment to sub rule 15(a) of Rule 115 of the Rules. By
virtue of the said amendment, BS-IV Standards have been
introduced to a few States including the State of Kerala in
WP.(C).No.18028 of 2016 & con. cases
: 3 :
respect of four wheeled vehicles manufactured on or after
01.4.2016, except for the four wheeled transport vehicles
plying on inter-State Permits or National Permits or All India
Permits within the jurisdiction of the said States. According
to the petitioners, Ext.P1 amendment applies only to four
wheeled vehicles manufactured after 01.04.2016 and the
same does not apply to vehicles having more than four
wheels. The Transport Commissioner of the State
Government has also endorsed the said view initially by
issuing Ext.P2 circular to the Registering Authorities under
him by directing them to refrain from insisting BS-IV
Standards for vehicles having more than four wheels. Later,
the Transport Commissioner has issued Ext.P3 circular
clarifying that BS-IV Standards are applicable to vehicles
having more than four wheels also manufactured on or after
01.04.2016. These writ petitions are filed at that point of
time challenging Ext.P3 circular on the ground that Ext.P1
amendment does not apply to vehicles having more than
WP.(C).No.18028 of 2016 & con. cases
: 4 :
four wheels. Consequential reliefs are also sought in the writ
petitions.
3. Heard the learned counsel for the petitioners,
the learned Government Pleader as also the learned
Assistant Solicitor General.
4. Rule 2(k) of the Rules defines 'M' category
vehicles as under:
"(k) Category M" means a motor vehicle with at least four
wheels used for carrying Passengers"
Rule 2(o) of the Rules defines 'N' category vehicles as
under :
"Category 'N' as motor vehicle with at least four wheels used
for carrying goods which may also carry persons in addition to
the goods subject to the conditions specified in Para 3.2 of AIS
053-2005, as amended from time to time, till the
corresponding BIS specifications are notified under the Bureau
of Indian Standards Act, 1986 (63 of 1986)"
Sub rule 15 of Rule 115 of the Rules which deals with the
BS-IV Standards for 'M' and 'N' category vehicles, reads thus:
"15. Mass Emission Standards (Bharat Stage IV) for M and N
WP.(C).No.18028 of 2016 & con. cases
: 5 :
Category vehicles :
(a) the Mass Emission Standards for Bharat Stage IV shall
come into force in the National Capital Region and the cities of
Mumbai, Kolkata, Chennai, Bangalore, Hyderabad including
Secunderabad, Ahmedabad, Pune, Surat, Kanpur and Agra in
respect of four-wheeled vehicles manufactured on or after the 1st
April, 2010, except the four-wheeled transport vehicles plying on
Inter-State permits or National permits or All India Tourist permits
within the jurisdiction of these cities :
Provided that the Mass Emission Standards (Bharat Stage-
IV) shall be applicable in the cities of Sholapur and Lucknow in
respect of four wheeler vehicles manufactured on or after 1st June,
2010 except the four wheeler transport vehicles plying on Inter-
State Permits or National Permits or All India Tourist Permits, within
the jurisdiction of the said cities.
Provided further that the Mass Emission Standards (Bharat
Stage IV) shall be applicable in the cities of Puducherry, Mathura,
Vapi, Jamnagar, Ankaleshwar, Hissar, Bharatpur, Daman, Diu,
Silvasa, Unnao, Rae Bareilly, Aligarh, Karnal, Valsad, Yamuna
Nagar, Kurukshetra, Nizamabad, Medak and Mehboobnagar in
respect of four wheeled vehicles manufactured on or after the 1st
October, 2014 except the four wheeled transport vehicles plying on
Inter-State Permits or National Permit or All India Tourist Permits,
within the jurisdiction of the said cities.
