Babu N.P v. Department of Mining and Geology

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** ## **WP(C).No.17247 OF 2019(E)** ## **PETITIONER :** **BABU.N.P AGED 52 YEARS** **S/O NJARAMPILLYVEETIL PADMANABHAN, KURICHILAKODE KARA, KODANAD VILLAGE, KUNNATHUNAD TALUK, MANAGING PARTNER, M/S EXEL GRANITES, KODANAD P O , ERNAKULAM - 683 544** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENTS:** - **1 DEPARTMENT OF MINING AND GEOLOGY REP. BY THE DIRECTOR, OFFICE OF THE DEPARTMENT OF MINING AND GEOLOGY, THIRUVANANTHAPURAM - 695 001** - **2 THE SENIOR GEOLOGIST OFFICE OF THE SENIOR GEOLOGIST, MINING DEPARTMENT, DISTRICT OFFICE, KOTTAYAM - 686 002** ## **BY SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.17247 OF 2019(E)** **2** ## **JUDGMENT** The petitioner, who submitted Ext.P1 application dated 28.09.2018 for quarrying permit in respect of 0.7535 hectares of land in Survey No.286/1 and 0.2460 hectares of land in Survey No.286/2 of Meenachil Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 communication dated 08.03.2019 issued by the 2[nd] respondent Senior Geologist, wherein it has been stated that since there is a building within the radius of 50 metres, letter of intent cannot be granted as sought for in Ext.P1 application. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to take into consideration Ext.P1 and decide the matter afresh in terms of settled position of law, within a time limit and to issue the letter of intent. 2. On 25.06.2019, when this writ petition came up for admission, the learned Government Pleader **WP(C).No.17247 OF 2019(E)** **3** sought time to file counter affidavit on behalf of the 2[nd] respondent. 3. A counter affidavit has been filed by the 2[nd] respondent. Paragraph 3 of the said counter affidavit reads thus; “3. It is most humbly submitted that on 01.10.2018 the petitioner placed an application before the 2[nd] respondent's office in Form 'A' for obtaining quarrying permit for the extraction of Granite (Building Stone) for an area of 0.9995 hectares comprised in Block No.39 of Re-Survey Nos.286/1, 286/2 in Meenachil Village of Meenachil Taluk in Kottayam District. Along with the application, petitioner submitted mandatory documents like, Possession and Enjoyment Certificate, Survey Map, Non-Assignment Certificate and Demarcation Certificate of the applied area. As per the Possession and Enjoyment Certificate, applied area is in the Possession of Shri.Rajappan (Re-Survey No.286/1) and Shri.Gopalakrishnan (Re-Survey No. 286/2). The Petitioner also submitted Consent Letter of the above land owners and in these consent they gave consent only for the applied area. On verifying the Survey Map issued by Village Officer, Meenachil it is found that a residential building with building No.176 of ward No.6 of Kozhuvanal Grama Panchayat is situated in Sy.No.286 of Sri.Rajappan on the **WP(C).No.17247 OF 2019(E)** **4** eastern side of the applied area within a distance of 25 meters. In Survey Map this building is marked as office, located in Survey No.286 which is in the ownership of Shri.Rajappan (S/o.Krishnan Chettiyar, Kochu Puthenpurayil 176, Mevada P.O., 686 573). A true copy of the Survey Map prepared by the Village Officer, given by the petitioner is produced herewith and marked as Exhibit R2(a). The building is not owned by the petitioner as stated in the writ petition. It is the building owned by Sri.Rajappan who has given an affidavit before the respondent.” 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 5. Rule 10 of the Kerala Minor Mineral Concession Rules, 2015 deals with conditions on which quarrying permit shall be granted. As per Rule 10, every quarrying permit, except for ordinary earth, under Rule 9 shall be granted subject to the conditions enumerated in clauses (a) to (q) thereof. As per clause (f) of Rule 10, the permit holder shall not carry on or allow to be carried on any quarrying operations at or to any points within a distance of 100 metres **WP(C).No.17247 OF 2019(E)** **5** from any railway line except with the previous written permission of the Railway Administration concerned and any bridge on National Highway or 50 metres from any reservoir, tanks, canals, rivers, bridges, other public works, residential buildings, the boundary walls of places of worship, burial grounds, burning ghats or forest lands or village roads except with the previous permission of the authorities concerned or the Government or the competent authority. 