Abdul Nazar P. v. State of Kerala & Others

**WP(C).No. 8018 of 2016 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY,THE 21ST DAY OF DECEMBER 2018 / 8TH AGRAHAYANA, 1940** ## **WP(C).No. 8018 of 2016** ## **PETITIONER:** **ABDUL NAZAR P., AGED 54 YEARS S/O.KUNJABDULLA HAJI, “THEERAM” EMILY, KALPATA NORTH P.O., WAYANAD-673122.** **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINING DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DISTRICT COLLECTOR, COLLECTORATE, KALPETTA, WAYANAD DISTRICT-673121.** - **3 ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, KALPATTA, WAYANAD DISTRICT-673121** - **4 LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM-695001.** - **5 DIVISIONAL FOREST OFFICER, SOUTH WAYANAD DIVISION, KALPATTA - 673121. SR GP -SRI T.RAJASEKHARAN NAIR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON 21.12.2018 DELIVERED THE FOLLOWING:** **WP(C).No. 8018 of 2016 2** ## **V.G.ARUN, J.** ----------------------------------------------- ## W.P.(C) No.8018 of 2016 ----------------------------------------------- Dated this the 21[st] day of December, 2018 ## **JUDGMENT** The petitioner was conducting a quarry in 34 cents of land comprised in resurvey No.154/2 of Block No.II in Kalpetta village, Vythiry taluk in Wayanad District. The petitioner contends that the quarry was being conducted on the strength of license/consent obtained from the statutory authorities. It is the petitioner's admitted case that the quarrying permit, which was renewed from time to time was valid only up to 9.1.2015. The integrated consent to operate issued by the Kerala State Pollution Control Board was valid till 9.1.2015. The D&O license issued by the Panchayath was valid till 10.6.2015. The short firers' license obtained by the petitioner is valid up to 19.5.2019. The explosive license (Form LE-3), was valid only till 1.3.2013. In spite of the requisite statutory license/consent having expired, the petitioner demand that his challenge against Ext P11 order has to be decided on merits, since it would be possible for him to renew the license/consent once a decision is rendered in this Writ Petition. 2. The facts leading up to the issuance of Ext P11 is as under: On **WP(C).No. 8018 of 2016 3** 4.11.2011, the fifth respondent had issued a letter to the second respondent requesting to stop the operation of petitioner's quarry for the reason that it was situated in close proximity with the Rattakolly Forest. Based on the letter, the second respondent caused a stop memo to be issued through the Village Officer. The stop memo was challenged by the petitioner in WP(C) No.2373 of 2012, which culminated in Ext P8 judgment. As is discernible from a reading of Ext P8, the Writ Petition was not decided on merits and on the other hand the Writ Petition was disposed of granting permission to the petitioner to approach the District Collector for modification of the impugned order, in the event of the petitioner being able to obtain all requisite license/consent. 3. Based on the direction contained in Ext P8 judgment, the second respondent considered the petitioner's request for withdrawal of the stop memo and issued Order No.M1/879/2014 dated /12/2014, by which the explosive license granted to the petitioner was cancelled. The aforementioned order of the District Collector was challenged in WP(C) No.834 of 2015, which was decided as per Ext P9 judgment. By Ext P9, this Court permitted the petitioner to approach the Commissioner for Land Revenue by filing an appeal under Section 6F of the Explosives Act, against the order cancelling his license. By Ext P10 order, the Land Revenue Commissioner decided the appeal and **WP(C).No. 8018 of 2016 4** remanded the matter to the District Collector for considering the case afresh on the basis of all relevant factors. Thereupon, the District Collector reconsidered the matter and issued Ext P11 order, deciding that the petitioner's Explosive License LE3 License No.15/2011/WYD need not be renewed. In Ext P11 the main reason projected by the second respondent to arrive at the decision not to renew the petitioner's explosives license is that the property in which quarrying operation was being conducted by the petitioner was land exempted under Section 81(3) (b) of the Kerala Land Reforms Act, on the premise that it is an existing plantation. The proviso to 81(3) (b) of the Kerala Land Reforms Act stipulate that the land referred to clause (b) shall be used for the purpose for which it is intended within such time specified, failing which, the exemption shall ceased to be in force. The District Collector came to the conclusion that conduct of the quarry, in the property which was granted exemption, being a plantation, would attract the proviso to Section 81(3) (b) of the Kerala Land Reforms Act and hence, explosive license for the purpose of conducting the quarry in that property cannot be granted. 4. The learned counsel for the petitioner challenged Ext P11 order on the ground that under the Explosives Act and Rules, the District Magistrate/Collector is not endowed with any authority to issue an order in the nature of Ext P11. The power to grant or refuse license ## **WP(C).No. 8018 of 2016 5** is dealt with under Sections 6B & 6C respectively of the Explosives Act, 1884 and Rules 114 to 118 of the Explosives Rules, 2008. Rule 114 of the Explosives Rules 2008 deals with the power of refusal to grant approval or license. Rule 115 deals with cancellation of No Objection Certificate, Rule 116 is regarding refusal to amend or renew a license and Rule 118 provides for suspension and revocation or cancellation of license. As per Section 6C(1)(b)(iii) of the Explosives Act, the licensing authority is empowered to refuse to grant license, where such license is required by a person whom the licensing authority has reason to believe to be for any reason unfit for a licence under the Act. As per Rule 116, the licensing authority can refuse to amend or renew a licence, if such license can be revoked in accordance with the Act or the Rules. The power of revocation of license is contained in Rule 118, the relevant portion of which reads as follows: **118.Suspension and revocation or cancellation of licence** -(1)Every licence granted under these rules shall- (I) stand cancelled, if- (a) the