WP.(C).No.18028 of 2016 & con. cases
: 6 :
Provided also that the Mass Emission Standards (Bharat
State IV) shall be applicable in the cities of Vrindavan, Kosi Kalan,
Hindaun city, Dholpur, Ahmednagar, Mahabaleshwar, Lonwala,
Palgarh, Dahanu, Talasari, Boisar, Panchagani, Mahad, Nagothana,
Indapura, Vizag, Kochi, Trivandrum, Kavaratti, Nagar, Dig, Nadbai,
Bhiwani, Jind, Mahendragarh, Hansi, Charki Dadri, Narnaul, Kiruli
and Fatehpur Sikri in respect of four wheeler vehicles
manufactured on or after the 15th July, 2015 except the four
wheeler transport vehicle plying on Inter-State Permits or National
Permits or All India Tourist Permits, within the jurisdiction of the
said cities.
Provided also that, without prejudice to the provisions
contained in the above provisos, the Mass Emission Standards,
Bharat Stage IV, shall be applicable to the States of Jammu and
Kashmir (except districts of Leh and Kargil), Punjab, Haryana,
Himachal Pradesh, Uttarakhand and district of Hanumangarh and
Sri Ganganagar in the State of Rajasthan and district of
Saharanpur, Muzaffarnagar, Bijnaur, Jyotiba Phule Nagar, rampur,
Moradabad, Aligarh, Badaun, Bareilly, Mathura, Mahamayanagar,
Etah, Agra, Firozabad, Etawah, Mainpuri, Pilibhit, Shamli, Sambhal,
Farrukabad, Kannauj, Auriya and Kasganj in the State of Uttar
Pradesh in respect of four wheeled vehicles manufactured on or
after the 1st October, 2015, except the four wheeled transport
vehicles plying on Inter-State Permits or National Permits or All
WP.(C).No.18028 of 2016 & con. cases
: 7 :
India Tourist Permits, within the jurisdiction of said district and
States :
Provided also that, without prejudice to the provisions
contained in the above provisos, the Mass Emission Standards,
Bharat Stage IV, shall be applicable in the States of Goa, Kerala,
Karnataka, Telangana, Odisha and the Union territories of Daman
and Diu, Dadra and Nagar Haveli and Andaman and Nicobar
Islands, districts of Mumbai, Thane and Pune in the State of
Maharashtra and districts of Surat, Valsad, Dangs and Tapi in the
State of Gujarat, in respect of four-wheeled vehicles manufactured
on or after the 1st April, 2010, except the four wheeled transport
vehicle plying on Inter-State Permits or National Permits or All India
Tourist Permits, within the jurisdiction of the said district and
States;
1st April, 2016, except the four wheeled transport vehicle plying on
Inter-State Permits or National Permits or All India Tourist Permits,
within the jurisdiction of the said district and States;
Explanation -- For the purposes of sub-rules (14) and (15), the
"National Capital Region" shall have the same meaning as
assigned to it in clause (f) of Section 2 of the National Capital
Region Planning Board Act, 1985 (2 of 1985).
(underline supplied)
WP.(C).No.18028 of 2016 & con. cases
: 8 :
The underlined provisos in the sub rule quoted above are the
provisos introduced by virtue of Ext.P1 amendment. As
recited in the provisos introduced to sub rule 15(a) of Rule
115 of the Rules earlier, the newly introduced fifth proviso
also recites that BS-IV Standards shall be applicable to four
wheeled vehicles manufactured on or after the date
mentioned therein other than the four wheeled vehicles
specifically excluded therein. It is placing reliance on the
expression 'four wheeled vehicles' contained in the provisos
including the fifth proviso, the petitioners contend that the
said proviso does not apply to vehicles having more than
four wheels. The short question therefore, is whether
vehicles having more than four wheels would fall within the
scope of the fifth proviso to sub rule 15(a) of Rule 115 of the
Rules introduced as per Ext.P1 amendment.
