Ajitha Joshy Maliyekkal v. State of Kerala & Others

WA.1530 OF 2020 -1- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** ## **WA.No.1530 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 18137/2020(N) OF HIGH COURT OF KERALA** |**APPELLANT/S**<br>**:**|**APPELLANT/S**<br>**:**|**APPELLANT/S**<br>**:**|| |---|---|---|---| ||||**AJITHA JOSHY**| ||||**AGED 38 YEARS**| ||||**W/O JOSHY MALIYEKKAL,**| ||||**H. NO. 21/1756, MALIYEKKAL**| ||||**CHALAKKUDY, THRISSUR – 680 307**| ||||**BY ADV. SHRI.ESM.KABEER**| |**RESPONDENT/S**<br>**:**|||| |**1**|||**STATE OF KERALA**| ||||**REP. BY SECRETARY**| ||||**DEPARTMENT OF REVENUE**| ||||**SECRETARIAT, TRIVANDRUM**| ||||**PIN – 695 001.**| |**2.**|||**THE LAND REVENUE COMMISSIONER**| ||||**PUBLIC OFFICE BUILDING**| ||||**MUSEUM ROAD**| ||||**TRIVANDRUM – 6954 033**| |**3.**|||**THE DISTRICT COLLECTOR**| ||||**THRISSUR DISTRICT**| ||||**CIVIL STATION, CIVIL LINES ROAD,**| ||||**AYYANTHOLE – 680 003**| |**4.**|||**THE REVENUE DIVISIONAL OFFICER**| ||||**THRISSUR, CIVIL STATION**| ||||**CIVIL LINES ROAD,**| ||||**AYYANTHOLE – 680 003**| |**5.**|||**THE THAHASILDAR**| ||||**CHALAKUDY TALUK,**| WA.1530 OF 2020 -2- **MUNICIPAL TOWN HALL COMPLEX, MAIN ROAD, OLD HIGHWAY, CHALAKKUDY – 680 307 6. THE VILLAGE OFFICER KUTTICHIRA VILLAGE, THRISSUR – 680 724** ## **OTHER PRESENT:** **SRI.ARAVIND KUMAR BABU, SR GP FOR RESPONDENTS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.1530 OF 2020 -3- **==> picture [42 x 11] intentionally omitted <==** ## **J U D G M E N T** Dated this the 25[th] day of November, 2020 ## S. Manikumar, CJ Instant writ appeal is filed challenging the judgment in W. P. (C) No. 18137 of 2020 dated 15.09.2020, whereby a learned Single Judge of this Court dismissed the writ petition holding that the decision of the District Collector, respondent No.3, to withhold the application preferred by the petitioner for grant of No Objection Certificate (NOC) until guidelines are formulated by the Government, cannot be said to be illegal in any manner. 2. Facts leading to the filing of instant appeal are that appellant/writ petitioner is the absolute owner and in possession of the property covered by Exhibit-P1 title deed. On the eastern boundary of the said property, there is a Government puramboke land. She, therefore, submitted Exhibit-P2 application dated 25.01.2019 before the District Collector, Thrissur, respondent No.3, for issuance of NOC to conduct quarrying operations in the Government puramboke land, for which, Exhibit-P3 receipt was issued. On the basis of Exhibit-P6 communication of the Principal Secretary, Department of Revenue, Thiruvananthapuram, dated 18.01.2020, and further WA.1530 OF 2020 -4- intimation of the 2[nd] respondent, the District Collector, has rejected the application of the appellant stating that grant of NOC for quarrying could be considered only after preparing the guidelines for issuance of NOC and after getting approval. It is the case of the appellant that her application dated 25.01.2019 was rejected on the basis of a Government order issued on 12.12.2019 and that the rules applicable at that point of time ought to have been followed in her case. Appellant has also contended that her application is submitted prior to the said Government Order. ## 3. Based on the above pleadings, appellant has filed the writ petition for the following reliefs:- “(i) To issue writ, order or direction, in the nature of mandamus, directing the 3[rd] respondent, to take up Exhibit-P2 application submitted by the petitioner dated 25.01.2019 for issuance of NOC to carryout quarrying operations in the Government land, taking note of the fact that her application is submitted prior to the Government order dated 12.12.2019 cited in Exhibit-P6 letter of the Principal Secretary dated 18.01.2020, and to conclude the proceedings, within a time limit fixed by this Court, in the interest of justice. (ii) To declare that the petitioner's case need not be considered as a fresh matter, since it is evident from Exhibit-P2 application and Exhibit-P3 receipt that the same is much prior to the issuance of the Government order dated 12.12.2019.” WA.1530 OF 2020 -5- 4. Writ court, after considering the pleadings, relevant provisions, and the decisions of the Hon'ble Supreme Court cited therein, dismissed the writ petition