licensee has ceased to have any right for the lawful possession over the licensed premises; (b) the licensee is convicted and sentenced under any criminal offences or ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974), a bond for keeping peace for good behaviour. (II) stand cancelled, if the no-objection certificate is cancelled by the authority issuing the same or District Magistrate or the State Government in accordance with rule 115. (III) be liable to be suspended or cancelled by an order of the ## **WP(C).No. 8018 of 2016 6** licensing authority for any contravention of the Act or these rules or of any condition contained in such licence, or by order of the Central Government, if it is satisfied that there are sufficient grounds for doing so: Provided that before suspending or cancelling a licence under this rule, the holder of the licence shall be given an opportunity of being heard. ## 5. From a reading of Rule 118(1)(III) it is clear that the license is liable to be suspended for any contravention of the Act or the Rules or of any condition contained in such license, or by order of the Central Government , if it is satisfied that there are sufficient grounds for doing so. Therefore, the reason mentioned in Ext P11, viz., that the property in which the quarry is being conducted was exempted under Section 81(3) of the Land Reforms Act and therefore, the exemption ceased to be in force, since the land is being used for other purpose, is a reason available under Rule 118 (1)(III). 6. The learned counsel for the petitioner has relied on the decision in **Mathew K Jacob and another** v **District Environmental Impact Assessment Authority (2018(5) KHC 487(FB)** to contend that quarrying of granite stone from land exempted under Section 81(1) of the Land Reforms Act , would not take away the benefit of the exemption. On a careful perusal of the decision it can be seen that the question considered by the Full Bench was as to whether use of the land for excavation of soil or for quarrying granite stones would make the piece of land a 'commercial site, in order to qualify for exemption from ceiling limit. The conclusion of the Full Bench expressed in **WP(C).No. 8018 of 2016 7** ## paragraph 13 of the judgment is as follows: “13. We are therefore of the view that using up the land by excavating soil or quarrying granite stones therefrom does not make the piece of land a 'commercial site' in order to qualify for exemption from ceiling limit. But any industrial activity existing on the surface of the land like a metal crusher unit or artificial sand manufacturing unit may perhaps qualify for exemption. This is the meaning to be attributed to the term 'commercial site' as defined in Section 2(5) of the Act in deciding the question of exemption under Section 81(1)(q) of the Act. Of course those lands which are set apart for commercial or industrial activity at the time of the commencement of the Act shall be excluded provided it is actually used for the purpose. The same should have been done within a time frame specified by the District Collector under Section 81(1)(k) of the Act which does not apply to the facts of the present case. We however add that any class of land earlier exempted in the ceiling case can be converted into any class of land not liable to be exempted under Explanation II to Section 87 of the Act. The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessee or the declarant in determination of his ceiling area.” ## 7. The question considered by the Full bench in _**Mathew K**_ _**Jacob'**_ s case being entirely different, I am of the opinion that the said decision cannot be relied on by the petitioner for assailing the reasoning in Ext P11 order. 8. It may be worthwhile to mention that even going by the findings in Ext P7 Advocate Commissioner's report in WP(C) No.2373 of 2012, the aerial distance from the petitioner's quarry to the outer boundary of the Rattakkolly Forest is only 250 meters. The aerial distance between the quarry and the Naikkan Tribal colony is only 200 meters. Even though, the above mentioned are not the reasons stated in Ext P11 for refusal to renew the petitioner's explosives license, those are factors which this Court will have to bear-in-mind while exercising the discretionary jurisdiction under Article 226 of the **WP(C).No. 8018 of 2016 8** Constitution, especially in the light of Article 48A of the Constitution of India which mandate that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. It is also pertinent to note that the explosives licence (Ext P12) was granted to the petitioner for the purpose of storage and use of the explosives for conducting quarrying operation. Since the quarry was not in operation, as on the date on which Ext P11 order was issued, there was no question of renewing the explosive licence even otherwise. For the reasons mentioned above, Ext P11 does not warrant interference in exercise of the jurisdiction under Article 226 of the Constitution of India. Consequently, the Writ Petition is dismissed. Sd/- **V.G.ARUN, JUDGE** cms **WP(C).No. 8018 of 2016 9** ## **APPENDIX** ## **PETITIONER's EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE TITLE DEED NO. 3655, IN FAVOUR OF SRI.P.K.SALIM.** - **EXHIBIT P2 TRUE COPY OF THE TITLE DEED NO. 3658 OF S.R.O., KALPATTA, IN FAVOUR OF SRI.P.K.SALIM.** - **EXHIBIT P3 TRUE COPY OF THE QUARRYING PERMIT DATED 24/2/2014.** - **EXHIBIT P4 TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE THE QUARRY DATED 2/4/2014.** - **EXHIBIT P5 TRUE COPY OF THE LICENSE ISSUED BY THE KALPATTA MUNICIPALITY.** - **EXHIBIT P6 TRUE COPY OF THE LICENCE DATED 12/2/2004. EXHIBIT P7 TRUE COPY OF THE COMMISSIONER REPORT FIELD BY THE ADVOCATE COMMISSIONER DATED 27/9/2012.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WP(C) 2373/2012** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WP(C) 834/2015 EXHIBIT P10 TRUE COPY OF THE ORDER ISSUED BY THE LAND REVENUE COMMISSIONER DATED 4/5/2015.** - **EXHIBIT P11 A COPY OF THE ORDER OF THE DISTRICT COLLECTOR DATED 16/2/2016.** - **EXHIBIT P12 COPY OF LE-E LICENCE ISSUED TO THE PETITIONER.** - **EXHIBIT P13 COPY OF SHORT FIRER CERTIFICATE ISSUED TO THE PETITIONER BY THE DEPUTY CONTROLLER OF EXPLOSIVES.** RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms