Larsen & Toubro Ltd v State of Kerala and Others

W.P.(C).No.2156/22 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 WP(C) NO. 2156 OF 2022** ## **PETITIONERS:** LARSEN & TOUBRO LTD L & T HOUSE, NAROTTAM, MARARJIMARG, BALLARD ESTATE, MUMBAI HAVING CONSTRUCTION DIVISION HEADQUARTERS, MOUNT POONAMALLEE ROAD, MANAPAKKAM, CHENNAI-600089, REPRESENTED BY ITS CONSTRUCTION MANAGER (CIVIL), MUTHUKUMAR RAMANATHAN, MKRP SITE PROJECT OFFICE, PRAYIMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. BY ADVS. V.G.ARUN (K/795/2004) V.JAYA RAGI R.HARIKRISHNAN (KAMBISSERIL) NEERAJ NARAYAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY (INDUSTRIES), DEPARTMENT OF INDUSTRIES AND COMMERCE, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR, DIRECTORATE OF MINING AND GEOLOGY DEPARTMENT, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004. W.P.(C).No.2156/22 2 - 3 THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004. - 4 THE PROJECT DIRECTOR, NATIONAL HIGH WAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, THIRUVANANTHAPURAM-695001. - 5 MIDHUN, S/O. BAHULEYAN, MELPURATHU THARISU VEEDU, PARASUVAIKKAL P.O., PARASUVAIKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695504. - 6 MEENU, D/O. BAHULEYAN, MELPURATHU THARISU VEEDU, PARASUVAIKKAL P.O., PARASUVAIKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695504. BY ADV K.A.SALIL NARAYANAN ## **OTHER PRESENT:** S.KANNAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.2156/22 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** ## **W.P.(c).No.2156 of 2022** **= = = = = = = = = = = = = = = = Dated this the 1[st] day of February, 2022** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “i.Issue a writ of mandamus or any such other writ direction or order commanding 1[st] respondent to consider Exhibit P10 &P11 representations in accordance with the principle adumbrated under Rule 3A of the Kerala Minor Mineral Concession Rules, 2015 in accordance with the positive directions issued by the Division Bench of this Hon’ble Court in the case of **Gireesh Kumar vs. RDO Thirssur & others** reported in **2011(2) KHC 336** within a short time frame of 10 days and to further hold that if no decision is taken by the 1[st] respondent then Ext. P10 application seeking exemption under Rule 3A shall be deemed to be allow; ii. Issue a writ of mandamus or any such other writ direction or order commanding 1[st] respondent grant exemption to the petitioner for conducting mining operation within 25 meter distance from the abutting private property as envisaged under Rule 3A of the Kerala Minor Mineral Concession Rules, 2015;” 2.Heard the learned counsel for the petitioner, the learned Government Pleader and the learned standing counsel W.P.(C).No.2156/22 4 appearing for the 4[th] respondent. In view of the directions being issued, notice to respondents 5 and 6 is dispensed with. 3.The petitioner contends that the petitioner is a contractor undertaking the four laning project of the Kazhakoottam – Karode stretch of the National Highway Byepass in Thiruvananthapuram district. It is submitted that the petitioner had been issued with Exhibit P1 quarrying permit for ordinary earth on condition that he would not carry out any quarrying operations within a distance of 25 metres from the boundary or boundaries of adjacent properties or 50 metres from any residential building except with the consent of the owners of such property. It is submitted by the learned counsel for the petitioner that respondents 5 and 6, who have properties at the boundaries of the property from which quarrying of ordinary earth was permitted, have submitted objections with regard to quarrying in the petitioner's property. It is submitted that a civil suit has also been filed by the said respondents. W.P.(C).No.2156/22 5 4.The learned counsel for the petitioner submits that the 'Form' in which the quarrying permit for ordinary earth is granted is Form -N under sub-rule (2) of Rule 9 of the Kerala Minor Mineral Concession Rules, 2015. It is submitted that the said Form had undergone an amendment by a notification dated 4.1.2020 providing that in case quarrying is for supply of ordinary earth for Government works, the State Government would be competent to grant previous permissions for quarrying operations at or to any points within a distance of 25 metres from the boundary or boundaries of adjacent properties. The learned counsel for the petitioner would contend that Exhibit P10 request has been made by the petitioner seeking such permission from the Government and Exhibit P11 request has been made by the 4[th] respondent also supporting the request of the petitioner. It is contended that the said requests are liable to be considered in accordance with law. ## 5.The learned Government Pleader submits, on instructions, that the amendment notified on 4.1.2020 effects an amendment W.P.(C).No.2156/22 6 only in the Form of the permission and that no corresponding amendment has been made in the rules. It is, therefore, contended that the remedy available to the petitioner is to file an appeal as against Exhibit P1 and against Exhibit P12 before the appellate authority and not to prefer a representation before the Government. 6.The learned counsel for the petitioner submits that in view of fact that there is extreme urgency in the situation as is revealed from Exhibit P11 request made by the NHAI, the issue requires a consideration at the hands of the Government. 7. In view of the fact that the 4[th] respondent also supports the case of the petitioner and has also approached the Government with Exhibit P11, I am of the opinion that the request made by the petitioner requires a consideration at the hands of the Government, since it is admitted by all concerned that further quarrying of ordinary earth will not be possible in the premises in question, unless the 25 metres rule is relaxed in public interest. W.P.(C).No.2156/22 7 8.In the above view of the matter, there will be a direction to the 1[st] respondent to take up Exhibits P10 and P11 requests made by the petitioner and the 4[th] respondent respectively, consider and pass orders on the same, after hearing the petitioner, the 4[th] respondent as well as respondents 5 and 6. Appropriate orders shall be passed at the earliest, after hearing the concerned persons through any appropriate means, including video conferencing within a period of ten days from the date of receipt of a copy of this judgment. In view of the prevalent Covid situation, the Principal Secretary or any officer duly authorised by the Principal Secretary can conduct hearing and pass orders on behalf of the Government as directed. Writ petition is ordered accordingly. **==> picture [27 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.2156/22 8 ## **APPENDIX OF WP(C) 2156/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE QUARRYING PERMIT ISSUED BY THE DISTRICT GEOLOGIST AS PER PERMIT NO.7/202122/QP/QE/2172/DOT/ML/2021 DATED 10.12.2021. - Exhibit P2 A TRUE COPY OF THE INTERIM ORDER DATED 23.12.2021 IN WP(C) NO.29901 OF 2021 PASSED BY THIS HON'BLE COURT. - Exhibit P3 THE TRUE COPY OF THE PLAINT IN O.S.NO.934 OF 2021 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA. - Exhibit P4 THE TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, NEYYATTINKARA DATED 6.1.2022 IN I.A.NO.2/2021 IN O.S.NO.934 OF 2021. - Exhibit P5 THE TRUE PHOTOGRAPHS SHOWING THE SOUTHERN AND WESTERN BOUNDARY OF THE PROPERTY OF RESPONDENTS 5 & 6. - Exhibit P6 A TRUE COPY OF THE SHOW CAUSE NOTICE BEARING NO.DTO/2018 DATED 24.12.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. - Exhibit P7 A TRUE COPY OF THE REPLY LETTER DATED 27.12.2021 SENT BY THE PETITIONER TO THE 3RD RESPONDENT IN REPLY TO EXT.P6 SHOW CAUSE NOTICE. - Exhibit P8 A TRUE COPY OF THE INTERIM ORDER DATED 31.12.2021 IN WP(C) NO.30801 OF 2021. W.P.(C).No.2156/22 9 - Exhibit P9 A TRUE COPY OF THE REPRESENTATION DATED 5.1.2022 BEARING NO.L&T/TI1C/RREC/MKTRP/1145 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. - Exhibit P10 A TRUE COPY OF THE REPRESENTATION DATED 5.1.2022 BEARING NO.L&T/TIIC/RREC/MKTRP/1144 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT UNDER RULE 3A OF KERALA MINOR MINERAL CONCESSION RULES, 2015. Exhibit P11 A TRUE COPY OF THE LETTER DATED 10.1.2022 BEARING NO.NHAI/PIUTVM/300/2021-22/2536 SENT BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT. Exhibit P12 THE TRUE COPY OF THE ORDER DATED 7.1.2022 BEARING NO.1040/202122/2172/DOT/ML/2021 PASSED BY THE 3RD RESPONDENT GEOLOGIST. True copy PS to Judge