6. As per the first proviso to clause (f), the Railway Administration or the State Government or any other authority in this behalf may in granting such permission impose other such conditions as may be found proper and necessary. As per the second proviso to clause (8) in cases where explosives are used for quarrying, the permit holder shall not carry on or allowed to be carried on any quarrying operations at or to any points within the distance as specified by the Kerala State Pollution Control Board from time to time, **WP(C).No.17247 OF 2019(E)** **6** for granting consent to operate such quarrying as approved by the Government from any railway line, any bridge, reservoir, tanks, residential buildings, monuments protected by Government, canals, rivers, public roads having vehicular traffic, other public works or the boundary walls of places of worship or 50 metres from any burial grounds or burning ghats or village roads or forest lands. 7. In the instant case, admittedly a residential building No.176 owned by one Rajappan in Ward No.6 of Kozhuvanal Grama Panchayat is situated within 25 meters from the proposed site for quarrying operations. In Ext.R2(b) affidavit dated 05.12.2018 sworn to by the said Rajappan, it is stated that the building will be demolished once permission is granted to the petitioner. 8. In **Roslind John v. State of Kerala [2018 (1) KLT 323]** this Court held that the stipulations contained in clause (i) of sub-rule (1) of Rule 40 of the **WP(C).No.17247 OF 2019(E)** **7** Kerala Minor Mineral Concession Rules, 2015 that there shall not be any quarrying operations within 50 metres from residential buildings is a stipulation made in public interest, which cannot be get over on the basis of the affidavit obtained from the affected person, since the affected person cannot waive the benefit of such statutory stipulations made in public interest. Paragraphs 4 and 5 of the said decision read thus; “4. The Rules have been framed by the Government in exercise of the powers conferred by sub -section (1) of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (‘the Act’). Sub-section (1) of Section 15 of the Act confers power on the State Government to make rules for regulating, among others, grant of quarry leases in respect of minor minerals and for purposes connected therewith. Rule 40(1)(i) of the Rules reads thus: 40. Conditions of quarrying lease.— (1) Every quarrying lease shall be subject to the following conditions and/or any other conditions that may be imposed by the competent authority and such conditions shall be incorporated in every quarrying lease deed,— x x x x x x x (i) in cases where explosives are not used for quarrying, the lessee shall not carry on or allowed to be carried on any quarrying operations at or to any points within a distance of 75 metres from any railway line except with the previous **WP(C).No.17247 OF 2019(E)** **8** written permission of the railway administration concerned and any bridge on National Highway or 50 metres from any reservoir, tanks, canals, rivers, bridges, public roads, other public works, residential buildings, the boundary walls of places of worship, burial grounds, burning ghats or any Government protected monuments or forest lands except with the previous permission of the authorities concerned or the Government or competent authority: Provided that the railway administration or the State Government or any other authority in this behalf may in granting such permission impose such other conditions as may be found proper and necessary: Provided further that in cases where explosives are used for quarrying, the lessee shall not carry on or allowed to be carried on any quarrying operations at or to any points within a distance of 100 metres from any railway line, bridges, reservoirs, tanks, residential buildings, Government protected monuments, canals, rivers, public roads having vehicular traffic, any other public works or the boundary walls of places of worship or 50 metres from any burial grounds or burning ghats or forest lands; Having regard to the provisions contained in the Act and the Rules, it is beyond dispute that the stipulations contained in Rule 40(1)(i) of the Rules that there shall not be any quarrying operations within 50 meters from residential buildings is a stipulation made in public interest. In so far as the stipulation aforesaid is one made in public interest, according to me, the petitioner cannot get over the said stipulation on the basis of the affidavit obtained from the affected person, for, the affected person cannot waive the benefit of such statutory stipulations made in public interest. Relying on a passage from Maxwell on ‘The Interpretation of Statutes’, the Apex Court has held so in _Krishnan Lal v._ **WP(C).No.17247 OF 2019(E)** **9** ## _State of Jammu and Kashmir_ [(1994) 4 SCC 422]. 