Mathai P.P v. Additional District Magistrate, Kozhikode, The Chairman, Taluk Land Board & Sub-Collector, Kozhikode, and Revenue Divisional Officer, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 24TH DAY OF MARCH 2017/3RD CHAITHRA, 1939** ## **WP(C).No. 34788 of 2016 (W)** **----------------------------** **PETITIONER:** ## **----------** **MATHAI.P.P, PARIYADATH HOUSE, SHANTHI NAGAR PO., THAMARASSERY, KOZHIKODE.** **BY ADVS.SRI.NIRMAL. S SMT.VEENA HARI** **RESPONDENT(S):** **--------------** **1. ADDITIONAL DISTRICT MAGISTRATE, KOZHIKODE, PIN673001** **2. THE CHAIRMAN, TALUK LAND BOARD & SUB-COLLECTOR,KOZHIKODE, PIN-673001** **3. REVENUE DIVISION OFFICER, KOZHIKODE.PIN673001** **BY GOVERNMENT PLEADER SRI RON BASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 34788 of 2016 (W)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1: TRUE COPY OF THE LETTER OF CONSENT GIVEN BY THE LANDLORD TO THE PETITIONER DATED 02.01.2012 EXHIBIT P2: TRUE COPY OF THE LICENSE ISSUED BY THE 1ST RESPONDENT IN FORM L3-3 UNDER THE EXPLOSIVE ACT AND GRANT OF LICENSE RULES DATED 10.10.2013 EXHIBIT P3; TRUE COPY OF THE LICENSE ISSUED BY THE MUKKAM GRAMA PANCHAYATH DATED 19.05.2015 EXHIBIT P4: TRUE COPY OF THE CONSENT VARIATION ORDER DATED 18/5/2015 SUBMITTED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXHIBIT P5: TRUE COPY OF THE FORM U QUARRYING PERMIT DATED 29.04.2015 EXHIBIT P6: TRUE COPY OF THE LETTER NO.DOZ/M 1687/14 DATED 29.04.2015 EXHIBIT P7: TRUE COPY OF THE APPLICATION DATED 02.02.2015 EXHIBIT P8: TRUE COPY OF THE ENQUIRY REPORT OF THE VILLAGE OFFICER DATED 14/9/2015 EXHIBIT P9: TRUE COPY OF THE LETTER DATED 26.08.2016 EXHIBIT P10: TRUE COPY OF THE LETTER DATED 25.02.2015 ISSUED BY THE SECRETARY LAND BOARD EXHIBIT P11: TRUE COPY OF THE JUDGMENT DATED WPCNO. 31477/2011 DATED 13.02.2015 EXHIBIT P12: TRUE COPY OF THE LETTER NO. D5-2015/5677/11 DATED 26.09.2016 RESPONDENT(S)' EXHIBITS NIL -----------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **SHAJI P. CHALY, J.** ## **---------------------------------------** ## **W.P.(C). NO. 34788 OF 2016** **----------------------------------------** Dated this the 24[th] day of March, 2017 ## **JUDGMENT** This writ petition is filed by the petitioner challenging Ext. P12 order dated 26.09.2016, whereby renewal of explosive license sought for by the petitioner was declined on the ground that the property in which the petitioner was carrying on the quarrying operation is part and parcel of a large extent of property belonging to one Kalpaka Plantations Pvt. Ltd., which enjoyed exemption from the provisions of the Kerala Land Reforms Act, 1969 (for short the 'KLR Act') and purchased by the petitioner, thus causing interference with the provisions of the Kerala Land Reforms Act,1969 and for other related reliefs. 2. Material facts for the disposal of the writ petition are as follows:- W.P.(C). NO. 34788 OF 2016 2 Petitioner is operating a quarry in R.S. No. 1/1 in Palakkal Desom, Neliswaram Village in Kozhikode District. Petitioner obtained all necessary licenses for running the quarry and was conducting the quarry, in accordance with law. While so, after the expiry of the period of license an application for renewal of license was made by the petitioner. On receipt of the said application, the first respondent by a letter dated 09.03.2015 directed the Tahsildar to conduct an enquiry and report whether the petitioner was obeying the rules stipulated in the license. Thereafter, the Village Officer, Neeleswaram conducted an enquiry in which it is reported that the property in possession of one Sri. Augustin was part of almost 138 Acres held by Kalpaka Plantations Pvt. Ltd., and the same has been transferred in the year 1996. It was also reported in Ext. P8 report that no construction activities can be carried out in the land in question. The petitioner was thereafter been issued Ext. P9 letter dated 26.08.2016 by W.P.(C). NO. 34788 OF 2016 3 the first respondent dated 26.08.2016 stating that it is decided to re-open the land ceiling case of Kalpaka Plantations Pvt. Ltd. It is also submitted that the same is done by the respondents as per Ext. P10 circular issued by the Secretary, Land Board, dated 25.02.2015 in respect of the issue. According to the petitioner, the issue of bifurcation of plantation enjoying exemption from the provisions of the KLR Act was considered by this Court, as per Ext.P11 judgment, wherein this Court directed to effect mutation of such properties and register the documents without insisting for no objection certificate, however subject to the result of any enquiry initiated under the provisions of the KLR Act. These are the vital pleadings projected by the petitioner to canvass for the proposition that Ext.P12 order passed by the first respondent declining renewal of license to the petitioner is bad under law. 3. First respondent has filed a counter affidavit refuting the allegations and claims and demands raised by W.P.