Assan Bava Rawther Mohammed Sherif v. State of Kerala and Others

` **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 WP(C) NO. 4504 OF 2020** ## **PETITIONER** - **1 ASSAN BAVA RAWTHER MOHAMMED SHERIF AGED 71 YEARS S/O ASSAN BAVA RAWTHER,AL AMEEN MANZIL, NADUKUNNU,PATHANAPURAM,KOLLAM.** **BY ADVS. SAIJO HASSAN SRI.R.T.PRADEEP SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SRI.U.M.HASSAN SMT.P.PARVATHY SMT.AATHIRA SUNNY SHRI.MANAS P HAMEED SHRI.GAUTHAM MOHAN H. SMT.SURYA P SHAJI** ## **RESPONDENTS** - **1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA,SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT,GOVERNMENT OF KERALA,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING,MUSEUM ROAD, OPPOSITE ZOO,VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM,KERALA-695033.** - **4 THE DISTRICT COLLECTOR, CIVIL STATION,KUDAPPANAKUNNU.P.O THIRUVANANTHAPURAM,PIN-695043.** W.P.(C) No.4504 of 2020 : 2 : - **5 THE DEPUTY COLLECTOR(LR), CIVIL STATION,KUDAPPANAKUNNU.P.O, THIRUVANANTHAPURAM,PIN0-695043.** - **6 DIRECTOR, DEPARTMENT OF MINING AND GEOLOGY, VIVEKANAND NAGAR,KESAVADASAPURAM, THIRUVANANTHAPURAM,KERALA,PIN-695004.** - **7 TAHSILDHAR, TALUK OFFICE,NEDUMANGAD,THIRUVANANTHAPURAM, PIN-695541.** - **8 RAJESH KUMAR, ARS MANDIRAM,PARAKARA,PUTHUKULANGARA.P.O, UZHAMALAKKAL,NEDUMANGAD,PIN-695541.** - **9 UZHAMALAKKAL GRAMA PANCHAYATH AYYAPPANKUZHI- KURIYATHI ROAD,AYYAPPANKUZHI P.O,PARUTHIKKUZHY,UZHAMALAKKAL,KERALA,PIN695541 REPRESENTED BY ITS PRESIDENT** - **BY ADVS. SRI.C.P.SABARI RAJAN VISHNURAJ** **SRI.E.K.NANDAKUMAR SR. (FOR PETITIONER ), SRI.S.RENJITH SPL.GP TO AAG** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.4504 of 2020 : 3 : ## **J U D G M E N T** _Dated this the 21[st] day of June, 2022_ The petitioner, who was issued with a No-Objection Certificate of the 4[th] respondent-District Collector for quarrying 5.71 hectares of puramboke land, has approached this Court seeking to quash Exts.P16 and P17. 2. The petitioner, who wanted to quarry Government land, applied for NOC from the District Magistrate. After making due enquiries, the 4[th] respondent-District Collector issued Ext.P1 NOC on strict conditions enumerated in Serial Nos.1 to 13 thereunder. 3. The petitioner states that certain local residents made Ext.P4 complaint against the proposed quarrying, to the District Collector. In the meanwhile, the 9[th] respondentPanchayat also passed Exts.P2 and P3 resolutions alleging that the quarrying operations proposed by the petitioner will result in serious environmental issues and that it will affect W.P.(C) No.4504 of 2020 : 4 : agriculture as well as drinking water availability. 4. The petitioner states that he has applied for various licences, consents, permits, etc. before various statutory authorities. The petitioner approached this Court earlier filing W.P(C) No.23639 of 2019, which was disposed of by this Court as per Ext.P12 judgment, wherein this Court directed the District Collector to take up the complaints and dispose of the same after hearing the petitioner. Thereafter, the District Collector considered the complaint and on the basis of enquiries made, the District Collector held that the NOC already issued to the petitioner cannot be suspended. 5. To the surprise and predicament of the petitioner, the 1[st] respondent issued Ext.P16 letter dated 18.01.2020 to the District Collector stating that there are allegations in respect of the proposed quarry of the petitioner including one from the President of Uzhamalakkal Grama Panchayat. The 1[st] respondent felt that the real facts are to be unearthed and a report has to be obtained. Till a decision is taken by the W.P.(C) No.4504 of 2020 : 5 : Government, the District Collector was directed to suspend Ext.P1 NOC issued to the petitioner. Consequently, the District Collector passed Ext.P17 order suspending the NOC issued to the petitioner. 6. The Senior Counsel representing the counsel for the petitioner argued that Ext.P1 granted by the District Collector is exercising a statutory power. To unsettle that order, a person has to invoke his statutory remedies. The 1[st] respondent has no power to interfere in the matter on the basis of any resolutions passed by the Panchayat. Rule 98(1) of the Kerala Minor Mineral Concession Rules prescribed appellate authorities to whom aggrieved persons can approach **.