Kerala High CourtThe Geologist vs Sabu Varghese on 13 March, 2020Author:Shaji P.ChalyBench:S.Manikumar,Shaji P.ChalyIN THE HIGH COURT OF KERALA AT ERNAKULAM\n\n                              PRESENT\n\n          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR\n\n                                 &\n\n             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY\n\n     FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941\n\n                         WA.No.535 OF 2020\n\nAGAINST THE JUDGMENT IN WP(C) 2660/2020(F) OF HIGH COURT OF KERALA\n\n\nAPPELLANTS/RESPONDENTS 1 & 2 IN W.P.(C):\n\n      1      THE GEOLOGIST\n             MINING AND GEOLOGY DISTRICT OFFICE, CIVIL STATION,\n             KAKKANAD (PO), ERNAKULAM-682030.\n\n      2      THE TAHSILDAR,\n             MUVATTUPUZHA TALUK OFFICE, MUDAVOOR (PO), ERNAKULAM\n             DISTRICT-686669.\n\n             BY ADV. SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL\n\nRESPONDENT/PETITIONER IN W.P.(C):\n\n             SABU VARGHESE,\n             AGED 47 YEARS\n             S/O.K.C.VARGHESE, KORINGOLITHADATHIL HOUSE, KARIMPANA\n             (PO), KOOTHATTUKULAM,\n             ERNAKULAM DISTRICT-686662.\n\n             R1 BY ADV. SRI.JOBI JOSE KONDODY\n             SPL. GP. SRI. HANIL KUMAR\n\n     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2020,\nTHE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:\n WA.No.535 OF 2020                        2\n\n\n\n\n                               JUDGMENTSHAJI P.CHALY,J\n\n       This appeal is preferred by respondents 1 & 2 in the writ petition i.e.,\n\n the Geologist, Mining and Geology District Office, Ernakulam and Tahsildar,\n\n Muvattupuzha Taluk Office, Ernakulam District challenging the judgment of\n\n the learned Single Judge dated 11.2.2020 in W.P.(C) No.2660/2020. The\n\n subject issue relates to quarrying operations conducted by the writ\n\n petitioner i.e., respondent in this appeal for mining building stones from his\n\n property comprised in Survey Nos.465/1-1, 466/1C-1, 466/1C-2 & 466/1-A1\n\n in Palakkuzha Village, Muvattupuzha Taluk, Ernakulam District after\n\n obtaining all statutory permissions from the concerned departments. Writ\n\n petitioner is in possession of 12.5 acres of land, which includes 0.9857\n\n hectares of land, to which Ext.P5 quarrying permit was issued by the 1 st\n\n respondent/1st appellant under the provisions of the Kerala Minor Mineral\n\n Concession Rules, 2015. During the currency of Ext.P5, and while writ\n\n petitioner was carrying out quarrying operations, the 2nd appellant\n\n intimated the respondent that the area were quarrying is permitted\n\n includes the land assigned to the predecessor of the writ petitioner under\n\n the Kerala Land Assignment Rules and based on such a report, the 1 st\n\n respondent issued stop memo to the writ petitioner. When joint inspectionWA.No.535 OF 2020                        3was conducted in the assigned land and original patta land of the writ\n\n petitioner by the Mining and Geology Department and the Revenue\n\n Department, they found that some area of the Government puramboke\n\n land had been illegally mined, for which liability was proposed to be\n\n fastened on the writ petitioner and Ext.P6 show cause notice was issued.\n\n writ petitioner has submitted Ext.P7 reply and there was no further action\n\n thereafter. But when the writ petitioner applied for fresh sketch and plan of\n\n his   property   exempting   the   assigned   land   before   the   Tahsildar,\n\n Muvattupuzha Taluk in order to produce the same before the Geologist\n\n under rule 4 of the Minor Mineral Concession Rules, 2015, it was declined\n\n as per Ext.P9 order stating that a land conservancy case has been\n\n registered against the writ petitioner under theLand Conservancy Act.2. The case projected by the writ petitioner was that both the\n\n proceedings are different and independent of each other and therefore,\n\n the denial of sketch and plan of the property of the writ petitioner by the\n\n Tahsilar cannot be justified. It was accordingly that the writ petition was\n\n filed seeking to quash Ext.P9 order of the Tahsildar alleging that the said\n\n order is illegal, arbitrary and mala fide. It was also contended that Ext.P9\n\n order is passed without any application of mind. That apart it was\n\n contended that Ext.P9 order is passed without assigning any proper\n\n reasons and therefore, cannot be sustained under law.WA.No.535 OF 2020                         43. The learned Single Judge after considering the rival submissions,\n\n without entering into the merits of the controversy, ordered that it is for the\n\n 2nd appellant to take further steps to finalise action under theKerala Land\n\n Conservancy Actin relation to the alleged unauthorized quarrying said to\n\n have been carried out in the nearby Government puramboke land and if\n\n any adverse action is taken against the writ petitioner, it shall be ensured\n\n that the writ petitioner is afforded prior reasonable opportunity in that\n\n regard and only after affording such reasonable opportunity to the writ\n\n petitioner, any such action should be finalised. But it was ordered that the\n\n 2nd appellant Tahsildar will ensure that an authenticated copy of Ext.R2(a)\n\n sketch is given to the writ petitioner enabling the writ petitioner to produce\n\n the same before the Geologist for pursuing his application for the grant of\n\n quarrying permit as per the Kerala Minor Mineral Concession Rules, 2015.\n\n In fact, the appeal is preferred by the appellants confining the challenge to\n\n the direction issued by the learned Single Judge, to issue the authenticated\n\n copy of Ext.R2(a) sketch to the writ petitioner.4. The paramount contention advanced by the appellants is that, the\n\n Tahsildar had already provisionally found that Rs.3,37,67,325/- is due from\n\n the writ petitioner towards seigniorage/compensation and damages undersection 6of the Kerala Land Conservancy Act, and that the writ petitioner\n\n was liable to pay the said amount on account of the illegal quarryingWA.No.535 OF 2020                       5operations conducted by the writ petitioner and therefore, the learned\n\n Single Judge was not right in directing the Tahsilar to issue authenticated\n\n copy of Ext.R2(a) sketch due to the fact that the quarrying permit\n\n conditions obligated the writ petitioner to not to carry out quarrying\n\n operations encroaching into any other area.5. The sum and substance of the contention advanced by the\n\n appellants is that since the writ petitioner has conducted quarrying\n\n operations in violation of the statutory quarrying lease/permit conditions,\n\n the writ petitioner is not entitled to get any renewal or issue of quarrying\n\n permit unless and until it is found that writ petitioner was not responsible\n\n for carrying out unauthorised quarrying operations.6.   We     have   heard    learned      Senior   Government   Pleader\n\n Sri.M.H.Hanilkumar and learned counsel appearing for respondent/writ\n\n petitioner Sri.Sabu Varghese.7. The conditions for quarrying permit is dealt with under rule 4 of\n\n the Kerala Minor Mineral Concession Rules, 2015. Rule 10 deals with the\n\n quarrying conditions whereby the quarrying operations is to be carried out\n\n by any permit holder strictly complying with the conditions contained\n\n thereunder. Apparently show cause notice is issued to the writ petitioner,\n\n evident from Ext.P6 and the writ petitioner has filed objection to the same.\n\n So also notice undersection 12of the Land Conservancy Act is issued toWA.No.535 OF 2020                        6the petitioner, evident from Annexure 2 dated 29.2.2020 produced along\n\n with the writ appeal. Therefore, unless and until the said proceedings are\n\n finalised and writ petitioner is found to be innocent in the allegations made\n\n in the aforesaid notices, writ petitioner is not entitled to get further\n\n quarrying permit as per the statutory prescription contained under rule 10\n\n of the Rules, 2013. In that view of the matter, we are of the opinion that\n\n the direction issued by the learned Single Judge to issue authenticated\n\n copy of Ext.R2(a) sketch to the writ petitioner is not proper and legal.8. Accordingly, Judgment dated 11.2.2020 in W.P.(C) No.2660/2020 is\n\n modified to the effect that the proceedings initiated by the Geologist,\n\n Mining and Geology District Office, Ernakulam, Appellant No.1, in Ext.P6\n\n show cause notice dated 7.11.2019 alleging unauthorized mining and\n\n further proceedings in Annexure 2 notice issued undersection 12of the\n\n Kerala Land Conservancy Act, 1958, calling for explanation as to why action\n\n should not be taken against the unauthorized trespass into the Government\n\n puramboke land can go on, for which explanations are stated to have been\n\n given by the respondent. For brevity proceedings are extracted hereunder:Ext.P6 show cause notice\n\n  No: D.O.E/1661/E2/18                       Mining & Geology Department\n                                                 District Office, Ernakulam\n                                                  Civil Station, Kakkanad\n                                              Kochi-30, Phone 0484-2422354\n                                                 geo[email protected]Date: 07.11.2019WA.No.535 OF 2020                            7SHOW CAUSE NOTICE\n     Sub: Mines and minerals - Minor minerals - mining of building stones- taking\n         further steps - reg.Ref (1) Kerala Minor Mineral Concession Rules, 2015\n          (2) Quarrying Permit No. 24/18-19 /MM/GS/QP/DOE/1661/E2/18 dated\n              13.09.2018 issued to you\n          (3) Letter No. C4-4884/17(1) dated 22.11.2018 of the Tahsildar,\n              Muvattupuzha\n          (4) Joint Inspection conducted on 16.10.2019\n\n\n           Refer to the above. You have been issued with a quarrying permit\n    having validity upto 