EVEREST STONE CRUSHER & GRANITES HIGHWAY ARCADE, THANA, KANNUR v. STATE OF KERALA AND OTHERS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940 WP(C).No. 25050 of 2018** ## **PETITIONER:** **M/S. EVEREST STONE CRUSHER & GRANITES HIGHWAY ARCADE, THANA, KANNUR, PIN-670 002 REPRESENTED BY ITS MANAGING PARTNER, K.C.JAMES, S/O.K.C.CHACKO, AGED 53 YEARS, RESIDING AT KOOTANAL HOUSE, CHARAL P.O., IRITTY VIA, KANNUR DISTRICT.** **BY ADVS.SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SMT.MARIA ROY SMT.VEENA RAVEENDRAN SRI.ANIL SEBASTIAN PULICKEL SRI.VINO JOSE** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM, PIN-695 001** **2. THE DISTRICT COLLECTOR, COLLECTORATE, KANNUR-670 002** **3. SECRETARY, STATE LAND BOARD, THIRUVANANTHPURAM, PIN-695 001** **4. THE TAHSILDAR, TALUK OFFICE, TALIPARAMBA TALUK-670 141** **5. THE CHAIRMAN, TALUK LAND BOARD, THALIPARAMBA-670 141** ## **PBS** **WP(C).No. 25050 of 2018** **6. THE VILLAGE OFFICER, ERUVASSY-670 632** **7. THE SUB REGISTRAR OFFICER,** **SUB REGISTRAR OFFICE, SRIKANDAPURAM-670 631** **BY SENIOR GOVERNMENT PLEADER SRI. M.R. SABU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PBS** ## **WP(C).No. 25050 of 2018 (E)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXT.P1 TRUE COPY OF THE PARTNERSHIP DEED AND THE CERTIFICATE OF REGISTRATION ISSUED BY THE REGISTRAR OF FIRMS** - **EXT.P1(A) THE D& O LICENSE OBTAINED BY THE PETITIONER FOR CONDUCTING QUARRYING OPERATION** - **EXT.P1(B) TRUE COPY OF THE CONSENT ISSUED BY THE POLLUTION CONTROL BOARD ON 11.07.2017** - **EXT.P1(C) TRUE COPY OF THE PROCEEDINGS DATED 24/02/2018 OF THE DIRECTOR OF MINING AND GEOLOGY** - **EXT.P1(D) TRUE COPY OF THE ENVIRONMENT CLEARANCE NO.83/2017 DATED 21.11.2017** - **EXT.P1(E) TRUE COPY OF THE LICENSE FROM THE DEPARTMENT OF FACTORIES AND BOILERIES DATED 11.12.2017 EXT.P(F) TRUE COPY OF THE EXPLOSIVES LICENSE VALID TILL 31.03.2019 EXT.P2 TRUE COPY OF THE APPLICATION FOR EXEMPTION SUBMITTED TO THE 1ST RESPONDENT DATED 04.08.2016 EXT.P3 TRUE COPY OF THE REPORT OF THE GOVERNMENT PLEADER DATED 18.10.2016 OBTAINED UNDER RTI EXT.P4 TRUE COPY OF THE REPORT ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT DATED 04.06.2018** - **EXT.P5 TRUE COPY OF THE LETTER ISSUED BY THE 5TH RESPONDENT DATED 03.02.2018 OBTAINED UNDER RTI EXT.P6 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 28.05.2018 OBTAINED UNDER RTI EXT.P7 TRUE COPY OF THE ORDER G.O.(MS)NO.408/2015/RD DATED 22.08.2015** - **EXT.P7(A) TYPED COPY OF EXT.P7** **RESPONDENT'S EXHIBIT NIL** **/TRUE COPY/** **PS TO JUDGE** **PBS 26/7/2018** ## ALEXANDER THOMAS, J. ----------------------------W.P(C).No.25050 Of 2018 --------------------------------Dated this the 25th day of July, 2018. ## J U D G M E N T It is averred that the petitioner is a Partnership Firm registered with the Registrar of Firms (Kerala), under the provisions of the Partnership Act, 1932 and it is engaged in the business of quarrying and crushing and related activities from the year 2011. It is further stated that the petitioner purchased the property measuring 33.24 acres of property in Re.Sy.No.4 of Eruvassy Village, Taliparamba Taluk and started quarrying operations from the year 2011 itself with all the valid permits and licenses from the statutory authorities till date and in strict compliance of the conditions stipulated in those permits and licenses, etc., it is averred. The petitioner has now submitted Ext.P-2 application dated 4.8.2016 before the competent authority of the 1st respondent requesting that the Government may invoke their powers under Sec.81(1)(q) of the Land Reforms Act so as to exempt the land from ceiling provisions under Chapter III of the KLR Act, inasmuch as the said property is used entirely for the commercial activities as described under Sec.2(5) of the said Act. The petitioner in turn would contend ::2:: W.P(C).No.25050 Of 2018 that the properties used as commercial sites are liable to be exempted from land ceiling as per Sec.81(1)(q) of the Act. The Chairman of the 5th respondent-Taluk Land Board has sought for legal opinion from the Advocate General (Kerala), upon which Ext.P-3 opinion has been rendered, wherein it has been apprised that the 1st respondent-State is the competent authority to consider whether exemption under Sec.81(3) of the KLR Act is to be exercised