5. The learned counsel for the petitioners
vehemently contended that in so far as the provision in sub
rule 15(a) to the Rules and the provisos to the same, are
WP.(C).No.18028 of 2016 & con. cases
: 9 :
categoric in its terms that it applies only to four wheeled
vehicles, there is no scope for any doubt that it does not
apply to vehicles having more than four wheels. According
to the learned counsel, the policy of the Central Government
is to introduce BS-IV Standards to vehicles stage by stage
and place by place in the country and therefore, if one look
at the provision contained in sub rule 15(a) and the
amendments introduced to the said provision from time to
time in the light of the said policy, it is evident beyond doubt
that there is no intention to implement BS-IV Standards for
vehicles having more than four wheels and the expression
'four wheeled vehicles' has been used in the provision for
the said purpose. Per contra, the learned Assistant Solicitor
General as also the learned Special Government Pleader
contended that sub rule 15 of Rule 115 of the Rules deals
with the BS-IV Standards for 'M' and 'N' category vehicles
including vehicles having more than four wheels and
therefore, such vehicles would also come within the scope of
WP.(C).No.18028 of 2016 & con. cases
: 10 :
the provision.
6. The fact that BS-IV Standards have been
made applicable to all four wheeled vehicles coming under
'M' and 'N' categories in the State with effect from 1.4.2016
is not in dispute. Likewise, the fact that vehicles having
more than four wheels would also come under 'M' and 'N'
categories is not in dispute. Rule 115 of the Rules is the
rule dealing with emission of smoke, vapour etc. from motor
vehicles. Sub rules 1 to 14 of Rule 115 deal with the Mass
Emission Standards applicable to vehicles before the
introduction of BS-IV Standards. In all these rules, the
vehicles are categorized only into two wheelers, three
wheelers and four wheelers, wherever the categorization is
warranted. That is the scheme of Rule 115. There is no
reference in sub rules 1 to 14 about vehicles having more
than four wheels. Sub rules 15 to 17 deal specifically with
BS-IV Standards, of which sub rule 15 deals with 'M' and 'N'
category vehicles, sub rule 16 deals with two wheelers and
WP.(C).No.18028 of 2016 & con. cases
: 11 :
sub rule 17 deals with three wheelers. Out of the said sub
rules, sub rule 15 was introduced by way of an amendment
to the Rules on 9.2.2009. The provisos to the said provision
were introduced later from 2010 to 2016. Neither in the
provision nor in its amendments made during the last 6
years, vehicles having wheels more than 4 have been
specifically included. Instead, a common expression viz. 'four
wheeled vehicles' is used in all the provisions. If one look at
sub rule 15 in the light of the scheme of Rule 115 as
aforesaid, it is evident that the expression four wheeled
vehicles contained in sub rule 15(a) is intended to cover all
motor vehicles coming under 'M' and 'N' categories. Further,
when BS-IV Standards have been implemented throughout
the country even for two wheeled and three wheeled
vehicles manufactured after 1.4.2016, there is no reason at
all to exempt vehicles having more than four wheels from
the implementation of BS-IV StandardS. There is yet another
reason also for me to come to the said conclusion. That is
WP.(C).No.18028 of 2016 & con. cases
: 12 :
the heading of sub rule 15. The heading of sub rule 15 is
'Mass Emission Standards (Bharath Stage IV) for 'M' and 'N'
category vehicles'. It is now trite that headings prefixed to a
Rule can be regarded as preambles to the Rule and though
they may not control the plain words of the statute, the
same would certainly explain ambiguous words and if there
is any doubt as to the interpretation of the words in the rule,
the heading would certainly help to resolve the ambiguity
(See Bhinka and others v. Charan Singh (AIR 1959 SC
960). Therefore, it is possible to infer the conclusion arrived
at by me from the heading of the sub rule also. Above all, it
is a settled principle of interpretation that the words of a
statute must be understood in the sense which the
legislature has in view and their meaning must not be found
so much in a strictly grammatical or etymological propriety
of language [See Union of India v. Sankalchand Himatlal
Sheth (1977) 4 SCC 193]. While reiterating the said
proposition, the Apex Court in Union of India v.
WP.(C).No.18028 of 2016 & con. cases
: 13 :
Sankalchand Himatlal Sheth (supra) has referred to the
view expressed by the Supreme Court of United States in
Towne v. Eisner [(1917) 245 US 418] which reads thus:
"The words used in a statute cannot be read in isolation:
their colour and content are derived from their context,
and, therefore, every word in a statute must be
examined in its context. And when I use the word
'context', I mean it in its widest sense as including not
only other enacting provisions of the same statute, but
its preamble, the existing state of the law, other statutes
in the pari materia and the mischief which - the statute
was intended to remedy".