(C). NO. 34788 OF 2016 4 the petitioner. Among other contentions it is stated that the Village Officer, Neeleswaram reported that an extent of 406.90 Acres of rubber plantation under the possession of Kalpaka Plantations Pvt. Ltd. had obtained exemption under Section 81 of the KLR Act. However, the company subsequently sold its large extent of property to various persons, who have converted the nature of land for commercial and other purpose. On 11.02.2016, consequent to a notice issued, the said company submitted a reply contending that they had not changed the nature of land at any point of time and the same was a plantation at the time of transfer and admitted that the nature of land has been changed subsequently. It is also stated that considering various decisions of this Court, the provisions of the KLR Act and Ext. P10 communication, the second respondent decided to re-open the ceiling proceedings against M/s. Kalpaka Plantations Pvt. Ltd.. 4. The petitioner has submitted an application on W.P.(C). NO. 34788 OF 2016 5 02.02.2015 for renewal of the explosive license. Subsequently, an enquiry was conducted by the first respondent through the Tahsildar, District Police Chief (Rural) and Geologist. After the enquiry, the Tahsildar reported that the land in which the quarry is operating was plantation land and ceiling case is pending under the KLR Act. Moreover, the second respondent submitted a report with respect to the land in question and stated that land has got exemption under Section 81 of the KLR Act. The report also highlighted that the present owner of the land has changed the nature of land and the ceiling case has to be initiated against the company. It is also stated that as per Ext. P10 communication issued by the Secretary, Land Board to the Chairman, Taluk Land Board, Kozhikode and the Revenue Divisional Officer, Kozhikode would show that exempted land shall not be used for any other purpose other than the purpose for which the exemption was granted. Therefore, the question arises in the writ petition is whether W.P.(C). NO. 34788 OF 2016 6 the land exempted from ceiling area under Section 81 of the KLR Act can be used by the transferee for any other purpose except for the purpose for which the exemption was granted. It is also stated that in the judgment rendered by this Court reported in **State Human Rights Protection Centre and Others v. State of Kerala and Others** [2009 (3) KHC 682 (DB)], it is held that the land which was exempted by the Government under Section 81 of the KLR Act can be transferred to any other person and even after transferring the transferee will have to use the same only for the purpose for which the exemption was granted. It is also held that the exemption of ceiling area will run with the land. Thus, even if a person purchases a part of plantation which is exempted, it can be used only for plantation and not for any other purpose. It is evidently clear that the original owner of the property has ownership of land excess in ceiling area and continue with the ownership only because the land is under exempted category. Other W.P.(C). NO. 34788 OF 2016 7 contentions are also raised justifying the rejection of the renewal application pursuant to Ext. P12 order. It is also submitted that Rule 116(2) of the Explosive Rules, 2008 has given power to the authority to refuse to renew the license in accordance with Act and Rules. That apart it is stated that Rule 118 of the Explosive Rules, 2008 indicates that every license issued under the Rules shall stand cancelled and the licensee has ceased to have any right for the lawful possession over the licensed premises. 5. Heard learned counsel for the petitioner, learned Senior Government Pleader and perused the documents on record and the pleadings put forth by the respective parties. 6. The predominant contention advanced by learned counsel for the petitioner is that when an application is submitted before the first respondent under the provisions of the Explosives Act and Rules, the authority is bound to consider the application in accordance with the terms of the Act and Rules. However, in Ext. P12, the sole reason W.P.