Kinattukara Metal Crusher v. State of Kerala

W.P.(C).No.15541 of 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 WP(C) NO. 15541 OF 2022** ## **PETITIONER:** KINATTUKARA METAL CRUSHER OFFICE AT CHENKARA. P.O, IDUKKI DISTRICT, PIN 685 539 REPRESENTED BY ITS MANAGING PARTNER, K.J.THOMAS, 61 YEARS, S/O K.T.JOSEPH, KINATTUKARA HOUSE, KALAKETTY.P.O, KOTTAYAM., PIN - 685539 BY ADVS. MAYA M. V.M.KRISHNAKUMAR RENJITH THAMPAN (SR.) ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 2 DISTRICT COLLECTOR COLLECTORATE, IDUKKI., PIN - 685606 3 TAHSILDAR UDUMBANCHOLA TALUK, TALUK OFFICE, MINI CIVIL STATION, UDUMBANCHOLA, NEDUMKANDAM, IDUKKI DISTRICT., PIN - 685553 BY ADV ASWIN SETHUMADHAVAN GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2023, THE COURT ON 09.03.2023 DELIVERED THE FOLLOWING: W.P.(C).No.15541 of 2022 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.15541 of 2022 = = = = = = = = = = = = = = = = Dated this the 9[th] day of March, 2023** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following relief: “ _“i) issue a writ in the nature of mandamus commanding the 2[nd] respondent to consider and pass orders on Ext.P2 in accordance with Ext.P1 judgment within such time as may be fixed by this_ ” _Hon’ble Court”_ ## 2. Heard the learned Senior Counsel appearing for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner, a partnership firm, had conducted quarrying operations in Government puramboke land in Anavilasam Village, Udumbanchola Taluk. The petitioner had filed an application on 31.01.2019 for No Objection Certificate from the Revenue Department for conducting quarrying operations in the adjacent land having an extent of 4.90 Acres in Survey No.172/1 W.P.(C).No.15541 of 2022 3 (Re-Survey No.154/1) in Block No.66 of Anavilasam Village. It is submitted that the application was sent for a detailed report to the 3[rd] respondent. When no action was taken on the application, as evidenced by Ext.P2, the petitioner submitted a request before the Tahsildar for filing a report before the District Collector. Nothing was done on the said request also. Thereafter, on 06.12.2019, the petitioner had approached the District Collector with a reminder. It is submitted that, in the meanwhile, a Government Order was passed on 28.01.2021 prescribing guidelines for grant of No Objection Certificate for quarrying operations in Government puramboke land. It is contended by the learned counsel for the petitioner that since the application submitted by the petitioner for No Objection Certificate was pending since January, 2019 as evidenced by Ext.P2, it has to be considered in the light of the law in force at the relevant time and that the procedure prescribed by GO(MS).No.28/2021/RD dated 28.01.2021 is not applicable. The learned Senior Counsel W.P.(C).No.15541 of 2022 4 appearing for the petitioner submits that the Government Order is only a policy decision with regard to the procedure for grant of mining leases in Government puramboke land and is not a binding decision as far as applicants are concerned. It is contended that the procedure prescribed under the Mines and Minerals (Development and Regulation) Act, 1957, (hereinafter referred as ‘the Act’) have not been complied with and that since the order has not been notified as provided under Section 15 of the Act, the rules are not binding on the applicants. 4. Relying on the decision of the Apex Court in **Gulf Goans Hotels** **Company Limited and another V. Union of India and others** [(2014) 10 SCC 673], it is contended that a policy can become justiciable when it exhibits itself in the shape of purported law. It is stated that so far as policy remains in the realm of rules framed for the guidance of the executive and administrative authorities, it may bind those authorities as declarations of what W.P.(C).No.15541 of 2022 5 is expected of them. But it cannot bind citizens, unless the impugned policy is shown to have acquired the force of law. It is contended that since Section 15 of the Act specifically provides for notification in the Official Gazette of rules for regulating the grant of quarry lease, mining lease or other mineral concession in respect of minor minerals and for the purposes connected therewith and since the Government Order is not such a notified rule, the same cannot bind persons who have already submitted applications for No Objection Certificate for the purpose of grant of mining leases. 5. The learned counsel also places reliance on the decisions of the Apex Court in **P.Kannadasan v. State of T. N. and others** [1996 KHC 941] and **Estate Officer and another v. Charanjit Kaur** [2021 KHC 6432] and the decisions of this Court in **Kerala State Cashew Development Corporation v. C.Thomas Panikkar and others** [2017 KHC 1049] and **Ajayakumar T.** W.P.(C).No.15541 of 2022 6 **and others v. Union of India and another** [2007 (3) KHC 320] and the judgment dated 6.1.2023 in W.P.(C). No.36198/2022. 