For all the aforesaid reasons, I have no hesitation to hold
that Ext.P1 amendment applies to all 'M' and 'N' category
vehicles. There is, therefore, no merit in the writ petitions
and the same are, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR
JUDGE
rsr
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938
WP(C).No. 18028 of 2016 (C)
----------------------------
PETITIONER :
-----------------------
AUTOBAHN TRUCKING,
AUTOBAHN TRUCKING CORPORATION PVT. LTD.,
VIII/4248, NH 47, NEAR ATHANI JUNCTION,
NEDUMBASSERY P.O., KOCHI-683 585,
REPRESENTED BY ITS CHIEF OPERATING OFFICER.
BY ADV. SRI.V.KRISHNA MENON
RESPONDENTS:
--------------------------
1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF TRANSPORT,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM-1.
2. TRANSPORT COMMISSIONER,
TRANSPORT COMMISSIONERATE,
KERALAM, TRANS TOWERS,
THIRUVANANTHAPURAM-695 001.
BY SPL.GOVERNMENT PLEADER SRI.P.SANTHOSH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 22-11-2016, ALONG WITH WPC.NO. 20015/2016 AND CONNECTED
CASES, THE COURT ON 08-12-2016 DELIVERED THE FOLLOWING:
sts
WP(C).No. 18028 of 2016 (C)
------------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
---------------------------------------
P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE CENTRAL
GOVERNMENT.
P2 TRUE COPY OF THE CIRCULAR DATED 22-3-2016 ISSUED BY THE SECOND
RESPONDENT.
P3 TRUE COPY OF THE CIRCULAR DATED 29-4-2016 ISSUED BY THE SECOND
RESPONDENT.
RESPONDENT(S)' EXHIBITS: NIL
-----------------------------------------
/TRUE COPY/
P.A.TO JUDGE
sts
C.R.
P.B.SURESH KUMAR, J.
--------------------------------------------
WP.(C).Nos.18028, 20015, 24158, 24206, 25256
25477, 25478, 25629, 25646 & 26433 of 2016.
---------------------------------------------------------------
Dated this the 8th day of December, 2016
J U D G M E N T
The issue raised for consideration in this batch
of writ petitions is one and the same, and as such, they
are disposed of by this common judgment. The documents
referred to in this judgment are the documents produced
by the petitioner in WP.(C).No.18028 of 2016.
2. The petitioners are concerns/firms/
companies engaged in the trade of automobiles as
dealers of manufacturers. Mass Emission Standards to
regulate the output of air pollutants from internal
combustion engines of automobiles are set by the Central
Pollution Control Board and the same are implemented
WP.(C).No.18028 of 2016 & con. cases
: 2 :
place by place in the country by the Central Government by
amending the appropriate provision in the Central Motor
Vehicles Rules ('the Rules') framed under the Motor Vehicles
Act, 1988 ('the Act'). Sub Rule 15(a) of Rule 115 provides
that Bharat Stage IV Mass Emission Standards ('BS-IV
Standards') shall come into force in thirteen cities specified
therein in respect of four wheeled vehicles manufactured on
or after 1.4.2010, except the four wheeled transport vehicles
plying on inter-State Permits or National Permits or All India
Tourist Permits, within the jurisdiction of the cities
mentioned therein. Later, by virtue of the subsequent
amendments introduced in the form of provisos to sub rule
15(a) of Rule 115 of the Rules, BS-IV Standards have been
implemented in other cities/States also from the dates
mentioned in the said provisos. Ext.P1 is the latest
amendment to sub rule 15(a) of Rule 115 of the Rules. By
virtue of the said amendment, BS-IV Standards have been
introduced to a few States including the State of Kerala in
WP.(C).No.18028 of 2016 & con. cases
: 3 :
respect of four wheeled vehicles manufactured on or after
01.4.2016, except for the four wheeled transport vehicles
plying on inter-State Permits or National Permits or All India
Permits within the jurisdiction of the said States. According
to the petitioners, Ext.P1 amendment applies only to four
wheeled vehicles manufactured after 01.04.2016 and the
same does not apply to vehicles having more than four
wheels. The Transport Commissioner of the State
Government has also endorsed the said view initially by
issuing Ext.P2 circular to the Registering Authorities under
him by directing them to refrain from insisting BS-IV
Standards for vehicles having more than four wheels. Later,
the Transport Commissioner has issued Ext.P3 circular
clarifying that BS-IV Standards are applicable to vehicles
having more than four wheels also manufactured on or after
01.04.2016. These writ petitions are filed at that point of
time challenging Ext.P3 circular on the ground that Ext.P1
amendment does not apply to vehicles having more than
WP.(C).No.18028 of 2016 & con. cases
: 4 :
four wheels. Consequential reliefs are also sought in the writ
petitions.
3. Heard the learned counsel for the petitioners,
the learned Government Pleader as also the learned
Assistant Solicitor General.
4. Rule 2(k) of the Rules defines 'M' category
vehicles as under:
"(k) Category M" means a motor vehicle with at least four
wheels used for carrying Passengers"
Rule 2(o) of the Rules defines 'N' category vehicles as
under :
"Category 'N' as motor vehicle with at least four wheels used
for carrying goods which may also carry persons in addition to
the goods subject to the conditions specified in Para 3.2 of AIS
053-2005, as amended from time to time, till the
corresponding BIS specifications are notified under the Bureau
of Indian Standards Act, 1986 (63 of 1986)"
Sub rule 15 of Rule 115 of the Rules which deals with the
BS-IV Standards for 'M' and 'N' category vehicles, reads thus:
"15. Mass Emission Standards (Bharat Stage IV) for M and N
WP.(C).No.18028 of 2016 & con. cases
: 5 :
Category vehicles :
(a) the Mass Emission Standards for Bharat Stage IV shall
come into force in the National Capital Region and the cities of
Mumbai, Kolkata, Chennai, Bangalore, Hyderabad including
Secunderabad, Ahmedabad, Pune, Surat, Kanpur and Agra in
respect of four-wheeled vehicles manufactured on or after the 1st
April, 2010, except the four-wheeled transport vehicles plying on
Inter-State permits or National permits or All India Tourist permits
within the jurisdiction of these cities :
Provided that the Mass Emission Standards (Bharat Stage-
IV) shall be applicable in the cities of Sholapur and Lucknow in
respect of four wheeler vehicles manufactured on or after 1st June,
2010 except the four wheeler transport vehicles plying on Inter-
State Permits or National Permits or All India Tourist Permits, within
the jurisdiction of the said cities.
Provided further that the Mass Emission Standards (Bharat
Stage IV) shall be applicable in the cities of Puducherry, Mathura,
Vapi, Jamnagar, Ankaleshwar, Hissar, Bharatpur, Daman, Diu,
Silvasa, Unnao, Rae Bareilly, Aligarh, Karnal, Valsad, Yamuna
Nagar, Kurukshetra, Nizamabad, Medak and Mehboobnagar in
respect of four wheeled vehicles manufactured on or after the 1st
October, 2014 except the four wheeled transport vehicles plying on
Inter-State Permits or National Permit or All India Tourist Permits,
within the jurisdiction of the said cities.
WP.(C).No.18028 of 2016 & con. cases
: 6 :
Provided also that the Mass Emission Standards (Bharat
State IV) shall be applicable in the cities of Vrindavan, Kosi Kalan,
Hindaun city, Dholpur, Ahmednagar, Mahabaleshwar, Lonwala,
Palgarh, Dahanu, Talasari, Boisar, Panchagani, Mahad, Nagothana,
Indapura, Vizag, Kochi, Trivandrum, Kavaratti, Nagar, Dig, Nadbai,
Bhiwani, Jind, Mahendragarh, Hansi, Charki Dadri, Narnaul, Kiruli
and Fatehpur Sikri in respect of four wheeler vehicles
manufactured on or after the 15th July, 2015 except the four
wheeler transport vehicle plying on Inter-State Permits or National
Permits or All India Tourist Permits, within the jurisdiction of the
said cities.
Provided also that, without prejudice to the provisions
contained in the above provisos, the Mass Emission Standards,
Bharat Stage IV, shall be applicable to the States of Jammu and
Kashmir (except districts of Leh and Kargil), Punjab, Haryana,
Himachal Pradesh, Uttarakhand and district of Hanumangarh and
Sri Ganganagar in the State of Rajasthan and district of
Saharanpur, Muzaffarnagar, Bijnaur, Jyotiba Phule Nagar, rampur,
Moradabad, Aligarh, Badaun, Bareilly, Mathura, Mahamayanagar,
Etah, Agra, Firozabad, Etawah, Mainpuri, Pilibhit, Shamli, Sambhal,
Farrukabad, Kannauj, Auriya and Kasganj in the State of Uttar
Pradesh in respect of four wheeled vehicles manufactured on or
after the 1st October, 2015, except the four wheeled transport
vehicles plying on Inter-State Permits or National Permits or All
WP.(C).No.18028 of 2016 & con. cases
: 7 :
India Tourist Permits, within the jurisdiction of said district and
States :
Provided also that, without prejudice to the provisions
contained in the above provisos, the Mass Emission Standards,
Bharat Stage IV, shall be applicable in the States of Goa, Kerala,
Karnataka, Telangana, Odisha and the Union territories of Daman
and Diu, Dadra and Nagar Haveli and Andaman and Nicobar
Islands, districts of Mumbai, Thane and Pune in the State of
Maharashtra and districts of Surat, Valsad, Dangs and Tapi in the
State of Gujarat, in respect of four-wheeled vehicles manufactured
on or after the 1st April, 2010, except the four wheeled transport
vehicle plying on Inter-State Permits or National Permits or All India
Tourist Permits, within the jurisdiction of the said district and
States;
1st April, 2016, except the four wheeled transport vehicle plying on
Inter-State Permits or National Permits or All India Tourist Permits,
within the jurisdiction of the said district and States;
Explanation -- For the purposes of sub-rules (14) and (15), the
"National Capital Region" shall have the same meaning as
assigned to it in clause (f) of Section 2 of the National Capital
Region Planning Board Act, 1985 (2 of 1985).
(underline supplied)
WP.(C).No.18028 of 2016 & con. cases
: 8 :
The underlined provisos in the sub rule quoted above are the
provisos introduced by virtue of Ext.P1 amendment. As
recited in the provisos introduced to sub rule 15(a) of Rule
115 of the Rules earlier, the newly introduced fifth proviso
also recites that BS-IV Standards shall be applicable to four
wheeled vehicles manufactured on or after the date
mentioned therein other than the four wheeled vehicles
specifically excluded therein. It is placing reliance on the
expression 'four wheeled vehicles' contained in the provisos
including the fifth proviso, the petitioners contend that the
said proviso does not apply to vehicles having more than
four wheels. The short question therefore, is whether
vehicles having more than four wheels would fall within the
scope of the fifth proviso to sub rule 15(a) of Rule 115 of the
Rules introduced as per Ext.P1 amendment.
5. The learned counsel for the petitioners
vehemently contended that in so far as the provision in sub
rule 15(a) to the Rules and the provisos to the same, are
WP.(C).No.18028 of 2016 & con. cases
: 9 :
categoric in its terms that it applies only to four wheeled
vehicles, there is no scope for any doubt that it does not
apply to vehicles having more than four wheels. According
to the learned counsel, the policy of the Central Government
is to introduce BS-IV Standards to vehicles stage by stage
and place by place in the country and therefore, if one look
at the provision contained in sub rule 15(a) and the
amendments introduced to the said provision from time to
time in the light of the said policy, it is evident beyond doubt
that there is no intention to implement BS-IV Standards for
vehicles having more than four wheels and the expression
'four wheeled vehicles' has been used in the provision for
the said purpose. Per contra, the learned Assistant Solicitor
General as also the learned Special Government Pleader
contended that sub rule 15 of Rule 115 of the Rules deals
with the BS-IV Standards for 'M' and 'N' category vehicles
including vehicles having more than four wheels and
therefore, such vehicles would also come within the scope of
WP.(C).No.18028 of 2016 & con. cases
: 10 :
the provision.