12.09.2019 for mining building stones from 0.9857\n    hectares of land comprised in Survey Nos. 466/1A1, 466/1C1, 466/1C2 and\n    465/1-1 of Palakkuzha Village in Muvattupuzha Taluk. The Muvattupuzha\n    Tahsildar rd reported to this Office vide 3 rd   reference that the property\n    extending to 28.33 Ares of land comprised in Survey No. 465/1-1 is assigned\n    land vide LA-1/17. Thereafter based on the joint inspection vide 4th reference\n    conducted in the property it was found that you have mined illegally, outside\n    the quarrying permit area, from Government Puramboke land comprised in\n    Survey Nos. 467/1 and 466/1B. In these circumstance you are directed to\n    appear within 7 days of receipt of this notice and give explanation regarding\n    the same. Else appropriate legal action will be taken against you vide 1 st\n    reference Rules without any further notice.Sd/-Geologist\n                                                                         (Seal)\n   Receipient: Sri. Sabu Varghese, Koringolithadathil, Karimpana (PO)\n    Copy to: Tahsildar, Muvattupuzha.Annexure 2 notice\n\n                                B.Form\n                                (Rule 9)WA.No.535 OF 2020                                       8No.L.C.-4/2020                                              Taluk Office\n                                                            Muvattupuzha\n                  NOTICE ISSUED UNDER SECTION 12 OF ACT 8 OF 1958\n\n  ToShri. Sabu Varghese, Koringoli Thadathil House,\n       Palakkuzha who is the party in L.C.No.4/2020 of the year 2020.WHEREAS , you have unauthorisedly trespassed into the Government\n    puramboke Land, more particularly described in the schedule herein below,\n    without any authority and as it is reported that you carried out quarrying of\n    granite/rocks from the area, which has been found to be correct; you are\n    hereby directed, in the event you so desire, to appear before the undersigned,\n    either in person or through a duly authorised agent, at 11.00 a.m. on 11 th day\n    of March, 2020; and show cause why action should not be initiated against\n    you, as per the provisions in the Act, and pass an order and this notice is\n    issued to inform you.---------------------------------------------------------------------------------------------------Village           Sy.No. &         Description        Total          Extent       Type of\n                    Sub Dn.No.        of land           extent        encroached      entry--------------------------------------------------------------------------------------------\n Palakkuzha       466/1-B        Government              ....            47/87.      Unauthorised\n                                  Barren                               (47.87)     trespassed\n                                  land                                              upon and\n                                                                                   quarrying of\n                                                                                      rocks---------------------------------------------------------------------------------------------Sd.Tahsildar (Land Records)\n\n    Notice:- This notice should be served on the trespasser on the puramboke\n    land or any one who is the eldest main member of the family of the\n    trespasser or a duty authorised agent, and if this is not possible to affix a\n    copy of this notice on a prominent place of the last residence of the\n    trespasser and returned to this office.Sd.Village Officer\n    Notice served on Sabu Varghese                                  Palakkuzha\n\n       Sd.Aji K.(VA)\n        M.CWA.No.535 OF 2020                         9After conclusion of the proceedings initiated under the Kerala Minor\n\n Mineral Concession Rules, 2015,Kerala Land Conservancy Act, 1961and the\n\n Rules thereto, and depending upon the outcome of the above said\n\n proceedings, the Village Officer may proceed to consider the application to\n\n issue the sketch in terms of rule 4(2)(a) of the         Kerala Minor Mineral\n\n Concession Rules, 2015, and theKerala Survey and Boundaries Actand Rules.\n\n Proceedings initiated under the above specified Acts and Rules, shall be\n\n completed by the respective competent authority within one month from the\n\n date of receipt of a copy of this judgment.Writ appeal is partly allowed and modified to the above extent.Sd/-S.MANIKUMAR\n\n                                                 CHIEF JUSTICE\n\n\n\n\n                                                       Sd/-SHAJI P.CHALY\n\nsmv                                                   JUDGEWA.No.535 OF 2020                10APPENDIX\nPETITIONER'S EXHIBITS:\n\nANNEXURE A1          TRUE COPY OF THE JOINT INSPECTION REPORT\n                     DATED 16.10.2019 WITH ENGLISH TRANSLATION.\n\nANNEXURE A2          THE TRUE COPY OF THE NOTICE DATED\n                     29.02.2019 WITH ENGLISH TRANSLATION.