5. The learned counsel for the petitioner, relying on the expression 'except with the previous permission of the authorities concerned or the Government or competent authority' contained in Rule 40(1)(i) submits that the stipulation contained therein is not an absolute one and that therefore, the affected persons are entitled to waive the protection of the rule. I am unable to accept the aforesaid contention of the petitioner also. It is seen that Rule 40(1)(i) imposes restrictions in the matter of conducting quarrying operations within the distances specified therein from railway lines, bridges on National Highway, reservoirs, tanks, canals, rivers, bridges, public roads, other public works, residential buildings, places of worship, burial grounds, burning ghats, national parks and wild life sanctuaries. As regards the restriction imposed therein in respect of railway lines, there is no difficulty in coming to the conclusion that the same is not absolute, as the rule permits relaxation with the previous written permission of the railway administration. It is seen that the expression 'except with the previous permission of the authorities concerned or the Government or competent authority' is used in the context of the remaining matters contained in the rule. Going by the words used in the expression aforesaid, in the absence of any mention in the expression about the persons residing in the residential buildings, I am of the view that the same would apply only to the places and objects **WP(C).No.17247 OF 2019(E)** **10** referred to in the rule which are controlled by the Government, Government bodies and statutory authorities. **”** 9. By Ext.P2 communication dated 08.03.2019, the 2[nd] respondent rejected the request made by the petitioner for grant of letter of intent on the ground that there is a building within 50 metres from the proposed site for quarrying operations. 10. As per clause (a) of sub-rule (1) of Rule 98 of the Kerala Minor Mineral Concession Rules, any person aggrieved by any order made by the competent authority or authorised officer, as the case may be, under these rules, may within two months from the date of communication of the order to him, prefer an appeal in Form O to the Appellate Authority appointed by the Government in this behalf by notification in the Gazette. As per clause (b) of sub-rule (1), any person aggrieved by an order of the Appellate Authority under clause (a) may, within one month from the date of communication of such order to him, prefer a second **WP(C).No.17247 OF 2019(E)** **11** appeal in Form O to the final Appellate Authority appointed by Government in this behalf by notification in the Gazette. 11. As per the proviso to sub-rule (1) of Rule 98, any such appeal, under clause (a) or clause (b), may be entertained after the period specified therein if the appellant satisfies the Appellate Authority or Final Appellate Authority, as the case may be, that he had sufficient cause for not filing the appeal in time. As per clause (c) every appeal memorandum, under clause (a) and clause (b) shall be accompanied by the treasury receipt showing that a fee of five hundred rupees has been remitted in the Government Treasury to the credit of the Government under the remittance head of the Department of Mining and Geology. 12. Sub-rule (2) of Rule 98 provides that in every appeal memorandum under sub-rule (1) the authority against whose order the appeal is preferred shall be impleaded as a party. As per sub-rule (3), along with **WP(C).No.17247 OF 2019(E)** **12** the appeal memorandum under sub-rule (1), the appellant shall submit as many copies thereof as there are parties impleaded under sub-rule (2). Sub-rule (4) of Rule 98 provides that on receipt of the appeal memorandum and the copies thereof the Appellate Authority or the Final Appellate Authority, as the case may be, shall send a copy of the appeal memorandum to each of the parties impleaded under sub-rule (2) specifying a date on or before which he may make his representation if any, against the appeal. 