6. The fact that BS-IV Standards have been
made applicable to all four wheeled vehicles coming under
'M' and 'N' categories in the State with effect from 1.4.2016
is not in dispute. Likewise, the fact that vehicles having
more than four wheels would also come under 'M' and 'N'
categories is not in dispute. Rule 115 of the Rules is the
rule dealing with emission of smoke, vapour etc. from motor
vehicles. Sub rules 1 to 14 of Rule 115 deal with the Mass
Emission Standards applicable to vehicles before the
introduction of BS-IV Standards. In all these rules, the
vehicles are categorized only into two wheelers, three
wheelers and four wheelers, wherever the categorization is
warranted. That is the scheme of Rule 115. There is no
reference in sub rules 1 to 14 about vehicles having more
than four wheels. Sub rules 15 to 17 deal specifically with
BS-IV Standards, of which sub rule 15 deals with 'M' and 'N'
category vehicles, sub rule 16 deals with two wheelers and
WP.(C).No.18028 of 2016 & con. cases
: 11 :
sub rule 17 deals with three wheelers. Out of the said sub
rules, sub rule 15 was introduced by way of an amendment
to the Rules on 9.2.2009. The provisos to the said provision
were introduced later from 2010 to 2016. Neither in the
provision nor in its amendments made during the last 6
years, vehicles having wheels more than 4 have been
specifically included. Instead, a common expression viz. 'four
wheeled vehicles' is used in all the provisions. If one look at
sub rule 15 in the light of the scheme of Rule 115 as
aforesaid, it is evident that the expression four wheeled
vehicles contained in sub rule 15(a) is intended to cover all
motor vehicles coming under 'M' and 'N' categories. Further,
when BS-IV Standards have been implemented throughout
the country even for two wheeled and three wheeled
vehicles manufactured after 1.4.2016, there is no reason at
all to exempt vehicles having more than four wheels from
the implementation of BS-IV StandardS. There is yet another
reason also for me to come to the said conclusion. That is
WP.(C).No.18028 of 2016 & con. cases
: 12 :
the heading of sub rule 15. The heading of sub rule 15 is
'Mass Emission Standards (Bharath Stage IV) for 'M' and 'N'
category vehicles'. It is now trite that headings prefixed to a
Rule can be regarded as preambles to the Rule and though
they may not control the plain words of the statute, the
same would certainly explain ambiguous words and if there
is any doubt as to the interpretation of the words in the rule,
the heading would certainly help to resolve the ambiguity
(See Bhinka and others v. Charan Singh (AIR 1959 SC
960). Therefore, it is possible to infer the conclusion arrived
at by me from the heading of the sub rule also. Above all, it
is a settled principle of interpretation that the words of a
statute must be understood in the sense which the
legislature has in view and their meaning must not be found
so much in a strictly grammatical or etymological propriety
of language [See Union of India v. Sankalchand Himatlal
Sheth (1977) 4 SCC 193]. While reiterating the said
proposition, the Apex Court in Union of India v.
WP.(C).No.18028 of 2016 & con. cases
: 13 :
Sankalchand Himatlal Sheth (supra) has referred to the
view expressed by the Supreme Court of United States in
Towne v. Eisner [(1917) 245 US 418] which reads thus:
"The words used in a statute cannot be read in isolation:
their colour and content are derived from their context,
and, therefore, every word in a statute must be
examined in its context. And when I use the word
'context', I mean it in its widest sense as including not
only other enacting provisions of the same statute, but
its preamble, the existing state of the law, other statutes
in the pari materia and the mischief which - the statute
was intended to remedy".
For all the aforesaid reasons, I have no hesitation to hold
that Ext.P1 amendment applies to all 'M' and 'N' category
vehicles. There is, therefore, no merit in the writ petitions
and the same are, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR
JUDGE
rsr
Subscribe to:
Comments (Atom)