by the impugned judgment, as stated above. Being aggrieved, writ petitioner/appellant has filed this appeal on the following grounds:- “A) It is evident that the application submitted by the appellant before the 3[rd] respondent, District Collector is dated 25.01.2019. The application was forwarded to the subordinate revenue officers for report and further action. Her case was that prior to the Government letter dated 12.12.2019 the application is pending. Hence, interference of this Court is necessary in the matter. B) The reason for rejection of her application for grant of No Objection Certificate by the 3[rd] respondent was that guidelines have not yet been formulated by the Government. While disposing of the case, the stand of the Government and Revenue Department has to be ascertained. Writ court, without even calling for any report or without asking for any statement or affidavit from the Government, has decided the matter in an illegal and arbitrary manner. C) There is no doubt that while distributing the mineral wealth belonging to the State, transparent and effective methods have to be formulated. To the knowledge of the appellant, a large number of applications are pending before the authorities in this regard. The said applications still remain unattended for the reason that guidelines are not being formulated by the Government. There is a specific provision contained in the KMMC Rules, 2015 for grant of WA.1530 OF 2020 -6- permit for quarrying from the Government land. However, without obtaining NOC from the 3[rd] respondent, application for quarrying permit cannot be submitted. Hence, necessary directions may be issued for this purposes. D) It was specifically brought to the notice of the writ court the judgment in WPC No.20464/2019, wherein it was recorded that Government Machinery had already put into motion for making guidelines with respect to the grant of NOC for quarrying operations in Government land. Further directions were also issued. Learned single Judge, while passing the impugned judgment, could have considered the abovesaid aspect. Hence, interference of this Court is necessary in the matter, E) It is submitted that a private party cannot, in all the cases, purchase a large extent of land and extract minor minerals from the said land. It is under such circumstances, the relevancy of Rule 3 of the KMMC Rules come into operation. The minerals vested with the Government, are extracted on the basis of paying royalty and seigniorage. Moreover, it is the main source of revenue to the Government. Huge extent of land being left unattended, could be made useful if, permission is granted to extract minerals from such lands. The scarcity of the minor minerals, including building stones, could also be resolved. 5. Based on the above grounds, Mr. E. S. M. Kabeer, learned counsel for the appellant, contended that Exhibit-P2 application submitted by the appellant to the District Collector, 3[rd] respondent, for NOC was anterior to WA.1530 OF 2020 -7- the Government's decision to frame the guidelines for grant of NOC to conduct quarrying operations in the Government land, and therefore, the same ought to have been considered, with reference to the rules or regulations, prevalent at the time of submission of the application. 6. Heard the learned counsel for the appellant and perused the material available on record. 7. The appellant in ground (C) of the writ appeal has candidly admitted that while distributing the mineral wealth belonging to the State, transparent and effective methods have to be formulated. Thus, the authority of the State to frame guidelines is admitted. It is the submission of learned counsel for the appellant that though it was brought to the notice of the writ court, while passing the impugned judgment, an earlier decision in W.P.(C) No.20464 of 2019 dated 24.01.2020, wherein it was recorded that Government machinery was already put into motion for making guidelines regarding issuance of NOC for quarrying operations in the Government land, the said aspect has not been considered. 