(C). NO. 34788 OF 2016 8 assigned for renewing the license is that the property owned by the petitioner bifurcated from a larger extent of property exempted under the provisions of the KLR Act is used by the petitioner for quarrying. Therefore, according to the learned counsel, first respondent is not vested with powers to enquire into such issues and decline the license for quarrying operations. Moreover, it is contended that there is no finding in Ext. P12 order as to whether in the plantation held by M/s. Kalpaka Plantations Pvt. Ltd., a portion was used by the said plantation for the purpose of quarrying or not. Therefore, it is contended that the application submitted by the petitioner ought to have been considered by the first respondent strictly confining to the provisions of the Explosives Act and Rules. Learned Counsel has also a contention that there is no power conferred under the provisions of the Explosives Act and Rules enabling the first respondent to decline a license assigning the reasons stated in Ext.P12 of bifurcation of the W.P.(C). NO. 34788 OF 2016 9 estate and user of the land for a different purpose. 7. However, learned Government Pleader on the other hand submitted that on the basis of the explanation offered by M/s. Kalpaka Plantations Pvt. Ltd. to a notice issued by the concerned Village Officer, it is clear that after the transfer of the estate, the property was put to a different use by the purchaser. That apart as discussed above, it is the paramount contention of the respondents that the exemption granted to M/s. Kalpaka Plantations Private Limited under Section 81 of the KLR Act in order to have the plantation is misused, the property is transfered and the same is put to a different use. Therefore, according to the learned Government Pleader, Ext. P12 order does not suffer any illegality, arbitrariness or any other legal infirmities warranting interference of this Court exercising the power of judicial review. 8. I have gone through Ext. P11 judgment rendered by this Court wherein the question of exemption in similar W.P.(C). NO. 34788 OF 2016 10 circumstances was considered by this Court vis-a-vis bifurcation of land and the land put to a different use other than agricultural activities. The circular issued by the Secretary, Land Board was also a subject matter of consideration thereunder. Anyhow, after elaborately considering the entire issues, subject to the suo motu action initiated under the provisions of the KLR Act permission was granted to the revenue authorities to issue possession certificate and also the registering authorities to register the document subject to the outcome of the enquiry conducted. 9. Taking note of the respective submissions made across the Bar and specifically an issue pointed out by filing a counter affidavit by the first respondent, what I could gather is that on the basis of the reply submitted by M/s. Kalpaka Plantations Pvt. Ltd., the predecessor in interest of the property of the petitioner, respondents have come to notice that the property which enjoyed exemption on the W.P.(C). NO. 34788 OF 2016 11 basis of Section 81 of the KLR Act is put to a different use. However, nowhere in the counter affidavit submitted by the first respondent, it is stated whether on the said ground the said authority is vested with powers to decline renewal of a license application submitted by the petitioner. In that view of the matter, I think it is only appropriate that the petitioner is provided with a reasonable opportunity to contest the proceedings in accordance with law. As discussed above, if the first respondent has relied on any other document to arrive at a conclusion as is stated in the counter affidavit, the said document should have been provided to the petitioner and fairness demands so. Therefore, in my considered opinion having not provided with the documents relied on to arrive at a conclusion as assigned in Ext.P12, Ext.P12 transforms into an illegal and arbitrary proceeding warranting interference of this Court under the writ jurisdiction. 9. Therefore, I have no hesitation to quash Ext. P12. W.P.(C). NO. 34788 OF 2016 12 Accordingly, I do so. Consequentially, there will be a direction to the first respondent to re-consider the renewal application submitted by the petitioner after providing copies of all the documents relied on by the first respondent in order to arrive at the right conclusion, and attain finality within a period of 45 days from the date of receipt of a copy of this judgment and after providing sufficient opportunity of hearing to the petitioner and any other interested or affected persons. Writ petition is allowed to the above extent. **SHAJI P. CHALY JUDGE** DCS