** If anybody is aggrieved by Ext.P1, they will have to resort to Rule 98. The District Collector in this case signed on the lines dictated by the 1[st] respondent. 7. Relying on the judgment of the Apex Court in _**Bahadursinh Lakhubhai Gohil v. Jagdishbhai M.Kamalia and others**_ [(2004) 2 SCC 65], the counsel argued that if any W.P.(C) No.4504 of 2020 : 6 : decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultravires. In the facts and circumstances of the case, Exts.P16 and P17 are liable to be set aside, contended the Senior Counsel. 8. The Government Pleader entered appearance on behalf of respondents 1 to 7 and resisted the writ petition. The Government Pleader submitted that the 1[st] respondent has ample administrative powers to interfere in an order passed by the District Collector. In this case, the Panchayat authorities pointed out grave environmental issues that will result from the quarrying operations in that areas if permitted. 9. According to the Government Pleader, under the proviso to Rule 50, the Government can exercise power and pass orders in the nature of Ext.P16. The Government has exercised the power bonafide on the basis of the information received from various quarters including the resolutions passed by the Grama Panchayat. Ext.P16 therefore cannot W.P.(C) No.4504 of 2020 : 7 : be said to be illegal. 10. The Government Pleader further submitted that at present, there is a proposal for a project in the area where the quarry is functioning, under Jal Jeevan Mission. Availability of drinking water to the local population is more important than private quarrying operations, contended the petitioner. Therefore, in public interest also, Ext.P16 will have to be sustained. 11. I have heard the learned Senior Counsel assisted by the counsel for the petitioner and the learned Government Pleader representing respondents 1 to 7. 12. The petitioner was issued with Ext.P1 NOC by the District Collector on 15.05.2018. A perusal of Ext.P1 would show that the NOC was issued after making due enquiries. Condition No.(1) in Ext.P1 is that quarrying operations can be conducted by the petitioner only after obtaining environmental clearance and all other statutory licences/permissions/consents. Condition No.(12) would W.P.(C) No.4504 of 2020 : 8 : show that the Director of Mining and Geology has power to reject the NOC if it is found that the area is not fit for mining operations. 13. While issuing Ext.P1, the District Collector has exercised the statutory power under the Kerala Minor Mineral Concession Rules. An order passed by a statutory authority can be unsettled only through the procedure prescribed by the statute concerned. Kerala Minor Mineral Concession Rules provide for filing of appeal against the orders of the District Collector and other authorities, under Rule 98 **.** Any person aggrieved by the orders of a statutory authority will have to resolve to the appellate remedies available under the Statute. 14. The contention of the Government Pleader is that the proviso to Rule 50 would empower the Government to issue orders in the nature of Ext.P16. Rule 50 reads as follows: **“** 50. Cancellation of quarrying lease- If the Government or competent authority under these rules has reason to believe that the lease granted is in contravention of W.P.(C) No.4504 of 2020 : 9 : provisions of any other law or the lessee has violated any of the conditions subject to which the lease is granted, the Government or the competent authority may, after giving the lessee an opportunity of being heard, direct him not to undertake any quarrying operations in the area of the lease and may cancel the lease and in such cases the quarried materials lying on the land from which they are extracted shall become the absolute property of the Government. In such an event, all the royalties and rents paid in advance or part thereof that may stand to the credit of the lessee shall also be forfeited to Government: Provided that where the competent authority is of the opinion that it is expedient in the interest of regulation of quarries and mineral development, preservation of natural environment, control of floods, prevention of pollution or to avoid danger to public health or communcations or to ensure safety of buildings, monuments or other structures or for such other purposes, as the competent authority may deem fit, he may, by an order terminate the quarrying lease with respect to the area or any part thereof covered by such lease.” 