8. Exhibit-P2 application submitted by the appellant to the District Collector, Thrissur, 3[rd] respondent, for issuance of NOC to conduct quarrying, reads thus: WA.1530 OF 2020 -8- “From Ajitha Joshy Maliyekkal House, Chalakkudy P.O., Pin-680 307. Ph:- 8606299353, 944719353 To District Collector Ayyanthole. Sir, Sub:- for issuance of NOC – regarding The property situated in Sy.Nos. 1854/3, 1854/2 of Kuttichira Village, Chalakkudy Taluk, Thrissur District with a total extent of 118 cents covered under document number 454/2018 absolutely vests in the applicant. The nature of the property is rocky and the sand in its upper portion is fully washed out and hence no agricultural activities could be carried out there. To the eastern side of my property another land in Sy.No 1855/2 and 1855/1 and 1856/2 having extent of 19.25 Ares, 111.80 Ares and 25.25 Ares respectively belongs to the government. It is requested to your good office to issue an NOC of conducting quarrying in the said land. Also the NOC is needed for the purpose of applying for other statutory licenses and permits from the Government and office of the Geology at Thrissur. Chalakkudy 25.01.2019 Ajitha Joshy” WA.1530 OF 2020 -9- ## 9. Exhibit-P4 report of the Tahsildar, Chalakkudy, respondent No.5, dated 3.8.2020 submitted to the District Collector, Thrissur, reads thus: “Administration Language – Mother Tongue B2-1845/2019 Taluk Office, Chalakkudy Date: 03.08.2020 E-mail: thirckdy.ker@nic.in Ph: 0480 2705800, Pin 682 307 From Tahsildar Chalakkudy. To District Collector Thrissur. Sir, Sub:- Quarrying in Government Land- Grant of NOCApplication of Smt. Ajitha Joshy – regarding Re:- Letter issued from your good office with no. B6-1717/2019 dated 11.02.2019 Your kind attention is invited to the above cited reference. The application submitted by Smt. Ajitha Joshy for issuance of NOC for quarrying in government land was considered and inspection conducted and the details are given below. The property in Sy.No. 1855/2 with an extent of 0.1925 Hectre, 1.1180 Hectre in Sy.No.1866/1 and 0.2525 hectre in Sy No. 1856/2 is stated as rock land in the BTR. This property is lying as a rocking land in a higher area. Towards south-east of this property with a distance of 100 metres there is a residential building and from a distance of 75 meters 2 buildings are situated wherein nobody is WA.1530 OF 2020 -10- residing. To the west of this land situates the property belonging to the applicant. The following trees are there in the said property. **==> picture [359 x 260] intentionally omitted <==** **----- Start of picture text -----**<br> Irumullu Nearly 20 inches height 2 in Nos.<br>Irumullu 35 inches 2 in Nos<br>Maruth 20 inches 35 in Nos.<br>Maruth 30 inches 6 in Nos<br>Maruth 40 inches 5 in Nos<br>Maruth 35 inches 4 in Nos<br>Rubber 30 inches 44 in nos<br>Ilavu 35 inches One<br>Teak 30 inches 2 in Nos.<br>Other trees<br>Veetty 35 inches One<br>Teak 40 inches One<br>Teak 35 inches One<br>Teak 20 inches 4 in Nos.<br>Small Teak plants 5 in Nos.<br>Nottan Vaka 35 inches 2 in Nos.<br>**----- End of picture text -----**<br> There are two quarries in Kuttichira Village. Quarrying is conducting thereby changing the nature of property. There are many complaints against the said quarries. Also, there is a threat of landsliding in Kuttichira Village. Hence, an environmental study is to be conducted before granting permission. The Mahassar, Marked sketch and BTR copy of the property is enclosed herewith. Faithfully Tahsildar P.K/04.08.20” 10. Exhibit-P7 letter dated 20.08.2020 issued by the office of the 3[rd] respondent, informing the appellant as to why, her application could not be considered, is extracted hereunder: WA.1530 OF 2020 -11- “B7-1717/19 Collectorate, Thrissur-680003 Phone (0484) 2433444 Email: tsrcoll.ker@nic.in Dated: 20.08.2020 From District Collector Thrissur To Smt. Ajitha Joshy Malieyekkal Haouse, Chalakkudy P.O, Thrissur- 680 307. Sir, Sub:- Quarrying in Government Land - grant of NOC regarding. Ref: 1. Application submitted by the petitioner 2. Letter of the Land Revenue Commissioner with no. LRK3-35142/2019 dated 18.01.2020. Your attention is invited to the above reference. It is informed as per the above ref. no.2 that applications for grant of NOC for quarrying could be granted only after preparing guidelines for issuance of NOC and after getting approval. Hence, it is hereby informed that your application could not be considered. Faithfully District Collector” 11. Rule 3 of the Kerala Minor Mineral Concession Rules, 2015, considered by the writ court is reproduced: WA.1530 OF 2020 -12- “ _**3. Grant of quarrying permit**_ .