or not and that the provisions under Sec.81(q) cannot be invoked in the instant case, etc. The grievance of the petitioner is that orders are not so far been rendered on Ext.P-2 application and during the pendency of Ext.P-2 application, the 5th respondent-Chairman, Taluk Land Board, has issued Ext.P-5 communication dated 3.2.2018 to the 2nd respondent-District Collector, Kannur, requesting the latter to initiate proceedings in respect of petitioner's land under Sec.87 of the KLR Act. Consequent thereto, the 2nd respondent-District Collector has issued Ext.P-6 proceedings dated 28.5.2018, wherein it is ordered that the petitioner shall not alienate the land in question, etc. It is in the light of these aspects, that the instant Writ Petition has been filed seeking the following main reliefs: > “i) Issue a writ of mandamus or any other appropriate writ or order or direction, directing the 1st respondent to pass final orders on Ext.p2 application for exemption under S.81(3) of the KLR Act. ii) Issue a writ of certiorari or any other appropriate writ of order or ::3:: W.P(C).No.25050 Of 2018 direction, quashing Exhibit P5 dated 03.02.2018 issued by the 5th respondent and Ext.P6 issued by the 2nd respondent.” 2. A Division Bench of this Court in the decision in State of Kerala v. Mohammedali Haji , reported in 1996 (1) KLT 584, has held that a quarrying site would fulfil the definition of commercial site as defined in Sec.2(5) of the KLR Act, which entitle a returnee from exemption under Sec.81(1)(q) of the KLR Act. This Court in the judgment in Aleykutty John v. Taluk Land Board , reported in 1981 KLT 731, after construing the provisions of Secs.81 & 82, has held that the relevant date with reference to which the question of exemption has to be adjudged is 1.4.1964 and there can be no doubt that state of affairs as on 1.4.1964 alone is relevant for the purpose of determining whether any particular land is exempt under S.81 (1) of the Act. However, it is by now well established that the State Government is conferred with the discretionary powers under Sec.81(3) of the KLR Act, which reads as follows: “ - Section 81: Exemptions. (1) The provisions of this Chapter shall not apply to- xxx xxx xxx (3) The Government may, if they are satisfied that it is necessary to do so in the public interest- (a) on account of any special use to which any land is put: or ::4:: W.P(C).No.25050 Of 2018 - (b) on account of any land being bona fide required for the purpose of conversion into plantation or for the extension or preservation of an existing plantation or for any commercial, industrial, educational or charitable purpose, by notification in the Gazette, exempt such land from the provisions of this Chapter, subject to such restrictions and conditions as they may deem fit to impose: Provided that the land referred to in clause (b) shall be used for the purpose for which it is intended within such time as the Government may specify in that behalf; and. where the land is not so used within the time specified, the exemption shall cease to be in force.” Therefore, the appropriate provision which is applicable for consideration of a request as in Ext.P-2 in the instant case could be the one under Sec.81(3) of the KLR Act and not Sec.81(1)(q) of the said Act. 3. Accordingly, it is ordered that the competent authority of the 1st respondent will take up for consideration the request of the petitioner contained in Ext.P-2 without further delay, and after affording a reasonable opportunity of being heard to the petition, will pass orders thereon without much delay, preferably within a period of 2 months from the date of receipt of a certified copy of this judgment. The specific contentions and submissions made by the petitioner should be duly adverted to and considered by the 1st respondent before they render a decision on Ext.P-2 request. Until orders are passed by the competent authority of the 1st respondent-State Government on Ext.P-2 ::5:: W.P(C).No.25050 Of 2018 request, further proceeding taken in pursuance of Ext.P-5 will be kept in abeyance. It is made clear that further proceedings in Exts.P-5 & P-6 will be dependent on the outcome of the decision taken in Ext.P-2 request. With these observations and direction, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.