13. In **Charly Joseph v. State of Kerala [2019** **(4) KHC 510]** , this Court held that in view of the proviso to sub-rule (1) of Rule 98, an appeal under clause (a) or clause (b) may be entertained after the period specified therein, if the appellant satisfies the Appellate Authority or the Final Appellate Authority, as the case may be, that he had sufficient cause for not filing the appeal in time. Therefore, in order to entertain a belated appeal, the Appellate Authority or **WP(C).No.17247 OF 2019(E)** **13** the Final Appellate Authority has to record its satisfaction that the appellant had sufficient cause for not filing that appeal in time. In the said decision, this Court held further that though the expression 'sufficient cause' employed by the Legislature in the proviso to sub-rule (1) of Rule 98 of the Kerala Minor Mineral Concession Rules is adequately elastic to enable the Appellate Authority or the Final Appellate Authority to apply the law in a meaningful manner, which subserves the ends of justice, lack bonafides imputable to a party seeking condonation of delay is a significant and relevant fact. Paragraphs 8 to 10 of the said decision read thus; - “8. In view of the proviso to sub-rule (1) of Rule 98, an appeal under clause (a) or clause (b) may be entertained after the period specified therein, if the appellant satisfies the Appellate Authority or the Final Appellate Authority, as the case may be, that he had sufficient cause for not filing the appeal in time. Therefore, in order to entertain a belated appeal, the Appellate Authority or the Final Appellate Authority has to record its satisfaction that the appellant had **WP(C).No.17247 OF 2019(E)** **14** ## sufficient cause for not filing that appeal in time. 9. Though the expression 'sufficient cause' employed by the Legislature in the proviso to subrule (1) of Rule 98 of the Kerala Minor Mineral Concession Rules is adequately elastic to enable the Appellate Authority or the Final Appellate Authority to apply the law in a meaningful manner, which subserves the ends of justice, lack bonafides imputable to a party seeking condonation of delay is a significant and relevant fact. 10. As held by the Apex Court in **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy [(2013) 12 SCC** **649]** , in the context of the expression 'sufficient cause' employed by the Legislature in Section 5 of the Limitation Act, 1963, the concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. There is a a distinction between inordinate delay and delay of short duration or few days; for the former the doctrine of prejudice is attracted, whereas to the latter it may not be attracted. That apart, the first one warrants strict approach, whereas the second calls for a liberal delineation. 14. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that non-entertainment of a writ **WP(C).No.17247 OF 2019(E)** **15** petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 15. In **Authorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of **WP(C).No.17247 OF 2019(E)** **16** India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case (supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition **WP(C).No.17247 OF 2019(E)** **17** under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy **WP(C).No.17247 OF 2019(E)** **18** for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of **WP(C).No.17247 OF 2019(E)** **19** the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 17. In **Titaghur Paper Mills' case (supra)** a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in **Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336]** at page 356 in the following passage: "There are three classes of cases in which a liability **WP(C).No.17247 OF 2019(E)** **20** may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd.[1919 AC 368]** and has been reaffirmed by the Privy Council in **Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 18. In view of the law laid down in the decisions referred to supra, no interference on Ext.P2 communication dated 08.03.2019 issued by the 2[nd] **WP(C).No.17247 OF 2019(E)** ## **21** respondent, whereby the request made by the petitioner for grant of letter of intent stands rejected, is warranted in exercise of the writ jurisdiction under Article 226 of the Constitution of India, on the grounds raised in this writ petition. In the result, this writ petition filed on 24.06.2019 challenging Ext.P2 communication dated 08.03.2019 issued by the 2nd respondent is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to avail the statutory remedy of appeal under Rule 98 of the Kerala Minor Mineral Concession Rules, against Ext.P2, if so advised. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/3/9 **WP(C).No.17247 OF 2019(E)** **22** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER WITH ALL THE DOCUMENTS ATTACHED TO THE SAME DATED 28.9.2018** **EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION OF THE SECOND RESPONDENT DATED 8.3.2019** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2(A) TRUE COPY OF THE SURVEY MAP PREPARED BY THE VILLAGE OFFICER. EXHIBIT R2(B) TRUE COPY OF AFFIDAVIT GIVEN BY SRI.RAJAPPAN DATED 05.12.2018.**