6. A detailed statement has been placed on record by the Government Pleader wherein it is contended that the No Objection Certificate from District Collector under Rule 27 of the Kerala Minor Mineral Concession Rules, 2015 is necessary for conducting quarrying operations in Government properties. An application was received from the petitioner and was forwarded to the Tahsildar, Udumbanchola for enquiry. A report was received from the Tahsildar only on 04.06.2022. In the meanwhile, the Government had issued guidelines for grant of No Objection Certificate for mining of minerals from Government land. A copy of the Government Order dated 28.01.2021 is produced as Exhibit R2(a). It is submitted that since no report had been received on the application submitted by the petitioner before the issuance of the Government Order W.P.(C).No.15541 of 2022 7 and since the application had not been acted upon, the contention of the petitioner that the application is to be considered _de hors_ Ext.R2(a) cannot be accepted. It is further submitted that it is on the basis of a judgment dated 24.1.2020 of this Court in W.P.(C) No.20464/2019 and the orders passed therein that Ext.R2(a) guidelines had been framed for the issuance of No Objection Certificate for mining of minerals from Government land. It is submitted that the guidelines issued are not rules as provided under Section 15 of the Act and are only guidelines issued with regard to use of Government land, which is a subject specifically coming under the legislative competence of the State and therefore a matter in which the Executive Government is fully empowered to issue executive orders in the absence of statutory provisions. It is submitted that 'land' is a matter coming under Entry 18 to List 2 of the VII[th] schedule and that the guidelines in question are specifically those issued with regard to the use of land by the State Government. It is submitted that there is no 8 W.P.(C).No.15541 of 2022 challenge raised in this writ petition to the Government Order and therefore, the said issues do not have to be considered. 7. The learned Government Pleader also places reliance on the decisions of this Court in W.P.(C) No.20464/2019 and the decisions of the Apex Court in **Sulekhan Singh and Co. and others v. State of Uttar Pradesh and other** [2016 KHC 2310], **State of T.N. v. M/s.Hind Stone** [1981 KHC 548], **Centre for Public Interest Litigation and others v. Union of India and others** [2012 KHC 4084] and **Monnet Ispat and Energy Ltd. v. Union of India and others** [2012 KHC 4401]. 8. Having considered the contentions advanced, I notice that there is no challenge raised in this writ petition as against the Government Order dated 28.01.2021. The legislative competence of the State is, therefore, not a matter, which is to be considered in this writ petition. The petitioner had submitted an application for No Objection Certificate only in January, 2019. W.P.(C).No.15541 of 2022 9 The learned Government Pleader submits that no steps had been taken on the said application and that the report was submitted by the Tahsildar only in June, 2022 after the issuance of the Government Order. As distinct from the connected cases, there was also no direction sought or obtained by the petitioner from this Court for an early consideration of its application for No Objection Certificate. 9. In the above factual aspects, I am of the opinion that the prayer as sought for in the writ petition is not liable to be granted. The petitioner, who had only submitted an application for No Objection Certificate, which was not acted upon before the issuance of the Government Order cannot seek any direction for the consideration of the No Objection Certificate without reference to the guidelines. This writ petition fails and the same is, accordingly, dismissed. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.15541 of 2022 10 ## **APPENDIX OF WP(C) 15541/2022** PETITIONER EXHIBITS Exhibit1 TRUE COPY OF THE JUDGMENT IN WP(C).29498/2021 DATED 22.03.2021 Exhibit2 TRUE COPY OF APPLICATION DATED 31.01.2019 FILED BY PETITIONER ALONG WITH THE RECEIPT ISSUED BY COLLECTORATE IDUKKI DATED 31.01.2019 Exhibit3 TRUE COPY OF THE LETTER DATED 02.04.2019 SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR Exhibit4 TRUE COPY OF THE APPLICATION DATED 06.12.2019 FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR RESPONDENT ANNEXURES ANNEXURE R2(a) TRUE COPY OF THE G.O.(MS) NO. 28/2021/RD DATED 28.01.2021 PETITIONER EXHIBITS Exhibit P5 TRUE COPY OF THE JUDGMENT IN WP(C) NO.751 OF 2022 DATED 16.06.2022. Exhibit P6 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 2ND RESPONDENT TO SRI. V.T. SUNNY DATED 31.12.2019. Exhibit P7 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 2ND RESPONDENT TO SRI. ANANTHU SUNIL DATED 25.12.2019 11 W.P.(C).No.15541 of 2022 Exhibit P8 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 2ND RESPONDENT TO SMT. SHANTY RAJU DATED 10.03.2020. TRUE COPY PS TO JUDGE