15. The proviso states that where the competent authority is of the opinion that it is expedient in the interest of regulation of quarries and mineral development, preservation of natural environment, control of floods, prevention of pollution or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for such other purposes, as the competent authority may deem fit, he may, by an order terminate the quarrying lease with respect to the area or any W.P.(C) No.4504 of 2020 : 10 : part thereof covered by such lease. 16. This Court is of the view that the proviso to Rule 50 may not be of any assistance to the 1[st] respondent for the reason that it is intended to terminate a quarrying if the quarrying lease issued to a person. Furthermore, such power can be exercised only by the competent authority. Rules do not indicate anywhere that the 1[st] respondent is the competent authority to unsettle a licence issued under the Rules. As pointed out by the learned Senior Counsel, if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, it would be ultravires. 17. In the present case, the District Collector, who has obtained reports from various statutory authorities and who has taken a decision as per Ext.P15 that there is no justification for suspending the NOC issued to the petitioner, has now taken a diametrically opposite stand and has suspended Ext.P1 NOC issued to the petitioner. The District W.P.(C) No.4504 of 2020 : 11 : Collector, who is an independent licensing authority under the statute, has acted as an automaton and signed at the dotted lines. Ext.P17 is therefore wholly unsustainable. In view of the facts and reasons stated above, this writ petition is allowed. Exts.P16 and P17 orders are set aside. Sd/- **N. NAGARESH, JUDGE** smm/21.06.2022 W.P.(C) No.4504 of 2020 : 12 : ## **APPENDIX OF WP(C) 4504/2020** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF NOC BEARING NO.B7-7865/18 DATED 15.05.2018 ISSUED IN FAVOUR OF PETITIONER BY 4TH RESPONDENT. EXHIBIT P2 TRUE COPY OF RESOLUTION NO.3(6) DATED 17.08.2019 OF 9TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE LETTER NO.UGP/PRES/106/2019 DATED 19.08.2019 ALONG WITH RESOLUTION NO.3(8) DATED 17.08.2019 OF 9TH RESPONDENT EXHIBIT P4 TRUE COPY OF COMPLAINT DATED 20.08.2019 FILED BY THE 8TH RESPONDENT EXHIBIT P5 TRUE COPY OF LOI NO.HEPIPL/VIZHINJAM/2848 DATED 13.07.2018. EXHIBIT P6 TRUE COPY OF CERTIFICATE OF ADANI VIZHINJAM PORT PRIVATE LIMITED DATED 12.02.2020. EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 30.10.2018 BEFORE THE 6TH RESPONDENT; DIRECTOR OIF MINING AND GEOLOGY EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 31.10.2018 SUBMITTED BY THE PETITIONER BEFORE 6TH RESPONDENT EXHIBIT P9 TRUE COPY OF THE CHALLAN DATED 30.10.2018 REGARDING THE REMITTANCE OF RS.10,000/-TOWARDS THE APPLICATION FEE FOR QUARRYING LEASE. EXHIBIT P10 TRUE COPY OF THE APPLICATION DATED 09.11.2018 SUBMITTED BY THE PETITIONER BEFORE 4TH RESPONDENT EXHIBIT P11 TRUE COPY OF THE APLICATION DATED 05.02.2019 SUBMITTED BY GETTING EXPLOSIVE LICENSE. EXHIBIT P12 THE TRUE COPY OF THE JUDGMENT DATED 09.10.2019 IN WP(C)NO.23639/2015. EXHIBIT P13 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 29.11.2019 W.P.(C) No.4504 of 2020 : 13 : EXHIBIT P14 TRUE COPY OF THE LETTER VIDE NO.B77865/18 DATED 27.08.2019 FROM THE DISTRICT COLLECTOR,THIRUVANANTHAPURAM TO THE PRIVATE SECRETARY,MINISTRY FOR REVENUE. EXHIBIT P15 TRUE COPY OF THE DECISION OF THE 4TH RESPONDENT VIDE NO.B7-7865/2018 DATED 11.12.2019. EXHIBIT P16 TRUE COPY OF THE LETTER NO.REVP2/345/2019/REV.DATED 18.01.2020 OF THE 1ST RESPONDENT TO THE 4TH RESPONDENT. EXHIBIT P17 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT VIDE NO.B7-7865/18 DATED 22.01.2020. EXHIBIT P18 TRUE COPY OF LETTER DATED 14.03.2018 FROM 7TH RESPONDENT TO 4TH RESPONDENT. EXHIBIT P19 TRUE COPY OF THE REPRESENTATION DATED 04.02.2020 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P20 TRUE COPY OF LETTER FROM THE 1ST RESPONDENT TO THE 4TH RESPONDENT DATED 05.07.2018 ALONG WITH ITS MINUTES OPF THE SAID MEETING HELD ON 03.07.2018