—(1) On application made to it the competent authority under these rules may grant a quarrying permit to any Indian National to extract any minor mineral, other than dimension stone, from any specified land within the limits of its jurisdiction and authority as notified by the Government in the official Gazette from time to time on payment of royalty as the competent authority may fix on the basis of the rates specified in schedule I or IV, as the case may be and also on payment of such surface rent and cess as may be assessable on the lands. (2) The competent authority may grant a permit for a lower quantity than applied for or refuse to grant such permit for reasons to be recorded in writing. (3) The area under a quarrying permit shall be a contiguous unit and shall not exceed one hectare. (4) The competent authority under these rules shall send a copy of the quarrying permit granted by it to the District Collector and the Secretary of the Local Self Government Institution concerned.” 12. Rule 4(2)(f) of the KMMC Rules, 2015, which requires the production of No Objection Certificate from the District Collector concerned, is extracted hereunder: ## “ _**4. Application for quarrying permi** t.-_ (1) xx xxx xxx (2) Every such application shall be accompanied by, – (f) No Objection Certificate from the District Collector concerned, based on the recommendation of the District Expert Committee constituted by the Government in this WA.1530 OF 2020 -13- regard, in the case of application for extraction of ordinary clay or ordinary sand.” 13. Paragraphs 74, 75 and 89 of the decision in **Centre for Public Interest Litigation v. Union of India** [(2012) 3 SCC 1], considered by the writ court deal with the State's duty on protection of natural resources, processing of application, condition on which quarrying permit is granted. 14. As stated supra, appellant has candidly admitted that while distributing the mineral wealth belonging to the State, transparent and effective methods have to be formulated. While stating so, three things emerge for consideration. Firstly, mineral is State's property. Secondly, distribution has to be done by the State, and thirdly, Government is empowered to frame guidelines. Courts have held that Government have the powers to take appropriate action to prevent, avoid or control the damage caused to the environment, natural resources, health and property. 15. Courts have also held that the natural resources cannot be allowed to be utilised if, the utilisation results in irreversible damage to the environment. That apart, Courts have held that the risk of harm to environment or health, has to be decided by the Government in public interest and, in the above circumstances, though the power of the WA.1530 OF 2020 -14- Government in framing the guidelines for grant of quarrying permit is not questioned, still, when the Government have taken up the task of framing guidelines for the abovesaid purpose and, in the meanwhile, directed the District Collectors to withhold consideration of the applications for grant of NOC, the same requires to be considered. It cannot be disputed that the State Government have every authority and competent to frame guidelines for quarrying the area, extent, prescription of royalty etc. 16. Contention of the appellant that the application submitted by her dated 25.01.2019 before the 3[rd] respondent, being anterior in point of time, ought to have been considered, cannot be countenanced. There cannot be different yardsticks, insofar as applicability of the guidelines, yet to be framed. Merely because the appellant has submitted an application under the KMMC Rules, 2015, she has no absolute right to conduct quarry. Admittedly, mineral is a wealth of the State. Right to permit quarrying mineral, is the prerogative of the State. 17. Writ court has considered the relevant issues, while adverting to the averments and prayers sought for. We are of the view that no valid grounds are raised by the appellant, for interfering with the WA.1530 OF 2020 -15- impugned judgment dated 15.09.2020. We can only state that framing of guidelines be expedited. In the result, Writ appeal is dismissed. **Sd/-** **S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE